2015/I

gennaio-aprile

 

 

 

PARTE I

STUDI

 

 

 

ANTONIO RUGGERI

Il matrimonio “a tempo” del transessuale: una soluzione obbligata e… impossibile? (A prima lettura di Cass., I Sez. civ., n. 8097 del 2015)

(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

Il sistema elettorale “Italicum-bis” alla prova della sentenza della Corte costituzionale n. 1 del 2014

(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

Passo falso della Consulta in tema di rinvio pregiudiziale ad opera dello stesso giudice costituzionale (nota minima a Corte cost. n. 56 del 2015)

(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

Corte di giustizia e giudici nazionali: il moto “ascendente”, ovverosia l’incidenza delle “tradizioni costituzionali comuni” nella tutela apprestata ai diritti dalla Corte dell’Unione

(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

La modulazione degli effetti temporali delle sentenze d’incostituzionalità e la logica del giudizio in via incidentale in una decisione di accoglimento con clausola di irretroattività

(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

Dicotomie tra scienza e diritto e tra discrezionalità e ragionevolezza alla luce delle maglie strette della dignità umana (a margine della sent. n. 162 del 2014 della Corte costituzionale)

(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

I profili procedimentali della conversione in legge e gli effetti applicativi della decisione nell’ottica della Corte costituzionale (osservazioni alla sentenza n. 32 del 2014 alla luce della sentenza n. 237 del 2013

(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                                                                                                          

Conflitti tra norme internazionali consuetudinarie e Costituzione, atto secondo: quali i possibili “seguiti” della 238 del 2014?

(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

Materia elettorale: la Corte costituzionale tiene ancora la regia, anche se cambia la trama del film (riflessioni a margine della sent. n. 275 del 2014)

(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

I diritti senza legge

(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

La Corte costituzionale e la storia profetica. Considerazioni a margine della sentenza n. 238/2014 della Corte costituzionale italiana

(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.