Lecture 24

Question 1

The Constitutional Court: Decisions (+ publication and parties to be notified)

Answer 1

Types of decisions (“sentenze”)

• Acceptance : The legislative provision is declared constitutionally illegitimate, and it is annulled “ergaomnes” and “ex tunc”
• Rejection: The question of constitutionality is declared ungrounded and therefore the legislative
  provision remains in force
• In both cases, the decision is communicated to the aquo judge and to the Houses, and it is published on the Official Bulletin

Question 2

The Constitutional Court: Decisions– Acceptance; “Pure” acceptance

Answer 2

The legislative provision is declared constitutionally illegitimate

Question 3

Constitutional Court: Decisions– Acceptance; interpretative acceptance

Answer 3

The legislative provision is declared constitutionally illegitimate in one of its possible interpretations (the one selected by the judge a quo): the legislative disposition remains effective in its “text”, but cannot be interpreted in the way declared unconstitutional

• E.g.: Possibility for the convicted alien that is illegally in the territory of the Republic to access sanctions alternative to detention (Corte Cost. 78/2007)

Question 4

Constitutional Court: Decisions– Acceptance; manipulative-additive

Answer 4

The provision is declared unconstitutional because the text DOES NOT contain (lacks) something. The Court adds the part needed to make the provision compatible with the Constitution

• E.g.: art. 304 bis c.p.p. did not allow the defendant’s lawyer to participate in their questioning (Corte Cost. 190/1970)
• E.g.: “Cappato case”: art. 580 c.p. unconstitutional for the part in which it did not contain an exception for cases of “active euthanasia” such as that of “DJ
  Fabo”) (Corte Cost. n. 242/2019)

Question 5

Constitutional Court: Decisions– acceptance; manipulative-ablative

Answer 5

The provision is declared unconstitutional because the text DOES contain something that it should not contain. The Court removes (only) the part that makes the provision incompatible with the Constitution

• E.g.: law on public security, limited to the part in which it allowed police officers to perform“personal inspections” (Corte Cost. n. 30/1962)
• E.g.: art. 2109 c.c. envisioned the workers’ right to enjoy paid holidays only “after one consecutive year of employment” (Corte Cost. n. 66/1963)

Question 6

Constitutional Court: Decisions– manipulative-subsitutive

Answer 6

The provision is declared unconstitutional because the text DOES contain something that it should not contain INSTEAD of something else that it should contain (“mixed” additive and ablative judgement)

• E.g.: replacement of the text of the civil law oath with that of the criminal law oath (Corte Cost. n.149/1995)
• E.g.: “Leave” in the cases of contempt of the Constitutional Court (Corte Cost. n. 15/1969)
• E.g.: harshest punishment for contempt of the catholic religion than that for contempt of other religions (Corte Cost. n. 168/2005)

Question 7

Constitutional Court: Decisions– accusation against manipulative decsisions

Answer 7

• Manipulative decisions are regarded by some as problematic, as the Constitutional Court could be accused of exercising some form of legislative power (creating or amending the law)
• The Court developed the theory of the “rhyming couplets” (“rime obbligate”)
• Possible constitutional conflict between powers of the State (Parliament vs. Constitutional Court)

Question 8

Constitutional Court: Decisions– acceptance; additive of a principle

Answer 8

The Court does not add a detailed rule to the unconstitutional provision, but rather a general principle, that the legislator (and executive) will have to implement

• E.g.: the law on disability, for the part in which it stated that attendance of high school for disabled students must be “facilitated”, rather than “ensured” (Corte Cost. n.215/1987)

Question 9

Constitutional Court: Decisions– acceptance; pro futuro/ pro preaterito

Answer 9

The legislative provision is declared constitutionally illegitimate but only for a certain period of time (in the past or for the future). The Court limits the effects of its judgement

Question 10

Constitutional Court: Decisions– rejection; “Pure” rejection

Answer 10

The question of constitutionality is declared ungrounded

Question 11

Constitutional Court: Decisions– rejection; interpretative rejection

Answer 11

The question is declared ungrounded because the a quo judge has incorrectly interpreted the legal provision. A different interpretation that would make the provision constitutional exists

• What if the Judiciary does not stick to the interpretation of the Constitutional Court?
• The Court (in a future case) could adopt an interpretative acceptance judgment

Question 12

Constitutional Court: Decisions– rejection; non-declared unconstitutionality

Answer 12

The Court finds that the provision is unconstitutional, but annulling it would have unconstitutional effects in the legal
system (e.g.: representation at the State’s expenses)

Question 13

Constitutional Court: Decisions– rejection; exhortative

Answer 13

The question is declared ungrounded but a legislative intervention on the matter is urgent (meaning that a future similar question of
constitutionality may be accepted by the Court if the legislative power has not intervened in the
meantime)

Question 14

Constituional Court: Decisions– effects of acceptance (consequential unconst.?)

Answer 14

• Erga omnes annulment (the provision is removed from the legal system)
• Ex tunc (retroactive) annulment
• Limit to retroactivity: “closed” legal relationships
• Exception to the limit: criminal convictions (the conviction is immediately terminated)
• “Consequential” unconstitutionality: provisions closely connected to the one that was annulled

Question 15

Constitutional Court. Decisions– effects of rejection (reproposal of the question?; change of mind of the CC?)

Answer 15

• The question is declared ungrounded inter partes (effects limited to the parties of the a quo trial)
• Not a “patent of constitutionality” of the provision
• The same question can be raised in another case, or even in the same case (with a different motivation or in an eventual subsequent instance)
• The Constitutional Court can “change its mind” reflecting the evolution of the Italian society (e.g.: adultery; “maso chiuso”)

Question 16

Constitutional Court: Powers– Principaliter (direct) constitutional review (time-frame to submit constitutional question)

Answer 16

• The parties are the State and one or more Region/s
• Region vs. State for violation of regional
  competencies under Title V of the Constitution
• State vs. Region for any violation of the Constitution
• Within 60 days from the publication of the challenged primary source of the law
• Same process as the incidenter constitutional review
• Difference: possible to renounce the judgement

Question 17

Constitutional Court: Powers– constitutional conflict between state’s powers; subjective and objective element

Answer 17

• Subjective element: any body vested with the power to express the final will of a branch of the State vs. any other body vested with the power to express the final will of another branch of the State (separation and balance of powers)
• E.g.: Parliament, Government, Constitutional Court, Judiciary, ARE powers of the State
• E.g.: A single Minister, a citizen, a political party, ARE NOT powers of the State

Objective element: a dispute over the sphere of power assigned to each of the litigating bodies by constitutional sources

Question 18

porcamadonna

Answer 18

A dispute over the sphere of power assigned to each of the litigating bodies by constitutional sources

Question 19

Constitutional Court: Powers– constitutional conflict between state’s powers; vindicatio protestatis and denegation potestatis

Answer 19

• Vindicatio potestatis: body of the State claims that one of its constitutional powers was usurped by another body of the State (e.g.: Parliament vs.
  Judiciary)
• Denegatio potestatis: a body of the State claims that another body of the State prevented it from exercising one of its constitutional powers (e.g.: Judiciary vs. Parliament; MPs on budget law)
• Two bodies of the State refuse to exercise a constitutional power, each of them claiming that it belongs to the other
• Each of the litigant bodies of the State stands before the Constitutional court, assisted by lawyers
• Preliminary order on admissibility (“filter”)
• Decision on the merits
• If the Court finds that the conflict is grounded, it
  declares which body is vested with the disputed
  constitutional power, and annuls the act that
  interfered with that power

Question 20

Constitutional Court: Powers– constitutional conflict between national and regional powers (subjective and objective element, representation of the two parties)

Answer 20

• Subjective element: a body of the State and a body of the Region, or two bodies of two Regions
• Objective element: any “act” which is NOT legislative (e.g.administrative) adopted by a State’s body or by a Regional body outside of the sphere of competence of the State or of the Region
• The State is represented by the President of the Council of Ministers and the Region by the President of the Region, assisted by lawyers
• Same process as the conflict between powers of the State

Question 21

Constitutional Court: Powers– other powers

Answer 21

• Impeachment of the President of the Republic
  (special composition). Adjudicated with a guilty/not guilty verdict
• Admissibility of abrogative referendum: express
  and implicit constitutional limits. Adjudicated with
  an admissible/inadmissible decision