Consulta OnLine (periodico online) ISSN 1971-9892
2015/I
gennaio-aprile
PARTE PRIMA
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").
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.
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.
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.
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.
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.
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.
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.
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