Consulta OnLine (periodico online) ISSN 1971-9892
2018/III
settembre - dicembre
PARTE I
STUDI
VANESSA MANZETTI
Abstract
Emergency decree and
financial autonomy of financial income of local authorities: local finance
profiles
The practice for the use of
decree-laws in the context of local finance, despite having had periods of
weakening, especially after the historic decision of the Constitutional
Court no. 360 of October 17, 1996, has remained essentially constant
since the years 1970s, creating a complex and multilayered field discipline,
but most often characterized by impermanence and uncertainty.
The resulting ripple effect
is therefore a continuing need to take measures to ensure that buffer in
extremis the financial equilibrium of the entities, which have come to affect
all sectors of the field.
And, alas, that effect has
been gradually increasing in the wake of the current economic crisis and the
urgent need to respect the financially compensated constraints imposed by EU,
not so much with a view to strengthening the legislative branch of Government,
but, more than anything, to overcome the endemic slowness of the current
legislative procedure.
ROBERTO ROMBOLI
(24.12.2018)
Abstract
The influence of the ECHR
and the jurisprudence of the European Court of Human Rights in the Italian
constitutional order
The influence of the
European Convention on Human Rights on the sources of the Italian legal system
and the relationships between the Constitutional Court and the European Court
of Human Rights have undergone an evolution that concerned, on the one hand,
the interpretation of the Convention itself and, on the other hand, its role as
a parameter of constitutional legitimacy. This paper examines these profiles
from a diachronic perspective, before focusing on the most significant cases of
conflict between the abovementioned Courts and, then,
on the validity and the execution of ECHRs judgements in Italy. The
contribution concludes with some insights on the hypothetical EU accession to
the ECHR, on the Protocol No. 16, recently entered into force, and finally on
some proposed reforms aimed at allowing a more fruitful "dialogue"
among the Constitutional Court and the European Courts.
ANTONIO RUGGERI
(13.12.2018)
Abstract
Minimum note regarding an
anomalous proceduralization of the intervention of
the third party in judgments of constitutionality
This note concerns the
President of the Constitutional Court's act containing directives and
instructions for the Registry of the Court, concerning access to documents for
those who request to intervene in the proceedings before the Court. Such act,
which differs from the previous practice, precludes third party access to
documents before the Court has ruled on the admissibility of the requested
intervention. From the point of view of method, the adoption of these
instructions through an informal act, resulting from an individual decision of
the President, raises doubts. In substance, instead, the solution seems to be
acceptable, as it makes the Court less exposed to the conditioning exercised by
the arguments of the third party.
ANTONIO RUGGERI
(07.12.2018)
Abstract
"Form of
government" and "party system": two categories that are no
longer usable for constitutional theory?
Some recent
political-institutional tendencies regarding the form of government and the
party system (for instance, the alteration of the balance between the
Parliament and the Cabinet and the debasement of the Prime minister, in
addition to the involvement of the web in emptying representative democracy)
caused alterations of the constitutional model such as to question these
traditional doctrinal categories. The role of judges to protect the rights,
even though overloaded with an improper political value, and supranational
integration in terms of federalization of the parties and the Courts
contain these degenerations. Considering this context, the author reflects on
how to intervene, through an awareness raising compliance with constitutional
duties, in order to resolve the crisis of
representation and to prevent the risk of authoritarian degeneration.
FABIO FRANCESCO PAGANO
(03.12.2018)
Abstract
The organs of
constitutional importance of "judge-like" institutions and the
reinforced independence of the Court of Audit towards the Government
(observations in the margins of the Court of Audit, Joint Section No. 1/2018 /
Cons.)
The provision of the law
regulating public accounting and finance prescribing that a Ministry of Economy's
representative shall be part of the audit committee of each public
administration arises some interpretative issues regarding its application to
institutions with a high degree of autonomy. This problem is the subject matter
of an opinion given by the Joint divisions of the Court of Audit, which dwells
on the distinction between constitutional institutions and institutions having
a constitutional standing. Then, this paper examines the peculiarities of "judge-like"
institutions with a constitutional standing, focusing in
particular on the reinforced position of independence held by the Court
of Audit itself with regard to the Executive as well
as on its regulatory autonomy.
ROBERTO ROMBOLI
(26.11.2018)
Abstract
The Constitutional Court in
the face of the challenges of the future. A conference to remember Alessandro
Pizzorusso
The article introduces the
collection volume of the speeches developed during the conference in memory of
Alessandro Pizzorusso, two years after his death. It examines the need to
ponder over the tools and the procedural rules of constitutional justice, in
view of the new challenges facing the Constitutional Court. Starting from the
general themes of the (regulatory) autonomy of the Court and its legitimation
within the constitutional system, it addresses specific reform proposals,
relating to essential questions of the Courts activity, such as its
composition, access routes and type of decisions.
ANTONIO RUGGERI
(20.11.2018)
Abstract
At the Constitutional Court
the constitutional hircocervus was born (in the
margins of ordinance No. 207 of 2018 on the Cappato
case)
This comment to the Constitutional
Court's decision about the "Cappato case",
firstly, makes some remarks about matters of substance and,
then, it focuses on the procedural aspects, with specific reference to the
effects resulting from the adoption of the new type of decision. In particular,
the author dwells on the consequences that the ruling of "probable
deferred unconstitutionality" exercises, meanwhile, on the legislator and
on ordinary judges and, expired the deadline set by the decision, on the
Constitutional court itself .
ANTONIO RUGGERI
(26.10.2018)
Abstract
Pilate at the
Constitutional Court decides not to decide, at least for now ... (on the
sidelines of a statement on the Cappato case)
The contribution shows how
already from the reading of the press release of the Council of 24 October 2018
on the Cappato case we can see the originality of the
ordinance with which the constitutional judges have postponed to September 2019
the treatment of the question of constitutionality of Article 580 of the
Criminal Code pending a desirable intervention of the legislator. The Court's
decision not to decide, despite the fact that the question had already entered
the discussion phase, leaves room, from a substantive point of view, for
assessments regarding the orientation of the Court itself on the question
subject to the constitutionality proceedings and on the possible future
scenarios relating to the Cappato case; while, from a
formal point of view, it allows us to observe how the Court on this occasion
has had a momentum towards a fanciful procedural solution.
ANTONIO RUGGERI
(24.10.2018)
Abstract
Constitutional Court,
European Courts, Common Judges: the aporias of a jurisprudential construction
in progress and with variable geometry
The author does his best to
analyze in depth the relations between the Courts,
adopting as a visual angle the Constitutional Court and its jurisprudence,
sometimes moving on to the European Courts and even the Court of Cassation. In particular, it is analyzed how
the scope of action of the Constitutional Court moves,
on the one hand, on the level of relations of domestic law, especially with
political and institutional operators and judges, and on the other hand on the
level of inter-institutional relations with the European Courts. According to
the author, if the dialogue between the Courts has in some cases led to the
compression of national autonomy in relation to certain institutions or rules,
from the point of view of the protection of rights, instead, the confrontation
with supranational judges has ensured an extension of safeguards, although the
Constitutional Court in some cases has taken steps to use defense
techniques that prevent the jurisprudence and supranational legislation to
interfere with internal judges (think of the 269 of 2017 on the nature of the
Charter of Nice).
ALESSANDRO MORELLI
Solidarieta', diritti sociali e immigrazione nello Stato sociale
(24.10.2018)
Abstract
Solidarity, social rights
and immigration in the welfare state
The article outlines how in
today's welfare state there is, on the one hand, a tension between the
inclusive nature of social rights (and civil rights), aimed at the pursuit of
unity and cohesion through solidarity, and, on the other hand, the limited
nature of political rights whose extension to everybody is precluded to Member
States if they wish to safeguard their constitutional identity. The author
stresses that this tension impacts on the level of protection of the rights of
non-citizens. The full enjoyment of the rights of a social category is unlikely
to be satisfactory for those directly concerned if they have not participated
in it, including through their representatives. The article seems to
demonstrate the impracticability of a split between the dimension of
participation and representation (political) and that of rights (including
social rights).
ANTONIO RUGGERI
Modello costituzionale e consuetudini
culturali in tema di famiglia, fra tradizione e innovazione
(01.10.2018)
Abstract
Constitutional model and
cultural customs in terms of family, between tradition and innovation
The article explores how
the Constitution, before and more than any other source of law, permanently
oscillates between the intent of fidelity to its own original nature and, at
the same time, hanging on to renewal and regeneration, in
order to give voice to the new rights conveyed by cultural customs. In
particular, the author takes his cue from the theme of family protection, its
constitutional definition and its interpretation to demonstrate how cultural
customs draw the boundary between what can be extracted from constitutional
definitions by way of interpretation and what, instead, requires a new positization and even a constitutional revision.
SILVIA TALINI
(01.10.2018)
Abstract
The valorisation of the
terms "penalty" in the plural and condemned to the
"singular" also in the matter of life imprisonment (in the margin of
the Constitutional Court, judgment No. 149 of 2018)
The contribution notes the sentence 149/2018 of the
Constitutional Court with which article 58-quater, c. 4, of
penitentiary order, was censored, concerning the disbursement of prison
benefits for prisoners sentenced to life imprisonment for the crimes of
kidnapping for the purpose of extortion, terrorism or subversion that have
caused the death of the kidnapped. The author draws attention to how, in a
historical period in which a sort of right to security is invoked, the Council
has had the lucidity of translating the term "punishment" in the
plural, imagining a multilayer system of measures and sanctions, referring
educational pluralism to the individual convicted and not to the convicted as a
plurality of people consecrating the illegitimacy of rules based, as the
censored one, on absolute preclusions and presumptive mechanisms that look at
the crime committed and not at the undeniable mutability of each person even
during the course of criminal execution.
GIOVANNI MOSCHELLA
(24.09.2018)
Abstract
Election results,
restructuring of the political system and formation of the Government at the
beginning of the XVIII legislature
The process of formation of
the Conte's Government has raised unexpected issues, new and, regardless of
political assessments, impacting at the constitutional level. Here we intend to
outline the events that occurred after March 4, 2018 and proceed to the
analysis of those profiles of considerable interest such as the nature of the
government agreement signed between private parties that replaces the usual
coalition pact, the alleged limit of the presidential power of appointment of
Ministers and the doubtful configuration of the crime of attack on the
Constitution.
ANTONIO RUGGERI
Taricco, amaro finale di partita
(03.09.2018)
Abstract
Taricco, bitter end of the game
The article does not intend
to go over the facts of the case but aims to highlight two profiles of the Taricco case that emerged in sentence 115 of 2018 of the
Constitutional Court: on the one hand, it focuses on the
decision-making techniques of the Court, on the other hand the contribution
focuses on institutional relationships. From the first point of view, the
author identifies and justifies certain critical issues relating to the use by
the Court of a pronouncement of groundlessness with substantially erga omnes effects, rather than one of inadmissibility due
to irrelevance of the issue; from the second point of view, however, the author
offers a personal perspective by arguing the reasons behind the thesis that the
Taricco judgment is an expression of the activation
of the counter limits. The article aims at studying the reasons for the change
in approach of the Court, which in Ordinance 24 of 2017 referred to the common
traditions and in the abovementioned sentence, instead, makes use of the
constituent principles of constitutional identity. In short, the author
expresses, not even too veiledly, his regret due to the choice of the Court to
close in on itself and become the bearer of a model of state order separate and
distinct from that of the Union.
Consulta OnLine (periodico online) ISSN 1971-9892