Lecture 23

Question 1

The Constitutional Court: Role– rigid Constitution (amending process, protection, level source of law)

Answer 1

• The Italian Constitution is a «rigid» Constitution
  1. Reinforced procedure to amend the Constitution
  (article 138 Cost.)
  2. The Constitution is the highest source of the law in the legal system. The Constitution must prevail in the event of a conflict with a primary source of the law (hierarchical criterion)
• The rigidity of the Constitution must be protected by a constitutional body that adjudicates cases of
  possible violation of the Constitution and annuls constitutionally incompatible primary sources of the law (constitutional review)

Question 2

The Constituional Court: Role– Debate in Constituent Assembly

Answer 2

• Debate in Constituent Assembly: which constitutional
  body should be vested with the power of
  constitutional review of legislation?
  1. Not the Judiciary: the judge is subject only to the
  law, so they cannot be the «judge of the law»
  2. Not the President of the Republic: represents national unity, cannot perform a case-by-case review of the primary sources approved by Parliament, Government, Regions
• The power of constitutional review should be
  conferred to a new power of guarantee separated
  and independent from the other constitutional
  bodies: the Constitutional Court

Question 3

The Constitutional Court: Role–System of Constitutional Justice

Answer 3

• The Italian system of constitutional justice is,
  mainly, judicial, centralized, repressive (a
  posteriori), incidental
• Some elements of the model are «mixed» (elements of other models of constitutional justice)
  1. The President of the Republic performs a form of preventative (a priori) constitutional review (law and legislative decree)
  2. The Judiciary is tasked with the power of «filtering» questions of constitutionality (form of decentralized review)
  3. In some cases: possible direct access to
  constitutional justice

Question 4

The Constitutional Court: Composition

Answer 4

• The Constitutional Court is composed by 15
  constitutional judges (art. 135 par. 1 Cost.)
  1. 1/3 (5) appointed by the President of the
  Republic (formal and substantial presidential power)
  2. 1/3 (5) elected by the Parliament in Joint Session (with a qualified majority: 2/3 of the total components for the first three votes, then 3/5 of the total components; secret vote)
  3. 1/3 (5) elected by the Supreme Courts of the
  Italian jurisdiction: 3 Court of Cassation, 1 Council of State, 1 Court of Accounts (by absolute majority)
• Composition guarantees the independence and
  autonomy of the Court
• The Court needs at least 11 (out of 15) judges to
  function
• Special composition: 15 constitutional judges + 16 “aggregate judges” (citizens) for the judgement on
  the impeachment of the President of the Republic

Question 5

The Constitutional Court: Judges

Answer 5

• All the judges must be selected among:
  1. Full Professors of Law
  2. Lawyers with at least 20 years of practice
  3. Judges of the Supreme Courts (also retired)
• Term of office: 9 years with no immediate reeligibility. The long term of office guarantees the independence of the constitutional judges from the bodies that selected them
• No prorogatio for constitutional judges: the
  functioning of the Court is guaranteed by the turnover (judges are not selected “en bloc”)
• Incompatibility with the position of: MP; member of a Regional Council; legal professions; public or
  private employment or office; administration of
  public and private bodies; industrial or professional activity; political activity; (members of the Judiciary and professors are placed on mandatory leave)
• Constitutional judges cannot be removed or
  suspended (unless the Court itself decides so, with a 2/3 majority vote)
• Immunity: constitutional judges cannot be prosecuted, without a “leave” granted by the Court itself
• Remuneration: at least equal to that of the Chief
  Judge of the Court of Cassation
• Prerogatives guarantee the independence and
  autonomy of the Court and its judge

Question 6

The Constitutional Court: Composition– President

Answer 6

• The Constitutional Court elects its President
  1. Elected by the Court among its members for 3 years (re-electable)
  2. Absolute majority vote with a possible runoff vote in the third ballot
  3. Exercises representative functions, assigns cases to judges, presides over hearings
  4. Casts the tie-breaking vote
  5. Supervises the administrative services supporting
  the Court’s activities
• Offices of the Constitutional Court: support the Court in the exercise of its functions

Question 7

The Constitutional Court: Composition– Decisions and Functioning (art. 137)

Answer 7

• The decisions of the Constitutional Court are taken by a secret vote
  1. The decision is presented to the public as a unanimousone (even if it was not)
  2. No dissenting opinions
• The functioning of the Constitutional court is
  regulated by article 137 Cost.
  1. A constitutional law shall establish the conditions, forms, terms for proposing judgements on constitutional legitimacy, and the guarantees of the independence of constitutional judges (const. law no. 1/1948)
  2. Ordinary laws shall establish the other provisions
  necessary for the functioning of the Court (law no.
  87/1953)

Question 8

The Constitutional Court: Powers

Answer 8

The powers of the Constitutional Court
- Incidenter constitutional review of legislation (incidenter= “indirect” constitutional review; a claim filed by an ordinary court judge during regular trials)
- Principaliter constitutional review of legislation (principaliter= “direct” constitutional review; questions of constitutional review directly submitted by the Government or the Regions)
- Constitutional conflicts between national powers and
regional powers
- Constitutional conflicts between powers of the State
- Impeachment against the President of the Republic
- Admissibility of abrogative referendum

Question 9

The Constitutional Court: Powers– Incidenter Constitutional Review

Answer 9

• A primary source of the law (ordinary law, lawdecree, legislative decree, regional law) becomes relevant during a trial (civil/criminal/administrative, etc.) before a judge (“a quo” judge)
• The judge “suspects” that the primary source of the law that should be applied to the case at hand could be incompatible with the Constitution
• The judge may promote the constitutional review ex officio, or on the proposal of the parties of the trial
• The judge raises a question of constitutionality before the Constitutional Court (with an “order”)
• Requirements
  1. The question must be relevant for the case at hand (e.g.: the challenged legislative provision must be applied to decide the case)
  2. The question must not be clearly ungrounded (e.g.: the judge has at least a serious “doubt” on the unconstitutionality of the legislative provision, having already tried to interpret it in a way that is compatible with the Constitution)
• The order that raises the question of constitutionality must contain
  1. The object: the primary source of the law on which the question is raised (e.g.: ordinary law, acts having the force of law, regional law. NO secondary sources of the law, such as regulations, or constitutional-level sources of the law, such as constitutional laws)
  2. The parameter: the constitutional provision/s that the primary source of the law could be violating
  3. The motivation on the requirements (relevant, not clearly ungrounded question)
• Wide interpretation of the concept of “judge”: every neutral body that interprets and applies the law in
  order to adjudicate a legal dispute, even if it does not belong to the Judiciary
• E.g.: The Supreme Council of the Judiciary (disciplinary sections), National Council of Lawyers
  (disciplinary functions), the Constitutional Court itself, are “judges”
• The public prosecutor is not a “judge”
• The trial before the a quo judge is suspended
• The preliminary order that raises the question of Constitutionality is notified to the President of the Council of Ministers and to the Presidents of the Houses, and it is published on the Official Bulletin
• “Similar” trials can be suspended at the judge’s discretion
• The parties of the a quo trial can participate in the trial before the Constitutional Court
• The President of the Council is, by law, a party of the trial before the Constitutional Court
  1. He acts in defense of the law (regardless of their political orientation)
  2. Through the “Avvocatura dello Stato” (lawyers of the State)
• First “filter”: preliminary orders (“ordinanze”)
  1. Acts could be sent back to the a quo judge - Legislative amendments, entered into force after the question had been raised (“ius superveniens”)
  2. Inadmissibility or manifest inadmissibility (e.g.: the judge has not motivated on the relevance or identified the object or parameter; the question does not involve a primary source of the law; procedural errors)
  3. Clearly ungrounded question (e.g.: the Court recently rejected an identical question)
• If the question of constitutionality goes through the “filter”: the Court will examine the merits of the case and adjudicate it with a final judgment (decision / “sentenza”)
• The incidenter constitutional review trial is nondisposable: once it starts, the parties cannot
  renounce it. The Constitutional Court must adjudicate the case in the (public) interest of the law (eliminating unconstitutional primary sources of the law from the legal system)