Consulta OnLine (periodico online) ISSN 1971-9892
2022/II
maggio-agosto
PARTE
I
STUDI
Abstract
(29.07.22)
The essay intends to jointly examine the institutional and
jurisprudential trajectories drawn by the President and the Constitutional
Court in the matter of urgent decree, with particular
reference to the concept of homogeneity. The paper analyzes
and compares some recent statements by the Head of State and the Court's ruling
no. 8 of 2022 in order to reconstruct the limits and
potentialities deriving from the overall concurrence of these two 'parallel
jurisprudences'.
MARCO LADU
Abstract
(25.07.22)
The paper tries to offer an interpretation of the statements by Sergio
Mattarella, President of the Italian Republic, made during its seven-years’
office. It highlights how his statements affect the governing system,
eventually influencing its performance. A context analysis is, indeed,
compulsory since today the Head of the State is acting as a “deputy” facing the
disruption of the political system, thus becoming a point of reference of the
mediation activity between political forces. The tendency of the institutional
role of the Parliament, increasingly recessive before the governmental
hegemony, as well as the growing mistrust of the electoral body in its
representatives, well highlighted by the growing abstentionism, serve as a
substrate on which a political function of the President of the Republic is
cultivated and called upon to intervene in some sensitive passages of the
institutional life of Italy.
DAMIANO FLORENZANO
Abstract
(25.07.22)
The paper examines the
judgment of the Constitutional Court that deals for the first time with the
subject and the limits of the legislative competence of the Autonomous Provinces
in the matter of the allocation of large hydroelectric concessions. The
coordinates used to resolve the issues of constitutional legitimacy devolved to
prove that there is little room in this area for the legislator of special
autonomies.
ANTONIO IGNAZIO ARENA
La questione di fiducia nella formazione delle leggi
ordinarie: quali limiti costituzionali
Abstract
(28.06.22)
The paper concerns the
“matter of confidence” and its constitutional limits in Italy. In the
paragraphs 2-3 it focuses on thesis based on the symmetrical character of
bicameralism and on the supermajority rule. In the paragraphs 4-7 it is argued
that Government could not designate a particular vote to be a matter of
confidence in proceedings through which the Parliament controls the executive.
It is doubtful instead that a matter of confidence on a “total amendment” is
unconstitutional. In the third and last part of the essay (paragraphs 8-10) are
analyzed constitutional limits to the matter of
confidence in the regional order.
UGO ADAMO
Abstract
(28.06.22)
The paper examines
Constitutional Court’s ordinance n. 122/2022, which postpones for a second time
the decision on the constitutionality of life imprisonment. The “postponement
of referral” opens to a series of additional critical issues of a
decision-making technique that is already problematic in
itself. Currently, there is still a lack of comprehensive jurisprudence
able to clarify and solving some of the problems posed by the
use of the “proposed unconstitutionality”, among others the definition
of the time duration of the deferral to be granted (variable or standard) and
the same reasons as the use or not of the deferral to a fixed date. All this
makes at least unpredictable the application of the decision-making technique
that the paper critically examines.
STEFANIA MABELLINI
Il
“radicamento territoriale”: chiave d’accesso e unità di misura dei diritti
sociali?
Abstract
(24.06.22)
The paper focuses on the
question of social services to foreigners, highlighting the great influence
that both the Court of Justice of European Union and the European Court of
Human Rights have over national jurisprudence. More than anything the Author
draws attention to the problematic condition of residence, that could be used
as incisive instrument of discrimination in the provisions on social security
benefits. Concerning that point, the paper focuses on some recent rulings of
the Constitutional Court, that arrives at not really
convincing conclusions.
ALESSANDRO ROSARIO RIZZA
Abstract
(24.06.22)
The paper examines the new
GSE’s power of verification, pursuant to the “new” art. 42, par. 3, of the legislative decree n. 28/2011, with various forays
on the requirements of the “law exonerating”
in the constitutional jurisprudence
ARMANDO LAMBERTI
Libertà di informazione e democrazia ai tempi della
società digitale: problemi e prospettive
Abstract
(20.06.22)
The Internet, with its promises
of unprecedented democratic openness to a public debate that is finally equal,
thanks to the possibility for each citizen-user to be able to share their ideas
with a potentially planetary community without having to have enormous economic
capacities, unfortunately seems to have betrayed the expectations. Search
engines and social networks with global reach have ended up holding a
quasi-monopolistic position in their respective markets and have significantly
changed the context in which fundamental activities for our democracies take
place, such as those related to the expression of thought of individuals and
freedom. of information.
The search for remedies,
but for the moment still mild, is underway: it is in fact necessary to realize
that we are in the presence of an epochal challenge for the law, and in
particular for constitutional law, which must be faced and overcome, in the
name of a vision which reaffirms the centrality of the human person in the face
of the logic of profit of the new protagonists of technological capitalism.
ELENA SAMMACICCIO
La
Corte e il processo telematico: valutazioni e prospettive dopo la pandemia
Abstract
(18.06.22)
The evolution of the
sanitary emergency has led the Italian Constitutional Court to rethink its
procedural rules, which until that moment did not reckon on telematic
procedures. By introducing the new “Norme
integrative”, the Court has started a new procedural experience, replacing the
old methods of filing deeds and documents with a computerized portal, called
e-Cost, which allows them to be filed electronically. Among the merits of this
reform it is noted, first of all, the speed and
efficiency that this new mechanism is destined to bring, even if its practical
and applicative implications, impacting on the whole legal system, will require
the Court itself to reflect about the direction to take in the future.
GIORGIA NICOLO’
Abstract
(18.06.22)
The discipline of the
pecuniary sanction currently in force presents gaps and inaccuracies such as to
compromise its effectiveness. In fact, the disparity between the complexity of
the offense and the amount of the pecuniary sanction in lieu of a short prison
sentence, through the lens of the principle of proportionality, allows to
recognize numerous criticalities. With the sentence in question, the
Constitutional Court therefore intervened in order to
guarantee a sort of "second degree" proportionality, in order not to
see the correspondence between the gravity of the fact and the aggressiveness
of the sanctioning response cancelled.
QUIRINO CAMERLENGO
Valori
e identità: per un rinnovato umanesimo costituzionale
Abstract
(15.06.22)
Values and Identity are two
elements that can conflict. Values express specific points of view. Identity
makes a Person unique and unrepeatable. can values define personal Identity?
This article aims to describe a methodological path so that Values can
legitimately condition the process of progressive building of personal
Identity. The first part is dedicated to the study of personal Identity,
examined in its three components: individual Identity, social Identity,
constitutional Identity. In the second part I will support the thesis according
to which Values can perform that function only if transformed into
constitutional Principles: Values will be understood as ideal conceptions of Society.
The third part will be dedicated to the construction of a structure with
concentric circles where the nucleus is the Person. The three rings of
Proximity, Sovereignty and Integration gravitate around the nucleus. Through
the constitutional Identity, the Person will be able to consciously participate
in the relationship with other People in a space of constitutional Humanism
where Citizenship is not the necessary condition.
MARIA ASSUNTA ICOLARI
Abstract
(07.06.22)
After the reform of
articles 9 and 41of the Italian Constitution environmental protection is back
as an emergency from which human life arises. Starting from the assumption that
your health is a condition of differentiation also of the economic conditions
between all, the writing that follows intends to investigate on what
environmental taxation can do to contribute both to the realization of a
European Union, jury regionalism in Italy. Therefore, after a brief
introduction on the current state of environmental taxation, remarking its
residual character within the order, due to the absence of an environmental
prerequisite as ordering criteria, the examination aims at the tax forecast of
a European tax approved by a qualified majority for the use of the “passerella” clause. If at the European level everything
turns around the exceeding of the unanimity criteria, in the regional context,
instead, while waiting for the completion of the tax autonomy, continuing to
foresee environmental correspectives may contribute
to natural asset, for another versus, to lower the national tax pressure.
OMAR CARAMASCHI
Abstract
(03.06.22)
The paper examines the
judgment no. 50 of 2022 of the Italian Constitutional Court relating to the
inadmissibility of the request for an abrogative referendum concerning the
article 579 (consensual homicide) of the Italian Penal Code, also dealing with
the issue of the balance between the right to life and the right to personal
self-determination in matters of “end of life”.
MARINA ROMA
Abstract
(03.06.22)
With judgments no. 19/2022 and
34/2022, the Constitutional Court ruled on the questions of constitutionality
of the provisions on the eligibility requirements to access the citizenship
income and the inclusion income.
The Court has the opportunity to mention its previous case-law, but at
the same time to focus on the above-mentioned instruments.
In the background - and
expressly mentioned in judgment no. 19/2022 - is the issue of the lack of
financial resources to cover the assistance measures in question.
MARCO MARAZZINI
Abstract
(31.05.22)
The essay retraces the
controversy between Hans Kelsen and Carl Schmitt on
the 'Custody of the Constitution' in the light of the historical events of the
end of the Weimar Republic. Methodologically, it starts from the idea that it
is useful to study legal ideas as historically given in their political and
social context. It will be shown how the theoretical positions of the two great
jurists on the protection of the constitutional order, jurisdiction and
emergency were reflected in the 1932 Prussia v. Reich trial. It is precisely
this hard case that offers the opportunity to measure the impact of jurists, courts and institutional actors on a situation of
‘political’ emergency.
LUCA BARTOLUCCI
Riforma dei regolamenti parlamentari e Piano Nazionale di
Ripresa e Resilienza
Abstract
(24.05.22)
The National
Recovery and Resilience Plan (NRRP) is a tool that could cause a profound
transformation of Parliaments, which must reinvent their ability to think in
the medium-long term. However, no adjustments have been made so far at the
parliamentary level. A "window of opportunity" for the reform of
parliamentary rules of procedure is offered by the constitutional law (n. 1/2020)
on the reduction of the number of MPs. The objective of the paper, therefore,
is to identify the areas in which parliamentary rules of procedure could be
adapted with an eye to the implementation of the NRRP, using this tool to
correct some pre-existing gaps that have characterized the life of the
Chambers, also by improving the legislative procedure, without leading to
serious upheavals.
ALESSANDRA CAMAIANI
Abstract
(20.05.22)
After having
reconstructed the reasons for the inadmissibility of the referendum on the
murder of the consenting person, the paper examines the criticalities of the
exploitation of democratic institutions for purposes other than those for which
they are set up. The choice of the Constitutional Court is therefore approved
even if an inappropriate return to the concept of unavailability of life is
contested.
STEFANO ROVELLI
Azionabilità del diritto al giudice naturale, rule of law e dignità dell’ordine giudiziario
Abstract
(12.05.22)
The right to a
natural judge previously established by law is currently recognised as one of
the cornerstones of the rule of law in Europe. In the light of a number of
judgments pronounced on the subject by supranational courts, the essay examines
the paradox of the Italian situation in which, in the face of the formal
recognition of the strong conception of this right and of its decisive role in
the construction of the democratic judicial system, domestic case law has
denied a specific and effective jurisdictional remedy for its protection to the
person party to the judicial proceedings. In particular, the essay aims to lay
the groundwork for overcoming this paradox on the basis of the rediscovery of
the foundation of the right under consideration on that value of the dignity of
the judicial order which, in its being a direct emanation of the rule of law,
makes it possible to define a new model of the right to the natural judge
previously established by law which is indispensable to ensure the trust that
people must be able to place in the judicial system in a democratic society.
ANTONIO RUGGERI
Abstract
(12.05.22)
The paper
highlights the importance possessed by the historically oriented interpretation
in order to grasp the essence of the fundamental principles of the
constitutional order and therefore focuses on the need, expressed by the same
principles in question, of their updating with the forms of constitutional
revision where no longer the resources offered by interpretation help, in order
to be able to assert oneself at best, under the objective conditions of the
context. Finally, he focuses on the importance possessed by cultural habits
widespread in the social body that vigorously push for the revision of the
Charter, as was recently the case with the changes made to Articles 9 and 41.
FEDERICO GIRELLI
L’“ordinanza Cappato” e il fattore tempo nella giustizia
costituzionale
Abstract
(09.05.22)
The ordinance n. 207 of 2018 of the Constitutional Court inaugurates an
entirely new decision-making technique. It does not simply contain a warning
addressed to the legislator but punctually identifies the illegitimacy profiles
of the contested legislation and establishes a deadline within which the
legislator can remedy the defects found. In other words, it outlines the
contents of the decision that will be adopted in the event of inaction by the
legislator. Therefore, constitutional justice is rendered "in two
steps": once the term elapsed, the Court decides definitively since the
legislator did not use of the time he had.
FRANCESCO TORRE
(09.05.22)
Abstract
The paper analyses the recent Constitutional Court, ruling no. 67 of 11 march
2022, concerning the recognition of family benefits (ANF) for non-EU
citizens. However, in this judgment, the Court did not effectively declare directly the unconstitutionality of the Italian
rules on the ANF. Instead, it mandated
the Court of Cassation with the task of disapplying those rules. The present
work also seeks to offer a broader view of the connections between Judgment no. 67 and Judgment no. 54/2022 all of which appear to be
linked by a common thread.
AURORA VESTO
Capacità di autodeterminazione, disagio psichico e
rilevanza giuridica dei trattamenti sanitari
(09.05.22)
Abstract
This paper analyzes the individual’s self-determination capacity
within the health sector, with particular reference to
both mandatory health treatments (individually implemented) and mandatory
vaccinations. Under such circumstances, therapeutic self-determination is
weakened whenever the health of the individual, from one hand and of the
community, from the other one, appears to be compromised. Considering the
specific case, a significant role is actually played
by Artificial Intelligence, which with modern instruments, with regards to
specific cases of compromised physical fragility, may achieve a compensatory
function of the condition of human vulnerability. In fact, well-beingmay be achieved through interaction with technology,
as well; therefore, the category of legal capacity should be observed in the
light of the binomial “access-capacity”, the exclusion of which may finally
result in a potential damage to the individual’s health. The hermeneutic
approach takes place along the lines of the principles of subsidiarity and
solidarity in the axiological primacy of public health; in particular, the
principle of horizontal subsidiarity plays a preferential role in the
realization of the interest in well-being, which unfolds its effects in a
perspective of inclusion and enhancement of private autonomy. Furthermore,
within the balance between an individual and a collective interest, the concept
of health takes on relevance according to a solidaristic declination that does
not legitimize an “omnivorous” vision of the individual’s self-determination
(as recently noted by the Council of State), but which finds realization in a behavior teleologically oriented towards satisfying the
prevailing interest.
ALESSIA-OTTAVIA COZZI
Per un elogio del primato, con uno sguardo lontano. Note a Corte cost. n.
67 del 2022
(07.05.22)
Abstract
The Italian Constitutional
Court (ItCC) judgment no. 67 of 2022 is marked by two aspects.
Firstly, the recognition of primacy as the architrave of the European system
and its values, and at the same time the driver of the domestic system, in a
legal system in which the Courts assume and act as guarantors of reciprocal
rights and obligations. Secondly, the persistent vitality of disapplication,
the traditional way of guaranteeing the primacy of EU law, which the new
approach introduced by the ItCC’s decision no. 269 of 2017 had made less certain.
Arguably, the reasons for reaffirming the primacy do not depend on the case in
question, but on the need, in the face of the rule of law crisis and, today, of
a new war in the continent, to reaffirm the values on which the European Union
is based.
MARGHERITA CORVASCE
(04.05.22)
Abstract
The contribution intends to
analyze the Prime Minister’s presence in the judicial
review cases and highlight the problems raised by the participation of the Head
of Government in the constitutional judgment, still considered an
"enigma" by the doctrine. After examining the substantive and
procedural profiles of the subject of study, will be addressed the issue of the
relations between the Prime Minister and his legal representative - the State
Legal Service - and between the Prime Minister and the other constitutional
bodies - Council of Ministers and Parliament -, in the light of the provisions
contained in Law 400/88. The institution in question is characterized by
significant cognitive limits, generated by the impossibility of knowing the
preliminary phase of the question of constitutional legitimacy, which takes place
entirely within the Presidency of the Council, and of accessing the documents
that the Presidency sends to the defense, in the case
in which it opts to intervene in court. For this reason, in
order to investigate the conduct of the Prime minister in court, a case
study of the measures issued by the Constitutional Court in 2020 and 2021 was
carried out.
SIMONE FREGA
(04.05.22)
Abstract
The article regards a
judgment of the Italian Constitutional Court, which declares unfounded the request
to affirm unconstitutional the Article 11, c. 4-bis, of Decree-Law No.
179/2014, formulated by the Trento Tax Commission. Especially, the sentence
allows to explore a particular practice, which consists in a stipulation of a
contract between candidate or elected people and the politician party or
movement. This practice may not respect the principles of the Italian
Constitution in the field of political rights (such as, i.e., Articles 3 and 49
of the Italian Constitution) but, in any cases, it is certainly not an
appropriate practice
FRANCESCA MAURI
(03.05.22)
Abstract
The paper analyzes the decision 1/2022 of the Italian
Constitutional Court on the constitutionality of the gender-based selection of
boarding school educators. Focusing on the Court’s reasoning, the paper
investigates the relationship between the Constitutional court and the
legislator concerning sensitive issues requiring an interpretation of the
collective will
FRANCESCO ALBERTO SANTULLI
(02.05.22)
Abstract
With judgement n. 50 of 2022, the Constitutional Court
declared the inadmissibility of the referendum on the partial abrogation of the
felony of consensual homicide, provided for by art. 579 of the penal code.
Nevertheless, it is clear that public opinion believed
that the referendum would have had euthanasia as its object. This short article
intends to highlight the reasons followed by the Court to clarify how a new
legislation on the matter of the “end of life” cannot pass through the expulsion
from our legal system of a constitutionally necessary law – as art. 589
represents for the protection of vulnerable subjects – but requires an organic
measure, preferably by the Parliament.
Consulta OnLine (periodico online) ISSN 1971-9892