9: Constitutional Justice Pt. 2

Question 1

What are the 7 other functions of Constitutional/Supreme Courts?

Answer 1

1. Jurisdictional dispute mediators between constitutional powers and territorial entities
2. Banning of unconstitutional political parties
   - e.g. Parties that undermine free democratic basic order or endangers the existence of the Federal Republic of Germany (Socialist Reich Party of Germany; Communist Party of Germany)
3. Decide the conformity of referendums with the Constitution
4. Given jurisdictions with regards to electoral disputes
5. Perform checks on the state of emergency
   - e.g. In France, the courts are consulted by the President when emergency measures are taken, and can perform checks after 30 days to see whether the conditions for a state emergency still exists
6. Jurisdiction with regard to the capacity of office
   - e.g. In France, the Constitutional Court may secure a vote of incapacitation of the head of state through an absolute majority and pass presidential powers to the Senate
7. Impeachment

Question 2

Describe the Italian Constitutional Court

Answer 2

• Regulated by Articles 134-137 of the 1948 Constitution
• For the first 8 years, as the Constitutional Court was nonoperational, constitutional adjudication was done by the Supreme Court
• Composed of 15 judges who who are selected using a mixed-system (appointed by President + election by Parliament + appointed by Supreme Court)
• Judges are appointed for 9 year terms with no re-elections, and are granted perks but must refrain fro other professional, political or associational activities

Question 3

What are the other functions of the Italian Constitutional Court?

Answer 3

1. Constitutional review of laws
2. Adjudicate (1) conflict between branches of government and (2) jurisdictional disputes over the allocation of powers between the State and Regions by declaring which party the competence belongs to
3. Impeachment
   - First, in parliamentary joint session, a committee investigates the charges throughout a five-month time frame
   - Then, an official report is presented and if the committee proposes impeachment, impeachment proceedings will be started by the Constitutional Court
4. Assess whether requests to hold an abrogative referendum are admissible

Question 4

What is the incidenter proceeding in the Italian Constitutional Court?

Answer 4

• There must be a pending court case concerning a concrete controversy
• Only relates to the question of unconstitutionality, which may be brought up by any of the two parties in court

The parties and judge must clearly indicate the:

1. Object of review: The provisions or acts which are considered unconstitutional
2. Parameters of review: The provisions of the Constitution which are presumed to have been violated

The judge must verify two conditions regarding the question of unconstitutionality before bringing the issue to the Constitutional Court:

1. Relevance to the case
2. Whether it is unfounded or not

Question 5

What is the principaliter proceeding in the Italian Constitutional Court?

Answer 5

• Used by the State to lodge a claim against a regional law
• Also used by the Regions to file a claim against a state law

The procedure for each differs:

1. The State must take action against regional law if the law is perceived as unconstitutional
2. Regions can only lodge a claim against a state law if it interferes with their competences

Question 6

What are the 5 types of decisions that the Italian Constitutional Court can make?

Answer 6

1. Decision of Inadmissibility: The question of
   unconstitutionality is inadmissible when the procedural conditions for the courts to decide the merits of the case are not satisfied
2. Full acceptance or full dismissal decisions
3. Interpretative judgement: Based on the contrast between provision and norm
   - Acceptance: The challenged provision has many norms, and one of the norms is found to be unconstitutional, thus the entire law is unconstitutional
   - Dismissal: The norm was misinterpreted, and should have been interpreted differently all along
4. Manipulative judgement (acceptance): Doesn’t label a provision as unconstitutional, instead modifies and integrates it in some way
   - Judgment of partial acceptance
   - Substitutive judgment
   - Additive judgement
5. Exhortative judgement (dismissal): The Court temporarily rejects the challenge and, thus, the constitutional review, yet invites the Parliament to with a “warning” to change the statute