The article aims to investigate the evolutions of the judicial function in the contemporary constitutional system. Starting from the doctrine's considerations on the "leaps forward" of jurisprudence, the contribution proposes to resort to the figure of "excess of jurisdictional power," a case of abuse of right, to explain the ongoing dynamics. Case law on the subject is also analyzed. In conclusion, it proposes some preventive or subsequent hypotheses in order to rationalize the dynamics proper to the judicial function in relation to the legislative function as well.
The aim of this article is to explore Judgment n. 10 / 2022 of the Italian Constitutional Court, that declared illegitimate due to their conflict with the Italian Constitution Arts. 74, para. II and 75, para. I of Presidential Decree n. 115 / 2002, insofar as they do not provide for the applicability of the benefit of legal aid (“Patrocinio a spese dello Stato”) to mediation proceedings established under Art. 5, para. I-bis, of Legislative Decree n. 28 / 2010, whenever the parties involved reach an agreement throughout those proceedings, as well as Art. 83, para. II, of the same Presidential Decree n. 115 / 2002, insofar as, in the aforementioned scenario, it does not vest the judicial authority that would otherwise retain competence over the controversy in case of litigation with the duty to liquidate the attorney’s fees.
The paper analyzes sentence no. 131 of 2022 of the Italian Constitutional Court, on the question of the “double surname”. In particular, the comment arises in the context of the evolution of the complex relations between the Constitutional Court and the legislator: in fact, that of the Court on the subject was a gradual path, with repeated requests for intervention from the legislator, who remained inert for a long time.
The contribution addresses the issue of the freedom of expression of judges on social networks, taking its cue from the recent resolution of the Presidency Council of Administrative Justice, approved in the session of 25 March 2021. Resolution which, precisely, dictates some rules on use of electronic means of communication and social media by administrative magistrates. The contribution attempts to focus on the limits imposed on magistrates on the exercise of freedom of expression on social media for reasons related to compliance with the constitutional principles that govern the exercise of judicial functions. To this end, after having proceeded to outline the constitutional framework, the Author reconstructs the relevant legislation and jurisprudence, proposing his own theoretical vision. Finally, the contribution ends with a critical analysis of the contents of the resolution of the Presidential Council of Administrative Justice.
With the aim of intensifying the hydrocarbons extraction in national sea to help overcome the energy crisis, the provision contained in Article 16 of Decree Law no. 17/2022 represents a privileged observation point to understand what terms and assumptions are characterising the return of the State to the economy during the emergency. Among the different options offered by the Constitution, particularly in Articles 41 and 43, the State seemed to suffer from structural limitations that prevented its complete freedom of choice. The provision, which can also produce effects beyond the crisis, implies benefits to energy companies at the expense of other constitutional interests: a condition that, at this juncture, appears paradoxically (and problematically) inevitable, in line with the reduced public capacity to impact on productive and social dealings.
Judgment no. 63 of 2022, by means of which the judges of the Italian Constitutional Court declared the illegality of the aggravating circumstance referred to in art. 12 co. 3 letr. d) first part of Legislative Decree 286 of 1998, judging it in contrast with the principles of equality and proportionality, offers the opportunity to reflect, in a broader sense, on the principle of proportionality of the sentence. The examination, which is based on the relationship between punishment and proportionality, makes us question the possibility of recognizing the principle of proportionality even in the executive phase, leading us to the conclusion that this principle permeates the entire life of the criminal sanction.
In the judgment no. 18/2022 the Constitutional Court deals with the legitimacy of the article 41 bis, para. 2 quater, e) of the penitentiary law that does not exclude from censorship the correspondence between prisoners under the special regime and their lawyers. Resorting to the arguments developed by the previous judgment no. 143/2013 the Court based his decision on the right of defense, that overcomes in the balance against the demands of public order and security. By references to the European Court of Human Rights judgments and to the soft-law instruments, the Court declares uncostitutional the contested provision, after ruling out the possibility of a constitutionally oriented interpretation