A New Status for the ECHR in Italy: The Italian Constitutional Court and the New ‘Conventional Review’ on National Laws

Abstract: The article aims to provide an analysis of the two judgments of the Italian Constitutional Court No. 348 and No. 349 dated 24 October 2007, which considered Article 117, paragraph 1, of the Italian Constitution as a constitutional rule granting superior legal authority to the European Convention over and above ordinary domestic statute law. A domestic law in contrast with the provisions of the Convention, as interpreted by the European Court, violates Article 117, paragraph 1, of the Italian Constitution and it must be declared unconstitutional by the Constitutional Court. In particular, the Constitutional Court has declared unconstitutional Article 5–bis, of the Law No. 359 dated 8 August 1992 (and of the following Article 37, paragraphs 1 and 2, of the Code of Expropriation Provisions, Presidential Decree No. 327 dated 8 June 2001) on the refund for legitimate expropriation and on the compensation awarded for the Italian public administrations’ practice of ‘constructive expropriation’, because they were calculated according to a criterion in contrast with Article 1 of Protocol No. 1 European Convention on Human Rights (ECHR), as interpreted by the Strasbourg case law.

The solution, adopted by the Constitutional Court, is very interesting and almost ‘revolutionary’, since it underlines the new place accorded to the ECHR in the Italian legal system in the last years, especially by the ordinary courts and finally by the Constitutional Court too.