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