Consulta OnLine (periodico online) ISSN 1971-9892
I diversi bilanciamenti tra principio democratico, libertà di voto e diritto alla salute nei rinvii delle scadenze elettorali a causa della situazione pandemica
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
La necessaria ed auspicabile riforma della disciplina del contenzioso elettorale preparatorio riferito alle elezioni politiche a seguito della sent. 48/2021 della Corte costituzionale
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".
La Consulta sulla c.d. proroga tecnica per gli operatori del gioco lecito nella Legge di Bilancio 2018. Lo scrutinio “a maglie larghe” della Corte nella sentenza 49/2021, tra esigenze di finanza pubblica e libertà di iniziativa economica privata
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.
Il diritto alla salute tra dimensione individuale e dovere sociale
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.
Data retention: una ventata di “ragionevolezza” da Lussemburgo (a margine della sentenza della Corte di giustizia 2 marzo 2021, C-746/18)
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.
La disabilità e il corpo nella dimensione costituzionale
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.
Irretroattività penale e sospensione della prescrizione del reato: la Corte costituzionale salva la normativa Covid-19 (a margine della sent. n. 278/2020)
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.
La tutela della privacy e dell’identità personale nel quadro dell’evoluzione tecnologica
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.
Una modesta proposta di revisione statutaria: la disciplina umbra e marchigiana della “vacatio legis” (a proposito di manutenzione della Costituzione)
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.
L’attribuzione del cognome ai figli: dalla discrezionalità del legislatore… alla discrezionalità dei genitori (considerazioni controcorrente a partire dalla ord. n. 18/2021 della Corte costituzionale)
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.
Il diritto al silenzio tra diritti fondamentali e doveri fondamentali in materia tributaria (spunti critici a margine di Corte cost. n. 84/2021)
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.
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
La sicurezza della Repubblica alla prova delle regole legislative e della prassi parlamentare: il caso del COPASIR
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.
Consultazioni di ex Presidenti delle Camere: un tentativo impudìco
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.
“Neighbourhood Watch” o “Neighbourhood Support”? La dichiarazione d’incostituzionalità della legge veneta sul controllo di vicinato e le strade percorribili in futuro
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”.
Finale di partita. Cosa davvero vuole la Corte costituzionale con l’ord. n. 97 del 2021 sull’ergastolo ostativo
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.
La gestione dell’emergenza Covid-19 alla prova del conflitto interorganico. Prime note sulle ordinanze di inammissibilità nn. 66 e 67 del 2021
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.
Tecnologia Blockchain per la banca dati per le DAT? Osservazioni alla luce del diritto alla protezione (e controllo) dei dati personali e del principio del buon andamento
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.
Complessità del governare, qualità dei politici e ruolo dei partiti. Note in tempo di pandemia
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.
Note critiche sulla crisi del Governo Conte II e la formazione del Governo Draghi
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.
Legittimità, tenuta logica e valori in gioco nelle “decisioni di incostituzionalità prospettata”: verso un giudizio costituzionale di ottemperanza
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)
Lo “statuto costituzionale dello straniero” e il diritto d’asilo
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