Consulta OnLine (periodico online) ISSN 1971-9892
2025/II
maggio-agosto
Parte Prima
STUDI
ROBERTO BIN
Decreti-legge
"anomali" e difesa giudiziale dei diritti (in margine alla sent. 146/2024
della Corte costituzionale)
(06.07.2025)
Abstract
"Anomalous" decree-laws and judicial defense of rights
(regarding Constitutional Court ruling 146/2024).
The most recent constitutional jurisprudence seems to open the door to a
constitutionality review of the prerequisites that the Constitution sets for
the legitimate use of decree-laws by the government. The turning point lies in
the assertion that constitutional rules on the system of sources and the form
of government condition people's right to legal certainty.
ANDREA MOLFETTA
Abstract
This paper set out to analyze the impact of the Covid-19 health
emergency on the Swedish constitutional system and the Governments role in
epidemiological management. After providing a general overview of the Nordic
legal system, the article focuses on the influence of the Public Health Agency,
with the Riksdag, in Swedens political action, thus highlighting the
divergences with the pandemic counteracting model adopted in Italy.
MARIALIBERATA DI FEO
Una
questione di legittimità costituzionale sull'ammissibilita' dell'eutanasia ope
iudicis (04.07.2025)
Abstract
The essay analyzes the constitutional question raised by the Florence
Court (order no. 97/2025) concerning the legitimacy of Article 579 of the
Italian Criminal Code, which penalizes consensual homicide.
In particular, the author contends that the proposed equivalence between
assisted suicide (Article 580) and euthanasia (Article 579) undermines the
foundational principle of the inviolability of life, enshrined in the Italian
legal tradition. The article concludes that such a shift would not represent a
genuine advancement of personal autonomy, but rather a weakening of
constitutional protections aimed at affirming the inherent dignity and value of
every human life, regardless of condition or dependency.
INES GULLINO
L'Alta
Corte disciplinare: quale ruolo ed impatto sugli equilibri costituzionali? (30.06.2025)
Abstract
The article aims to investigate the contents of the draft constitutional
law A.C. 1917, currently under scrutiny by the Parliament, focusing on a
particularly debated profile of the reform project, namely the establishment of
a High Disciplinary Court.
One of the purpouses of this brief comment is to analyse the rationes
that, from the point of view of the proponents of the reform, would justify a
significant upheaval of the current institutional framework defined by the
Constitution, through the introduction of the new body.
At the same time, an investigation that proposes a study conducted
according to the criteria and the foundations of constitutional law (such as,
the balancing of the State's functions and the principles that follow), cannot
fail to include a comparison between this aspect of the reform and the
specificities of the current regulation of the disciplinary function of the
judiciary. The intent is that of analyzing the subject, so as to offer a vision
as wide and complete as possible of the location and functions of the
instituiting High Disciplinary Court, dwelling, at last, on the profiles of
doubtful compatibility of these contents of the draft reform with the
constitutional text. In this regard, in addition to the doubts related to the
composition of this body, substantially left to chance and its hierarchical
structure, a special space will be dedicate to the profile of the settlement of
the High Court as the sole disciplinary judge for magistrates and, finally, the
possible recognition of the latter's status as a special judge.
ELENA FALZEA
Principio
di autodeterminazione e PMA: evoluzione e limiti a margine della sentenza n.
69/2025 (30.06.2025)
Abstract
This paper examines the principle of individual self-determination in
the context of medically assisted procreation, with particular focus on the
Italian Constitutional Court's decision no. 69 of 2025. Following an analysis
of Constitutional Court's rulings concerning Law no. 40/2004, the paper
highlights the exclusion of single women from access to assisted reproductive
technologies, examining this restriction through a comparative lens with other
European legal systems that have embraced more inclusive approaches. The study
underscores the tension between traditional legal paradigms and evolving social
realities. Ultimately, it advocates for a realignment of national legislation
with constitutional principles, to better reflect the diversity and pluralism
of modern family structures.
ANTONIO RUGGERI
Abstract
The essay advances the thesis that the boundary between interpretative
techniques particularly those aimed at ensuring conformity with the
Constitution, international law, and supranational law and decision-making
techniques is inherently fluid and uncertain. Nonetheless, each technique finds
both its purpose and its limits in the pursuit of the greatest possible
realization of constitutionally protected goods or interests, especially
fundamental rights. The analysis then turns specifically and critically to the
arguments put forth by the Constitutional Court in support of prioritizing
centralized constitutional review over the direct application of self-executing
norms of the European Union in cases of dual preliminary relevance. The paper
highlights the shortcomings of this approach, suggesting that the most
effective solution may lie in the combined application of both mechanisms, a
result that, however, presupposes the adoption of legislative provisions
currently lacking.
GIUSEPPE MONACO
Sul
progetto di un nuovo assetto costituzionale della magistratura (23.06.2025)
Abstract
The essay analyses the constitutional bill with which the government
intends to achieve a clear separation of careers between the judiciary and the
prosecutorial magistracy and the simultaneous formation of two Superior
Councils of the Judiciary. The aim is to verify the necessity and the
opportunity of this reform in light of the constitutional and European
principles. The reform also affects the methods of formation of the two
Councils and provides for the establishment of a special Court to which jurisdiction
over the disciplinary liability of magistrates is delegated. The paper
therefore focuses on the effects of these changes with respect to the nature
and role of the CSM.
FRANCESCO CIRILLO
La
finzione della forma. Il primo Kelsen tra teoria e dogmatica (23.06.2025)
Abstract
This paper offers a
critical reassessment of the early Hans Kelsen, focusing on Hauptprobleme der
Staatsrechtslehre (1911) and the subsequent dogmatic writings particularly
Zur Lehre vom öffentlichen Rechtsgeschäft (1913), Reichsgesetz und Landesgesetz
(1914), and Über Staatsunrecht (1914). It reconstructs
the interplay between epistemological premises and public law dogmatics in the
formative phase of his theory. Rather than reducing Kelsen's work to a
philosophical or axiological stance, the analysis emphasizes a dual
contextualization: on one hand, the Kantian and Neo-Kantian legacies; on the
other, the methodological and conceptual challenges arising within
Austro-German legal scholarship at the turn of the century.
At its core lies a tripartite investigation into legal form: the
construction of the öffentliches Rechtsgeschäft as a normative act devoid of
will and intention; the distinction between federal and state law (Reichsgesetz
und Landesgesetz) as a problem of hierarchical coherence within plural legal
systems; and the paradox of state illegality (Über Staatsunrecht) as a
limit-case in the formalization of legal responsibility. These dogmatic
inquiries are not peripheral but serve as concrete test cases in Kelsen's
effort to purify legal science from psychological, sociological, and ethical
residues. Special attention is devoted to the transformation of juridical will,
the functional abstraction of the state as a center of normative imputation,
and the use of epistemic fictions to sustain the autonomy of legal reasoning.
Finally, the paper explores the epistemological status of legal science
as a "normative science", showing how its internal coherence depends
on conceptual figures (will, subject, normativity) that, while formally
excluded from empirical reality, function as necessary regulative conditions.
In this light, the "fiction of form" emerges as a constitutive
tensionnot a contradictionwithin Kelsen's early theoretical architecture.
VALENTINA CHIAUZZI-VINCENZO
SCIARABBA
Abstract
This essay addresses the issue of the application of conventional and
constitutional guarantees traditionally linked to criminal matters to formally
non-criminal measures. After some preliminary methodological considerations
aimed at clarifying the approach and the basic theses developed in the paper, a
reasoned reconstruction, accompanied by some more general reflections, of the
evolution of the relevant case law of the European Court of Human Rights is
performed in the first part of the work, focusing especially on the development
of the criteria and modalities by which this operation of extensive application
of the criminal law guarantees contained in the Convention has been carried
out. The evolution of the relevant case law of the Italian Constitutional Court
is then examined, paying particular attention to Judgment No. 68 of 2021 and
its implications. Some reflections are subsequently developed on the prospect
of a "variable geometry" reconstruction of the notion of criminal
matters, and of a graduation of the application of typically criminal
conventional and constitutional guarantees to formally non-criminal sanctions;
in support of this view, some remarks on the underlying reasons for the
original approach of the European Court are made, and a comparative analysis of
the interesting jurisprudence of the Inter-American Court on the same issues is
provided. Finally, some future research perspectives suggested by the outcomes
of the work are outlined.
MATTEO PAOLANTI
Abstract
This essay reviews the development of informational pluralism, with
particular attention to its external dimension, according to the classification
established by the Constitutional Court in ruling no. 826 of 1988. In the
recent decision no. 44 of 2025, the constitutional judges conducted a review of
the current state of Italian television broadcasting, with specific reference
to the system of incentive-based contributions provided by P.D.R. 146/2017 and
its subsequent amendments. Thanks to the rise of new editorial entities and the
digitalization of news distribution channels, the perspective has shifted:
pluralism can no longer be understood merely as the ability to express oneself
externally, but rather as the possibility of being heard by fellow citizens.
EMILIO CASTORINA
Riforme
della "giustizia": un percorso ancora incompiuto (09.06.2025)
Abstract
The differential elements between the judiciary and the so-called
special jurisdictions, safeguarded in the Republican Charter, have become
increasingly tenuous in consideration of the acquired functional unity. The
achieved harmonization on the functional level calls into question, on the one
hand, the reasons for maintaining differentiations on the lexical level between
ordinary judges and special judges; on the other hand, it would require the
unification of the legal status of the "judicial class" globally
understood. However, there are still grey areas that prevent the equalization
of the legal status of special judges with the magistrates of the judiciary. It
is undeniable that a divergence between the magistracies concerns the level of
guarantees of independence of special judges. The Author, considering the
reforms in progress, believes that it would be preferable to have a single High
Disciplinary Court for all magistrates and to provide for a single Superior
Council of the Judiciary: it would be a step towards the unity of
jurisdictions.
The article examines the biojuridical issues of Judgment No. 66 del
2025. After examining the central points of the constitutional judges
reasoning, the differences between this ruling and previous ones are reviewed.
Finally, critical reflections are made on the constitutional perimeter of the
end-of-life discipline within the Italian legal system, especially with
reference to the possibility of extending the suspension of life-support
treatment.
FELICE BLANDO
Fra
astensionismo e voce al popolo: qualche spunto a partire dai referendum dell'8
e 9 giugno (30.05.2025)
Abstract
The paper examines some political constitutional aspects related to the
upcoming abrogative referendums of 8 and 9 June 2025. In this sense, it
analyses the limits and functions of the abrogative referendum according to the
Constitution and the development of the institution in some significant events
of the life of the republic. The paper concludes with a reflection on the
importance of the structural quorum.
STEFANIA MABELLINI
Abstract
The essay explores the delicate balance between legislative
retroactivity and the protection of legitimate expectations within the Italian
constitutional system, with particular focus on recent Constitutional Court
jurisprudence. After reconstructing the historical and case-law evolution of
the principle of non-retroactivity, the author highlights how the Court has
progressively reduced its binding force, instead affirming the legitimacy of
retroactive laws when justified by reasonableness and public interest.
CHIARA CUCCURU
L'intervento
delle Regioni "terze" nel giudizio di legittimità costituzionale in
via di azione (26.05.2025)
Abstract
This article examines the procedural legitimacy and substantive role of
regions that are not directly involved in constitutional legitimacy proceedings
but seek to intervene as "third" parties. The study analyzes the
legal framework governing such interventions, considering both constitutional
principles and jurisprudential developments. Special attention is given to the
conditions under which these regions may assert their interests, the impact of
their participation on the balance of powers, and the potential implications
for regional autonomy. By exploring key case law and legislative provisions,
the article provides a critical assessment of the evolving role of third-party
regional interventions in the Italian constitutional system.
MARIO BERTOLISSI
La
Costituente e la non discontinuita' concettuale (21.05.2025)
Abstract
With few exceptions, institutional dynamics over time are marked by
continuity. Italy is no different. The ideals that emerged and gained
prominence during the work of the Constituent Assembly have gradually been bent
to the logic of preservation, often serving interests rooted in the past. The
primary responsibility lies with political actors. But above all, with the
State apparatus itself, frequently reinforced by a judiciary, across all
levels, that has either deliberately or unwittingly failed to break free from
formalism. This formalism enables the persistence of a power structure that is
selfreferential and unaccountable. And it does so through the use of abstract,
unquestionable concepts.
ANTONIO RUGGERI
Famiglia
e Costituzione: un modello aperto e in progress? (19.05.2025)
Abstract
The essay examines the evolving relationship between constitutional law
and the regulation of family and affective relationships, highlighting the
tension between an only partially realized constitutional model of the family
and current normative developments. It focuses on cases where ordinary
legislation goes beyond the core constitutional guaranteesparticularly in
ensuring equal treatment for all childrenand on how such developments may
contribute to or distort the implicit evolution of constitutional principles.
Central elements of the traditional modelmarriage formalization, monogamy,
heterosexuality, and the mutual rights and duties of parents and childrenare
contrasted with the rise of "parafamilial" unions. The analysis
addresses the risks of eroding the constitutional identity of the family,
especially considering trends such as international adoption by single
individuals and the recognition of same-sex parenting through surrogacy. The
contribution concludes by reflecting on constitutionally consistent
interpretations informed by subconstitutional norms and evolving social
practices.
MARIO PERINI - EDIN SKREBO
Identita'
costituzionale e ordine pubblico all'interno del contesto giuridico europeo:
una medaglia a due facce (19.05.2025)
Abstract
This paper aims to analyse the concepts of constitutional identity and
public order in the European debate by placing them in direct relation to each
other. In particular, the articles authors argue for the existence of
significant affinities between these two concepts, such as placing them on a
level of quasi-specularity. Specifically, the article first seeks to identify
the defining elements of the two concepts to provide the reader with a key to a
wide range of possible interpretations. It then analyses the elements that
constitute the essence of these notions. Finally, an attempt will be made to
recombine the elements analysed to understand the points of connection between
the two subjects, also concerning the construction of common and shared legal principles.
BIAGIO G. DI MAURO
Abstract
The essay examines how hedge fund lobbying influences the U.S. electoral
experience and associated rights. It offers a reconstruction in light of
current regulations and evaluates their effectiveness, including cases
involving digital platforms (digital lobbying). By analyzing operational
mechanisms, practical examples, and regulatory implications in electoral
lobbying - particularly online - the essay provides valuable insights into
existing challenges and proposes de iure condendo perspectives.
GIOVANNA RAZZANO
Abstract
The essay examines how hedge fund lobbying influences the U.S. electoral
experience and associated rights. It offers a reconstruction in light of
current regulations and evaluates their effectiveness, including cases
involving digital platforms (digital lobbying). By analyzing operational
mechanisms, practical examples, and regulatory implications in electoral
lobbying - particularly online - the essay provides valuable insights into
existing challenges and proposes de iure condendo perspectives.
CRISTINA VIDETTA
Abstract
The article examines Constitutional Court ruling no. 119 of 2024,
focusing in particular on the issue of possible derogations from municipal urban
planning instruments and the risk that such derogations might result, even
indirectly, in violations of the Regional Landscape Plan (PPR), thereby
undermining the principle of the primacy of landscape planning. The author
highlights how the Court rejected the objections not on the basis of an actual
assessment of the absence of derogatory effects, but rather by affirming the
possibility of interpreting the regional provisions in a manner consistent with
the principle of the PPRs primacy. In doing so, the ruling aligns with a
well-established body of constitutional jurisprudence that recognizes landscape
planning as a unifying and guiding framework for the protection of the
territory at the national level.
FRANCESCA BAILO
L'abolizione
dei senatori a vita di nomina presidenziale (17.05.2025)
Abstract
This paper aims to analyze the arguments that could be used for or
against the repeal of the art. 59, paragraph 2, of the Constitution, looking,
on the one hand, at the rationale that was the basis of the original forecast
and, on the other, at the personalities who, in one sense or another,
contributed to marking a path - often bumpy but never resulting in an effective
revision, with the exception of the constitutional reform of 2020 - for the
constitutional provision under examination and then verifying whether and in
what way it could impact the constitutional reform as a whole and whether any
corrective measures would be possible in view of the possible definitive
approval of the text.
FILIPPO VARI
Ancora
in tema di assistenza al suicidio ed eutanasia (09.05.2025)
Abstract
The article analyses the end-of-life bills that are currently examined
by the Senate. It first highlights the importance of the right to life in the
Italian Constitutional Court's case-law. It then tackles the issues of
self-determination, freedom of health and of the importance of the
constitutional protection of human dignity. Finally, the study focuses on the
problem of the binding effects of the Constitutional Court's case-law on the
issue.
QUIRINO CAMERLENGO
Sulla riflettanza politica degli organi costituzionali di
garanzia (06.05.2025)
Abstract
The guarantor bodies (President of the Republic and Constitutional
Court) are not politically responsible. However, the "political
factor" is a constant in their institutional activities. This factor may
have a weight at the time of their election. This paper proposes the notion of
"political reflectance" to define the incidence of this factor in the
choice of the guarantor bodies.
ROBERTO BIN
L'ambiente
nella Costituzione, tra beni e interessi (03.05.2025)
Abstract
The essay offers a critical reflection on the scope of the recent
constitutional reform of Articles 9 and 41, which explicitly incorporated the
protection of the environment, biodiversity, and ecosystems among the
fundamental principles of the Constitution, including in the interest of future
generations. Following a path that begins with the early jurisprudential
developments of the Constitutional Court and extends to its most recent case
law, the author highlights the ongoing difficulties within the Italian judicial
system in ensuring full protection of environmental 'goods', unlike the German
model.
CAMILLA PETRILLO
Abstract
The tax process designed by the
legislator, although suspected of lacking constitutional compliance in several
respects and particularly regarding the profile of judicial independence, fails
to gain access to the merits of constitutional review. The risk is that it will
end up becoming a free zone from the constitutional review, while the
possibility of access to supranational courts is on the horizon.
MARIO PANEBIANCO
Considerazioni minime sul Comunicato
della Presidenza della Repubblica del 15 aprile 2025 (02.05.2025)
Abstract
This article offers some basic
considerations, both general and specific, on the promulgation of laws,
starting from a recent press release by the Presidency of the Republic, which
reflects a well-established practice.
Consulta OnLine (periodico online) ISSN 1971-9892