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 Judgment No. 180 of 2017
Paolo GROSSI, President - Giuliano AMATO, Author of the Judgment
In this case the Court considered two referral orders challenging a law requiring the existence of a prior modification of a person's primary sexual characteristics in order for that person to amend the gender attribution on his or her birth certificate. The referring tribunal alleged that this made the exercise of a right (the right to one's own gender identity) contingent upon one's submitting to invasive and health-threatening procedures. After ruling that the question was admissible, the Court held that it was unfounded. While the referring tribunal interpreted prior modification to entail physical deconstruction and reconstruction of a person's genitalia, the Court cited a Court of Cassation decision, consistent with the case law of the ECtHR, which concluded that acquiring a new gender identity may come as the result of a personal process that did not entail invasive procedures. The Constitutional Court had also ruled, in a judgment handed down after the referral orders were submitted, that surgical intervention was not required in order for the amendment to be made. The Court reiterated that the constitutionally correct interpretation allowed for rejecting the requirement of a prior surgical procedure. It also reiterated that the judicial authority must carry out a rigorous assessment to conclude that a gender transition is both serious and unambiguous, and corroborated by objective indicia, in order for the amendment to be made to the public record.

 Judgment No. 179 of 2017
Paolo GROSSI, President - Marta CARTABIA, Author of the Judgment
In this case the Court considered two referral orders questioning a sentencing law for serious drug offenses involving so-called heavy drugs, which placed the minimum sentence at eight years of incarceration plus a fine. The referring judges questioned the significant gap between this minimum sentence and the maximum sentence provided in a separate provision of the same law for minor offenses involving illicit drugs of a non-specified character (four years of incarceration plus a fine). The referring judges alleged that the two types of offenses were similar, and that the difference in the negative social values of the two offenses was minimal, making the difference in the two punishments disproportionate and undermining the rehabilitative aim of criminal punishment. They also alleged violations of European law concerning drug sentencing and that the punishment was inhumane on account of its long duration and contribution to prison overcrowding. The Court first reviewed its own authority to review criminal sentencing laws, over which the Parliament has broad discretion. The Court stated that it has oversight, and may enforce constitutional boundaries, in cases where legislative decisions are patently arbitrary or manifestly unreasonable or arbitrary. The principle of proportionality of punishment, and the constitutional mandate that the aim of punishment be the rehabilitation of the convicted person, also allow for Court intervention to ensure that the quality and quantity of the punishment, on the one hand, and the offense, on the other, are proportional. Nevertheless, the Court cannot intervene by imposing a punishment chosen by its own discretion, but must rather resolve the constitutional defect with a punishment drawn from pre-existing laws. After reviewing its own role, the Court retraced the legislative and judicial history of the provisions in question, which involved various iterations that eventually resulted in dropping the distinction between "heavy" and "light" drugs in the offense for minor incidents, while maintaining the "heavy" drugs prerequisite in the provision involving serious incidents. After reviewing this history, the Court ruled the questions inadmissible. Contrary to allegations, the Court found that the offenses different significantly and that, although the difference was not so broad as to justify the four year gap between the maximum sentence for the lesser offense and the minimum sentence for the greater offense, a variety of constitutionally acceptable legislative solutions were available, and eliminating the gap by judicial decision was not the only acceptable one. The Court concluded by rejecting the questions and calling upon the Parliament to rapidly proceed to remedy the split through legislative intervention.

 Judgment No. 166 of 2017
Paolo GROSSI, President - Mario Rosario MORELLI, Author of the Judgment
In this case the Court heard a referral order objecting to legislation laying down a statutory interpretation of legislation governing the calculation of pensions, under which the pension entitlement of certain Italian workers who had worked and paid social security contributions in Switzerland had been significantly reduced. The Court dismissed the question as inadmissible, holding that the Stefanetti judgment of the ECtHR was not such as to change the position previously adopted by the Court in this area (see Judgment 172/08). The Court however noted that the Stefanetti judgment did not indicate a threshold below which reductions would be excessive, and that such a task fell to the legislature (although warned that prolonged inertia in adopting a solution would not be tolerable).

 Judgment No. 164 of 2017
Paolo GROSSI, President - Franco MODUGNO, Author of the Judgment
In this case the Court heard a number of referral orders concerning an amendment to legislation on the civil liability of judges. The Court dismissed most of the questions as inadmissible due to their irrelevance, not having been raised within liability proceedings against a judge. The sole question that was deemed to be relevant was dismissed as unfounded, essentially on the grounds that the requirement to protect the autonomy and independence of the judiciary could be satisfied in various ways, and that the specific choice regarding this matter fell to Parliament.

 Judgment No. 124 of 2017
Giorgio LATTANZI, President - Silvana SCIARRA, Author of the Judgment
In this case the Court heard referral orders concerning legislation which imposed a maximum limit on the amounts disbursed as remuneration and pensions out of public funds to any individual working for the state (in this particular case certain senior judges), stipulating that the individual's remuneration must be reduced so as to ensure that the total amount of all funds received does not exceed the salary of the First President of the Court of Cassation. The Court dismissed the questions, holding that the rule was not directed specifically at the judiciary and applied universally across the public sector, and was moreover based on a reasonable balancing of the constitutional interests in play.

 Judgment No. 123 of 2017
Paolo GROSSI, President - Giancarlo CORAGGIO, Author of the Judgment
In this case the Council of State questioned the lack of any provision under Italian law allowing for the cancellation of a final judgment in administrative matters following a ruling against the Italian State by the European Court of Human Rights. Referring to Strasbourg case law, the Court dismissed the questions, noting that the ECtHR does not require specific forms of action by states in order to comply with its judgments, and that restitutio in integrum need not necessarily be guaranteed by reopening a trial. The Court noted some level of reticence on the part of the EctHR to require the reversal of res iudicata in non-criminal matters, as this may also affect the legitimate expectations and reliance on legal certainty of other non-state actors who are not at fault for the breach. "It must therefore be concluded that, in areas other than the criminal law, it is not at present apparent from Convention case law that there is any general obligation to adopt the restorative measure of reopening the trial and that the decision to provide for this is left to the States Parties". The creation of rules in this area is a delicate matter that falls to the legislature and not the judiciary. The Court also noted that the task of national legislators would be facilitated if Convention proceedings were to be made accessible to a wider class of persons than at present.

 Judgment No. 122 of 2017
Paolo GROSSI, President - Franco MODUGNO, Author of the Judgment
In this case the Court heard a referral order from a Supervisory Judge (the functions of whom in part coincide with those of a Parole Board in the United Kingdom's and the United States' criminal justice systems) questioning the constitutionality of a legislative provision that allowed prison administrations to prohibit prisoners from exchanging books and other print publications (such as magazines, newspapers, and journals) with persons outside the prison. The provision allowed prison administrations to adopt this measure as one of the many measures that could apply to prisoners subject to special, more stringent prison rules intended to sever ties between them and criminal organizations. It was intended specifically to prevent prisoners subject to the special rules from exchanging secret messages with people on the outside by hiding the messages in the printed texts. The referring judge alleged that this was unconstitutional for three reasons: first, it bypassed the reserve to the judiciary to order restrictions on prisoner correspondence; second, it compromised prisoners' rights to information and study; and, third, it violated international rules forbidding inhuman or degrading treatment and vouchsafing the right to respect for family life and correspondence. The Court accepted the question, holding that the formation of a "living law" had taken place through rulings of the Supreme Court of Cassation on this topic, according to which prison administrations were legally authorized to forbid prisoners subject to the special rules to send and receive print publications, and that the referring judge was, therefore, not bound to form a different interpretation that was more closely aligned with constitutional principles, but was free to refer the constitutional question. Then the Court ruled that the questions were unfounded. The Court held that the transmission of books and other printed materials could not be classified as "correspondence" and that the right to correspondence was adequately protected by the allowable methods for corresponding, understandably limited according to the reasonable limits associated with incarceration. It also rejected the argument that the prisoners' rights to information and study were compromised, holding that the Constitution guarantees prisoners a right to choose and acquire texts by which to inform and educate themselves, but that the means of acquiring such texts are not dictated by constitutional rights. The challenged rule did not restrict the rights of prisoners to receive publications of their choice, but obliged them to obtain such material through the prison system rather than from friends and relatives. The Court rejected the referring judge's allegations based on international law, holding that the absolute ban on inhuman or degrading treatment could not be circumvented even by judicial order, and so such an allegation was clearly incongruous with the referring judge's conclusion that the measure would be valid if ordered by a judge. The Court also observed that even more restrictive measures had been ruled allowable and reasonable by international courts interpreting the conventional rule on inhuman and degrading treatment. With regard to the international rule guaranteeing respect for private and family life, home, and correspondence, the Court ruled that the three conditions required by international law for restricting these rights were met in the case of the challenged measure.

 Judgment No. 111 of 2017
Paolo Grossi, President - Silvana SCIARRA, Author of the Judgment
In this case the Court heard a reference from employment proceedings in which a female worker had objected to a rule that required her to retire earlier than the date on which a male worker in her position would be obliged to retire. The Court ruled the question inadmissible on the grounds that the referring court could simply have disapplied the discriminatory provision on the grounds that it breached directly applicable EU law. Alternatively, were it to consider that a question regarding the interpretation of EU arose, it should have referred a reference for a preliminary ruling to the CJEU.

 Judgment No. 43 of 2017
Paolo GROSSI, President - Marta CARTABIA, Author of the Judgment
In this case the Court considered a referral order from the Ordinary Tribunal of Como questioning a provision that created an exception to the finality of judgments in cases where a criminal sentence was imposed on the basis of a law later declared unconstitutional (in such cases, the provision provides, the execution of the sentence and all criminal law effects thereof must cease). The referring court alleged that this provision was unconstitutional in that the exception did not include cases in which administrative sanctions (rather than a criminal sentence) had been imposed in the application of a law that was later declared unconstitutional, particularly where the administrative sanctions were primarily punitive in effect (the case at issue involved an extremely high administrative fine for labor law violations). The referring court based its question on the law of the European Convention on Human Rights (ECHR), as interpreted by the European Court of Human Rights, which applied a test to determine if penalties were criminal in character before classifying them as criminal for purposes of applying the protections found in the convention. After overruling an objection on relevance grounds by the State Counsel by holding that the referring judge had properly refrained from attempting to interpret the provision in such a way as to extend it to the situation in the present case, the Court ruled that the constitutional question was unfounded. The Court held that the case law of the European Court contained no statement that would directly or indirectly support an interpretation of Article 7 of the ECHR that would require Member States to create an exception to the finality of judgments for administrative sanctions such as fines that were imposed on the basis of provisions later declared unconstitutional. The Court further held that the referring judge?s assumption that the same national legal guarantees that apply to criminal sentencing must also apply in the case of administrative sanctions, was incorrect. The national legal system, the Court pointed out, was free to establish guarantees in addition to the minimums found in conventional law, and to reserve these only to criminal penalties, as that category was understood under domestic law. The Court found no similarities between the present case and previous cases that had extended the scope of the questioned provision to include some administrative sanctions, due to the fact that the sanctions at issue did not impact fundamental freedoms or citizens? political rights, and were not to be carried out over an extended time period during which the appointed judge was charged with ensuring the legality of the basis for the ongoing sentence.

 Judgment No. 42 of 2017
Paolo GROSSI, President - Franco MODUGNO, Author of the Judgment
In this case, the Court heard a reference from the Council of State concerning the constitutionality of legislation that purportedly consented to the teaching of university courses in foreign languages. On this basis, the Milan Polytechnic created post-graduate courses taught entirely in English, following which the arrangements were challenged before the administrative courts. The Court ruled the legislation unconstitutional insofar as it could be interpreted to this effect, holding that in the globalised age, the Italian language "has become even more crucial for the continuing transmission of the historical heritage and identity of the Republic". According to the Court, were universities permitted to offer study programmes exclusively in a language other than Italian, this would have the effect of "entirely and indiscriminately exclud[ing] the official language of the Republic from university teaching in entire branches of learning". In addition, such an arrangement would unfairly prejudice students with no knowledge of any language other than Italian, who would be forced to choose other study programmes or even other universities. Finally, construed in this manner, the rule violated academic freedom in that it did not permit teachers to choose to teach in Italian.

 Judgment No. 35 of 2017
Paolo GROSSI, President - Nicolò ZANON, Author of the Judgment
In this complex case, the Court jointly considered five referral orders challenging various provisions of Electoral Law no. 52 of 2015, pertaining to the election procedures for both the Chamber of Deputies and the Senate. The Court ruled that five of the questions raised were inadmissible and considered seven questions on the merits. Citing broad legislative discretion in this area, the Court limited its scrutiny to the test of reasonableness and proportionality and to verifying the compatibility of the challenged provisions with the right to vote and the right to proportional representation of the citizenry. It held that five of the questions were unfounded. First, it held that assigning a majority bonus in the interests of stability and governability, conditioned upon a list?s achievement of a fixed percentage of validly cast votes on a national basis, was not manifestly unreasonable and fell within the discretion of the legislator, and that the minimum threshold of 40 per cent of validly cast votes stipulated by the provisions did not effect a disproportionate distortion of the constitutionally mandated representativeness of the elected body. The fact that basing the minimum threshold for the bonus on validly cast votes (rather than total number of voters) could hypothetically distort representativeness dramatically in cases of high voter abstention did not make the legislator?s choice on this delicate matter manifestly unreasonable. The Court added that the combination of two mechanisms (a minimum threshold for access to seats and the majority bonus), taken together, were neither manifestly unreasonable nor disproportionate means of pursuing legitimate aims. Second, the Court rejected the argument that, where two lists obtain more than 40 per cent of validly cast votes, the assignment of the bonus to the list that took the highest number of votes would unreasonably reduce the number of seats assigned to the list that took second place. The Court held that this was not an unreasonable way of assigning the bonus, and that in a proportional electoral system which envisages such a bonus, all minority lists would see a reduction ? not inconsistent with constitutional requirements ? in the number of seats compared to those that they would have obtained under a purely proportional system. Third, with reference to the system to elect the Chamber of Deputies, the Court rejected arguments that the last-resort method for assigning seats, which allowed seats to be removed in some electoral districts and assigned in others, violated constitutional principles, finding that the legislator had provided adequate safeguards and had reasonably pursued constitutionally protected interests. Fourth, the Court rejected a challenge to the system of regulating fixed and preference-based candidates within lists. In particular, the Court rejected the submission that, within this system, minority parties would only be able to return ?closed? candidates. In holding that such a system does not violate the right to vote, the Court compares the electoral system currently under review with the previous one, noting that the new law contained safeguards including shorter lists, fewer and knowable fixed candidates, and the ability for voters to express two preferences for candidates of different genders. The Court also held two questions to be well-founded. The Court struck down provisions establishing that, in cases in which no single list had reached the forty percent minimum threshold necessary to receive the majority bonus, there would be a run-off round of voting between the two lists winning the most votes. The Court held that this way of artificially creating a winning list excessively compromised the constitutional principles of the equality of the vote and representativeness of the elected body by radically reducing voter options in the second round of voting through overly strict requirements. The Court pointed out that annulling these provisions nevertheless left a system in place capable of governing new elections. Second, the Court struck down provisions allowing head of list candidates elected in more than one multi-member constituency to arbitrarily choose the one in which to be elected, without any stipulation of objective criteria, holding that this allowed for a distortion that compromised the freedom and equality of the vote. The Court pointed out that the annulment of this provision would require legislative intervention, but that it nevertheless left the residual mechanism of drawing lots, making possible the enforcement of the electoral systems.

 Judgment No. 24 of 2017
Paolo GROSSI, President - Giorgio LATTANZI, Author of the Judgment
In this case the Court heard references concerning the ruling contained in an ECJ judgment, according to which the rule on the statutory limitation of offences should be disregarded under certain circumstances, on the grounds that to follow that rule might result in a situation in which the application of EU law resulted in a breach of fundamental rights provided for under the Italian Constitution. Specifically, whilst the Taricco case excluded the rules on the limitation of offences from the scope of Article 49 of the Nice Charter, it "did not assert that the Member States must disregard any of their own rules and constitutional traditions that prove to be more beneficial for the accused compared to Article 49 of the Nice Charter and Article 7 ECHR". The Court therefore sought a preliminary reference from the ECJ according to an expedited procedure.

 Judgment No. 20 of 2017
Paolo GROSSI, President - Marta CARTABIA, Author of the Judgment
In this case, the Constitutional Court considered a referral order challenging three legal provisions regulating the collection of evidence from the contents of written mail correspondence. The judge in the pending proceedings, in which secretly-made copies of a criminal defendant's correspondence were held to be inadmissible because the copies did not comply with the challenged provisions, alleged that the provisions were unconstitutional in that they provided only two permissible procedures for collecting evidence from written mail correspondence: confiscation for general mail, and inspection with the application of a stamp for prisoners' mail, both of which interrupt the flow of communication. The Referral Order claimed that this violated the principle of equality found in Article 3 of the Constitution both by differing from rules that, on the contrary, allowed for secretive interception of telecommunications and in-person conversations and by giving prisoners privileged status over unincarcerated defendants. It also alleged that they violated Article 112 of the Constitution by hindering the ability of prosecutors to proceed with criminal actions, as they are constitutionally bound to do. The Constitutional Court first dismissed an objection by the President of the Council of Ministers alleging that the Referral Order provided inadequate facts and argumentation, on the grounds that the Order did not need to provide detailed accounts of irrelevant aspects of the case and the particulars of the inadmissible evidence in order for the Court to form a judgment on the merits. The Court then declared the constitutional challenge to be unfounded. Citing the interrelated nature of constitutional rights, which may be curtailed in balance with other constitutional principles and constitutionally protected rights and interests, and the absolute reservation of law to the legislator found in Article 15 of the Constitution, the Court outlined its limited role as ensuring that the legislator had performed a balancing of constitutional rights and interests in a way consistent with the principles of appropriateness, necessity, and proportionality. The Court found that society had a paramount and constitutionally-protected interest in the prevention and prosecution of crimes, which the legislator could legitimately balance against the right of free and confidential communications, resulting in a limitation of that right. The Court then held that it was neither unreasonable nor arbitrary to provide different regulatory schemes for different forms of communication, even though this did not allow for the same secrecy in monitoring the contents of written correspondence that it did for other forms of communication, uniformity in regulation not being required by the equality principle. The Court specified, however, that its judgment did not imply that the legislator would be prevented from making future laws allowing for secret "interception" even of written mail correspondence.

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