Consulta OnLine (periodico online) ISSN 1971-9892
2020/I
gennaio-aprile
Parte I
STUDI
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
(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
(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
(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
(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
(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
(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
(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
(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
(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
(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
(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
(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
(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
(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
(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
(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.
Consulta OnLine (periodico online) ISSN 1971-9892