L'interpretazione conforme alla giurisprudenza della Corte EDU: quale vincolo per il giudice italiano?

The Italian Constitutional Court’s current approach to the value of ECtHR case law in domestic proceedings, as most recently framed in Judgment No. 49/2015, has provoked criticism from commentators and given rise to inconsistent judicial practice. After an analysis of the main features of this approach, this article makes two proposals in order to address its shortcomings. Firstly, it suggests that the obligation to interpret domestic law consistently with ECtHR case law should be qualified as a ‘duty to take into account’. Pursuant to this model, which is adopted inter alia by UK and German courts, national judges must consider all ECtHR precedents relevant to their decision, but are allowed to depart from them by putting forward cogent substantive arguments. It is argued that this model can reconcile the need to promote compliance with ECtHR case law with the need to safeguard the scope of liberty that the ECHR itself provides to national courts. Secondly, the paper contends that, in order to give an adequate constitutional foundation to the ‘duty to take into account’ ECtHR case law, the Italian Constitutional Court might follow in the footsteps of the German Constitutional Court and adopt an axiological conception of consistent interpretation. That is, the ‘duty to take into account’ might be grounded on the openness of the Italian Constitution towards international law, rather than on the ECHR’s status in the Italian hierarchy of laws.