Consulta OnLine (periodico online)
ISSN 1971-9892
2019/II
maggio– agosto
PARTE I
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 (C.L.)
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. (A.R.R.)
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 (J.F.)
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 (A.C.)
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 (E.C.)
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 (G.M.)
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 (C.G.).
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 (R.C.).
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