Consulta
OnLine (periodico
online) ISSN 1971-9892
2015/III
settembre
- dicembre
PARTE
I
STUDI
PASQUALE COSTANZO – LARA TRUCCO
Il principio del “ne
bis in idem” nello spazio giuridico nazionale ed europeo
(21.12.15)
Abstract
The Authors examine the role
and implications of the "ne bis in idem"
principle, underlining its ascent as a principle recognized by European courts.
The aim is to engage in a
"a multilevel study on the subject", through the analysis of how this
principle has been applied both by domestic and supranational courts.
ANTONIO RUGGERI
Come costruire e preservare le tradizioni dei diritti in
Europa?
(17.12.15)
Abstract
The author argues that,
in order to build and preserve the traditions of rights in Europe, integration
between different legal systems is necessary, which can take place through the
maturation of the concept and function of the Constitutions (affirming at the
same time the principle of primacy and principle of protection of
constitutional identity).
He also notes that the
counter-limits are not suitable for asserting themselves as a system; in fact,
the author holds that the "dialogue" is the element needed to
stabilize the case law (in this regard he suggests extending the consultation
mechanism also to the European Courts and the provision of mutual consultation
tools between them) that must find its recognition through constitutional law
(not only of one State, but of all States), and he underlines the importance to
study the different constitutional systems.
MASSIMO CAVINO
(14.12.15)
Abstract
The Author analyses measures aimed at
protecting security, proposed and adopted after the attacks occurred on
November 13, 2015 in Paris.
He analyses whether or
not measures adopted in this emergency context respect the French Constitution
and the ECHR.
Finally he examines
the proposals for constitutional revision and the institution of the forfeiture
of French citizenship and he concludes underlining the risk that such proposals
and measures could lead it to lose its identity and its role in Europe and in
the world.
GIUSI SORRENTI
(14.12.15)
Abstract
The European Court of
Human Rights once again rules on the relationship between the incidental
judgement of constitutional legitimacy and the obligation of exhaustion of
domestic remedies. Thus, two perspectives emerge within the European Court: one
expressed by the majority decision taken by the Court, the other clarified in a
separate opinion – with partially concurrent content – according to which the
situation would have changed further after judgment no. 49/2015 of the Italian
Constitutional Court. However, in the Parrillo
judgment no particular impact is assigned to this domestic decision on
identifying the possible remedies, since the “twin” judgments of 2007 do not
recognize any capacity to change the European Court’s orientation on the absence,
in Italy, of an alleged obligation to bring the matter to the judge of laws
before addressing Strasbourg.
ROBERTO CONTI
(07.12.15)
Abstract
The impact of the
supranational law points out the change of the nomophylactic
function carried out by the Court of Cassation, now “legally obliged” to
guarantee also the uniform interpretation of the law as reinterpreted in the
light of European Convention on Human Rights, international treaties and
European law. Consequently, on the one hand emerges the more (or less) binding
character of the judgments of the Supreme Courts, while on the other it could
be considered the deficit of uniform protection of a same fundamental right
according to the different competent jurisdiction. Therefore, it is necessary a
verification of the current role of the Court of Cassation, particularly since
the protection of fundamental rights is no longer reserved exclusively to the
ordinary jurisdiction.
LUCA BUSCEMA
Giudice naturale e sistema di giustizia ritenuta
(27.11.15)
Abstract
The natural judge
principle is essential in a system based on the values of modern constitutionalism.
However, the exegesis of Article 25, first paragraph, of the Italian
Constitution has proposed several reconstructive assumptions, thus, it is
necessary to address the issue of the presence, or not, of a hendiadys in the
notion of natural judge pre-established by law. Subsequently, the theme of
natural judge is dealt within the administrative justice system – which swings
between judicial remedy and jurisdictional protection of rights and interests –
with particular attention to the extraordinary appeal to the President of the
Republic, especially with regard to the legitimacy limits of the procedural
protection tools.
ANTONIO RUGGERI
Linguaggio del legislatore e
linguaggio dei giudici, a garanzia dei diritti fondamentali
(13.11.15)
Abstract
This contribution studies
the relationship between legislative law and jurisprudential law in the
protection of fundamental rights. The author underlines how the framework is
characterized by a necessary correlation between the activity of the legislator
and that of the judges; in particular, the legislative legislation regulates
the recognition and protection of fundamental rights and the jurisprudence
implements the principles identified by the Constitution.
According to the author, the convergence of these
sources of law determines the approach between civil law and common law systems
and the reduction of the difference between constitutional, ordinary and
jurisprudential legislation.
In view of this, the article underlines the need
to provide the jurisprudential legislation with constitutional guarantees to
ensure the certainty of fundamental rights and respect for the principles of
equality and freedom.
GIAN PAOLO DOLSO
(02.11.15)
Abstract
The contribution concerns
the use of the principle of equality by Italian constitutional Court in criminal
law. In the field of criminal law, and with specific regard to matters relating
to the penalty, the Court appears to use both the principle of equality and
that of reasonableness. With regard to the constitutionality control of the
penalty, the proportionality parameter is also used. The Court intervenes on
the congruity of penalties more often than is believed: the most appropriate
parameter, on trhe basis of the case-law, and in the
light of scholars opinion, seems to be that based on the principle of
reasonableness
MATTIA
CAIAZZO
Il ‘‘seguito’’ dell’abrogazione referendaria sull’adeguata remunerazione del capitale investito
(19.10.15)
Abstract
This article deals with the June 2011 referendum
affair, reflecting on the admissibility sentences of the abrogative referendum
also in consideration of the jurisprudential and doctrinal debate on the object
of the institute
UGO
ADAMO
(17.09.15)
Abstract
The ampar constitucional in Spain:
past, present and future of the direct appeal to the constitutional judge
between subjective and objective nature of control
This work analyzes the
latest modification of the amparo constitucional in the Spanish constitutional justice
system from a double perspective: the reasons for the change and the
jurisprudential implementation of this reform. The author aim also
to focus the repercussions of the direct appeal for the
protection of fundamental rights in the Spanish system on the future of the amparo constitucional reform
(U.A.).
ALBERTO
MARCHESELLI – STEFANO MARIA RONCO, L’“incostituzionalità differita” della c.d. Robin Tax, tra
diritti fondamentali, analisi economica del diritto e diritto dell’Unione
europea: il futuro della fiscalità tra nuove categorie concettuali e rischi di
“teratogenesi” giuridica
(04.09.15)
Abstract
This contribution
analyzes the sentence no. 10 of 2015, reflecting on the temporal limitation and on the protection of the
budget balance made by the decision. The authors study the critical profiles of the decision regarding the
limitation of temporal effects, underlining its partial difference from the
orientation of the Court of Justice. Eventually, the authors focus on the merit
of the sentence, trying to provide different arguments suitable to justify the
Robin Tax.
PARTE
II
LIBRI
E RECENSIONI
ANTONELLO LO CALZO
a Giampiero Buonomo,
Lo scudo di cartone. Diritto politico e riserva parla-mentare, Soveria Mannelli, Rubbettino
Editore, 2015, pp. 288, ISBN 978-88-498-4440-5
Abstract
Review
The book by G. Buonomo offers an accurate reconstruction of the origins
and developments of the parliamentary prerogatives through an accurate
investigation from the diachronic and synchronic point of view, also providing a
series of interesting indications on parliamentary case studies. The matter is
particularly “intricate” if we consider the use made over the years of
parliamentary prerogatives, often at the basis of a considerable conflict
between “politics” and the judiciary. Therefore, it is necessary to find a
point of equilibrium between opposing principles, to prevent that a prerogative
becoming a personal privilege.
LARA TRUCCO
a Giampiero Buonomo
“Lo scudo di cartone. Diritto politico e riserva parlamentare, Soveria Mannelli, Rubbettino
Editore, 2015, pp. 288, ISBN 978-88-498-4440-5
Abstract
Review to Giampiero Buonomo «The cardboard shield. Political law and parliamentary
reserve», Soveria Mannelli,
2015.
Lara Trucco offers the reader a view of Giampiero
Buonomo's book dedicated to questions concerning the
parliamentary immunity, with particular regard to constitutional jurisprudence.
The book carries out a complete analysis of the institute, also in a
comparative perspective, with the aim to find its origins and to retrace its
meaning and its function over the centuries ... up to the present time. Thus,
almost as in a journey through time, the reader is introduced and involved in
the search for the «shield» within the «History» and «in the models of
parliamentary immunities» in some of the most ancient European democracies (L.T.).
Consulta
OnLine (periodico
online) ISSN 1971-9892