Recent judgments


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 Judgment No. 120 of 2018
Giorgio LATTANZI, President - Giancarlo CORAGGIO, Author of the Judgment
In this case, the Court heard referral orders challenging the constitutionality of legislation that prohibited the establishment of trade unions by members of the armed forces with reference to ECtHR case law and the European Social Charter (ESC). The Court held that the ESC constituted international law for the purposes of Article 117(1) of the Constitution, although that the decisions of the European Committee of Social Rights do not have the same binding status as those of the ECtHR for the purposes of Italian constitutional law, but are merely "authoritative". On the merits, it found that legislation prohibiting trade unions outright was incompatible with the ECHR and the ESC, but that these instruments allowed for the imposition of restrictions in relation to certain special categories, such as the armed forces. Moreover, since Italian constitutional law required the imposition of such limits, the Court instructed the legislature to adopt suitable legislation and ordered that certain provisions regulating military representation bodies that had already been enacted should apply pending the enactment of such legislation.



 Judgment No. 115 of 2018
Giorgio LATTANZI, President - Giorgio LATTANZI, Author of the Judgment
This decision followed a "dialogue between courts," between the European Court of Justice (Court of Justice) and the Italian Constitutional Court (Court), spanning multiple cases. In this case, the Court considered two referral orders challenging a provision Italian law incorporating into the Italian system some provisions of international law from which the Court of Justice, in its preliminary rulings on this and an earlier case, Taricco, had inferred the so-called "Tariccorule." The "Tariccorule" called for Italian courts to disapply certain provisions of Italian law concerning statutes of limitations (or limitations periods) in tax evasion cases involving the value added tax (VAT), where certain conditions were met. The effect of the "Tariccorule" was that some cases which were time-barred under Italian law would still be able to be prosecuted in Italian courts, through the disapplication of the Italian provisions. The present case involved two cases of VAT-related fraud in which the conditions were met for the "Tariccorule" to apply. The Italian Court made a reference for a preliminary ruling to the Court of Justice, and both courts agreed that, since the defendants were charged with crimes allegedly committed prior tothe date of publication of the Tariccoruling, the "Tariccorule" could not apply under the principle of non-retroactivity of harsher criminal punishments. The Italian Court held, however, that even if the matters were time-barred, the questions raised by the referring courts were not irrelevant. The Court then held that the "Tariccorule" could not, in any case, apply to these cases, nor could it have any place in the Italian legal system because it violated the constitutional principle of legal certainty in criminal matters. Starting from the premise that limitation periods are a part of substantive criminal law in the Italian system, the Court held thatthe rule violated the principal of legal certainty in criminal matters. The Court heldthat the rule was overly vague, in that it applied to offenses impacting an indefinite "considerable number of cases" and required judges to pursue criminal policy objectives. Above all, the rule did not meet the substantive criminal law requirement that individuals be able to foresee the consequences of their actions based on the written law, with judges playing a clarifying role limited by the options that a personmay envision in reading the relevant text. The Court held that the "Tariccorule" was not among the options a person could envision based on a reading of the legal provisions from which it was inferred, and thus, interested persons could not be aware of the legal consequences of their actions by reading the text of the relevant laws. Because the violation of the principle of legal certainty in criminal matters served as an absolute bar on the introduction of the "Tariccorule" into the Italian legal system, the Court held that the Italian legal provisions that would otherwise work to incorporate the rule into the Italian system did not do so, and, therefore, the questions raised by the referring courts were unfounded.



 Judgment No. 81 of 2018
Giorgio LATTANZI, President - Marca CARTABIA, Author of the Judgment
In this case, the Court considered a direct application from the President of the Council of Ministers challenging a Venetoregional law classifying the "Veneto people" as a national minority under the international Framework Convention for the Protection of National Minorities. The law classified the "Veneto people," including but not limited to the Ladin and Cimbric linguistic minorities, as a national minority; claimed to implement the Framework Convention, established a regional association to field spontaneous claims of membership in the minority, and called on central and peripheral administrations to handle the implementation and expenses of the law. The Court first rejected the intervention of a private association and private individual on the grounds that proceedings in which the Court is seized by direct application may only be carried out between parties with legislative powers. Then, the Court overruled an objection by the defendant Region that there was no injury to give standing in the case, holding that the burdens the law claimed to impose upon the central administration to implement and cover the expenses of the law were real and not merely aspirational, as the defense claimed. Finally, on the merits, the Court found the Applicant's challenge to be well-founded, and struck down the full text of regional law. The Court held that protection of minorities(including linguistic minorities) is a supreme principle of the pluralistic constitutional system, and that both State-level and regional and provincial lawmakers must be involved in actively ensuring the concrete effectiveness of such protection. However, the Court further held that the identification of national minorities mustfall within the exclusive purview of the State legislator, for the assurance of uniformity throughout the nation. Moreover, the Regions may not classify themselves, as such, as "national minorities," which would undermine the unity of the conglomeration of regions within the Republic. The Court did not consider the separate grounds for challenging Article 4 of the same regional law, since this challenge was absorbed into its judgment on the law's full text.



 Judgment No. 58 of 2018
Giorgio LATTANZI, President - Marca CARTABIA, Author of the Judgment
In this case the Court heard a referral order challenging the constitutionality of a Decree-Law enabling undertakings of strategic national interest to continue operations notwithstanding the seizure of industrial plants by the courts in relation to health and safety offences. After the proceedings had been launched, Parliament repealed the contested provision of the decree-law - by a law converting a different decree law - whilst however upholding the validity of any acts carried out whilst it had been in force, and at the same time re-enacting the provision verbatim. The Court struck down the legislation as unconstitutional, holding that the fact that the offending rule was now contained in a different provision to that originally contested was irrelevant, finding that it "impair[ed] the clarity of the law and the intelligibility of the legal order". Regarding the merits of the question, the Court found that "the legislator has not complied with the requirement to strike a reasonable and proportionate balance between all relevant constitutional interests, and thereby acted unconstitutionally in not taking due account of the requirements to protect the health, safety and bodily integrity of workers, when confronted with circumstances that expose them to a risk of death".



 Judgment No. 12 of 2018
Giorgio LATTANZI, President - Silvana SCIARRA, Author of the Judgment
In this case the Court heard a referral order concerning legislation from 2011 that purported to stipulate an "authentic interpretation" of a provision enacted in 1990 concerning the pension rights of individuals employed by certain banks. At the time the later legislation was enacted, litigation involving the National Institute for Social Security was pending in which, according to the interpretation adopted until that time by the courts, the INPS would have been unsuccessful, whereas, according to the new interpretation imposed by the contested decree-law, the INPS would have been successful. The Court ruled the contested legislation unconstitutional on the grounds that it encroached upon the functions reserved to the judiciary under the Constitution, interfering with the administration of justice in order to influence the outcome to a particular dispute. The Court referred to the case law of the ECtHR according to which retrospective legislation may not be enacted in such cases "save for overriding reasons of general interest", which on the facts did not obtain in this case.



 Judgment No. 5 of 2018
Paolo GROSSI, President - Marta CARTABIA, Author of the Judgment
In this case, the Court considered two applications from the Veneto Region contesting a Decree-Law laying down urgent provisions concerning vaccinations. The provisions listed ten vaccines mandatory for all minor children under the age of sixteen residing in Italy (including unaccompanied minor aliens), four of which were already mandatory, and six of which were elevated from recommended to mandatory status. Under the decree-law, the mandatory vaccines are a requirement for access to early childhood educational services, making enrollment contingent upon the presentation of a certificate of vaccination, and noncompliance can also result in administrative fines. The Applicant claimed that these requirements unduly compressed both constitutionally guaranteed freedoms of individuals and regional autonomy. The Court disagreed, and held these allegations to be unfounded. After ruling that interventions by third parties were inadmissible, the Court first described the history of vaccine legislation in Italy, which was marked by a mixture of compulsory and recommended vaccines, all provided free of charge, and varying degrees of regional autonomy in the area of vaccine regulation, particularly when vaccine coverage peaked in the nineteen nineties. Then it noted the current epidemiological context in Italy, marked by a troubling decline in vaccine coverage to levels considered alarming by national and international health organizations and a measles outbreak that had caused four deaths. It also pointed out that there was no scientific basis for a trending popular opinion that considered vaccines to be futile or even dangerous. Then, recalling the Legislator?s discretion in carrying out a reasonable balancing of these factors with regional and individual autonomy, the Court drew several conclusions: first, that urgent provisions were appropriate given the preventive nature of vaccination and the critical level of coverage in Italy, and that the Applicant inappropriately conflated epidemic emergencies with the kind of urgent need that could justify legislative intervention. Second, it noted that in medical practice, recommendation and obligation are conjoined concepts, and, therefore, shifting six vaccinations from the recommended to the compulsory category did not represent a significant change in their status. Third, it stated that requiring a certificate to enroll in school and imposing fines were reasonable, not least of all because the Legislator had provided for initial steps that included one-on-one meetings with parents and guardians to inform them about vaccine efficacy. Finally, it noted that, under certain conditions, Regions may experiment with downgrading certain vaccines from mandatory to suggested status, and that the Legislator could, in the future, extend this flexibility to other vaccines as well, under changed epidemiological conditions.



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