Consulta
OnLine (periodico
online) ISSN 1971-9892
2015/II
maggio-agosto
ANNIVERSARI
P.C.
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.
P.C.
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
I
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 (P.P.).
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) (A.S.).
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 (C.P.)
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 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
(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 (F.D.C.).
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 (A.M.N.).
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 (B.B.)
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