2022/III

settembre-dicembre

 

PARTE I

STUDI

 

 

 

 

PASQUALE COSTANZO – LARA TRUCCO

The historical roots of legislative technique in constitutional parliamentarism (a framework)

(31.12.2022)

Abstract

The essay aims to illustrate how the drafting of laws constitutes an important element for the for the history of the parliamentary institutions and one of their major identity components. In particular, it highlights the progresses on a variety of fronts with the development of the modern State and the recently trend to bring the problem of drafting even all the way to the constitutional judicial review, referring to constitutional principles and norms.

 

 

SILVIO TROILO

Il principio di solidarietà tra Stato, Regioni e Unione europea: uno sguardo alla sua declinazione in Lombardia

(31.12.2022)

Abstract

The principle of solidarity can be articulated in two major types, which Serio Galeotti has defined as “fraternal” and “paternal” (or public). It is enshrined in Italian constitutional order, but also in the European Union legal system, where it is most often conceived on the inter-state level – although sometimes it is also inclusive of solidarity between individuals and groups – and seems to derive, rather than from the universalistic ideal of fraternity among human beings, from the desire for integration and cohesion among European countries.

Even the Lombardy Region assumes and makes the principle of solidarity its own, concretizing it in forms and ways that are also peculiar: in addition to the provisions of its Statute of Autonomy, it is the regional policies, implemented through programming, laws and administrative measures, that make it real, particularly – but not only – in responding to fragility and needs through the system of social-health services, in the sphere of family and housing policies and for the support of personal autonomy, in the recovery and redistribution of food products, and through the peculiar system of “dowries” (“doti”).

 

 

ALESSANDRA AMORE

La responsabilità della P.A. per danno da vaccinazione: il bilanciato legame tra dovere di solidarietà e dignità umana

(30.12.2022)

Abstract

The history of yesterday and today – think of the emergency caused by the spread of the infection from Covid- 19 – tells us about the suspension of constitutional guarantees, reason of State and emergencies that justify the limitation or cancellation of fundamental rights; as well as “full powers” granted to governments and continuous attempts to consider the freedoms recognized as excessive in relation to the needs of social control or economic development. In this context, a relationship that tends to be equal between the State and the individual has been accompanied by an unequal relationship in which the inequality is the fundamental constitutional rule, since everyone knows that subjective rights, even those that represent the most immediate incarnations of individual freedom are by definition yielding to public power, which in turn refers to the necessary or reason of the state as the exclusive organization of the social order. This can be clearly understood in terms of compulsory health treatment, in which public opinion is strongly divided on the issue of vaccination between those who support the discriminatory nature of this legislative choice, unjustifiably limiting other fundamental freedoms, and those who see the need of such limitations in the name of public health protection. The paper consist of two parts: the first will investigate how constitutional jurisprudence has, over the years, attempted to preserve the value of the human person in terms of vaccination, pursuant to art. 2 of the Constitution; in the second, instead, an attempt will be made to highlight how the duty of solidarity – places to safeguard a balances social bond – has affirmed the general character of the responsibility of the Public Administration from lawful activity. It will be particularly highlighted how the “person-state” holder of eminent dominion over all goods and interest, which reserved to the Legislator to choose of recognizing a compensation for the sacrifice made to the interest of the individual – has affirmed the general principle of state compensatory intervention in favor of the person injured by the vaccine.

 

 

MARIA VITTORI

I decreti-legge e i d.p.c.m. dell’emergenza sanitaria tra riserva di legge, tipizzazione del contenuto dei provvedimenti e bilanciamento dei diritti (riflessioni non ancora desuete a margine di Corte costituzionale sent. n. 198/2021)

(30.12.2022)

Abstract

The contribution analyses the Constitutional Court's judgement no. 198/2021. The ruling affirmed the constitutional legitimacy of the health emergency decree laws and the following d.p.c.m. (decrees of the President of the Council of Ministers) implementing them. The essay also examines the doubts of the ordinary judge who raised the question of constitutionality and then highlights some still uncertain issues concerning the respect of the rule of law, the statutory reserve clause and the balancing of rights.

 

 

VINCENZO TIGANO

La detenzione domiciliare “umanitaria” per i condannati presuntivamente pericolosi: il percorso giurisprudenziale di riallineamento ai principi di eguaglianza e di rieducazione

(20.12.2022)

Abstract

Among the various alternative measures to detention envisaged in the penitentiary system, home detention remains the one most markedly oriented towards protecting convicts suffering from a condition of vulnerability. However, the presence of numerous foreclosures based both on convictions for crimes envisaged by art. 4-bis and on the application of the aggravating circumstance of recidivism, risks compromising the humanitarian needs underlying the measure in question. The numerous interventions of the Constitutional Court have partially remedied these critical issues for certain subjective categories (above all, those in which there is a need to ensure a pre-eminent protection to minors, where directly or indirectly affected by the effects of the prison sentence), often invoking the dutiful respect of constitutional principles of equality and re-education of convicted persons. However, numerous foreclosures still remain in force on which a reform intervention by the legislator or a review of reasonableness by the Constitutional Court would be desirable.

 

 

ANGELO LICASTRO

La questione del velo in azienda e le politiche di neutralità per la prevenzione dei conflitti ideologici tra i lavoratori

(14.12.2022)

Abstract

The Court of Justice of the European Union held that a policy of neutrality, whether it meets a genuine need of the employer, such as avoiding social conflicts within the undertaking, may constitute a legitimate aim, within the meaning of Article 2(2)(b)(i) of Directive 2000/78, establishing a general framework for equal treatment in employment and occupation. This article, by analyzing the recent Belgian case-law related to law and religion issues, argues that the principle affirmed by the Court cannot be an escamotage for the unconditional acceptance of the wish of the employer to have a strict policy of neutrality.

 

 

GIUSEPPE BERGONZINI

Statuti regionali, disposizioni programmatiche e di principio, diritti costituzionali: brevi spunti per un rinnovato dialogo

Abstract

(02.12.2022)

Abstract

This contribution, starting from the possible overcoming of the Constitutional court’s case law that denied the legal value of the basic and programmatic provisions of the regional Statutes, questions the constitutional legitimacy of the statutory provisions that aim to regulate constitutional rights; as well as the limits that condition their possible integrative, evolutionary and (potentially) innovative effects with respect to the current Constitution. The study is carried on in an attempt to understand whether the pre-conditions for a constitutional dialogue (hopefully fruitful) between the Constitution and regional statutes actually exist in the Italian legal system.

 

 

DANIELA TARANTINO

Il “crudele contagio”. Chiesa e Stato dalla spagnola alla Covid-19 fra regole dell’emergenza e devozione popolare

Abstract

(29.11.2022)

The contrast between the safeguarding of personal freedom, on the one hand, and the protection of public health, on the other, evoked in the battle against the "terrible disease" of the 20th century, has returned to the fore due to Covid-19. An analysis of the juridical strategies adopted to combat the Spanish virus allows us to trace points of comparison between yesterday and today, allowing us to grasp parallels and discontinuities with the current fight against the coronavirus, especially as regards the field of tension between religious freedom and health emergency, and its reflection on public opinion.

 

 

FIAMMETTA SALMONI

Il parere della Corte dei conti tedesca sullo Scudo per l’emergenza energetica. Fondi speciali e contabilità extra bilancio: come la Germania elude legalmente le regole del Patto di stabilità e crescita

Abstract

(25.11.2022)

The German government's recent law establishing a 200 billion Euro Scudo using a special fund to protect itself against the consequences of the Russian war of aggression is analyzed here on the basis of an important report by the German Federal Court of Auditors, which highlights its criticality and unconstitutionality profiles, mainly because these funds, not entering into the federal budget, would undermine its transparency and fairness. But even more relevant, at the European level, is the fact that through this escamotage, Germany would always be in a position to comply with the Stability and Growth Pact, avoiding exceeding the deficit/GDP and debt/GDP parameters by simply allocating these funds extra-budgetarily. And Italy? Why can such an accounting expedient not be used by us as well? The proposal, only sketched out, is to amend Article 81 of the Italian Constitution by introducing the possibility, in exceptional cases, of setting up special funds whose debt does not affect the public budget, along the lines of the German Constitution.

 

 

ANTONIO RUGGERI

Teoria delle fonti versus teoria dei diritti fondamentali? (Oscillazioni e aporie di una ricostruzione ordinamentale internamente sfilacciata)

Abstract

(14.11.2022)

The contribution highlights that the reconstructive results achieved by the theory of sources adopted by current doctrine and jurisprudence appear unrelated to those achieved by the theory of fundamental rights. This is confirmed by the solutions now established in terms of limits to the constitutional revision and relations between legal systems, as well as by the same methods of functioning of the criteria for ordering the sources: all solutions that do not seem to take into account the need to guarantee the optimal protection of fundamental rights.

 

 

AGATINO CARIOLA

Il tempo del processo tra giudici a quibus e Corte costituzionale: una proposta

Abstract

(09.11.2022)

Proceeding from the fact that the times of the trials are defined by the same judges, including the Constitutional Court, a constitutional law is proposed that allows the same judge to ask the Constitutional Court to assess the urgency of the question of legitimacy; however, it is noted that the referring court could already inform the Constitutional Court today of the need to give a resolution to the dispute soon.

 

 

ALESSANDRA CAMAIANI

Il valzer fabiano della Corte costituzionale in assenza delle rime obbligate. Illegittimo il tetto alle indennità per licenziamento non conforme alla legge, ma tocca (ancora!) al legislatore

Abstract

(31.10.2022)

After having reconstructed the reasons for the inadmissibility of the issues of constitutionality raised on the compensation provided for unjustified dismissal of the so-called small companies, the paper examines the Courts' approach to the threshold fixed sanctions and briefly dwells on the tolerability of a wait-and-see attitude in the face of the Parliament’s inertia, wondering if it is not necessary to provide for forms of its mandatory activation.

 

 

LAURA LORELLO

La Corte definisce un altro tassello per l’effettività del principio delle pari opportunità. La sentenza n. 62 del 2022

Abstract

(25.10.2022)

In the judgment no. 62 of 2022, the Italian Constitutional Court deals one more time with the principle of equal access in political representation. The decision shows a new approach of the Italian Constitutional Judge in strengthening gender equality, on the basis of Art. 3rd and Art. 51.1st of the Italian Constitution and provides the principle with a new effectiveness.

 

 

MARIA AGOSTINA CABIDDU

Autonomia e indipendenza della Magistratura

Abstract

(21.10.2022)

The article deals with the autonomy and independence of the judiciary, focusing on the functions and role of the Superior Council concerning its place in the constitutional system under the dual profile of the composition established by art. 104 of the Constitution, immediately after affirming the judiciary as an "autonomous and independent order from any other power" and of the attributions.

It focuses critically on the interpretation of the formula "self-government of the judiciary" and comes to affirm personal independence that the individual magistrate - beyond or, better jet, before the independence ensured by the organization in a representative sense of the judiciary government - can only reach through the professionally responsible exercise of one's role as interpreter of the law.

 

 

GIOVANNI TARLI BARBIERI

I nodi irrisolti della legislazione elettorale di contorno alla prova delle elezioni del 25 settembre: appunti per la XIX legislatura

Abstract

(15.10.2022)

The electoral legislation complementary to the electoral system has a fundamental importance for the proper functioning of a democratic system: however, in Italy this legislation is mostly outdated or incomplete. The paper analyses the main regulatory changes that occurred during the XVIII legislature, and the reform proposals that will eventually be passed in the next legislature.

 

 

ANDREA LOLLO

Riflessioni critiche a margine del secondo rinvio della Corte costituzionale sull’ergastolo “ostativo”

Abstract

(12.10.2022)

The contribution deals with the issue of the relationship between the Constitutional Court and Parliament in the matter of life imprisonment, starting from ordinance 122 of 2022. Order by which the Court has postponed the question of the constitutionality of the life imprisonment for the second time to a new role. After having proceeded to outline the jurisprudential framework, the Author dwells on the content of the Court's decision, formulating some critical remarks on the decision itself and, more generally, on the relationship between Parliament and the Judge of the laws within the constitutional system.

 

 

ARMANDO LAMBERTI

Il diritto all’istruzione delle persone con disabilità: prospettive di tutela multilevel

Abstract

(07.10.2022)

The following contribution is dedicated to the multilevel protection of the right to education of persons with disabilities: after having examined the constitutional legal bases, from which its configuration as a fundamental social right emerges in the prism of the dignity of the human person, the analysis is focused on the main international documents, starting with the UN Convention on the Rights of Persons with Disabilities, in relation to which the need for greater enhancement by constitutional jurisprudence as an interposed parameter of constitutionality is argued. The construction in progress, still in the process of consolidation, of a complete multilevel protection system will be appreciated, as evidenced by the fluctuations in the jurisprudence of the Court as in Strasbourg - regarding which the need for fixed points in defining the limits to the margin of appreciation by the States is underlined - and by the slow affirmation of school inclusion among the values of the European Union legal system.

 

 

MARIA CRISTINA CARBONE

Famiglia e nuovi rapporti di parentela: la Corte costituzionale traccia il sentiero per il riconoscimento giudico della “familiarità sociale”

Abstract

(04.10.2022)

The paper analyzes the Italian Constitutional Court's ruling No. 79 of 2022 on the issue of the recognition of kinship relationships arising from adoption "in special cases." The reflection then examines the concept of family in the light of experience, which gives us new forms of family life “de facto couples”, same-sex unions) based on the emotional element and the free expression of consent between the partners.

 

 

ANTONIO RUGGERI

In tema di paradossi della Costituzione e della giustizia costituzionale (prime notazioni)

Abstract

(03.10.2022)

The contribution focuses on some paradoxes that emerged from the constitutional dictate, with specific reference to the expressive enunciations of the fundamental principles, as well as on other paradoxes inherent in constitutional justice which, called to satisfy fundamental rights and to preserve institutional balances, unnaturally becomes a tool to alter such balances. The study ends with a concise final reflection on the "dialogue" between the Courts as a possible cultural remedy for deviations from the constitutional route.

 

 

PAOLO BONINI

La questione dell’evoluzione della funzione giurisdizionale (alcune riflessioni sull’eccesso di potere giurisdizionale)

Abstract

(19.09.2022)

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.

 

 

CARMINE GUERRA

Patrocinio a spese dello Stato e mediazione obbligatoria (considerazioni a margine della sentenza n. 10/2022 della Corte costituzionale)

Abstract

(09.09.2022)

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.

 

 

LUCA BARTOLUCCI

La disciplina del “doppio cognome” dopo la sentenza n. 131 del 2022: la prolungata inerzia del legislatore e un nuovo capitolo dei suoi rapporti con la Corte

Abstract

(06.09.2022)

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.

 

 

ANDREA LOLLO

Libertà di manifestazione del pensiero e uso dei social da parte dei magistrati (a proposito di una recente delibera del Consiglio di Presidenza della Giustizia Amministrativa)

Abstract

(05.09.2022)

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.

 

 

GIORGIO CATALDO

Lo Stato, interventista ma non troppo, di fronte all’emergenza energetica e alle opportunità offerte dagli artt. 41 e 43 Cost.: il caso degli idrocarburi

Abstract

(05.09.2022)

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.

 

 

GIORGIA NICOLÒ

Riflessioni sul principio di proporzionalità nella vita della sanzione penale

Abstract

(02.09.2022)

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.

 

 

LORENZO SOTTILE

L’intervento manipolativo della Corte costituzionale nel quadro della conformazione costituzionale del diritto di difesa nell’esecuzione penale (riflessioni a margine della sentenza n. 18 del 2022)

Abstract

(01.09.2022)

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