2024/I

gennaio-aprile

 

 

Parte Prima

STUDI

 

 

ANTONINO SPADARO

I confini della Corte: dal “triangolo delle Bermuda” al “quadrilatero costituzionale”

(29.04.2024)

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.

 

 

Nota minima alla sentenza n. 65 del 2024 (quanto sono elastiche le norme del processo davanti alla Corte?)

(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

La controfirma ministeriale e il gioco dell’oca, ovverosia quando si modifica la Costituzione per tornare… all’originario dettato (nota minima su una vicenda anomala)

(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

I senatori vitalizi come espressione del diritto costituzionale “soggettivo” ed “istituzionale” della cultura

(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

Il diritto all’affettività-sessualità in carcere e la sentenza n. 10 del 2024. Cronistoria di una rivoluzione, costituzionalmente orientata, che non attende più di essere compiuta

(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

L’obbligo motivazionale nell’esercizio della prelazione culturale (riflessioni a margine di Cons. Stato, Sez. V, 11 dicembre 2023, n. 10651)

(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

Ancora in tema di tecniche di risoluzione delle antinomie tra norme interne e norme sovranazionali self-executing (a prima lettura di Corte cost. n. 15 del 2024)

(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

Costituzione e suicidio assistito. A proposito della verifica del rispetto del presupposto del "trattamento di sostegno vitale" indicato nella sent. n. 242 del 2019 della Consulta

(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

Qualche considerazione sul limite dell’ordinamento civile, in relazione a discipline legislative regionali aventi ad oggetto l’azione amministrativa, svolta facendo ricorso a moduli privatistici

(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 limi

 

 

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

Finalmente riconosciuto il diritto alla libera espressione dell’affettività dei detenuti (a prima lettura di Corte cost. n. 10 del 2024)

(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

Evoluzione degli strumenti tecnologici di comunicazione e autorizzazioni ad acta nei confronti dei parlamentari: i chiarimenti della Corte costituzionale sulla nozione giuridica di “corrispondenza”

(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

Le proposte di leggi regionali sull’aiuto al suicidio, i rilievi dell’Avvocatura Generale dello Stato, le forzature del Tribunale di Trieste e della commissione nominata dall’azienda sanitaria)

(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.

 

 

LAURA BUFFONI

Le regulae iuris e il diritto costituzionale (a proposito di S. NICCOLAI, Principi del diritto, principi della convivenza. Uno studio sulle «regulae iuris», Napoli, Editoriale Scientifica, 2022)

(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.

 

 

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).

 

 

RECENSIONE

Angioletta SPERTI, Constitutional Courts, Media and Public Opinion (Oxford, Hart Publishing, 2023, pp. XVII+234)

(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.

 

 

 

 

 

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.