Consulta OnLine (periodico online) ISSN 1971-9892
















Siamo alle porte della quarta “incostituzionalita’ prospettata”? Qualche osservazione in attesa della decisione sull’ordinanza di rimessione n. 5 del 2023



Waiting for the Constitutional Court to rule on the constitutionality of the art. 18 of the law no. 354/1975 (which prevents the inmate from carrying out intimate conversations, even of sexual nature, requiring visual control by the custodial staff), the paper wants to analyze the discussion during the public hearing that took place on December 5th. The aim is to underline few aspects which could be important for the Court's choice of the decision technique.




Attualità della riflessione kelseniana sulla giustizia costituzionale



This paper examines an influential essay by Hans Kelsen that appeared in 1928 on the subject of constitutional justice: ‘La garantie juridictionnelle de la Constitution (la justice constitutionnelle), Revue du droit public et de la science politique, 1928’. The aim of this paper is to verify the contribution made by Hans Kelsen’s study in relation to problems concerning the judicial review of legislation. The 1928 essay turns out to be very rich in indications. There are indications of general profiles, but there are also indications relating to the procedure of judicial review of legislation. What emerges is Kelsen’s marked attention to the problems of access to constitutional justice and particular attention to the procedural aspects of the judicial review. The usefulness of going back to the essay by the great jurist thus appears evident both for a better understanding of the functioning of systems of constitutional justice and for reasoning about them from a “de jure condendo” perspective.




Il tempo del dolore e le ragioni della giustizia. Alessandro Manzoni, il costituzionalismo, l’avvenire



In The Betrothed (i.e. Promessi Sposi) – a work beloved by Goethe and appreciated by the Anglo-Saxons; unloved by the Italians –, Alessandro Manzoni indicates what are the iron rules of human action and their implications when people live together in society. Especially, when injustices increase the pain, which the Constitutions would like to mitigate at least.

Through the main characters of the historical novel, lessons are exposed, with exceptional smartness and depth of thinking, that identify the essential core of citizenship education. Without it, there is no future for Constitutions and Charters of Rights, in which the relationship between power and freedom seems to be fixed, in a balanced way. Between power and justice.




Brevi considerazioni sul comunicato della Presidenza della Repubblica del 1° dicembre 2023



The Article focuses on Press release «The President Mattarella has promulgated the DDLon cultivated meat», 1 December 2023, and underlines a possible and concrete presidential role in euronational co-legislation.




Riforma costituzionale (premierato elettivo) o riforma elettorale (maggioritario con designazione del premier)?



The article contests the constitutional reform which introduces the direct election of the premier and instead calls for the adoption of a efficient and comprehensive electoral law with “designation of the premier”.




Prospettive sulla valorizzazione dei dati personali in ambito pubblico



The paper delves into the economic value of personal data, focusing not on the private sector dominated by Big Digital Companies but on the public sector. In this context, the term "valorization" of data is considered more suitable than "monetization." The discussion includes two examples of personal data use in the public sector and references recent European regulatory developments on data governance, including the emergence of data altruism. The aim is to assess how public entities can leverage the informational value of personal data while upholding the fundamental rights and freedoms of individuals.




“Questo matrimonio non s’ha da fare”. The introduction of civil marriage in Italy, France and Spain between the Catholic Church's reactions and State legislation



Pre-Unitarian Italy struggled to implement the formalization of marriage mandated by the Council of Trent. The push for civil marriage over religious marriage caused tension with the Church. Italy aimed to assert its secular sovereignty post-unification, differing from France and Spain in their approaches to regulating matrimonial matters.




Il premierato elettivo è la strada giusta? La lezione di vent’anni di elezione diretta dei Presidenti di regione



The paper explores the Constitutional Reform project aiming to introduce direct election of the Italian Prime Minister. The author begins by describing the evolution of this parliamentary form of government then attempts to draw possible insights from the practice of direct election of the Regional President which regions have been experiencing for the last two decades.




La riforma Meloni e le sue stranezze, al bivio tra evoluzione istituzionale ed involuzione autoritaria



The paper highlights some oddities inherent to the Reform Bill aimed at introducing the direct election of the President of the Council of Ministers, containing provisions likely to pave the way for unpredictable outcomes, possibly even leading to an overall regulatory involution.




L’effettività del suffragio tra astensionismo e nuove modalità di espressione alla luce dei principi costituzionali



After a brief introduction on the institution of political representation, the growing phenomenon of abstentionism during electoral consultations is highlighted. Among the various “types” of abstentionism identified in the Libro bianco sull’astensionismo published in 2022, attention is focused on the so-called involuntary abstentionism. A reflection then follows on the difficult balance between respecting the characteristics of the right to vote, as enshrined in Article 48, second paragraph, of the Constitution, and the ineffectiveness of its exercise by some voters. This balance is then examined in relation to various alternatives in the manner of expressing vote, evaluating whether the potential expansion of the electorate able to cast their vote may compromise the principles of personality, equality, freedom, and secrecy.




Il diritto costituzionale alla «non radicale inintelligibilità» delle disposizioni



The article focuses on the value of legal certainty in the Italian legal system, in the light of some recent rulings of the Italian Constitutional Court. These decisions seem to have affirmed a constitutional right to the 'non-radical unintelligibility' of regulatory provisions. In this sense, the Italian Constitutional Court seems to have intended to determine the threshold of regulatory uncertainty that can be tolerated in our legal system, while also confirming that the constitutional process can be the place in which to judge the quality of laws, in light of the principle of reasonableness.




L’Enciclica Pacem in terris come Carta dei diritti (spunti per una riflessione)



The paper examines the structure and content of a genuine and contemporary charter of rights within the Encyclical "Pacem in Terris." It underscores certain similarities with the French Declaration of 1789 and, most notably, with the UN Charter of 1948. However, the paper also emphasizes the profound ontological differences between the Pontifical document and the two secular charters.




Pace e dignità, nella Pacem in terris e secondo Costituzione



After recognizing that the value of peace is not exclusively limited to the international context, as might be inferred from Article 11 of the Constitution, but also holds significant importance within the domestic context, the text emphasizes the interdependence of peace and dignity, to the extent that they ultimately merge into a single concept in human experience. Consequently, the text firmly condemns instances of constitutional discontinuity within “Pacem in Terris” and underscores the essential role of the right-duty of resistance in upholding allegiance to the Republic. Finally, it underscores that the essence of dignity is most profoundly appreciated through the lens of solidarity, particularly as it evolves into brotherhood. This leads to the realization that the genuine and profound significance of dignity is best understood, above all, in relation to peace, just as the meaning of peace becomes clear in the light of dignity.




Spazio digitale e modelli di regolazione



The paper reflects on the relationship between the Internet and its rules, with particular attention to the evolution of the models used over time. The objective is to understand what the role of regulatory states and of private entities in the future that should be.




Presidente del Consiglio, Ministri e doppia cittadinanza: tra “conflitti di fedeltà” e apertura internazionale



The article studies the constitutional issues connected to the possible case of a President of the Council (or a Minister) with double (or multiple) citizenship. The issues are framed in the context of the constitutional duties of the members of the Government in the Italian constitutional system (that require a special level of allegiance to the Republic) on the one hand, and of the international openness and pluralism that the Italian Constitution embraces on the other. The article argues that while it is not possible to infer a general rule on the matter at hand from the Constitution, single problematic cases should be handled within the perimeter of the constitutional controls on national policy.




Diritto all’impianto e revoca del consenso del padre. Nel “labirintodella legge n. 40 del 2004



Starting from the analysis of Constitutional Court No. 161 of 2023, the paper proposes a reflection on the difficult balance between the woman's right to the implantation of the embryo and the man’s withdrawal of consent following the termination of the affective relationship.

The author focuses her attention on the numerous jurisprudential changes undergone by Law No. 40 of 2004, which make it necessary to undertake extensive reform efforts, also to allow single women access to medically assisted procreation.




La Costituzione sotto stress e la piramide rovesciata, ovverosia le più vistose torsioni a carico della separazione dei poteri e del sistema degli atti espressivi di pubbliche funzioni (note minime su una spinosa questione)



The paper underscores the significant distortions in the institutional model that have given rise to a potentially irreversible crisis in the principle of separation of powers. Specifically, we examine whether structural shortcomings in political representation can be addressed through expanded uses of jurisdiction. Contrary to popular belief, it's emphasized that the real normative strength of acts seems to increase as one descends the hierarchical ladder that defines the system. This is evidenced by the prominence of the role played by circulars in administrative practice. Lastly, we explore potential remedies for this situation, at least in part.




Vaccini e riserva di legge (brevi riflessioni a margine di Corte cost. sent. n. 25 del 2023)



The Constitutional Court, in Judgment no. 25 of 2023, returns to the subject of compulsory vaccination. This short paper critically analyses the fundamental argumentative junctures of the decision, dwelling on the way in which the object and function of the reservation of the law provided for in Article 32, paragraph 2 of the Constitutional Constitution are thematised.




Prospettive evolutive dell’insindacabilità delle «opinioni espresse»: una proposta di modifica dei regolamenti parlamentari



The paper analyses the issue of parliamentary immunity in the context of digital society and modern forms of political communication. In particular, it is argued that the thesis that anchors the immunity of opinions expressed in the presence of a prior parliamentary act, of which the Member of Parliament could limit himself exclusively to divulging its contents extra moenia, needs to be updated and rebalanced, which may find space through an amendment to parliamentary rules.




La corsa al trilogo ovvero la “prima parola” è quella che conta (recenti tendenze a partire da Corte Cost. sentt. nn. 54 e 67 del 2022)



The paper analyses the Constitutional Court, rulings no. 54 and no. 67 of 2022, concerning the recognition of welfare benefits for non-EU citizens. The present work seeks to offer a broader view of the connections between these judgements all of which appear to be linked by a common thread. In both sentences, the Constitutional Court arrived at two different outcomes of acceptance in the first, and rejection in the second, affirming the due respect for the principle of non-discrimination in access to such benefits. The reason why the Constitutional Court arrived at two diametrically opposed approaches, even though the same reference parameter (Article 12 of Directive 2011/98/EU) was invoked, is to be traced back to whether or not the referring judges invoked the Charter.




La Corte e la tecnica legislativa



The judgment n. 110/2013 represents a fundamental step in the jurisprudence on legal drafting, as for the first time the Court affirms that the unclearness of the law determines its unreasonableness (and, consequently, its illegitimacy). The paper identifies further parameters that lead to the same conclusion reached by the Court and emphasises the need, from now on, to define the cases in which the obscurity of the law is so severe as to determine its unconstitutionality. This activity is to be performed by the Court with extensive use of its self-restraint.




Corte costituzionale e legislatore: il bilanciamento tra la garanzia dei diritti ed il rispetto del principio di separazione dei poteri



The essay collects the conclusions drawn at the Conference in memory of Alessandro Pizzorusso (Pisa, December 15, 2022) and primarily focuses on the topics of the relationship between the Constitutional Court and the legislature and on the decision-making techniques of the Court itself, examining the multiple implications of these aspects also from the standpoint of the separation of powers.




Nel tempo e nello spazio: l’eredità di Serio Galeotti sui nuovi doveri di solidarietà



In Serio Galeotti’s papers on the value of solidarity, he provides a definition of solidarity as a sense of brotherhood, mutual assistance, and support in times of difficulty, a concept worthy of reflection in our current context. The intervention aims to answer the question of who the recipients of the principle of solidarity are. The reflection focuses on two different perspectives.

First, in terms of “time” and taking our cue from the recent constitutional reform of Article 9, which expressly mandates protection of the environment “also in the interest of future generations” we would like to explore the breadth of the principle of solidarity, asking, in particular, if exists a general principle of intergenerational solidarity, which requires the Legislature to balance the interests of those who will come after us not only with regard to the environment, but also with regard to economic resources, social security and artistic goods.

Reflection then focuses on environmental issues and the potential of the principle of solidarity between living generations inhabiting different places on Earth, even beyond state sovereignty. To this end, we want to reflect on what relationship exists between solidarity and “space”, to see if it is possible to overcome the thesis that conceives of duties of solidarity only within a state, at least in reference to global events such as climate change.  Starting from the assumption that man is nowadays the main culprit for climate degeneration, environmental protection has become a legally relevant question of justice, also because some countries, generally those least responsible for climate-changing emissions, are the most affected by the negative effects of climate change.




Fonti e “non fonti” parlamentari. Il difficile percorso della Corte costituzionale sulle competenze del Parlamento in materia di vitalizi



With sentence no. 126 of 2023, the Constitutional Court decided on a conflict of attribution raised by the Chamber of Deputies against the Tribunal of Lecce which had ordered the forced execution of the social security treatment in favor of a former parliamentarian, without applying a regulation adopted on the subject by the same Chamber. The constitutional Judge considered that the jurisdictional provision violated the autonomy recognized to Parliament.

The comment notes that the Court's decision took place without the participation of the third creditor who had acted to obtain payment of his credit, the Agenzia delle Entrate in the matter. And it is criticized that was requested the application of an internal act of the Chamber which is not published. The fact once again raises the problem regarding the basis of the parliamentary power to decide on one's own organization and activity when third party positions are involved. In criticism of the constitutional jurisprudence that has always identified this foundation in the sovereignty of the Parliament, the comment proposes to trace it in the free decision of those who agree to submit to the same parliamentary power.




Ha una forma la forma di governo?



The paper highlights the lack of a clearly and fully delineated form of government. In fact, the guidelines provided by the Constitutional Charter, which are based on two key principles - first, a clear distinction between political management bodies and guarantee bodies, and second, the centrality of Parliament - are evidently contradicted by deviant practices. These are characterized by dramatic shifts,

confusion, and continuous, not insignificant changes.

The question arises as to whether this form of government can achieve a stable identity, and what remedies might be suitable for achieving this stability. This is especially relevant in light of forthcoming significant reforms aimed at both institutional rules and system corrections to ensure policy regularity.





Consulta OnLine (periodico online) ISSN 1971-9892