Consulta OnLine (periodico online) ISSN 1971-9892
2021/II
maggio-agosto
PARTE
I
STUDI
LORENZO SPADACINI
(10.08.21)
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)
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)
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)
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)
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 disabilitĂ e il corpo nella dimensione costituzionale
(19.07.21)
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 dellÂ’identitĂ personale nel quadro dellÂ’evoluzione tecnologica
(08.07.21)
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 DÂ’ATENA
(05.07.21)
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)
Constitutional CourtÂ’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)
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)
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)
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)
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)
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
JACOPO FERRACUTI
GIOVANNA RAZZANO
PIERDOMENICO LOGROSCINO
ComplessitĂ del
governare, qualitĂ dei politici e ruolo dei partiti. Note in tempo di pandemia
ALESSANDRO LAURO
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.
ANDREA MATTEONI
Lo “statuto
costituzionale dello straniero” e il diritto d’asilo
Consulta OnLine (periodico online) ISSN 1971-9892