Consulta OnLine (periodico online) ISSN 1971-9892
2024/I
gennaio-aprile
Parte Prima
STUDI
ANTONINO SPADARO
I confini della Corte: dal
“triangolo delle Bermuda” al “quadrilatero costituzionale”
(29.04.24)
Abstract
Four factors, above all, affect Constitutional Courts
nowadays: constitutional texts, international and supranational Courts’
decisions, social conscience and public opinion. While the Courts must take
social conscience in due account, they should not be influenced by public
opinion.
FRANCESCO IANNELLI
Considerazioni sul dovere
contributivo (a margine di alcune pronunce della Corte costituzionale)
(29.04.2024)
Abstract
The essay analyses the ordinance n. 165/2021 of the
Constitutional Court, which is in accordance with the precedent sentence n.
288/2019 in the interpretation of the contributary duty expected by the article
53 of the Constitution. This is an as social, political, and economic duty of
solidarity which characterizes Italian legal system, emphasizing the connection
between articles 2 and 3 of the Constitution. As a result, the discretional
choice by the Legislator should be correct because the principles of welfare
State have been correctly balanced.
(23.04.2024)
Abstract
In the case note, the author makes some consideration
focused on whether or not the deadline for bringing
the Council of State to constitutional Court is respected and on the consequent
legal issues.
ANTONIO RUGGERI
(08.04.2024)
Abstract
The essay is inspired by an amendment aimed at
innovating Article 89 of the Constitution, granting the President of the
Republic the authority to issue his own acts without the requirement of
government countersignature. It aims to underscore how the current provision
already affords this opportunity to the Head of State. Therefore, the amendment
in question concerns the Living Constitution, rather than solely the existing
one.
GIACOMO MENEGATTO
(19.03.2024)
Abstract
This paper aims to reflect on the role currently
played, within the Italian legal system, by life senators appointed by the
President of the Republic, especially considering the constitutional revision
proposal presented by the current Government, which entails the repeal of
Article 59, 2nd paragraph, of the Constitution. In particular, starting from
the analysis of the work carried out in the Constituent Assembly, it will focus
on the relationship between this particular institution and the general cultural
principle (enshrined in Articles 9 and 33 of the Constitution), which should
serve as an interpretive tool in order to attribute a correct meaning to the
problematic “social sphere”, often invoked, throughout the republican history,
by Heads of State to include politicians among life senators.
ANTONIO RUGGERI
Separazione dei poteri e
dinamiche della normazione
(18.03.2024)
Abstract
The paper argues for the necessity of reevaluating the
principle of the separation of powers in light of both
the advanced process of supranational integration and the significant
experiences of standardization. These experiences support the notion that the
traditional theoretical frameworks of the principle are no longer applicable.
There is confirmation of the current state of ambiguity surrounding
institutional roles, particularly due to the apparent and increasing trend of
oversight bodies evolving into political decision-making entities, and the
equally evident marginalization from the decision-making process of the body
that embodies the chosen form of government by the Constituent Assembly.
GIUSEPPINA BARCELLONA
Delega fiscale e riserva di
legge: prime note
(13.03.2024)
Abstract
Law No 111 of 2023 containing the delegation to the
Government for tax reform offers an opportunity to return to the reservation of
law provided for in art. 23 of the Constitution. Starting from the
reconstruction of the ratio of the constitutional provision, the article
identifies the “boundary” that distinguishes the “regulatory choices” reserved
to the parliamentary legislator from those that, instead, can legitimately be
the subject of a delegation. On the base of this “boundary” and of the perspective
it offers, the 'guiding principles and criteria' of law No 111 are analysed and
their limits are highlighted
VERONICA VALENTI
(11.03.2024)
Abstract
The essay analyzes the
Constitutional Court's ruling n. 10 of 2024, which recognizes the inviolability
of the right to affectivity of detained persons and the conditions under which
it can be exercised in prisons. At the same time, it analyzes
the consequences of this decision and the public debate about the reform of the
prison system, in order to implement what Article 27
It. Const. states.
ARMANDO GIUFFRIDA
(11.03.2024)
Abstract
The Author proposes an updated analysis of the
jurisprudential debate on the obligation to justify the administrative
provision for the exercise of cultural pre-emption, pursuant to art. 62 of the
Cultural Heritage and Landscape Code. The essay offers an examination of the
matter from an evolutionary perspective, in light of a
very recent ruling from the Fifth Section of the Council of State considered
particularly significant for the reconstructive purposes of the institute in
question.
ANTONIO RUGGERI
(17.02.2024)
Abstract
The case note to decision no. 15 of 2024 of the
Constitutional Court, highlights the recurring tendency in the jurisprudence of
the Consulta to minimize procedural rules in favor of
the affirmation of pre-eminent systemic values. In the present case, the
legality of the European Union prevails and the Court, in paying attention to
respect for the respective institutional roles, accentuates its preventive role
for the protection of these values. it is, therefore, the responsibility of the
legislator to derogate from the criterion of relevance, while the judges are
responsible for keeping it at the service of both the Constitution and European
integration.
FRANCESCA PIERGENTILI
(16.02.2024)
Abstract
The paper offers observations on the requirements
indicated by the Constitutional Court in its 2019 ruling no. 242, for the non-punishability of assisted suicide. In
particular, a number of critical interpretative issues are noted, as to
the condition, indicated with the letter c), of being kept alive by means of
life-support treatments.
ROBERTO BIN
La sostituzione dei giuristi con tecnici: i
cambiamenti indotti nella pubblica amministrazione
(09.02.2024)
Abstract
The paper begins by acknowledging the growing urgency
of addressing the relationship between the discretionary activities of public
administration (PA) and technical-scientific assessments. This issue is
particularly pertinent in an era where legislation is increasingly entangled in
matters characterized by a high level of scientific complexity and
technology-related concerns. Building on this premise, the study delves into
the consequences of this trend, specifically focusing on the evolving role of
jurists,
particularly in the context of crafting regulatory
documents. Indeed, technicians are inclined to distance themselves from legal
aspects and gravitate toward employing different acts and languages.
Concurrently, constitutional judges tend to subject acts, even those with a
high level of legitimacy, to evaluative parameters. This dynamic poses a
challenge for judges who struggle to navigate this complex landscape.
ELISA CAVASINO
La Corte mediatica e la
Corte attivista: i nuovi volti della giustizia costituzionale italiana
(09.02.2024)
Abstract
The Italian model of constitutional justice shows both
static and highly dynamic traits. The latter in particular concern the
communication of the Court and the dynamics of the incidental judgement. An
idea of a 'representative' Court of social identities still without
representation seems to emerge in parallel with a programme of intervention
aimed at rendering constitutional justice in any case. All this not only
recalls themes and problems well known to studies on constitutional justice
from Kelsen onwards, relating to the political or jurisdictional nature of
Constitutional Courts, but also forces us today to question ourselves anew on
the Court's prerogatives, on the exercise of its normative powers, and on the
margins within which the rules and principles of the judgement on laws can be
flexible and adaptable to the pursuit of the goal of 'rendering constitutional
justice'. The Author proposes a cautious approach on the communication side, to
be based more on the principle of publicity than on those of transparency,
representativeness or accountability, and a recourse to the Court's normative
powers to regulate the communication strategy. With regard to "rendering
constitutional justice", the author underlines the normative and systemic
limits that the pursuit of this aim encounters, attempting to identify even
within the most recent constitutional jurisprudence pronouncements that may
constitute models of reference (Constitutional Court no. 54 of 2022) or
critical points of the system of constitutional guarantees of supreme
principles (Constitutional Court no. 192 of 2023) in the debate on the activism
and repositioning of the Court.
DAMIANO FLORENZANO
(09.02.2024)
Abstract
The constitutional Court, in the judgment n. 132 of
2023 returns to apply the limit of the “Ordinamento
civile”. This paper critically analyzes the
fundamental argumentative points of the decision and focuses on the problematicity resulting in the extension of the
application scope of the limit.
FELICE BLANDO
Politica riformatrice, forme
di governo, sistemi elettorali
(05.02.2024)
Abstract
A correct approach to the problem of constitutional
reform should avoid excessive dramatization of the same. In other words: from
settings that elevate «governability» to an absolute value, representing the
current difficulties, which are nothing new today, as the prelude to a
catastrophic final solution. In this essay we intend to counter the thesis of
those who claim that we are facing a crisis of the parliamentary form of
government, to which the emergence of a personalized command function would be an
alternative. In reality, what is establishing itself
in our constitutional reality is an increasingly high valorization
of the charismatic function which is to a large extent the effect of the
disappearance of a certain type of the political class.
ANDREA BONOMI
La forma è sostanza: quando
una legge è irrimediabilmente oscura e come tale incostituzionale?
(05.02.2024)
Abstract
The paper starts from the fact that for a long time in
the doctrinal field, in the jurisprudential context and also
when some Presidents of the Republic put some acts off to the Parliament, has
already appeared the principle which dictates that laws must not be
irremediably obscure. The really innovative item -
represented by the recent judgement no. 110/2023 of the Constitutional Court -
lies actually not so much in the declaration of unconstitutionality of a
radically obscure law because of a conflict with the parameter of
reasonableness, but above all in the identification of the limit beyond which
the law can be considered irremediably unintelligible.
ANTONIO RUGGERI
(29.01.2024)
Abstract
The short paper focuses on the innovations contained
in the ruling of the Constitutional Court n. 10 of 2024, which widely recognized
the right to affection of detained people, also underlining the difficulties of
implementation in various respects.
ROBERTO BIN
L’Unione europea rispetta i principi del rule of law?
(27.01.2024)
Abstract
The paper argues and demonstrates that, on the
"internal" side of the EU, the principle of the rule of law does not
appear to pose a problem and does not necessitate strict control by the Court
of Justice. Instead, the Court is vigilant in ensuring full compliance with the
rule of European law within internal systems. The consequence is a certain
destabilization of the internal order of the States, where normative acts,
despite being consolidated, must yield to conflicting European rules. Meanwhile,
the "values" traditionally associated with the rule of law,
consistently cited by the Court of Justice, appear to undergo a significant
challenge due to its interpretation.
VALENTINA PUPO
(27.01.2024)
Abstract
The essay examines freedom and secrecy of
correspondence in relation to technological developments in the field of
communications, through the analysis of the Constitutional Court’s dec. n.
170/2023, which resolved a conflict of attribution between the Senate of the
Republic and the Judiciary, on the perimeter of parliamentary prerogatives,
pursuant to art. 68, c. 3, Cost., particulary about
the authorization procedures for the seizure of the parliamentarian’s
electronic correspondence and instant messaging. Following European Court’s
jurisprudence, the Constitutional Court extends the concept of “correspondence”
to new forms of digital communication, outlining how the constitutional
guarantees arising from art. 15 of Constitution are also redundant in the most
specific form of functional safeguard of the parliamentarian’s freedom of
communication and in the legitimate procedural modules for its possible
limitation.
ANNA PIROZZOLI
Intelligenza artificiale,
sviluppo sostenibile e ambiente
(25.01.2024)
Abstract
The growing applications of artificial intelligence in
the humanities show how it can influence the balance between the social,
cultural, economic and environmental
dimensions. This article aims to analyse the role of
artificial intelligence and its impact in the environmental context, also from
the perspective of achieving the Sustainable Development Goals (SDGs) of the
United Nations 2030 Agenda.
NICCOLÒ FERRACUTI
Le leggi-labirinto e la
crisi della certezza del diritto
(22.01.2024)
Abstract
A law of poor quality is a problem for the legal
system, as it confuses the citizens, like the labyrinths described by Jorge
Luis Borges. But uncertainty is a cost, both political-institutional, because
it alters the proper functioning of the democratic circuit, both economic,
because bury the country a resource to compete. We have long accepted the idea
that every law is physiologically obscure: indeed, a margin of uncertainty is
even desirable, in order to avoid applicative
automatisms that could be harbingers of inequality. This article aims to define
the boundary between mere and radical obscurity, trying to trace the causes of
the poor quality of the law and the crisis of legal certainty that ensues, also
imagining possible remedies.
GIOVANNA RAZZANO
(12.01.2024)
Abstract
The paper critically analyzes
the regional law proposals aimed at introducing the right to assisted suicide,
on which an opinion from the State Attorney General also intervened, contesting
the relative legislative competence. It also analyzes
an order from the Tribunal of Trieste and the report of a commission appointed
by a healthcare administration in the Friuli Region, in reference to the
situations indicated by the ruling of the Constitutional Court no. 242/2019,
regarding the crime of aiding suicide and the non-punishability
of the same under certain conditions.
RECENSIONE
(08.01.2024)
Abstract
The paper reviews the book by Angioletta Sperti,
Constitutional Courts, Media and Public Opinion (Oxford, Hart Publishing,
2023), an innovative and organic study on the constitutional implications of
the revolution which has affected the institutional communication of the
constitutional courts in recent times and whose the basic thesis is that the
phenomenon could not be traced back exclusively to the need to keep up with
technology but to a traditional need of the courts to establish a peculiar
relationship with public opinion.
ANTONIO D’ATENA
Tutela ambientale e
autonomia differenziata
(08.01.2024)
Abstract
The paper highlights that the evolution undergone by
"environmental protection" as a result of
the case-law of the Constitutional Court and as a result of the Constitutional
Law no. 1/2022 does not leave ample space for the regional asymmetry envisaged
by the art. 116.III of the Constitution. It also underlines the opportunity to
focus attention on the concrete content of the agreements between the State and
the Regions, rather than on the compatibility of differentiated autonomy with
the Constitution (which art. 116.III deprives much of its consistency).
LAURA BUFFONI
(08.01.2024)
Abstract
The essay takes its starting point from Silvia Niccolai's
book, Principi del diritto, principi della convivenza. Uno studio sulle «regulae iuris», which,
based on the subjective foundation of law in man's moral being, proposes an
interpretation of the Constitution according to the regulae
iuris of the topical tradition. The Author investigates its presupposed
conception of the constitution and its consequences in the theory of
constitutional interpretation and in the practical, judicial reasoning, as well
as its compatibility with positive constitutional law. From there moves to pose
differently the question of the method of constitutional law science, which
depends on the decision that grounds positive Constitution.
Parte Seconda
RICERCHE E MATERIALI
FRANCESCA MUNEROL, MARGHERITA
ANDREAGGI, GIOVANNI BOTTO, MATTEO TIMO, MARCO ALTAMURA, FRANCESCO AVANZI,
EDOARDO CREMONESE
I provvedimenti avverso la siccità come
“seme di conflitto”
(11.01.2024)
Abstract
This paper reconstructs the
activities carried out by Researchers of CIMA Foundation, with the support of
UNIGE (Department of Administrative Law), between 2022 and 2023. It analyzes the measures to face the prolonged drought that
hit Italy in summer of 2022. In particular, we have
collected, mapped and studied the national, regional and municipal legal acts
produced by the Regions belonging to the Po River Basin, to deal with the
serious water shortage.
The municipal ordinances
are conclusively considered key indicators that suggest that Regions belonging
to the Po River Basin were in 2022, but they will probably also be in the near future, the scene of conflicts about the
management of water resources.
Consulta OnLine (periodico online) ISSN 1971-9892