Consulta OnLine (periodico online) ISSN 1971-9892
Le decisioni della Corte costituzionale del 2019 sul decreto sicurezza
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.
Incappare in… Cappato. Considerazioni di tecnica decisoria sull’ordinanza n. 207 del 2018 della Corte costituzionale
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.
Il principio personalista nell’era dei populismi
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.
Appunti per uno studio su memoria e Costituzione
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.
Il “caso Ilva” nel dialogo tra le Corti (osservazioni a margine della sentenza Cordella e altri c. Italia della Corte EDU)
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.)
Prime osservazioni sul rapporto tra il reato di “Diffusione illecita di immagini o video sessualmente espliciti” e le libertà di corrispondenza e di manifestazione del pensiero
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
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.)
Polizia giudiziaria e autonomia della magistratura in un interessante conflitto tra poteri su atto legislativo. A margine di Corte cost., sent. 6 dicembre 2018, n. 229
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.)
Il doppio mandato degli Avvocati dinanzi alla Corte costituzionale
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.)
Costituzione e formazioni sociali: modello ed esperienze a confronto (note minime, introduttive ad un dibattito)
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.
Soggetti vulnerabili e tutela dei diritti: il caso dei minori stranieri non accompagnati
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.)
Crisi della rappresentanza politica e deriva populista
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.)
Ancora un passo avanti della Consulta lungo la via del “dialogo” con le Corti europee e i giudici nazionali (a margine di Corte cost. n. 117 del 2019)
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.).
LIBRI, RECENSIONI E PREFAZIONI
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
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.).
11 agosto 1919 – 11 agosto 2019
Litt die Weimarer Republik an einem Geburtsfehler?*
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
“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
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