Consulta OnLine (periodico online) ISSN 1971-9892

 

 

INDICE PER AUTORI

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2022/II

maggio-agosto

 

PARTE I

STUDI

 

 

ultimi contributi pubblicati

 

 

 

 

ANTONIO IGNAZIO ARENA

La questione di fiducia nella formazione delle leggi ordinarie: quali limiti costituzionali

Abstract

(28.06.22)

The paper concerns the “matter of confidence” and its constitutional limits in Italy. In the paragraphs 2-3 it focuses on thesis based on the symmetrical character of bicameralism and on the supermajority rule. In the paragraphs 4-7 it is argued that Government could not designate a particular vote to be a matter of confidence in proceedings through which the Parliament controls the executive. It is doubtful instead that a matter of confidence on a “total amendment” is unconstitutional. In the third and last part of the essay (paragraphs 8-10) are analyzed constitutional limits to the matter of confidence in the regional order.

 

 

UGO ADAMO

È (resterà) due senza tre? Sull’“incostituzionalità prospettata”: criticità ulteriori di una tecnica decisoria già di per sé problematica

Abstract

(28.06.22)

The paper examines Constitutional Court’s ordinance n. 122/2022, which postpones for a second time the decision on the constitutionality of life imprisonment. The “postponement of referral” opens to a series of additional critical issues of a decision-making technique that is already problematic in itself. Currently, there is still a lack of comprehensive jurisprudence able to clarify and solving some of the problems posed by the use of the “proposed unconstitutionality”, among others the definition of the time duration of the deferral to be granted (variable or standard) and the same reasons as the use or not of the deferral to a fixed date. All this makes at least unpredictable the application of the decision-making technique that the paper critically examines..

 

 

ARMANDO LAMBERTI

Libertà di informazione e democrazia ai tempi della società digitale: problemi e prospettive

Abstract

(20.06.22)

The Internet, with its promises of unprecedented democratic openness to a public debate that is finally equal, thanks to the possibility for each citizen-user to be able to share their ideas with a potentially planetary community without having to have enormous economic capacities, unfortunately seems to have betrayed the expectations. Search engines and social networks with global reach have ended up holding a quasi-monopolistic position in their respective markets and have significantly changed the context in which fundamental activities for our democracies take place, such as those related to the expression of thought of individuals and freedom. of information.

The search for remedies, but for the moment still mild, is underway: it is in fact necessary to realize that we are in the presence of an epochal challenge for the law, and in particular for constitutional law, which must be faced and overcome, in the name of a vision which reaffirms the centrality of the human person in the face of the logic of profit of the new protagonists of technological capitalism.

 

 

ELENA SAMMACICCIO

La Corte e il processo telematico: valutazioni e prospettive dopo la pandemia

Abstract

(18.06.22)

The evolution of the sanitary emergency has led the Italian Constitutional Court to rethink its procedural rules, which until that moment did not reckon on telematic procedures. By introducing the new “Norme integrative”, the Court has started a new procedural experience, replacing the old methods of filing deeds and documents with a computerized portal, called e-Cost, which allows them to be filed electronically. Among the merits of this reform it is noted, first of all, the speed and efficiency that this new mechanism is destined to bring, even if its practical and applicative implications, impacting on the whole legal system, will require the Court itself to reflect about the direction to take in the future.

 

 

GIORGIA NICOLO’

La pena pecuniaria come sanzione sostitutiva di pene detentive brevi: riflessioni a margine della sentenza della Corte costituzionale n. 28 del 2022, in attesa della riforma Cartabia

Abstract

(18.06.22)

The discipline of the pecuniary sanction currently in force presents gaps and inaccuracies such as to compromise its effectiveness. In fact, the disparity between the complexity of the offense and the amount of the pecuniary sanction in lieu of a short prison sentence, through the lens of the principle of proportionality, allows to recognize numerous criticalities. With the sentence in question, the Constitutional Court therefore intervened in order to guarantee a sort of "second degree" proportionality, in order not to see the correspondence between the gravity of the fact and the aggressiveness of the sanctioning response cancelled.

 

 

QUIRINO CAMERLENGO

Valori e identità: per un rinnovato umanesimo costituzionale

Abstract

(15.06.22)

Values and Identity are two elements that can conflict. Values express specific points of view. Identity makes a Person unique and unrepeatable. can values define personal Identity? This article aims to describe a methodological path so that Values can legitimately condition the process of progressive building of personal Identity. The first part is dedicated to the study of personal Identity, examined in its three components: individual Identity, social Identity, constitutional Identity. In the second part I will support the thesis according to which Values can perform that function only if transformed into constitutional Principles: Values will be understood as ideal conceptions of Society. The third part will be dedicated to the construction of a structure with concentric circles where the nucleus is the Person. The three rings of Proximity, Sovereignty and Integration gravitate around the nucleus. Through the constitutional Identity, the Person will be able to consciously participate in the relationship with other People in a space of constitutional Humanism where Citizenship is not the necessary condition.

 

 

MARIA ASSUNTA ICOLARI

I criteri giuridici della tassazione ambientale e il bisogno di un nuovo modello per favorire l’integrazione europea e il regionalismo

Abstract

(07.06.22)

After the reform of articles 9 and 41of the Italian Constitution environmental protection is back as an emergency from which human life arises. Starting from the assumption that your health is a condition of differentiation also of the economic conditions between all, the writing that follows intends to investigate on what environmental taxation can do to contribute both to the realization of a European Union, jury regionalism in Italy. Therefore, after a brief introduction on the current state of environmental taxation, remarking its residual character within the order, due to the absence of an environmental prerequisite as ordering criteria, the examination aims at the tax forecast of a European tax approved by a qualified majority for the use of the “passerella” clause. If at the European level everything turns around the exceeding of the unanimity criteria, in the regional context, instead, while waiting for the completion of the tax autonomy, continuing to foresee environmental correspectives may contribute to natural asset, for another versus, to lower the national tax pressure.

 

 

OMAR CARAMASCHI

Diritto alla vita e diritto all’autodeterminazione: un diverso bilanciamento è possibile? (a margine di Corte cost., sent. n. 50/2022)

Abstract

(03.06.22)

The paper examines the judgment no. 50 of 2022 of the Italian Constitutional Court relating to the inadmissibility of the request for an abrogative referendum concerning the article 579 (consensual homicide) of the Italian Penal Code, also dealing with the issue of the balance between the right to life and the right to personal self-determination in matters of “end of life”.

 

 

MARINA ROMA

La Corte costituzionale su reddito di cittadinanza e reddito di inclusione. Bisogni primari degli individui e limite delle risorse disponibili

Abstract

(03.06.22)

With judgments no. 19/2022 and 34/2022, the Constitutional Court ruled on the questions of constitutionality of the provisions on the eligibility requirements to access the citizenship income and the inclusion income.

The Court has the opportunity to mention its previous case-law, but at the same time to focus on the above-mentioned instruments.

In the background - and expressly mentioned in judgment no. 19/2022 - is the issue of the lack of financial resources to cover the assistance measures in question.

 

 

 

MARCO MARAZZINI

Emergenza politica e custodia della Costituzione. Il contributo di Kelsen e Schmitt nel contesto del processo Prussia contro Reich del 1932

Abstract

(31.05.22)

The essay retraces the controversy between Hans Kelsen and Carl Schmitt on the 'Custody of the Constitution' in the light of the historical events of the end of the Weimar Republic. Methodologically, it starts from the idea that it is useful to study legal ideas as historically given in their political and social context. It will be shown how the theoretical positions of the two great jurists on the protection of the constitutional order, jurisdiction and emergency were reflected in the 1932 Prussia v. Reich trial. It is precisely this hard case that offers the opportunity to measure the impact of jurists, courts and institutional actors on a situation of ‘political’ emergency.

 

 

LUCA BARTOLUCCI

Riforma dei regolamenti parlamentari e Piano Nazionale di Ripresa e Resilienza

Abstract

(24.05.22)

The National Recovery and Resilience Plan (NRRP) is a tool that could cause a profound transformation of Parliaments, which must reinvent their ability to think in the medium-long term. However, no adjustments have been made so far at the parliamentary level. A "window of opportunity" for the reform of parliamentary rules of procedure is offered by the constitutional law (n. 1/2020) on the reduction of the number of MPs. The objective of the paper, therefore, is to identify the areas in which parliamentary rules of procedure could be adapted with an eye to the implementation of the NRRP, using this tool to correct some pre-existing gaps that have characterized the life of the Chambers, also by improving the legislative procedure, without leading to serious upheavals.

 

 

ALESSANDRA CAMAIANI

“Il fine non giustifica i mezzi”: la Corte costituzionale frena gli entusiasmi referendari sul fine vita, ma salva l’ordinamento da un grave vuoto sanzionatorio

Abstract

(20.05.22)

After having reconstructed the reasons for the inadmissibility of the referendum on the murder of the consenting person, the paper examines the criticalities of the exploitation of democratic institutions for purposes other than those for which they are set up. The choice of the Constitutional Court is therefore approved even if an inappropriate return to the concept of unavailability of life is contested.

 

 

STEFANO ROVELLI

Azionabilità del diritto al giudice naturale, rule of law e dignità dell’ordine giudiziario

Abstract

(12.05.22)

The right to a natural judge previously established by law is currently recognised as one of the cornerstones of the rule of law in Europe. In the light of a number of judgments pronounced on the subject by supranational courts, the essay examines the paradox of the Italian situation in which, in the face of the formal recognition of the strong conception of this right and of its decisive role in the construction of the democratic judicial system, domestic case law has denied a specific and effective jurisdictional remedy for its protection to the person party to the judicial proceedings. In particular, the essay aims to lay the groundwork for overcoming this paradox on the basis of the rediscovery of the foundation of the right under consideration on that value of the dignity of the judicial order which, in its being a direct emanation of the rule of law, makes it possible to define a new model of the right to the natural judge previously established by law which is indispensable to ensure the trust that people must be able to place in the judicial system in a democratic society.

 

 

ANTONIO RUGGERI

I principi fondamentali dell’ordinamento costituzionale tra interpretazioni storicamente orientate e revisioni a finalità espansiva

Abstract

(12.05.22)

The paper highlights the importance possessed by the historically oriented interpretation in order to grasp the essence of the fundamental principles of the constitutional order and therefore focuses on the need, expressed by the same principles in question, of their updating with the forms of constitutional revision where no longer the resources offered by interpretation help, in order to be able to assert oneself at best, under the objective conditions of the context. Finally, he focuses on the importance possessed by cultural habits widespread in the social body that vigorously push for the revision of the Charter, as was recently the case with the changes made to Articles 9 and 41.

 

 

FEDERICO GIRELLI

L’“ordinanza Cappato” e il fattore tempo nella giustizia costituzionale

Abstract

(09.05.22)

The ordinance n. 207 of 2018 of the Constitutional Court inaugurates an entirely new decision-making technique. It does not simply contain a warning addressed to the legislator but punctually identifies the illegitimacy profiles of the contested legislation and establishes a deadline within which the legislator can remedy the defects found. In other words, it outlines the contents of the decision that will be adopted in the event of inaction by the legislator. Therefore, constitutional justice is rendered "in two steps": once the term elapsed, the Court decides definitively since the legislator did not use of the time he had.

 

 

FRANCESCO TORRE

L’assegno per il nucleo familiare sfugge dalla morsa della doppia pregiudizialità: occasione mancata o balzo in avanti per il dialogo tra Roma e Lussemburgo? (prime riflessioni a margine della sent. n. 67/2022)

(09.05.22)

Abstract

The paper analyses the recent Constitutional Court, ruling no. 67 of 11 march 2022, concerning the recognition of family benefits (ANF) for non-EU citizens. However, in this judgment, the Court did not effectively declare directly the unconstitutionality of the Italian rules on the ANF.  Instead, it mandated the Court of Cassation with the task of disapplying those rules. The present work also seeks to offer a broader view of the connections between Judgment no. 67 and Judgment no. 54/2022 all of which appear to be linked by a common thread.

 

 

AURORA VESTO

Capacità di autodeterminazione, disagio psichico e rilevanza giuridica dei trattamenti sanitari

(09.05.22)

Abstract

This paper analyzes the individual’s self-determination capacity within the health sector, with particular reference to both mandatory health treatments (individually implemented) and mandatory vaccinations. Under such circumstances, therapeutic self-determination is weakened whenever the health of the individual, from one hand and of the community, from the other one, appears to be compromised. Considering the specific case, a significant role is actually played by Artificial Intelligence, which with modern instruments, with regards to specific cases of compromised physical fragility, may achieve a compensatory function of the condition of human vulnerability. In fact, well-beingmay be achieved through interaction with technology, as well; therefore, the category of legal capacity should be observed in the light of the binomial “access-capacity”, the exclusion of which may finally result in a potential damage to the individual’s health. The hermeneutic approach takes place along the lines of the principles of subsidiarity and solidarity in the axiological primacy of public health; in particular, the principle of horizontal subsidiarity plays a preferential role in the realization of the interest in well-being, which unfolds its effects in a perspective of inclusion and enhancement of private autonomy. Furthermore, within the balance between an individual and a collective interest, the concept of health takes on relevance according to a solidaristic declination that does not legitimize an “omnivorous” vision of the individual’s self-determination (as recently noted by the Council of State), but which finds realization in a behavior teleologically oriented towards satisfying the prevailing interest.

 

 

ALESSIA-OTTAVIA COZZI

Per un elogio del primato, con uno sguardo lontano. Note a Corte cost. n. 67 del 2022

(07.05.22)

Abstract

The Italian Constitutional Court (ItCC) judgment no. 67 of 2022 is marked by two aspects. Firstly, the recognition of primacy as the architrave of the European system and its values, and at the same time the driver of the domestic system, in a legal system in which the Courts assume and act as guarantors of reciprocal rights and obligations. Secondly, the persistent vitality of disapplication, the traditional way of guaranteeing the primacy of EU law, which the new approach introduced by the ItCC’s decision no. 269 of 2017 had made less certain. Arguably, the reasons for reaffirming the primacy do not depend on the case in question, but on the need, in the face of the rule of law crisis and, today, of a new war in the continent, to reaffirm the values on which the European Union is based.

 

 

MARGHERITA CORVASCE

L’intervento del Presidente del Consiglio dei ministri nel giudizio di legittimità costituzionale in via incidentale: spunti ricostruttivi alla luce della recente prassi giurisprudenziale

(04.05.22)

Abstract

The contribution intends to analyze the Prime Minister’s presence in the judicial review cases and highlight the problems raised by the participation of the Head of Government in the constitutional judgment, still considered an "enigma" by the doctrine. After examining the substantive and procedural profiles of the subject of study, will be addressed the issue of the relations between the Prime Minister and his legal representative - the State Legal Service - and between the Prime Minister and the other constitutional bodies - Council of Ministers and Parliament -, in the light of the provisions contained in Law 400/88. The institution in question is characterized by significant cognitive limits, generated by the impossibility of knowing the preliminary phase of the question of constitutional legitimacy, which takes place entirely within the Presidency of the Council, and of accessing the documents that the Presidency sends to the defense, in the case in which it opts to intervene in court. For this reason, in order to investigate the conduct of the Prime minister in court, a case study of the measures issued by the Constitutional Court in 2020 and 2021 was carried out.

 

 

SIMONE FREGA

L’accordo di “donazione futura” dell’aspirante candidato con il partito per le elezioni politiche e la successiva richiesta di detrazione fiscale per l’erogazione effettuata (alcuni spunti di riflessione sulla sentenza n. 207 del 2021)

(04.05.22)

Abstract

The article regards a judgment of the Italian Constitutional Court, which declares unfounded the request to affirm unconstitutional the Article 11, c. 4-bis, of Decree-Law No. 179/2014, formulated by the Trento Tax Commission. Especially, the sentence allows to explore a particular practice, which consists in a stipulation of a contract between candidate or elected people and the politician party or movement. This practice may not respect the principles of the Italian Constitution in the field of political rights (such as, i.e., Articles 3 and 49 of the Italian Constitution) but, in any cases, it is certainly not an appropriate practice

 

 

FRANCESCA MAURI

La Corte costituzionale tra questione di genere, discrezionalità del legislatore ed esigenza di preservare l’armonia del sistema (a margine della sentenza 1/22 della Corte costituzionale)

(03.05.22)

Abstract

The paper analyzes the decision 1/2022 of the Italian Constitutional Court on the constitutionality of the gender-based selection of boarding school educators. Focusing on the Court’s reasoning, the paper investigates the relationship between the Constitutional court and the legislator concerning sensitive issues requiring an interpretation of the collective will

 

 

FRANCESCO ALBERTO SANTULLI

«Quando il mio ultimo giorno verrà»: brevi riflessioni a margine di Corte cost. n. 50/2022 in materia di omicidio del consenziente

(02.05.22)

Abstract

With judgement n. 50 of 2022, the Constitutional Court declared the inadmissibility of the referendum on the partial abrogation of the felony of consensual homicide, provided for by art. 579 of the penal code. Nevertheless, it is clear that public opinion believed that the referendum would have had euthanasia as its object. This short article intends to highlight the reasons followed by the Court to clarify how a new legislation on the matter of the “end of life” cannot pass through the expulsion from our legal system of a constitutionally necessary law – as art. 589 represents for the protection of vulnerable subjects – but requires an organic measure, preferably by the Parliament.

 

 

 

 

Consulta OnLine (periodico online) ISSN 1971-9892