Consulta OnLine (periodico online) ISSN 1971-9892
2021/III
settembre-dicembre
PARTE I
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)
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)
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)
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)
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)
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
Il
codice della protezione civile e l’emergenza pandemica anche alla luce di C.
cost. n. 198 del 2021
(26.10.21)
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)
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)
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)
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)
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)
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)
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)
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)
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)
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)
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)
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)
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