Consulta OnLine (periodico online) ISSN 1971-9892
2019/II
maggio - agosto
PARTE PRIMA
STUDI
CARLO PADULA
Le decisioni della Corte
costituzionale del 2019 sul decreto sicurezza
(29.08.19)
Abstract
The paper analyzes the
decisions of the Constitutional court 194/2019 and 195/2019, which
have decided the complaints undertaken by five regions against the
"security decree" (d.l. 113/2018). The article focuses above all on
the topic of indirect injury of competence ("ridondanza"), that is
the standing of the regions to invoke - in the direct constitutional judgment -
constitutional rules unrelated to the division of competence. In these
decisions, in fact, the Court has affirmed the possibility of indirect injury
of competence in State
exclusive
(non-transverse) subjects.
PAOLO CARNEVALE
(31.07.19)
Abstract
The contribution concerns
the decision-making technique used in decision no. 207 of 2018,
whose main novelty is the choice to accompany the postponement of the
discussion over time with a motivation that testifies that the solution is
actually ready. The author therefore asks if and to what extent the adoption of
the new decision-making method falls within the availability of the
constitutional judge to conclude that it does not seem to find a significant
deviation from the procedural forms, but rather the Court's attempt to adapt
the procedural rules relating to values constitutional at stake. Furthermore,
the attitude of the constitutional judge seems to follow the tendency to make
increasingly projected decisions on the events of the trial in the main
proceedings.
ALESSANDRO MORELLI
Il principio personalista nell'era
dei populismi
(18.07.19)
Abstract
The paper examines the
personalist principle in the current Italian constitutional order, in the light
of the rise of populism. After analyzing the content of this principle, which
places the human person at the center of the system of public authorities, the
Author examines the incompatibility of the same with the reductionism of
contemporary populist movements.
ANTONIO RUGGERI
Appunti per uno studio su memoria e
Costituzione
(03.07.19)
Abstract
Notes for a study on Memory
and the Constitution
This work highlights the
importance of memory in institutional practices and, even before, in the advent
of the same Constitution as a historical memory and basis to build a new
republican order. The analysis dwells, in particular, on the laws made "to
remember" and on those made "to forget", as well as on the cases
in which science is not able to deliver widely shared knowledge, thus being
left to the legislator to impose a normative memory in place of a scientific
one. Special attention is then paid to the relationship between memory and
dignity. Sometimes, the former serves the latter; other times, memory may even
offend dignity. Some brief final remarks follows, focusing on the crisis of
memory as a cultural crisis, on its most salient expressions and on possible
remedies.
CRISTINA LUZZI
(01.07.19)
Abstract
The "Ilva case"
in the dialogue between the Courts (remarks on the Cordella judgment and others
v. Italy of the EDU Court)
With the judgment Cordella
and Others v. Italy, the European Court of Human Rights has decided that the
persistence of a situation of environmental pollution affects the health of the
applicants who are living or have lived in Taranto and in the closer areas,
classified as "high environmental risk".
The failure of the italian
authorities to take all the necessary measures to protect the applicant's
health, and to inform them about the pollution from Ilva, has breached first of
all the Article 8 of the European Convention of Human Rights (right to respect
for private and family life).
Despite several scientific
reports, which demonstrate the connection between the outbreak of diseases and
the activity of Ilva, the Court has not recognised the violation of the Article
2 of the ECHR (right to life), with the same self-restraint used by the Italian
Constitutional Court in the Ilva Case.
COSIMO LOTTA
(01.07.19)
Abstract
First observations on the
relationship between the crime of "Illicit distribution of sexually
explicit images or videos" and the freedoms of correspondence and
manifestation of thought
The article examines the
crime of "illicit dissemination of sexually explicit images or
videos" in the context of the so-called draft law "Red Code",
focusing on the inadequacy of the current legislation aimed at repressing it.
ALESSANDRO ROSARIO RIZZA
La Corte costituzionale, giudice e
parte tra dottrina e proposte ricostruttive
(17.06.19)
Abstract
The Constitutional Court,
judge and part between doctrine and reconstructive proposals.
The paper concerns the
active and passive legitimacy of the Constitutional Court in the attribution
conflict. The author presents the theories proposed in the literature and the
position of the Court. After, he explains the cases in which the Constitutional
Court can complain about the violation of its constitutional attribution. The
author writes about the respect for the right to a third and impartial judge
and he offers a solution to this problem. The main problem is the passive
legitimacy of the Court and concerns the relationship between the conflict
(Article 134 of the Constitution) and the prohibition of revision of the res
iudicata (Article 137 of the Constitution).
The author reconstructs the
negative position of jurisprudence and majority doctrine. After, he proposes a
reconstruction based on the hierarchical principle of constitutional rights: in
particular, the hierarchical "specialty" or "superiority"
of art. 24 and 134 Cost. on art. 137 Cost.
JACOPO FERRACUTI
(17.06.19)
Abstract
Judicial police and
autonomy of the judiciary in an interesting conflict of powers over a
legislative act. Remarks on the the Constitutional Court, 6 December 2018, n.
229
The Costitutional Court, in
its judgment n. 229/2018,
ruling again on the principle of separation of power, come to the defence of
the constitutional powers of the public prosecutor, avoiding that the
legislator, with his intervention, may give rise to executive powers undue
interferences in the activity of conducting investigations carried out by the
investigating magistrates. The decision is relevant also because it has been
delivered on the outcome of a power struggle between State powers concerning a
legislative act, within which the Court denies access to arguments to
demonstrate the violation of article no. 76 of the Constitution.
ALFONSO CELOTTO
Il doppio mandato degli Avvocati
dinanzi alla Corte costituzionale
(10.06.19)
Abstract
The double mandate of the
Lawyers before the Constitutional Court
Since the "Roosvelt
amendment" (1951) to the US Constitution, the no dual mandate rule has
always given rise to thorny issues. Nowadays, the Italian Constitutional Court
has been asked by the "Consiglio Nazionale Forense" to assess the
constitutional legitimacy of the no dual mandate rule with regard to the
Italian Bar Association, also from a diachronic perspective.
ANTONIO RUGGERI
(27.05.19)
Abstract
Constitution and social
formations: model and experiences compared (minimum notes, introductions to a
debate)
This article deals in
particular with three issues: a) to what degree it is possible to discuss
issues related to social groups from a theoretic and unitary perspective
without forcing the distinctive features of each of them; b) what is the
correct standpoint to examine how social groups that are considered by the
Constitution changed and which are the method and the criterion (or criteria)
to be followed; c) the relationship between individuals and social groups to
which they belong, focusing in particular on cases of conflict. The conclusions
of this work dwell on the influence between rules and regularity as well as on
the need of a new constitutional framework governing social groups.
ENTELA CUKANI
Soggetti vulnerabili e tutela dei
diritti: il caso dei minori stranieri non accompagnati
(23.05.19)
Abstract
Vulnerable subjects and protection
of rights: the case of unaccompanied foreign minors
Unaccompanied foreign minors
(UAMs) constitute an increasingly large part of the immigrant population.
Because of the more vulnerable condition, they are the recipients of specific
rights and guarantees. However, the condition of vulnerability poses many
problems in reference to the methods of effective implementation of the system
of rights which they hold. Besides the innovations introduced by law n.
47/2017, the "security decree" foresees some novelties causing, in some respects, an
involution in the system of rights and guarantees of UAMs. The aim of this
paper is to highlight some of the most critical issues in the effective
implementation of the rights of subjects typified by legal systems on the basis
of their "greater vulnerability".
GIOVANNI MOSCHELLA
Crisi della rappresentanza politica e
deriva populista
(20.05.19)
Abstract
Crisis of political
representation and populist drift.
This article examines the
transformation of the political representation system and the crisis of
contemporary forms of government, whose tendencies towards populism and
nationalism threaten the survival of democratic-representative systems,
exposing them to the risk of plebiscitary drifts.
ANTONIO RUGGERI
(13.05.19)
Abstract
One more step ahead of the
Consulta along the path of "dialogue" with the European Courts and
national judges (in the margins of the Court cost No. 117 of 2019)
The present Article
comments Italian Constitutional Court's decision n. 117 of 2019,
taking into account the background represented by previous case law of the
Court dealing with the relationship between the European Court of Justice and
national courts. In particular, the Author recognizes that the commented
judgment is not a fully-fledged revirement, but it still has some relevant
aspects on which he dwells. The conclusion of this work focuses on the direct
application of the Charter of fundamental rights of the European Union.
PARTE II
LIBRI, RECENSIONI E PREFAZIONI
ANTONIO RUGGERI
a Roberto Conti (postfazione di
Maria Gabriella Luccioli), "Scelte di vita o di morte: il giudice è
garante della dignità umana? Relazione di cura, DAT e 'congedo dalla vita' dopo
la L. 219/2017", Aracne Editore, 2019, pp. 159, ISBN: 978-88-255-2450-5
(20.05.19)
Abstract
Preface
to Roberto Conti (postfazione di Maria Gabriella Luccioli), Scelte di vita o
di morte: il giudice è garante della dignità umana? Relazione di cura, DAT e
'congedo dalla vita' dopo la L. 219/2017, Aracne Editore, 2019, pp. 159, ISBN:
978-88-255-2450-5.
Antonio Ruggeri offers the reader
a complete vision of the Roberto Conti's book dedicated to
questions concerning the "Choices of life and death". Ruggeri stresses the need
for an approach to the delicate issues of consent and self-determination
addressed by Italian law n. 219/2017 that takes on the different roles that the
legislator, the judges, the doctors and the patients, hoping that these
protagonists are however all faithful to ethics and science when dealing with
the dignity of the person.
PARTE III
MEMORIE COSTITUZIONALI
11 agosto 1919 - 11 agosto 2019
Litt die Weimarer Republik an einem Geburtsfehler?
Abstract
Did the Weimar Constitution
suffer from a genetic defect?
The theme of the
contribution is the re-enactment of the Constitution of the German Empire of 11
August 1919, better known as the Weimar Constitution.
The Constitution was
adopted on July 31, 1919, after just over five months of sessions. A very dense
work to which the political role of the Constituent Assembly was superimposed.
The contribution describes
the turbulent and sometimes dramatic climate that preceded and accompanied the
drafting of the Constitution, to then identify its essential characteristics,
as well as the probable causes of its crisis, from which, as is known, the
seizure of power of National Socialism began.
3 luglio 1869 - 3 luglio 2019
La Costituzione della Repubblica
romana del 1849
Abstract
"a only one bright
exception"
The Constitution of the
Roman Republic of 1849
The essay examines the
historical events that led from the end of the political experience of the
Roman Republic, to the approval of the relative Constitution, as well as the
exceptional actuality of the the constitutional project that should have supported
it.
1° giugno 1869 - 1° giugno 2019
Abstract
A Savoy king on the Spanish
throne
The article recalls the
historical context in which the Spanish Constitution of June 1, 1869 was
approved. The constitution, fruit of the Glorious Revolution, which had exiled
the Bourbons, had remained monarchical. On the throne of Spain he was called Amedeo
di Savoia, duke of Aosta and son of the king of Italy, Vittorio Emanuele II.
The failure of this choice and the contradictions contained in the Constitution
were associated with an extremely unstable, fragmented and polarized political
structure. The article therefore describes the reasons and the modalities of
the failure of the Glorious Revolution and in substance also of the cd.
democratic sexennium: then the fall of the constitutional monarchy of Amedeo I
and also of the subsequent ephemeral first Spanish Republic (1869-1874).
Consulta OnLine (periodico online) ISSN 1971-9892