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The Italian Constitutional Court and the Pandemic: A National and Comparative Perspective
- Edited by Ewoud Hondius, Marta Santos Silva, Andrea Nicolussi, Pablo Salvador Coderch, Christiane Wendehorst, Fryderyk Zoll
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- Book:
- Coronavirus and the Law in Europe
- Published by:
- Intersentia
- Published online:
- 10 December 2021
- Print publication:
- 01 August 2021, pp 55-80
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Summary
Never before have the world’s democracies simultaneously experienced such a major contraction of civil liberties as during the “new” coronavirus pandemic, producing massive debates about the role of government power during times of crisis. This contribution focuses on the response provided by constitutional courts to face the emergency. The attitude of the Italian court can be effectively summarised by the following keywords: continuity, loyal cooperation, autonomy, step-by-step approach, working methods. From a comparative perspective, the reaction of many other national and supranational courts was not so different and inspired by the same criteria.
INTRODUCTION
Italy, well-known to be the first European country overwhelmed by the pandemic, found itself in the uncomfortable position of having to experiment with the tools and strategies – health-related, economic and legal – to tackle it.
In this situation, the very functioning of the constitutional bodies was severely tested. However, faced with the clear inevitable prevalence of government action in managing the emergency, it was necessary to ensure above all that the supervisory bodies, both political (the President of the Republic) and jurisdictional (the Constitutional Court, with a typically counter-majoritarian vocation, and the whole judiciary), would not fail in their essential functions.
As an initial assessment of these difficult months – March/June 2020 –, it can be said that the Italian supervisory system, on the whole, acquitted itself very well.
In particular, the ways the Italian Constitutional Court (ItCC) handled the situation were effective and perfectly aligned with those adopted by other European constitutional courts and the two European courts of Luxembourg and Strasbourg. Although the President of the ItCC, Marta Cartabia, contracted the coronavirus, this did not affect her role, given that, even with the illness, she continued to fulfil all her responsibilities overseeing the body, including that of presiding over the college (remotely, of course) during strictly judicial activity.
This contribution will illustrate the functioning of Italian constitutional justice, first in normal times, then during the coronavirus emergency (sections 2–3), thereby placing the Italian situation in the comparative context (sections 4–6).
THE ItCC IN ORDINARY TIMES
It should first be said that with absolute fidelity to the Kelsenian court model, the ItCC is not part of the judiciary in the strict sense, though its functions are certainly jurisdictional.
Italy
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- By Tatiana Guarnier, Senior Researcher at the University of Camerino, Italy, Elisabetta Lamarque, Associate Professor at the University of Milan Bicocca; Clerk of the Vice-President of the Constitutional Court, Italy
- Edited by Christian N.K. Franklin
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- Book:
- The Effectiveness and Application of EU and EEA Law in National Courts
- Published by:
- Intersentia
- Published online:
- 31 January 2019
- Print publication:
- 26 October 2018, pp 177-212
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Summary
INTRODUCTION
A very popular topic in Italian academic literature in recent years is that concerning the influences and effects in the domestic legal system of EU law and the decisions of the Court of Justice of the European Union (ECJ) on the one hand, and of the European Convention on Human Rights (ECHR) and the decisions of the European Court of Human Rights (ECtHR) on the other. The subject of analysis and reflection has especially focused on the dense intertwining among the Charters that ensure human rights at various levels – the Italian Constitution, the EU Charter of Fundamental Rights and the ECHR; and even other international conventions establishing specific bills of rights, such as the New York Convention on the Rights of the Child – as well as the external and internal courts that are called on to apply these Charters in various ways.
For legal practitioners, the issues raised by the overlapping of national, European and international legal sources and judicial decisions have now become very urgent. Some authors refer to them as a “ labyrinth “ for the interpreter, who is frequently asked to choose among several possible directions, and is oft en not equipped with adequate tools to navigate between them. In this situation, the temptation may be, of course, to avoid obstacles, to take unorthodox shortcuts, to skip the necessary logical and argumentative passages, and to rely on vague principles and values in order to achieve a solution in the case at hand.
However, it should be stressed that in the Italian legal system, the Constitutional Court (ItCC) has created a “ map “, setting out “ the logical path for the decision of national proceedings involving fundamental rights “ guaranteed by international and supranational sources. In fact, the interpretation and the application of the constitutional norms that function as a connection between the “ inside “ and the “ outside “ of the legal system are up to the ItCC to determine. Therefore, over the years, the ItCC has created the “instructions for use” of supranational and international norms, and indicated the logical path to follow in each case.