Constitutional law

1. Constitutional law Prof.ssa Carla Di Martino

2. Historical development of Italian Constitutional adjudication Albertine Statute: Granted in 1848 Consisted of 84 articles Flexible Constitution (i.e. capable of being modified at any time by the same means as any other law) Any power of judicial review recognized (Reasons: 1. Parliamentary omnipotence; 2. Lack of an independent judiciary)

3. The principle of Parliamentary Omnipotence The principle of Parliamentary sovereignty means neither more nor less than this, namely that Parliament thus defined has the right to make or unmake any law whatever: and, further, that no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament.

4. The lack of an independent judiciary Article 68 of Alb. Statute: “Justice emanates from the King, and is administered in his Name by the Judges that He appoints.”

5. 2 exceptions to the absence of judicial review

6. Fascism TRANSITIONAL PERIOD “until the Referendum as the new Parliament is established, acts having the force of law shall be issued by the Council of Ministers through legislative decrees approved by the Luogotenente of the Kingdom.”

7. D.Lgs. Lgt. March 16, 1946, n. 9 established that: “during the period of the Constituent Assembly and until the convocation of the first Parliament in accordance with the new Constitution, legislative power remains delegated to the executive, except in constitutional matters.” DECENTRALIZED CONSTITUTIONAL ADJUDICATION

8. CONSTITUENT ASSEMBLY CENTRALIZED JUDICIAL REVIEW: • The Austrian model of review (firstly put into place in the Austrian Constitution of 1920) • The Kelsenian model of review • Centralized control of constitutionality of statutes • Decisions of constitutionalcourtscannot be appealed DECENTRALIZED JUDICIAL REVIEW: • The so-called «American model» • All courts are equally capable of deciding judicial review claims concerning the constitutionality of government action at the federal, state, and even local levels • A court's constitutional decision may progress up through several levels of review by appellate courts • Doctrine of stare decisis: the decision of a higher court within the same provincial jurisdiction acts as binding authority on a lower court within that same jurisdiction REMEMBER: The degree of persuasiveness of a judicial decision is dependent upon various factors (the level of court which decided the precedent case; the date of the precedent case; the similarity between the case decided and the one which ought to be decided) “What the doctrine of precedent declares is that cases must be decided the same way when their material facts are the same. Obviously it does not require that all the facts should be the same. We know that in the flux of life all the facts of a case will never recur, but the legally material facts may recur and it is with these that the doctrine is concerned.” Glanville Williams, in Learning the Law (9th ed. 1973).

9. HOW TO CHOOSE?

10. DIFFERENT CONCEPTIONS of the Theory of Separation of Powers In civil law countries: • the ordinary judge is the “Bouche de la loi”. The ordinary judge must accept and apply the law as he finds it. • The judicial review is seen as a sort of “political activity” so that the Constitutional court is viewed as a negative legislature • The ordinary judge couldn’t be at the same time bouche de la loi and negative legislature • So the need of a Constitutional Court • In common law countries: • The ordinaryjudge is not seenas «bouche de la loi» • The declaration of the unconstitutionality of norms is not seenas a «politicalquestion» • Every single judgecould decide a «constitutional dispute»

11. Presence or Absence of STARE DECISIS DOCTRINE 1. In the American system, every court, high and low, has both the power and the duty to determine the constitutionality of the statutes that come before it. 2. Under this doctrine, courts are bound to follow their own prior decisions and the precedents of higher courts in the same jurisdiction. 3. The existence of a single Supreme Court court, combined with the lower courts' duty to follow superior precedents, insures the uniformity of consitutional adjudication. The principle of stare decisis is foreign to civil law judges Itwould not be guaranteed the legalcertaintyifeach judge is allowded to decide for himself the constitutionality of statutes Possibility of “revirement” – two different decisions concerning the same matter of fact could be issued by the same Court. Extremely dangerous result: a serious conflict among the judicial organs and uncertainty as to the law.

12. THE SUITABILITY OR UNSUITABILITY of the OrdinaryCourts • the traditional highest courts of most civil law countries lack the structure, procedures, and mentality required for effective constitutional adjudication. • Even within a given high court there are several different divisions, each of which sits and decides cases independently of the other divisions. • In thesecondictions, It is difficult to imagine how a consistent and carefully considered constitutional jurisprudence could ever be developed. • In addiction, Continental judges are usually "career judges" who enter the judiciary at a very early age and are promoted to the higher courts largely on the basis of seniority. Their professional training develops skills in technical application of statutes rather than in making policy judgments. • The members of the U.S. Supreme Court are not career judges. They are politically appointed, and not necessarily from the ranks of the lower courts. • Just becauseitsmambers are appointed by the politicans, the U.S. Supreme Court is compact and united • It is able to forme a consistentjurisprudence

13. ITALIAN CONSTITUTIONAL COURT FUNCTIONS AND ORGANIZATION: ITALIAN CONSTITUTION (ART. 134-137) LEGGE COSTITUZIONALE 1/48 LEGGE COSTITUZIONALE 1/53 LEGGE 87/53

14. Art. 135The Constitutional Court shall be composed of fifteen judges, a third nominated by the President of the Republic, a third by Parliament in joint sitting and a third by the ordinary and administrative supreme courts.The judges of the Constitutional Courts shall be chosen from among judges, including those retired, of the ordinary and administrative higher courts, from full university professors of law and lawyers with at least twenty years practice.Judges of the Constitutional Court shall be nominated for nine years, beginning in each case from the day of their swearing in, and they may not be reappointed.At the expiry of his time the constitutional judge shall cease his appointment and the exercise of the functions thereof.The Court shall elect from among its members, in accordance with the rules established by law, a President who shall remain in office for three years and may be reelected, respecting in all cases the expiry term for constitutional judges.The office of constitutional judge shall be incompatible with membership of parliament, of a regional council, the exercise of the profession of lawyer and with every appointment and office indicated by law.In impeachment of the President of the Republic, apart from the ordinary judges of the Court, there shall also be sixteen members chosen by lot from among a list of citizens having the qualification necessary for election to the Senate, which the Parliament prepares every nine years through election using the same procedures as those in appointing ordinary judges. COMPOSITION

15. Parliamentary appointments 1. Secret ballot2. 2/3 majority

16. Judicial appointments 3 by Court of cassation (Corte di cassazione)1 by the Supreme Court for administrative law cases (the Council of State, Consiglio di Stato) 1 by the Court of Accounts (Corte dei Conti)

17. Independence Ensured by: the full authority to verify the formal prerequisites for the appointments of its Justices. the full organizational and financial autonomy, which entails the power recognized to the Court to make its own rules of procedure, and jurisdiction over its employees. nine-year term of office (longer than the ones recognized to the principle institutional positions: President of the Republic -> 7 years) Justices are removable only through a decision issued by the Court itself Immunity from legal responsibility for acts done and opinions expressed in the course of their office

18. No concurring or dissenting opinions Principle of collegiality:

19. How to decide? • Assignation of the case to the Reporting Justice. • Preparation of the file of the case - that consists of precedents, statutes, and regulations, doctrine, and foreign references. • Public hearing • for cases involving conflicts between the State and Regions • conflicts between powers of the State that reach the Court through the direct method of judicial review, • for issues that reach the Court through the incidental method of judicial review when the parties appear before the Court. • So-called Camera di Consiglio • Cases are instead debated behind closed doors when they reach the Court through the incidental method but the parties do not appear • The Reporting Justice presents the case to the rest of Court in closed session • Final votes and judgement • Publication in GazzettaUfficiale

20. How to preserve constitutional provisions from incursions by the legislature Abstract Constitutionality Challenges Abstract Interpretation of the Constitution Concrete Constitutionality Challenges 1. A Priori Abstract Constitutionality Challenges 1. Brought by Private Individuals 2. Brought by public institutions Preliminary reference procedures 2. A Posteriori Abstract Constitutionality Challenges

21. FRANCE A PRIORI CONSTITUTIONALITY CHALLENGE • Before 2008, the only way to challenge constitutionality of norms in French constitutional system • ARTICLE 61. French Constitution: Institutional Acts, before their promulgation, Private Members’ Bills mentioned in article 11 before they are submitted to referendum, and the Rules of Procedure of the Houses of Parliament shall, before coming into force, be referred to the Constitutional Council, which shall rule on their conformity with the Constitution. To the same end, Acts of Parliament may be referred to the Constitutional Council, before their promulgation, by the President of the Republic, the Prime Minister, the President of the National Assembly, the President of the Senate, sixty Members of the National Assembly or sixty Senators. In the cases provided for in the two foregoing paragraphs, the Constitutional Council must deliver its ruling within one month. However, at the request of the Government, in cases of urgency, this period shall be reduced to eight days. In these same cases, referral to the Constitutional Council shall suspend the time allotted for promulgation.

22. Belgian A posteriori Abstract constitutionality challenge • A posteriori constitutionality challenges may be brought by the Council of Ministers or by the government of a community or region as well as by the presidents of the central, community or regional legislative assembly, at the request of two-thirds of their members. • This procedure can be used to contest the constitutional validity of statutes adopted by the central, community or regional legislature and acts approving international treaties. • When a statute is promulged start there is a six-month time limit within which the eligible public institutions and persons with a justifiable interest can initiate an abstract constitutionality challenge. • When Belgian constitutional Court decides abstract constitutionality challenges its decision has erga omnes effect. • When the Cour constitutionnelle holds, in response to a preliminary question raised by an ordinary court, that a legal norm is unconstitutional, this finding does not have erga omnes effects or bring about the removal of the offending statute from the legal order. It does, however, start a new six-month time limit within which the eligible public institutions and persons with a justifiable interest can initiate an abstract constitutionality challenge against this same statute, which allows the Cour constitutionnelle to strike it down with general effect.

23. Protecting the rights of individuals in specific cases • In some countries, constitutional court is empowered to protect the fundamental rights of individuals guaranteed by the constitution in the context of a specific case. • So-called: CONSTITUTIONAL COMPLAINT PROCEDURE • A constitutional complaint makes it possible for individuals – and sometimes other actors – to assert their freedoms that are guaranteed under the Constitution vis-à-vis the state. • It is not part of the avenue of appeal from regular courts. • it is an extraordinary remedy in the course of which the Court only examines whether specific constitutional law was violated.

24. German constitutional complaint • Art. 93 of the Basic Law • The Federal Constitutional Court shall rule: . . . on constitutional complaints, which may be filed by any person alleging that one of his basic rights or one of his rights under paragraph (4) of Article 20 or under Article 33, 38, 101, 103 or 104 has been infringed by public authority “ANY PERSON”: natural persons with legal capacity as well as corporate bodies or other legal persons possessing rights under the Basic Law “BASIC RIGHTS”: regardless if substantive or procedural rights “BY PUBLIC AUTHORITIES”: any governmental action, including judicial decisions, administrative decrees and legislative acts. EASY AND INEXPENCIVE PROCEDURE: No fees or formal papers

25. Art. 134The Constitutional Court shall pass judgement on: - controversies on the constitutional legitimacy of laws and enactments having the force of law issued by the State and the Regions; - conflicts arising from allocation of powers of the State and those powers allocated to State and Regions, and between Regions;- accusations made against the President of the Republic and the Ministers according to the provisions of the Constitution. Functions

26. CONTROVERSIES ON THE CONSTITUTIONAL LEGITIMACY OF LAWS AND ENACTMENTS HAVING THE FORCE OF LAW ISSUED BY THE STATE AND THE REGIONS DIRECT METHOD OF JUDICIAL REVIEW ABSTRACT CHARACTER vs INCIDENTAL METHOD OF JUDICIAL REVIEW Concrete character

27. INCIDENTAL METHOD OF JUDICIAL REVIEW Const. Law 1/48 ART. 1: A question of the constitutional legitimacy of a law of the Republic or of an act having the force of law, raised ex officio or raised by one of the parties in the course of a proceeding and not considered manifestly unfounded, shall be submitted to the Constitutional Court for its decision.

28. L. 87/53 ART. 23 Nel corso di un giudizio dinanzi ad una autorità giurisdizionale una delle parti o il pubblico ministero possono sollevare questione di legittimità costituzionale mediante apposita istanza, indicando: a) le disposizioni della legge o dell’atto avente forza di legge dello Stato o di una Regione, viziate da illegittimità costituzionale; b) le disposizioni della Costituzione o delle leggi costituzionali, che si assumono violate. L’autorità giurisdizionale, qualora il giudizio non possa essere definito indipendentemente dalla risoluzione della questione di legittimità costituzionale o non ritenga che la questione sollevata sia manifestamente infondata, emette ordinanza con la quale, riferiti i termini ed i motivi della istanza con cui fu sollevata la questione, dispone l’immediata trasmissione degli atti alla Corte costituzionale e sospende il giudizio in corso. giurisdizionale davanti alla quale verte il giudizio con ordinanza contenente le indicazioni previste alle lettere a) e b) del primo comma e le disposizioni di cui al comma precedente. L’autorità giurisdizionale ordina che a cura della cancelleria l’ordinanza di trasmissione degli atti alla Corte costituzionale sia notificata, quando non se ne sia data lettura nel pubblico dibattimento, alle parti in causa ed al pubblico ministero quando il suo intervento sia obbligatorio, nonché al Presidente del Consiglio dei ministri od al Presidente della Giunta regionale a seconda che sia in questione una legge o un atto avente forza di legge dello Stato o di una Regione. L’ordinanza viene comunicata dal cancelliere anche ai Presidenti delle due Camere del Parlamento o al Presidente del Consiglio regionale interessato.

29. American model Austrian model HYBRID: While the Constitutional Court exclusively decides a constitutional question, the question still reaches the Court through ordinary judges in specific cases. When a constitutional issue arises during an ordinary proceeding, the judge must refer it to the Constitutional Court for its consideration. Thus the Italian system of judicial review is centralized, following the Austrian prototype, but the initiative is diffuse throughout the Judiciary, following the American style.

30. A judge in the course of a judicial procedure 1st period (1956 -1971) 2nd period (since the early 1970s) The Constitutional Court has given the term “judge” a narrower meaning, requiring not only that the referring authority be part of the Judiciary and capable of rendering a final decision on the case but also that it exercises a judicial and not an administrative function two different requisites for a legal recognition of standing: a subjective one, regarding the nature of the referring body; and an objective one, regarding the specific function the body is performing. The Court favored expansive access by interpreting the notion of “judge” in a broad sense. The only condition required was that the constitutional question be referred by a permanent part of the Judiciary, capable of rendering a final decision on the case. i.e. the constitutional court has recognized its own power to raise questions of constitutionality

31. The QUESTION MUST BE:1. RELEVANT (Objective connection between the original proceeding (giudizio a quo) and the process in the constitutional court)2. NOT MANIFESTLY UNFOUNDED(Plausibility of the question - the judge should refer all the questions that are prima facie meritorious)

32. The QUESTION caN BE RAISED:1. By the judge on his own motion (i.e. ex officio)2. by the judge on the parties’ motion(i.e. the so-called “istanza di parte”)ACCESSES TO THE CONSTITUTIONAL COURT AND TO THE ORDINARY COURT ARE STRICTLY RELATED

33. ACTS THAT ARE SUBJECTED TO JUDICIAL REVIEW (according to art. 134 Const.):1. lAWs – ordinary statutes (national and regional statutes; statutes enacted by the independent provinces of Trento and Bolzano; )2. ENACTMENTs HAVING THE FORCE OF LAW(decretodelegato; decree-laws?)PRIMARY LEGISLATION SECONDARY LEGISLATION

34. What if an administrative act is unconstitutional? 1st way to challenge the constitutionality of administrative acts: If they are issued in conformity with the law on which they rely— that is, with primary legislation— then the underlying statute itself will be unconstitutional. SUBJECT OF JUDICIAL REVIEW: THE ORDINARY STATUTE (IN CONTRAST WITH THE CONSTITUTION) 2nd way: If they are in conflict with the statute, and the statute does not violate the Constitution, then the problem is not one of unconstitutionality, but simply of illegality (illegittimità). THE QUESTION MUST BE RAISED BEFORE THE COMPETENT ADMINISTRATIVE COURT

35. What about constitutional laws? • From a formal perspective, constitutional amendments and constitutional laws must be adopted only following the extremely difficult procedure established by Article 138. • From a substantive perspective, there are parts of the Constitution that cannot be subject to modification. In the case of Article 139, the constitutional text itself provides that the republican form of government cannot be changed. In other cases, the Court has declared that some constitutional principles are untouchable, such as the “inviolable rights” of Article 2. • FORMAL AND SUBSTANTIVE VALIDITY

36. Interpretation in conformity with the Constitution Italian Constitutional Court, judgement n. 356/96: “Le leggi non sidichiaranocostituzionalmenteillegittimeperchè è possible darneinterpretazioniincostituzionali (e qualche Giudice ritenga di darne), ma perchè è impossibiledarneinterpretazionicostituzionali” Ordinary judge as a filter or a gatekeeper for questions of constitutionality

37. During the “pending procedure” – the one that has been placed before the Court and is awaiting decision: • Parties’ motion; • Examination of the relevance and not-manifest unfoundedness of the challenge; • Consistent interpretation; • Petition for certiorari: referral order. • Examination of the relevance and not-manifest unfoundedness of the challenge; • Consistent interpretation; • Judge’s motion; petition for certiorari; referral order. or

38. Before the Constitutional Court President’s order: publication in Official Gazette; Court appearances (20-day notification term); Appointment of the referring Justice; Public hearing or Camera di Consiglio; Final votes and decision -> publication

39. Headnote(the initial part of the judgement containing the indication of the members of the court, the details of the petition of certiorari, the public hearing or the chambers in which the question was discussed, the reporting judge and the counsel heard by the court)Statement of factsReasons(the part of the judgement or order in which the court sets out the reasons on which its decision is based)Order/OPERATIVE PART (the concluding part of the judgement or order which contains the court’s ruling)

40. Final decision • The Court does not reach a decision on the merits of the constitutional question Judgement on the inadmissibility of the question (sentenza di inammissibilità): • Irrelevance of the question; • Petition not filed by “a judge in the course of a judgement” • Lack of consistent interpretation • The Court reaches a decision on the merits of the constitutional question Declaration of unconstitutionality (sentenza di accoglimento); Decisions rejecting a constitutional challenge (sentenza di rigetto)

41. Declaration of unconstitutionality - retroactive erga omnes effects EXCEPTION: Situations where the effects of the invalidated provision are already entrenched EXCEPTION OF EXCEPTION: Final criminal convictions

42. Manipulation of the temporal factor’s effects of the declaration of unconstitutionality DEFERRED UNCOSTITUTIONALITY JUDGEMENT consist in declaring the contested provision unconstitutional at a later date with respect to the dies a quo when the defect unconstitutionality arose ORIGINAL DEFECT POSTHUMOUS DECLARATION OF UNCOSTITUTIONALITY Ratio: the need to avoid a “traumatic” impact on the orderly development of the legal system SUPERVENING UNCONSTITUTIONALITY JUDGEMENT consist in ascertain the supervening unconstitutionality of the contested provision SUPERVENING DEFECT SUPERVENING DECLARATION OF UNCOSTITUTIONALITY Ratio: enactment of a new constitutional provision

43. Decision rejecting a constitutional challenge Inter partes effects; The same claim can be raised subsequently in another case, using a different line of reasoning and argumentation

44. INTERPRETATIVE DECISIONS Rejecting the claim (la questione è infondataneisensi di cui in motivazione) – the Court gives its own interpretation in conformity with the Constitution – this interpretation does not act as a binding authority Declaring the unconstitutionality of an interpretation (la questione è fondataneisensi di cui in motivazione) – ordinary effects of declaration of uncostitutionality

45. Manipulative decisions Partial declaration of unconstitutionality (the disposition is partly unconstitutional) ADDITIVE JUDGEMENT - Sentenzaadditiva (the disposition is unconstitutional due to the lack of a certain provision) ABLATIVE JUDGEMENT - Sentenzaablativa (the disposition is unconstitutional due to the presence of a certain provision) SUBSTITUTE JUDGEMENT - Sentenzasostitutiva (the disposition is unconstitutional due to the presence of a certain provision in place of another provision)

46. Manipulative judgements Cases in which the Court declares the unconstitutionality of a statute insofar as it does not cover something for which it should provide, and thus the Court adds to the statute (sentenze additive); it does cover something that it should not provide for, thus the Court removes something from the statute (sentenze ablative); it covers one thing rather than something else, and thus the Court substitutes something in the statute (sentenzesostitutive).

47. Direct method of judicial review Art. 134 The Constitutional Court shall pass judgement on: – controversies on the constitutional legitimacy of laws and enactments having force of law issued by the State and Regions

48. The original text of art. 127 «every law approved by the regional council shall be communicated to the government commissioner who, except in the case of opposition by the government, must approve it within a period of thirty days from its submission. The law is promulgated within ten days from the date of approval and becomes effective not earlier than fifteen days from its publication. If a law is considered urgent by the regional council, and the government of the republic approves it, then its promulgation and date of effect are not subject to the aforementioned terms. When the government of the republic deems that a law approved by the regional council exceeds the competence of the region or is in conflict with national interests or with those of other regions, it sends it back to the regional council within the period established for approval. When the regional council approves it again by an absolute majority of its members, the government of the republic may, within fifteen days of communication of the fact, submit the question of its legitimacy to the constitutional court or a lower court due to conflict of interests before the chambers. In case of doubt, the constitutional court shall decide on the competent body ».

49. Const. Law 1/482. - Quando una regione ritenga che una legge od atto avente forza di legge della repubblica invada la sfera della competenza ad essa assegnata dalla costituzione, può, con deliberazione della giunta regionale, promuovere l'azione di legittimità costituzionale davanti alla corte nel termine di 30 giorni dalla pubblicazione della legge o dell'atto avente forza di legge.Una legge d'una regione può essere impugnata per illegittimità costituzionale, oltre che nei casi e con le forme del precedente articolo e dell'art. 127 della costituzione, anche da un'altra regione, che ritenga lesa da tale legge la propria competenza. L'azione è proposta su deliberazione della giunta regionale, entro 60 giorni dalla pubblicazione della legge.

50. 1. Abstractness 2. a priori3. not only on the legitimacy but on the merits