gennaio – aprile
Methods of protecting fundamental rights between national and European sources and courts: a Cartesian scheme in the lawyer's perspective
The Author focuses on the multiple tools available to lawyers in order to pursue the best possible protection of fundamental rights enshrined in the most important national and supranational sources (in particular: Italian Constitution, ECHR and EU Charter of Fundamental Rights). After some remarks about the importance of a constitutional approach to this complex issue and about the respective role of the various Courts, and lawyers themselves, in the light of the constitutional jurisprudence concerning the ECHR and the EU Charter, the Author tries to outline and illustrate a sort of "Cartesian scheme" that neatly encompasses all the main methods, tools and mechanisms for protecting fundamental rights, with specific reference to the three legal sources mentioned above and to the various courts in which these sources can be used, in different ways (V.S.)
The Italian flag: between unity and differentiation
The author deals with Veneto’s regional law n. 28/2017 and with the doubts of constitutionality that it raised: doubts which were considered founded by the Constitutional Court with sentence n. 183 of 2018, which declared the unconstitutionality of some of the provisions of the regional law n. 28/2017 for violation of the constitutional rules on the allocation of legislative powers between the State and the Regions. These events provide the starting point for a brief study of the role of the flag as a symbol of unity, according to Article 12 of the Constitution, and also for some observations on the institutional context and on the perspective of a variable-geometry regionalism (V.S.).
There is a very close tie which binds the sub-national governments dynamics and the constitutional justice’s system, which is evident by Court’s role in deciding on the distribution of power issues between the central and the local governments. But, nowadays, the connection throught those two areas is no longer just a problem of separation of responsabilities of the State and the sub-national bodies: to date, this bond reveals a new intimate relationship among the government and the citizens. The analysis of these up-to-date issues can be no longer carried on according to the traditional cathegories of public law: it needs to follow new outlines, which are directly offered by the factual experiences, even in a comparative perspective.
This paper aims to introduce and to compare those novel tools, which should be applied to study the phenomenon of sub-national governaments and its effects on the constitutional justice system: starting from the constitutional framework, it has to be considered the differentiation trend of the subnational governments, the innovative decisions of the Supreme or Constitutional Courts about that arrangement and the role of territorial referenda. In that view, the Italian and the British legal systems offer several cues to prove this institutional change put into act and to operate a wider review on the new paradigms of constitutional law based on the recognition of the principles of differentation and pluralism (F.D.).
Relations between European Courts and national judges and the swing of the pendulum
The relation between the Courts, with the its fluidity and oscillations, may find criminal law as a particularly rich field with regard to theoretical-reconstructive analysis. This is demonstrated by the “Taricco” decision, which led to a fully-fledged reversal of the relations between legal systems, with a "swing of the pendulum" between integration and separation. In this perspective, while decision n. 269 of 2017 has operated a new "centralization" - further remarked by decision n. 20 of 2019 - with regard to the resolution of conflicts between EU and domestic law, a sort of boomerang effect of these decisions can be highlighted with respect to the "Europeanization" of the protection of fundamental rights.
The further openings provided by decision no. 63/2019 seem to be suitable to determine a possible "short circuit" of the system with regard to conflicts of norms concerning supranational self executing provisions.
Facing the above mentioned phenomena, an overall rethinking of the model of relations between legal systems seems necessary, not just on the basis of the nature of the legal sources ut sic considered, but with a view to the "quality" of norms produced by such sources.
Moreover, constitutional case law related to the status of the ECHR in the domestic legal system (and to the binding nature of supranational case law) appears to be oscillating and uncertain, also in view of decision n. 25 of 2019, in which the Court admitted that the case law of the Court of Strasbourg may recognize, "in certain cases", a broader protection.
Finally, within recent developments, it is possible to underline, on the one hand the different animus of European Courts and the constitutional judges as per reciprocal relations and influences and, on the other hand, the broader openness shown by domestic judges, especially by the Italian Court of Cassation, towards European courts (S.P.).
Rights and algorithms: the gig economy and the "Foodora case", between judges and legislators
The paper analyzes the problems and risks, especially related to the possible violations of workers rights protected by the Constitution, which are connected to the so-called gig economy or "economy of little jobs". The constitutional principle of guarantee of work, in particular, requires that the involvement of the human being is strongly protected, in order to constantly adjust the legal system to the different needs of workers, not always implemented by the legislator.
Nevertheless, in the Foodora case, dealing with the claims of the so-called riders, both the first instance Court and the Court of Appeal of Turin have failed to give ground to the above mentioned constitutional principles in order to decide the cases.
In this framework, the scientific debate seems to suggest the opportunity of an intervention by the legislator with the purpose of protecting workers in the form of app-driven jobs, in compliance with constitutional principles (S.P.).
Interventions by third parties and amici curiae: from a comparative perspective, a look at constitutional justice in Italy
The participation of third parties to constitutional proceedings currently represents a traditional topic within the study of constitutional review, both in Italy and under a comparative perspective; the comparison with foreign experiences seems to suggest that the Italian Constitutional Court is less "relational" than other courts.
Under comparative law we may appreciate the trend to open the trial beyond the original parties, especially in common law systems where the amicus curiae seems to have replaced some typical activities of judicial inquiry of civil law courts. Furthermore, the participation of third parties before the supranational courts seems particularly interesting provided that their decisions are more likely able to influence the jurisdictions of the member states.
In such a framework, in order to open the constitutional proceedings to external subjects the possible solution seems to be the "double track" between the intervention of third parties connected to the right of defense and the argumentative-participatory contribution that characterizes the amicus curiae (S.P.).
Brief remarks on the amicus curiae before the Italian Constitutional Court
The well-established case law of the Italian Constitutional Court concerning the right of third-parties to join constitutional proceedings has to be reconciled with the need to ensure compliance with the constitutional principle of adversarial proceedings.
In some cases, including judgments nos. 150 of 2005 and 129 of 2006, indeed, the participation of third parties has been regarded as separated from the particular interests at stake, i.e. in terms of amicus curiae, without providing any overruling of the strict position of the Court. Such stance, however, is not devoid of rationality in favoring only the participation of third parties directly or indirectly affected by the dispute.
Indeed, it seems that the way towards such a changed might be paved by the abandonment of the view of third parties as amici curiae in the effort of strengthening the current powers of inquiry provided to the Court, such as the hearing of subjects with direct knowledge of the issues, as the French Conseil Constitutionnel does through the “auditions” (S.P.).
The Constitutional Court revises the relationship between Euro-Union law and domestic law with a pronouncement “in chiaroscuro” (at the first reading of the Court cost. No. 20 of 2019)
With Const. Court decision no. 20/2019 the fluidity of the relations between Courts has been confirmed as well as the re-expansion of the role of the preliminary ruling, after that decision no. 269/2017 had set some limits. At the same time, some disruptions with regard to the basic rules of constitutional proceedings are evident.
The obstacle of inadmissibility has been overcome through the extension of the centralized review to the violation of supranational norms "connected" to the Charter of Nice, on the ground of the "constitutional dimension of the matter".
Such result is accompanied by the deconstruction of the parameters of the constitutional review and, on the other hand, by the deconstruction of the priority in ascertaining compliance with the Constitution rather than with the rules of the European Union.
The Constitutional Court seems to have clarified again the scope of the preliminary ruling, without any limits, although it seems that there might still be some possible “short-circuits” due to the attraction to the centralized review of conflicts between internal rules and European self executing provisions (S.P.).
Conceptual misunderstandings and improper use of decision-making techniques during a thorny, disquieting and unfinished affair to date (in the margins of the Court of Constitutional Law n. 207 of 2018)
The author analyses Ordinance No. 207 of 2018 on the basis of the fundamental values of dignity and life, identifying in the Court's decision a distortion of the "right to life" into a "right to assisted death". Such a twist derives from the reduction of human dignity to mere self-determination of the individual as well as from the confusion between dignity and quality of life. The author warns in relation to the argumentative technique of "contrarius actus" used by the Court, arguing that there is no specular freedom to return to the ex ante situation (which, in this case, has allowed a form of active euthanasia). Finally, the author identifies the creation of a new decision-making technique that goes beyond the Constitutional Court’s powers to manage the constitutional process.
The right to ridicule a religion in Great Britain: satirical expression and freedom of religion at the time of migration
The contribution, starting from the cases of the satirical cartoons by Jylland-Posten and Charlie Hebdo, is focused on the relationship between freedom of expression and religious freedom in the light of the "super-principle" represented by national security. The right to satire and, more generally, the common law blasphemy in Great Britain, due to the country's multicultural vocation, presents particularly interesting aspects of particular interest that can be analyzed through the study of jurisprudence. The offence of blasphemy in its jurisprudential evolution (starting from the Taylor case in 1676) has shifted from the exclusive protection of religion to the protection of the sentiment of believers, highlighting the courts’ restraint to rule on the balance between freedom of religion and expression. The adoption of the Religious Hatred Act of 2007, which criminalizes incitement to hatred against a person on the basis of religion, and the repeal in 2008 of the blasphemy offence, which has represented the confessionalization of ethnicity, constitutes the latest manifestations of the multicultural nature of the British system (F.P.).
The parliamentarian and his recognition as "state power" only ... virtual or in the abstract (minimum note to Constitutional Court n. 17 of 2019)
The Author comments Italian Constitutional Court’s decision n. 17 of 2019, underlining how, although a timid and cautious opening to the admissibility of conflicts between powers that have as applicant individual members of Parliament can be found in it, specifying at what conditions the admissibility in word can take place, nevertheless these conditions are equally shrouded by a conceptual fog that the Court would seem to allow herself from time to time, thinning it out according to occasional conveniences and as a consequence of balancing operations with unforeseeable outcomes. (F.B.)
MARCELLO DI FRANCESCO TORREGROSSA
State competence in the digitalisation process of public administrations
In the new economy, characterized by a pivotal role of information, public authorities are shifting from being a "tool of state’s public policies" to "economic operators". In this regard, e-government has historically been proposed as a different model of administration, overcoming, through the active participation of citizens, the idea that citizens themselves are merely subject to administration or customers. In this context, the State, and on its behalf the Agenzia per l'Italia Digitale (AgID), achieves a centralization of the powers of guidance and technical coordination. In addition to the AgID, there is the Extraordinary Commissioner for the Digital Agenda, who is vested, among other things, with substitution powers. Points of connection as well as overlaps will be highlighted (F.P.).
The future of fundamental rights, six emerging paradoxes on the occasion of their protection and the search for ways to at least partially remedy
The author focuses on the future of fundamental rights starting from their current evolution and expansion, recognizing the theoretical difficulties in identifying new ones. Six characteristic paradoxes come to light: an increase in the number of rights and of those who enjoy them corresponds to a decrease in the resources available for them; in order to protect rights, judges make political decisions prejudicing their own role, consisting of the protection of rights; emergency rules penalize rights and judges often find themselves legitimizing them for the sake of the emergency situation often originated or fueled by bad rules; regional autonomy was designed to safeguard rights, but the need to guarantee these rights is the reason why it is currently limited; the adoption of abnormal acts by public bodies very often involves abnormal reactions from other bodies, with unpredictable effects on rights; the hierarchical order of the charters of rights ends up affecting rights themselves. On the basis of these paradoxes, the author discusses the features of a constitutional nationalism (F.P.).
GIOVANNI TARLI BARBIERI
The electoral system for the election of the members of the European Parliament due to Italy: problems and prospects after sent. 239/2018 of the Constitutional Court
Constitutional Court’s decision 239/2018 is part of an approach that had different effects on electoral legislation for the European Parliament and for the national Parliament. After examining the Court’s case law, , the Author identifies the decision at stake as a turning point, since it is grounded on reasons related to the evolution of the form of government of the European Union and the functioning of the European Parliament. These arguments are crucial in mapping out the EU’s "form of government". Finally, the Author proposes amendments to Law 18/1979 aimed at "returning" seats to constituencies after the first allocation at the national level and, at the same time, at the protection of representative lists of linguistic minorities (F.P.).
Hearing on the d.d.l. n. 881 on "Electoral law: for a determination of the colleges independent of the number of parliamentarians" (Constitutional Affairs Commission of the Senate - Thursday 29 November 2018)
The Author focuses on draft law S. 881, dealing with the establishment of constituencies independently from the number of the members of Parliaments (hereinafter, MPs). This bill, read together with the project of constitutional reform (draft const. law S.805), aims at replacing the currently fixed number of constituencies and seats with a varying ratio. The resulting legislation, in case the number of MPs were not reduced, would not affect the number of uninominal seats for the Camera dei Deputati and Senato della Repubblica. However, if the number of MPs would decrease, the representativeness of the Parliament would be prejudiced. At the same time, the power of party secretariats and the majority effect of the electoral system would grow. The Author also notes that there is a strong risk of escalation of the gap between the ex ante number of seats and average population. Finally, the Author argues that the combination of the two draft laws (the one amending electoral legislation and the other aiming at changing the Constitution) would be able to solve the problem consisting of vacant seats with a number of candidates for each list equal to the average number of seats to be assigned, although the outcome would be mitigated by the unchanged possibility for each candidate to run for more than one constituency (F.P.).
The electoral logic
This article starts from the assumption that no general theory on electoral democracy mechanisms, connected to a theory of democratic representation, exists. Against this scenario, the Author discusses the key concepts of monocratic election. In this way he notes how theory has been superseded by very varied concrete systems, which are often controversial, but are nevertheless tolerated due to the absence of a strong theoretical background. With regard to proportional representativeness, the author notes that current rules tend to favor those who decide the candidatures and the candidates, proposing the reassertionn of fundamental logical and legal principles as a remedy (F.P.).
The "rebellion" of the mayors against the "security decree": the tortuous way to the Constitutional Court
The Author takes cue from the declared intention of some mayors not to apply Decree Law 113 of 2018 (the so-called "security decree"), and recognizes the problematic issues that it arises. The Article highlights there is a clear a prohibition of registration of asylum seekers because of the ambiguity of the Decree’s provisions and the doubts of constitutionality that they raise. Secondly, the Author remarks the troubles faced by the mayors who could find themselves in the position of applying an unconstitutional rule without being able to refer the matter directly to the Constitutional Court. Therefore, there is a in doing so identifying a "shady area" of constitutional justice. Finally, the Author discusses to the idea of "invalidity in the strong sense", whereby the rule, whose flows are so serious that it must be considered null and void, can be disapplied by anyone (F.P.).