Consulta OnLine (periodico online) ISSN 1971-9892
La Carta dei diritti fondamentali dell’Unione europea e la Corte costituzionale
The paper focuses on the use of the Charter of Fundamental Rights of the European Union by the Constitutional Court, paying particular attention to the judgment n. 269/2017 and to the various and very important underlying issues, thus supporting the need for the construction, on a shared basis, of a single criterion for all the Member States (although flexible and sophisticated), which makes it possible to identify that restricted set of situations in which the common judges should necessarily refer to the Court of Justice for the interpretation of the Charter, thus ensuring that it plays a central role at European level, and not only at national level..
Un (sommario) inquadramento comparatistico della disciplina della prostituzione
A (essential) comparative framework
The article analyzes the models of regulation of sex work. Going back to the origins of contemporary regulations (the 18th and the beginning of the 19th Century), it identifies three historical models: legalization, prohibition, and abolition. Recent developments of legal frameworks created new models, that are actually new approaches to legalization and to abolition. The new legalization model tends to eradicate social blame for sex workers, whereas the new-abolitionism explicitly defines sex workers as victims.
ANTONELLO LO CALZO
Illeciti e sanzioni disciplinari del magistrato tra automatismi legislativi e recenti interventi della Corte costituzionale
Offenses and disciplinary sanctions of the judge between “legislative automatisms” and recent decisions by the Constitutional Court
The Italian Constitutional Court has often ruled on the constitutionality of the “legislative automatisms”. In particular, this paper focuses on a particular type of “sanctioning automatisms”, concerning the disciplinary accountability of the judge, with respect to which, in recent years, the Constitutional Court followed in its judgments different solutions (on all judgments no. 170/2015 and no. 197/2018).
The article focuses on the results of the 2019 United Kingdom general election, paying particular attention to the implications for Brexit and the Scottish Question.
Presunzioni assolute e assenza di condotta collaborativa: una nuova sentenza additiva ad effetto sostitutivo della Corte costituzionale
Absolute presumptions and lack of collaborative behavior: a new additive decision of the Constitutional Court
This paper proposes critical reflections on the sentence of the Italian Constitutional Court no. 253/2019. The work starts with an analysis of the recent constitutional case law in the matter of rehabilitation through punishment; the author observes that constitutional judges, with the sentence no. 253, have declared the illegitimacy of article 4-bis, 1 paragraph, p.a. (Prison Act), changing “legislative presumption” from absolute to relative. In this way the judge can assess the characteristics of the specific case even in the absence of the collaboration with the justice. However the author notes that it was not a simple decision due to the different requests coming from the Italian political forces and from the European Court of Human Rights.
Diritto giurisprudenziale e diritto politico: questioni aperte e soluzioni precarie
Judicial and political law: open questions and precarious solutions
The paper investigates the relationship between jurisprudential and political law in general (the legislative one, in particular). It points out that one of the most effective resources to safeguard legal certainty is given by the accordance of the jurisprudential judgments to the previous ones. At the same time, another element of stabilization and renewal of the jurisprudential orientations is given by the s.c. "Dialogue" between the high Courts. Finally, the study highlights the implications towards the Constitution theory by the relationships between jurisprudential law and political law.
L’evoluzione della causa del provvedimento amministrativo di scelta del contraente, e le sue principali conseguenze ordinamentali: l’influsso del diritto UE sulla disciplina, sostanziale e processuale, dei contratti della pubblica amministrazione (anche a margine di Corte cost., n. 271/2019)
The evolution of the cause of the administrative decision in the choice of the contractor and its main regulatory consequences: the EU law influence on the substantial and procedural regulation of the public administration contracts (also in the margins of the Constitutional Court decision n. 271/2019)
The paper aims to examine the main effects, in the field of public administration contracts, of adaptation to the law of the European Union: in particular, the change in the interest behind this kind of legislation (from the accounting approach, typical of the liberal State, to the competitive one). In terms of substantive law, this influence seems to manifest itself both in relation to the legislative competence, and with regard to the administrative choice of the contractor, with the inevitable and consequent repercussions on the downstream negotiation affair. In the procedural field the phenomenon points out significant oscillations between the centrality of the validity rules with respect to those of responsibility and, above all, a difficult dialogue between the national and the european jurisprudence concerning the interest in bringing proceedings and on the consequent model of procedural protection. The analysis contained in the decision n. 271/2019 of the Constitutional Court about this aspect, seems to open a new dialectical front towards the jurisprudence of the Court of Justice..
Caro Roberto, provo a risponderti sulla “doppia pregiudizialità” (così mi distraggo un po’ anch’io…)
Dear Roberto, I'm going to try to answer you about the "preliminary double ruling" (so I get distracted a little, me too)
The paper, as reply at a recently Roberto Romboli's paper published in this Revue, underlines the need to deal with the issue of "double prejudice" both from the point of view of those who recognize themselves in the approach of the Constitutional Court and of those which, to a greater or lesser extent, deviate from it. The aim is to give a reflection about the more suitable technical solutions for the purpose.
Aspetti giuridici della dignità umana nell’orizzonte della disabilità
Legal aspects of human dignity in the perspective of disabled people
This work highlights the difficulties to define the legal idea of dignity because this is more of a philosophical and theological idea, rather than a legal one. Dignity is a flexible idea, the outcome of a process.
Dignity is the highest and most universal value. It is a basic value of the Italian Constitution and several international regulations.
In particular, this work analyses the legal aspects of dignity in the disability field. The purpose is to examine whether the dignity of people with disability is guaranteed or not
Much progress has already been made but in many different circumstances disabled people are still denied their rights.
The recommended solution is a greater participation of disabled people in the society. The human being and his rights should be back at the focus of jurists’ work.
Disability only needs a few rules, albeit clear ones. The challenge is to excise the abstractness from the law. This daunting task is set to be unachievable, unless rules going hand in hand with the needs and values of everybody are to be created (C.L).
Tre minime notazioni in tema di norme non scritte di rilievo costituzionale
Three minimal annotations on the subject of unwritten constitutional rules
The short paper focuses on a series of controversial issues (constitutional conventions, customary meta-rules and interrelations between legal systems in the perspective of unwritten rules), in the perspective to carry out a more detailed study about this issue.
Caro Antonio ti scrivo (così mi distraggo un po’). In dialogo con il Ruggeripensiero sul tema della “doppia pregiudizialità”
Dear Antonio, I'm writing to you (so I get a little distracted). In dialogue with “Ruggeripensiero” about the “double preliminary ruling”
The paper, after considering the vast scientific production of Antonio Ruggeri, focuses the attention on the problems generated by the decision of the Constitutional Court no. 269/2017 concerning the “double preliminary ruling”. It analyzes both, the problematic aspects - in particular, in the light of the predictable scenarios in the relations between common judges, the Constitutional Court and the Court of Justice - and the possible solutions.
Rischi d’involuzione autoritaria e integrazione sovranazionale come garanzia della democrazia
Risks of authoritarian involution and supranational integration as a guarantee of democracy
The essay previously wonders how we can establish the level of democracy achieved in a determinated legal order. Therefore, It should be noted that the perspective from which democracy should be observed concerns the fundamental rights and the constitutional duties. It also relates the illusory character of the (pseudo) direct democracy and the necessity to preserve the representative democracy as a condition of democracy tout court. Finally, it is argue the thesis that the membership of the European Union is a guarantee of democracy and a growth factor for the rights in face to the rampant nationalism and populism
L’autonomia delle confessioni religiose tra legislazione e giurisdizione
The paper examines the autonomy of religious confessions and, in particular, focuses on the nature of these social formations and the limits to their statutory autonomy. The purpose of the work is to define the boundaries of the legislator and those of the judge in the regulation of this matter and in the resolution of conflicts that may arise regarding the exercise of religious freedom in a collective form.
La “specializzazione” dell’autonomia regionale: i (pochi) punti fermi del modello costituzionale e le (molte) questioni aperte
The “specialisation” of the regional autonomy: the (few) firm points of the constitutional model and the (many) open questions
The essay outlines the ratio of the article 116 paragraph 3 of the Constitution and highlights the few firm points of the constitutional model. The paper discusses many issues which are currently at the center of the debate and, from a formal point of view, examines the modifiability of the proposal of the law that transposes the agreement related at the article 8 paragraph 3 of the Constitution. Under the substantive aspect it highlights the need of a flexible and experimental agreement. Finally, the questioning concerns the consequences which the “specialisation” are able to have both on the state and regional government and on the special regions.
L’interpretazione conforme a Costituzione torna a casa?
Does the interpretation according to the Constitution cam back to home?
The study takes up the theme of interpretation according to the Constitution, questioning the relative problems. However, at the beginning, the document expresses objections on both the theses: that the letter of the law always prevails to limit the interpretative power of the judges and that invites the judge to do it alone, preferring an intermediate position. An excursus deals with the evolution of the canon of interpretation according to the Constitution in constitutional jurisprudence, taking up the thesis of Vezio Crisafulli. Finally, the contribution examines the interpretation according to the Constitution used by the President of the Republic.
Diritti fondamentali e interpretazione costituzionale
The paper preliminarily questions the characteristics of constitutional interpretation, in particular when it refers to statements concerning fundamental rights. The theoretical aporias of the way in which the interpretation of the laws according to the Constitution is commonly understood are emphasized and it is noted that the first conforming interpretation takes place within the Constitutional Charter itself, pushing interpretation of the remaining declarations towards expressive declarations of fundamental principles. Then follows the study of the relations between the Constitution and the other charters of rights, critically examining the way in which they are reconstructed by constitutional jurisprudence. Finally, the remedies and the resources to contain the risk of judicial authoritarianism according to the occasions are indicated, in particular through inter-jurisprudential dialogue, the formation of judicial customs and the judicious use of the fundamental canon of maximization of the protection of rights.
Il limite del doppio mandato e la “democrazia dei cittadini” (riflessioni a margine di Corte cost. sent. 10 luglio 2019, n. 173)
The limit of the double mandate and the “democracy of the citizens” (reflections on the sidelines of the Constitutional Court ruling 10 July 2019, n. 173)
Two recent events drew to public attention the question of the double mandate term limits: by decision n. 173 of 10 July 2019, the Constitutional Court judged on the compliance with the Constitution of the prohibition for the members of the councils of forensic district orders, who had already carried out two mandates, to run for office again; almost at the same time, a debate was held within the Cinque Stelle about the overcoming prohibition for the Movement elected members to run for even after their second mandate. This study notes that the limit of the second mandate, in all its various applications, finds a minimum common denominator, as for the constitutional basis of the legislative choice, in the need to ensure equality in the chances to hold public offices (art. 51 of the Constitution.); while only sometimes it is functional to ensure “free” vote (article 48, paragraph 2, of the Constitution) i.e. the same requirements underlying the recent anti-corruption policies (first and foremost the protection of impartiality and the good performance of the public administration according to article 97, paragraph 2 of the Constitution). As for the case of the Cinque Stelle, which evidently materializes in a self-limitation entirely internal to the movement, the institution has, instead, an essentially ideological matrix, which has its roots in the Jacobin concepts in late '700. The issue of the mandates limit, however, is illuminated by a different light after the latest constitutional reform, reducing the number of Members: if on the one hand, it could in fact justify the introduction of the limit in the Constitution, on the other it requires without exception parties, whose internal democratic structure is guaranteed by the general system.
GESSICA VERONICA GOLIA
Quando “la prigione è un’ingiustizia, la libertà un pericolo”: la detenzione domiciliare per i detenuti affetti da infermità psichica sopravvenuta
When «prison is an injustice, freedom a danger»: home detention for prisoners suffering from supervening mental infirmity
The article examines the Italian Constitutional Court’s decision n. 99/2019 which extended the applicability of “humanitarian” or “derogating” house arrest referred to art. 47-ter (1-ter) of Law no. 354 of 26 July 1975 (Norms regulating the penitentiary system and the enforcement of measures involving deprivation and limitation of freedom) even in the event of prisoners suffering from serious mental illness.
In fact, at present, as a result of the abolition of OPGs (Judicial Psychiatric Hospitals), mentally ill offenders sentenced to prison, cannot rely on the care they need. Indeed, on the one hand, the recent REMS (Residences for the Execution of Security Measures) are only intended to insane offenders judged to be not-imputable and subjected to a custodial security measure; on the other hand, there is no precise legislation to establish the incompatibility between prison regime and mental health, and it is not possible to apply for an alternative to imprisonment aimed at therapeutic purposes. This legal framework causes a very serious violation of protection of health, that has both constitutional as well as human right worth: thus, these prisoners are subjected to inhuman and degrading treatments in breach of the article 3 of the ECHR.
The commented decision allows to fill much of the gap in protection of detainees with psychiatric disorders, but, nevertheless, there are still unsolved problems, with regard to the access and execution of this peculiar kind of home arrest. Especially, it appears necessary to reconsider the highly problematic concept of social dangerousness.
Antonio Ruggeri e la tensione inappagabile verso la Corte e le Carte
The paper takes cue from some of the innumerable studies published in Consulta OnLine with the aim to underline, from different perspectives, the unattainable ideal tension of Antonio Ruggeri for the protection and the affirmation of the Fundamental Rights and Freedom by the judges and the Constitutional Court.
Costituzione, lotta alla corruzione, “buon governo”
Constitution, fight against corruption, “good governance”
The paper notes that corruption is one of the most salient manifestations of the crisis of political representatives and, even more profoundly, of the subjects represented, with immediate and negative repercussions on the republican public ethics recognized by the Constitutional Charter. Therefore, some widespread misconceptions about the notion of “good governance” are highlighted, which requires a revision from the point of view of the Constitution and its values. Finally, possible remedies are sought for the failures caused by corruption in the legislative and, above all, cultural plan.
La richiesta referendaria regionale in materia elettorale (vista dalla Liguria)
The paper examines the contents of the referendum proposal presented by the Liguria Region with other regions whose question is aimed at repealing the proportional part of the electoral system for political elections, with the aim of getting a system entirely based on single-member constituencies remain.
Specifically, attention is focused in the first part on the admissibility of the question by the Constitutional Court and, in the second part, on the features of the resulting legislation, in the awareness of the fluidity of the situation and, therefore, of the uncertainty to which the related analysis is subject.
Conflitti tra norme eurounitarie e norme interne, tecniche giurisprudenziali di risoluzione, aporie teoriche di costruzione
The document highlights the difficulties with which the antinomies between Union rules and internal rules are resolved in the light of the jurisprudence opened by the decision of the Constitutional Court. n. 269 of 2017. In particular, it is noted that the decision-making technique for the non-application of national rules seems to refer to the system of their irrelevance in the case, while the cancellation to that of invalidity. Curious is that the articole no. 11 of the Constitution would seem at the same time to require the adoption of both of the aforementioned techniques.
The thesis in favor of the precedence of the "community" prejudice over the constitutional one is therefore affirmed and the lack of a "Europaklausel" is indicated as the cause of the difficulties mentioned above. With reference to the Nice-Strasbourg Charter and the ECHR, there are further difficulties in the jurisprudential orientation.
In conclusion, it is considered appropriate an adjustments of this jurisprudential approach and it is hoped in the introduction of a new legislative discipline of the aforementioned antinomies.
Pluralismo e Limite (al potere e per l’altro): declinazioni della Costituzione come modo di guardare al mondo
A true interdisciplinary engagement between public law and other humanistic sciences (as history, philosophy, sociology, pedagogy etc.) is necessary to counter the worldwide crisis, that is also democracy crisis, as the arise of populism shows. Human being must be addressed to a new educational challenge that involves culture. On this level, constitutionalism and constitution still play a fundamental role. From this perspective, the aim of this essay is to focus on the concept of limit, in its double meaning – as limit to power and as limit to recognize the other person as a value. The concept of limit, strictly related to pluralism, is a key concept of constitutionalism and of italian Constitution that must be deeply rooted in culture.
Una corsia preferenziale, dopo la 269 del 2017, per i giudizi di “costituzionalità-eurounitarietà”
The study states that some theoretical-practical problems produced by the decision of the Constitutional Court n. 269 of 2017 would find an optimal resolution in the combination of the remedies of non-application and the annulment of the norms contrary to the supranational standard.
An even better solution would be the forecast - preferably by law and, alternatively, with an act of self-regulation by the Constitutional Court - of an accelerated path before the Constitutional Court itself, so that the shortest possible time passes between the two remedies and satisfies the expectations of all the judges and those who turn to them for justice.
Le vacillanti colonne d’Ercole dell’autodichia e i paradossi dell’antipolitica: tra volontà di “fare giustizia” dei privilegi dei parlamentari, ingiustificate disparità di trattamento e collocazione dei regolamenti parlamentari nel sistema delle fonti
On the basis of two recent judgments of the United Sections of the Court of Cassation, this commentary tries to analyse the fundamental stages of constitutional jurisprudence on the subject of judicial review of parliamentary rules, and tries to point out in what way the resolution of such issue will affect the balance between independence of Parliament and protection of the rights of the individual.
As the Constitutional Court has stated, there cannot be a judicial review on parliamentary rules; as a consequence of that, the mean to make sure there is a fair balance between the two abovementioned opposed interests (independence of Parliament and protection of the rights of the individual) is the conflict of powers.
The commentary then analyses the extension of such control and its effectiveness in relation to the protection of the right of defense of the individual.
The recent issue with the pensions of former members of Parliament is taken into account, too; in fact, such issue makes clear that sacrificing the rigidity and inflexibility of the Constitution may involve serious consequences, both immediately and in the longer term (E.R.).
Corti costituzionali e migrazione di “idee costituzionali” da occidente a oriente. La bussola e una metafora.
The paper, starting from the consideration of the invaluable contribution of the scientific contribution of prof. Ruggeri on the subject of inter-ordinal relations, a veritable compass indispensable for orienting oneself in increasingly thick plots of interaction and conflict, focuses on “horizontal migration of constitutional ideas”. In particular, the essay focuses on the special responsibility that, by making a parallel with antitrust law, could weigh, in this regard, on the most authoritative and persuasive Western Courts (O.P.)
DOMENICO ARGONDIZZO – FELICE BESOSTRI – GIAMPIERO BUONOMO
Su alcune ragioni dell’evoluzione costituzionale nei Parlamenti operanti per sessioni
A metahistorical comparison between the living British system and the Italian Kingdom Parliamentary system, in the first post-war period, reinforces the thesis that the House of Commons can legitimately still be master of a part of their own agenda and of the totality of their calendar even in the period of prorogation of the session.
In the two-year period 1920-1922, the Parliament of the Kingdom of Italy conquered, thanks to a socialist initiative, the power to decide on its recalling, and the organization of legislative activity through permanent commissions. It was a significant achievement: in the session of the Council of the regulation of July 31, 1920, the socialist MP Modigliani even spoke of a coup d'état, in the event that the right to prorogue or close the session was exercised immediately after Parliament had recalled itself. Even then closing the session had the effect not only of suspending, but of ending all pending matters, cancelling all work not completed; stopping all the offices including the Presidency. If a member of the opposition had succeeded in passing a proposal contrary to the Government views, or a project dissatisfied a part of the majority, the Cabinet should only close the session and the Ministry was removed from all embarrassment. For this reason, the Parliamentary power to recall itself was the frontier between the democratic evolution of the form of government and the Fascist reaction.
The Northern Ireland Executive Formation Act 2019, subsection 3 and 4 effectively grants the British Parliament the power to recall itself under the Meeting of Parliament Act 1797. If it is true that the self-recalling is exercisable lawfully within the session and not during a prorogation, it is clearly evident that the government cannot lawfully prorogue Parliament when it is self-recalled. The major thesis that Parliament - the seat of democratic sovereignty – should prevail over Government in constitutional conflicts, with the Queen neutral, remains unprejudiced (Andrea Pisauro).
Costituzione e fine vita. Riflessioni alla luce dell’insegnamento di Antonio Ruggeri
Constitution and Euthanasia. Critical Considerations in the Light of Antonio Ruggeri’s Teaching.
The article deals with a possible introduction of euthanasia int o the Italian legal order from a constitutional point of view, coming to the conclusion that it would conflict with several constitutional provisions. The various arguments that are usually put forward to object this thesis are reviewed one by one and refuted with particular regard to the teaching of Antonio Ruggeri, in honour of whom the essay was written.
The author analyzes in particular how the Constitution imposes limits on the principle of self-determination such as the right to life, which – like other fundamental rights cannot be renounced – and the duty to contribute to the material and spiritual progress of society, as outlined by its art. 4. Furthermore, it shows why the legalization of euthanasia does not derive from the principles of equality and human dignity, unlike what had been suggested by the Italian Constitutional Court in the case DJ Fabo/Cappato (decision n. 207 of 2018) (F.V.)
La Corte costituzionale interviene sul rapporto tra vertice politico e vertice amministrativo dell’ente locale. Una nuova forma di “bicefalismo” per i segretari comunali e provinciali?
The Constitutional Court rules about the relationship between the poiltical chief and the top of the administration of local authorities. A new form of “bicephalism” for municipal and provincial secretaries?
The article analyzes the Italian Constitutional Court’s decision n. 23 of 2019 which dismissed the question of constitutionality of the normative provision that links the duration of the office of municipal and provincial secretary to the administrative mandate of the mayor or of the president of the Province. In particular, starting from the cornerstones on which the discipline of public management is based in Italy and from the consolidated constitutional precedents about “spoils system”, some critical remarks are proposed with regard to the motivation that led to the rejection of the question of constitutionality and to the type of decision adopted by the Constitutional Court.
La crisi del I Governo Conte e la rivincita della democrazia rappresentativa sulla pseudo-democrazia diretta delle piazze e del web
The crisis of the first Conte Government and the revenge of representative democracy on the direct pseudo-democracy of the squares and the web
The paper highlights the most important aspects of the crisis of the first Conte Government, starting from the one concerning the renewed attention to the rules of parliamentary democracy that the President of the Conte Council took care to lend. Therefore, some controversial theoretical questions are taken up again, both in political circles and among scholars, including the question whether, following the opening of the crisis, the early dissolution of the Houses should take place immediately, or if priority should be given to the attempt to to give life to a Government supported by the confidence of the parliamentary majority. A consideration is therefore made to the changed political-institutional role that seems to emerge for the President of the Council G. Conte in the passage from the first to the second Government presided by him. The work ends with a brief reflection on the relationship between direct pseudo-democracy and representative democracy and on the future of the constitutional state.
Consulta OnLine (periodico online) ISSN 1971-9892