L’equilibrio nei rapporti tra Corti europee e Corti nazionali: un’autentica quadratura del cerchio possibile solo in prospettiva de iure condendo

Abstract

The paper highlights the inconsistencies in theoretical construction exhibited both by the jurisprudential orientations of the European Courts and by those of the national courts in the field of safeguarding fundamental rights; in particular, it highlights the lack of an organic theory of the Charters on the part of the Constitutional Court. It therefore notes the unjustified difference in the treatment reserved to the charters themselves both in terms of the theory of sources and the theory of interpretation, as well as in terms of the decisional techniques used to resolve inconsistencies between the charters in question; and suggests certain changes to be made to the canons on which the proceedings are based, in order to remedy some of the drawbacks hitherto observed. The study concludes with a brief final remark concerning the overexposure of judges and their hyperpoliticisation.