JOINT PARTLY CONCURRING OPINION OF JUDGES CASADEVALL, RAIMONDI, BERRO, NICOLAOU AND DEDOV

(Translation)

1. We do not entirely share the reasoning of the Grand Chamber regarding the rejection of the objection raised by the Government on the ground of non-exhaustion of domestic remedies.

2. We had initially been satisfied by the Government’s analysis. In their submission, while it was true that the question of constitutionality could only be raised by the court and not by the parties – whose power was limited to requesting the court to exercise that option – and was therefore not a remedy that in principle had to be used for the purposes of Article 35 of the Convention, that was not true in the light of the precedent established by the famous “twin” judgments of the Constitutional Court nos. 348 and 349 of 24 October 2007, which concerned the eventuality of a conflict between Italian legislation and the Convention as interpreted by the Court.

3. The Government pointed out – correctly in our opinion – that if the lower court had considered that there was an insurmountable conflict between its interpretation of the legislation and the rights asserted by the claimant it would have had to raise a question of constitutionality. The Constitutional Court would then have examined the issue of compatibility with human rights on the merits and would have been able to set aside the domestic provisions with retroactive and erga omnes effect.

4. According to the precedent deriving from these two judgments of 2007, the ordinary courts now have two alternatives when examining the question of compatibility of domestic law with the Convention. Either they succeed, with all the technical means available to them, in construing domestic law in a manner compliant with the Convention as interpreted by the Court, or they must refer the question to the Constitutional Court, which will then set the relevant domestic legal provision aside unless it finds that there is a conflict between the Convention and the Constitution. This is an alternative in the strict sense of the term ( tertium non datur ).

5. In this context the Court’s traditional case-law, cited in paragraph 101 of the present judgment, should not apply in the present case. According to that case-law, based on the lack of direct access by litigants to the Italian Constitutional Court in accordance with the rule that only a court hearing the merits of a case has the possibility of referring a question to the Constitutional Court (at the request of a party or of its own motion), that request cannot be regarded as a remedy that has to be used in order to comply with the Convention requirements.

6. However, where a potential applicant challenges the compatibility of domestic legislation with the Convention we are no longer in the classic situation where the ordinary courts alone are master of the decision whether or not to apply to the Constitutional Court. In those circumstances, which are those of the present case, the traditional case-law is no longer relevant. If the ordinary court is placed by a potential applicant in the position of having to assess the compatibility of a domestic law with the Convention, it may of course interpret the domestic law in a manner compliant with the Convention. However, if it does not succeed in doing so it will have no choice: it will have to refer the question – provided of course that it is relevant for the outcome of the dispute – to the Constitutional Court.

7. In that situation, a potential applicant who has not obtained from the lower court an interpretation of the domestic legislation in a manner compliant with the Convention has the right to have the matter adjudicated by the Constitutional Court, with one proviso that we will examine below and is applicable in the present case.

8. Our only reason for ultimately deciding to join the majority decision rejecting that objection in the present case is the development that has occurred in the Italian Constitutional Court’s case-law in the form of judgment no. 49, deposited on 26 March 2015. In that judgment the Constitutional Court analysed, inter alia , the place of the Convention and the Court’s case-law in the domestic legal order, indicating in that regard that the ordinary courts were only bound to comply with the Court’s case-law where it was “well established” or expressed in a “pilot judgment”. Where a new question arises, as is undeniably the case here, the position adopted by the Constitutional Court means that a potential applicant cannot be deemed to be obliged to apply to the domestic courts before lodging an application with the Court.

9. That said, we observe that the reasoning of the present judgment – from which we must, partially, depart for the reasons outlined above – refers to judgment no. 49/2015 of the Italian Constitutional Court (see paragraph 100 of the present judgment) and that this reference gives the judgment an eclectic flavour. We see an opening here with regard to the traditional case-law.

10. The weight given to that decision in the reasoning of the present judgment paves the way, in our opinion, towards a departure from the Court’s traditional case-law – within the limits permitted by the precedent of the Italian Constitutional Court of course – which may lead it to consider that even where legislation is directly at the root of the alleged violation a potential applicant must in principle first apply to the domestic courts in so far as the very substance of the precedent established in Constitutional Court judgments nos. 348 and 349 delivered in 2007, and attenuated by judgment no. 49 delivered by that court in 2015, is not called into question.