Andrea Cardone

The Direct Applicability of the ECHR in the Ordinary Case Law Between (Apparent) Returns to the Past and New Problematic Dimensions

  • Abstract

Informations and abstract

Keywords: constitutional system; Supreme Court; direct application of the ECHR; constitutional adjudication;

The essay examines the issue of the direct application of the ECHR within our constitutional system, starting from the recent judgments of the Supreme Court, with particular regard to the Padula case decided on 5 July 2021. It offers a critical periodization of the constitutional and ordinary judgments on the subject. Such periodization highlights how in the recent case law of ordinary courts we can grasp two trends that seem to connote a new season of direct application, with particular regard to the matters of the obligation of compliant interpretation and the execution of the conventional judgments through the direct application of the principles developed by the Strasbourg Court. The analysis shows that, contrary to the common understanding of the phenomenon, the qualifying feature of the form of state which the relations between the constitutional legal system and the ECHR is attacking is not so much the centralized constitutional jurisdiction, but the functional separation between legislator and judge.

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