2017/III

settembre-dicembre

 

Parte Prima

STUDI

LUCA COSTANZO

La prescrizione giusta: nodi e questioni del caso Taricco

(04.12.17)

Abstract

The right prescription: nodes and questions of the Taricco case

The "Taricco saga" has represented one of the most profitable jurisprudential dialogues which was adjudicated both by the Italian Constitutional Court and the Court of Justice of the European Union regarding the compatibility of the national regulation on the prescription of crimes with the principles deriving from European law. To this purpose, while recalling the judiciary path of the "Taricco case", the author intends to highlight the essential issues and the most interesting profiles of the case, managing to collect and process certain critical notations.

 

 

ANTONIO RUGGERI

L'indirizzo politico tra diritto legislativo e diritto giurisprudenziale

(04.12.17)

Abstract

The political direction between legislative law and jurisprudential law

This work examines the crisis of sovereignty, politics and law: three different aspects of a unitary phenomenon. The double twist of the constitutional model, due to the reversal of the roles of the organs of political decisions and of the confusion with those of the guarantee bodies, generates the imbalance of the relationships between legislative and jurisprudential law. The "guidelines" of constitutional revision and their unbalanced division between legislator and judges realize the distortions, especially from the states of emergency, which assert themselves in it, often putting fundamental rights in crisis and, consequently, the Italian Constitution which in the recognition and protection of these finds his specific reason for being.

 

 

ANDREA LOLLO

Blasfemia, libertà di espressione e tutela del sentimento religioso

(30.11.17)

Abstract

Blasphemy, freedom of expression and protection of religious sentiment

Almost three years after the tragic events that hit the staff office of the satirical magazine Charlie Hebdo, this work outlines a response to the growing demand for limits to the freedom of expression of thought when it expresses a blasphemous thought bearing an offensive potential of religious sentiment. The essay highlights the italian paradox that the injury to the person is punished by administrative means, while the injury to religion continues to be criminally punished, since the secular State has renounced the pursuit of a specific concept of "ethical life" without rethinking the crimes against religion that characterized the confessional State that was.

 

 

ALBERTO RANDAZZO

A proposito della sorte del giudicato amministrativo contrario a pronunzie della Corte di Strasburgo (note minime alla sent. n. 123 del 2017 della Corte costituzionale)

(15.11.17)

Abstract

Concerning the fate of the administrative judgment contrary to the rulings of the Court of Strasbourg (minimum notes to sentiment n. 123 of 2017 of the Constitutional Court)

The author, dealing with judgment no. 123/2017 of the Italian Constitutional Court, examines the issue of conflicts between the rulings of the European Court of Human Rights and the decisions of the administrative judge against which no further appeal can be lodged. This constitutional judgment, rejecting the application, has given rise to a stalemate that cannot be easily solved by the domestic judge. This work argues in favour of the solution proposed by the Italian Constitutional Court in its judgment no. 113/2013 in relation to conflicts between a judgment of the European Court and the competent judge for criminal proceedings.

 

 

ANTONIO RUGGERI

Il principio di solidarietà alla prova del fenomeno migratorio

(30.10.17)

Abstract

The principle of solidarity to the test of the migration phenomenon

This work argues that social rights should be granted to every human being as a rule, with some possible exceptions related to the specific factual background and peculiar nature of some rights. The author examines the rights related to those fields under the prospective of duties, with specific regard to the duties of solidarity and fidelity to Republic. Finally, it is pointed out, with particular regard to mass migration, the asymmetry between the constitutional model and the attitude of national egoism. In connection to the latter, it is pointed out that the highest form of solidarity is realized by granting to the migrantsthe possibility to keep their cultural identity and, at the same time, by asking them to respect the identity of the place where they decide to start a new life.

 

 

AGATINO CARIOLA

Le trasformazioni istituzionali a sessant'anni dai trattati di Roma: la giustizia, in specie quella costituzionale

(2.10.17)

Abstract

The institutional transformations sixty years after the treaties of Rome: especially constitutional justice

The 60th anniversary of the signature of the Treaties of Rome offers the opportunity to focus on the transformations that have involved the relationship between the States and the European Union. Focusing on the analysis of the dialogue between national and supranational Courts, this work aims to identify who really is the "gatekeeper" of the limits and the changes in the rules deriving from courts' decision. Precisely in the period of maximum crisis of the process of European integration, between Eurocriticalisms and Euroscepticisms due to Brexit, the author intends to re-launch the idea of widespread control with a view to making the Court of Justice a veritable Supreme Court.

 

 

MARTINA MARIA MININCLERI

Il sindacato di legittimità costituzionale sulle leggi elettorali, tra ruolo "legislativo" della Consulta, "moniti" al Parlamento ed ipotesi di introduzione del controllo preventivo

(28.09.17)

Abstract

The control of constitutional legitimacy on the electoral laws, between the "legislative" role of the Consulta, "warnings" to the Parliament and hypotheses of introduction of the preventive control

Judgments no. 1/2014 and no. 35/2017 of the Italian Constitutional Court declared the partial unconstitutionality of the electoral laws provided for the election of the Chamber of Deputies and the Senate of the Republic. Despite the differences between the two decisions, the author notes that the Court's concern to "save" a law that is immediately applicable is common to both rulings and it would appear to have become ius receptum that anyone who considers their right to vote adversely affected the judicial way to see it restored with judgment. The work argues that the two decisions have de facto introduced an ex ante review of electoral matters into the Italian legal system.

 

 

ANTONIO RUGGERI

Integrazione europea e autonomia degli enti territoriali: simul stabunt vel simul cadent

(22.09.17)

Abstract

European integration and autonomy of local authorities: "simul stabunt vel simul cadent"

The essay examines the relationship between the European Union and territorial autonomies, considering the elusive nature of the Union. The overall rethinking of autonomy prompted by the present international and supranational context has generated the need to face problems through the further intensification of solidarity constraints within the European Union and the international community. The author sees in the concurrence of all the fundamental principles the creation of the constitutional identity of the State, as well as of the Union, from which derives the need to grow both the principle of openness to international and supranational law as well as that of autonomy.