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European Observer on fundamental right's respect

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Case Law 348 - 349/ 2007 (24/10/2007)

Type: Judgment

Authority: National Courts: Supreme Courts (Italy) - Corte Costituzionale

Date: 10/24/2007

Subject: The decisions number 348 and 349 of 2007 clarify the extent of the obligation to respect international law, according to art. 117, par. 1 of the Constitution, as limit to the State’s and Region’s legislative power, with regard to ECHR’s norms. Preliminarily, the Court states that the ordinary judge does not have the power to disapply the national law considered in contrast with a norm of the ECHR, because “the contrast between those two norms implies a question of constitutional legitimacy, because of the violation of art. 117, par. 1 of the Constitution, exclusive jurisdiction of the said Court”. However, this “does not mean that ECHR’s norms, as interpreted by the Court of Strasbourg, have constitutional value and are, for this reason, exempt from the control of constitutional legitimacy carried out by this Court. Because these norms integrate the constitutional parameter, remaining however at a sub-constitutional level, it is necessary that they be in accordance with the Constitution. Because of the particular nature of such norms, different both from community law and concordatory norms, the constitutional control cannot stop at the possible violation of fundamental principles and rights or of supreme principles, but it must be extended to every hypothesis of contrast between “interposed norms” and the “constitutional norms”. Art. 117, par.1 of Constitution, does not allow to “ascribe constitutional value to norms belonging to international agreements, subject of a transposition law, as in the case of ECHR’s norms”, but it implies “the national legislator’s duty to respect such norms, with the consequence that the national law which is in contrast with the ECHR’s norm and so with international obligations according to art. 117, par. 1, violates the constitutional parameter”. Therefore the ECHR’s norms become “interposed norms” in the constitutional legitimacy judgment with regard to the parameter of international obligations, according to art. 117, par. 1 of the Constitution.

Parties: -

Original language: Italian

Classification: General theme

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Notices: Relations among Courts
Relations between national legal system and ECHR