Roberto Romboli

The Incidenter Nature of Constitutional Review and Rights Protection: On the Decision n. 10 of the 2015

  • Abstract

Informations and abstract

Keywords: Italian Constitutional Court; Modulation of the Effects of the Declaration of Unconstitutionality.

The author comments Decision n. 10, 2015 of the Italian Constitutional Court as it offers interesting insight in the issues emerging when balancing the rules of procedure of Constitutional review with the substantive values and principles of the Constitution. The author identifies a number of inconsistencies in the decision of the Constitutional Court, but he mainly focuses on the obligation for the "a quo" judge to apply the norm declared unconstitutional. From this perspective, the author focuses on the consequences that the modulation of the effects in time of a declaration of unconstitutionality might produce on rights protection. In this regard, the author explores the possibility, for the parties involved in the "a quo" judgment, of bringing a case before the European Court of Human Rights. For what concerns, instead, the application of the constitutional decision in the ordinary judgment, the author shows the inadequacy of the remedies adopted with respect to the objectives identified in the motivation. Lastly, the article considers the alternative solutions that the Court could have adopted with regard to the modulation of the effects of the declaration of unconstitutionality.

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