Report from Italy

The Constitutional Court in Italy was set up for the first time by the Constituent Assembly that was elected on June 2, 1946 the same day the country chose to become a Republic. The Corte costituzionale is regulated by Articles 134 to 137 of the Italian Constitution, which came into effect on January 1, 1948 as well as by Constitutional Laws 1/1948, 1/1953 and 2/1967 and Statute Law 87/1953. It should be noted that the Court did not actually start operating until 1956 so for the first eight years constitutional adjudication was carried out by the Corte di Cassazione, Italy’s Supreme Court.

In a comparative context, the model of constitutional review adopted in Italy can be considered centralized as opposed to the decentralized or diffused model adopted in most common law systems. Strictly speaking Italy’s Constitutional Court is not part of the judiciary, but is an ad hoc body with four specific functions.

Membership

The Constitutional Court is composed of 15 judges: five are appointed by the Parliament in joint session, five by the President of the Republic and five by the Supreme Courts (Corte di Cassazione, Consiglio di Stato, Corte dei Conti). This ensures that it is independent from all other State powers. Judges sit on the Court for nine years and cannot be re-elected. The Chief Justice is elected among the members of the Court. According to an unwritten convention the Court always elects the most senior judge. The present Chief Justice is Franco Bile (first deputy presiding judge of the Corte di Cassazione).

The other 14 judges are: Deputy Chief Justice Giovanni Maria Flick (Full Professor of Law and former Minister of Justice); Francesco Amirante (Chairman of Division of the Corte di Cassazione); Ugo De Siervo (Full Professor of Law); Romano Vaccarella (Full Professor of Law); Paolo Maddalena (Chairman of Division of the Corte dei Conti); Alfio Finocchiaro (Chairman of Division of the Corte di Cassazione); Alfonso Quaranta (Chairman of Division of the Consiglio di Stato); Franco Gallo (Full Professor of Law); Luigi Mazzella (Advocate General); Gaetano Silvestri (Full Professor of Law); Sabino Cassese (Full Professor of Law); Maria Rita Saulle (Full Professor of Law); Giuseppe Tesauro (Full Professor of Law); Paolo Maria Napolitano (Judge of the Consiglio di Stato).

Candidates are chosen among lawyers with at least twenty years of legal practice, Full Professors of Law and judges, even if retired, of the Supreme Civil, Criminal and Administrative Courts.

The Court’s Proceedings

The Constitutional Court has an exclusive jurisdiction to decide on: the judicial review of laws and acts having force of law (legislative decrees and law decrees); jurisdictional disputes between branches of government within the State and jurisdictional disputes over the allocation of powers between the State and sub-national entities (Regions).

Moreover, the Court also delivers judgments concerning accusations against the President of the Republic for high treason and attempting to overthrow the Constitution. Finally, the Court has the power to decide on the admissibility of referenda as provided for by art. 75 of the Italian Constitution.

Of these four functions undoubtedly judicial review is the most important. Two proceedings can be followed in order to file a claim before the Court: principaliter proceedings and incidenter proceedings, the latter are the most common of the two. The principaliter proceedings refer to claims lodged directly before the Court by the Central Government or the Regions. The incidenter proceedings, on the contrary, consist of a claim filed by an ordinary court judge (known as judge a quo) and are carried out during a regular trial.

It should be noted that concurring and dissenting opinions are not rendered public.
When the Court declares a law unconstitutional its decision is binding erga omnes and the law is considered null and void, however, the retrospective effect is barred by the doctrine of res judicata. On the contrary, if the Court does not declare the law to be in violation of the Constitution the decision is only binding inter partes.

Judicial Review of Legislation

Regional Statutes of Autonomy (Principaliter Proceedings)

Following the Constitutional amendment of 2001, which devolved greater powers to Regional Governments, the Italian Regions have started the process of approving Regional Statutes of Autonomy and Regional electoral laws. It is important to underline that, before coming into force, these statutes can be reviewed by the Constitutional Court if a claim is filed by the Central Government (preventative or a priori review). As a consequence in 2006 the docket of the Court consisted of numerous cases concerning the constitutional legitimacy of Regional Statutes of Autonomy. Cases nos 3/2006 and 12/2006 were of particular significance.

The first case established that during the so-called transitory period before a Region has approved its new Statute of Autonomy it cannot approve a new electoral law. The second case concerned the Statute of the Regione Abruzzo, which the Court declared unconstitutional for three reasons: 1) single members of the Regional government cannot be substituted; 2) if the Regional executive’s political program is not approved this is not the equivalent of a vote of no confidence; 3) if the President of the Regional executive receives a vote of no confidence he has to resign but does not lose all his powers.

Implementation of EU law (Principaliter Proceedings)

Art. 249 of the Treaty of the European Union (TEU) states that directives are binding only as to the aim. Implementation is left to the Member States through domestic laws. In case no. 398/2006 the Constitutional Court underlined a principle contained in a previous judgment delivered in 1996 (126/1996) according to which European directives have to be implemented at the level of government of the Member State that has been allocated legislative power on that subject matter. The only exception is when it is desumable from the directive itself that it should be implemented in a unitary manner (i.e. by a national law).

Immigration (Incidenter proceeding)

Italian immigration law is quite recent. Up until 1998 there was no organic law regulating immigration and, as a result, the Court was called upon several times to judge the Constitutional legitimacy of these provisions. Case no. 109/2006 established that the law that gives jurisdiction to the Justices of Peace on orders of expulsion for illegal immigrants is pursuant to the Constitution. Moreover, case no. 206/2006 addressed the consequences of a previous judgment delivered by the Court concerning the right to defence of illegal immigrants on the basis of which expulsion orders were to be reconsidered. The immigrants required an act of indemnity so as to become legal residents, but this was refused because they had previously been expelled.

Sexual discrimination (Incidenter proceeding)

In case no. 254/2006 the Court declared art. 19 of the Preliminary provisions of the Italian Civil Code unconstitutional due to violation of the principle of equality. Art. 19 established that assets of a married couple should be regulated by the national law of the husband that was in force at the time the wedding was celebrated.

Jurisdictional disputes between branches of Government within the State and over the allocation of powers between the State and sub-national entities (Regions)

Pardon

For some years there has been an ongoing dispute at political and academic level as to who has the final say when granting pardon. In case no. 200/2006 the President of the Republic filed a claim before the Court in order to determine whether the power to grant pardons is allocated to the President himself or to the Minister of Justice. The President did this following the refusal by the then Minister of Justice of the Berlusconi Government to sign a Presidential decree pardoning a person sentenced to prison for acts of terrorism. The Court sentenced that granting pardon is not a political, but rather a humane decision. Therefore, pardons should be granted by a non-political body such as the President of the Republic considered super partes by the Italian Constitution.

Freedom of Opinion of Members of Elected Collegial Bodies

For some years there has been an ongoing debate as to how art. 68 par. 1 of the Italian Constitution should be interpreted. This constitutional provision states that “members of Parliament shall not be called to answer for opinions expressed or votes cast in the exercise of their functions”. The core issue is what should be considered an opinion expressed in the exercise of a function. Case no. 249/2006 stated that obscene language is not considered a mode of expression by the standing orders of Parliament and therefore if used outside the Chamber it cannot be considered an opinion expressed in the exercise of a parliamentary function.

Moreover, in case no. 258/2006 the Court specified that MPs can be called upon to answer for opinions on institutional and political matters made to the press if they precede a public speech or the approval of an Act of Parliament. Similarly, in case 416/2006 the Court underlined that comments to the press made by MPs are protected under the Constitution only if they are a mere repetition of statements made in the House. Case no 452/2006, concerning the offensive remarks made by the leader of the separatist movement Lega Nord with regard to the Italian flag, is in line with previous case law.

Of particular interest is case no. 221/2006 which concerned freedom of opinion of members of Regional Assemblies. Opinions expressed by Regional councilors are protected under art. 122, par. 4 of the Italian Constitution. The Court interpreted this constitutional provision in a similar manner to art. 68 with regard to members of the National Parliament.

Sexual Orientation

In 2004 the Regione Toscana approved a law against discrimination on the basis of sexual orientation and gender identification. In case no 253/2006 the Court declared that the provisions concerning the freedom to choose a person to give therapy authorization were unconstitutional because they interfered with a competence of the National Parliament (art. 117 par. 2, letter l of the Italian Constitution). Another provision of the law concerning authorizations for sex change treatments was also declared unconstitutional.

Further Information

Further information on the Constitutional Court of Italy, including judgments and press releases, can be obtained from the Italian Constitutional Court website, at http://www.cortecostituzionale.it.

Justin O. Frosini and Sara Pennicino
justin.frosini@unibocconi.it , sara.pennicino@unibocconi.it