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