The protection of citizens' rights and security in the European constitutional process (V)

Starting date
January 23, 2004
Duration (months)
12
Departments
Law
Managers or local contacts
Rossi Giovanni
Keyword
Protection and security, Human rights, European Union, Jurisdictional remedies, National constitutional courts, European courts

The project aims to elaborate an interdepartmental research with a view to monitoring the intergated European judicial system. The research wil analyse the degree of protection of the fundamental rights afforded by the legal rules,by administrative and judicial organs, in the relevant legal systems (national and supranational). Special attention will be devoted to a comparative analysis of the Italian Costitution and of the European Charters (EU Charter of Fundamental Rights, the European Convention on Human Rights), as well as to the interpretation and application of such rights by the national and supranational courts (the European Court of Justice, the European Court of Human Rights).

One of the pivotal points in the effective judicial protection of the rights of subjects belonging to a given judicial system certainly consists in the limitations posed on the judge in tracing the legal rules to be applied in a case in point he or she must know about and decide upon. There is also the problem of his or her freedom of interpretation of said rules and, subordinately, of the possible duty to render account of his or her decisions when drafting the grounds for a judgement. This entails many problems of primary importance, on the solution of which depends the actual configuration of the type of trial and, therefore, ultimately, the degree of actual safeguarding of those juridical assets that the judicial system itself indicates as important and worthy of safekeeping and that belong to the citizens.
In short, it all boils down to the issue regarding the sources of law (rule-making and cognisance) that the judge can (or should) draw from to deliver a judgement. In modern times, the Italian judicial system, like those of the other member States of continental Europe, has strived to make these sources coincide with the law in a formal sense, produced exclusively by the State itself. All this is, however, the outcome of a long and complex historical event that began between the 15th and the 16th centuries, especially in France, and that led to the creation of the 19th century codes. Clearly, this field also reveals the substantially parallel type of evolution of civil and criminal law (in which the figure of the judge depicted as "the mouth of Law" has found its most uncompromising application through the success of the principle of the absolute supremacy of law in defining the kinds of crime and in determining the penalties for them:"nullum crimen, nulla poena sine lege").
The focus therefore shifts to the role played - and that they could play in the future, de iure condendo - by doctrine on the one side and by practical jurisprudence on the other, in the production of actual "databases" of authoritative interpretations to be successfully applied in order to compensate the deficiencies of written law, that is to fill in the gaps and propose innovative solutions to unprecedented problems although stemming from already existing rules. This rule-finding activity (regarding the juridical principle contained in the judgement or in the reconstruction of the case on the part of the professor) is quite similar to the process that occurred in Europe between the 14th and the 18th centuries, when a corpus of communes opiniones doctorum was enucleated and used by the judges to solve doubts in interpretation and when, by way of partial alternative to the similar role played by doctrine, the first collections of rulings of the great courts were compiled (especially those of the Senate of Turin, of the Florentine Rota, of the Roman Rota, of the great Neapolitan courts and, outside Italy, of the arrêts of the French Parlements).
This is also connected to the widespread expectation of the duty to render account of a decision (introduced in the late 18th century) as a tool for controlling the actions of the judges both in terms of assessment of evidence and of correct interpretation of the rules used to reach a decision, as well as more in general in terms of correctness of the logic of the reasoning followed to reach the decision.

Sponsors:

MIUR - FIRB
Funds: assigned and managed by the department
Syllabus: FINANZMIUR - Finanziamento MIUR per la ricerca

Project participants

Giuliano Marchetto
Andrea Marchisello
Cecilia Pedrazza Gorlero
Associate Professor
Giovanni Rossi
Full Professor
Research areas involved in the project
History of Law

Activities

Research facilities