Consulta OnLine (periodico online) ISSN 1971-9892
Annotazioni sugli standard di tutela della libertà di culto nella seconda fase di ge-stione della pandemia (spunti per una comparazione tra Italia, Francia e Stati Uniti d’America)
In the current pandemic crisis, after overcoming the initial uncertainty phase, Governements should adopt policies that more carefully account for the protection of all constitutional rights. This essay assesses the current standards of protection of freedom of public worship in Italy, the United States and France, in the light of developments in emergency legislation and recent case law.
Donne e rappresentanza politica: la prospettiva comparata per valorizzare la differenza di genere
As history teaches us, both social and institutional changes have given women the right to participate in politics. Nevertheless, discrimination based on sex – regarding the access to public office – still remains a dreadful problem, common to contemporary democracies. In order to solve this particular issue, the so called positive actions have been introduced. Unfortunately, this means cannot be considered as sufficient: for this reason, comparing different legal systems is the principal method and the only way to guarantee equality in nowadays Italy. Through it, we manage to understand the importance of local entities and of the constitutional justices’ work, in order to educate the whole society valuing the new idea of “gender citizenship”.
La critica mancanza, nel regolamento della Camera, di una disciplina sul seguito dell’iniziativa legislativa popolare
The short essay points out the importance that popular initiative of laws is followed by a timely examination in Parliament (who may decide to approve them or not); then the essay illustrates the provisions about this topic contained only in the internal regulation of the Senate of the Republic: in order to eliminate the difference between the regulations of the two Parliamentary Assemblies, the author suggests that also the internal regulation of the Chamber of Deputies should provide about the mentioned topic.
L’estensione oggettiva e soggettiva del conflitto di attribuzioni tra enti: la sindacabilità degli atti degli ordini professionali e l’ammissibilità del loro intervento nel giudizio innanzi alla Corte costituzionale
In the last few years, the features of the objective and subjective elements of the conflicts of attribution between the State and the Regions have changed as a result of the jurisprudence of the Constitutional Court which widened the range of enactments that can be challenged before it. The Court in its decision no. 259/2019 annulled an act adopted by a professional order and allowed its intervention in the trial. The paper analyzes the critical aspects of this decision.
PIER LUIGI TOMAIUOLI
Il rinvio pregiudiziale per la pretesa, ma incostituzionale, giurisdizione unica (nota a Cass. civ., Sezioni unite, ord. 18 settembre 2020, n. 19598)
The article analyses the Supreme Court of Cassation’s reference for a preliminary ruling No. 19598 of 2020. The article focuses on the first and more important question, whereby the Joint Chambers – in open contrast with Judgment No. 6 of 2018 of the Italian Constitutional Court – asked the Court of Justice of the European Union to verify the compatibility of Article 111(8) of the Constitution with Union law. According to said constitutional provision, decisions of the Council of State and of the Court of Auditors can be appealed to the Supreme Court of Cassation “only for reasons of jurisdiction” (and not, therefore, for errores in iudicando or errores in procedendo). This expresses a deliberate choice to consolidate the pluralistic organization of jurisdictions in existence for over a century, an arrangement that constitutes a foundational and fundamental trait of Italian justice.
Il disordine delle fonti e la piramide rovesciata al tempo del Covid-19
In a context characterized by a growing disorder of the system of legal sources, there is a trend toward the use of sources with a lower rank than those with which they would ideally compete. In this way, an inverted hierarchy emerges, particularly blatant in the present situation, marked by the spread of the Covid-19 pandemic. This confirms the need for constitutional amendment, that can no longer be postponed, aimed at an overall remaking of the origin framework, especially regarding the management of emergencies as the ongoing one.
Alle frontiere dello stato costituzionale: innovazione tecnologica e intelligenza artificiale
The article deals with the challenges that artificial intelligence poses to the pillars of the constitutional State: the popular sovereignty and the constitutional rule of law, considering that this outstanding progress of humanity must be regulated to limit its negative consequences. In particular, it is considered necessary to work so that the principles of constitutionalism can affect common sense, becoming part of the heritage of all, including the protagonists of science and technology, who are continually asked to choose in which direction to direct their researches and activities.
MARIA AGOSTINA CABIDDU
CSM e decadenza: tra interpretazione e riscrittura della Costituzione
The essay critically analyses the decision of the Italian Superior Counsel for Judicial Officers (Consiglio Superiore della Magistratura – CSM) regarding the termination of one of its members due to his (mandatory) retirement from judicial office. The author focuses in particular on the identification of the nature and function of the Counsel according to the relevant provisions of the Italian Constitution. In light of this approach, the CSM’s decision appears ultimately in conflict with the constitutional purpose of the Counsel itself, which is to safeguard and guarantee the general interest in relation to the judicial power rather than to represent and manage the interests of the judicial officers.
MASSIMILIANO MEZZANOTTE - ALESSANDRO ROSARIO RIZZA
La trasfigurazione del diritto all’oblio
The Court of Cassation returns to rule, with a monumental order, on the right to be forgotten on the web. The contribution highlights two critical profiles.
L’ordinanza n. 132 del 2020 sulla pena detentiva per il reato di diffamazione mezzo stampa: un altro (preoccupante) rinvio della decisione da parte del Giudice costituzionale
The Constitutional Court, with its ruling n. 132/2020, postponed until the 22 of June 2021 the valuation about the fact that the prison sentence is applied as a punishment for libel. In the article, the author sets the libel in the framework of the Italian legal system and recalls the jurisprudence of the European Court of Human Rights. At the end, the author analyses the reasons that led the Constitutional Court to issue the ruling and the relationship between Parliament and the Constitutional Court in relation to this new decisional technique.
Disordine del sistema delle fonti, crisi della legge e ruolo del giudice (tornando a riconsiderare talune correnti categorie teoriche alla luce delle più salienti esperienze della normazione e dei più recenti sviluppi istituzionali)
The paper highlights the parable of the law in the evolution from the liberal to the contemporary state, focusing on the reasons that led to the affirmation of systematic frameworks of formal-abstract inspiration. Therefore in order to optimally safeguard fundamental rights it is necessary to move from a system of sources to a system of norms, in the name of the fundamental canon of maximum protection of the rights themselves, and, consequently, from a formal perspective to axiological-substantial perspective in the observation of the most salient experiences of legislation. Finally, the need to reinvigorate the role of both the legislator and the judges is highlighted, questioning the solutions to the purpose that are profitably practicable.
Notazioni minime su amici curiae ed esperti nel processo costituzionale
The paper examines the provisions about the amicus curiae and intervention of experts in the judgment of the Constitutional Court, recently introduced in the Supplementary Rules for Judgments before the Constitutional Court. The issue is addressed in relation to the investigative powers of the Court, highlighting that the Court's judgment is increasingly conditioned by the knowledge of economic, scientific and social facts for the acquisition of which the contribution of external subjects may be useful.
CEDU e Carta UE dei diritti fondamentali, tra contenuti affini e ambiti di applicazione divergenti
The Author describes the relations between the ECHR and the EU Charter of Fundamental Rights, following an idea of substantial equality of their weight. The paper wants to support the important role of national judges in the system of protection of human rights in a perspective that looks to different Charters as documents having the same constitutional value.
Collocamento a riposo di un componente togato del Consiglio Superiore della Magistratura e permanenza in carica. Le ragioni (esclusivamente tecniche) di un voto
The paper examines the so-called "Davigo judgement": in particular, the issue concerning the supervening termination of membership in the judicial order of a member of the italian Consiglio Superiore della Magistratura (C.S.M.), due to his retirement in reason to age limits (if the turning seventy necessarily entails his forfeiture from the held office).The author takes the positive position, considering critically the theses contrary to the maintenance of the mandate.
Ancora su Cappato e la progettazione legislativa volta a dare seguito alle indicazioni della Consulta
The paper, after having made some critical notes on the sentences of the Constitutional Court on the well-known Cappato case, investigates the aspect of exceeding the limit of the discretionary power of the legislator. Especially, the author notes that the legislative discipline of the events of the beginning and end of life should take place by means of constitutional laws. Therefore it challenges the thesis aimed at recognizing the existence of a constitutional right to suicide, giving itself insurmountable limits to the self-determination of the person and making it improper that safeguarding the dignity of the person is evoked in the field, understood by many in a purely subjective sense. Finally, it insists on the need to maintain the right to conscientious objection of healthcare in the future legislative discipline of the matter.
Decide che deciderà! La Corte costituzionale torna a adoperare la tecnica inaugurata con il “caso Cappato”
After two years since the Cappato case ordinance, the Constitutional Court returns to use the (unpublished) procedural technique of the established but undeclared order of unconstitutionality. The contribution aims to analyse the connections and the differences between Ordinance Nr. 207 of 2018 and Nr. 132 of 2020. Finally, the Author wonders about the consequences that might be caused by the use of these types of orders by the Constitutional Court, with a reflection on the risk of "politicization" of the Court itself.
L’incidenza della pandemia da Coronavirus nel sistema costituzionale italiano
After having illustrated the constitutional provisions and the civil protection code, the essay examines the emergency legislation approved to deal with Covid-19, in Italy. Therefore, the impact of the pandemic is highlighted both on the system of sources of law and on the form of government with the protagonism and centralization of powers in the executive and the difficulties for the regular functioning of the chambers. Other important points of the study concern the conduct of judgments before the Constitutional Court and the common judges during the emergency from Covid-19, as well as the impact of the pandemic on relations between the central state and territorial autonomies. Finally, a particular attention is pay to the impact of the pandemic on fundamental rights.
Note minime in tema di revisioni costituzionali ad oggetto eccessivamente circoscritto (traendo spunto dal “taglio” dei parlamentari)
Taking its cue from the revision that led to the reduction in the number of parliamentarians, the document questions the possibility that the laws amending the Constitution are flawed because they are excessively precise and limited in scope, not concerning - as would be necessary - provisions related to those specifically innovated . The age-old question relating to the failure to reach the quorum for the validity of the referendum is therefore reconsidered, as a result of which the fate of changes, even of considerable importance, may depend on the will expressed by a small portion of the electoral body. Finally, it is noted that in today's circumstances an instrumental and conjunctural use has been made of the Constitution.
Il processo costituzionale nel pensiero di P. Carrozza e nei più recenti e salienti sviluppi dell’esperienza
The essay, in commemoration of Paolo Carrozza, focuses on the critical issue concerning the "jurisdictional nature" of the Constitutional Court's activity, also in light of the more recent prevalence of its political "soul" over the jurisdictional one. In anycase, this predominace is made more conspicuous in reason to recent opening to the civil society: hence, the need to keep the Court as legislator distinct from the Court-judge.
EUGENIO DE MARCO
Riduzione del numero dei parlamentari e riforma del sistema elettorale. Qualche considerazione su un abbinamento contrassegnato da criticità
The paper addresses the issue of the reduction in the number of parliamentarians determined by the proposed constitutional revision already approved by the two Chambers, also discussing the project to return to the proportional electoral system according to the German model. The criticalities of the two reforms are highlighted, as well as the risk of a democratic regression deriving from the combination of the two reforms.
Conflitto tra poteri e referendum confermativo: alcune annotazioni critiche sull’ordinanza della Corte costituzionale n. 195 del 2020
The order n. 195 of 2020 represents the first case in which the Constitutional Court ruled on a conflict between powers raised by the promoters of a referendum pursuant to art. 138 of the Constitution. The paper analyzes the arguments of the Court highlighting omissions and errors. These, in the author's opinion, are generated by the fact that the Constitutional Court proceeds either from the uncritical overlap or from the apodictic differentiation between the case in question and the previous jurisprudence on the subject of conflicts raised in the occasion of abrogative referendums.
Quale centralità del Parlamento se si procedesse al taglio del numero dei parlamentari?
What centrality of Parliament if we proceeded to reduce the number of parliamentarians?
The paper addresses the issues related to the constitutional referendum of 20 and 21 September 2020, juxtaposing the reasons for yes and no to the reduction in the number of parliamentarians. The conclusion links this possible outcome to the mortification of representative democracy as it would tend to expel minorities and negatively influence democracy as an expression of pluralism and conflict.
The document commemorates the 200th anniversary of the political constitution of the kingdom of the two Sicilies of 9 December 1820 and illustrates its characteristics and the temporal situation in which it came to light.
Consulta OnLine (periodico online) ISSN 1971-9892