MONTAGNA M. – Intangibilità del giudicato e valore delle decisioni della Corte EDU: osservazioni a prima lettura sulla sentenza della Corte costituzionale n. 113 del 2011
Autore dell’articolo/Author
Mariangela Montagna
As a premise of the research it should be noted that Article 46 ECHR requires contracting parties to “commit themselves to respect the final rulings of the Court in any case in which they are parties.” Article 41 ECHR states that if “the Court finds that there has been a breach of the Convention or its protocols, and if the internal law of the Contracting Party concerned allows only partial reparation for the consequences of such a breach, the Court shall, when appropriate, afford just satisfaction to the injured party”.
A fundamental change regarding the subject of our research only occured in 1973, when Italy subjected itself to the jurisdiction of the Strasbourg Court and accepted the clause regarding the compulsory jurisdiction of the European Court of Human Rights, as well as the right of the individual application to the same Court.
For a long time, the examination by the Court of Strasbourg of a violation of due process as envisaged by the European Convention on Human Rights only found satisfaction in the sentence of fair compensation for those who had suffered such an injustice, but without the imposition of any form of “reparation”, in strictly procedural terms, that affected the domestic legal system.
Significant steps towards the effectiveness of supranational rights, in relation to the fair trial, have been taken in recent years, and have brought to a conclusion a process that obliges the Italian state to be an active protagonist, from a European perspective, in the context of the criminal process. The necessity is to no longer consider delays as acceptable following giurisprudential interventions – be they by the Constitutional Court, or the Court of Cassation – that have developed an interpretation of rules and, in particular, supranational rules, that must be taken into account in the analysis of the consequential effects of any rulings of the European Court of Human Rights, with reference to Italy, that establish the violation of conventional parameters.
The reference here is to the “Dorigo” case, and the subsequent rulings of the Court of Cassation and the Constitutional Court, as well as the constitutional judgments nn.348 and 349, dated 2007. If the first case saw the development of the principle by which the final decision of a criminal proceeding that the Court of Strasbourg has judged “unfair” should not be executed, in the second, conventional norms were used as parameters that have an important impact on the scrutiny of the constitutionality of domestic law.
Sezioni Generali / General Sections
The Enforcement of ECtHR Decisions
Rights, Constitution and ECHR
Rights and Legal Reasoning of the ECtHR
Foreign Nationals and ECHR
Property
Freedom of Thought, Conscience and Religion
Freedom of Expression
Civil Rights and Obligations
Criminal law Protection
Criminal Procedure and supra-national Rights
Administrative due Process
Taxes and Rights
Globalization and Human Rights
Info Generali / General Info
"Si fermi il brutale attacco di Erdogan al popolo curdo": l'appello di docenti, studenti e personale delle Università del Rojava e di Kobane (14.10.2019)
Si segnala l'appello di docenti, studenti e personale delle Università del Rojava e di Kobane, contro il brutale attacco di Erdogan e del suo governo ai popoli liberi del Rojava e della Siria del Nord.
Chiunque voglia comunicare la propria adesione può scrivere a: appellouniversitarojavakobane@gmail.com
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