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Unpublished Paper
The Fork in the Road After Strasbourg: Effective Remedy or Moral Victory?
ExpressO (2009)
  • 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. It starts with a historical background on European integration, highlighting the leadership role played by Italy in this process (§ 1). It then considers the main provision governing the matter, namely Art. 46 of the European Convention on Human Rights, that provides for the duty to “abide by the final judgment of the Court”, and shows how the way this provision is construed influences European integration (§ 2). After that, the article considers the Italian approach. Unlike other States, Italy has never provided for any form of review through a legislative reform, although the gap in the law has started to be filled by the courts (§ 3). The principal thesis of the article is that the only way to seriously 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). Next, the article goes back to Italy, and contrasts the proposed approach to the bills on the matter pending before the Italian Parliament, criticizing them for being too timid (§ 5). Lastly, the article takes up the theme of European integration, arguing that a legislative reform like the one proposed would jump-start this process again. This would finally let Europe follow the same path that, at the end of the 18th century, Hamilton, Madison, and Jay drew for America in The Federalist Papers, which actually was a major source of inspiration for several fathers of European integration, like the Italians Altiero Spinelli, Ernesto Rossi and Luigi Einaudi (§ 6).
Keywords
  • European integration,
  • European Court of Human Rights,
  • European Convention on Human Rights and Fundamental Freedoms,
  • Court of Strasbourg,
  • human rights,
  • enforcement of judgments,
  • review,
  • final judgment,
  • duty to abide by,
  • Italy,
  • remedy
Disciplines
Publication Date
August 26, 2009
Citation Information
Riccardo de Caria. "The Fork in the Road After Strasbourg: Effective Remedy or Moral Victory?" ExpressO (2009)
Available at: http://works.bepress.com/riccardo_de_caria/2/