Diletta Tega

The European Convention on Human Rights in the case law of the Italian Constitutional Court

  • Abstract

Informations and abstract

Keywords: EHRC, Constitutional Court, case law circulation

Two preliminary questions have to be asked with regard to International Charters of rights: can they be applied by domestic judges? And what position do they have in the domestic system of legal sources? The article focuses in particular on the role played by the European Convention on Human Rights in the Italian legal system. This challenging issue has been addressed by writers on numerous occasions over the years. One of the main problems is the fact that notwithstanding the "constitutional" content of International Charters of rights, they are still considered primary sources of law in the context of the Italian legal system. The article then goes on to analyze the case law of the Italian Constitutional Court, which first dealt with International Charters in the early 60s. Initially, the Constitutional Court underlined that International Charters of rights are to be considered on the same level as statute laws in the hierarchy of legal sources. In the late 80s, however, the Constitutional Court started referring to International Charters of rights as a way of reinforcing the Constitutional parameter used in the reasoning of the Court. By doing this the Italian Constitutional Court appears to have shifted its focus from the formal position of International Charters in the system of legal sources to their actual content.

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