Spunti di riflessione sulla sentenza 238/2014 della Corte costituzionale

Abstract

This paper questions whether the Court truly engaged in a genuine balancing of constitutional principles. The answer is negative, given that: a) the conclusion that the international rule on State immunity cannot justify derogations from the right to judicial protection, is based solely on the gravity of the crimes at stake; b) the Court gave no consideration to the possibility that the applicants’ rights might be protected through alternative or equivalent means; c) no weight was given to Italy’s constitutionally protected interest in complying with a principle of international law, as affirmed by a judgment of the International Court of Justice; namely, a tribunal embedded in the UN system, expressly covered by Article 11 of the Constitution.