Recent judgments


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 Judgment No. 214 of 2016
Paolo Grossi, President - Silvana SCIARRA, Author of the Judgment
In this case, the Court heard a reference from the Council of State concerning legislation amending previous legislation, on the basis of which a final court ruling had been issued, which legislation had the effect of removing the basis for that final court ruling and preventing it from being enforced. Following the enactment of the subsequent legislation, the court seized with enforcement proceedings dismissed the case due to a supervening lack of interest to sue. The Court rejected the question, holding that the fact that the applicants had a legally protected interest, which had also been recognised in a final court ruling, did not mean that Parliament was no longer able to make provision in relation to that interest, or indeed to negate it. In addition, the Court noted that the subsequent legislation had been enacted with the aim of reducing public spending, and not specifically of overturning the original court ruling. Finally, the Court held that the legislation did not violate any previously acquired rights of the applicants, as the legislation repealed had not made provision for their promotion, but rather specified the arrangements that would eventually result in their promotion.



 Judgment No. 200 of 2016
Paolo GROSSI, President - Giorgio LATTANZI, Author of the Judgment
In this case the Court heard a referral order concerning a provision of the Code of Criminal Procedure which limits the applicability of the ne bis in idem principle to the same legal fact as regards its constituent elements, notwithstanding that it is classified in a different manner, rather than to the same historical fact, with the result that the criteria for establishing whether the fact is the same are more restrictive under Italian law than under the ECHR. The Court ruled the legislation unconstitutional insofar as it did not provide that the applicability of the ne bis in idem principle must be assessed with reference to the same historical-naturalistic fact, albeit considered with reference to all of its constituent elements (conduct, event, causal link). Italian law must base its assessment on the idem factum, and has no scope for idem ius. Moreover, it is essential that the assessment as to idem factum is kept separate from any subsequent consideration as to whether a second prosecution is mandated on the grounds that the same fact involved the commission of multiple offences, where any given offence was not prosecuted in the first trial.



 Judgment No. 187 of 2016
Paolo GROSSI, President - Giancarlo CORAGGIO, Author of the Judgment
In this case the Court considered several Referral Orders from the Ordinary Tribunals of Rome and Lamezia Terme questioning a provision of a Law that provides for temporarily filling school personnel positions on an annual basis using renewable fixed-term employment contracts, pending the completion of competitive selection procedures for the recruitment of tenured staff. The Referral Orders contended that the provision violated Article 117 of the Constitution, with reference to European Union regulations. After holding that the question was founded despite supervening legislation, since the questioned provision was still the applicable law in the pending proceedings, the Court requested a preliminary ruling from the European Court of Justice (ECJ) for clarification concerning the relevant E.U. regulations. The ECJ held that the use of fixed-term contracts was justified by an adequate objective need, but that the cases under review presented examples of unchecked and unlimited use of successive fixed-term contracts, which was not justified, and, furthermore, that provision had to be made for compensation in cases of abuse that would serve to nullify any damages. After holding that the questioned provision was unconstitutional, the Constitutional Court went on to address the question that was the object of the pending proceedings: whether the ECJ decision necessitated recognizing the right to compensation for damages suffered as a result of a breach by the Italian State. The Court answered in the negative, finding that it falls within the European Member States? competences to determine the punitive implications of violations, and that, even if compensation would have been required at the time the proceedings were initiated, later, supervening legislation had placed the requisite limitations on the repeated use of fixed-term contracts, guaranteeing this measure by the establishment of a fund intended to provide compensatory damages in cases of breach. The Court also held that the compensatory measures enumerated by the ECJ were intended as alternative options, and that it was sufficient for the State to execute only one of the authorized protective measures or other, equivalent measures in order to conform with E.U. regulations. Finally, examining the category of personnel involved in each of the pending proceedings, the Court ruled that, in each of them, the State had provided sufficient measures to nullify damaging effects caused by its abusive use of recurrent fixed-term contracts through supervening legislation, including privileged access to tenured positions and compensatory damages from the established fund.



 Judgment No. 179 of 2016
Paolo GROSSI, President - Giuliano AMATO, Author of the Judgment
In this case the Court considered a Referral Order from the Regional Administrative Tribunal for Puglia, Separate Lecce Division, questioning the constitutionality of provisions of a legislative decree which allow for the public administration, rather than a private party, to initiate administrative judicial proceedings which fall under the exclusive jurisdiction of the administrative justice system. The referring TAR contended that this contradicted Constitutional parameters, alleging that the system of administrative justice envisioned by Articles 103 and 113 of the Constitution intended for recourse to judicial protection to be available exclusively to a private entity injured by the public administration. After ruling on an objection that the question was admissible, the Court held that it was unfounded. The Court found that administrative agreements create binding obligations for both the public administration and the private party, with the intention that either party should have recourse to administrative justice in case of breach by the other party. The Court observed that the fact that Articles 103 and 113 of the Constitution refer to protections afforded to private entities does not imply that only private entities may have recourse to said protections. The Court also observed that administrative justice was historically and institutionally intended not only for the protection of legitimate interests and rights, but also for the protection of public interests as defined by law. Furthermore, the Court indicated that the solution implied by the Referral Order would bring about inconsistent and unreasonable effects by contradicting with the legislative mandate for the reorganization of administrative proceedings and allowing private parties to unilaterally determine the subjects at issue in a dispute, since the administration could neither initiate proceedings, nor modify their object through a counter-claim.



 Judgment No. 133 of 2016
Paolo Grossi, President - Silvana SCIARRA, Author of the Judgment
In this case, the Court heard various applications from administrative courts challenging the removal, from a decree-law, of a provision permitting the temporary retention in service of certain public sector employees who would otherwise be required to take early retirement in order to ensure generational turnover. The Court rejected the questions as unfounded, holding that the legislation did not breach any legitimate expectation, was not contradictory or unreasonable and did not have a discriminatory effect.



 Judgment No. 84 of 2016
Paolo GROSSI, President - Mario Rosario MORELLI, Author of the Judgment
In this case the Court heard a referral order concerning the 2004 Law on medially assisted reproduction, in which it was requested to adopt an expansive ruling to the effect that embryos that were destined to be destroyed as they would not be implanted where affected by disease could be used for scientific research, notwithstanding the statutory prohibition on such usage. The Court noted that there was no pan-European consensus on such a sensitive issue and dismissed the application, holding that "the choice made by the contested legislation is one of such considerable discretion, due to the axiological issues surrounding it, that it is not amenable for review by this Court".



 Judgment No. 63 of 2016
Marta CARTABIA, President - Marta CARTABIA, Author of the Judgment
In this case the Court considered a direct application from the President of the Council of Ministers questioning the constitutionality of portions of a Lombardy regional law modifying regional principles for planning facilities for religious services. The claimant alleged that the legislation violated the equal religious freedom of all religious creeds and exceeded the legislative competences of the Region. The Court found that the regulation of religious facilities falls within regional competences only to the extent justified by the city-planning-related interest in ensuring the balanced and harmonious development of inhabited areas and realizing services of public interest. In light of the principle that all religious denominations are entitled to equal freedom to exercise their religion, and that opening places of worship is essential to such exercise, the Court stated that neither the relative size of the denomination nor the presence or absence of a formalized pact with the State may be a source of discrimination between them, and that placing different conditions upon different classes of denominations to gain access to space for religious facilities would exceed regional competences. On these grounds, the Court struck down those portions of the contested provisions that made such distinctions. The Court also struck down provisions requiring newly-constructed places of worship to install video surveillance systems as exceeding regional competences, since the pursuit of safety, public order, and peaceful coexistence is allocated exclusively to the State under the Constitution. The Court found other challenges to be unfounded, holding, first, that the regional government?s ability to dissolve or revoke an agreement between a particular religious denomination and the government in cases of breach passed the test of proportionality and amounted to a legitimate use of regional competence; second, that the clause providing for the region?s ability to institute a referendum did not in any way modify the preexisting local and national regulations on referenda; and, third, that the requirement that new places of worship have architectural and dimensional congruity with the existing landscape of Lombardy was not arbitrary, but referred to preexisting legislative standards in a separate, unchallenged law. The Court held the allegations that the legislation violated international and supranational law inadmissible, for failure to clearly and specifically state the alleged violation in legal terms, as required of direct applications, and for failure to support the alleged violation with adequate reasoning. An additional allegation was found to be manifestly inadmissible for failure to state why and how the Constitution applied to the questioned provision.



 Judgment No. 52 of 2016
Marta CARTABIA, President - Giorgio LATTANZI, Judge Rapporteur - Nicolò ZANON, Author of the Judgment
In this case the Court heard a jurisdictional dispute between the President of the Council of Ministers and the Court of Cassation concerning a decision by the latter upholding an appeal brought by an association of atheists which had sought an order requiring the President of the Council of Ministers to launch negotiations with a view to concluding a concordat with it as a religious organisation. The Court accepted the application by the President of the Council of Ministers and overturned the court ruling, concluding that the decision in question was a discretionary matter for the executive, which could be held accountable for it as a political matter before Parliament, but not before the courts.



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