Deborah Russo

On the Direct Applicability of the European Convention on Human Rights in the Judgements Before the Italian Court of Cassation

  • Abstract

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Keywords: direct application of the ECHR; order of execution; domestic application of treaties; direct effects of treaties; relationship between domestic legal sources and international law;

This article discusses the direct applicability of the European Convention on Human Rights (and of other international treaties) in the Italian legal order, focusing in particular on the power to deduce the violations of the provisions of the European Convention before the Court of Cassation under Article 606, lett. b) of the Code of Criminal Procedure. It argues that neither the rules governing the relationship between domestic and international norms, nor the jurisprudence of the Constitutional Court support the view according to which the concept of «violation of law» might not include the violations of the European Convention. Indeed, not only the order of execution implies the presumption that the treaty is directly applicable by domestic bodies but also the Constitutional Court excludes the direct applicability of treaties solely in cases of incompatibility between domestic and treaty provisions which the national judge cannot solve by interpretation. Thus, there may be various residual cases of direct application of European Convention, such as when its provisions integrate the domestic legislation. Furthermore, the article argues that limitations to the right to invoke the provisions of the European Convention in front of the Court of Cassation may conflict with the principle of subsidiarity and the right to an effective remedy, provided by art. 13 of the European Convention. It also concludes that such restrictions are also not coherent with the nomophylax function of the Court of Cassation.

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