The European Court of Human Rights and the Italian Constitutional Court: No ‘Groovy Kind of Love’

Abstract

A few years ago I speculated that the ‘tale’ of the interaction between the Italian Constitutional Court (ICC) and the Court of Justice of the European Union (CJEU) has become, over time, too well known to require a further detailed overview of its evolution (or involution).

If there is one certainty when it comes to investigating the relationship between the ICC and the European Court of Human Rights (ECtHR), where the attitude of the ICC towards Strasbourg remains uncertain, it is that the recent interaction between the ICC and ECtHR could never be considered predictable. Over the past decade, the relevant case law of the ICC has brought many surprises and judicial coups de théâtre.

The essay, after exploring the reasons behind the ‘surprising’ relationship between the two courts, focuses on two ICC rulings from 2007 that have, in a way, opened the door to an exercise in creative thinking on the part of the Italian constitutional judges with regard to their relationship with the ECtHR. Then, the implications of those rulings and the subsequent case law from, on the one hand, a sources-of-law-based perspective and, on the other, an interpretive perspective are considered. In the concluding remarks, the paper raises then the question whether the ICC could have followed a different path.

Keywords: judicial dialogue, constitutional court, European court of human rights, fundamental rights, European law, constitutional law, european constitutional law