Consulta OnLine (periodico online) ISSN 1971-9892
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
(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
(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
(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
(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
(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
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
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
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
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)
ALESSANDRA CAMAIANI
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
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
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
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
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
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
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
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
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
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
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
Consulta OnLine (periodico online) ISSN 1971-9892