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
(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