Consulta OnLine (periodico online) ISSN
1971-9892
2019/III
settembre– dicembre
PARTE I
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
Caro
Roberto, provo a risponderti sulla “doppia pregiudizialità” (così mi distraggo
un po’ anch’io…)
(09.12.2019)
Abstract
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
disabilità
(03.12.2019)
Abstract
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).
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 (E.R.).
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 (O.P.)
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 (Andrea Pisauro).
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 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.)
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