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Home » Archive » The Implicit Cooperation Between The Strasbourg Court And Constitutional Courts: A Silent Unity?

Alessia-Ottavia Cozzi
The Implicit Cooperation Between The Strasbourg Court And Constitutional Courts: A Silent Unity?
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The paper discusses the how Italian Constitutional Court (ItCC) considers the case law of the European Court on Human Rights (ECtHR) by focusing specifically on the parameters for constitutional adjudication. The analysis shows that in some cases, the ItCC considers the ECtHR precedents through Art. 117, par. 1, It. Const.—i.e. the obligation of the Italian legislation to respect international treaties—while in other cases, the ItCC prioritises constitutional rights, thus directly adopting an interpretation that is consistent with the ECHR. In this way, a silent cooperation between courts is executed. Next, this paper attempts to compare the French Constitutional Council’s behaviour with Italy’s approach to the ECHR. The analysis concludes that the ItCC’s choice of parameter seems flexible and unpredictable. More specifically, the Italian approach lacks a well-established and coherent logical priority towards substantive constitutional violations instead of conventional violations. In times of fragility of the ECHR machinery, the application of the sole substantive constitutional parameter can be explained by constitutional patriotism, which pursues autonomy and diversity. However, this might also result in the increased legitimacy of the ECHR system, rooting it directly in the living Constitution.

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