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

Starting date
January 23, 2004
Duration (months)
12
Departments
Law
Managers or local contacts
Pedrazza Gorlero Maurizio
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).

The “Charter of Fundamental Rights of the European Union” draws its inspiration from the aim of promoting a future of peace, which is founded on European common core values. The Charter tends to the implementation of a unique European identity, with particular regard to the complete acknowledgement of fundamental rights and to their tutelage.
The aim of this research is to study the contents and the characteristics of the freedom of religion, that is one of the classic fundamental freedoms. In particular, the freedom of religion will be studied taking into account the statements of the two European Courts (that of Strasbourg and the EC Court of Justice), and the relationships between the religious pluralism and the principle of equality, as well.
The art. 10 of the Charter recognizes the right of every human being to freedom of thought, conscience and religion. This right includes freedom to change religion or belief, either alone or in community with others and in public or in private, to manifest religion or belief in worship, teaching, practice and observance. This article affirms the respect for cultural, linguistic and religious diversity in religion field, and the right of changing religion and belief, in addition to the classical contents of the freedom of religion.
These aspects of the freedom of religion the Charter underlines can be considered as totally accepted by the juridical tradition of Western Europe. Nevertheless, this new approach to the freedom of religion gives the hint for a study, which has to be made in accordance to the need of a new way of considering the religious phenomena. The research tends to read the juridical aspects of religion in a new way, and to operate a synthesis of the different European religions. This research is also necessary nowadays, because religion has become the starting-point or the excuse for destabilizing the actual international political system.
The way the Charter considers this freedom has been already criticized: in fact, someone thinks the article does not reserve a specific role to the different religions. On the other hand, others think the Charter will open to the famiglia di fatto, and to the possibility of an education given by Islamic schools.
The research would like to study how this juridical and political implications deriving from the new formulation of the freedom of religion will be used by the courts. The objective is to operate a systematic study of the judgements of the European Court of Strasbourg and of the interactions between the Charter and the European Convention on Fundamental Freedoms signed in 1950. Again, the research will focus on the way these two documents are interpreted by the two European Courts.
Once more, it is necessary to rethink roles and tasks of all the Courts which are involved in the tutelage of the freedom of religion, that is to say the Court of the European Communities, the Court established by the Convention of Rome in 1950, and the Italian Corte Costituzionale. A clash of different judicial judgements between these three Courts is real; so, it is necessary to find a new framework, in which disputes and conflicts of competences among the Courts with regard to the tutelage of this freedom can be settled and avoided.
There are many hints for this research. Firstly, the Protocol number 11 to the Covenant of Rome which is now in force, gives to the individual a bigger role in promoting the tutelage of the freedom of religion. Secondly, the Corte Costituzionale is the guardian of the fundamental principles of the Italian Constitution, which operate as counter limits to the supremacy of the European Community Law. As a consequence, the Corte Costituzionale operates in the field of the tutelage of such a right. Thirdly, the role of fundamental rights and of the common traditions of the Countries, which are members of the EU, are becoming stronger and stronger in the development of a unique juridical system.
This research will necessarily involve a total rethinking of the system of the sources in the EU, a new approach to the mutual interactions between domestic and European law, and a new way of analysing the monistic and dualist conceptions of international law, as affirmed by the EU Court and by the Corte Costituzionale.

Sponsors:

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

Project participants

Beatrice Corradini
Teaching Assistant
Elisabetta Crivelli
Maurizio Pedrazza Gorlero
Professore onorario

Activities

Research facilities