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.
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.
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.
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.
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.
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.
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".
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.
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.
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.
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.
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.
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.
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.
HENRI SCHMIT
(07.01.19)
Abstract
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.
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.
Consulta OnLine (periodico online) ISSN 1971-9892