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.