Effettività del diritto CEDU alla vita familiare e margini di discrezionalità statale nella tutela delle persone vulnerabili

Italy has been convicted several times by the European Court of Human Rights for having failed to safeguard the right to family life of vulnerable individuals, including children, in blatant violation of Art. 8 of the EHCR. To this effect the Court has judged, on the one hand, that it is not enough that State party to the Convention adopts a behaviour merely compatible with the Convention obligations in order to avoid an infringement of said Convention, but instead that its behaviour must be such as to render these obligations effective so that they adequately and concretely discipline procedural cases; on the other hand, the margin of discretion from which the State benefits in implementing the Convention is not unlimited, rather it is subject to the judgement of the Court itself, and therefore circumscribed. In the light of these considerations, the Court concludes that Italy, in the law placed under examination, not only has failed to adopt the measures most compatible with Art. 8 of the EHCR, but has, furthermore, interpreted it own national legislation on the matter in a rigid and restrictive manner; precluding, in particular, the application of an evolutionary practice more in favour of the preservation of the family, and, more generally, emotional and social bonds of the children involved, which, in the cases examined, were unfairly sacrificed.