Consulta OnLine (periodico online) ISSN 1971-9892

 

 

INDICE DELLA RIVISTA PER AUTORI

A-E        F-P         Q-Z

 

2020/I

gennaio-aprile

 

PARTE I

 

 

GIANCARLO GUARINO

Migrazioni e migranti: per la ricostruzione di una prevalenza strutturale del diritto internazionale sul diritto interno

Abstract

Taking the cue from the question of migrations, the contribution analyses the crucial question of the relations between international and national law, short of the kelsenian theory of the supremacy of international law, to ascertain in which measure the idea of the "intangibility" of National law, and in particular the fundamental principles of Constitutional law of the single States is really actual, as many scholars assert. One of the fundamental question therefore is: how the principle of the freedom of each man of abandoning one's own country (art. 12.2 International Covenant on Civil and Political Rights: "Everyone shall be free to leave any country, including his own") is compatible with the principle of sovereignty of States, to conclude that, being sovereignty an "Institute" of international law, is the same international law the sole having jurisdiction on the extent of the State-sovereignty

(13.02.2020)

 

 

ANNA GRAGNANI

I «punti di contatto» fra autonomia dell’ordinamento sportivo e diritti costituzionali come «rapporti multipolari di diritto costituzionale» (Sindacato «complessivo» di proporzionalitŕ e «regola generale di preferenza» in funzione di monito preventivo al legislatore nella sentenza 160/2019 della Corte costituzionale)

Abstract

In the light of decision 169/2019 of the Constitutional Court, the paper focuses on the autonomy of the Italian sport legal order as a constitutional limit to the extent of the State legislation. On the basis of Santi Romano’s theory of «plurality of legal orders» and of the theory of the «open constitutional State», the constitutional judge considers the conflicting connections between the issue of autonomy of the sport legal order and constitutional rights as a multipolar constitutional relationship. The paper also focuses on the proportionality test concerning multipolar constitutional relationships

(10.02.2020)

 

 

MARCO RUOTOLO

Le incompatibilitŕ nella gestione delle farmacie. Un piccolo omaggio a mio fratello Antonio (in forma di nota alla sent. n. 11 del 2020)

Abstract

The work addresses the issue of incompatibilities in the management of pharmacies addressed by the Constitutional Court with sentence no. 11 of 2020. The solution offered by the Constitutional Court, already with acuteness proposed in the doctrine, is shared by the author, although with some technical reservations

(10.02.2020)

 

 

ANTONIO RUGGERI

Ancora in tema di abrogazioni per via referendaria di norme elettorali

Abstract

The paper briefly examines the problems posed by the request for a referendum on the political electoral law proposed by the Regions and the reasons for its inadmissibility, particularly in light of the decision of the Constitutional Court n. 10 of 2020

(07.02.2020)

 

 

PASQUALE COSTANZO

Quando i numeri manifestano principi ovvero della probabile incostituzionalitŕ della riduzione dei parlamentari

Abstract

The paper investigates the topic of the italian constitutional revision “in itinere to reduce the number of parliamentarians. The author highlights the constitutional problems of the reform although carried out by constitutional law

(31.01.2020)

 

 

COSTANZA MASCIOTTA

La Corte costituzionale riconosce il diritto, preannunciato, a morire rapidamente e con dignitŕ con una tecnica decisoria dalle dirompenti implicazioni

Abstract

With Judgment n. 242/2019 the Italian Constitutional Court declared constitutional illegitimacy of art. 580, criminal code, in the part where it punishes the aid to suicide lent to a patient affected by irreversible pathology, intolerable suffering and kept alive by life-support treatments, but fully capable of making free and informed decisions, as long as these requirements have been verified by a public structure of the NHS with the opinion of the Ethics Commette.

The essay aims at analyzing the “Cappato saga” starting from judgment n. 207/2018 through which the Constitutional Court postponed the hearing to give the Parliament a contingent time to legislate and dictated real “governing criteria” for future legislation. 

Due to the inertia of the legislator with judgment n. 242/2019 the Constitutional Court decided to adopt an “additive procedure” ruling and recognized “the right to die quickly and with dignity”, setting the specific conditions for its exercise.

 (13.01.2020)

 

 

GUERINO FARES

L’obbligo di copertura finanziaria delle leggi che costano: qualche spunto alla luce del contributo offerto dalla Corte costituzionale

Abstract

According to Article no. 81, par. 3, of the Italian Constitution, any law for the realization of which financial resources are required must indicate exactly the latter. This rule is often violated, however. The paper analyzes the main judgments of the Italian Constitutional Court, with particular reference to the so-called technical report, and then focuses the attention on the synergy between the constitutional jurisprudence and the contribution provided by the Court of Auditors through its jurisdiction to deal with public accounting matters.

(10.01.2020)

 

 

EDUARDO GIANFRANCESCO

L’attuazione dell’art. 116, comma 3, Cost. tra nodi problematici e prospettive evolutive del regionalismo italiano  

Abstract

The essay analyzes one of the most controversial themes in Italian recent constitutional studies: the “asymmetric clause” provided by the third paragraph of art. 116 of Constitution, as amended in 2001. This provision is sometimes considered by scholars (and in the public debate) as the “last resource” for regional autonomies and their vitality in Italy or a menace for the homogeneity – if not the surviving – of the unitary State. The essay attempts a more pragmatic approach to the theme, considered as an useful opportunity for the development of Italian regional system, if implemented within constitutional limits.

In this perspective the essay applies to substantial (the reference of asymmetric clause to administrative and legislative competences of Regions and State) and procedural (the peculiar legislative process to activate the clause) problems of its implementation.

(09.01.2020)

 

 

VINCENZO TIGANO

Il divieto di accanimento terapeutico nella sfera del diritto penale: obblighi di garanzia del medico, autodeterminazione del paziente e rischio consentito

(07.01.2020)

Abstract

The prohibition of therapeutic obstinacy in the scope of criminal law: medical duties, patient self-determination and permitted risk

The article aims to analyze how the prohibition of therapeutic obstinacy, provided by art. 2, para. 2, of the Law n° 219/2017, affects patient rights and medical duties, from the point of view of criminal law. The norm imposes an omissive behaviour on doctors and limits their duty to protect patient life, thus excluding that failure to prevent death-event can be equivalent to its causation, according to art. 40, para. 2, p.c. Art. 2, para. 2, performs also a precautionary function on patient’s psycho-physical health: by marking the difference between permitted risk and radically prohibited risk in medicine, i.e. between therapeutic and non-therapeutic medical acts, the prohibition is identified as a precautionary abstention rule for doctors.

Finally, the terms of a necessary reform of the law are outlined, by urging the legislator to avoid granting doctors too wide discretional power and to give relevance back to patient will..

 

 

ROBERTO DI MARIA

Brevi considerazioni sul rapporto fra tutela sostanziale dei diritti (fondamentali) e rispetto delle forme processuali: la Corte costituzionale  e gli “animali fantastici”. The final cut

(07.01.2020)

Abstract

The matter – very much complex – of the so called “end of life cases” or, more generally, “euthanasia” finally came to the attention of the Constitutional Court by the criminal jurisdiction, regarding the crime of «aid to suicide» (art. 580 c.p.).

Through the ord. 208/2018 – before – and the sent. 242/2019 – after – the Court declared partially illegitimate the aforesaid article, in relation to some rules of the l. n. 219/2107 regarding the “informed consent” and the “advance treatment provisions”. Aside from the merit of the constitutional question, what emerges is the completely new procedural conduct followed by the Court: in fact, with the ord. 208/2018 it has been delayed of one year the final decision, at the same time urging the Legislator to intervene in the aforesaid matter with a proper legislation, consequently recognizing rights and duties related to the institute of euthanasia. Since such warning has been ignored by the Legislator itself, the Court finally decided as above summarized. However, such conduct seems to stretch a little bit too much the recognized “sovereignty” of the Court on its trial; and seems to widen a little bit too much – as well – the judicial recognition of rights, even those “fundamental”, above the political one. So underlining the contemporary problem of the institutional (loyal) relationship between the Parliament and the Constitutional Court and, moreover, among the State Powers.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Consulta OnLine (periodico online) ISSN 1971-9892