Italian Constitution Research Articles

"Lavoro" e "progresso" nella Costituzione

- The essay is devoted to the meaning of the concepts of "work" and "progress" as contained in the Italian Constitution, and to the connection of "work" with "democracy" established by Article 1. To this end, the Author examines first some crucial aspects of the debates which took place in the 1946-47 Constituent Assembly at this respect, and draws then attention to the diverse meanings given to these concepts during the experience of the Republic. Finally, the Author attempts to demonstrate that the crisis currently affecting concepts such as those of "work" and "progress" needs to be comprehended against the background of the choices and conceptions prevailing in the past decades, rather then being referred to the constitutional text as such.

La disciplina dei militari impegnati all'estero in missioni umanitarie: in margine al caso Lozano

- In the well-known Lozano case, an Italian intelligence agent, Mr Nicola Calipari, remained killed in 2005 by an American soldier, Mr Mario Luis Lozano, while entering a US checkpoint on the way to the Baghdad airport soon after securing the release of an Italian journalist from Iraqi kidnappers. In the ensuing case, Italian courts addressed a number of sensitive questions, including that of jurisdiction over national troops involved, directly or indirectly, in so-called "humanitarian missions" abroad. Italian courts did have jurisdiction over the killing under Italian domestic law. Indeed, the murder of Mr Calipari can be regarded as a "political crime" under Article 8 of the Italian penal code. On such a premise, the question is whether Article 8 was superseded by a customary international law rule under Article 10 of the Italian Constitution aimed at excluding jurisdiction over Mr Lozano. State practice suggests that neither a customary rule on the exclusive jurisdiction of the sending State (as claimed by the Court of Assise of Rome in 2007) nor a customary rule on Mr Lozano's functional immunity (as claimed by the Court of Cassation in 2008) are established in customary international law. Rather, State practice reveals that a number of States are likely to recognize immunity from jurisdiction to the armed forces only in certain specific circumstances. Moreover, such immunity is quite different from the functional immunity traditionally enjoyed by diplomatic and consular agents, as well as from the immunities enjoyed by other high-ranking State officials, such as the Head of State, the Head of Government and the Minister for Foreign Affairs.

Tributi ambientali, accertamento, Unioni di Comuni

- The article points out the difficulties Regions will have to face in exerting real taxing autonomy because of the scanty possibility of implementation of taxraising practices that should not violate the principle of double taxation. Environment taxation, which might have some margins of operation, poses quite a lot of identification problems as far as the practice of legislation power is concerned. Art. 117 of the Italian Constitution does not attribute local authorities any possibility of direct exertion of legislative power, so that taxing autonomy is even more impaired. Thus the Author suggests that the raising of fiscal revenues should take place through the promotion of wider participation in the assessment of already existing tax arrangements by means of the creation of operative synergies via various forms of association, rather than by the imposition (in any case quite problematic) of new local taxes.

Una repubblica fondata sul lavoro

- Italy is a Republic based on labour that recognizes to all the citizens the right to work (artt. 1 and 4, Cost.). Such norms have contributed to create a model of "social" state, whose principles have been developed since the French revolution, as opposite to another model based on private property. Taking into consideration the opinion of the most important scholars who dealt with this topic and deeply marked the debate on this argument (as Mortati, Mancini and Natoli), this Essay focuses on the meaning of artt. 1 and 4 of the Italian Constitution, in line with the original perspective of the Constituencies; it tries to deny the theories which assume the existence of a legal duty to work; it deals with the value that those norms could have nowadays and in the future, as the European law does not assigne to the "right to work" the same meaning of the Italian Constitution.Key words: Right to work; Italian Constitution; French Revolution; Social State.Parole chiave: Diritto al lavoro; Costituzione italiana; Rivoluzione francese; Stato sociale.

Diritto a una tutela giurisdizionale effettiva e revisione dei processi penali: la Corte costituzionale e il caso Dorigo

- The work is a critical comment to the judgment of the Italian Constitutional Court of 30 April 2008, n. 129, on the reopening of the criminal proceedings requested by the European Court of Human Rights. The work begins dealing deeply with the problem of the customary nature in international law of the right to a fair trial and the consequent possibility to invoke, in the framework of the Italian national system, Article 10, paragraph 1, of the Constitution. The authors suddenly stress the relevance of other constitutional norms in order to recognize a constitutional or quasi-constitutional rank to the norms of the European Convention on Human Rights, demonstrating that the Italian Constitution offers several possibilities on the matter. A very recent judgment of the Court of Cassation, adopted on 11 December 2008, confirms this opinion interpreting the Italian norms on the reopening of the criminal proceeding on the basis of Articles 111 and 117 of the Constitution.

A New Status for the ECHR in Italy: The Italian Constitutional Court and the New ‘Conventional Review’ on National Laws

The article aims to provide an analysis of the two judgments of the Italian Constitutional Court No. 348 and No. 349 dated 24 October 2007, which considered Article 117, paragraph 1, of the Italian Constitution as a constitutional rule granting superior legal authority to the European Convention over and above ordinary domestic statute law. A domestic law in contrast with the provisions of the Convention, as interpreted by the European Court, violates Article 117, paragraph 1, of the Italian Constitution and it must be declared unconstitutional by the Constitutional Court. In particular, the Constitutional Court has declared unconstitutional Article 5–bis, of the Law No. 359 dated 8 August 1992 (and of the following Article 37, paragraphs 1 and 2, of the Code of Expropriation Provisions, Presidential Decree No. 327 dated 8 June 2001) on the refund for legitimate expropriation and on the compensation awarded for the Italian public administrations’ practice of ‘constructive expropriation’, because they were calculated according to a criterion in contrast with Article 1 of Protocol No. 1 European Convention on Human Rights (ECHR), as interpreted by the Strasbourg case law. The solution, adopted by the Constitutional Court, is very interesting and almost ‘revolutionary’, since it underlines the new place accorded to the ECHR in the Italian legal system in the last years, especially by the ordinary courts and finally by the Constitutional Court too.

Corte costituzionale (Italian Constitutional Court): Decisions 348 and 349/2007 of 22 October 2007, and 102 and 103/2008, of 12 February 2008

Corte costituzionale (Italian Constitutional Court): Decisions 348 and 349/2007 of 22 October 2007, and 102 and 103/2008, of 12 February 2008

Disability, The Person and the Market

Disability, The Person and the Market

The ‘Italian Constitution’ in the Social War: a Reassessment (91 to 88 BCE)

The ‘Italian Constitution’ in the Social War: a Reassessment (91 to 88 BCE)

La Resistenza in Assemblea costituente e nel testo costituzionale italiano de 1948

The essay deals with the relationship between the Italian Constitution of 1948 and the ideas of the anti-fascist resistance movement (1943-45). The “Constitution stemming from the Resistance” is a widespread commonplace. The contribution tries to go into this link in the light of Italian constitutional history and European constitutional culture. Three fundamental topics are considered: constitutional compromise, the role and conception of political parties and the renewed interest in foreign experience from the members of the Constituent Assembly. Submission date: 04/03/2009 Acceptance date: 03/05/2009

The Development of a Judicial Anti-Abuse Principle in Italy

In a recent series of decisions culminating in 2008 and 2009 the Italian Corte di Cassazione (the “Cassazione”) introduced a new judicial anti-abuse principle into the Italian tax system. According to this principle the transactions carried out by the taxpayers which have the exclusive goal of obtaining a tax benefit are deemed to constitute tax abuse, and therefore the tax effects of such transactions can be disregarded by the tax authorities. The arguments used by the court in virtually all the cases is based on a common structure which can be summarized as follows. There is no doubt that the taxpayer can freely choose to carry out its activities in the most effective way to reduce the tax burden, as the freedom to conduct private economic activities is expressly protected by Article 42 of the Italian Constitution. The limit to the exercise of such a freedom is the inappropriate use of legal arrangements which amount to an abuse of law (“abuso della forma giuridica”). Such an abuse results from the selection of a particular legal arrangement whose exclusive goal is to obtain a tax reduction, and therefore is an abuse of a fundamental right (the freedom to conduct private economic activities) provided for by the domestic legal system and community law. The paper analyses in general the case law of Cassazione and focuses in particular on Cassazione, case n. 1465, January 21, 2009. This decision confirms that the anti-abuse principle operates on a case-by-case analysis of the facts of the transaction and commits the Cassazione in the future to factual analysis on economic substance and valid business reasons. This probably is a more important case than the whole series of anti-abuse cases as, for the first time, the Cassazione has adopted a substance over form approach. It can be argued that this constitutes the common core of existing approaches to tax avoidance. In this approach, the letter of the law and the literal approach are abandoned in favour of a practical analysis of the transaction. The language adopted by the Italian court sounds similar to the leading cases in the subject matter in the United Kingdom and United States. As a result of this last case a factual analysis of the transactions and especially any commercial purpose behind the transaction, may become the pivotal element in anti-avoidance cases in Italy.

Still the Anomalous Democracy? Politics and Institutions in Italy

AbstractUntil the early 1990s, the Italian political system was regarded as anomalous among advanced democracies because of its failure to achieve alternation in government. Since then, that problem has been overcome, but Italy has been popularly viewed as continuing to be different to other democracies because it is ‘in transition’ between regimes. However, this position itself is becoming increasingly difficult to sustain because of the length of time of this so-called transition. Rather than focus on what is rather an abstract debate, it may be more fruitful to analyse what, in substance, is distinctive about Italian politics in this period: the manner in which a debate over fundamental institutional (including electoral) reform has become entangled in day-to-day politics. This can best be exemplified through an analysis of two key electoral consultations held in 2006: the national elections and the referendum on radically revising the Italian Constitution.

Preimplantation genetic diagnosis: a step by step guide to recent Italian ethical and legislative troubles

Objective:To analyse legislation and medical professionals’ position concerning the doctor’s role in assisted reproduction techniques in Italy, and to discuss the implications for physicians of preimplantation genetic diagnosis (PGD).Background:Until recently...

Italy

It is never too late. In two decisions handed down at the end of October 2007, the Italian Constitutional Court seems finally to have begun to take seriously one of the Italian Constitution's fundamental principles: the openness to international law which is embodied in Articles 10, 11 and – the provision chosen by the Constitutional Court in the judgments being examined – 117, paragraph 1 of the Constitution, which was added by the constitutional revision of 2001. In particular, the two decisions focus on the relationship between the Italian constitutional legal order and the Convention for the Protection of Human Rights and Fundamental Freedoms.

US Military Bases in Italy: In Keeping with International Law? Still Needed?

The end of the Cold War brought about a change in US basing policy in Italy. Some bases were dismantled, while others, like the one in Vicenza, were strengthened raising considerable local protest for environmental reasons. The article examines whether agreements establishing the US bases have a solid foundation in the Italian Constitution and whether the weapons detained there are in conformity with the disarmament treaties binding Italy. Since the bases are now employed for NATO “out-of-area” operations and have become a part of the US strategy of “war on terror”, they inevitably influence Italy's foreign policy and its option to stay out of ongoing conflicts. The article also considers the continuing need for US bases from the point of view of Atlantic solidarity.

Sexual offenders. Punishment and possible “rehabilitation”

Objectives On the one hand, the socio-psychopathological dynamics of sexual offences are still indeterminate, on the other these aggressive actions have an irrefutable target and they are realized by the possession and domination of the reified victim. In prison sex offenders, “the outcasts among the outcasts”, are isolated for their own safety and they are almost always excluded from any rehabilitative treatment. This study has a twofold aim: firstly, to systematically describe all the therapeutic experiences already carried out in Italian prisons in order to obtain data on methods, good practices and weaknesses. Secondly, it foresees the implementation of therapeutic programmes in two prisons situated in different Italian regions, both carried out according to common procedures and by specifically trained operators who participate on a voluntary basis. Materials and methods In addition to the collection of data regarding existing treatment, we foresee the development of an executive programme involving sex offenders both individually, with objective, relational, and subjective diagnoses, and in a group, for a revised interpretation of their experiences on the basis of the resources already present and worked through by prisoners themselves. Results The programme aims to promote a personal path towards assuming one's responsibilities and critically reexamining one's experiences. Conclusions The principle, established by the article 27 of the Italian Constitution, that every sentence must involve rehabilitation must be made possible by developing specific programmes in accordance with both special prevention and social defence measures.

A wolf in sheep's clothing? Italy's policies toward international organizations

This paper examines Italy's contribution to the United Nations (UN) and how effective this has been in protecting Italian interests. The first part outlines the areas where Italy's input to the UN has been most relevant in terms of ideas, policies and participation, such as for example the campaign to ban the death penalty and its participation in collective security through participation in UN peacekeeping missions. This paper also highlights the critical role that Italy's long-standing positions on UN reform and the enlargement of the Security Council have played in defining Italy's status in the international community, and asks whether there have been significant changes in the traditional Italian position and its loyalty to the UN and, more generally, to the multilateral system. The second part analyzes the origin and rationale of Italy's policies toward the UN and their effectiveness in defining and defending the national interest. It explores the idea that these policies have been determined by the ‘institutional multilateralism’ of the Italian Constitution, the ‘genetic multilateralism’ of the Italian society and the ‘forced multilateralism’ of Italy as a middle-range power. Italy's positions on the UN and its reform are examined in the light of claims that Italy's foreign policy reflects its ‘complex of exclusion’ and presumed lack of influence in the ‘major stakes’ in world diplomacy.

Nature and Rationale of Freeze-Out Under Italian Law on Listed Corporations

After investigating the nature, under the Italian Constitution, of the Italian Freeze-Out Rule (IFOR) for listed corporations (controlling shareholder's right to compulsorily acquire minority shares), the work develops an analysis - under an Italian existing-law and law-making perspective, as well as comparative and law-and-economics perspective - on the interests directly served and on the broader economic rationale indirectly satisfied by IFOR. Under a property, contract and corporate law perspective, IFOR, although not advantaging directly and equally all shareholders of listed corporations, is consistent with Italian Constitution. As to its rationale, IFOR cannot best serve a general interest in optimization of ownership structures in listed corporations or a general interest in good functioning of the official stock-exchanges, nor the particular interest of controlling shareholders in being afforded a voluntary exit from listing. Rather, IFOR is the sole means under Italian law (where freezeout mergers, reverse-stock-split freezeouts or freezeouts by corporate capital reduction are not admissible) to afford controlling shareholders a chance to eliminate operating costs due to conflicts of interests with minority shareholders. By directly serving specific interests of a new controlling shareholder after a take-over bid through public tender offer for all voting shares, freeze-out might indirectly result in making the above kind of bid more frequently adopted for the transfer of control of certain targets and in encouraging potentially efficient raiders to offer higher prices in such bids. Current IFOR, however, cannot serve efficiently the above purposes due to the very high threshold (98%) currently triggering it and to the price conditions set forth by law. The work finally stresses the differences, in terms of interests involved, between freeze-out in going-private and in take-over contexts, warning on the higher risks minority shareholders face in the former and underlying the weakness of European regulatory solutions under Directive 2004/25/Ce, Article 15.

INDEX

In judgment No. 238 of 22 October 2014, the Italian Constitutional Court ruled on the legitimacy of certain norms of the Italian legal order which relate to the implementation of the International Court of Justice’s (ICJ) judgment in the Jurisdictional Immunities of the State case. In this case the Court found that customary international law concerning State immunity for war crimes and crimes against humanity could not enter the Italian legal order, as it was incompatible with the basic principles of the Italian Constitution. Judgment No. 238/2014 thus reveals a key connection between domestic fundamental values and internationally recognized values. If this connection exists, national courts should decline to give effect to an international decision if it contravenes a fundamental obligation under national as well as international law. Thus, domestic courts may play the role of defenders of the international rule of law from international law itself. According to international law, as well as Italian law, there is no doubt that enforcement of an ICJ decision is mandatory for the State to which the decision is directed. In the case under review, however, the requirement to implement the ruling of the ICJ was set aside in order to defer to the requirement to respect the fundamental values of the Italian legal system, in accordance with the theory of “counter-limits” as developed by the Constitutional Court. This conclusion appears also consistent with the German order, which renders quite weak any possible reaction, or protest, by that State.

BOOKS RECEIVED

In judgment No. 238/2014 the Italian Constitutional Court held that the Italian Constitution required Italian courts to disregard the decision of the International Court of Justice (ICJ) upholding Germany’s jurisdictional immunity and to continue proceedings against Germany concerning actions for damages arising out of war crimes and crimes against humanity committed by Germany during the Second World War. The Court balanced the constitutional value of respect for international law, demanding respect for the binding force of the ICJ judgment, against the value of enforcing fundamental rights, and gave precedence to the latter. This type of balancing has also been employed by the Court of Justice of the European Union and by the German Constitutional Court. Where the highest national courts prefer constitutional values over States’ international obligations, they cause a dilemma for other State organs as from the international perspective no State may rely on its internal law to justify non-performance of international norms. Yet the decision of the Italian Constitutional Court has attempted to close a “justice gap” in the regulation of the treatment of victims of international crimes committed during the Second World War. It is therefore hoped that the two governments follow the admonition of the ICJ to reopen negotiations.