L’attuazione delle sentenze della Corte europea dei diritti dell’uomo che richiedono l’adozione di misure a portata generale

This paper deals with the implementation of the ECtHR’s judgments in domestic legal systems, with particular regard to those requiring the adoption of measures of a general character (i.e. the modification or abrogation of internal rules, changes in case-law, or administrative practices). In recent years, the international system that monitors compliance by contracting states with the ECHR has become stronger, thanks to the institutionalization of the “pilot judgment procedure” and the provision, in Protocol n. 14, relating to “infringement procedure” coming into force. This evolution aims at valorizing the “para-constitutional” function of the ECHR to guarantee the respect of legal rules. At the same time, it presents a challenge for contracting states and, not by chance, it is giving rise to considerable scholarly debate about the efficacy of the mechanisms established, in each domestic system, to abide by the Strasbourg judgments. The first part of this paper deals with the basis of the power of the ECHR to order the adoption of general measures of reparation, indispensable for the restoration of the status quo (before the violation of the Convention) and for the prevention of a repetition of the same violation to the detriment of other persons. In such a context, the relationship between article 41 and article 46 of the Convention is considered, as well as the coordination between the functions of the European Court and those of the Committee of Ministers. The author also examines the question of the eventual erga omnes efficacy of the ECtHR’s judgments, in order to establish whether they can produce rulings that are binding even for states not party to the proceedings. The second part of the paper focuses on ECtHR judgments carried out in Italy. The Italian Constitutional Court, in the “twin judgments” of 2007, and in the subsequent case law, has offered a significant contribution to the clarification of the effects produced by the ECtHR’s judgments on the Italian legal system. In the light of this jurisprudence, the author examines the role of the “common” and the constitutional judge in the execution of the decisions made in Strasbourg, by paying particular attention to judgments in which a structural deficiency is found. Finally, the role played by the legislator is examined, in assuring the compliance of the Italian legal order with the ECtHR’s decisions, with a particular focus on proposals aiming at rendering this more effective.