Lecture 27

Question 1

Constitutional Rights: Civil Rights– freedom of association

Answer 1

• Freedom to establish and to join an “association”
• “Association”: group of people linked by a stable
  and legally binding relationship, established for the pursuit of common aims and activities, with some
  form (even minimal) of stable organization
  (difference from freedom of assembly)
• Also includes the freedom not to join or to leave an association (nobody can be forced to be a part of an association)
• Individual right that must be exercised collectively
• Recognized to citizens (guaranteed also by article 12 of the EU Charter of Fundamental Rights)
• Can be regarded as a right that belongs to every
  individual (extensive interpretation)
• No public authorization can be required to establish an association

Question 2

Constitutional Rights: Civil Rights– freedom of association; limits

Answer 2

• General limit: ban on criminal associations. It is possible to associate only “for those ends that are not forbidden by criminal law”
• Special limit 1: secret associations. Associations that conceal the names of the members, the aims and the activities WITH the purpose of interfering with the activity of constitutional bodies, public administrations, public services of national interest (judgment on their existence, they are dissolved with D.P.C.M., their assets are confiscated by the State) (“Legge sulla P2”: law n. 17/1982)
• Special limit 2: political militarized associations. Associations that pursue political aims with a “military organization” (e.g.: organized in corps/divisions etc., or with a hierarchical discipline similar to that of the Army, with possible use of grades or uniforms and with possible participation in actions of violence or threat) (“Associazioni paramilitari”: Legislative Decree n. 43/1948)
• Special limit 3: Fascist party (XII Transitory and Final Provision of the Constitution)
• Ordinary laws may limit the right to join political parties or associations with an internal hierarchy for subjects that hold constitutionally relevant positions (e.g.: diplomats, members of the Army or of the Judiciary)
• Some professionals (e.g.: physicians, lawyers, engineers, professional sport players) must be enrolled in a society, bar or professional association
• Special types of associations: political parties (49 Cost.) trade unions (39 Cost.) religious denominations (7-8, 19 Cost.)

Question 3

Constitutional Rights: Civil Rights– freedom of religion

Answer 3

• Freedom of belief, to promote and profess a
  religion, celebrate rites, establish churches
• Individually or collectively
• Recognized to all persons (guaranteed also by article 10 of the EU Charter of Fundamental Rights)
• Also includes the right not to believe (e.g.: atheism, agnosticism)

Question 4

Constitutional Rights: Civil Rights– freedom of religion; explicit and implicit limits

Answer 4

• Explicit limit: Public morality (“buon costume”)
  (e.g.: sexual decency)
• Implicit limits: developed by the jurisprudence of
  the Constitutional Court and of the judiciary. Human dignity, individual liberty and integrity (e.g.: no human sacrifices, no inflicted sufferance, no
  mutilation, etc.), public security (e.g.: no weapons)
• Prohibition of legal or financial discrimination for
  religious legal entities (art. 20 Cost.)

Question 5

Constitutional Rights: Civil Rights– freedom of religion; relationship between the Republic and the Catholic Church

Answer 5

• The State and the Catholic Church are independentand sovereign each within its own “order” (“sphere”)
• The Holy See has international legal personhood;
  Vatican City is a sovereign State
• Principle of separation of the orders: leaves behind the “confessionalist” stance (Catholic religion as the “official religion” of the State)
• The relationships between the State and the Catholic Church (res mixtae, such as marriage, appointment of ministers of the faith in public administrations, etc.) are ruled by the “Lateran Pacts”
• Amendments to the Pacts, if accepted by both the State and the Catholic Church, does not require a
  constitutional law (last amendment in 1984)
• Bilateral/“concordatary” principle
• All denominations are equally free under the law
• They have the right to self-organize as long as their rules are compatible with those of the Italian legal system
• The relationship with the Republic is regulated by an agreement
• Issues: Government’s discretion, not a “right to an agreement

Question 6

Constitutional Rights: Civil Rights– freedom of religion; Secularist Principle %

Answer 6

• Not expressly recognized by the Italian Constitution (historical context)
• Gradually developed by the jurisprudence of the
  Constitutional Court
• Initially: quantitative criterion, that justified a
  “preferential treatment” for the Catholic religion
• Gradual implementation of “exceptions” for nonCatholics (e.g.: oath in civil and criminal law)
• Secularism recognized by the Constitutional Court as a “supreme principle” of the constitutional system: all religions are equal (Corte Cost., n. 203/1989)
• “Secularization” of the legal system by the Constitutional Court (to some extent, still undergoing): elimination of the preferential treatments for the Catholic religion (e.g.: oath; contempt; teaching in public schools; etc.)
• “Positive” secularism: the Republic looks favorably to the religious phenomen

Question 7

Constitutional Rights: Civil Rights– freedom of expression (+ open clause, press, multiple sources)

Answer 7

• Freedom to communicate through words, in writing, and in any other form
• Covers public communications, that are not
  intended as confidential and that can reach an
  undetermined number of receivers (difference from art. 15 Cost.)
• Freedom to inform the public opinion (through the press and other media) and right of the public
  opinion to be informed by a pluralistic system of
  information (necessary in a democratic system)
• Individual right (with a collective dimension)
• Recognised to all persons (guaranteed also by
  articles 10-11 of the EU Charter of Fundamental
  Rights)
• Covers all forms of communication (“open clause” allows to adapt it to the technological evolution of
  society)
• Particular focus of the Constituent Assembly on the “press” (historical context)

Question 8

Constitutional Rights: Civil Rights– freedom of the press

Answer 8

• Prohibition of all forms of censorship (specific and preventive for the diffusion of a news), or
  authorization (general and preventive for the
  publishing activity)
• Possible mandatory registration (not an
  authorization)
• The cases and procedures to seize the press must be regulated by statutory law (absolute reinforced
  statutory limit)
• The measures must be motivated and adopted by a judge (jurisdictional limit)
• Exception: the police can seize the press (only
  periodical press), without a warrant by a judge,
  exclusively in cases of absolute urgency
• The provisional measure must be notified to a judge withing 24 hours, and the judge must ratify it within 24 hours (if not, the measure expires/is revoked)
• Only for crimes committed through the press (“reatia mezzo stampa”): anteprecautionary measures (post delictum)
• Possible measures on the transparency of funds for the press (absolute statutory limit

Question 9

Constitutional Rights; Civil Rights– freedom of expression; limits

Answer 9

• Explicit limit: Public morality e.g.: sexual decency
• Implicit limits: Rights to personality (honor and
  reputation, personal data, personal dignity), Public
  Safety (peaceful and lawful communitarian coexistence), Justice (investigative secret), Security
  of the Republic (secret of State), Dignity of an Institution (contempt), Industrial activity commercial secrets), Professional activity (e.g.
  physicians), Religious activity (clergy)
• Implicit limits: Antifascism (exaltation concretely
  able to promote the reconstruction of the Fascist
  Party), Human Dignity and Equality (exhibition in
  public of symbols and rites of racist organizations
  that could ignite violence and disorders; or propaganda if there is actual capability of diffusion of racist ideas based on negationism or apology of
  the Shoah, genocide, etc.)
• Limitations on the right to inform: public interest, truth, continence (and deontological rules approved by the professional association of journalists)