Consulta OnLine (periodico online) ISSN 1971-9892
2019/III
settembre - dicembre
Parte Prima
STUDI
VINCENZO SCIARABBA
La
Carta dei diritti fondamentali dell'Unione europea e la Corte costituzionale
(23.12.2019)
Abstract
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.
PAOLO PASSAGLIA
Un
(sommario) inquadramento comparatistico della disciplina della prostituzione
(23.12.2019)
Abstract
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
(23.12.2019)
Abstract
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).
JAMES MITCHELL
(20.12.2019)
Abstract
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.
SILVIA TALINI
Presunzioni
assolute e assenza di condotta collaborativa: una nuova sentenza additiva ad
effetto sostitutivo della Corte costituzionale
(18.12.2019)
Abstract
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.
ANTONIO RUGGERI
Diritto
giurisprudenziale e diritto politico: questioni aperte e soluzioni precarie
(18.12.2019)
Abstract
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.
GIOVANNI TULUMELLO
(18.12.2019)
Abstract
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.
ANTONIO RUGGERI
Abstract
(09.12.2019)
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.
CRISTINA LEVORATO
Aspetti
giuridici della dignità umana nell'orizzonte della disabilitÃ
Abstract
(03.12.2019)
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.
ANTONIO RUGGERI
Tre
minime notazioni in tema di norme non scritte di rilievo costituzionale
(28.11.2019)
Abstract
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.
ROBERTO ROMBOLI
(26.11.2019)
Abstract
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.
ANTONIO RUGGERI
Rischi
d'involuzione autoritaria e integrazione sovranazionale come garanzia della
democrazia
(08.11.2019)
Abstract
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.
ALESSANDRO MORELLI
L'autonomia
delle confessioni religiose tra legislazione e giurisdizione
(04.11.2019)
Abstract
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.
ANTONIO RUGGERI
(31.10.2019)
Abstract
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.
MARCO RUOTOLO
L'interpretazione
conforme a Costituzione torna a casa?
(31.10.2019)
Abstract
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.
ANTONIO RUGGERI
Diritti
fondamentali e interpretazione costituzionale
(28.10.2019)
Abstract
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.
MARCO GALDI
(21.10.2019)
Abstract
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
(09.10.2019)
Abstract
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.
LARA TRUCCO
Antonio
Ruggeri e la tensione inappagabile verso la Corte e le Carte
(04.10.2019)
Abstract
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.
ANTONIO RUGGERI
Costituzione,
lotta alla corruzione, "buon governo"
(02.10.2019)
Abstract
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.
LARA TRUCCO
La richiesta referendaria regionale in materia elettorale
(vista dalla Liguria)
(30.09.2019)
Abstract
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.
ANTONIO RUGGERI
(24.09.2019)
Abstract
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.
GIUSEPPE LANEVE
(24.09.2019)
Abstract
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.
ANTONIO RUGGERI
Una
corsia preferenziale, dopo la 269 del 2017, per i giudizi di
"costituzionalità -eurounitarietà "
(20.09.19)
Abstract
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.
ELEONORA RINALDI
(17.09.19)
Abstract
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.
ORESTE POLLICINO
(17.09.19)
Abstract
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.
DOMENICO ARGONDIZZO - FELICE
BESOSTRI - GIAMPIERO BUONOMO
Su alcune ragioni dell'evoluzione costituzionale nei
Parlamenti operanti per sessioni
(13.09.19)
Abstract
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.
FILIPPO VARI
Costituzione
e fine vita. Riflessioni alla luce dell'insegnamento di Antonio Ruggeri
(13.09.19)
Abstract
Constitution
and Euthanasia. Critical Considerations in the Light of Antonio
Ruggeri's Teaching.
The article deals with a
possible introduction of euthanasia into 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).
CRISTINA NAPOLI
(06.09.19)
Abstract
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.
ANTONIO RUGGERI
(05.09.19)
Abstract
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