La famiglia nella Convenzione Europea dei Diritti dell’Uomo: strumenti di tutela e linee evolutive

Di Daniela Cardamone -

In the case-law of the European Court of Human Rights (ECtHR) the notion of family is an autonomous concept; whether or not “family life” exists is essentially a question of fact depending upon the real existence in practice of close personal ties. Paying attention to factual relationships, the ECtHR is open to family relationships other than those resulting from marriage. However, attention to the peculiarities of national constitutional traditions constrains this attitude of openness towards new models of family-relations. The margin of appreciation gives the flexibility needed to enable the ECtHR to balance the sovereignty of Member States with their obligations under the Convention. However, in family law, the ECtHR avoids any automatism between the existence of a consensus among the Member  States and a lesser extent of the margin of appreciation and it limits itself to providing protection to “additional rights” independently introduced by States