Consulta OnLine (periodico online) ISSN 1971-9892
Bicentenario della stipula del Patto federale tra i ventidue Cantoni svizzeri a Zurigo
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.
800° Anniversario della concessione della Magna Carta, Runnymede (Inghilterra)
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.
Le autonomie territoriali tra rappresentanza, istanze pluralistiche e deficit di valorizzazione
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.
Il diritto regionale, una disciplina “in declino”?
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
Il diritto comparato nella giurisprudenza della Corte costituzionale: un’indagine relativa al periodo gennaio 2005 – giugno 2015
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 (P.P.).
Corte costituzionale e diritto internazionale: noterelle a margine della sentenza 49/15
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.
Le principe “non bis in idem”: concurrence ou complémentarité entre la Cour européenne des droits de l’homme et la Cour de Justice de l’Union Européenne?
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”.
Per uno studio sui diritti sociali e sulla Costituzione come “sistema” (notazioni di metodo)
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.
La Corte si pronuncia nuovamente sulla procreazione medicalmente assistita: una dichiarazione di incostituzionalità annunciata ma forse non “scontata” né (del tutto) condivisibile
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).
La Corte torna sull’attività dei Consigli regionali in prorogatio (sentt. Corte cost. nn. 44, 55, 64 e 81/2015)
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.
La perequazione automatica delle pensioni e i vincoli di bilancio: il legislatore e la Corte costituzionale
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.
Sull’aporia logica di diritti riconosciuti sul piano internazionale, ma negati sul piano costituzionale (nota sulla discutibile “freddezza” della Corte costituzionale verso due Carte internazionali: la CSE e la CEAL)
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) (A.S.).
Rispetto degli obblighi internazionali e tutela integrata dei diritti sociali
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 (C.P.)
Principio di totalità e «illegittimità della motivazione»: il seguito giurisprudenziale della sentenza della Corte costituzionale sulla Robin Tax (a proposito di Comm. trib. Prov. di Reggio Emilia, 12 maggio 2015, n. 217/3/15)
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
ll c.d. divorzio imposto tra illegittimità costituzionale e seguito processuale (osservazioni a margine delle sentenze n. 170/2014 della Corte costituzionale e n. 8097/2015 della Corte di cassazione)
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 definethe 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
Qualche osservazione sulla proposta di introduzione del ricorso preventivo di costituzionalità avverso le leggi elettorali
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 (F.D.C.).
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).
Italicum: in viaggio verso Itaca, sognando la California (una prima lettura critica della legge n. 52/2015)
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.
Il rilievo della CEDU nel “diritto vivente”: in particolare, il segno lasciato dalla giurisprudenza “convenzionale” nella giurisprudenza dei giudici comuni
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.
Attività di garanzia e attività d’indirizzo politico, a salvaguardia dei diritti fondamentali
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.
Il Conseil constitutionnel e la dottrina: spunti di riflessione offerti dalle citazioni bibliografiche presenti nei commentaires delle decisioni sui (Nouveaux) Cahiers du Conseil constitutionnel
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.
La legittimazione della Cassazione a sollevare questioni di costituzionalità nell’ambito del procedimento di enunciazione del principio di diritto nell’interesse della legge, ai sensi dell’art. 363, 3° comma, c.p.c.
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
La legge Pinto nuovamente all’esame della Corte costituzionale: l’effettività del diritto alla ragionevole durata del processo nella crisi economica
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 (A.M.N.).
La reviviscenza e i limiti finalistici del referendum abrogativo
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.
Alcune osservazioni di carattere preliminare sull’influenza dottrinale degli avvocati costituzionalisti sulla giurisprudenza costituzionale
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 (B.B.)
Il singolare destino del livello di area vasta nell’alternanza di svuotamenti e riempimenti dell’esperienza siciliana
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