THE FORK IN THE ROAD AFTER STRASBOURG: EFFECTIVE REMEDY OR MORAL VICTORY? A PROVOCATIVE INTERPRETATION OF THE DUTY TO ABIDE BY THE FINAL JUDGMENT OF THE EUROPEAN COURT OF HUMAN RIGHTS, FROM THE ITALIAN PERSPECTIVE

Abstract

The article deals with the enforcement of judgments of the European Court of Human
Rights in domestic systems, and particularly with the advisability of a provision that allows
the review of a final judgment at domestic level when the Court found that judgment in
violation of the Convention. The most relevant provision is Article 46 of the Convention.
After showing how the way Article 46 is construed influences the protection of fundamental
freedoms (I), the article focuses specifically on Italy, that unlike other countries has never
provided for any form of review of its final judgments in order to comply with Article 46.
Though recently the courts have started filling this gap in the law (II).
The thesis is that the only way to comply with Article 46 is to allow a review and an
immediate suspension of the enforcement of a ju dgment, with no conditions and for any
kind of proceeding, whenever the Court found it was in violation of the Convention (III).
Then, the article contrasts the proposed approach to the bills on the matter pen ding before
the Italian Parliament (IV), and conclu des by arguing that the proposed legislative reform
is advisable both for European federa lists and for Eurosceptics (V).