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

K. Siegler (ed), The UK and of European Court of Human Rights - A Strained Relationship?, Hart Publishing, 2015

Bocconi Legal Studies Research Paper No. 2668688

18 Pages Posted: 3 Oct 2015

See all articles by Oreste Pollicino

Oreste Pollicino

Bocconi University - Department of Law

Date Written: 2015

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

Suggested Citation

Pollicino, Oreste, The European Court of Human Rights and the Italian Constitutional Court: No ‘Groovy Kind of Love’ (2015). K. Siegler (ed), The UK and of European Court of Human Rights - A Strained Relationship?, Hart Publishing, 2015, Bocconi Legal Studies Research Paper No. 2668688, Available at SSRN: https://ssrn.com/abstract=2668688

Oreste Pollicino (Contact Author)

Bocconi University - Department of Law ( email )

Via Roentgen, 1
Milan, Milan 20136
Italy

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