Consulta OnLine (periodico online) ISSN 1971-9892
2018/III
settembre
– dicembre
PARTE
I
STUDI
VANESSA MANZETTI
Abstract
Emergency decree and financial autonomy of
financial income of local authorities: local finance profiles
The practice for the
use of decree-laws in the context of local finance, despite having had periods
of weakening, especially after the historic decision of the Constitutional Court no. 360 of October 17,
1996, has remained essentially constant
since the years 1970s, creating a complex and multilayered field discipline,
but most often characterized by impermanence and uncertainty.
The resulting ripple effect
is therefore a continuing need to take measures to ensure that buffer in
extremis the financial equilibrium of the entities, which have come to affect
all sectors of the field.
And, alas, that effect
has been gradually increasing in the wake of the current economic crisis and
the urgent need to respect the financially compensated constraints imposed by
EU, not so much with a view to strengthening the legislative branch of
Government, but, more than anything, to overcome the endemic slowness of the current
legislative procedure. (V.M.)
ROBERTO ROMBOLI
(24.12.2018)
Abstract
The influence of the ECHR and the jurisprudence of the European Court of
Human Rights in the Italian constitutional order
The influence of the European Convention on Human Rights on the sources
of the Italian legal system and the relationships between the Constitutional
Court and the European Court of Human Rights have undergone an evolution that
concerned, on the one hand, the interpretation of the Convention itself and, on
the other hand, its role as a parameter of constitutional legitimacy. This
paper examines these profiles from a diachronic perspective, before focusing on
the most significant cases of conflict between the abovementioned Courts and,
then, on the validity and the execution of ECHR’s judgements in Italy. The
contribution concludes with some insights on the hypothetical EU accession to
the ECHR, on the Protocol No. 16, recently entered into force, and finally on
some proposed reforms aimed at allowing a more fruitful “dialogue” among the
Constitutional Court and the European Courts (N.F.).
ANTONIO RUGGERI
(13.12.2018)
Abstract
Minimum note regarding
an anomalous proceduralization of the intervention of
the third party in judgments of constitutionality
This note concerns the
President of the Constitutional Court’s act containing directives and
instructions for the Registry of the Court, concerning access to documents for
those who request to intervene in the proceedings before the Court. Such act,
which differs from the previous practice, precludes third party access to
documents before the Court has ruled on the admissibility of the requested
intervention. From the point of view of method, the adoption of these
instructions through an informal act, resulting from an individual decision of
the President, raises doubts. In substance, instead, the
solution seems to be acceptable, as it makes the Court less exposed to the
conditioning exercised by the arguments of the third party (N.F.).
ANTONIO RUGGERI
(07.12.2018)
Abstract
"Form of government" and "party
system": two categories that are no longer usable for constitutional
theory?
Some recent
political-institutional tendencies regarding the form of government and the
party system (for instance, the alteration of the balance between the
Parliament and the Cabinet and the debasement of the Prime minister, in
addition to the involvement of the web in emptying representative democracy)
caused alterations of the constitutional model such as to question these
traditional doctrinal categories. The role of judges to protect the rights,
even though overloaded with an improper political value, and supranational
integration – in terms of “federalization” of the parties and the Courts –
contain these degenerations. Considering this context, the author reflects on
how to intervene, through an awareness raising compliance with constitutional
duties, in order to resolve the crisis of representation and to prevent the
risk of authoritarian degeneration (N.F.).
FABIO FRANCESCO PAGANO
(03.12.2018)
Abstract
The organs of constitutional importance of “judge-like” institutions and
the reinforced independence of the Court of Audit towards the Government
(observations in the margins of the Court of Audit, Joint Section No. 1/2018 /
Cons.)
The provision of the law regulating public accounting and finance
prescribing that a Ministry of Economy’s representative shall be part of the
audit committee of each public administration arises some interpretative issues
regarding its application to institutions with a high degree of autonomy. This
problem is the subject matter of an opinion given by the Joint divisions of the
Court of Audit, which dwells on the distinction between constitutional
institutions and institutions having a constitutional standing. Then, this
paper examines the peculiarities of “judge-like” institutions with a
constitutional standing, focusing in particular on the reinforced position of
independence held by the Court of Audit itself with regard to the Executive as
well as on its regulatory autonomy (N.F.).
ROBERTO ROMBOLI
(26.11.2018)
Abstract
The Constitutional Court in the face of the challenges
of the future. A conference to remember Alessandro Pizzorusso
The article introduces
the collection volume of the speeches developed during the conference in memory
of Alessandro Pizzorusso, two years after his death.
It examines the need to ponder over the tools and the procedural rules of
constitutional justice, in view of the new challenges facing the Constitutional
Court. Starting from the general themes of the (regulatory) autonomy of the
Court and its legitimation within the constitutional system, it addresses
specific reform proposals, relating to essential questions of the Court’s
activity, such as its composition, access routes and type of decisions (N.F.).
ANTONIO RUGGERI
(20.11.2018)
Abstract
At the
Constitutional Court the constitutional hircocervus was born (in the margins of ordinance No. 207
of 2018 on the Cappato case)
This comment to the
Constitutional Court’s decision about the “Cappato
case”, firstly, makes some remarks about matters of substance and, then, it
focuses on the procedural aspects, with specific reference to the effects
resulting from the adoption of the new type of decision. In particular, the
author dwells on the consequences that the ruling of “probable deferred
unconstitutionality” exercises, meanwhile, on the legislator and on ordinary
judges and, expired the deadline set by the decision, on the Constitutional court
itself (N.F.).
ANTONIO RUGGERI
(26.10.2018)
Abstract
Pilate at the
Constitutional Court decides not to decide, at least for now ... (on the
sidelines of a statement on the Cappato case)
The contribution shows
how already from the reading of the press release of the Council of 24 October
2018 on the Cappato case we can see the originality
of the ordinance with which the constitutional judges have postponed to
September 2019 the treatment of the question of constitutionality of Article
580 of the Criminal Code pending a desirable intervention of the legislator.
The Court's decision not to decide, despite the fact that the question had
already entered the discussion phase, leaves room, from a substantive point of
view, for assessments regarding the orientation of the Court itself on the question
subject to the constitutionality proceedings and on the possible future
scenarios relating to the Cappato case; while, from a
formal point of view, it allows us to observe how the Court on this occasion
has had a momentum towards a fanciful procedural solution (A.T.).
ANTONIO RUGGERI
(24.10.2018)
Abstract
Constitutional Court, European Courts, Common Judges:
the aporias of a jurisprudential construction in progress and with variable
geometry
The author does his
best to analyze in depth the relations between the Courts, adopting as a visual
angle the Constitutional Court and its jurisprudence, sometimes moving on to
the European Courts and even the Court of Cassation. In particular, it is
analyzed how the scope of action of the Constitutional Court moves, on the one
hand, on the level of relations of domestic law, especially with political and
institutional operators and judges, and on the other hand on the level of
inter-institutional relations with the European Courts. According to the
author, if the dialogue between the Courts has in some cases led to the
compression of national autonomy in relation to certain institutions or rules,
from the point of view of the protection of rights, instead, the confrontation
with supranational judges has ensured an extension of safeguards, although the
Constitutional Court in some cases has taken steps to use defense
techniques that prevent the jurisprudence and supranational legislation to
interfere with internal judges (think of the 269 of 2017 on the nature of the
Charter of Nice) (A.T.).
ALESSANDRO MORELLI
Solidarieta', diritti sociali e immigrazione nello Stato sociale
(24.10.2018)
Abstract
Solidarity, social
rights and immigration in the welfare state
The article outlines
how in today's welfare state there is, on the one hand, a tension between the
inclusive nature of social rights (and civil rights), aimed at the pursuit of
unity and cohesion through solidarity, and, on the other hand, the limited
nature of political rights whose extension to everybody is precluded to Member
States if they wish to safeguard their constitutional identity. The author
stresses that this tension impacts on the level of protection of the rights of
non-citizens. The full enjoyment of the rights of a social category is unlikely
to be satisfactory for those directly concerned if they have not participated
in it, including through their representatives. The article seems to
demonstrate the impracticability of a split between the dimension of
participation and representation (political) and that of rights (including
social rights) (A.T.).
ANTONIO RUGGERI
Modello costituzionale e consuetudini culturali in tema di
famiglia, fra tradizione e innovazione
(01.10.2018)
Abstract
Constitutional model
and cultural customs in terms of family, between tradition and innovation
The article explores
how the Constitution, before and more than any other source of law, permanently
oscillates between the intent of fidelity to its own original nature and, at
the same time, hanging on to renewal and regeneration, in order to give voice
to the new rights conveyed by cultural customs. In particular, the author takes
his cue from the theme of family protection, its constitutional definition and
its interpretation to demonstrate how cultural customs draw the boundary
between what can be extracted from constitutional definitions by way of
interpretation and what, instead, requires a new positization
and even a constitutional revision (A.T.).
SILVIA TALINI
(01.10.2018)
Abstract
The valorisation of
the terms "penalty" in the plural and condemned to the "singular"
also in the matter of life imprisonment (in the margin of the Constitutional
Court, judgment No. 149 of 2018)
The contribution notes
the sentence 149/2018 of the Constitutional Court with which article 58-quater, c. 4, of penitentiary order, was
censored, concerning the disbursement of prison benefits for prisoners
sentenced to life imprisonment for the crimes of kidnapping for the purpose of
extortion, terrorism or subversion that have caused the death of the kidnapped.
The author draws attention to how, in a historical period in which a sort of
right to security is invoked, the Council has had the lucidity of translating
the term "punishment" in the plural, imagining a multilayer system of
measures and sanctions, referring educational pluralism to the individual
convicted and not to the convicted as a plurality of people consecrating the
illegitimacy of rules based, as the censored one, on absolute preclusions and
presumptive mechanisms that look at the crime committed and not at the
undeniable mutability of each person even during the course of criminal
execution (A.T.).
GIOVANNI MOSCHELLA
(24.09.2018)
Abstract
Election results,
restructuring of the political system and formation of the Government at the
beginning of the XVIII legislature
The process of
formation of the Conte’s Government has raised unexpected issues, new and,
regardless of political assessments, impacting at the constitutional level.
Here we intend to outline the events that occurred after March 4, 2018 and
proceed to the analysis of those profiles of considerable interest such as the
nature of the government agreement signed between private parties that replaces
the usual coalition pact, the alleged limit of the presidential power of
appointment of Ministers and the doubtful configuration of the crime of attack
on the Constitution (A.T.).
ANTONIO RUGGERI
Taricco,
amaro finale di partita
(03.09.2018)
Abstract
Taricco, bitter end of the
game
The article does not intend
to go over the facts of the case but aims to highlight two profiles of the
Taricco case that emerged in sentence 115 of 2018 of the Constitutional Court: on the one hand, it focuses on the decision-making techniques of the
Court, on the other hand the contribution focuses on institutional
relationships. From the first point of view, the author identifies and
justifies certain critical issues relating to the use by the Court of a
pronouncement of groundlessness with substantially erga omnes effects, rather than one of inadmissibility due to irrelevance of the
issue; from the second point of view, however, the author offers a personal
perspective by arguing the reasons behind the thesis that the Taricco judgment
is an expression of the activation of the counter limits. The article aims at
studying the reasons for the change in approach of the Court, which in
Ordinance 24 of 2017 referred to the common traditions and in the
abovementioned sentence, instead, makes use of the constituent principles of
constitutional identity. In short, the author expresses, not even too veiledly,
his regret due to the choice of the Court to close in on itself and become the
bearer of a model of state order separate and distinct from that of the Union (A.T.).
Consulta OnLine (periodico
online) ISSN 1971-9892