Consulta OnLine (periodico online)
ISSN 1971-9892
2015/I
gennaio-aprile
PARTE I
STUDI
ANTONIO RUGGERI
(28.04.15)
Abstract
The "timed" marriage of the transsexual:
an obligatory and... impossible solution?
(a quick comment to Cass., I Sec. civ., n. 8097 of 2015)
The author reflects on some technical issues
raised by a case which was first dealt with by the Constitutional Court in
ruling no. 170 of 2014 and then by the Court of Cassation in the ruling
indicated in the title of the work. The author highlights the gap between the
reasoning and the operative part of the Constitutional Court’s ruling no. 170
of 2014, as well as the weird rule that the Court of Cassation
"extracted" from the principle added by the Constitutional Court,
with the artificial invention of a legal concept that... does not exist: the
"timed" marriage. The author highlights the torsion suffered by the
traditional decision-making techniques of the Constitutional Court and reflects
on remedies that would abstractly be possible to address the problem of incorrect
implementation of the decisions of the Constitutional Court by ordinary judges.
LARA TRUCCO
(27.04.15)
Abstract
The electoral system "Italicum-bis"
in the light of the judgment of the Constitutional Court No. 1/2014
The Author focuses on
draft law containing "provisions for the election of the Chamber of
Deputies" (s.c. "Italicum-bis"),
approved, with amendments, by the Senate, on 27 January 2015, in light of the
landmark ruling of the Constitutional Court No. 1 / 2014. A comparison is also made with the previous version of the law (s.c. “Italicum") (L.T.).
ANTONIO RUGGERI
(22.04.15)
Abstract
A false step by the Constitutional Court on the
issue of reference to the Court of Justice for a preliminary ruling by the
Constitutional Court itself (short comment to Constitutional Court ruling no.
56 of 2015)
The author makes some critical remarks on the
argumentative approach followed by the Italian Constitutional Court in its
judgment No. 56 of 2015, with regard to certain
specific and important aspects relating to the Constitutional Court's power to
raise questions for a preliminary ruling before the Court of Justice of the
European Union
PASQUALE COSTANZO
La Corte costituzionale come “nodo” della Rete
(21.04.15)
Abstract
The Italian
Constitutional Court as a "node" in the internet
The paper examines the
methods and the quality of the presence of the Italian Constitutional Court on
the web, comparing the services with the internet sites of the British Supreme
Court, the Supreme Court of the United States, the German Federal
Constitutional Court, the Spanish Constitutional Court and the French Council
constitutional
ORESTE POLLICINO
(21.04.15)
Abstract
Court of Justice and national courts: the
“upward” movement, i.e. the impact of “common constitutional traditions” on the
protection afforded to rights by the EU Court of Justice
The author reflects on the role of the
“constitutional traditions common to the Member States” in the protection of
fundamental rights by the Court of Justice and, more specifically, in its
relations with national courts. The author dwells - with various
jurisprudential references - on the role of these constitutional traditions in
the different stages of the European integration process, from the origins to
the Maastricht Treaty and, lastly, to the Charter of Fundamental Rights of the
EU and the Lisbon Treaty, which open new perspectives with regard to this (in
some respects) vague but important legal notion, full of connections with other
fundamental issues, as the relationship
between legal systems and judicial dialogue.
SIMONE SCAGLIARINI
La
Corte tra Robin Hood Tax e
legislatore “Senzaterra”
(21.04.15)
Abstract
The Constitutional Court between Robin Hood Tax
and "Lackland" Legislator
The author examines Constitutional Court
judgment No. 10 of 2015 and makes some observations, in
particular, on the type of balance (unequal or equal) between budgetary
equilibrium and rights, as well as, more generally, on the relationship between
constitutional law and the economic crisis.
ROBERTO PINARDI
(21.04.15)
Abstract
Analisi critica della sent. n. 10 del 2015, con la quale la Corte
costituzionale, dopo aver affermato, in linea generale, di poter modulare gli
effetti “retroattivi” delle sue pronunce di accoglimento, è giunta ad
annullare, con effetti solo pro futuro, la c.d. Robin
tax. Secondo l’Autore, infatti, tale tecnica decisionale si pone in
contrasto, tra l’altro: a) col
carattere di pregiudizialità che deve rivestire la quaestio legitimitatis; b) col diritto alla tutela
giurisdizionale delle parti del giudizio a
quo (R.P.)
ALESSANDRO MORELLI
Le
trasformazioni del principio democratico
(13.04.15)
Abstract
The transformations of the democratic principle
The author focuses on the transformations of
the democratic principle, starting from the ancient's conceptions of democracy
as equal direct participation in the management of public affairs and then
reflecting in depth on the characteristics of modern democracies, particularly
on the relationship between procedural and substantive aspects, also dwelling
on the differences between "deliberative democracy" and
"participatory democracy" and devoting particular attention to the
democratic principle in the Italian constitutional order, as well as, in
conclusion, on the reasons for the crisis and the prospects for the future
evolution of the democratic principle.
ROBERTO CONTI
La CEDU
assediata? Osservazioni a Corte cost. n. 49/2015
(09.04.15)
Abstract
Assaulting the European Convention of Human
Rights? Some comments on decision of the Italian Constitutional Court no.
49/2015
The article comments the impact of decision of
the Italian Constitutional Court no. 49/2015 on the relation between the
European Convention of Human Rights and national law. After a brief summary of
the above decision – whereby, national judges shall not interpret national law
in accordance with the case-law of the European Court of Human rights, unless
such case-law can be consolidated “consolidated” – the author outlines its
percussions on the principles set forth by the previous decisions nos. 348/2007
and 349/2007. The analysis is concluded with the author’s view on the main
issues of the Constitutional Court’s new approach also in the light of Italy’s
ratification of Protocol no. 16 to the European Convention of Human Rights (M.R.).
VALENTINA PUPO
Prime
note sul segreto di Stato nella dimensione della democrazia rappresentativa
(07.04.15)
Abstract
First notes on
State secrecy in the dimension of representative democracy
The article reconstructs the legal
framework of State secrecy and the role of the institute in the dimension of
representative democracy, by examining its function and basis according to
doctrine and constitutional jurisprudence and by considering parliamentary,
judicial and constitutional oversight on its use (V.P.)
ANTONIO RUGGERI
I diritti dei non cittadini tra
modello costituzionale e politiche nazionali
(01.04.15)
Abstract
The condition of “non-citizens”, between the
constitutional model and national policies
The article is dedicated to the condition of
the so-called “non-citizens”, compared with the one of Italian citizens and
with the one of European citizens. After a summary of the main constitutional
provisions regarding the rights of non-citizens also in the light of the
relevant case-law of the Italian Constitutional Court, the author comments the
doctrine of the “stronger protection” and the main criticisms risen against
such doctrine by many scholars. The article continues with a focus on political
rights of non-citizens and, on the other hand, on their constitutional duties.
The final paragraph includes some concluding remarks with reference to the
evolution of the condition of both non-citizens and Italian citizens (M.R.).
MATTEO TRAPANI
(23.03.15)
Abstract
Discrepancies between science and law, discretion
and reasonableness in the light of human dignity (some comments on decision of
the Constitutional Court no. 162/2014)
The article comments decision no. 162/2014,
whereby the Italian Constitutional Court declared the unconstitutionality of
Articles 4, paragraph 3, 19, paragraphs 1 and 3, and 12, paragraph 1 of Law no.
40/2004, prohibiting heterological medically assisted procreation practices to
couples affected by irreversible infertility pathologies. After a brief summary
of the a quo proceedings, the author focuses on the
possible connections between science and law, emphasized by the Court as far as
women’s health and – in a broader sense – women’s dignity are concerned. In
this respect, the author stresses the differences between to views of human
dignity – both envisaged in the Court’s discourse – a “comprehensive” view of
human dignity and an “excluding” one (M.R.).
ANTONELLO LO CALZO
(16.03.15)
Abstract
The sentence no. 32 of 2014, of the Constitutional Court returns to the controversial issue of the
connection between the law decree and the law of confirmation. In continuity
with its recent case law (sentence n. 22 of 2012) the Court is concerned to guarantee the homogeneity of the law of
confirmation with respect to the law decree, also because of the peculiarities
that characterize this act on the procedural level. The decision, however, also
opens up to controversial issues, especially in the
part in which it tries to define the temporal effects of the
unconstitutionality of criminal laws, hypothesizing the “restoration” of
previous law.
ANTONIO RUGGERI
(05.03.15)
Abstract
Conflicts between international customary rules
and the Constitution, act second: what could be the possible “outcomes” of
decision no. 238/2014?
The article analyses the possible outcomes of
decision of the Constitutional Court no. 238/2014 on the solution of conflicts
between international customary rules and the Constitution. At first, the
author reflects on whether the principle set forth by the Court – whereby, in
case of contrast between the fundamental principles and international rules,
the latter shall be considered as “not-existing” – should be applied to all
types of conflicts and on the main pros and cons any possible approach to
answer the previous question. On the other hand, the author focuses on the
procedural techniques followed by the Court and offers some significative
comparison with previous constitutional case-law. The final part is dedicated
to the author’s view on the necessity of a revirenment
by the Constitutional Court and of some auspicated legislative reforms in this
regard (M.R.).
LARA TRUCCO
(06.02.15)
Abstract
Electoral matter: the
Constitutional Court maintains the director's role, even if it changes the plot
of the movie (some reflections about the dec. No.
275/2014)
This article examines the decision of the Constitutional Court No. 275/2014 in a question raised by the Regional Administrative Court of Trento
within a dispute initiated by two
voters who were candidates in the municipal elections of the Region. In
particular, the author focuses on some passages of the decision in which the
constitutional judge seems to turn back the clock compared to what was stated
in landmark decision No. 1/2014 (L.T.).
ANTONIO RUGGERI
Maggiore o minor tutela nel
prossimo futuro per i diritti fondamentali?
(05.02.15)
Abstract
A stronger or weaker protection of fundamental
rights in the near future?
The author reflects on the role of national and
non-national Courts in protecting fundamental human rights in the light of the
decline of the “national State” concept and of the emerging economic crisis.
The shift towards a new model of State favored – in
the author’s view – the dialogue between Courts, whereby (constitutional and
non-constitutional) judges of different countries and legal systems often cite
each other’s case-law. In this respect, the article focuses on the approach
adopted by the Italian Constitutional Court, in addressing the European Court
of Human Rights’ jurisprudence and then on the frequent recourse to the
preliminary ruling procedure provided by Art. 267 TFEU.
ALESSANDRO MORELLI
(26.01.15)
Abstract
Rights without regulation
The article analyses the possibility to outline
protected positions in absence of a corresponding legal provision or also in
contrast with other legal provisions. In particular, the author reflects on the
ancient issue of the possible contrast between pre-existing fundamental rights
and law enacted by public bodies, also represented in Antigone’s tragedy. The
article continues with an excursus on the codification-process of fundamental
rights, both from a national and from an international point of view, followed
by a focus on the position of irregular-immigrants and LGBTI persons. An
additional paragraph is dedicated to the “rights without regulation in absolute
terms”, such as the “right to live in a couple-condition”, the “right to refuse
sanitary treatments”, the right to access to internet, the right to be
forgotten.
TANIA GROPPI
(09.01.15)
Abstract
The Italian Constitutional Court and the
prophetic story. Some comments on decision no. 238/2014
The article analyses decision no. 238/2014 and its impact not only on the hierarchy
of legal sources, but also on the fundamental constitutional values founding
the Italian legal system. After a summary of the content of decision – whereby
foreign States’ immunity with reference to iure imperii acts cannot exclude the jurisdiction of Italian
judges – the author focuses on the procedural techniques followed by the
Constitutional Court to scrutinize an international customary rule and
concludes with some final remarks in the light of the case-law of other constitutional and (non-constitutional)
courts.
Consulta OnLine (periodico online)
ISSN 1971-9892