2025/III

settembre-dicembre

 

PARTE PRIMA

STUDI

AURORA MAGGI

(18.09.2025)

Oltre il limbo giuridico della persona minore: nota alla sentenza n. 68 del 2025 della Corte costituzionale

Abstract

This paper examines the Italian Constitutional Court’s recent ruling on the constitutionality of Article 8 of Law no. 40/2004 concerning the legal status of children born through medically assisted procreation (MAP) carried out abroad by same-sex female couples. The Court limited its analysis strictly to the child’s status (status filiationis), excluding broader questions such as the right to parenthood for same-sex couples or the prohibition of surrogacy. Central to the judgment is the best interest of the child, which serves as the sole criterion guiding the constitutional scrutiny. By excluding other intersecting yet distinct legal claims, the Court emphasizes the need for clear, focused evaluation of the child’s fundamental rights, especially in light of their heightened vulnerability. This methodological choice does not deny the relevance of other legal interests but underscores their irrelevance within the scope of this specific case. The judgment thus reflects a deliberate constitutional strategy to safeguard the child’s legal protection in an effective and timely manner.

 

 

GIAN PAOLO DOLSO

La Corte si pronuncia sulla detenzione amministrativa degli stranieri

(08.09.2025)

Abstract

The paper examines Judgment No. 96 of 2025, in which the Italian Constitutional Court, while acknowledging the unconstitutionality of administrative detention of foreigners for violation of Article 13 of the Italian Constitution, declared the questions inadmissible. The analysis critically addresses the use of evasive adjudicative techniques, the lack of reasoning on alternative remedies, and the distorting effects on ordinary case law.

 

 

SIMONE SCAGLIARINI

La Corte alza la posta in gioco sulle misure di contenimento della dipendenza da azzardo

(08.09.2025)

Abstract

In its decision 104/2025, the Constitutional Court declares the constitutional illegitimacy of the prohibition to offer in public establishments devices that allow access to gambling platforms. While agreeing with the merits of the decision, the operative part of which could in any case have upheld the prohibition on devices intended exclusively for gaming, the ruling contains ultroneutral and dangerous arguments, in that it legitimises the spread of gaming and aligns itself with the legislative trend towards ever greater liberalisation of the sector, to the serious detriment of the individual player’s and public health.

 

IGNAZIO TARDIA

Adozione internazionale e persona singola: additiva di principio, idoneità in concreto e ordine pubblico «esterno» (nota a Corte cost., 21 marzo 2025, n. 33)

(01.09.2025)

Abstract

The note analyses Italian Constitutional Court judgment No. 33/2025, which removes the status-based bar in art. 29 bis (1) of Law No. 184/1983 that excluded single persons from accessing the preliminary fitness procedure for intercountry adoption. The ruling reframes the constitutional-conventional parameter (art. 2 Cost. + art. 8 ECHR) in terms of positive obligations, applies a "strong" proportionality test (suitability/necessity/strict proportionality), and narrows the margin of appreciation where identity and private life are at stake and a European consensus exists. The decision does not create a subjective right to parenthood: it restores the centrality of the individualized assessment under art. 6 (age, affective fitness, ability to care and maintain), treating the foyer stable et harmonieux as a functional criterion rather than a proxy for marriage and giving structural weight to the applicant's family-social network. Systemically, the ruling aligns domestic law with the 2012–2013 reforms (unity of the status filiationis), mitigates export/import asymmetries in the 1993 Hague framework, and coheres with the "law of families" and the "right to family".