§ 1) . Preamble
The Court is pleased to welcome the members of the press again this year to discuss the results of its jurisprudential activity.  I am particularly happy to take this occasion, presented to me by the office that I have had the honor to hold for just over a month, as an opportunity for communication, in the widest sense and towards the widest audience: through you, I would like to address myself to all the citizens of this Republic, who are simultaneously European citizens and members of the complex, articulated and structurally open community of persons and institutions in which we live today.  Ours is a community that in the age of even virtual concreteness has other boundaries besides the familiar ones.  This address to a wide audience, to an authentic public, demands a style that is both clear and sober.

I would like to direct my warmest greetings to all of our illustrious guests and to my distinguished predecessors and to the former Vice Presidents, all of who wished to be present today to represent the continuity of this Court. Above all, I have the duty and the pleasure to recognize the work of Giuliano Vassali and Cesare Mirabelli, of whose presidencies the Court has had the privilege in the course of the year 2000.  We have also had the privilege in this period of the vice-presidency of Francesco Guizzi, whose nine-year term expired at the end of last year.  An affectionate homage to them all. A special greeting also goes out to Giovanni Maria Flick, who joined our Court in February.  I hope that Parliament elects the judges needed to complete this Court as soon as possible. 

I would also like to express my gratitude to those who – with their various titles and responsibilities – give life to the work of this Court, making it a truly collective enterprise.  A special thanks goes out to Prof. Tedeschi, the President of the Institute of the State Printing Office for the valuable contribution of his institution to our work.

§ 2) . General Observations
In dealing with the Court’s activities, I will limit myself to setting forth just the essential features, while directing you to the more exhaustive written report for the details.  I would like to start with the numbers, out of the belief that a basic quantitative awareness of the Court’s activities might contribute to a more concrete evaluation of them.  Some brief general considerations will follow the somewhat dry articulation of the data.  The statistics, as a “political arithmetic,” describe the state of affairs, but always aim to confer an awareness of the choices underlying it.

During the 2000 term, the Court sat 46 times, meeting in 17 public hearings and 29 council chambers.  It produced 592 decisions (194 written judgments and 398 court orders) covering a total of 1194 cases.

In terms of percentages, the Court’s decision-making activity broke down as follows: 79% of its decisions arose in constitutional questions certified to the court on an interlocutory basis (471 decisions); 9% were decisions in a conflict between powers of the State (54 decisions); 6% were decisions in petitions by the State challenging regional laws or by Regions against laws of the State or other Regions (35 decisions); 4% were decisions on the admissibility of a referendum (21 decisions); 2% were decisions in a conflict between the State and the Regions over non-legislative acts invasive of the competence of the other (13 decisions).

In percentages, the Court’s decisions have had the following outcomes:

a) 30% of the Court’s decisions of the constitutionality of laws held the question to be inadmissible or manifestly inadmissible for procedural reasons; in 18% of such decisions, the question was held to be groundless on the merits, while in 26% it was held to be manifestly groundless; 14% of such cases were remanded to a lower court; in 9% the law in question was held unconstitutional; 3% of the cases were declared moot.

b) 47% of the cases brought as conflicts between powers of the State were held to be inadmissible; the request was granted in 37% of the cases and rejected in 16% of them.

c) in conflicts between the State and the Regions, the request was granted in 38% of the cases and rejected in 23% of them; 23% were found to be moot; 8% inadmissible.

d) with respect to decisions concerning referenda, 67% were found to be inadmissible and 33% to be admissible.

Taking a look at the actors raising questions before the Court, the following tendencies may be seen in the 2000 pronouncements: more than 50% of the interlocutory questions were brought by ordinary, especially civil, judges; petitions by the State or Regions challenging a law have been raised by the President of the Council of Ministers (in 31% of the cases), the Commissioner of the State for the Region of Sicily (18% of the time), and, among the various Regions, Sicily (15% of the cases); in conflicts between the powers of the State, the judicial branch initiates around 80% of the cases; in conflicts between Regions and the State concerning respective competences, the Region of Veneto brought 22% of the cases.

A final important fact regarding cases that have not yet been decided: on 1 January 2000, these added up to 1004, while on 31 December 2000 they were 793. In the course of the year, 983 new cases were brought before the Court. I would like to emphasize that cases raised in 1999 are no longer pending, while those still pending are in the course of decision.

Evaluating this year’s statistics in relation to last year’s, the following conclusions may be drawn: 1) the number of petitions to the Court has increased, signifying an increased demand for constitutional justice; 2) this global increase comprehends a relative increase in the number of interlocutory constitutional questions, a decrease in the number of petitions by the State and Regions challenging a law, and a notable rise in the number of conflicts between powers of the State in recent years; 3) the number of judgments issued and cases decided has increased; 4) the number of cases pending has decreased.

Looking more closely at these numbers, it can concluded that the demand for constitutional justice arises mainly from the judiciary, both in matters of substantive constitutional law and in conflicts between powers of the State: it strikes me as significant that the great majority of conflicts are those between the judicial power and the legislative one.  It is, moreover, the judicial power that almost always initiates such conflicts, especially when faced with Parliament’s prerogative of immunity.

The increase, moreover, in the number of these conflicts is not to be simplistically evaluated as an expression of the litigious character of the different powers of the State (which at one time were conceived as implicitly bound at the very least to the principle of loyal cooperation and thought to reside within a homogeneous, if not unitary, structure). Much more significantly, it testifies to the mature degree of complexity attained by the system of public powers. The plurality of public actors demonstrates the simultaneous presence of conflicting needs and interests rather than just the fact of an unharmonious organizational apparatus.  Though perhaps far beyond what the Founders’ intended, this Court is increasingly called to settle constitutional controversies between holders of different interests – formally or substantially “public” - and in so doing, the Court is engaging in the continuous redefinition, not only of their competences, but also of their relationships.  It will probably prove more and more difficult in the future to talk plausibly and effectively about the “powers of the State.”

A further observation regards the Court’s decisions. The number of decisions, lato sensu, declaring a constitutional infringement was decisively low, especially in the interlocutory appeals in which declarations of unconstitutionality were made in just nine per cent of the judgments.  There is much overlap in the questions brought before the Court in these cases, revealed by the numerous decisions that questions were manifestly groundless because already adjudicated, or manifestly inadmissible because they had to do with provisions already declared unconstitutional.  This is a symptom that information about the activity of this Court is not always adequately diffused.  At the basis of many decisions to remand a case to the remitting court was an intervening change in the challenged provision or in the normative frame of reference.

With respect to the abrogative referenda, I want to stress the consistent number of questions subjected to the judgment of admissibility in the year 2000, with the innovation of mainly procedural judgments.

Though our current legal experience is concretely unstable and contradictory, it is, upon closer look, perhaps only as instable as any human experience.   The Court is ever more involved in the search for a right, and not just a law, acceptable to more than just the majority.  The authority of its decisions requires the attention, if not the consensus, of a universal public. We verify in our daily work how the procedures for a “proper” transformation of the laws are tied to the intelligence and the organization of the people: taken as a whole, these procedures regard a legacy that is both rational but also ethical.  It is rooted in our history.  As such, is it what we synthetically, but also symbolically, can call our “Constitution.”  The problem is to know how to interpret it, to know how to choose: guardians, and at the same time, co-participants in a process set forth in the written charter, but also in a continuous and inexhaustible development.

§ 3) . Jurisprudence
I would now like to turn to a brief statement of some of the tendencies manifested by the last year.  This statement will be inevitably summary, as constitutional jurisprudence can only be evaluated with the distance of time, sometimes a lot of time.  Even the salient features of constitutional jurisprudence can take a long time to come into view.  They are quite often the fruits of a long process in which many authors participate, often without knowing it or without wanting to, involving many (even unconscious) activities of study, reflection and decision.

Turning now to the individual judgments, the Court generally reaffirmed the principle that the interlocutory certification constitutes the basic instrument for obtaining a declaration of the unconstitutionality of a provision of a law which judges are required to apply (judgment n. 419, ordinances n. 144 and n. 211).  Recourse to other remedies, like the conflict between powers of the State, in order to indirectly obtain the same outcome is, therefore, improper (ordinance n. 144).  Such recourse is especially improper when the legislation under discussion applies to litigation (ordinance n. 211). Moreover, in the context of a conflict between powers of the State, the Court cannot be asked to fill a gap in the law by setting forth a body of rules ex novo (judgment n. 309).  Only legislative acts, or acts having the “force of law”, may be reviewed on an interlocutory basis.  Judicial review, therefore, cannot be extended to questions referring to acts not having the force of law, as in the case of regulatory, administrative or executive acts (ordinance n. 328, n. 139) or norms which have assumed a particular regulatory status by effect of “delegislation” (ordinance n. 554, judgment n. 427).

The Court stressed its inability to act outside of its proper jurisdiction when faced with interlocutory questions formally seeking a declaration of unconstitutionality, while in fact asking the Court to substitute the legislature’s law with its own (judgment n. 226).  The Court may not be called upon to carry out a far-reaching reform (ordinances n. 200 and 397) and still less to make choices reserved to other technically and scientifically competent organs (judgment n. 188).  The Court’s jurisdictional limitations forbid it to act in such a way as to worsen the position of a person subjected to the substantive criminal law (judgment n. 183, ordinance n. 317).

The particular “reserve” [legislative competence] in the area of criminal law and sentencing (Const., Art. 25 §2) bars “additive” declarations of unconstitutionality in this area [in which the Court declares a provision unconstitutional insofar as it does not provide for something that it ought to].  This furthermore prevents the Court from being able to remedy an equal treatment violation by extending the censured norm to include the previously unforeseen cases (judgment n. 508).

The principle of “reasonableness” has often been invoked to challenge many provisions of law.  It was historically rooted in Art. 3 of the Constitution, on the assumption that an unreasonable provision was also necessarily discriminatory. This term, Court found an Art. 3 violation only when the norm manifested an intrinsic incoherence, contradiction, or was illogical with respect to either the preexisting normative context (judgment n. 450) or the comprehensive purpose of the law (judgment n. 416).

This trend in the interpretation of reasonableness was manifested in the decisions rejecting the constitutional challenge and upholding the norm as reasonable even though it implied differential treatment. For example, the legal criteria for the computation of the deadline for bankruptcy rehabilitation (judgment n. 549); the law providing for the protection of workers from asbestos, which subjected such protection to a temporal duration precondition (judgment n. 5); the law that did not extend to soldiers in Italian and enemy armed forces the pardon granted to members of armed, partisan groups or their rivals (judgment n. 298).

Alongside the criteria of reasonableness, the Court considers the balancing of constitutionally protected interests, as well as financial or systemic compatibility. Though the “irreducible core of the right to health protected by the Constitution as the inviolable province of human dignity” remains intact no matter what, the Court held that the balance must take into account the objective limitations encountered by the legislature in relation to the organizational and financial resources at its disposal (judgment n. 509).

The judgments rejecting a constitutional challenge had in common their reaffirmation of the “principle of the supremacy of the Constitution,” which requires the interpreter to choose an interpretation that is consistent with the Constitution (judgment n. 113; see also judgments n. 1, n. 115, n. 190, n. 408, n. 440, n. 460 and n. 526).  This principle justified the Court’s frequent resort to decisions, which rejected the constitutional challenge, but set forth guidelines for the proper, constitutionally compatible interpretation of the law in question.  The Court also refers to the principle of the interpretation consistent with a European norm binding upon the whole legal order (judgment n. 190).

Called to examine the constitutional admissibility of numerous referendum proposals, the Court took a clear position on the question of intervening parties for the first time. The Court said that the nature of the admissibility judgment (not involving actual parties or interveners) did not prevent an oral argument to illustrate other interested parties’ positions, and those of the referendum’s official promoters and the President of the Council of Ministers (the executive branch) (judgments n. 31, n. 43, n. 45, n. 46, n. 47, n. 49).

Turning to the particular judgments on the merits, the Court confirmed that the traditional criterion of admissibility, that the provisions to be abrogated by the referendum constitute an homogeneous body within the law that contains them (judgment n. 32 concerning reimbursements for election expenses; judgment n. 44 concerning magistrates’ extra-judicial appointments; judgment n. 46 dealing with the so-called real protection of workers fired from their jobs; judgment n. 47 addressing the deductions of associational and union dues by social security authorities; judgment n. 34 dealing with the elections of magistrates’ representatives in the High Council of the Magistracy).

Judgment n. 33 fits in with this group.  It held a referendum to abrogate part of the electoral law admissible, insofar as its various questions presented a unitary, homogeneous matrix and the result of the abrogation would not have rendered the electoral law inoperative.  For the same reasons (homogeneity, self-applicability, and the abrogative nature of the question put to vote by referendum), the Court also declared admissible the referendum concerning the “separation of careers” for magistrates.

Several judgments reaffirmed well-established principles while declaring referendum proposals inadmissible as formulated. These decisions may be classified in 4 different groups.

The first group embodies the referendum proposals that the Court declared illegitimate for their way of cutting up the law at issue.  Such proposals isolated words or phrases of the law to be rejected by the referendum for the sole purpose of replacing the governing law with another, completely different one (in this sense, judgment n. 38, concerning the civil liability of magistrates; judgment n. 40 concerning the law governing procedural deadlines; judgment n. 50 dealing with protective detention).

The second group of decisions is characterized by the intrinsic irrationality or incongruence of the referendum in that it would leave in place laws inconsistent with the objective of the referendum’s promoters (judgment n. 35, concerning the demilitarization of the Guard of Finance; judgment n. 43 concerning public health services; judgment n. 48, concerning pensions).  The proposal to abrogate a series of laws governing obligatory workers’ compensation insurance was judged contradictory (judgment n. 36). A further condition impeding the admissibility of a referendum was detected in the heterogenous nature of the provisions made object of a single yes/no referendum vote (judgment n. 39, concerning labor mediation).

In the third group of decisions, referendum proposals were held inadmissible because they aimed to interfere with laws directly applying constitutional principles, as in proposals concerning institutions for social aid and assistance (judgment n. 42) and the laws governing at-home work (judgment n. 49).

The final group of decisions is based on the international consideration that a possible abrogation might lead to the non-fulfillment of obligations assumed by the State (judgment n. 41). Already formulated by the Court for some time, this principle has now been extended to two particular cases: the Acquis of Schengen and European directives (not received) (judgment n. 31, concerning immigration; judgment n. 45, concerning part-time work).

Though only indirectly related to the abrogative referendum, judgment n. 502 is to be mentioned, inasmuch as it resolved a conflict of powers brought before the Court by the promoters and presenters of the abrogative referendum of 21 May 2000.  They brought a conflict of powers case against the parliamentary Commission for Radio and Television Policy and Oversight, contesting its decision to restrict televised information in the referendum campaign of the same year. The Court rejected the promoters’ challenge, holding their interpretation of the “institutional communication” obligation to be unfounded. Furthermore, the impugned decision was found to be consistent with law n. 28 of 2000, precisely because it reasonably limited communication by the public administration on the merits of referendum questions, in order to reduce the risk to such public departments of providing voters biased information or suggestive representations.

The constitutional amendment rules set forth by Art. 138 of the Constitution do not permit of derogations.  These rules derive from the concept of the unity and indivisibility of the Republic (Const.Art. 5).  Thus the Court struck down the law of the Veneto Region instituting a regional referendum to consult the local population on a proposed constitutional amendment to grant greater autonomy to the Region (judgment n. 496): as the constitutional amendment process does not leave any room for popular consultations by the regions that aim to present themselves as autonomous manifestations, a territorially-based fraction of the whole population may not make a preventative, preliminary pronouncement on a proposed constitutional amendment.

A few decisions dealt with immigration law.  In judgment n. 161, the Court reviewed the legal deadlines for challenging a deportation decree and issuing the relevant judgment.  In judgment n. 376 the Court ruled that the prohibition of the deportation of an alien extends not only to a pregnant woman, but also to her spouse, in order to guarantee the special protection of minors and the family.

Judgment n. 508 struck down Art. 402 of the Penal Code, punishing the public insult of the religion of the State.  The Court reaffirmed the fundamental principles of the equality of all citizens, independent of their religion, and the equal treatment of all religions, such principles reflecting the supreme principle of the secularity of the state and characterizing its pluralistic form.  Religions warrant equal treatment by the law notwithstanding their majority or minority status.

The fundamental right of personal liberty may never be fully compromised.  A core right of personal liberty attaches to imprisoned persons, even though their situation by definition implies a limitation of personal liberty.  Prison guards may not therefore arbitrarily exercise their power to search inmates.  Searches must be carried out as provided by prison regulations and there must be mechanism in place enabling prisoners to register their complaints (judgment n. 526).

Despite the “cardinal value of the freedom of speech,” speech may be punished in order to protect the equally fundamental good of human dignity.  The Court affirmed that the law punishing the publication of particularly shocking or gruesome words or images was written in order to defend human dignity (judgment n. 293).

The violation of the right to bring a legal action was at the basis of a decision striking down the 1988 law rewriting the system of abusive leases (judgment n. 482).

In other cases, the appeal to the right to bring a legal action and the right of defense induced the Court to suggest an interpretation conforming to the Constitution.   Judgment n. 227 upheld the immigration provision for a 5-day deadline in the appeal to the pretore (lower court judge), to run from the communication of the deportation order, even when the order has not been translated into the alien’s mother tongue.

Judgment n. 460, similarly, reinterpreted the law imposing the official secrecy of the legal acts executed by the administrative Commission for the Oversight of Corporations and the Stock Market in the exercise of its oversight and investigative powers, even when such acts are executed in the imposition of an administrative penalty.  The Court grounded this decision on the need to protect the right to defense as well as the principles of administrative transparency and impartiality and the equal treatment of citizens.

With regard to family law, the Court struck down several laws.  Judgment n. 187 dealt with the removal of impediments to the formation of nuclear families, declaring unconstitutional the law (later abrogated, but still applicable in the particular case) which conditioned a surviving spouse’s survivorship annuity on the fact that the marriage had been entered into prior to retirement.  The Court observed that laws of this type injure the right to enter freely into marriage.

Likewise, the prescription requiring that a worker to be childless in order to undertake certain kinds of employment or public appointments was considered to be a serious intrusion into the private sphere of the family (judgment n. 332).

Judgment n. 250 struck down Art. 803, section 1 of the Civil Code, insofar as it provided that, in the case of the survival of an offspring born out of wedlock, the testamentary donation could be revoked only if there had been an intervening recognition of paternity within two years of the testamentary donation.

With respect to the problem of intestate succession, judgment n. 532 held that the situation among simple blood relatives is not comparable – with reference to Art. 3 and Art. 29 of the Constitution – to the situation of persons in a true family relationship; moreover, the equation of all biological relatives with all legitimate relatives is not necessarily rooted in the Constitution.

With judgment n. 352, the Court observed that the differential treatment of families founded on marriage and those arrangements of co-habitation more uxorio is not unreasonable.  Only marriage justifies protecting the institution of the family, and the stability of its relations, against the claim of an individual component of the family.

The Court extended heightened protection to working mothers with judgment n. 360 and judgment n. 361.  The first spoke to the issue of the law governing women who work at home and who could not take advantage of the right to an early pregnancy leave from work for medical reasons.  The second dealt with the law that did not permit female farmers to partake in the maternity benefits available to other self-employed workers.

Judgment n. 500 is also worth mentioning. The Court spoke on the delicate issue of adoption, and particularly the differential treatment of minor and adult adoptees.  The law forbids adoption when the adopting parent and the adoptee have an age difference of less than 18 years, even when the adopting parent is the spouse of the adoptee’s biological parent. The Court affirmed that such differential treatment is justified by the fact that an adopted adult is not required to adapt to the parental family structure, and is not subject to the power of the adoptive parent. The adoptive parent of an adult, by the same token, does not assume an obligation to maintain and bring up the adoptee.

Lastly, judgment n. 518, upholding the constitutionality of Art. 564 of the Penal Code governing incest between in-laws, made clear that the objective justification of the law, going back to a deeply-rooted ethos, aims to avoid disturbances in the family, as well as to enable the formation of more open family structures. There is legislative discretion to include direct in-laws in the types of family relations subject to legal prohibitions.  Furthermore, the decision to prosecute just those acts giving rise to a public scandal may be explained by the not unreasonable balance between the need to discourage illicit acts and to protect domestic relations from intrusive government investigations to ascertain the crime.

In the wake of recent jurisprudence, the Court has again spoken on the subject of health services and of the irreparable harms to personal health that may derive from them.

Regarding the recognition of the right to state indemnification, the principles of non-discrimination and rationality require the equal treatment of those who have sustained harm to their health as a result of voluntary hepatitis B vaccinations starting in 1983, in response to a campaign promoted by the national health service, and those subjected to mandatory polio vaccinations.  Recognizing the right to indemnification in consequence of an irreparable harm to personal health, the Court held that the law governing harms caused by mandatory vaccinations could not be compared with the law governing harms caused by transfusions, even though transfusions – though not legally obligatory, may however warrant the risk to life.  The assimilation of the “cogency” of the legal obligation and the “necessity” of the therapeutic measure is not in fact relevant (judgment n. 226).

The claim to include the physical harms suffered as a result of a blood transfusion in the indemnification provided by Law n. 210 of 1992 is likewise unjustifiable.  Such claim would tend to transfer elements covered by indemnity protection to another system of protection (judgment n. 423).

Environmental and health protection aims also factor into the determination of the regional policies for waste disposal: judgment n. 281 struck down a law of the Piedmont region, prohibiting the local disposal of dangerous wastes originating outside the Region.

In the area of labor law, there were no departures from previous jurisprudence.  Two decisions however deserve to be mentioned.  Judgment n. 459, first of all, declared unconstitutional (for violating Art. 36 of the Constitution) a law insofar as it failed to provide for the accumulation of interest and monetary revaluation for unpaid work credits deriving from private contracts, even though it automatically attributed to the worker the greater sum between the total of the interest and the revaluation, referring the rest to Art. 1224 of the Civil Code governing credit.  Judgment n. 441, on its part, emphasized the criterion of balancing between general interests and the freedom to perform any work activity and the principle of specific professionalism, which requires an adequate level of preparation and competence for the exercise of intellectual activities directed to the public.

In social security matters, judgment n. 516 is to be singled out among numerous decisions. In this case, the Court intervened once again in the tortured debate on the accumulation of contingency benefits for holders of pensions and life annuities.  The Court declared the prohibition of the accumulation of contingency benefits to be illegitimate inasmuch as it failed to provide for a minimum limit of comprehensive economic treatment beneath which the prohibition would not operate, so as to guarantee the retired worker and his or her family a free and dignified existence.

Judgment n. 335 rejected the proposed challenge, clarifying that the right to a fixed social security payment, like an old-age pension, covers the rest of the worker’s life.

Judgment n. 393 considered that a functional connection between mandatory and complementary social security had been realized by the censured norm, dealing with the comprehensive reform of the law implementing the aims set forth by Art. 38, § 2 of the Constitution.

In judgment n. 310, concerning laws governing the payment of outstanding sums in application of decisions of this Court, and providing for the extinction of pending cases by compensating litigation expenses, the Court held the legislature’s choices to be sufficient, aimed to facilitate the concrete realization of the disputed rights in the relationship between the extent of the claim and effective financial capacity.

With regard to the substantive right to private property, judgment n. 238 affirms that a binding regime of real property may not go so far as to bar in toto the right to renovate the property, inasmuch as maintenance and renovation constitute essential elements of the property right.  Provisions for a differentiated regime between legitimately constructed real property and that originally constructed in violation of the law and later pardoned were held to be irrational.

The Court’s decisions also dealt with public use expropriation and determination of the relative compensation.

In particular, judgment n. 262 and ordinance n. 300 upheld the provision for an abatement of 40% of the compensation owed when the expropriated party does not accept the offer of the expropriating agency or does not agree to voluntarily abandon the property.

Challenging the constitutionality of the law fixes the maximum selling value of expropriated wealth at that declared by the proprietor or his or her predecessor in title for the purposes of local property taxes, the Court affirmed that the law serves the important function of discouraging tax evasion.  It is fully justified by the principles of loyalty, propriety and collaboration which ought to mark the relations between citizen and public administration (judgment n. 351).

An expansion of the protection of the taxpayer was assured by judgment n. 416, dealing with tax incentives for the acquisition of a first house.  The ban on the accumulation of fiscal benefits having been eliminated in 1998, a reimbursement to those who had already paid the tax in its entirety, rather than at a reduced rate, was nevertheless excluded. The Court held this law to be a source of an unjustified disparity of treatment of similarly situated persons.

In criminal law cases, the Court was called to assess the legitimacy of several penal laws, including the peacetime military penal code.  In all of the cases, the Court upheld the challenged law.

Judgment n. 519, specified the notion of sedition for the constitutionality adequate application of Articles 182 and 183 of the peacetime military penal code.  The state may punish only seditious protests and proclamations, and seditious activity denoting objective hostility and rebellion in relation to the military, expressed in such circumstances as to be capable of exciting violent reactions subversive to military order and discipline.  Protests and proclamations expressing general discontent, or forms of protest, criticism, or dissent may not be punished, insofar as they are protected by military personnel’s right of free speech.

With judgment n. 531, the Court upheld challenges to the degree of punishment for the public insult of the flag in the peacetime military penal code.  The good protected by the criminal law is the dignity of the symbol of the state as an expression of the dignity of the state and the unity of national institutions.  The law does not criminalize expressions of criticism, even harsh criticism, but rather offensive protests that deny value and respect to the protected entity; differential treatment of members of the military is well justified by the greater intensity of their duty of loyalty.

Judicial review of delegation laws and delegated laws, and their relative compatibility, resulted in some findings of unconstitutionality.  Judgment n. 276 dealt with the law instituting mandatory negotiation in all labor disputes as a condition for proceeding with the litigation. Judgment n. 292 dealt with the provisions of the legislative decree which, at the conclusion of the reform process begun in 1992, transferred important subject matters to the jurisdiction of the administrative judge.  While declining to find the delegating law unconstitutional, the Court did point out some unconstitutional vices in the delegated law concerning the grant of exclusive jurisdiction in the area of public services.

Lastly, judgment n. 425 dealt with the basic criteria for the judgment of the conformity of the delegated law to the delegating one in accordance with Art. 76 of the Constitution.  The Court held that the delegation granted to the Government for the emanation of “integrative and corrective dispositions” of the banking law could not justify the executive in emanating a general, retroactive law to correct and rectify all of the clauses dealing with compound interest contained in banking contracts stipulated before the Interdepartmental Committee for Credit and Savings’ resolution entered into force.

The same principles were also applied by judgment n. 503, with further precisions: given two possible interpretations of the delegating law (regulating the authority for operas) and positing that one of these was incompatible with the existing normative framework, the Court had to adopt the other.  This however led to the illegitimacy of the delegated law, for its being delegated in the absence of the object of the delegation itself.

In conflicts between the branches of government – and particularly in conflicts between the judicial branch and Parliament – the Court introduced a new interpretation of the constitutional norm of parliamentary immunity.  Though the premises for this change of direction were already present in the jurisprudence of the immediately preceding years, judgments n. 10 and n. 11, constituted an about face and the point of reference for the following judgments n. 56, n. 58, n. 82, n. 420, n. 320 and n. 321.

Judgments n. 10 and n. 11 specified the following: a) the mandatory distinction of competence between ordinary judges and the Constitutional Court, which may not ascertain the existence of the responsibilities deduced in judgment (judgment n. 11); b) the nature of the judgment reached by the Constitutional Court is not comparable to that of the administrative judge called to evaluate the vice of an excess of power and is also unlike the review a discretional decision by a political assembly (judgment n. 10).  Still, the Court explained that constitutional judicial review directly involves the substance of the controversy in the application of Art. 68, §1, to the end of ascertaining whether the expression of the opinion of a member of Parliament may be concretely traced to the exercise of parliamentary functions (judgment n. 11); c) the recurrence and the meaning of the “functional nexus” between the opinions expressed by the Member of Parliament and the parliamentary function covered by the constitutional guarantee.

The declarations of members of Parliament may be covered by immunity only insofar as they reproduce (or correspond to) an opinion expressed in the halls of Parliament (judgments n. 10, n. 11, n. 320).   A simple commonality of topics, or the fact that the declarations may be traced back to the same context, is not sufficient to sustain the functional nexus.

In another conflict of powers, this one between the executive and judicial branches, the Court reaffirmed that legal acts and documents protected as state secrets could not be used in judicial activities (judgment n. 487).

On the subject of administrative organization, the Court affirmed that the public administration’s power to nullify its own provisions is not in itself constitutionally protected (judgment n. 75): the tool of self-protection must always be evaluated against the background principles of impartiality, efficiency and the legality of the administrative action, traceable to Art. 97 of the Constitution.

The Court also invoked the principle of the good functioning of the public administration in judgment n. 375, striking down the law permitting the defense department to bring unlimited disciplinary proceedings against vice-sergeants and privates in service of the Carabinieri, who have been convicted of a crime.

On the topic of relations between the State and the regions, and the elaboration of their respective spheres of competence and the limits of regional legislative power, judgment n. 496 provides a detailed recognition of the constitutional dividing line between local autonomy and State unity.  Judgment n. 477 reasserted the criteria useful for determining – within the scope of State law – the essential kernel of norms recognized as binding, “fundamental norms of economic and social reform,” and determining therefore the legislative power of the Region.

On the subject of health care organization, judgment n. 63 struck down a provision giving the Health Minister the power to make rules binding upon the Regions and Autonomous Provinces concerning domestic services and sanctions for administrators who failed to meet the regional standards governing the economic, financial and property management of health service providers.

In the area of taxation, and with specific reference to the division of competences between the State and the Regions, the Court struck down an inter-ministerial decree setting forth the suitable technical criteria for dividing the additive yield between state and region, which was assumed without the participation of the latter, for its violation of the principle of loyal cooperation (judgment n. 98).  On the subject of loyal cooperation, I call your attention to judgment n. 437.

The Court upheld a decree of the Finance Minister referring tax collection, ascertainment, reclamation, as well as the application of sanctions and administrative hearings relating to non-revenue automobile taxes, to the regions, conditioning however its effectiveness on the foreseeable regional law governing this area judgment n. 507. 

In the same decision, the Court affirmed that the existence of a non-exclusive regional competence in the area of environmental protection does not constitutionally prevent the state from instituting, in exercise of its general taxation power, environmental taxes.

And still with judgment n. 507, the Court held that a state law injured regional competence in the area of urban planning.  Such state law included a mechanism by which, at the end of the deadline for the silent assent relative to the region’s approval of the urban planning provisions, provided by a series of unconverted decree-laws, such deadline, not having matured under the force of any of the decree-laws singularly considered, “is to be considered reached in the period of effectiveness of later decree-laws.”

Judgment n. 94 treats the procedure for the redistricting of municipal bodies, declaring that the definition of the relative procedure, as well as the criteria for determining the interested inhabitants, fell within the competence of the regional legislature.  Groups of inhabitants having an existing interest in the proposed territorial variation are to be included. 

On the subject of the judiciary, I point out the declaration of illegitimacy of the law that barred assistance of counsel for a magistrates subjected to disciplinary proceedings (judgment n. 497).

The law of criminal procedure was, as in the past, the object of several declarations of unconstitutionality. For the first time however, the Court was asked to take account of the changed legal and constitutional framework in relation to the new version of Article 111 of the Constitution.

On the topic trial evidence, judgment n. 440 declared that the expansive interpretation of the exceptions to the principle of cross-examination for certified was not compatible with the new constitutional law.

Called to resolve more traditional questions as well, the Court pronounced judgment n. 359, among others, striking down a delegated law that allowed the judge to order preventive detention of a minor at risk of flight.

On the topic of judicial recusal, judgment n. 283 struck down Article 37 §1 of the code of criminal procedure.  It did not provide for the recusal of a judge in a criminal trial who has already has expressed an opinion on the same facts, concerning the same person in another (possibly civil) proceeding.

The Court applied the same principle in interpretive judgment n. 113, with which it sustained Art. 36 of the code of criminal procedure against a challenge that it fails to foresee among the causes for judicial abstention the fact that the judge previously ruled for the application of the sentence with relation to one or more co-defendants in the crime, and thus prejudices the other defendants.

Concerning notice, judgment n. 504 struck down Art. 460 §4 of the code of criminal procedure for not providing for the revocation of a criminal conviction, even when it has not been possible to effect notification at the declared domicile as required by Art. 161.

Among the decisions accepting the constitutional challenge, it is worth noting judgment n. 186, which struck down Art. 616 of the code of criminal procedure in the part that it doesn’t provide that the Court of Cassation, in the case of the inadmissibility of the appeal, may decline to impose monetary fines upon the party that brought the appeal and was not responsible for the determination of inadmissibility.

The question of the legitimacy of Articles 629 and 630 of the code of criminal procedure was held inadmissible.  The law was challenged for not providing for the revision Court of Cassation decisions marred by material factual errors.

Judgment n. 271 upheld the law that attributes to an ordinary judge (as opposed to a military judge) the cognition of the crime of conscientious objection to military service.

The effective conclusions may generally be derived from the premises.  This long overview gives us an appreciation for the variety and the vastness of the questions put to the Court.

The trial before any judge is, by its nature, a place of contradiction and confrontation.  The trial that takes place the judge of the law is, moreover, the supreme guarantee of the procedures through which, the needs of civil society may obtain protection from the legislature, the judicial power and the administration.  We hope that such trials might have positive results in terms of human civility.

(Translated by Pamela B. Harris)