Consulta OnLine (periodico online) ISSN 1971-9892
2015/II
maggio-agosto
PASQUALE COSTANZO
Bicentenario della stipula del Patto
federale tra i ventidue Cantoni svizzeri a Zurigo
(07.08.15)
Abstract
The bicentenary of the Confédération
Suisse offers the author the opportunity to reflect on the treaty signed
between the twenty-two Cantons that became sovereign again after Napoleon's
fall. The paper recalls the main contents of the Federal Pact intended to
ensure cantonal independence, political organization, tax collection and the
administration of justice. This agreement restored the structure of the Ancien
Régime throughout the Restoration period, before leaving room in 1847 for a new
Constitution and the birth of Federal State.
PASQUALE COSTANZO
800° Anniversario della concessione
della Magna Carta, Runnymede (Inghilterra)
(15.06.15)
Abstract
The eight hundred years of
the Magna Carta Libertatum represent an anniversary too prestigious not to take
the opportunity to propose a reflection. The author, profoundly familiar with
the events linked to this concession, offers the reader an historical
perspective that brings the time back to the clash between the universal powers
of the Papacy and the Empire. The contribution does not omit to mention the
further hardships of the Carta such as the various re-editions and the period
of hibernation under the absolutism of the Tudor, before being rediscovered by
English law and spreading all its influences in the development of Western
constitutionalism. In the complex task of reporting the textual details, the
author concludes the work with some useful reference to make people understand
the novelty that the Carta represented for that time and the future
potentialities contained in the document.
PARTE PRIMA
STUDI
ROSSANA CARIDÀ
Le autonomie territoriali tra
rappresentanza, istanze pluralistiche e deficit di valorizzazione
(06.08.15)
Abstract
The constitutional revision
project of the XVII legislature represents an opportunity for the author to
carry out some reasoning around a different set of competences of the different
territorial levels of government. The paper deals with the issue of the
relationship between democracy and territorial representation outlined on the
basis of a double question: that of the suitability of autonomous bodies to be
considered effective and efficient of the interests of local communities and
that of the representation of territorial communities in central institutions,
object - precisely - the examination of the constitutional bill.
ANTONIO RUGGERI
Il diritto regionale, una disciplina
"in declino"?
(27.07.15)
Abstract
In this article, the author
focuses on the alleged "decline" of Regional law, a subject that,
over time, has gained its own autonomy in the wider field of the Public law
studies. He rejects this thesis, which is based on a misinterpretation of the
constitutional context, and underlines the plurality of the theoretical
elaborations and the oscillations of the constitutional jurisprudence. However,
he indicates the need for a profound methodological rethinking, concerning the
importance of the comparison and, above all, the integration of this discipline
with other ones (such as Economics
PAOLO PASSAGLIA
(13.07.15)
Abstract
Comparative law in the
jurisprudence of the Constitutional Court: an investigation relating to the
period January 2005 - June 2015
The author analyzes the
constitutional case law of the ten most recent years in order to detect
judgements in which comparative and foreign law is taken into account by the
Court. Notwithstanding the limited set of cases in which the Court mentions
foreign law, some remarks can be drafted with regard to the subjects in which
the usage is more frequent and has a significant impact on the decision.
GIANCARLO GUARINO
Corte costituzionale e diritto
internazionale: noterelle a margine della sentenza 49/15
(23.06.15)
Abstract
The paper examines judgment
No 49 of 2015, by which the Constitutional Court affirmed, on the one hand, the
axiological predominance of the Constitution on the ECHR and, on the other, the
limits to the effectiveness of the Court of Strasbourg's judgments for national
judges. Criticising and highlighting the inconsistencies of this decision, the
author provides some methodological suggestions in terms of relationship
between national and international law, with a view to a better integration and
interconnection among legal systems. For this purpose, the High Courts should
play a prominent role, establishing a fruitful "dialogue" among
themselves on equal terms.
PASQUALE COSTANZO
(19.06.15)
Abstract
The progressive affirmation
of the "non bis in idem" principle, in Europe, started from a
political phase, characterized by bilateral agreements and international
conventions, and has reached its present recognition within the Charter of
fundamental rights of the European Union, passing through its insertion within
the framework of the European political cooperation. The article analyses the
significance and the implications of this principle according to the
jurisprudence of the European Court of Human Rights and the Court of Justice of
the European Union, in order to verify whether the relationship between the two
Courts, in this respect, is "complementary" or
"competitive".
ANTONIO RUGGERI
Per uno studio sui diritti sociali e
sulla Costituzione come "sistema" (notazioni di metodo)
(15.06.15)
Abstract
The paper analyzes social
rights in a completely innovative key, with the proposal of a different study
approach to them and, more precisely, through a profound and critical
rethinking of the relations between the Courts and the legislator (with the
objective of maximizing the protection of those rights), as well as through a
revision of ancient and well-tested theoretical framework schemes. It is, in
particular, the duty of solidarity which, therefore, could become as a point of
reference to remove those obstacles that, to date, prevent an effective and
substantial fulfillment of the rights in question.
ELENA MALFATTI
(12.06.15)
Abstract
The contribution proposes a
critical reflection on sentence n. 96/2015 of the Constitutional Court, also in
the light of the troubled application of the legislative discipline (law n.
40/2004) by national and European judges (see the Costa and Pavan case of the
Strasbourg Court).
ENRICO ALBANESI
(12.06.15)
Abstract
The Court returns to the
activity of the regional councils in prorogatio (sentt. Court cost nos. 44, 55,
64 and 81/2015)
The article examines the
Corte costituzionale's case-law on the limits of the Italian Regional
Assemblies' legislative powers after their dissolution (Decisions No. 44/2015,
55/2015, 64/2015 and 81/2015). The Corte
costituzionale had already stated in 2010 that Assemblies, after their
dissolution, were allowed to legislate in case of emergency and on other
grounds too. The article analyses the tools which were used by the Corte
costituzionale in the aforementioned decisions to judge some legislation passed
by the Assembly of the Abruzzo Region after its dissolution.
ANTONINO SGROI
(12.06.15)
Abstract
The paper analyzes the
decision of the Constitutional Court n. 70 of 2015 in order to verify if it is
in accordance with the consolidate guidelines taken by the constitutional judge
himself (but also by the Court of Cassation) with regard to the re-evaluation
of the pension treatment, but also if the decision is contrary from the results
to which arrived the decision no. 10/2015, as regards to the effects on the
public purse.
ANTONINO SPADARO
(03.05.15)
Abstract
On the logical aporia of
internationally recognized rights, but denied on a constitutional level (note
on the questionable «coldness» of the Constitutional Court towards two
international charters: the CSE and the CEAL)
Relying on the so called
"twin" consistutional rulings, n. 348 and 349/2008, the
Italian Constitutional Court clarified that not only the European Convention on
Human Rights (ECHR), but also the established interpretations formuled by the
Strasburg Court, are legally binding for Italy. This should happen for
"all" the international treaties regularly ratified. Nevertheless.
The European Social Charter (ESC) and the European Charter of Local
Self-Government (ECLSG) - despite being "interposed rules" - are
regarded by the Italian Constitutional Court, in a questionable and incoherent
way, as international obligations of secondary importance (recently,
unfortunately, in the constitutional decision n. 120/2018).
CLAUDIO PANZERA
Rispetto degli obblighi
internazionali e tutela integrata dei diritti sociali
(03.05.15)
Abstract
Respect for international
obligations and integrated protection of social rights
The question of effectiveness
is at the core of social rights' issue in many contemporary legal systems. Against
this backdrop, the paper focuses on the potential of the European Social
Charter at national level, particularly in the Italian context. Extending to
the Charter the same pattern adopted for the European Convention on Human
Rights by the most recent Constitutional Court's case-law, it is argued,
could gain new opportunities for social rights and improve the current
multilevel protection system.
ALESSANDRO MORELLI
(28.05.15)
Abstract
The decision of the Tax
Commission of Reggio Emilia, in "resisting" the decision of the Constitutional
Court n. 10/2015 (which had declared the constitutional illegitimacy of the
rules that provided for the so-called "Roin Hood Tax" only
for the future but not also for the judgment "a quo"), highlights a more
general condition of suffering of the Italian constitutional justice that not is included in the physiology of the
guarantee system and which, perhaps, would need a reform intervention.
ILARIA RIVERA
(27.05.15)
Abstract
The decision of the
Constitutional Court n. 170 of 2014 represents a focal point for the statements
of the preservation of the past lived by a couple although the oncoming change
of sex and, more generally, for the recognition of same sex couples (in accordance
with what has already been established in dec. n. 138/2010), as moreover well
understood by the Court of Cassation in having to define the judgment "a quo", even if the sensitivity
of the issue would probably require an intervention by the legislator for
identify the concrete operating procedures with which the rights in the field
can be exercised.
FRANCESCO DAL CANTO
(27.05.15)
Abstract
Some comments on the
proposal to introduce the preventive appeal of constitutionality against the
electoral laws
The work examines the
2016 constitutional reform projet, approved by parliament but rejected by
the popular referendum, in the part in which provides that the electoral
laws may be subjected, before their promulgation, to the judgment of constitutional
legitimacy by the Constitutional Court, on a motivated appeal presented by at
least a quarter of the members of the Chamber of Deputies or at least one third
of the members of the Senate of the Republic.
HENRI SCHMIT
(27.05.15)
Abstract
The article analyzes the
principles sanctioned by the Constitutional Court with dec. n. 1/2014 (but also
by some fundamental decisions of the ECHR and, in a comparative perspective, of
the German Constitutional Court), with the objective of verify any doubts of
constitutional legitimacy of the new political electoral law (law n. 52/2016).
GIACOMO CANALE
(27.05.15)
Abstract
The paper analyzes the main
changes introduced by the political electoral law (law n. 52/2016, so-called
"Italicum") in order to identify any doubts of constitutional
legitimacy in light of the principles sanctioned by the Constitutional Court with
dec. n. 1/2014.
ROBERTO CONTI
(21.05.15)
Abstract
The importance of the ECHR
in "living law": in
particular, the signal of the "conventional" jurisprudence in the
jurisprudence of common judges.
The paper examines the
relation between the italian and conventional standards of the safeguard of the
foundamental rights.
In particular, it is
examinated the issue concerning the extension of the effects of the European
Court of Human Rights judgments in relation with the res judicata.
ANTONIO RUGGERI
Attività di garanzia e attività
d'indirizzo politico, a salvaguardia dei diritti fondamentali
(15.05.15)
Abstract
Guarantee activities and
political policy activities, to safeguard fundamental rights
On one hand, the article
aims to demostrate the importance of the judges activity - in particular, the
constitutional ones - to protect the fundamental rights. In this sense, the
investigation of the forms and the extention of the fundamental rights protection
must be fucalised on the activities carried out by the judges. On the other
hand, it shows the importance of the legislator activity in this matter,
despite the variety of forms in which it takes place.
GIOVANNA SPANÒ
(06.05.15)
Abstract
The Conseil constitutionnel
and the scholars: food for thought offered by the bibliographic citations
included in the comments of the decisions on the (Nouveaux) Cahiers du Conseil
constitutionnel
The paper analyse de
relation between the activity of the Conseil constitutionnel and the scholars. In particular, the
bibliographic citations published in the Nouveaux Cahiers du Conseil
constitutionnel.
The aim of the work is to
seek, where existing, the contributions offered by the doctrine in relation to
the work of the Conseil in French. The authour outlines the virtual dialogue
established, in recent times, with the academic world.
ROBERTO ROMBOLI
(05.05.15)
Abstract
The legitimacy of the
Cassation to raise questions of constitutionality in the context of the
procedure of enunciating the principle of law in the interest of the law,
pursuant to art. 363, 3rd paragraph, c.p.c
After the explanation of
the notions of «accident», «prejudice» and «relevance», the paper deals with
the specific theme concerning the possibility for the Court of Cassation to
raise a question of constitutionality in the scope of the procedure of enunciating
the principle of law in the interest of the law, according to consolidated
constitutional jurisprudence. This subject is analysed with regard to a
different kind of "petitum" between the judgment and
the constitutional one, and the notions of «judge» and «judgment» too.
ANNA MARIA NICO
(05.05.15)
Abstract
The Pinto law is again
examined by the Constitutional Court: the effectiveness of the right to the
reasonable duration of the trial in the economic crisis
The work examines the
effects that the formal recognition of fundamental rights and their protection
in European and national jurisprudence have had on European integration. The
study also analyzes how the same rights can «recede» or be «weakened» or «conditioned»
during the economic crisis.
MASSIMILIANO MEZZANOTTE
La reviviscenza e i limiti
finalistici del referendum abrogativo
(04.05.15)
Abstract
The revival and the
finalistic limits of the abrogative referendum
The author highlights the limits
of the referendum's admissibility judgment in Italy, taking inspiration from
the decision of the Constitutional Court n. 5 of 2015. He believes that this is
the result of the abundant constitutional jurisprudence on the matter, noting
that the decision becames at the evolutionary line of the institute.
BRUNO BRANCATI
(04.05.15)
Abstract
The paper analyses the
contribution of scholars of constitutional law who practice before the Italian
Constitutional Court to the development of its case-law. The Italian
Constitutional Court does not cite legal doctrine and therefore the
contribution of constitutional scholars seems limited. However, a certain
degree of influence is possible insofar as the dialogue between lawyer and
judge works.
STEFANO AGOSTA
(04.05.15)
Abstract
The singular fate of the
vast area level in the alternance of the emptying and filling of the Sicilian
experience
The author describes the
peculiar regulatory framework of Sicilian local autonomies, by pointing out
some critical issues, but in any case demonstrating the overall coherence and
conformity with the special Sicilian Statute.
Consulta OnLine (periodico online) ISSN 1971-9892