2015/III

settembre - dicembre

 

 

PARTE I

STUDI

 

 

PASQUALE COSTANZO – LARA TRUCCO

Il principio del “ne bis in idem” nello spazio giuridico nazionale ed europeo

(21.12.15)

Abstract

The Authors examine the role and implications of the "ne bis in idem" principle, underlining its ascent as a principle recognized by European courts.

The aim is to engage in a "a multilevel study on the subject", through the analysis of how this principle has been applied both by domestic and supranational courts.

 

 

ANTONIO RUGGERI

Come costruire e preservare le tradizioni dei diritti in Europa?

(17.12.15)

Abstract

The author argues that, in order to build and preserve the traditions of rights in Europe, integration between different legal systems is necessary, which can take place through the maturation of the concept and function of the Constitutions (affirming at the same time the principle of primacy and principle of protection of constitutional identity).

He also notes that the counter-limits are not suitable for asserting themselves as a system; in fact, the author holds that the "dialogue" is the element needed to stabilize the case law (in this regard he suggests extending the consultation mechanism also to the European Courts and the provision of mutual consultation tools between them) that must find its recognition through constitutional law (not only of one State, but of all States), and he underlines the importance to study the different constitutional systems. 

 

 

MASSIMO CAVINO

Sécurité, égalité, fraternité. La fragilità costituzionale della Francia. (osservazioni a un mese dagli attentati di Parigi)

(14.12.15)

Abstract

The Author analyses measures aimed at protecting security, proposed and adopted after the attacks occurred on November 13, 2015 in Paris.

He analyses whether or not measures adopted in this emergency context respect the French Constitution and the ECHR.

Finally he examines the proposals for constitutional revision and the institution of the forfeiture of French citizenship and he concludes underlining the risk that such proposals and measures could lead it to lose its identity and its role in Europe and in the world.

 

 

GIUSI SORRENTI

Questione di legittimità costituzionale e previo esaurimento dei rimedi interni dopo la sent. n. 49/2015 (in margine a Corte Edu, 27 ago. 2015, caso Parrillo)

(14.12.15)

Abstract

The European Court of Human Rights once again rules on the relationship between the incidental judgement of constitutional legitimacy and the obligation of exhaustion of domestic remedies. Thus, two perspectives emerge within the European Court: one expressed by the majority decision taken by the Court, the other clarified in a separate opinion – with partially concurrent content – according to which the situation would have changed further after judgment no. 49/2015 of the Italian Constitutional Court. However, in the Parrillo judgment no particular impact is assigned to this domestic decision on identifying the possible remedies, since the “twin” judgments of 2007 do not recognize any capacity to change the European Court’s orientation on the absence, in Italy, of an alleged obligation to bring the matter to the judge of laws before addressing Strasbourg.

 

 

ROBERTO CONTI

Il mutamento del ruolo della Corte di cassazione fra unità della giurisdizione e unità delle interpretazioni

(07.12.15)

Abstract

The impact of the supranational law points out the change of the nomophylactic function carried out by the Court of Cassation, now “legally obliged” to guarantee also the uniform interpretation of the law as reinterpreted in the light of European Convention on Human Rights, international treaties and European law. Consequently, on the one hand emerges the more (or less) binding character of the judgments of the Supreme Courts, while on the other it could be considered the deficit of uniform protection of a same fundamental right according to the different competent jurisdiction. Therefore, it is necessary a verification of the current role of the Court of Cassation, particularly since the protection of fundamental rights is no longer reserved exclusively to the ordinary jurisdiction.

 

 

LUCA BUSCEMA

Giudice naturale e sistema di giustizia ritenuta

(27.11.15)

Abstract

The natural judge principle is essential in a system based on the values of modern constitutionalism. However, the exegesis of Article 25, first paragraph, of the Italian Constitution has proposed several reconstructive assumptions, thus, it is necessary to address the issue of the presence, or not, of a hendiadys in the notion of natural judge pre-established by law. Subsequently, the theme of natural judge is dealt within the administrative justice system – which swings between judicial remedy and jurisdictional protection of rights and interests – with particular attention to the extraordinary appeal to the President of the Republic, especially with regard to the legitimacy limits of the procedural protection tools.

 

 

ANTONIO RUGGERI

Linguaggio del legislatore e linguaggio dei giudici, a garanzia dei diritti fondamentali

(13.11.15)

Abstract

This contribution studies the relationship between legislative law and jurisprudential law in the protection of fundamental rights. The author underlines how the framework is characterized by a necessary correlation between the activity of the legislator and that of the judges; in particular, the legislative legislation regulates the recognition and protection of fundamental rights and the jurisprudence implements the principles identified by the Constitution. According to the author, the convergence of these sources of law determines the approach between civil law and common law systems and the reduction of the difference between constitutional, ordinary and jurisprudential legislation.  In view of this, the article underlines the need to provide the jurisprudential legislation with constitutional guarantees to ensure the certainty of fundamental rights and respect for the principles of equality and freedom.

 

 

GIAN PAOLO DOLSO

Principio di eguaglianza e diritto penale, Osservazioni a partire dalla recente giurisprudenza costituzionale

(02.11.15)

Abstract

The contribution concerns the use of the principle of equality by Italian constitutional Court in criminal law. In the field of criminal law, and with specific regard to matters relating to the penalty, the Court appears to use both the principle of equality and that of reasonableness. With regard to the constitutionality control of the penalty, the proportionality parameter is also used. The Court intervenes on the congruity of penalties more often than is believed: the most appropriate parameter, on trhe basis of the case-law, and in the light of scholars  opinion, seems to be that based on the principle of reasonableness

 

 

MATTIA CAIAZZO

Il ‘‘seguito’’ dell’abrogazione referendaria sull’adeguata remunerazione del capitale investito

(19.10.15)

Abstract

This article deals with the June 2011 referendum affair, reflecting on the admissibility sentences of the abrogative referendum also in consideration of the jurisprudential and doctrinal debate on the object of the institute

 

 

UGO ADAMO

L’amparo constitucional in Spagna: passato, presente e futuro del ricorso diretto al giudice costituzionale tra natura soggettiva e oggettiva del controllo

(17.09.15)

Abstract

The ampar constitucional in Spain: past, present and future of the direct appeal to the constitutional judge between subjective and objective nature of control

This work analyzes the latest modification of the amparo constitucional in the Spanish constitutional justice system from a double perspective: the reasons for the change and the jurisprudential implementation of this reform. The author aim also to focus the repercussions of the direct appeal for the protection of fundamental rights in the Spanish system on the future of the amparo constitucional reform (U.A.).

 

ALBERTO MARCHESELLI – STEFANO MARIA RONCO, L’“incostituzionalità differita” della c.d. Robin Tax, tra diritti fondamentali, analisi economica del diritto e diritto dell’Unione europea: il futuro della fiscalità tra nuove categorie concettuali e rischi di “teratogenesi” giuridica

(04.09.15)

Abstract

This contribution analyzes the sentence no. 10 of 2015, reflecting on the temporal limitation and on the protection of the budget balance made by the decision. The authors study the critical profiles of the decision regarding the limitation of temporal effects, underlining its partial difference from the orientation of the Court of Justice. Eventually, the authors focus on the merit of the sentence, trying to provide different arguments suitable to justify the Robin Tax.

 

 

PARTE II

LIBRI E RECENSIONI

 

 

ANTONELLO LO CALZO

Recensione (Il complesso rapporto tra legittimazione degli organi rappresentativi e garanzia delle prerogative)

a Giampiero Buonomo, Lo scudo di cartone. Diritto politico e riserva parla-mentare, Soveria Mannelli, Rubbettino Editore, 2015, pp. 288, ISBN 978-88-498-4440-5

Abstract

Review

The book by G. Buonomo offers an accurate reconstruction of the origins and developments of the parliamentary prerogatives through an accurate investigation from the diachronic and synchronic point of view, also providing a series of interesting indications on parliamentary case studies. The matter is particularly “intricate” if we consider the use made over the years of parliamentary prerogatives, often at the basis of a considerable conflict between “politics” and the judiciary. Therefore, it is necessary to find a point of equilibrium between opposing principles, to prevent that a prerogative becoming a personal privilege.

 

 

LARA TRUCCO

Recensione

a Giampiero Buonomo “Lo scudo di cartone. Diritto politico e riserva parlamentare, Soveria Mannelli, Rubbettino Editore, 2015, pp. 288, ISBN 978-88-498-4440-5

Abstract

Review to Giampiero Buonomo «The cardboard shield. Political law and parliamentary reserve», Soveria Mannelli, 2015.

Lara Trucco offers the reader a view of Giampiero Buonomo's book dedicated to questions concerning the parliamentary immunity, with particular regard to constitutional jurisprudence. The book carries out a complete analysis of the institute, also in a comparative perspective, with the aim to find its origins and to retrace its meaning and its function over the centuries ... up to the present time. Thus, almost as in a journey through time, the reader is introduced and involved in the search for the «shield» within the «History» and «in the models of parliamentary immunities» in some of the most ancient European democracies (L.T.).