The Fork in the Road After Strasbourg: Effective Remedy or Moral Victory?

Riccardo de Caria, University of Turin

Abstract

The article deals with the enforcement of judgments of the European Court of Human Rights in domestic systems, particularly focusing on the Italian law. After a historical background on European integration and Italy’s leadership role in this process (§ 1), it considers the main provision governing the matter, Art. 46 of the European Convention on Human Rights (that provides for the duty to “abide by the final judgment of the Court”), showing how the way this provision is construed influences European integration (§ 2). Next, the article considers Italy, that – unlike other States – has never allowed any form of review through legislative reform, although the gap in the law has started being filled by the courts (§ 3). The principal thesis is that the only way to meet Art. 46 requirements is to allow a review and an immediate suspension of the enforcement of a judgment, with no conditions and for any kind of proceeding, whenever the European Court found it was in violation of the Convention (§ 4). Going back to Italy, the proposed approach is then contrasted to the bills on the matter pending before the Italian Parliament (§ 5). Lastly, the article takes up European integration, arguing that the proposed legislative reform would jump-start it again, letting Europe follow the same path that Hamilton, Madison, and Jay drew for America in The Federalist Papers (actually a major inspiration for several fathers of European integration, like the Italians Spinelli, Rossi, and Einaudi) (§ 6).