Obbligo di conformazione alla pronuncia della Corte di Strasburgo e revocazione della sentenza amministrativa: la sentenza n. 123/2017 della Corte costituzionale

This article, starting from the judgement No. 123/2017 of the Italian Constitutional Court, deals with the issue of the enforcement in the Italian legal system of the obligation to abide by a judgement of European Court of Human Rights which has ascertained a violation of the European Convention of Human Rights (ECHR) stemming from an administrative judgment or from proceedings which have led to the adoption of this judgment. Contrary to what the Constitutional Court said in the above-mentioned judgement, the author maintains that the obligation to abide by the Strasbourg Court’s judgement, stated in article 46, paragraph 1, ECHR, sometimes imposes to proceed to the revision of the administrative judgment or to the re-opening of the relevant proceedings. However, the Constitutional Court did not consider to give an « additive judgement » mentioning among the causes for the revocation of the administrative judgment the adoption by the European Court of Human Rights of a judgement ascertaining a violation of the ECHR in the above-mentioned hypothesis. On the other hand, it seems quite unlikely that the legislator would modify the laws on this subject in this way. Therefore, in the Italian legal system there is no specific legal instrument to enforce Strasbourg Court judgements in the above-mentioned cases. The author maintains that Italian Courts have an obligation to ascertain, case by case, if there exists a procedural rule that, with reference to the speciality of the case judged by the European Court of Human Rights, can provide the party which suffered harm with the restitution required by the obligation to comply with the Strasbourg Court’s judgement. This obligation stems from the principle requiring a State to « do as much as possible ».