Consulta
OnLine (periodico online) ISSN 1971-9892
2020/III
settembre-dicembre
PARTE I
ANGELO LICASTRO
(23.12.2020)
Abstract
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.
GIULIA SULPIZI
Donne e
rappresentanza politica: la prospettiva comparata per valorizzare la differenza
di genere
(23.12.2020)
Abstract
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”.
PATRIZIA VIPIANA
(23.12.2020)
Abstract
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.
ALESSANDRA
PROZZO
(23.12.2020)
Abstract
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
(11.12.2020)
Abstract
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.
ANTONIO RUGGERI
Il disordine delle
fonti e la piramide rovesciata al tempo del Covid-19
(09.12.2020)
Abstract
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.
TANIA GROPPI
Alle frontiere dello
stato costituzionale: innovazione tecnologica e intelligenza artificiale
(30.11.2020)
Abstract
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
(23.11.2020)
Abstract
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
(17.11.2020)
Abstract
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.
DANIELE CASANOVA
(09.11.2020)
Abstract
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.
ANTONIO RUGGERI
(09.11.2020)
Abstract
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.
ROSSANA CARIDÀ
Notazioni minime su amici
curiae ed esperti nel processo costituzionale
(09.11.2020)
Abstract
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.
ROBERTO CONTI
CEDU e Carta UE dei
diritti fondamentali, tra contenuti affini e ambiti di applicazione divergenti
(02.11.2020)
Abstract
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.
FULVIO GIGLIOTTI
(20.10.2020)
Abstract
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.
ANTONIO
RUGGERI
(14.10.2020)
Abstract
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.
ALESSANDRA
MAZZOLA
(06.10.2020)
Abstract
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.
ROBERTO ROMBOLI
L’incidenza della
pandemia da Coronavirus nel sistema costituzionale italiano
(05.10.2020)
Abstract
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.
ANTONIO RUGGERI
(23.09.2020)
Abstract
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.
ANTONIO RUGGERI
(14.09.2020)
Abstract
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
(04.09.2020)
Abstract
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.
ROBERTO
PINARDI
(02.09.2020)
Abstract
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.
SILVIO GAMBINO
Quale centralità del
Parlamento se si procedesse al taglio del numero dei parlamentari?
(01.09.2020)
Abstract
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.
MEMORIE COSTITUZIONALI
(09.12.2020)
Abstract
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