Consulta
OnLine (periodico online) ISSN 1971-9892
2019/III
settembre– dicembre
PARTE I
VINCENZO SCIARABBA
La
Carta dei diritti fondamentali dellÂ’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
(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 dignitĂ umana nellÂ’orizzonte della disabilitĂ
(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 juristsÂ’ 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 dÂ’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
LÂ’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
LÂ’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
(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 dellÂ’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'Ă©tat, 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 dellÂ’insegnamento di Antonio Ruggeri
(13.09.19)
Abstract
Constitution
and Euthanasia. Critical Considerations in the Light of Antonio
RuggeriÂ’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
CourtÂ’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