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The application of the ECHR by the Italian Court of Cassation

Authors: GRASSO, Gianluca;

The application of the ECHR by the Italian Court of Cassation

Abstract

This paper examines the evolving role of the European Convention on Human Rights (ECHR) within the jurisprudence of the Italian Court of Cassation, highlighting how Convention standards and Strasbourg case law have progressively reshaped interpretative practices, judicial reasoning, and procedural mechanisms. The study first situates the ECHR and EU law as once‑perceived “laws from elsewhere” that now constitute integral components of a multilevel system of rights protection. It then analyses the dual process of Europeanisation and fundamentalisation of national law, showing how these dynamics require national judges to balance constitutional norms, supranational obligations, and the principles of subsidiarity, proportionality, and the margin of appreciation. A substantial section addresses the Constitutional Court’s framework for integrating the ECHR into domestic sources of law, particularly through Article 117 of the Italian Constitution, which prevents ordinary judges from directly disapplying national provisions but allows them to trigger constitutional review. The paper illustrates how the Court of Cassation has progressively incorporated Strasbourg jurisprudence across civil, criminal, and procedural matters, refining standards on access to justice, reasonable time, family life, immigration, and fair trial guarantees. It further explores the implications of Protocol No. 16, despite its non‑ratification, and assesses the increasing use of advisory opinions as interpretative tools. Finally, the paper analyses the newly introduced mechanism for revising final judgments following a determined ECHR violation, underscoring its significance for ensuring full compliance with Convention obligations. It concludes with an overview of institutional measures designed to strengthen the Court’s capacity to operate within a European legal space.

Country
Italy
Related Organizations
Keywords

ECHR, Multilevel protection of fundamental rights, Court of cassation, Constitutional review, Strasbourg jurisprudence

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selected citations
These citations are derived from selected sources.
This is an alternative to the "Influence" indicator, which also reflects the overall/total impact of an article in the research community at large, based on the underlying citation network (diachronically).
BIP!Citations provided by BIP!
popularity
This indicator reflects the "current" impact/attention (the "hype") of an article in the research community at large, based on the underlying citation network.
BIP!Popularity provided by BIP!
influence
This indicator reflects the overall/total impact of an article in the research community at large, based on the underlying citation network (diachronically).
BIP!Influence provided by BIP!
impulse
This indicator reflects the initial momentum of an article directly after its publication, based on the underlying citation network.
BIP!Impulse provided by BIP!
0
Average
Average
Average
Green
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