Consulta OnLine (periodico online) ISSN 1971-9892
2020/III
settembre-dicembre
Parte Prima
ANGELO LICASTRO
(23.12.2020)
Abstract
In the current pandemic crisis, after overcoming the
initial uncertainty phase, Governements should adopt policies that more
carefully account for the protection of all constitutional rights. This essay
assesses the current standards of protection of freedom of public worship in
Italy, the United States and France, in the light of developments in emergency
legislation and recent case law.
GIULIA SULPIZI
Donne e rappresentanza politica: la
prospettiva comparata per valorizzare la differenza di genere
(23.12.2020)
Abstract
As history teaches us, both social and institutional
changes have given women the right to participate in politics. Nevertheless,
discrimination based on sex regarding the access to public office still
remains a dreadful problem, common to contemporary democracies. In order to
solve this particular issue, the so called positive actions have been
introduced. Unfortunately, this means cannot be considered as sufficient: for
this reason, comparing different legal systems is the principal method and the
only way to guarantee equality in nowadays Italy. Through it, we manage to
understand the importance of local entities and of the constitutional justices'
work, in order to educate the whole society valuing the new idea of
"gender citizenship".
PATRIZIA VIPIANA
(23.12.2020)
Abstract
The short essay points out the importance that popular
initiative of laws is followed by a timely examination in Parliament (who may
decide to approve them or not); then the essay illustrates the provisions about
this topic contained only in the internal regulation of the Senate of the
Republic: in order to eliminate the difference between the regulations of the
two Parliamentary Assemblies, the author suggests that also the internal
regulation of the Chamber of Deputies should provide about the mentioned topic.
ALESSANDRA PROZZO
(23.12.2020)
Abstract
In the last few years, the features of the objective
and subjective elements of the conflicts of attribution between the State and
the Regions have changed as a result of the jurisprudence of the Constitutional
Court which widened the range of enactments that can be challenged before it.
The Court in its decision no. 259/2019 annulled an act adopted by a
professional order and allowed its intervention in the trial. The paper
analyzes the critical aspects of this decision.
PIER
LUIGI TOMAIUOLI
(11.12.2020)
Abstract
The article analyses the Supreme Court of Cassation's
reference for a preliminary ruling No. 19598 of 2020. The article focuses on
the first and more important question, whereby the Joint Chambers in open
contrast with Judgment No. 6 of 2018 of the Italian Constitutional Court
asked the Court of Justice of the European Union to verify the compatibility of
Article 111(8) of the Constitution with Union law. According to said
constitutional provision, decisions of the Council of State and of the Court of
Auditors can be appealed to the Supreme Court of Cassation "only for
reasons of jurisdiction" (and not, therefore, for errores in iudicando or
errores in procedendo). This expresses a deliberate choice to consolidate the
pluralistic organization of jurisdictions in existence for over a century, an
arrangement that constitutes a foundational and fundamental trait of Italian
justice.
ANTONIO RUGGERI
Il disordine delle fonti e la
piramide rovesciata al tempo del Covid-19
(09.12.2020)
Abstract
In a context characterized by a growing disorder of
the system of legal sources, there is a trend toward the use of sources with a
lower rank than those with which they would ideally compete. In this way, an
inverted hierarchy emerges, particularly blatant in the present situation,
marked by the spread of the Covid-19 pandemic. This confirms the need for
constitutional amendment, that can no longer be postponed, aimed at an overall
remaking of the origin framework, especially regarding the management of emergencies
as the ongoing one.
TANIA GROPPI
Alle frontiere dello stato
costituzionale: innovazione tecnologica e intelligenza artificiale
(30.11.2020)
Abstract
The article deals with the challenges that artificial
intelligence poses to the pillars of the constitutional State: the popular
sovereignty and the constitutional rule of law, considering that this
outstanding progress of humanity must be regulated to limit its negative
consequences. In particular, it is considered necessary to work so that the
principles of constitutionalism can affect common sense, becoming part of the
heritage of all, including the protagonists of science and technology, who are
continually asked to choose in which direction to direct their researches and
activities.
MARIA AGOSTINA CABIDDU
CSM e decadenza: tra interpretazione
e riscrittura della Costituzione
(23.11.2020)
Abstract
The essay critically analyses the decision of the
Italian Superior Counsel for Judicial Officers (Consiglio Superiore della
Magistratura CSM) regarding the termination of one of its members due to his
(mandatory) retirement from judicial office. The author focuses in particular
on the identification of the nature and function of the Counsel according to
the relevant provisions of the Italian Constitution. In light of this approach,
the CSM's decision appears ultimately in conflict with the constitutional purpose
of the Counsel itself, which is to safeguard and guarantee the general interest
in relation to the judicial power rather than to represent and manage the
interests of the judicial officers.
MASSIMILIANO MEZZANOTTE - ALESSANDRO
ROSARIO RIZZA
La trasfigurazione del diritto
all'oblio
(17.11.2020)
Abstract
The Court of Cassation returns to rule, with a
monumental order, on the right to be forgotten on the web. The contribution highlights two critical profiles.
DANIELE CASANOVA
(09.11.2020)
Abstract
The Constitutional Court, with its ruling n. 132/2020, postponed until the 22 of
June 2021 the valuation about the fact that the prison sentence is applied as a
punishment for libel. In the article, the author sets the libel in the
framework of the Italian legal system and recalls the jurisprudence of the European
Court of Human Rights. At the end, the author analyses the reasons that led the
Constitutional Court to issue the ruling and the relationship between
Parliament and the Constitutional Court in relation to this new decisional
technique.
ANTONIO RUGGERI
(09.11.2020)
Abstract
The paper highlights the parable of the law in the
evolution from the liberal to the contemporary state, focusing on the reasons
that led to the affirmation of systematic frameworks of formal-abstract
inspiration. Therefore in order to optimally safeguard fundamental
rights it is necessary to move from a system of sources to a system of norms,
in the name of the fundamental canon of maximum protection of the rights
themselves, and, consequently, from a formal perspective to
axiological-substantial perspective in the observation of the most salient
experiences of legislation. Finally, the need to reinvigorate the role of both
the legislator and the judges is highlighted, questioning the solutions to the
purpose that are profitably practicable.
ROSSANA CARIDÀ
Notazioni minime su amici curiae ed
esperti nel processo costituzionale
(09.11.2020)
Abstract
The paper examines the provisions about the amicus
curiae and intervention of experts in the judgment of the Constitutional Court,
recently introduced in the Supplementary Rules for Judgments before the
Constitutional Court. The issue is addressed in relation to the investigative
powers of the Court, highlighting that the Court's judgment is increasingly
conditioned by the knowledge of economic, scientific and social facts for the
acquisition of which the contribution of external subjects may be useful.
ROBERTO CONTI
CEDU e Carta UE dei diritti
fondamentali, tra contenuti affini e ambiti di applicazione divergenti
(02.11.2020)
Abstract
The Author describes the relations between the ECHR
and the EU Charter of Fundamental Rights, following an idea of substantial
equality of their weight. The paper wants to support the important role of
national judges in the system of protection of human rights in a perspective
that looks to different Charters as documents having the same constitutional
value.
FULVIO GIGLIOTTI
(20.10.2020)
Abstract
The paper examines the so-called "Davigo
judgement": in particular, the
issue concerning the supervening termination of membership in the judicial
order of a member of the italian Consiglio Superiore della Magistratura
(C.S.M.), due to his retirement in reason to age limits (if the turning seventy
necessarily entails his forfeiture from the held office).The author takes the
positive position, considering critically the theses contrary to the
maintenance of the mandate.
ANTONIO
RUGGERI
(14.10.2020)
Abstract
The paper, after having
made some critical notes on the sentences of the Constitutional Court on the
well-known Cappato case, investigates the aspect of exceeding the limit of the
discretionary power of the legislator. Especially, the author notes that the
legislative discipline of the events of the beginning and end of life should
take place by means of constitutional laws. Therefore it challenges the thesis
aimed at recognizing the existence of a constitutional right to suicide, giving
itself insurmountable limits to the self-determination of the person and making
it improper that safeguarding the dignity of the person is evoked in the field,
understood by many in a purely subjective sense. Finally, it insists on the
need to maintain the right to conscientious objection of healthcare in the
future legislative discipline of the matter.
ALESSANDRA
MAZZOLA
(06.10.2020)
Abstract
After two years since the
Cappato case ordinance, the Constitutional Court returns to use the
(unpublished) procedural technique of the established but undeclared order of
unconstitutionality. The contribution aims to analyse the connections and the
differences between Ordinance Nr. 207 of 2018 and Nr. 132 of 2020. Finally, the
Author wonders about the consequences that might be caused by the use of these
types of orders by the Constitutional Court, with a reflection on the risk of
"politicization" of the Court itself.
ROBERTO ROMBOLI
L'incidenza della pandemia da
Coronavirus nel sistema costituzionale italiano
(05.10.2020)
Abstract
After having illustrated the constitutional provisions
and the civil protection code, the essay examines the emergency legislation
approved to deal with Covid-19, in Italy. Therefore, the impact of the pandemic
is highlighted both on the system of sources of law and on the form of
government with the protagonism and centralization of powers in the executive
and the difficulties for the regular functioning of the chambers. Other
important points of the study concern the conduct of judgments before the Constitutional
Court and the common judges during the emergency from Covid-19, as well as the
impact of the pandemic on relations between the central state and territorial
autonomies. Finally, a particular attention is pay to the impact of the
pandemic on fundamental rights.
ANTONIO RUGGERI
(23.09.2020)
Abstract
Taking its cue from the revision that led to the
reduction in the number of parliamentarians, the document questions the
possibility that the laws amending the Constitution are flawed because they are
excessively precise and limited in scope, not concerning - as would be
necessary - provisions related to those specifically innovated . The age-old
question relating to the failure to reach the quorum for the validity of the
referendum is therefore reconsidered, as a result of which the fate of changes,
even of considerable importance, may depend on the will expressed by a small
portion of the electoral body. Finally, it is noted that in today's
circumstances an instrumental and conjunctural use has been made of the
Constitution.
ANTONIO RUGGERI
(14.09.2020)
Abstract
The essay, in commemoration of Paolo Carrozza, focuses
on the critical issue concerning the "jurisdictional nature" of the
Constitutional Court's activity, also in light of the more recent prevalence of
its political "soul" over the jurisdictional one. In anycase, this
predominace is made more conspicuous in reason to recent opening to the civil
society: hence, the need to keep the Court as legislator distinct from the
Court-judge.
EUGENIO DE MARCO
(04.09.2020)
Abstract
The paper addresses the issue of the reduction in the
number of parliamentarians determined by the proposed constitutional revision
already approved by the two Chambers, also discussing the project to return to
the proportional electoral system according to the German model. The
criticalities of the two reforms are highlighted, as well as the risk of a
democratic regression deriving from the combination of the two reforms.
ROBERTO
PINARDI
(02.09.2020)
Abstract
The order n. 195 of 2020
represents the first case in which the Constitutional Court ruled on a conflict
between powers raised by the promoters of a referendum pursuant to art. 138 of
the Constitution. The paper analyzes the arguments of the Court highlighting
omissions and errors. These, in the author's opinion, are generated by the fact
that the Constitutional Court proceeds either from the uncritical overlap or
from the apodictic differentiation between the case in question and the
previous jurisprudence on the subject of conflicts raised in the occasion of
abrogative referendums.
SILVIO GAMBINO
Quale centralità del Parlamento se si
procedesse al taglio del numero dei parlamentari?
(01.09.2020)
Abstract
What centrality of Parliament if we proceeded to
reduce the number of parliamentarians?
The paper addresses the issues related to the
constitutional referendum of 20 and 21 September 2020, juxtaposing the reasons
for yes and no to the reduction in the number of parliamentarians. The
conclusion links this possible outcome to the mortification of representative
democracy as it would tend to expel minorities and negatively influence
democracy as an expression of pluralism and conflict.
Parte Seconda
MEMORIE COSTITUZIONALI
(09.12.2020)
Abstract
The document commemorates
the 200th anniversary of the political constitution of the kingdom of the two
Sicilies of 9 December 1820 and illustrates its characteristics and the
temporal situation in which it came to light.
Consulta OnLine (periodico online) ISSN 1971-9892