I know it’s wrong but I just can’t do right: First impressions on judgment no. 238 of 2014 of the Italian Constitutional Court

von Filippo Fontanelli

On 22 October 2014, the Italian Constitutional Court (CC) delivered the judgment no. 238 of 2014. This ruling reignited the fire of Ferrini (a 2004 judgment of the Italian Supreme Court), which kept burning under the ashes, after the intervention of the International Court of Justice (ICJ) had seemingly put it off for good. It is only possible to appreciate the import of the CC’s judgment in perspective, as the last (or latest) act of a legal melodrama that would be entertainingly captivating if it were not real.

The decision followed the International Court of Justice (ICJ)’s judgment in the Germany v. Italy (Greece intervening) of February 2012, and Italy’s attempts to implement it. Ultimately, the CC took the bold decision to declare the unconstitutionality of the legislative measure through which Italy had brought itself in line with its international legal obligations, and of the statute ratifying the UN Charter, insofar as it required obedience to the ICJ’s decision. In essence, the CC knowingly resolved that compliance with the ICJ’s decision is not worth pursuing, as it entails an inevitable forfeiture of the fundamental rights of Italian citizens.

Commentaries will probably abound, wavering between enthusiasm and abhorrence, as it is habitual with civil disobedience. In my view, it is not possible to evaluate this judgment univocally. As a legal fact or act, it can be assessed with some degree of accuracy (certitude) on the basis of existing principles and parameters. Alternatively, it can be considered a legal event, a turning point (a tournant), which by definition escapes existing categories and lays the foundation of new ones. Only time will tell whether this decision will have proven to be a tournant. Here, my modest task is to side with caution and comment the judgment as a legal act operating in the here and now ...

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