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”
(29.04.2024)
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.
(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 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
(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.
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.
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
(08.01.2024)
Abstract
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