Consulta OnLine (periodico online) ISSN 1971-9892
2021/III
settembre-dicembre
Parte Prima
STUDI
MATTEO CALDIRONI
La genitorialità intenzionale e l'interesse del minore: un
vuoto di tutele intollerabile
(23.12.21)
Abstract
The essay deals with the
reconstruction of the main pronouncements of the Constitutional Court relating
to the regulation of medically assisted procreation (law n. 40/2004). In
particular, the analysis focuses on the two latest rulings (Constitutional Court,
sentences nos. 32 and 33 of 2021) that specifically touch on the issue of
recognition of the legal status of children conceived through heterologous
fertilization procedures (by homosexual couples) and through surrogacy.
MARIA CHIARA ERRIGO
The most dangerous branch? La Corte Suprema e il Texas
Heartbeat Act
(21.12.21)
Abstract
The paper regards the
protection of the right to abortion in the United States. Particularly, the
contribution focuses on the latest Texas legislation (Texas Heartbeat Act, S.B.
8), in relation to the precedents of Roe v. Wade (1973) and Planned Parenthood
v. Casey (1992), and on the role played by the Supreme Court to consider the
Texas law and, more broadly, to guarantee the constitutional right to abortion
in USA.
GIUSEPPE DONATO
(20.12.21)
Abstract
The essay examines the
problem of the dissolution of neo-fascist organizations in its legislative and
jurisprudential evolution. The analysis starts from the XII final provision of
the Constitution, which imposes a specific ban that is limited only to the
fascist party; then it develops on the legislation of ordinary rank approved in
1945, 1947 and 1952, the so-called "Scelba law" still in force. Then,
the debate on the bill proposed by Senator Parri which aimed to dissolve the
MSI by law and the decisions of ordinary judges that led to the dissolution
of some neo-fascist groups are deepened. In the conclusions, some proposals are
made for changes to the existing structure, including the attribution to the
Constitutional Court of the delicate task of the dissolution of parties.
CRISTINA DE LUCA
(10.12.21)
Abstract
The paper examines the decision no. 185/2021
of the Italian Constitutional Court which declares the unconstitutionality of a
fixed administrative penalty imposed on licensed gambling operators and owners
of gambling rooms for breaching the duty to provide information on the risks of
compulsive gambling, leaving the Legislator to establish a new penalty that
complies with the Constitution, with relevant minimum and maximum thresholds.
The paper focuses on the choice made by the Court to adopt, in this case, a
declaration of unconstitutionality, despite the resulting gap in regulation.
The Court explains when it has to use manipulative decisions and when, instead,
it can also use a "simple" declaration of unconstitutionality, like
in this case, by differentiating "unsustainable" and
"sustainable" gaps in protection. Finally, the paper observes how the
decision fits perfectly into the increasingly loose and proactive attitude of
the Constitutional Judge in the current institutional season
IRENE GOIA
Una giustificabile
"invasione" di campo
(09.12.21)
Abstract
Retracing the work of the
Constituent Assembly and the legislator of 1953, it is possible to reconstruct
the original Italian idea of Constitutional Court: a «negative legislator» who
should have pronounced mere acceptance or mere rejection sentences; a «negative
legislator» whose competence should have been limited to the control of pure
legitimacy, without ever trespassing on political questions or in opportunity
assessments. The difficult definition of what politics is and how wide the
legislative discretion is has left to the judge of laws the task of
self-limiting its action. Even more, the context in which it lives has led the
Court to reshape its character. In this sense, the relationship between the
Court and the Parliament plays a fundamental role, especially regarding the
criminal field. In fact, as for this matter characterized by a high rate of politicity, the constitutional judge has explored different
ways of judgment and decision. There is no doubt that the Constitutional Court
has now gone beyond the original limits of its own review, by invading the role
of the legislator. But, when cooperation failed and constitutional justice is
strongly required, judicial activism is, perhaps, justifiable: it appears
appropriate and necessary that the «natural task» of the guarantor of the
Constitution adapts to situations of political emergency, through a new model
of balance between the "value" of legislative discretion and the
"value" of implementation of constitutional principles.
GIOVANNA RAZZANO
(09.12.21)
Abstract
The paper focuses on the
referendum request aimed at repealing - except for some limited cases - the
crime of consensual homicide. The A. analyses some controversial aspects of the
request, taking into account the role of the Central Office at the Court of
Cassation and the Constitutional Court case law on referendum admissibility,
according to which is forbidden, inter alia, to call referendum for laws with a
binding constitutional content.
LUCIANO CIAFARDINI
Sul compenso da riconoscere ai
magistrati onorari di lungo corso: aspettando Godot
(06.12.21)
Abstract
The article analyzes the sentence no. 172 of 2021
of the Constitutional Court, which ruled out the existence of an unjustified
difference in economic treatment between two different figures of honorary
magistrates. By meticulously reconstructing the regulatory evolution of the
reference discipline, the work highlights the indisputable profiles of
intrinsic unreasonableness of the legislation scrutinized by the Constitutional
Court, not assessed as extraneous to the perimeter of the complaints, supposing
the possible outcomes of any future questions that might be raised by evoking
the relevant profiles of constitutional illegitimacy. Finally, the paper
examines the parliamentary works concerning bills for the overall reform of the
matter, highlighting the persisting critical issues.
CARLA DI MARTINO
(06.12.21)
Abstract
The essay concerns the
involvement of Regional Legislators in the implementation of National Recovery
and Resilience Plan («Piano nazionale di ripresa e resilienza»),
considering regulatory simplification measures programmed by the Plan. In this
perspective, it proposes a comparison between the Plan and the Italian
Simplification Agenda 2020-2023 and it examines the framework of regional
regulatory simplification measures.
ELEONORA RINALDI
Il principio di sussidiarietà
verticale alla prova dell'emergenza interna
(30.11.21)
Abstract
This essay, moving from the
analysis of methods used by the State to counter the spread of the SARS-Cov-2
virus, deals with the difficulties arose during pandemic in preserving the
regional framework, highlighting how these difficulties are imputable, at least
in part, to the mechanisms for the protection of unitary needs set by the
reform of Title V., p. II of the Constitution. Such mechanisms show certain
limitations, in particular when the protection of supra-regional interests is
imposed as an "administrative problem", both in ordinary situations
and in emergencies. Therefore, it follows the need to redress not only the
compatibility of the solutions identified with the crisis management, but also
the political-institutional significance of these solutions which involve, in
addition to the pandemic, the future of our form of state.
CARMELA SALAZAR
Judex ex machina? Note su giustizia, giudici e intelligenza
artificiale
(18.11.21)
Abstract
The essay, reflecting on
the potential of artificial intelligence as a tool for the judicial function,
highlights some controversial aspects relating to the systems of
"predictive justice".
ANDREA BONOMI
(10.11.21)
Abstract
The paper concerns the role
that can assume the prohibition of analogy against the offender in the judgment
on the laws. This role is examined both in the "face" of the same
prohibition turned to the legislator, and above all in the "face" of
the same prohibition addressed to the judge: regarding this second
"face" will be analyzed the supposed non-sanctionability in the judgment of the violation of the
prohibition of analogy to the detriment of the offender and the vexata quaestio about the distinction, in many cases
difficult to delineate, between extensive interpretation and analogy.
GIOVANNI BOTTO
(09.11.21)
Abstract
This contribution aims to
highlight the reconstruction of the regulations regarding environmental impact
assessments, with particular attention to the strategic environmental
assessment, recently carried out by the Council of State. Specifically, the analysis
focuses on the relationship between these assessments and the more general
principles of prevention and precaution, highlighting the specific enhancement
that is made of the latter by the Administrative Judge. Indeed, we can note the
adoption of an interpretative scheme devoted to substantive and not merely
formal compliance with the regulations set up to protect the environment. Of
particular interest is the statement that, in the urban context, the EIA is
part of a sort of evaluative continuum in which each previous evaluation must
be taken into consideration for subsequent, so getting this evaluation within
the binaries of the mere scan of the urban planning procedure is likely to
bring the value of the protection in question under the aegis of mere formalism.
Finally, the contribution highlights the interpretation reaffirmed by the
Council of State in relation to the long-standing question of the relationship
between the proceeding Authority and the competent Authority in matters of EIA.
ANTONIO RUGGERI
(03.11.21)
Abstract
The contribution outlines
the thesis aimed at innovating the symbol of the flag described in article 12
of the Constitution, indicating at its center the
membership of Italy in the European Union. This innovation would not affect,
but would make the composite identity of the Republic more faithful.
FRANCESCO TORRE
(28.10.21)
Abstract
The paper analyses the
Court of Justice judgment of 22 January 2019 about non-discrimination
principle. Looking back at the Luxembourg case law on direct effect in
horizontal disputes, the progressive emergence of the Nice Charter, now the
main parameter of legitimacy in the Court's decisions, is highlighted.
JOHN DIAMOND
Brexit, Devolution and the constitutional implications for the UK: Prospects for change
(26.10.21)
Abstract
The following six points
provide a useful framework to explore the current (and potentially future)
constitutional tensions within the UK as a result of both Brexit and the
Devolution Deals introduced by the Labour Government elected in 1997.
ANTONIO SAITTA
(26.10.21)
Abstract
The contribution discusses
the adoption of governmental emergency legislation during the COVID-19
pandemic. In the light of the recent Constitutional Court's jurisprudence, the
Author investigates the reasons beyond the failure to use the existing Code of
Civil Protection in favor of the Law decrees and the
Decrees of the President of the Council of Ministers.
GIANLUIGI GATTA
Riforma della giustizia penale:
contesto, obiettivi e linee di fondo della "legge Cartabia"
(23.10.21)
Abstract
The contribution focuses on
the recent law no. 134/2021, of delegation to the Government for the reform of
the penal system, proposed on the initiative of Minister Marta Cartabia, as part of the achievement of the objectives set
in the National Recovery and Resilience Plan (P.N.R.R.). The reform constitutes
a fundamental piece of an overall plan for the reorganization of justice aimed
at increasing its efficiency and reducing its time. The Author carries out a
first reading of the main lines and tools used by the legislator.
AGATINO CARIOLA
(22.10.21)
Abstract
The essay comments
favourably on the decision by which the Constitutional Court judged not
unlawful the provision of the fixed duration of the limiting measures of the
right to vote and the right to electorate, imposed together with the criminal
sanctions against elected administrators, denying the necessary competence of
the judge to evaluate case by case.
ANTONINO AMATO
Amici
a metà. Primo bilancio
dell'"ingresso" degli Amici curiae nel giudizio di costituzionalità
(18.10.21)
Abstract
The article deals with the
first cases of application of the new Amicus curiae's institute in judgments
before the Constitutional Court. In particular, statistical data of the
admissibility measures and the inadmissibility decisions of the opinions are examined
and commented. In addition, some observations are made about the role of the
Amici curiae in constitutional process. Finally, there is an attempt to express
an opinion on the functioning of the new institute, in order to highlight any
critical issues and to propose the improvement of some steps of the admission
procedure.
GIUSEPPE VERDE
(11.10.21)
Abstract
The article deals with the
phenomenon of the foundations and the evolution of powers close to normative
ones in the exercise of the constitutional functions of the Superior Council of
the Judiciary. The analysis takes into account the debate on the reform of the
judicial order.
BERTRAND FAURE
Les droits des
femmes dans les constitutions françaises
(05.10.21)
Abstract
The essay focuses on the
rights of women in the French Constitutions. After having retraced the
constitutional evolution of political rights in the female perspective, the
author draws the attention and examines with a critical approach the
development of civil and social rights of women, in the light of the
jurisprudence of the Conseil constitutionnel.
(05.10.21)
Abstract
The essay focuses on the
Italian Parliament and the process that may undermine its centrality in the
exercise of the legislative function. The paper investigates whether the
representative body has lost its role and suggests some legal interventions to
correct this phenomenon. So, it analyses the legal tools (and their effects)
used by the Government to impose itself on the Parliament. Though the actual
functioning of Italian legal system could still be considered as belonging to
the area of what Constitution established, it does not seem possible to
postpone a reform to ensure the centrality of Parliament. It appears that the
best tool would be an amendment of parliamentary rules of procedure. In
particular, the main solution proposed is a reform of the law-making process,
to guarantee an evolution - not a transformation - of the Italian legal system.
SILVIA FILIPPI
(05.10.21)
Abstract
Judgment No. 84/2021
represents a further development of the obiter contained in Judgment No.
269/2017, through which the Constitutional Court partially modified the
judicial protocol to be followed in "dual preliminarity"
situations. The recent decision is the result of a virtuous dialogue built with
the Court of Justice of the European Union, even if some problems are at stake.
Meanwhile the Court of Cassation has raised three complex preliminary questions
to the Court of Justice of the European Union, risking to trigger a conflict
with the Constitutional Court.
MICHELA MICHETTI
(23.09.21)
Abstract
With decision n. 84/2021,
the Constitutional Court declared the unconstitutionality of art. 187 quinquiesdecies (d.lgs. n.
58/1998), relating to the crime of insider trading as it violates the right to
remain silent (art. 24 Cost.). The Author analyzes
the decision, highlighting how it is an important moment of dialogue with Court
of Justice, aimed at protecting rights and freedoms in compliance with the
European Charter of Fundamental Rightsand the italian constitutional tradition.
VITALBA AZZOLLINI - ALESSANDRO
MORELLI
Romanzo
emergenziale. Notazioni sulla disciplina
in materia di Covid
(16.09.21)
Abstract
The essay examines the
regulation in the field of the health emergency, especially regarding the
extension of the state of emergency and the obligation of vaccination. The
Authors show that the public debate is based on political factors rather than
on medical-scientific and legal reasons. The reconstruction of the exact
regulatory framework is a necessary condition to allow accurate democratic
control over the management of the emergency by the Government.
GIUSEPPE MOBILIO
(10.09.21)
Abstract
The essay deals with the
legal problems arising from the widespread diffusion of remote biometric
identification systems. These unparalleled technologies, based on artificial
intelligence, are capable to involve some of the principal challenges that digital
algorithmic technologies are posing to contemporary constitutionalism. Starting
from the attempt of the most recent proposal of European regulation to dedicate
more stringent rules to this issue, the analysis focuses on the difficulties of
legal rules to regulate these instruments of surveillance and the overall
threats to fundamental rights
ANTONIO RUGGERI
(06.09.21)
Abstract
The essay highlights the
suggestiveness but also the ambiguity of the notion of "dialogue between
the courts", as well as its compromission due to the use of partial
methodological bases. A bug that is found in the jurisprudence of both the Court
of the European Union and the Constitutional Court.
The author therefore
underlines the need to distinguish cases of "dialogue" from cases of
multiple and mutually non-communicating monologues.
GIAN LUCA CONTI
La potenza del Fato: crisi o
decomposizione della democrazia?
(01.09.21)
Abstract
Democratic backsliding is a
commonplace in the contemporary constitutional language. Duly elected
governments which are able to reform formal constitutions in a counter
democratic way. That is common said about Poland or Hungary and the cause, as
common said, is populism. In Italy, or in other Eu countries which can be
considered as advanced democracies, if this expression can be used or sounds
good, this is not the problem. There is populism but populism is not a problem
in Italy, USA or UK and so on. The real problem, in the opinion explained in
this essay, is biopolitcs. The Foucault idea for
which the power of surveillance is governance e
by pleasure is the actual power and this power is not in the hands of a
government or a State or a democracy, it is in the hands of net corporations,
big as a modern State and surely not democratic. So the aim of a constitutional
scholar who wants to defend democracy is not a discourse about populism, or the
crisis of representation. The real discourse is about the real essence of
internet and how we can make available fundamental rights in the code.
Consulta OnLine (periodico online) ISSN 1971-9892