Strasbourg jurisprudence as an input for “cultural evolution” in the Italian judicial praxis

The paper explores the possibility that the case law of the ECt.HR could inoculate in the Italian Judicial System a “culture of precedent” as perceived in the Common law tradition. While the domestic protection of fundamental rights is based on “abstract” judgments of the Constitutional Court confronting the meaning of a contested statute with the Constitution and while the case law of the Court of Cassation has a very weak connections with the facts of the case at issue, in the Strasbourg jurisprudence facts and principle are strongly intertwined. The analysis of the most recent Italian case law related to the ECHR shows that two roads lead to the same end: the quest for a more effective protection of fundamental rights at the national level; the necessity of mitigating the impact of the ECHR case law through “dinstinguishing”. On both cases, Italian Courts must internalize the culture of precedent, i.e. comparing factual questions and clearly dividing obiter dicta from rationes decidendi.