Lecture 25

Question 1

Constitutional Rights: Personalist Principle– “The Republic recognises and guarantees the inviolable rights of the person”

Answer 1

• Constitutional rights pre-exist the Constitution: they are “recognized”
• They are rights of the “person” (they belong to every human being)
• They are “universal” rights
• What does “inviolable” mean? Absolute (erga omnes protection); non-disposable; non-expirable; unmodifiable
• General limit: respect of the rights of others
• Special limits: envisioned by the Constitution or by the jurisprudence of the Constitutional Court
• Concept of balancing of constitutional rights (and duties/interests)
• Concept of “hard” or “incompressible” core of constitutional rights
• The catalogue of constitutional rights: two theories
• Close list (articles 13-51 Cost.): no possibility of integrating new rights in the Constitution
• Open list (through article 2 Cost.): possibility to protect rights of third and fourth generations
• In practice: open catalogue (e.g.: right to housing; right to privacy; right to data protection; right to food; etc.). The catalogue adapts to the evolution of the Italian society
• Proliferation of rights: pros and cons– the development of one rights might cause the extent of another right to diminish (ex. if right to privacy increases, inevitably the right to freedom of expression and to information is restricted)– moreover it is difficult to determine which new rights are inviolable in nature and to which extent they should belong to this category

Question 2

Constitutional Rights: Personalist Principle– the categories of constitutional rights

Answer 2

• Civil rights: freedoms from the State (negative rights/protection)
• Political rights: rights within the State (rights of participation)
• Social rights: rights through the State (positive right/services)
• Economic rights
• “New” rights
• Oldest category of rights in Constitutional law
• Protection of the individual from the power of the Monarch (now, from the power of the State/Republic)
• They build a sphere of “intangibility” around the individual and their personality
• Negative rights: the State must not do something
• However, all negative rights also have a minimum positive content

Question 3

Constitutional Rights: Civil Rights– art. 13 rights to personal freedom

Answer 3

• Physical protection: the body of the individual
• Detentions: imprisonment of the body, any coercive personal restriction
• Searches: on the body to find the corpus delicti or material evidences of a crime (“perquisizione
  personale”)
• Inspections: to observe and measure the person
  (“ispezione personale”)
• Limited inspections or searches (that do not disrupt the physical sphere of the individual) are allowed
• Minimum sphere of civil rights: personal freedom is necessary to fully enjoy every other right
• Inviolable (also guaranteed by the Art. 6 of the EU Charter of Fundamental Rights)
• Recognized to all persons
• Also moral protection: the psychological freedom of the individual / dignity
• Personal liberty cannot be restricted except in cases and manners established by law (statutory limit); and except by order of the judiciary for which the reason must be stated (judiciary limit)
• in exceptional cases of ugrency, defined by law, police authorities may take provisional measures, which must be reported within 48 to the judiciary– in cases where the latter does not retifies the measures, then these are revoked ex tunc

Question 4

Constitutional Rights: Civil Rights– limitation to the right to personal freedom

Answer 4

• Limitations of personal freedom are allowed only in the cases and in the manner provided for by the law (absolute statutory limit)
• … And only with a motivated act of the Judiciary (jurisdictional limit)
• Exception: police can adopt provisional acts that limit personal freedom without a warrant by a judge in extraordinary cases of necessity and urgency
• Caught in the act of committing a crime (arrest)
• Investigative detention (“fermo”)
• The exceptional measures taken by the police must be notified to a judge within 48 hours, and they must be ratified by a judge within 48 hours (otherwise, they are revoked)
• The judge can adopt a precautionary measure
• serious evidence of culpability AND necessity to
• preserve authenticity of evidences or
• prevent the investigated from escaping or
• prevent the investigated from committing another crime
• Different kinds of precautionary measures: detention; house arrest; mandatory signature; etc.
• Harshest measure: Preventive detention (“custodia cautelare”). During preliminary investigations: judge for the preliminary investigation (“GIP”). During the trial: presiding judge
• General rule: proportionality (less afflictive
  measure)
• Preventive measures: ante delictum only for
  “suspicious” persons (persons that could probably
  commit a crime)
• Security measures: post delictum and post judgment(persons that have already served their conviction but that could still be “dangerous”)
• Heritage of the fascist era: complex constitutional compatibility

Question 5

Constitutional Rights: Civil Right– freedom of domicil

Answer 5

• The protection of the body of the person is extendedto the “domicile” of the person: the place in which the person develops their personality
• Absolute statutory limit and jurisdictional limit
• Individual right
• Inviolable (also guaranteed by art. 7 EU Charter of Fundamental Rights)
• Recognized to all persons

Question 6

Constitutional Rights: Civil Rights– what is domicile? (+ seizure, searches, inspections, preventive and conservative measures, general exception)

Answer 6

• What is a “domicile”?
• In civil law: the center of a person’s interests at a given time
• In criminal law: a person’s house
• In constitutional law: wide concept of “domicile”:
  any “dwelling” where a person may (legally)
  “isolate” themselves from the “outside” (e.g.: hotel
  room; office; car; etc.)
• Inspections: to observe and to measure the dwellings
• Searches: to find the corpus delicti or material evidence
• Seizure : to prevent everyone, save for authorized personnel, to access or dispose of the dwelling
• Conservative measures: e.g. to preserve collaterals for the payment of criminal fines or judicial fees (“sequestro conservativo”) (post delictum)
• Preventive measures: to block a continuous criminal activity or avoid the risk that a crime is committed again (“sequestro preventivo”) (post delictum)
• General exception: Administrative (not judiciary)
  non coercive controls (verifications and inspections) may be carried out without a warrant but only for public safety, for health or for economic and fiscal purposes (no delictum)