Corte costituzionale

from Wikipedia, the free encyclopedia
The Palazzo della Consulta , seat of the Italian Constitutional Court

The Corte costituzionale (German: Constitutional Court ) is the only institution of constitutional jurisdiction in Italy and has extensive jurisdiction in the area of ​​state organization and constitutional law, e.g. B. the mandate to settle disputes between public bodies and the authority to monitor norms .

Its seat is in the Palazzo della Consulta on the Quirinal in Rome . The Constitutional Court is unofficially referred to as Consulta after its official seat .

Responsibilities

The Constitutional Court is an independent constitutional body within the judiciary . It does not belong to the ordinary jurisdiction , the highest court of which is the Corte Suprema di Cassazione (Court of Cassation). The provisions at constitutional level, which regulate the competence, composition and functioning of the Constitutional Court, can be found in Articles 134 to 137 (under the title Constitutional Guarantees ) of the Constitution and in special constitutional laws , such as B. the constitutional law 1/1953 or 2/1967.

Under Article 134 of the Constitution, the Court of Justice rules on:

  • the compatibility of laws and acts with the force of law of the state and the regions with the constitution (so-called direct or indirect appeal, ricorso diretto o indiretto )
  • Disputes between state authorities or between the state and regions and between regions (or autonomous provinces)
  • the indictment against the President of the Republic
  • the admissibility of an abolishing referendum ( referendum abrogativo ).

There is no legal remedy against the decisions of the Constitutional Court.

It should be noted that all cases in which the term "region" (a middle level of administration in Italy ) is used also applies to the autonomous provinces of Trento and Bolzano (South Tyrol), which have a constitutionally unique and privileged position and are largely equal to the regions (although they are themselves part of a region), are meant (for more information, see Autonomy of South Tyrol ).

Constitutional appeal

It is incumbent on the Constitutional Court to decide , on the basis of a direct or indirect constitutional complaint, on the compatibility of laws of the state and regions as well as acts with legal force ("legislative decree" or "legislative decree", decreto legge or decreto legislativo ) with the constitution.

A direct constitutional complaint, which is an expression of the abstract control of norms (i.e. control of norms without a specific reason), can be raised:

An indirect constitutional complaint as a concrete judicial review (specifically in the sense that it is caused by a specific individual case) is made by a judicial authority with decision-making power (e.g. not by the public prosecutor, who is part of the independent judiciary in Italy ). It can only be raised during proceedings pending before a court. This results in the difference z. B. on the Federal Republic of Germany, whose Federal Constitutional Court can be appealed directly, a restriction for the citizens. The legal provision, the constitutionality of which is called into question, must be relevant to the decision in the main proceedings, ie it must not only raise the question of the constitutionality of any legal provision. In summary, the judge has to decide a quo by means of a decision whether the question should be referred to the Constitutional Court; he decides whether the question is "not obviously unfounded" and whether the solution to the question is relevant to the process.

In the event of a negative assessment by the judge a quo , however, the question can be raised anew in every further procedure and in every instance.

If it declares the contested provisions unconstitutional, the judgment will be published in the Official Gazette ( Gazetta ufficiale ), the Official Gazette of the Regions (bollettino regional) or that of the Autonomous Provinces (bollettino provinciale). The day after publication, the standards lose their effectiveness retrospectively , so they may not be applied to future or past situations.

In the course of its activity, the court has recognized in the sense of more flexible case law that it is necessary to develop other types of judgment apart from the "yes or no" decision: on the one hand, more satisfactory results can be achieved with this, on the other hand, the declaration should avoid the unconstitutionality to intervene in the legislature on a profound basis; this should be avoided if possible.

  • Interpretative dismissal judgment: The constitutional complaint is dismissed, the court decides on a different, non-unconstitutional interpretation.
  • Interpretative judgment of acceptance: The constitutional complaint is accepted in the sense that a non-constitutional interpretation of a legal provision is repealed.
  • Admonished judgments: If the declaration of unconstitutionality is not urgent, the Constitutional Court can request the legislature to amend or repeal unconstitutional provisions.
  • Decisive judgments: If a norm can be interpreted in different ways or if it contains several terms, part of which is unconstitutional, either the interpretation or the term that is not constitutional is repealed.
  • Supplementary judgments: privileges for a group of people, which are unconstitutional because of their violation of the principle of equality, are extended to the wrongly not privileged group of people.
  • Tampering judgments: The contested legal norm is declared unconstitutional; the judge a quo is instructed to apply a different norm to the matter.

Conflict of powers

The Constitutional Court decides in disputes over jurisdiction between state organs. Either these are disputes between constitutional bodies, between the state (as a central regional authority ) and the regions (as local authorities) and between different regions. In the legal system of the Federal Republic of Germany, this is roughly comparable to the organ dispute .

A conflict of powers arises when one of the named organs takes over the guaranteed powers of another organ (real conflict) or tries to do so (virtual conflict). These are cases of a "positive conflict of powers", which is characterized by the fact that different bodies declare themselves responsible. Conversely, organs can also declare themselves "not responsible" (negative conflict). In all cases, the Constitutional Court is responsible for deciding who is entitled to the authority and who is not entitled to it.

It should be noted that the subject of a conflict of powers are only provisions that can be found in the hierarchy of norms under the law, i.e. administrative measures, government acts or political acts. A law which, in the opinion of another body, violates the constitution does not constitute an overstepping of the powers of parliament, but must be challenged by way of a direct constitutional complaint.

Charges against the President of the Republic

The President of the Republic is not responsible for statements made in the exercise of his mandate; Only in cases of high treason and the attack on the constitution can he be charged by the jointly assembled parliament (cf. Art. 90 of the Constitution).

In this case the constitutional court decides on the allegations. In this case, the ordinary judges are supplemented by sixteen members who are drawn from a list drawn up by Parliament every nine years. The citizens included in the register must have the right to stand as a candidate for the Senate (cf. Art. 135, Paragraph 7 of the Constitution).

The indictment against the president is controversial in legal doctrine. The constitution of the republic provides in article 25, paragraph 2, that no one may be punished, except by a law that came into force before the act was carried out ( nulla poena sine lege ). The criminal offenses "high treason" and "attack on the constitution" mentioned in Art. 90 (1) are not clearly defined to the extent that they would be considered an ordinary criminal provision. It is assumed that this is a permissible deviation from the above-mentioned principle. In any case, the criminal offenses are considered to be different from any other criminal or military law provision.

Since there have not yet been any indictment proceedings against a President of the Republic, the application of this provision has never been necessary.

Until 1989, the Constitutional Court was also responsible for prosecuting ministers. The relevant provision was deleted without replacement by the Constitutional Act 1/1989.

Admissibility of the abolishing referendum

In Italy there are various instruments for the direct participation of the electorate in the legislation. One of these instruments, the so-called "abolishing referendum", is advertised if this is required by 500,000 eligible voters or five regional parliaments (so-called regional councils, consigli regionali ), and can lead to a partial or total repeal of laws (cf. Art. 75 Constitutional). ).

The Court of Cassation is responsible for deciding on the legality of the referendum (signatures, deadlines, subject of the referendum, etc.). If it has declared it lawful, it is up to the Constitutional Court to rule on its admissibility. This is not the case if:

  • the matters listed in Art. 75 (2) that are considered sensitive are the subject matter or implicit restrictions of the constitutional order (e.g. fundamental rights) would be violated
  • the question is unclearly formulated
  • a multitude of different topics is the subject of, or contradicting results are to be expected from the repeal.

composition

Another view, on the left the Dioskurenbrunnen

It consists of 15 judges . A third of the judges are appointed by the President and another third by Parliament . The remaining five members are elected by the highest courts, among the incumbent or retired judges of the highest ordinary and administrative courts, under full professors of law and under lawyers with at least twenty years of professional experience. The term of office is nine years. No further term of office is possible. The President of the Court is elected by the members from among their number in a secret ballot. The Vice-President is appointed by the President of the Court.

A Secretary General is at the head of the administration of the Constitutional Court . It has a total of around 350 employees.

history

The Constitutional Court was not set up in the Palazzo della Consulta until 1955 , on the basis of the 1948 Constitution, after some delays . It started its judicial activity in 1956. In 1967 the term of office of the constitutional judge was reduced from twelve to nine years.

literature

  • Jörg Luther: The constitutional jurisdiction in Italy . In: Christian Starck , Albrecht Weber (ed.): Constitutional jurisdiction in Western Europe . Volume I. 2nd edition. Nomos, Baden-Baden 2007, ISBN 978-3-8329-2640-3 ( Studies and materials on constitutional jurisdiction . Volume 30 / I), pp. 149–164.

See also

Individual evidence

  1. ↑ The Parliament appoints judges with increasing delay: Giuseppe Salvaggiulo, Consulta, sfregio infinito. Ventisei votazioni fallite , La Stampa, October 3, 2015 and Giampiero Buonomo, Negoziazione politica e Parlamento ... Non solo risate , Avanti online, August 26, 2015.

Web links