Gli obblighi costituzionali di protezione: studio comparato sul lato "dimenticato" dei diritti fondamentali

This paper examines the dogmatic figure of the obligations to protect incumbent on the state under the constitution, i.e., the duty, owed by the state under fundamental rights, to protect individuals from the harmful conduct of third parties. This figure, coined in Germany in the 1970s by the case law of the Federal Constitutional Tribunal, and later adapted by the European Court of Human Rights as part of its doctrine of positive obligations, is almost absent in Italian constitutionalist discourse. This article aims to fill this gap, through a theoretical and comparative examination of this long "forgotten" side of fundamental rights, but nonetheless present in the background in some institutions of Italian constitutional law. After defining the contours of this figure and its dogmatic structure, the article traces its historical evolution in the context of German Basic Law and the ECHR. It then analyzes, through a comparative approach, its various problematic profiles, such as its constitutional basis and its compatibility with the principle of separation of powers. In the concluding part, the article shows that the concepts underlying this doctrine are no longer foreign to the Italian constitutional tradition, but have now become part of it, also via the jurisprudence of the ECtHR, eventually coming to the fore in some recent pronouncements of the Italian Constitutional Court.