Consulta OnLine (periodico online) ISSN 1971-9892
2021/II
maggio-agosto
PARTE I
STUDI
LORENZO SPADACINI
(10.08.21)
Abstract
The paper faces the
postponement of elections during pandemics in Italy. It assesses the necessity
of a constitutional balancing among the democratic principle, in one hand, and
the freedom of vote and the right to health, in the other. The former would require
not to postpone the elections, the latter the opposite. The paper distinguishes
the space of this balancing according to the different legal force of the
sources of law, which regulate every specific election. It concludes that the
postponement of elections in Italy during PANDEMICS shows lights and shadows.
In fact, the postponement of the constitutional referendum and other elections
during the first phase of pandemics seems to comply with a reasonable balancing
of the constitutional values at stake, while the postponements in the second
phase of pandemics seem to sacrifice excessively the democratic principle.
GIOVANNI TARLI BARBIERI
(28.07.21)
Abstract
The paper examines the
decision no. 48 of 2021 of the Constitutional Court, as a fundamental piece in
a jurisprudential path in the matter of litigation relating to national
elections, historically characterized by a conspicuous weakness of judicial
protection.
The ruling partially
resolves the "black hole" of the absence of judicial protection on
disputes concerning the preparatory electoral procedure relating to the
elections to the Chamber and the Senate. However, the Constitutional Court does
not renounce to urge the Chambers to follow up on its decision by outlining
"an ad hoc procedure, which ensures timely pre-electoral justice".
MARINA ROMA
(23.07.21)
Abstract
The essay aims at offering
some preliminary comments on decision of the Italian Constitutional Court no.
49/2021, regarding the alleged constitutional illegitimacy of certain
provisions of the Budget Law for the financial year 2018 (i.e. Law No. 205/2017)
addressed to gaming operators. After a brief summary of the decision, the
author makes a critical comparison between the motivation of the Constitutional
Court and the European Court of Justice's consolidated case-law on such matter.
ALESSANDRA MAZZOLA
Il diritto alla salute tra dimensione
individuale e dovere sociale
(22.07.21)
Abstract
The article examines the
constitutional right to healthcare and focuses on the social aspect of this
right. Having stated the right to healthcare, Article 32 of the Italian
Constitution imposes a "duty" to help (social and medical) whenever
the health of a person is considered an interest of the community. The
"duty" to provide assistance might include compulsory health
treatments, including vaccinations. After reconstructing the current
legislation on mandatory vaccination for health personnel, the author analyses
the "strong" recommendation provided both at national and European
level on vaccination (the so-called EU green pass). Finally, the emphasis is
focused on the principle of social solidarity (Article 2 Costitution) by virtue
of which it seems to understand the "moral" duty to vaccinate in
order to safeguard one's own health and that of the community. Hence, the
principle of social solidarity allowed the state to opt not to impose
vaccination.
FRANCESCO TORRE
(19.07.21)
Abstract
The paper analyses the recent
Court of Justice judgment of 2 March 2021 about data retention regulation.
Having revisited the developments on the subject matter both in European and
Italian legislation and case law, this research assesses the conceivable
internal consequences that such judgement might create in our own legal system.
FEDERICO GIRELLI
La disabilità e il corpo nella
dimensione costituzionale
(19.07.21)
Abstract
The cultural approach for
which some people are the so-called "normal one" and some others are
"disabled" persists. Instead, it is necessary to realize that there
is a unique human race, made up of people, each with its peculiarities, each
with its dignity: the point is that disability is one of the many displays of
the human person, placed at the center of the republican constitutional
program. The body, the σῶμα, the external dimension of the
person or a particular genetic condition must not become an insuperable
obstacle to the process of the full development of the human being enshrined in
the Italian Constitution, which perceives the social relationships with other
people as the core of the authentic social inclusion. Indeed, the heart of the
constitutional protection of people with disabilities consists of precisely
safeguarding and enhancing their specific socialization needs.
DOMIZIANO PIERANTONI
(19.07.21)
Abstract
In the Italian criminal
system, the statute of limitation of crimes is a legal institution of
substantive law since it affects the punitive event and, more precisely, the
substantial dynamics of punishment. As such, it is governed by the principle of
no punishment without law ex art. 25, paragraph 2, of the Italian Constitution
that can be declined in the corollaries of the legal reserve, the principle of
non-retroactivity in malam partem and the principles of legal certainty and
taxability of criminal law.
In the light of the above,
the paper analyses the Italian Constitutional Court judgment no. 278/2020 about
the constitutional legitimacy of art. 83, para. 4, d.l. no. 18/2020. The latter
provided for the suspension of the limitation period of crimes caused by the
outbreak of COVID-19 pandemic that made impossible holding trials.
SIMONE SCAGLIARINI
La tutela della privacy e
dell'identità personale nel quadro dell'evoluzione tecnologica
(08.07.21)
Abstract
The paper traces the
genetic and permanent connection between technological progress and the two
rights to personal identity and privacy, focusing on the current European and
national legislation. In this context, two main aspects emerge: on the one hand,
certain criticisms of the GDPR in the ordinary relationships between the data
controller and the data subject and, on the other hand, a structural inadequacy
of the regulatory act in the presence of big data and their algorithmic
processing, especially by the big companies of internet, which have now
assumed, thanks to the data they possess, a power that allows them to deal with
sovereign states as their equal. To this end, the essay indicates some possible
solutions, both de jure condito, such as the use of antitrust and consumer
protection legislation, and de jure condendo, such as the implementation of
art. 80 of the GDPR and the regulation proposals presented by the Commission as
part of the European Data Strategy.
ANTONIO D'ATENA
(05.07.21)
Abstract
The paper proposes to amend
the erroneous regulations contained in some ordinary regional statutes, which
set the term of the vacatio legis by means of the formula "no earlier than
the fifteenth day following the publication of the law". The Author brings
this type of amendment back to the culture of "maintenance of the
Constitution", which, in his opinion, should replace the syndrome of major
constitutional reforms in our country.
LUIGI SANTORO
(05.07.21)
Abstract
Constitutional Court's judgment No. 18 of 2021
offers an opportunity to question the tendential unconstitutionality of
legislative automatisms potentially damaging to fundamental rights (in this
case: the right of the child to be identified with the surname of both
parents), through the procedural technique of self-deferring before to itself
of a further question of constitutional legitimacy. In addition to the
substantive and procedural aspects of the ruling, this paper critically
analyses new possible ways which to imagine the relationship between the
Constitutional Court, the inertia of the legislator and its discretion.
ALBERTO MARCHESELLI
(07.06.21)
Abstract
The person who has
committed violations has the right not to cooperate at his own indictment. This
is guaranteed by international jurisprudence. This paper examines the
corollaries of this fundamental right in tax matters, where the analysis must
take into account the connection with the taxpayer's fundamental duties. The
"nemo tenetur se detergere" rule has the potential to undermine the
basis of some classic instruments of the administrative tax control phase, such
as some cases of presumptive tax assessments and of limitations to submission
of new evidence in front of the tax court. Problematic profiles also emerge
with respect to some sanctions, both administrative and criminal, provided in
addition to the tax assessment.
ANTONIO RUGGERI
(26.05.21)
Abstract
The paper highlights how
between the European Courts and the National Courts (in particular, the Italian
Constitutional Court) there is an endless "game" with Cards ...
"counterfeit" by each player in order to win the game, without however
realizing - due to the partial and reductive perspective adopted - that in this
way a "boomerang" effect penalize the Courts themselves
OMAR CARAMASCHI
(24.05.21)
Abstract
The paper examines, through
legislative norms and parliamentary practices, the case of the Parliamentary
Committee for the Security of the Republic (COPASIR), especially in light of
the recent events that have seen the change of the parliamentary majority.
GIAMPIERO BUONOMO
Consultazioni di ex Presidenti delle
Camere: un tentativo impudìco
(23.05.21)
Abstract
The short paper recalls the
story that had as protagonists, on the one hand, Dino Grandi, who, in the
Republican era, attaching his story as Speaker of the Chamber in the Fascist
era, repeatedly asked to be heard during government crises. alongside the President
of the Chamber of Deputies, in consultations with the President of the
Republic; and, on the other hand, Gianni Ferrara, then a high parliamentary
official, who firmly opposed Grandi's claim, underlining the discontinuity
between the fascist and republican systems produced by the constitutional
violations of the dictatorship.
VINCENZO
SCIARABBA
(19.05.21)
Abstract
The essay, starting from a
recent judgement of the Constitutional Court which annulled a regional law on
the subject of "neighbourhood watch" for lack of legislative
competence, investigates this phenomenon from the perspective of constitutional
law, in the light of the experiences of other countries and taking into account
the critical reflections put forward by scholars with regard to them, and also
turning its attention to other phenomena in some way comparable. On the basis
of the results of this investigation, we draw up some proposals about possible
regulatory developments in this field (by the state legislature or, perhaps
better, the regional legislatures), hopefully in the sense of a reconfiguration
of this phenomenon in the direction, for example, of what in some countries is
called "neighbourhood support".
ANDREA MORRONE
(12.05.21)
Abstract
The paper examines the
third order for postponement of the hearing by the Constitutional Court to give
the legislator time to intervene, examining both the more general reasons for
the Court's appeal to institutional collaboration, and the impact of the decision
on the constitutional process itself.
JACOPO FERRACUTI
(11.05.21)
Abstract
The essay focuses on
ordinances nos. 66 and 67 of 2021, with which the Constitutional Court recently
declared inadmissible the conflicts proposed by two parliamentarians in
relation to the measures adopted by the Government in the management of the
Covid-19 emergency. About these rulings, the most significant aspects should be
emphasised, in particular the impression, which the rulings help to confirm, of
the lack of protection of individual parliamentarians in the event of a
conflict, and of the choice made by the judge constitutional to
"support" the executive, in a particularly critical historical
moment.
GIOVANNA RAZZANO
(10.05.21)
Abstract
Blockchain information
technology represents an opportunity for innovation and digitization of public
administration. The article examines the proposal - advanced by a working group
set up at the MISE (Ministry of Economic Development) - to test the blockchain
for the register for the collection of Advanced Healthcare Directives, in light
of the right to protection and control of data (GDPR) and principles of
accountability, participation and efficiency of the PA, taking into account the
importance of building trust between citizens and digital transformation.
PIERDOMENICO LOGROSCINO
Complessità del governare, qualitÃ
dei politici e ruolo dei partiti. Note in tempo
di pandemia
(03.05.21)
Abstract
The complexity of the art
government is made more evident than ever by the pandemic. Even in politics,
technique is indispensable. The responsibility for selecting high quality
politicians lies with the parties, but experience shows that they don't do it.
Wrong choices – not measured in terms of skills and competences in government –
are among the main causes of the political system's delegitimization. A law on
parties could be one of the right ways to respond.
ALESSANDRO LAURO
Note critiche sulla crisi del Governo
Conte II e la formazione del Governo Draghi
(03.05.21)
Abstract
The paper analyses the
crisis of the second Conte Ministry and the transition to the new Cabinet led
by Mario Draghi. In particular, it reflects on two main aspects: the legitimacy
of minority governments according to the Italian Constitution and the role of
the President of the Republic handling the ministerial crises during the 18th
legislature. In conclusion, some hypotheses are formulated for new
constitutional conventions that could provide the Italian system of government
with greater stability.
ANDREA MATTEONI
(03.05.21)
Abstract
The paper addresses the
theme of procedural aspects of the "Cappato's case" and it supports
the thesis according to which the decisional technique used by the Italian
Constitutional Court is essential to fully safeguard the principle of
constitutional legality, similarly to what happens in the executive process in
front of the administrative judge)
CARMELA SALAZAR
Lo "statuto costituzionale dello
straniero" e il diritto d'asilo
(03.05.21))
Abstract
The paper discusses current
migration policies, underlining the need for legislative interventions that
mark the abandonment of the emergency approach. Moreover, these interventions,
taking into account the now structural nature of immigration, should both favor
the regular entry of foreigners for work reasons, and redeem the constitutional
right of asylum from the typical uncertainty of rights without law.
Consulta OnLine (periodico online) ISSN 1971-9892