The Constitutional Court
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The Constitutional Court is the main body in charge of protecting the Italian Constitution; It has been entrusted with very important tasks for the guarantee and protection of the principles, norms and values of our Constitution!
The Supreme Court is comprised of 15 justices who are elected for outstanding academic merit, experience in the forensic field, and merit in the superior courts; specifically, in accordance with the provisions of art. 135 of the Constitution, the members are appointed as follows:
5 by the ordinary and administrative supreme courts (3 by the Court of Cassation, 1 by the Council of State, 1 by the Court of Accounts);
5 appointed by Parliament in joint session, by secret ballot and a majority of? Of the members;
5 elected by the President of the Republic from among magistrates, including retirees and law professors.
These, who remain in office for 9 years and cannot be re-elected, after their appointment, elect by secret ballot the President of the Constitutional Court, who, for his part, remains in office for 3 years and can be re-elected. .
Our Constitution assigns four fundamental functions to this body: to oversee the legitimacy of the laws of the State; judge attribution conflicts; whether or not to admit the request for a repeal referendum; Comment on the accusations against the President of the Republic.
Obviously, given the value of this institution, it is essential to ensure the independence of the Court from the political bodies that designate it, mainly through the duration of the mandate of the judges that comprise it (which exceeds that of all the others). ). institutions).
The main function of the Constitutional Court is the exercise of control over the constitutionality of the norms approved by the institutions currently in office; this judgment is made only incidentally.
In the case of an incidental judgment, the initiative is of the parties in the court or of the judge of first instance, when the doubts about the fulfillment of the constitutional principles of a norm are such that they prevent the resolution of the concrete case, obviously the « doubt “must be well founded and not be manifestly inadmissible.
Besides this, the judgment on the constitutional legitimacy of a law can also be promoted mainly, or "course of action", when the Government has doubts about the constitutional legitimacy of a specific law, or the voting methods of the same.
According to the provisions of art. 134 of the Constitution, then, the Supreme Court also has the task of expressing itself on the conflicts of attribution, between the State and the Regions, and between the organs of the State. The attribution conflict is the situation in which several organizations claim the same competence, or on the contrary they reject their own attribution.
However, it should be noted that, in general, over the years, the Constitutional Court has expressed itself on an alleged 'impossible' legitimation of the individual citizen to the conflict of attribution between state powers.
Again in 2019, the Court returned to the issue, that is, on the legitimacy of the conflict of attributions between powers of the State of an individual. In this sense, the number of appeals filed by a single person in this forum has multiplied in recent years, however, the Council does not seem to have ever made important openings or to have revealed availability in this regard. Indeed, in the context of the decisions issued in recent years, the Court affirmed that “in no case can the individual citizen be considered invested with a constitutionally relevant function such as that of legitimizing him to raise a conflict of attribution in accordance with art . 134 of the Constitution and 37 Law No. 87 of 1953 «.
Dictum, the latter, only partially tempered by the fact that, more recently, the expression «in no case» «has given way to a more contextualized statement», according to which: «the condition of a voting citizen does not imply that it is« invested "with a constitutionally relevant function such as legitimizing it to raise a conflict of attribution."
Despite this, hypotheses in which an individual citizen has filed an appeal are not rare! As an example, let us think of the conflict raised by a subject who has defined himself as a member "of the constitutional body" electoral body "", or even that cultivated by an individual "as a citizen who fulfills the constitutional duties of loyalty and defense of the Republic and the Constitution ", as" invested directly by the Constitution of the public function of constitutional rank consisting of the defense of the fundamental and intangible core of the republican and democratic form of the State ". The Council ruled out that the appeal presented by a private citizen can be admitted, when possible, to appeal to the seat of constitutional legitimacy incidentally; in addition, he reiterated the need for "the injury to the scope of powers determined by the constitutional norms to be raised in unequivocal terms."
Returning to the powers of the Supreme Court, the latter, after the Court of Cassation has expressed itself on the legitimacy of the abrogative referendum, has the task of evaluating whether the text of the referendum is not contrary to what is established by the Constitution; subsequently, if the judges declare the referendum admissible, the President of the Republic is required to address it, otherwise, if they express otherwise, the inadmissibility of the referendum is only valid for the specific case.
The Constitutional Court also has the function of judging the guilt of the President of the Republic after the "indictment" of the Chambers. The "accusation" can only be promoted when it is suspected that the President of the Republic is guilty of high treason, or an agreement with enemy states, an attack on the Constitution, that is, a violation of constitutional norms with the intention of subverting. the order of the Constitution.
As can be seen from the foregoing, our legal system favors an incidental form of access to the constitutionality review, that is, through the "filter" of a judge who, in the course of a trial, is forced to apply a provision legislative whose constitutionality doubts its legitimacy.
Logically, for this type of access, there must be a process as an opportunity for the promotion of quaestio legitimitatis, so that individuals and citizens can collaborate, supported by a specialized lawyer, with the referring court and with the constitutional judge in the promotion and resolution of doubt about the constitutionality of the law.
In this sense, the Firm of Criminal Lawyers International Lawyers Associates can provide assistance to the citizen for the promotion of this type of trial; in fact, some of the most specialized lawyers in the Constitutional Court work within the team of lawyers in International Lawyers Associates, who can boast of a decade of experience in assisting individuals in the establishment of an incidental constitutionality union.
The procedure before the Constitutional Court
How is a constitutional judgment produced?
In the first place, the judge who raised the question must notify the parties to the trial and the president of the Council of Ministers of his order and communicate it to the presidents of the Houses of Parliament or to the president of the corresponding Regional Council; later it refers it to the registry of the Constitutional Court. The order received here is published in the Official Gazette.
As of the date of publication, the period within which the parties participating in the trial can present their conclusions and arguments, and the parties can submit briefs.
The law provides that the Prime Minister, who can, in certain cases, participate in sentencing before the Court, is defended before the Court by the State Attorney General.
There are two ways in which case discussion takes place, that is, there may be one "public audience"In other words, a meeting open to the public, during which, after the judge-rapporteur has explained the matter, the lawyers and representatives of the parties involved in the trial present their theses before the assembled Court.
Or the case can be dealt with in the council room, relying solely on written documents; This simplified procedure is used when there are no parties registered with the Court.
The Court, both in public hearing and in chambers, meets in its plenary composition of fifteen judges.
The President, then, for each specific case, designates a judge-rapporteur. The choice of the speaker is important, because he is the one who, delving into all aspects of the case, proposes the terms of the question and the possible solutions to the school.
The Court meets in public hearing in the special room of the Palazzo della Consulta, normally every two weeks, on Tuesday morning at 9.30 am. Behind the horseshoe-shaped bench the judges sit with the president in the center, in fixed places, from the oldest to the most recent.
In front of all the judges is the stand of the lawyers who, no more than two on each side, intervene to discuss the cases. Obviously they must be lawyers specializing in proceedings before the Supreme Court, and especially lawyers, such as those of the law firm team International Lawyers Associates, trained to defend before the "superior courts"; for this, it is necessary to register in a special registry.
These lawyers take the floor in the order indicated by the President, following a report from the judge-rapporteur. Judges generally listen to attorneys who present their arguments without interruption. Behind the lawyers there is a space reserved for journalists and study assistants.
It is, therefore, in the council room, in the absence of publicity, where the discussion between the judges takes place for the decision of the questions. Indeed, it should be considered that the Court's decision is not based solely on the so-called pronunciation device but above all on the motivation that supports it. These are important because they constitute the core of the precedents to which reference can be made in cases that the Court must subsequently decide on the same or similar matter.
All Supreme Court judgments
Now, to further clarify the work of this fundamental body, it is necessary to specify all the sentences that the Council can pronounce.
These might be:
Acceptance statements, with which the Court, after having assessed the issue of constitutionality, accepts it, declaring the law in question unconstitutional.
This type of sentence is effective against everyone from the day following the publication of the sentence in the Official Gazette. This means that any other judge who is applying that rule to decide a dispute will no longer be able to use it.
However, as a general rule, the effectiveness of acceptance judgments is retroactive, that is, it affects only the relationships that will arise later.
There are always some exceptions to this "rule", since some Court judgments retroactively exert their effects on situations that are still pending (let's think about current judgments or those closed with a judgment not yet res judicata) or when it comes to sentences concluded with irrevocable criminal conviction.
Rejection sentences, whereby the Court, after having executed the judgment on the question of
constitutionality of the law, considers the problem unfounded; These judgments are not effective against everyone, but only between the parties involved in the constitutionality judgment;
Interpretive sentences, which are intended to interpret a law. They can be accepted when the Court declares the unconstitutionality of a certain interpretation of the law and imposes one in accordance with the Constitution, or rejection when it declares the law constitutionally legitimate as long as it is interpreted in a certain way.
Sentences called acceptance manipulator, with which the Court reviews the content of a law, to avoid declaring it unconstitutional and thus avoid the formation of a regulatory vacuum in the system. These have erga omnes efficacy and are distinguished according to the type of intervention that the Court operates in: additive, ablative and substitute.
Sentences of partial unconstitutionality, with which the Court eliminates only the part of the law considered unconstitutional.
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