2018/III

settembre – dicembre

 

 

PARTE I

STUDI

 

 

VANESSA MANZETTI

Decretazione d’urgenza ed autonomia finanziaria di entrata degli enti territoriali: profili di finanza locale

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. (V.M.)

 

 

ROBERTO ROMBOLI

La influenza della Cedu e della giurisprudenza della Corte europea dei diritti umani nell’ordinamento costituzionale italiano

(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 ECHR’s 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 (N.F.).

 

 

ANTONIO RUGGERI

Nota minima a riguardo di una procedimentalizzazione anomala dell'intervento del terzo nei giudizi di costituzionalità

(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 (N.F.).

 

 

ANTONIO RUGGERI

“Forma di governo” e “sistema dei partiti”: due categorie ormai inservibili per la teoria costituzionale?

(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 (N.F.).

 

 

FABIO FRANCESCO PAGANO

Gli organi di rilevanza costituzionale di tipo “magistratuale” e l’indipendenza rinforzata della Corte dei conti nei confronti del Governo  (osservazioni a margine di Corte dei conti, Sezz. riunite n. 1/2018/Cons.)

(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 (N.F.).

 

 

ROBERTO ROMBOLI

La Corte costituzionale di fronte alle sfide del futuro.  Un convegno per ricordare Alessandro Pizzorusso

(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 Court’s activity, such as its composition, access routes and type of decisions (N.F.).

 

 

ANTONIO RUGGERI

Venuto alla luce alla Consulta l’ircocervo costituzionale (a margine della ordinanza n. 207 del 2018 sul caso Cappato)

(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 (N.F.).

 

 

ANTONIO RUGGERI

Pilato alla Consulta: decide di non decidere, perlomeno per ora… (a margine di un comunicato sul caso Cappato)

(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 (A.T.).

 

 

ANTONIO RUGGERI

Corte costituzionale, Corti europee, giudici comuni: le aporie di una costruzione giurisprudenziale in progress e a geometria variabile

(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) (A.T.).

 

 

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) (A.T.).

 

 

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 (A.T.).

 

 

SILVIA TALINI

La valorizzazione dei termini "pena" al plurale e condannato al "singolare" anche in materia di ergastolo (a margine di Corte cost., sent. n. 149 del 2018)

(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 (A.T.).

 

 

GIOVANNI MOSCHELLA

Risultati elettorali, ristrutturazione del sistema politico e formazione del Governo all’inizio della XVIII legislatura

(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 (A.T.).

 

 

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 (A.T.).