The Constitutional Court
How the Court Works
A Year of Cases
Let us take the year 2019 as an example. The following references and
applications were made to the Court: 248 referral orders (specifically: 22
from the Supreme Court of Cassation, 1 from the appeals courts of assizes,
18 from courts of appeal, 1 from the Regional Tribunals of Public Waters,
75 from ordinary courts, 2 from juvenile courts, 12 from judges for preliminary
investigations (giudici delle indagini preliminari), 1 from judges of pretrial
hearings (giudice dell’udienza preliminare), 8 from supervision courts, 5
from supervision judges, 2 from enforcement courts, 14 from justices of the
peace, 6 from the Council of State, 3 from the Administrative Proceedings
Council for Sicily Region, 41 from regional administrative tribunals, 15
from the Court of Auditors – 2 from the divisions sitting in their jurisdictional
capacity, 1 from the appeals jurisdictional divisions, 6 from the
regional jurisdictional divisions and 6 in the context of judgments to verify
the conformity of the general State accounts with the relevant Budget Law
–; 6 from regional tax commissions, 11 from provincial tax commissions; 1
from military courts; 2 from arbitration chambers; 2 from the National Bar
Council). Moreover, 117 questions of constitutionality were submitted by
way of direct appeals (86 by the State against regional or provincial legislation
and 31 by regions or autonomous provinces against State legislation);
14 cases were brought regarding allocation of powers (8 between branches
of the State and 6 between the State, the regions and the autonomous
provinces). Also, 1 request for an abrogative referendum was brought.
In the same year, the Court published 291 decisions (204 judgments
and 87 orders). Of these rulings, the Court issued 171 decisions of constitutionality
raised by way of incidental referrals, 95 decisions of constitutionality
submitted by way of direct appeals, 18 decisions of constitutionality
regarding allocation of powers (5 between branches of the State
and 13 between the State, the regions and the autonomous provinces);
and 7 orders correcting errors of material fact. No rulings were issued on
the admissibility of abrogative referenda.
The number of questions of constitutionality decided is normally
greater than the number of decisions issued, as may be seen in those rulings
having operative parts divided into several headings. Moreover, it is
not infrequent for the Court to decide several questions raised in different
references or applications in rulings that, for this very purpose, are joined.
Therefore, the Court’s pace of work is such as to keep pace with the
incoming questions of constitutionality. This generally avoids significant
backlogs from accumulating.
How Is a Constitutional Decision Made?
How does the Court reach a constitutional decision, and what course
does a case follow from the time it is referred to the Court to the publication
of the Court’s decision?
Let us take one of the many questions of constitutionality raised by a
judge. The judge raising the question must notify the parties involved in
the proceedings and the President of the Council of Ministers (or the
President of the Region with respect to regional laws), as well as the
Presidents of the Houses of Parliament or the President of the Regional
Council involved. The question is then submitted to the clerk’s office (the
cancelleria) of the Constitutional Court. This legal notice (the ordinanza)
is published in the Gazzetta Ufficiale. A special office of the Court then
examines the question in detail and researches legal precedents.
Who Can Participate?
The publication of the ordinanza in the Gazzetta Ufficiale marks the
beginning of the period in which the parties involved in the legal proceedings
which gave rise to the issue, as well as the President of the Council of
Ministers (or the President of the Region, in the case of a regional law),
can present their arguments to the Court. The parties may file written
briefs until shortly before the Court officially starts to consider the case.
These briefs become part of the case file that it is distributed to all of the
constitutional judges, together with the written opinion in which the
ordinary judge certified the question to the Court.
The law provides that the President of the Council of Ministers can take
part in the proceedings before the Court. This is not because the
Government necessarily has a stake in the outcome of the underlying cases,
but rather because at issue is the validity of a law which will be automatically
voided if declared unconstitutional, and the Government is considered
the representative of the unity of the State’s body of law (as the
President of the Region represents the unity of the Region’s body of law).
The President of the Council is represented in the Court by the Advocate
General of the State. The Advocate General typically alerts the Court to
any grounds on which the constitutional challenge should be considered
inadmissible, or ultimately meritless. As a rule, he generally argues in
defence of the law, but on rare occasion he agrees that the law is unconstitutional,
or refrains from intervening in order to avoid taking a position.
One should note that when a judge certifies a question, the Court
always decides the issue, even if no party makes an appearance. The only
requisite for the Court to proceed is that the certifying judge file the legal
notice. The same is not true in cases where the Court’s jurisdiction is
invoked directly by petitions from the State or Regions, or branches of the
central State. In such cases, it is essential that there be a petitioner who
pursues the case.
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With the amendment to the Supplementary Rules made on 8 January
2020, the Court opened up constitutional proceedings by introducing
three important innovations. First, in line with its case law, it clarified that
in incidental proceedings, in addition to the parties to the pending proceedings
and to the President of the Council of Ministers (and the
President of the Regional Council, if a regional law is involved), others,
third parties, may also intervene, provided that they hold a qualifying
interest that is directly and immediately relevant to the case in question.
In addition, in line with the practice followed in other countries, the
Court introduced amici curiae. It is now provided that all non-profit social
groups and all institutional bodies bearing collective or diffuse interests
relating to the issues under discussion may present brief written opinions,
to offer the Court elements that may be useful to the comprehension and
evaluation of the case before it.
Through the same amendment, the Court also introduced the possibility
of calling renowned experts, where it considers it necessary to gain
information on specific subjects.
The Constitutional Court in Session
At this point the Court can proceed with its work. On the basis of a
yearlong court calendar, the President selects which cases will be discussed
at each sitting, selects the constitutional judge who will report on each case
(the giudice relatore), and stipulates the docket or case list for each sitting.
Cases may be dealt with in two ways. There can be a public hearing
(udienza pubblica) , which is a court session open to the public,
reporting judge (giudice relatore) presents the question as proposed, and
the lawyers representing the parties involved in the proceedings present
their arguments before the united Court. At the end of the public hearing,
the Court meets again, in closed session, to decide the case.
Cases can also be dealt with directly in closed session, without prior
public discussion and on the basis of the written record. This simplified
procedure is used when there are no parties to the proceedings before the
Court (apart from a brief filed by the Advocate General of the State or
counsel for the Regional President), or even when there are parties to the
proceedings, if the President of the Court considers that the question can
be rejected as clearly meritless or inadmissible (e.g., on the basis of prior
decisions on the same subject). The final decision, however, is always
taken collectively by the Court.
In both public hearings and closed session, the Court convenes in plenary
session with fifteen members (or, as recalled above, with the minimum
of eleven members, if some positions are vacant or judges are
absent). It is never subdivided into panels composed of only a subset of
the judges. An exception is when it convenes to decide on claims filed by
the Court’s staff; only in these cases, the panel consists of only three
judges, selected beforehand.
The relatively small number of judges permits the Court to work in plenary
session. As a rule, this enables the Court’s case law to develop more
coherently than if it were subdivided into panels.
A Rapporteur for Every Case
The President appoints a judge as rapporteur or giudice relatore for each
case from among the constitutional judges, normally excluding the
President himself. Thus, in every hearing and every closed session, different
judges alternate as rapporteurs for the discussion of the various cases
being examined.
There are no fixed rules for the criteria used by the President to select
the rapporteur apart from the need to distribute the work evenly among
all the judges, taking into account the seriousness of each case. In practice,
the President generally assigns a case to the judge who has already acted as
rapporteur on cases dealing with similar problems, and who has relevant
training, previous experience or specialisation (in fields such as criminal
law, criminal procedure, civil law, labour law, tax law, or administrative
law). These are, of course, only rough criteria, since cases may pose similar
issues deriving from the application of constitutional principles even if
they arise in different sectors of the law. Furthermore, there are fields of law
where constitutional questions are raised quite frequently, and which
all judges must deal with at some point. For more complex and delicate
cases, the choice of rapporteur may be guided by more specific criteria of
the President’s own choosing.
The choice of rapporteur is important because it is this judge who will,
after having examined all aspects of the case thoroughly, propose how to
frame and resolve the question. This choice does not necessarily determine
the outcome of the case, since the opinion of the rapporteur is not always
adopted as that of the Court.
Moreover, the rapporteur is not the only one to know the question in
advance of the hearing and to have studied it in detail. The job of preparing
the material for each case to be discussed falls to the assistant of the
reporting judge, who assembles a research packet including the legal provisions
at issue, relevant precedents of the Court, significant opinions by
ordinary judges, and useful academic writings. The packet is distributed to
all the judges, allowing each of them to prepare for the case in detail.
In more important and complex cases, the material distributed to the
judges may be supplemented by research on the legislation and case law of
countries similar to Italy, or of international courts, where similar questions
have been dealt with. This is because constitutional principles
embedded in different legal systems are often based on common ideas or
approaches (a sort of constitutional common law), and thus the problems
of constitutionality that arise in different countries may be similar. The
Italian Constitutional Court can draw valuable suggestions for its own
decisions from the experience of other constitutional tribunals.
Public Hearings
The Court meets in public session in a special room of the Consulta, normally
every two weeks, on Tuesday morning at 9:30 a.m. Behind the horseshoe-
shaped bench sit the judges with the President at the centre, with the
most senior members near the centre and those nominated more recently
towards the wings. All judges wear a black robe modeled after the robone,
the traditional garment of 1500s Siena. For solemn occasions, the judges
also wear a golden medallion and the tocco, the traditional headpiece. At a
separate bench, to the side, sits the head of the clerk’s office (cancelliere), in
a black robe. It is his task to draft the written record of the hearing. This
does not contain the content of the individual oral statements, except where
this is expressly requested, but simply takes note of who makes statements.
Next to the clerk of the court sits the court usher (messo) dressed in a red
cape, who calls the cases in the order decided by the President.
Facing the judges’ bench is the bench of the lawyers (also dressed in
black robes) who appear to address the Court. They must be lawyers
admitted to appear before the “higher jurisdictions,” who have been
admitted to the specific Bar. They speak in the order specified by the
President, after the rapporteur judge presents his report. As a rule, the
judges only listen and do not pose questions to the lawyers, who present
their arguments without interruption. In cases in which an ordinary judge
has certified a constitutional question, the Advocate General of the State
representing the President of the Council speaks last. Objections or rebuttal
arguments are not normally allowed.
Behind the lawyers sit journalists and the assistants of the constitutional
judges. Behind them there is seating for the public, mainly groups of university
or high school students, who get a close-up view of how the Court
works. Sometimes groups of those individuals with a stake in one of the
cases being discussed attend the public hearing.
Closed Session
The judges deliberate on how to resolve the cases before them in closed
session (camera di consiglio), and in total secrecy. The Court normally
meets in closed session from 9:30 a.m. to 1:00 p.m. and from 4:00 p.m.
to 7:00 p.m., every other week, in conjunction with its public hearings.
It is here that the Court, under the direction of the President, debates
the issues to be resolved, frames possible solutions, reaches decisions, and
approves opinions. If one considers that in a year there are approximately
18 weeks of closed sessions, from Monday afternoon to Friday, and for
every day of sittings the judges meet for up to 6 or 7 hours, one can calculate
the amount of time that they spend together in discussion every year!
One can therefore understand the sort of longstanding rapport that
grows up among the fifteen constitutional judges, in an environment the
rites and rules of which are reminiscent of those of a monastery. After several
months, the level of reciprocal understanding (of their respective ideas
and of their ways of thinking) tends to become rather intense. Since each
judge serves for nine years, one can appreciate that the experience of working
in the Constitutional Court leaves a deep impression on the judges,
converting the group of fifteen into something more than the sum of its
parts: the Court becomes virtually a person in its own right, made up of
fifteen people.
During this week of group meetings, the judges normally deal first with
the cases discussed in open court, turning next to those dealt with in
closed session.
Discussion may last no more than a few minutes in cases where the rapporteur
proposes a solution that does not meet with objections, and is
therefore immediately adopted by the Court. Or it may last entire days,
depending on the complexity or controversial nature of the question at
issue. The judges work with the record and the research material before
them, but it must be emphasised that the discussion is not based on a draft
opinion already prepared by the rapporteur (as occurs in other Courts).
Debate begins with a preliminary statement made by the rapporteur
judge, which highlights any possible problems regarding the threshold
admissibility of the question at issue. The report may end with a detailed
proposal, or with a list of various possible solutions, depending on the
choice of the rapporteur.
At this point the other judges may join in the discussion, starting with
the question of admissibility and then turning to the merits of the case. If
the question is of relatively minor importance, it is likely that only a few
judges will speak; otherwise, all will offer their thoughts. In the case of
more formal discussion, the judges speak in order of age, starting with the
youngest, while the President speaks last. The discussion can continue, if
requested, with further observations, objections, and requests for clarification.
A judge may request that the discussion be postponed until a later
date, or there may be a need to acquire new material in order to examine
the matter in more depth. The discussion does not necessarily follow a
fixed plan. Much depends on the requests made by the judges, as well as
the President’s direction of the debate, although he often defers to the
desires of his colleagues. The rapporteur can reply to other judges’ comments,
or wait until the end of the hearing to conclude the debate and
offer a final proposal (which does not always coincide with the proposal
he presented at the beginning). It is here, above all, that one can measure
the efficacy and utility of the group discussion, which can generate objections
to the case as presented by the rapporteur as well as suggestions for
different grounds on which to base the decision.
One must consider that the final decision of the Court consists not only
of the formal judgement itself (such as a declaration of unconstitutionality,
a declaration that the certified question is unfounded, or declarations that
the question itself is inadmissible), but also, and sometimes above all, of the
grounds for the decision spelled out in the opinion of the Court. There
may be agreement on the ultimate result, but dissent with respect to the
grounds for that result. The latter are important primarily because they
constitute – more than the judgement itself – the nucleus of the precedents
referred to in cases that the Court is called to decide in the same or similar
matters in the future; and also because a single judgment might be support
ed by reasoning that produces different effects. For example, a decision that
rejects a constitutional challenge on the grounds that the impugned provision
is constitutional is very different from one that declares the same question
unfounded because the challenged law should be interpreted in a different
way from that indicated by the judge (the so-called “interpretative
judgements” mentioned above). Therefore, settling on the grounds for a
decision is sometimes more important than deciding whether or not the
law is unconstitutional. This may account for the determined and protracted
nature of some discussions in closed session.
Majority Decisions?
Like any other group of thinking heads, the Constitutional Court can
find itself divided. With fifteen judges, some dissent is likely, despite the
fact that all the judges rely on the same Constitution and that their long
hours of collaboration favor the formation of common views. Accordingly,
the Court, like other collegial bodies, must arrive at decisions by majority
vote. A formal vote is held only when there is a lack of unanimity (for
example, in support of the rapporteur’s proposed resolution) or even a clear
majority of similar viewpoints, or if a judge requests such a vote. The
President calls the vote, thus bringing deliberations to a close.
The practices of the Court may vary depending on the styles and attitudes
of the President and the other judges, but the basic goal is to achieve
the broadest possible consensus among the judges. For this reason, discussions
are sometimes extended to look for compromise solutions, or at least
solutions that avoid sharp divisions within the Court. The compromise
can often consist of a decision that does not resolve the question definitively,
for example by declaring a certified question inadmissible rather
than rejecting it on the merits. Less dramatically, the Court might simply
narrow the sweep of the reasoning in its opinion. This practice is probably
driven in part by the current lack of a vehicle, such as dissenting opinions
which are published in Germany and Spain, for judges to register their
disagreement with the majority view.
The general practice of the Court is to accept or reject the rapporteur’s
final proposal. Sometimes, if a preliminary question emerges (e.g., regarding
the admissibility of the certified question) the Court first takes a vote
on the rapporteur’s proposal regarding this issue and then, if necessary, on
the rapporteur’s proposal on the merits of the case. If the rapporteur proposes
a series of options, ranking them in order of preference, the Court
considers these proposals in the order suggested by the rapporteur. This
agenda-setting power is perhaps the most significant power in the hands
of the rapporteur, whose personality can at times contribute to the formation
of a majority in support of his proposal.
All judges present during the deliberations must vote for or against any
proposal put to the vote; they may not abstain. Furthermore, all the
judges present at the beginning of the discussion on a case, either at the
public hearing or in closed session, must take part in deliberations until
the end and cannot, as is often the case in political assemblies, “leave the
room” to effectively abstain from voting. Finally, the composition of the
Court cannot change during the discussion of a case.
If the Court is made up of an even number of judges and the vote is
evenly split, then the outcome is determined by the vote of the President
(or whoever presides over the sitting). This is the only occasion when the
President exercises any power greater than that of the other judges. In all
other circumstances, his vote is worth the same as that of the others. His
influence naturally derives from his authority vis-à-vis his colleagues, but
there are no internal hierarchies within the Court, only varying personalities
and opinions.
Drafting the Judgement of the Court
The proceedings do not come to an end with the decision of the Court
or vote of the Court in its closed conference. The judgement only becomes
final when it has been drafted, approved, and signed, and the original has
been filed with the clerk’s office.
The phase following the decision is thus very important and is where
the grounds on which the judgement is based take shape. It can last anywhere
from two weeks to several months.
Normally the judge who has served as the rapporteur on a case is
responsible for drafting the opinion of the Court, and is known as the giudice
redattore, or author of the opinion. Not infrequently, the rapporteur
may be in the minority, but the general practice is nevertheless for him to
draft the Court’s opinion along the lines of the majority view. On the rare
occasions when the dissenting rapporteur prefers not to write the Court’s
opinion, the President entrusts the task to another judge from among the
majority, unless he chooses to draft it himself.
Reading the Judgement
If the decision of the Court reaches the merits and therefore is memorialized
in a detailed opinion, known as a sentenza, the author distributes
his draft to all the constitutional judges. The judges later review the draft
opinion together during a chamber conference. The author reads aloud
the portion of the opinion that contains the legal analysis for the Court’s
decision (not the background section that sets forth the facts and the parties’
arguments).
At the end of the reading, the judges (each of whom has a written copy
of the text) voice their comments or objections, beginning with the general
structure of the opinion, and then systematically work through each
page of the draft. They discuss whether to change, add, or delete arguments,
sentences, and even single words, until agreement is reached, or at
least an opinion is finalized at least to the satisfaction of a majority. In
cases where the majority does not agree with the draft, the author may be
asked to submit another draft, or to change or add some portion. In such
circumstances, the reading is postponed until a new draft is circulated.
It is therefore clear that the judges collaborate closely and engage in
wide-ranging discussions in the course of drafting opinions. Even those
judges who are in the minority may ask that the published opinion reflect
their concerns to a certain extent. Some opinions are true compromises,
while others may simply be free of any statements that may engender particular
controversy among the judges. This can sometimes lead–as critical
observers are quick to note–to opinions that are less than clear or more
laconic, with reasoning that is more elusive than if a broader consensus
had been reached.
It is important to realize that each published opinion of the Court is
the product of a collaborative effort of all the judges, and not simply the
opinion of an individual author. Indeed, the author may have dissented
from the majority view embodied in the final opinion. In drafting the
opinion, the reporting judge tries to reflect the opinions of the other
judges and to encapsulate what emerged from the discussions of the
Court. Commentators often err in personalizing the opinions of the
Court, by crediting (or blaming) the author with their content, as if the
opinions and arguments presented in them were his alone, rather than
those of the Court as a whole.
Naturally, given that a single judge writes the initial draft, it retains his
stylistic imprint, and the structure of its reasoning will tend to reflect the
one he proposed (which, in turn, is always based on the collective will of
the Court). Yet it is fairly common for the final text to contain less than
what the author originally proposed, because points with which other
judges disagreed may have been discarded, or because additional passages,
reasoning, or nuances of argument that the author had not originally
included, but which arose in the course of group deliberations.
This way of proceeding explains why the Court may spend more time
debating the content of its opinion than debating how the case should be
decided. In constitutional cases, the court’s reasoning may be as essential
as the result it reaches.
This two-step decision making process, which involves debate on both
the ultimate result to be reached and the written opinion to be issued,
means that the final decision of the Court exists, legally, only after the
final opinion is adopted, signed and filed with the clerk’s office of the
Court. Until that time, the Court can revisit its initial decision, altering
or even reversing it if, in later discussions, it becomes clear that the decision
was incorrect. In drafting the opinion, the author may realise that
there are logical or legal difficulties with the decision of the Court, or
objections which were not initially taken into account. In such cases he
can propose that the decision be amended. The general practice of the
Court is to allow its decisions to stand – especially if a vote has been taken,
regardless of whether the decision was unanimous or supported only by a
majority – unless none of the members of the college object to the modification.
If the Court were less rigid, the decision making process might
be never- ending.
If, on the other hand, the decision taken is to be issued in the form of
an order (which nevertheless should be succinctly yet adequately reasoned,
given that it is a measure that establishes the “manifest unfoundedness” or
the “manifest inadmissibility” of the question referred), the text written by
the judge rapporteur is circulated to all the judges. If none of the judges
objects orally or in writing, the order is endorsed by the President and the
judge rapporteur within a few days and filed with the Court’s registry,
thus becoming final and public. However, all of the judges may make
comments and propose changes until the text has been made final.
Dissenting Opinions
Constitutional Courts or judicial bodies in other countries allow for
their members who dissent from the result reached in a given case, or even
only on the grounds for that result, to draft and publish their own written
dissenting or concurring opinions together with the decision of the Court.
In Anglo-Saxon countries this is a result of a tradition whereby the legal
decisions of collegial bodies consisted not of a unitary text, but are the
sum of individual opinions drafted by each judge. In countries with other
traditions, opinions or votes which differ from those of the majority also
find room for expression. The jurisprudence of these courts thus includes
not only the view of the majority, but also dissenting or other views.
With the passage of time, a majority of the Court may eventually adopt the
views expressed in an earlier dissenting opinion, allowing for the gradual
evolution of case law.
To date, such a practice has not been permitted in Italy, where the traditional
ideal of a unified and impersonal judicial opinion still prevails–
even if in practice the Court’s opinions are the product of a collaborative
decision-making process in which not all judges necessarily agree with the
majority view. Moreover, strict secrecy surrounds the Court’s deliberations,
including differences of opinion that are voiced by judges, proposals
made but rejected, and legal arguments not contained in the final opinion.
When the newspapers report that the Court was split along certain lines,
or that a decision was made by a particular majority, they are doing so
solely on the basis of leaks or pure supposition. Officially, one cannot
know whether a decision was made unanimously or by majority vote, by
how great a majority, or how individual judges voted. For some time there
has been discussion, in both academic and legislative circles, and within
the Court itself, about whether or not it would be appropriate to introduce
the practice of publishing dissenting opinions, and of ways in which
this could be done. There is disagreement about the wisdom of such an
innovation.
One argument for allowing dissenting opinions is that they would
encourage clearer majority opinions, because they would need to respond
directly to the arguments presented by the dissenters. Moreover, criticism
of the decisions of the Court might move away from simplistic claims that
the judges had simply prejudged the issues, and towards reasoned debates
focusing on substantive legal arguments. This would dispel the notion that
a group of judges may have prevailed based solely on their force of numbers,
or based on preconceived ideas.
On the other hand, some fear that dissenting opinions would lead to
an excessive “personalisation” of constitutional judgements, to the exposure
of individual judges to external pressures, as well as to undermining
the authority of the decisions of the Court and a reduced incentive for
judges to seek the broadest possible consensus for the decisions of the
Court.