Consulta OnLine (periodico online) ISSN 1971-9892
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
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
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
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
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
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.
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.
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.
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
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 – 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 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.