Insindacabilità parlamentare e diritti fondamentali: un problema solo italiano?

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Abstract

[automatically translated] The European Court of Human Rights (ECHR) condemned Italy for violation of Article. 6.1. ECHR seven times in relation to the application of Article 68 c. 1st Constitution. It. The absolute immunity parliamentary privilege, according to the Court of Strasbourg, would have resulted in a violation of the right of access to a court. Although the disicplina constitutional prerogative was deemed necessary for the protection of a vital interest of the state (the principle of separation of powers), in application methods was found to be a "measure" does not respect the principle of proportionality in relation to the aim pursued. The analysis aims to verify whether ' approach to the issue of the relationship between fundamental rights and constitutional prerogatives adopted by the European Court of Human Rights with respect to the "Italian case" move from a reconstruction of a "common" minimum standard of protection of rights in cases when they are in similar relief prerogatives constitutional its other legal systems of the Member States and if the "problematic" relationship between prerogatives and protection of the rights found in the Italian Constitution also determines in other European jurisdictions. The paper aims to provide useful information to the reconstruction of the British law relationship, the French and the Spanish one to draw some conclusions then compared to the "Italian case". THE' analysis shows that the relationship between fundamental rights and prerogatives is also problematic in the legal systems examined and concludes that the extent of the compression of fundamental rights may vary according to the individual "discrepancies" in the structure of powers, but an approach to research a uniform "European" system appears inadequate to account of national constitutional traditions and the overall arrangement of the constitutional guarantees of fundamental rights. As far as the Italian scheme, it is difficult to observe the principle of proportionality required by the "ECHR principles" for cases where is not picked up a conflict of powers by the court before a parliamentary resolution d ' insidacabilità and where the Constitutional Court to declare the inadmissibility or admissibility of the conflict. This conclusion based on the fact that in the examined constitutional systems do not exist for a test as a substantive immunity un'omologo the prerogative of "parliamentary ruling." For the rest, however, the Italian regime appears largely rationalized and the level of protection of rights similar in substance to the constitutional principles of the European legal systems examined.
Original languageItalian
Pages (from-to)1380-1403
Number of pages23
JournalDiritto Pubblico Comparato ed Europeo
VolumeIV
Publication statusPublished - 2011

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