Consulta OnLine (periodico online) ISSN 1971-9892
2022/III
settembre-dicembre
PARTE I
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 disabilitĂ :
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
NICOLO'
Riflessioni sul principio di proporzionalitĂ 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