Consulta
OnLine (periodico
online) ISSN 1971-9892
2019/I
gennaio
– aprile
PARTE
I
STUDI
VINCENZO SCIARABBA
(23.04.19)
Abstract
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.)
GIADA BRAMBILLA
La
bandiera italiana: tra unità e differenziazione
(15.04.19)
Abstract
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.).
FRANCESCA DONA'
Contemporary dynamics of sub-national
governments and Courts: a challenging shared path
(05.04.19)
Abstract
Contemporary dynamics of sub-national governments and
Courts: a challenging shared path
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.).
ANTONIO RUGGERI
I
rapporti tra Corti europee e giudici nazionali e l’oscillazione del pendolo
(25.03.19)
Abstract
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.).
CARMELA SALAZAR
Diritti
e algoritmi: la gig economy e il
“caso Foodora”, tra giudici e legislatore
(08.03.19)
Abstract
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.).
TANIA GROPPI
(04.03.19)
Abstract
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.).
PASQUALE COSTANZO
Brevi osservazioni sull’amicus
curiae davanti alla Corte costituzionale italiana
(04.03.19)
Abstract
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.).
ANTONIO RUGGERI
(25.02.19)
Abstract
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.).
ANTONIO RUGGERI
(21.02.19)
Abstract
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.
ENTELA CUKANI
(18.02.19)
Abstract
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.).
ANTONIO RUGGERI
(11.02.19)
Abstract
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
La
competenza statale nel processo di digitalizzazione delle pubbliche
amministrazioni
(11.02.19)
Abstract
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.).
ANTONIO RUGGERI
(31.01.19)
Abstract
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
(16.01.19)
Abstract
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.).
LARA TRUCCO
(10.01.19)
Abstract
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.).
HENRI SCHMIT
(07.01.19)
Abstract
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.).
ALESSANDRO MORELLI
(07.01.19)
Abstract
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.).
Consulta
OnLine (periodico
online) ISSN 1971-9892