RICERCA ITALIANA     

From the Court of rights to the Court of conflits: recently developments in the jurisprudence and in the role of the Constitutional Court

Università degli Studi di Milano

Abstract

Starting from the analysis of data on the activities of the Constitutional Court in recent years – that is, the growth in judgments on State-regions issues and on conflicts of powers and the relative loss of importance of ‘incidental' (arising as incidental to an underlying proceeding) judgments of constitutionality – and from the increased relevance of the jurisprudence of supranational courts (the Court of Justice in Luxembourg and the European Court of Human Rights) on fundamental rights within European countries, and Italy in particular, the research project shall study the instances and trends that such data reveals, investigate its proximate and remote causes, evaluate its effects, especially on protection mechanisms for fundamental rights and on relations between domestic jurisdictions and supranational jurisdictions, and draw conclusions in terms of a configuration and development of the Constitutional Court's institutional role.
In more detail, the following shall be the subjects of systematic study: points of intersection and contrast between the jurisprudence of the European Court of Human Rights in Strasbourg and domestic ones (both constitutional and ordinary courts) on different aspects of the concrete safeguard of rights; the developments in constitutional jurisprudence in the area of conflicts of powers, with special attention dedicated to the privileges of constitutional bodies, with their resulting implications in the protection of fundamental >>>

Principal Investigator

Valerio ONIDA Università degli Studi di MILANO

Research Objectives

In recent years, the number of judgments issued by the Constitutional Court on issues relating to litigation between the State and its regions or conflicts of powers has surpassed the number of ‘incidental' cases dealing with the constitutionality of laws. In the last decade, the number of cases on conflicts of powers decided each year by the Court was ten times greater than the average in the preceding forty years. This data shows a significant change in the institutional role played by the Court; in particular, it may indicate a corresponding growth in the Court's role as the arbiter of conflicts (both State versus the regions and between powers) as opposed to the traditionally central one of guarantor of fundamental rights.
Contemporaneously, in the same direction, there is an increased influence of the jurisprudence of European supranational courts (the European Court of Human Rights in Strasbourg and the Court of Justice in Luxembourg) in thr area of the protection of fundamental rights on the jurisprudence of domestic ordinary judges (not constitutional ones). This could be the index of change in the Constitutional Court's role in this area and more generally in a more intricate ‘dialogue' between domestic jurisdictions and supranational ones.
In turn, the jurisprudence on conflicts often addresses fundamental rights' issues or the balancing of such interests: under this aspect, we may be looking at new contexts within which the traditional role of >>>

Timescale

24 months

National and international background

Studies on constitutional justice have so far mainly been dedicated to ‘incidental' judgments (judgments arising as incidental to an underlying proceeding). These have by far represented the largest body, quantitatively and the most significant qualitatively, of constitutional justice. Other studies, however, have also addressed inter-organic and inter-subject conflicts of power, litigation between the State and its regions, and judgments on the admissibility of referenda.
In the area of incidental judgments, particular attention has been dedicated to fundamental rights jurisprudence: the ways and frequency with which judges have raised constitutional issues have turned the incidental judgment into a sort of "substitute" of direct recourse by individuals for the violation of rights, one that is absent in our system.
Fifty years after the Court first began functioning the relative weight of the different types of constitutional judgments appears to be changing, in the sense of a newly shaped role of incidental judgments in favour of State-regions litigation and of conflicts of powers, and therefore in the direction of a change and evolution of the Court's institutional role, in relation to the other courts.
Litigation between the State and its regions has visibly increased in relation to the legislative developments following the constitutional reforms brought about by Constitutional Laws Nos. 1 of 1999 and 3 of 2001, as well as developments in the >>>