Elisabetta Lamarque

Judicial Implementation of Constitutional Rights

  • Abstract

Informations and abstract

Keywords: Constitution, Constitutional Rights, Compensation for Non-economic Damage

This article has the aim of addressing the impact of recent case law of Italian Courts that has introduced a new form of protection of fundamental rights. This case law has already been throughly analysed by civil law scholars, but it also has constitutional relevance. In fact it has introduced a form of protection of fundamental rights - consisting of compensation of non-economic damage - that is not entrenched in statute law. This protection can be granted by all Courts, be they civil, criminal or administrative. More specifically, the Author refers to two decisions of the Italian Court of Cassation (third civil bench) delivered at the end of May 2003 (the so called "twin decisions") that were followed in July by an interpretative decision of the Italian Constitutional Court and then by a series of other judgments. This case law overrules the previous restrictive interpretation of art. 2059 of the Italian Civil Code on the basis of which compensation was granted only for non-economic damage resulting from a criminal offence. On the contrary, the new doctrine endorses an interpretation of art. 2059 of the Italian Civil Code that is more in line with the Constitution. On the basis of this interpretation compensation for non-economic damage should be provided whenever a constitutional value inherent to individuals has been infringed.

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