Corte edu e Corte costituzionale tra operazioni di bilanciamento e precedente vincolante. Spunti teorico-generali e ricadute penalistiche (pt. I)

Abstract

This article is divided into three parts. The subject is the complex connections between the test balancing of the Italian Constitutional Court and that of the CEDU Court. Balancing between interests protected by European Convention and interests protected by national constitutional system. The “ad hoc balancing” is the first type of test balancing, according to the author, applied by CEDU Court to many judicial cases, which argues that the value protected by the European Convention is superior to the value protected by the national State. In the second part of the article, the author shows some judicial cases as examples of his argumentation. In the third part, the author analyzes the cases in which the European Court applies general standards for the resolution of conflicts of interests at stake, but only connected to specific cases decided, and argues that if the balancing should be binding, general rules of conflict ex ante available should be applied or there should be many precedents which create rules.