Consulta OnLine (periodico online) ISSN 1971-9892

 

 

 

 

2020/I

gennaio-aprile

 

PARTE I

 

 

PATRIZIA MAGARÒ

La Corte Suprema degli Stati Uniti d’America all’epoca del COVID-19 (uno sguardo d’insieme)

(21.04.2020)

Abstract

The paper describes the impact of the coronavirus outbreak on the American judicial system, focusing on the U.S. Supreme Court and the measures adopted in order not to stop its work.

 

 

PASQUALE COSTANZO

Brevi note sulle soluzioni apprestate in Francia per contrastare la pandemia nei giudizi di costituzionalità

(17.04.2020)

Abstract

The article describes the organic law approved in France concerning the Conseil constitutionnel's constitutional review during the coronavirus epidemic period, paying attention to the problems of constitutional legitimacy raised by the same organic law.

 

 

ANGELO LICASTRO

Il lockdown della libertà di culto pubblico al tempo della pandemia

(14.04.2020)

Abstract

This essay analyzes the limits on the freedom of public worship introduced by the Italian government because of the emergency caused by the contagious virus SARS-CoV-2.

 

 

ANTONIO RUGGERI

Non persuasivo il parere reso, dietro sollecitazione del Governo, dal Consiglio di Stato su un’ordinanza del Sindaco De Luca relativa all’attraversamento dello Stretto di Messina

(10.04.2020)

Abstract

The paper examines the issues that have arisen in relation to the competence of the Mayor of Messina to oblige anyone wishing to cross the Strait to register with an online booking system as it is considered to be in contrast with the measures adopted by the Government to manage the emergency, also on the basis of an opinion expressed by the Council of State.

 

 

ANTONIO RUGGERI

Il coronavirus, la sofferta tenuta dell’assetto istituzionale e la crisi palese, ormai endemica, del sistema delle fonti

(06.04.2020)

Abstract

The paper argues that the current coronavirus emergency, while placing the institutions called to manage it under stress, does not seem - at least to this day - to compromise their stability. However, the crisis in the already endemically compromised system of legal sources is further aggravated. The thesis which requires a general rewriting of the constitutional canons relating to the sources themselves, with particular regard to emergency management, is further confirmed.

 

 

GIAN LUIGI GATTA

I diritti fondamentali alla prova del coronavirus. Perché è necessaria una legge sulla quarantena  

(06.04.2020)

Abstract

The present work analyzes how the pandemic regulatory management activity (and, in particular, the "quarantine"), in the perspective of emergency law, is face by the national legal system, not failing to compare said management with the experiences at the purpose developed in the common law systems, also on the light of the fundamental rights and freedoms put under tension.

 

 

CHIARA GRAZIANI

Brexit, Regno Unito e Coronavirus: le questioni aperte  

(30.03.2020)

Abstract

The present work analyses how the ongoing Coronavirus emergency is impacting on the negotiation of the Agreement on the new partnership between the European Union and the UK, after the latter formally left the European Union.

 

 

TANIA GROPPI

Le sfide del coronavirus alla democrazia costituzionale  

(30.03.2020)

Abstract

The Challenges of Coronavirus to Constitutional Democracy

Professor Tania Groppi discusses with Marialaura Baldino, a student in Communication Sciences, the challenges of the Coronavirus emergency to the founding principles of the constitutional democracy. The interview is part of a series of lectures named “Virtual Studium. The Research on the Time of COVID”, realised by the section “Cultural Activities Usiena Campus” of the University of Siena on its Instagram platform. According to professor Groppi, democracies cannot refer to the measures taken by non-democratic governments. They have all the legal tools to manage difficult situations as the actual one. The temporary nature, the proportionality and the respect of the rule of law must always be granted, also in times of emergency. She points out the challenges the new “global society of risk” raises to the national State and she asks for the improvement of the international cooperation, especially to strengthen the legal framework on “Global Health”.

 

 

CARLO PADULA

Uno sviluppo nella saga della “doppia pregiudiziale”? Requisiti di residenza prolungata, edilizia residenziale pubblica e possibilità di disapplicazione della legge  

(30.03.2020)

Abstract

In the light of decision 44/2020 of the Constitutional Court, the paper focuses on two different topics: first, the issue of the "double defect" of the law, because the challenged regional statute violated both the Constitution and a self-executing European directive, but the Court ruled on the merits of the constitutional issue although the judge could refuse to apply the law; secondly, the legitimacy of long residence requirements for access to public housing, because the Court invalidated the regional law insofar as it infringed art. 3 of the Constitution.

 

 

ANTONIO RUGGERI

La garanzia dei diritti costituzionali tra certezze e incertezze del diritto

(26.03.2020)

Abstract

The paper argues the thesis according to which a moderate uncertainty of positive law is, even more than opportune, necessary in view of the optimal fulfillment of rights, especially those scientifically sensitive. In particular, both the certainties and the uncertainties deriving from the "dialogue" between the Courts are highlighted.

 

 

PASQUALE COSTANZO

Con l'emergenza, decolla la Corte 2.0

(25.03.2020)

Abstract

Within the framework of the measures imposed by the epidemic crisis, the Constitutional Court proposes, on the one hand, not to stop his work and, on the other, to implement it with the due cautions. The opportunity is proving to be propitious for the modernization of the constitutional process by means of the telematic technologies.

 

 

ANTONIO RUGGERI

Mutamenti di contesto politico-istituzionale, progresso scientifico e tecnologico, teoria della Costituzione (con specifico riguardo al punto di vista della Consulta)

(16.03.2020)

Abstract

The study highlights that the political-institutional context, on the one hand, and scientific and technological development, on the other, leave marked signs both on the first and on the second part of the Constitution, only that the theoretical reflection seems to take them into account, adapting to them , as regards the substantial part, while the theoretical schemes relating to the organizational part are slow to update. Particular attention is paid to the role played by science and technology as regards the "invention" of new fundamental rights, as well as to the mutual aid that science and the Constitution give, testified by some well-known procedural events on the subject of beginning and end -life.

 

 

FEDERICO DEPRETIS

Un caso di buon governo degli effetti temporali dell'incostituzionalita' (a margine della sentenza n. 246 del 2019)

(09.03.2020)

Abstract

The aim of this paper is to enlighten how the Constitutional Court treated in several different occasions the procedures rules about the temporal effects of its decisions. Through the decision number 246 of 2019, the Court decreed the ex nunc efficacy of its sentence, instead of the normal retroactive efficacy, in order to protect the acts of the extraordinary commissioner for the reconstruction in the territories affected by the earthquake. Specifically, in this case, the paper approves the choice of postponing the effects of the unconstitutionality as the Court made a responsible balance between the interests involved. In conclusion, it is argued that the Court is allowed to establish the temporal effects of its decisions independently, provided that it is done in a rigorous manner.

 

 

GIANCARLO GUARINO

Migrazioni e migranti: per la ricostruzione di una prevalenza strutturale del diritto internazionale sul diritto interno

(13.02.2020)

Abstract

Taking the cue from the question of migrations, the contribution analyses the crucial question of the relations between international and national law, short of the kelsenian theory of the supremacy of international law, to ascertain in which measure the idea of the "intangibility" of National law, and in particular the fundamental principles of Constitutional law of the single States is really actual, as many scholars assert. One of the fundamental question therefore is: how the principle of the freedom of each man of abandoning one's own country (art. 12.2 International Covenant on Civil and Political Rights: "Everyone shall be free to leave any country, including his own") is compatible with the principle of sovereignty of States, to conclude that, being sovereignty an "Institute" of international law, is the same international law the sole having jurisdiction on the extent of the State-sovereignty

 

 

ANNA GRAGNANI

I «punti di contatto» fra autonomia dell’ordinamento sportivo e diritti costituzionali come «rapporti multipolari di diritto costituzionale» (Sindacato «complessivo» di proporzionalità e «regola generale di preferenza» in funzione di monito preventivo al legislatore nella sentenza 160/2019 della Corte costituzionale)

(10.02.2020)

Abstract

In the light of decision 160/2019 of the Constitutional Court, the paper focuses on the autonomy of the Italian sport legal order as a constitutional limit to the extent of the State legislation. On the basis of Santi Romano’s theory of «plurality of legal orders» and of the theory of the «open constitutional State», the constitutional judge considers the conflicting connections between the issue of autonomy of the sport legal order and constitutional rights as a multipolar constitutional relationship. The paper also focuses on the proportionality test concerning multipolar constitutional relationships

 

 

MARCO RUOTOLO

Le incompatibilità nella gestione delle farmacie. Un piccolo omaggio a mio fratello Antonio (in forma di nota alla sent. n. 11 del 2020)

(10.02.2020)

Abstract

The work addresses the issue of incompatibilities in the management of pharmacies addressed by the Constitutional Court with sentence no. 11 of 2020. The solution offered by the Constitutional Court, already with acuteness proposed in the doctrine, is shared by the author, although with some technical reservations

 

 

ANTONIO RUGGERI

Ancora in tema di abrogazioni per via referendaria di norme elettorali (nota minima a Corte cost. n. 10 del 2020)

(07.02.2020)

Abstract

The paper briefly examines the problems posed by the request for a referendum on the political electoral law proposed by the Regions and the reasons for its inadmissibility, particularly in light of the decision of the Constitutional Court n. 10 of 2020.

 

 

PASQUALE COSTANZO

Quando i numeri manifestano principi ovvero della probabile incostituzionalità della riduzione dei parlamentari

(31.01.2020)

Abstract

The paper investigates the topic of the italian constitutional revision “in itinere” to reduce the number of parliamentarians. The author highlights the constitutional problems of the reform although carried out by constitutional law.

 

 

COSTANZA MASCIOTTA

La Corte costituzionale riconosce il diritto, preannunciato, a morire rapidamente e con dignità con una tecnica decisoria dalle dirompenti implicazioni

(13.01.2020)

Abstract

With judgment n. 242/2019 the Italian Constitutional Court declared constitutional illegitimacy of art. 580, criminal code, in the part where it punishes the aid to suicide lent to a patient affected by irreversible pathology, intolerable suffering and kept alive by life-support treatments, but fully capable of making free and informed decisions, as long as these requirements have been verified by a public structure of the NHS with the opinion of the Ethics Commette.

The essay aims at analyzing the “Cappato saga” starting from judgment n. 207/2018 through which the Constitutional Court postponed the hearing to give the Parliament a contingent time to legislate and dictated real “governing criteria” for future legislation. 

Due to the inertia of the legislator with judgment n. 242/2019 the Constitutional Court decided to adopt an “additive procedure” ruling and recognized “the right to die quickly and with dignity”, setting the specific conditions for its exercise.

 

 

GUERINO FARES

L’obbligo di copertura finanziaria delle leggi che costano: qualche spunto alla luce del contributo offerto dalla Corte costituzionale

(10.01.2020)

Abstract

According to Article no. 81, par. 3, of the Italian Constitution, any law for the realization of which financial resources are required must indicate exactly the latter. This rule is often violated, however. The paper analyzes the main judgments of the Italian Constitutional Court, with particular reference to the so-called technical report, and then focuses the attention on the synergy between the constitutional jurisprudence and the contribution provided by the Court of Auditors through its jurisdiction to deal with public accounting matters.

 

 

EDUARDO GIANFRANCESCO

L’attuazione dell’art. 116, comma 3, Cost. tra nodi problematici e prospettive evolutive del regionalismo italiano  

(09.01.2020)

Abstract

The essay analyzes one of the most controversial themes in Italian recent constitutional studies: the “asymmetric clause” provided by the third paragraph of art. 116 of Constitution, as amended in 2001. This provision is sometimes considered by scholars (and in the public debate) as the “last resource” for regional autonomies and their vitality in Italy or a menace for the homogeneity – if not the surviving – of the unitary State. The essay attempts a more pragmatic approach to the theme, considered as an useful opportunity for the development of Italian regional system, if implemented within constitutional limits.

In this perspective the essay applies to substantial (the reference of asymmetric clause to administrative and legislative competences of Regions and State) and procedural (the peculiar legislative process to activate the clause) problems of its implementation.

 

 

VINCENZO TIGANO

Il divieto di accanimento terapeutico nella sfera del diritto penale: obblighi di garanzia del medico, autodeterminazione del paziente e rischio consentito

(07.01.2020)

Abstract

The prohibition of therapeutic obstinacy in the scope of criminal law: medical duties, patient self-determination and permitted risk

The article aims to analyze how the prohibition of therapeutic obstinacy, provided by art. 2, para. 2, of the Law n° 219/2017, affects patient rights and medical duties, from the point of view of criminal law. The norm imposes an omissive behaviour on doctors and limits their duty to protect patient life, thus excluding that failure to prevent death-event can be equivalent to its causation, according to art. 40, para. 2, p.c. Art. 2, para. 2, performs also a precautionary function on patient’s psycho-physical health: by marking the difference between permitted risk and radically prohibited risk in medicine, i.e. between therapeutic and non-therapeutic medical acts, the prohibition is identified as a precautionary abstention rule for doctors.

Finally, the terms of a necessary reform of the law are outlined, by urging the legislator to avoid granting doctors too wide discretional power and to give relevance back to patient will.

 

 

ROBERTO DI MARIA

Brevi considerazioni sul rapporto fra tutela sostanziale dei diritti (fondamentali) e rispetto delle forme processuali: la Corte costituzionale  e gli “animali fantastici”. The final cut

(07.01.2020)

Abstract

The matter – very much complex – of the so called “end of life cases” or, more generally, “euthanasia” finally came to the attention of the Constitutional Court by the criminal jurisdiction, regarding the crime of «aid to suicide» (art. 580 c.p.).

Through the ord. 207/2018 – before – and the sent. 242/2019 – after – the Court declared partially illegitimate the aforesaid article, in relation to some rules of the l. n. 219/2107 regarding the “informed consent” and the “advance treatment provisions”. Aside from the merit of the constitutional question, what emerges is the completely new procedural conduct followed by the Court: in fact, with the ord. 207/2018 it has been delayed of one year the final decision, at the same time urging the Legislator to intervene in the aforesaid matter with a proper legislation, consequently recognizing rights and duties related to the institute of euthanasia. Since such warning has been ignored by the Legislator itself, the Court finally decided as above summarized. However, such conduct seems to stretch a little bit too much the recognized “sovereignty” of the Court on its trial; and seems to widen a little bit too much – as well – the judicial recognition of rights, even those “fundamental”, above the political one. So underlining the contemporary problem of the institutional (loyal) relationship between the Parliament and the Constitutional Court and, moreover, among the State Powers.