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2008


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Palomar non rappresenta una testata giornalistica, viene aggiornato senza alcuna periodicità, esclusivamente sulla base della disponibilità del materiale e delle news ; non è, pertanto, un prodotto editoriale sottoposto alla disciplina di cui all'art. 1, c. 3, l. n. 62 del 7 marzo 2001 .
Decision of the Italian Constitutional Court on the legitimacy of immediate deportation of aliens for national Security reasons (Constitutional Court Decision  n. 432/2007)
Parliamentary Immunities and the Possibility to Use Fortuitous Interceptions: the Constitutional Court reaffirms the Principle of Equality in Criminal Proceedings (Constitutional Court Decision n. 390/2007)
The use of the notion of Sovereignty in drafting a Regional Statute and its consistency with a Regional Form of Government (Constitutional Court Decision n. 365/2007)
The status of the ECHR in the Italian hierarchy of sources as determined by the Italian Constitutional Court (Constitutional Court Decisions ns. 348, 349/2007)
The Italian Court of Cassation Defines the Boundaries of the Right to Die of an Unconscious Patient (Italian Court of Cassation – First Civil Division, Decision n. 21748, October 16, 2007)

The Italian Constitutional Court reaffirms the boundaries to be respected in the use of the Law-Decree tool by the Executive Power (Constitutional Court Decision n. 171/2007)






Decision of the Italian Constitutional Court on the legitimacy of immediate deportation of aliens for national Security reasons (Constitutional Court Decision  n. 432/2007)

Deciding on a case introduced by
a regional Administrative Court (Tribunale amministrativo del Lazio), the Italian Constitutional Court affirms the legality of a disposal of the anti-terrorism legislation, adopted by government decree and then ratified by an Act of Parliament, regarding the extraordinary procedure of expulsion for aliens suspected of terrorism activities.

The appellant asks for the nullification of a deportation act ordered by the Interior Minister on the light of his involvement in Islamic fundamentalist groups, that could be connected to the international Islamic terroristic network. Because of this, the appellant’s permanence on Italian ground is considered to be serious danger for National Security.

In particular, some sections of the Italian anti-terrorism law (sections. 3, part 4, 4-bis and 5, decreto-legge 27 luglio 2005, n. 144 «Misure urgenti per il contrasto del terrorismo internazionale», ratified by law with «legge 31 luglio 2005, n. 155»), are claimed as inconsistent to sections 3, 24 and 113 of the Italian Constitution, regarding respectively, the right to equality and due process of law, with a specific reference to the safeguard of individual rights towards Public Administration.

The recurrent sustains that the deportation measure should be suspended until the proofs confirming his affiliation to terrorism groups can be assessed, because now they are classified as secret for security reasons.

On the opposite side, the State Lawyer affirms that the sections challenged are perfectly coherent to the Constitution, because the measures ordered are consistent to Section 10, regarding the recognition and adaptation of  Italian juridical order to the International Law. According to the International Law it is a right of each State to order foreign people deportation while they represent a danger for National Security.

The Constitutional Court agrees to this position and, as a consequence of that, rejects the appeal, judging «not admissible» the instances presented.

With reference to the Italian strategy against the extraordinary challenge of international terrorism, it seems important to point out that, soon after the bombings in London on July, 7, Giuseppe Pisanu (who was, at the time, the Italian Interior Minister) announced the immediate exigency of adopting new, strong measures to combat the threat of terrorist attack. A package of extra-ordinary measures has been promptly arranged by the Interior Minister who soon presented it in front of the Italian Senate. The new measures have been approved by a broad majority in the higher House and, on July, 30, 2005 also the lower House of the Parliament passed the package that, so, became law.

The bill includes:

  • doubling to 24 hours the time suspects can be kept in custody without charge;
  • interrogating suspects without lawyers present;
  • strengthening of measures to prevent terrorists from financing their operations;
  • increasing penalties for carrying false documents;
  • surveillance of the internet and phone networks and making it easier to detain suspects;
  • compiling lists of mobile phone users to help police investigating suspected terrorist crime;
  • up to two years in prison and a 2,000 euro fine for anyone who purposely hides their features by covering their faces in public (including through wearing the Islamic burqa).

During the following years few cases have been challenged in front of Italian courts, referring to the application of such provisions and the judges’ decisions express the problematic nature of the undefined definition of terrorism, noticeable both at national, that EU and international level. In particular, there have been some contradictory verdicts about the classification of a specific action, or the membership of a determined association, as terroristic. One of the most interesting case in the one of a Moroccan citizen, who as been sentenced in the first place because he was considered part of a terroristic organization, in the light of what prefigured by the Italian penal code (art. 270bis) and the European and international Conventions. The Court of Appeal (Corte di Assise e di Appello di Milano), taking its stand on the same standard, overturned the decision, deeming the defendant non chargeable of a terrorism action. At last, the Supreme Court (Corte di Cassazione) condemned the recurrent, asserting the legitimacy of his deportation on the ground of the same definitions considered by the lower tribunals (sent. Cass. N. 1072/2007).

The set of the mentioned anti-terrorism measures expires on December 30, 2007 but on December 29, 2007, the Italian Government released a new decree on National Security (decreto legge 29 dicembre 2007, n. 249, «Misure urgenti in materia di espulsioni e di allontanamenti per  terrorismo e per motivi imperativi di pubblica sicurezza») confirming, in fact, the measures introduced by l. 155/2005 and expanding the possibility of immediate deportation for European Union citizens, considered dangerous for public security. (Carla Bassu)


Parliamentary Immunities and the Possibility to Use Fortuitous Interceptions: the Constitutional Court reaffirms the Principle of Equality in Criminal Proceedings (Constitutional Court Decision n. 390/2007)

In the ordinance adopted on January 9, 2006 by the judge for the preliminary investigations in the course of a criminal proceeding before the Tribunal in Turin, an issued was raised about the constitutionality of art. 6, clauses 2, 5, and 6 of Law n. 140/2003 with regard to arts. 3 (principle of equality), 24 (right to defence) and 112 (the duty of the public prosecutor to exercise the criminal action) of the Italian Constitution.

The constitutionality of Law n. 140/2003 – titled “Provisions for implementing art. 68 Const. and procedures to be applied in the prosecution of the high offices of State” – was challenged in the part where it provided that, in case a judge wants to use in a criminal proceeding indirect or fortuitous interceptions which involve a member of Parliament (MP) (i.e. interceptions already made and that accidentally involve a MP without being directly aimed at recording her conversations, as happens when the conversations that are meant to be tapped are those of her acquaintances or of someone who is not in any way related to the member herself), the judge must ask a subsequent authorization to the House of Parliament the MP belongs to, and, in case the authorization is denied, the transcript of the tapping and the tapping themselves must be immediately destroyed. Moreover, if the interceptions had been already introduced in a criminal proceeding as evidences – art. 6 of the impugned Law goes on – they must be considered unusable by the judge, the prosecutor and the lawyer for the defendants in all the stages and instances.

Particularly, in the ad-hoc judge’s view, the provisions of Law 140/2003 raised a concern about the inequality that they were likely to cause with regard to the indicted in the criminal proceeding. Indeed, if the interceptions had to be destroyed, the evidences derived from them couldn’t be used in the proceeding anymore, and – according to the law – not just with regard to the MP accidentally tapped and possibly indicted, but also to all the other subjects accused on the basis of the same interceptions. This, in addition to substantially remove important evidences from the proceeding itself, would extend to some non-members, a privilege that should be granted only to MPs. Indeed, only those, among all those prosecuted, who accidentally had a conversation with the MP, would see the evidences relating to them removed, therefore creating an inequality between them and the other defendants that didn’t have any conversation with the MP intercepted.

Finally, with regard to the right to defence, these evidences (the evidences both against the defendants and to their advantage) could have been of paramount importance to the public prosecutor or the lawyer for the indicted to prove the guilt or innocence of the defendants. Their loss, therefore, would significantly affect the right to defence of the accused and, at the same time, the duty of the prosecutor to exercise the criminal action, and was likely to heavily influence the outcome of the proceeding.

As a preliminary matter, the Constitutional Court in this decision analyzes the content of art. 68 Const., in its new text as modified in 1993. Art. 68 deals with parliamentary immunities and establishes a system of guarantees whose rationale is to prevent any undue influence of the Judiciary on the Houses of Parliament by protecting their composition and their functions. This guarantees move to the single members, even if not originally designed to defend them individually. Art. 68, cl. 3 Const. provides that “[w]ithout authorization from the House to which they belong […] no member of Parliament may have their conversations or communications intercepted in any form, or their mail impounded”.

The declared purpose of Law n. 140/2003 was to implement the provisions of art. 68 Const., but – as the Court affirms – the Law went further and added to the preventive authorization system designed by art. 68 (and implemented by art. 4 of Law 140/2003, which was not challenged), also a subsequent system with regard to indirect and fortuitous interceptions (art. 6). This latter system – the Court continues – even if not directly provided for in the Constitution cannot in itself be considered unconstitutional. It is necessary to analyze in detail what the Law provides to ascertain its compatibility with the Constitution.

The Constitutional Court then finds that the system of subsequent authorization, as designed by the legislator in art. 6, is unconstitutional, because in its current form, it furthers an interest which is different from the one art. 68 Const. intends to protect and that eventually infringes on the principle of equality as stated in art. 3 Const., substantially meeting the concern represented by the ad-hoc judge on this matter with regard to the other accused in the criminal proceeding.

The interest that art. 6 furthers is not that of protecting the functionality and composition of the Houses of Parliament. At the opposite, art. 6 substantially protects the right to privacy of the MPs. And this is especially proved by the consequences deriving – according to the Law – by the authorization’s denial: an absolute prohibition against any use of the interceptions at any stage or instance and, most importantly, their destruction. But this interest – continues the Court – is already protected by art. 15 of the Constitution, which doesn’t establish a system of immunities for MPs.

In this regard, the Constitutional Court states that “within the [Italian] constitutional system, all the provisions that grant immunities and prerogatives in order to protect the functions of the Parliament, and that therefore derogate to the principle of equal treatment before a court” must be interpreted “in the strictest way according to the text.”

Therefore the Law must be considered unconstitutional – and particularly overbroad – in the part where it provided that, in case of denial of the authorization by the House, the fortuitous interceptions must be destroyed and considered unusable with regard to all the defendants and not just the MP whose conversations have been intercepted. 

What the Constitutional Court couldn’t decide on, because it was out of the ad-hoc judge’s petitum, it was the compatibility of the subsequent system of authorization in itself with the Constitution, but the phrase quoted in the foregoing has led some commentators to think that if the Court, in the future, will be faced with this question, it will declare its unconstitutionality.

The Court considered any other challenge to the Law with regard to other articles of the Constitution absorbed by the declaration of unconstitutionality with respect to art. 3 Const.  (Gianluca Gentili)


The use of the notion of Sovereignty in drafting a Regional Statute and its consistency with a Regional Form of Government (Constitutional Court Decision n. 365/2007)

The Constitutional Court’s decision n. 365/2007 was issued on October 24, 2007 and published on November 7, 2007. The issue at stake was a challenge to the constitutionality of article 1, article 2 cl. 2(a), article 3, and the caption of the Sardinia’s Regional Law n. 7/2006, titled “Functions and rules regulating the ad-hoc Council established to draft the new Special Statute for the autonomy and sovereignty of the Sardinian people.”

Under the 1948 Constitution, Italy is comprised of twenty Regions (Const. art. 131). The Constitution accorded to five outlying Regions (Friuli-Venezia Giulia, Sardinia, Sicily, Trentino-Alto Adige and Val d'Aosta) so-called ‘Special Statutes’ which granted them greater autonomy than that of the other Ordinary Regions. Both Ordinary and Special Regions enjoy - to a different degree - legislative and administrative powers.

The articles and the caption of the Sardinian Regional Law were challenged by the Italian Government for the alleged infringement of articles 1, 3, 5, 16, 101, 114, 116, 117 cl. 1, 117 cl.2(a)(d)(h)(l), 120, 132, 133 and 138 of the Italian Constitution, and also of art. 1 of the Special Statute for the Sardinia region, which holds constitutional status.

The challenged articles are comprised in the body of the Sardinian Regional Law n. 7/2006, which deals with the establishment and the powers accorded to the newly-created Council, a body especially created to draft a new Special Statute for the Sardinia Region. Once drafted by the Council, the new text - according to the Regional Law – must be submitted for approval to the Regional Parliament (the Region's Legislative branch) whose duty is to take into account the text drafted by the Council and, itself, draft a constitutional bill to be sent to the National Parliament for final approval.

The challenged articles of Regional Law n. 7/2006 were claimed to infringe the Constitution, in that they obligated the newly-created Council to expressly enucleate in the new Special Statute:

1) The principles and features of Regional identity;

2) The reasons underlying the Sardinia Region's autonomy and sovereignty and the State and Region's mutual obligations springing from the application of these principles;

Also, Regional Law n. 7/2006 prescribed that ways of action had to be mentioned in the text to foster the rights of the Sardinian citizens, taking into account the many specificities of the island.

The Italian Constitutional Court stated in the decision n. 365/2007 that the use of the word "sovereignty" with regard to Regional power is in stark contrast with the logic underlying the creation, in 1948, of a Special Statute for the five outlying Regions and also with the kind of vertical separation of powers chosen by the Italian Constitution (Regionalism). The Court explained that the Constitution describes the powers granted to the Regions in terms of autonomy from the central apparatus, and not in terms of full sovereignty. The concept of sovereignty expressed by the Constitution is strictly linked to that of people as a national community. Moreover, a link between the concept of sovereignty and Regional power, would violate art. 3 of the Italian constitution - which expresses the principle of equality - in that it would allow for a different treatment among citizens, based upon the ethnic group to which they belong. The aim of the challenged articles was indeed this: to create a new Special Statute which would enhance the cultural, ethnic and geographic differences between the Sardinian people and the other Italian citizens, with the explicit purpose to create privileged subjective rights.

Previous decisions issued by the Constitutional Court had already addressed similar provisions found in the Statutes of Ordinary Regions (decisions ns. 372, 378, 379/2004). At that time, however, the Court considered these provisions to only have a purposive character and as mere policy documents, also because these provisions were falling outside the area of legislative powers granted to Ordinary Regions themselves.

In this case, by way of difference, the provisions at issue fall within the broader autonomy (and powers) granted to one of the five Special Regions and legally bind the Council and then the Regional Parliament (even if not the National Parliament, which is still free in its power to approve the final text of the Special Statute or deny approval).

The Constitutional Court found inappropriate both the use of the word 'sovereignty' with reference to the Sardinian people and the use of the expression 'Regional sovereignty' as expressions to be included in the text of a Special Statute. This kind of Statute, in fact, holds a constitutional status in the hierarchy of sources, and therefore concurs – along with the other four Special Statutes and the Constitution itself – to define the State's institutional landscape as a Regional State. If it were to be allowed to include a reference to sovereignty in the text a Special Statute – the Court says –, then the Statute would create such a different institutional landscape that it would change the model of vertical division of powers from Regionalism into Federalism.

This is also confirmed by articles 5 and 114 of the Italian Constitution and art. 1 of Sardinian Special Statute currently in effect, which all mention the term 'autonomy', referring it to areas in which the Regions enjoy a certain degree of self-government, without harming the sovereignty of the unitary State. (Irene Spigno)


The status of the ECHR in the Italian hierarchy of sources as determined by the Italian Constitutional Court (Constitutional Court Decisions ns. 348, 349/2007)

The Constitutional Court’s decisions ns. 348 and 349/2007 were both decided on October 22, 2007 and issued on October 31, 2007. In the trials before the ad-hoc judges (the Court of Cassation and the Court of Appeals in Palermo) an issue was raised about the constitutionality of art. 5-bis of the Law-Decree n. 333/1992, converted into a Statute by Law n. 359/2006 with reference to both art. 6 of the European Convention of Human Rights (ECHR) and art.1 of the First Additional Protocol to the ECHR (both made effective in Italy by Law n. 848/1955) as referred to by the new text of art. 117, cl.1 of the Italian Constitution, modified by Constitutional law n. 3/2001. The Law-Decree was challenged in the part dealing with the method of determination of the exact amount of the indemnity to be given to former owners in case of dispossession made by a Public Authority in pursuance of public good.

In past decisions (see e.g. Scordino v. Italy), Italy on this matter had been declared by the European Court of Human Rights in violation of the ECHR, stating that art. 5-bis was in contrast with art. 1 of the First additional Protocol to the Convention as interpreted by the Human Rights Court itself, in that it didn’t allow former owners of a dispossessed property to receive an indemnity proportional to its market-value.

By way of contrast, the Italian Constitutional Court had affirmed in several decisions, the consistency of the indemnity as determined according to the guidelines put forth by art. 5-bis with the Italian Constitution’s provisions dealing with this matter, including art. 42 (referring to dispossession and a right to an indemnity) and art. 117 in its former text, before it was changed in 2001.

This contrast was determined by the fact that, in the past, the doctrine and the Italian Constitutional Court had recognized the ECHR only a limited effect in the hierarchy of sources: its provisions were considered to have the same status as a Statute and therefore they couldn’t be referred to in an inquiry about the constitutionality of another Statute.

With these two decisions, the Constitutional Court takes into account art.117, cl.1’s new express consideration of international obligations and states that the ECHR can now be considered as having a peculiar status: that of ‘intermediate law’ (norme interposte) which falls in-between the mere Statute and the Constitution and that its provisions can be used as parameters in reviewing the constitutionality of a Statute, as a consequence of the reference made in art. 117, cl.1. to international obligations.

Indeed, art. 117, cl.1, in its new text explicitly affirms that “Legislative powers shall be vested in the State and the Regions in compliance with the Constitution and with the constraints deriving from EU-legislation and international obligations”, the ECHR being one of the latter.

The Constitutional Courts first confirms that, unlike European Community norms, any possibility of direct applicability of the ECHR’s provisions in the Italian legal system is excluded, and, therefore, that national judges are not allowed to set aside national law in contrast with the ECHR itself or with decisions of the Court sitting in Strasbourg. Indeed, the Constitutional Court had already excluded in the past that the Convention could have been considered with reference to art. 11 of the Italian Constitution – the article upon which Italy’s participation in the EU Treaty is based – given that, with regard to the ECHR, no limitation of sovereignty has ever existed. The HR Court itself, in the Scordino case, had left to the Italian legislator the task of drafting a new law which would be consistent with the Convention, implicitly clarifying that its decision had no abrogative effects.

The Italian Constitutional Court also notes that the ECHR is indeed a special Treaty, in that it directly establishes a Court (the European Court of Human Rights) which is to determine – by way of interpretation – the content of the Convention’s provisions. National courts must take into account this interpretation – and not only the text of the Convention – in ascertaining the meaning of the Convention’s provisions.

This said, the Constitutional Court also says that the provisions of the ECHR don’t enjoy full constitutional status, even if referred to by Const. art. 117, cl. 1. They are a step under the Constitution, and therefore, preliminary in the process of judicial review of legislation, is an inquiry about their consistency with the Italian Constitution. Only when this consistency had been ascertained, these provisions could be used as parameters, to review the alleged unconstitutionality of a statute. Clear enough, the Constitutional Court it’s the only national court which enjoys the legitimacy to declare if the ECHR’s provisions (as interpreted by the Court sitting in Strasburg) are consistent with the text of the Italian Constitution, which in some cases might grant a broader protection than that of the Convention (see i.e. some provisions of the Italian constitution dealing with criminal law-related guarantees).

This being the new landscape, the Constitutional Court in these decisions first determines that art.1 of the First Additional Protocol to the ECHR, which sets the guidelines for determining the dispossession indemnity – as interpreted by the Court in Strasburg – is consistent with the provisions of the Italian Constitution (especially art. 42). Then it declares art. 5-bis unconstitutional because it doesn’t allow for a fair recovery to formal owners.

These decisions are important for a set of reasons: 1) This is the first time that the Constitutional Court declares the unconstitutionality of a national law with reference to the new art. 117, cl.1 of the Italian Constitution, showing the potentiality of the provisions included in this article.  2) This is also the first time that the Constitutional Court describes the ECHR status in the hierarchy of sources as ‘intermediate law’ (norma interposta), and therefore granting it the status of parameter in the judicial review process. 3) This decision leaves a lack of recent discipline in a very important field – property rights and its boundaries – that the legislator will have to fill as soon as possible and that make again applicable a law dating back to 1865. 4) Up until now, it was believed that the only branches of government which were the direct addressees of the decisions issued by the Court in Strasburg were the Legislative and the Executive, in that they should made their exercise of power consistent with the Court’s decision. Now the Constitutional Court too becomes one of them, because it must take into account previous decisions of the Court of Human Rights in order to ascertain the compatibility of the ECHR with the Italian Constitution and then the consistency of national law with the Convention. 5) This decision also raises some concerns: the ECHR provisions are often invoked in courts. If the Constitutional Court is the only Court allowed to determine, on a case-by-case basis, the consistency of the ECHR provision with the Constitution in order to then declare the unconstitutionality of a national law, it is reasonable to foresee a flood of requests by national judges to the Court for this very reason, which will probably increase the (already heavy) docket of the Court. Furthermore, the Constitutional Court in its decision does not address what is likely to become a major problem: according to the Court’s interpretation of Art. 117, cl.1 of the Constitution, all international obligations deriving from International Treaties signed by Italy, are now going to become immediately effective – following the process the Court has described – in the Italian system, without any further law of reception issued by the Italian Parliament (as was the rule in the past). (Gianluca Gentili)


The Italian Court of Cassation Defines the Boundaries of the Right to Die of an Unconscious Patient (Italian Court of Cassation – First Civil Division, Decision n. 21748, October 16, 2007)

The decision issued by the First Civil Division of the Court of Cassation deals with the story of a Italian woman, Eluana Englaro, who entered persistent vegetative state sixteen years ago, due to a car accident which left her completely dependent on a feeding tube. The father, acting as guardian of the woman, has since tried to make the judicial authorities authorize the removal of her feeding tube and let her die, under the assertion that his daughter – when of sound mind – had expressed the wish to die in case of an accident had left her in coma. The Tribunal of Lecco first, and then the Court of Appeals in Milan, have always denied the request. The basis of this denial being, in the first instance, the impossibility for the father to have standing and represent such fundamental rights (the right to life) on behalf of her daughter, and on the appeal the fact that in the balancing between the right to dignity and self-determination, and the right to life, the latter had been found to prevail.

The Court of Cassation begins its analysis referring to its own previous jurisprudence about the informed assent, which finds its basis in arts. 2, 13 and 32 of the Italian Constitution. The Court states that the informed assent also implies the right to refuse a treatment and get sick, even die. And that this refusal cannot be defined euthanasia, but a mere person’s choice.

The text of the decision doesn’t mention it, but the memory goes back to another recent Italian case dealing with the right to die: the Welby case. A case, anyway, different in some respects: Piergiorgio Welby, an Italian political activist, diagnosed with muscular dystrophy and recognized to be of sound mind, expressly declared that wanted to die, refusing any longer to receive artificial feeding and to depend on mechanical ventilation for breathing . The Tribunal of Rome, back in 2006, denied him this right. Welby, anyway, died soon after the decision of the Tribunal was issued. Dr. Mario Riccio, an Italian anesthetist, accepted to help him removing his connection to the mechanical ventilation. Accused, according to the Italian criminal law, of murder of a consenting person, Mario Riccio was found not guilty in July 2007. The judge stated, in its decision, that the refusal of a medical treatment is a right guaranteed by the Italian Constitution and that Dr. Riccio, in removing the mechanical ventilation, was simply performing his duty as a doctor as prescribed by the law and the Constitution.    

Here, by way of contrast, the Court of Cassation had to decide about a woman who is already in a coma and cannot take a decision. The Court quotes from Art. 6 of the Oviedo Convention, the Supreme Court of New Jersey (In re Quinlan and In re Nancy Ellen Jobes which applied the  substituted judgment test’), the Bundesgerichtshof and the House of Lords (Bland Case) to give account of a general effort among Courts worldwide to ascertain what would have been the will of the person who is currently in a vegetative state, with regard to the possibility of ending the treatment (and life). The Court of Cassation is clear in rejecting the qualification of the medical treatment, even in these cases, as aggressive medical treatment. But it is also clear in stating that the one who tries to ascertain what kind of weight must be given to past declarations, way of life and thinking under these circumstances, he faces a very complex and difficult path. The guardian plays, in this quest, again, a fundamental role.

The Court, after urging the Legislator to regulate this field, completely lacking any discipline, determines that the judge can authorize the interruption of the life support (being it a feeding tube or another medical device), only when two circumstances concur:

1.  When the condition of vegetative state is, under a strict medical scrutiny, not reversible, incurable, and there is no medical proof, according to the international scientific standard, which leads to think that the person will have even the slightest possibility of regaining some kind of awareness of the outer world.

2. When the request is based upon a clear, consistent and persuading proof that the act would be consistent with the person’s will as inferred from her past way of life, her beliefs, and with her concept of human dignity.

The Englaro case, just like Welby's one, has aroused an heated debate, involving political, ethical, religious and medical aspects, in a country, like Italy, dominated by a strong Christian Catholic environment (Piergiorgio Welby was eventually denied a Catholic funeral). (Gianluca Gentili)


The Italian Constitutional Court reaffirms the boundaries to be respected in the use of the Law-Decree tool by the Executive Power (Constitutional Court Decision n. 171/2007)

In the decision n. 171/2007 the Italian Constitutional Court addressed the constitutionality of the use of the Law-Decree, declaring for the first time the unconstitutionality of a Law-Decree for clearly lacking the "necessity and urgency" requirements prescribed by art. 77, cl. 2 of the Italian Constitution.

Indeed, art. 77, cl. 2 of the Constitution, states an exception to the general rule according to which only the Parliament has the legitimacy of passing a law, being the only branch of government directly elected by the people. It says that the Government may, "under extraordinary circumstances of necessity and urgency", issue Law-Decrees which enjoy the same status of a proper Statute in the hierarchy of sources, but whose efficacy is temporary and limited in time, expiring after sixty days from their publication. Before this expiry date, an express act of Parliament taking the form of a Conversion Statute can change the Law-Decree into a proper Statute. If this Conversion Statute is not issued before this deadline, the Law-Decree - after the expiration date - loses its efficacy back in time from the moment it was originally issued.

Beginning in the 1970s the Government has recurred with ever-increasing frequency and carelessness to the Law-Decree tool, up to the point that in the mid-1990s the average use had reached the peak of one Law-Decree issued per day. The abnormal growth in the use of this instrument occurred because many Law-Decrees which should have been considered expired - the Parliament having not issued a Conversion Statute in time - were immediately enacted again by the Government, causing the efficacy of the Law-Decrees to last, in fact, way longer than the 60 days prescribed by the Constitution (indeed, even years). The effect of this increasing trend was to blur the boundaries between the legislative competencies of Parliament and Government and to alter the balance between these two powers. Therefore it also affected the form of government considered as a whole as delineated by the Constitution.

The Italian Constitutional Court, facing this patently clear anomaly and the absolute indifference paid to its many warnings, issued a series of decision in the two-year period 1995-1996.

Summarizing, the Court, reforming its previous jurisprudence, then stated: 1) that the issuance by the Parliament of a Conversion Statute, does not help to keep a Law-Decree into effect, if the basic requirements for its issuance were originally lacking. 2) That it is within the province of the Constitutional Court to review this lack when the latter is "plain" and 3) that the reiteration of the Law-Decree is an unauthorized practice, an irregularity, that can lead to a declaration of unconstitutionality of the reiterated Law-Decree, absent the existence of "autonomous (and - still - extraordinary) circumstances of necessity and urgency", but that this irregularity can be made up for by a Conversion Statute. 

Despite the swinging - and not always consistent - jurisprudence issued by the Court in the aftermath of these pivotal decisions, two facts must be underlined: that the habit of reiterating Law-Decrees had considerably decreased, and that the Constitutional Court's review on the plain absence of the urgency and necessity requirements had never led to a declaration of unconstitutionality, even in those cases when this lack was patently recognized by a unanimous doctrine.

In this framework, the decision n. 171/2007 is particularly relevant for a twofold set of reasons. Firstly, the Constitutional Court has strongly reaffirmed that the Conversion Statute does not make up for the plain absence of the urgency and necessity requirements in the original Law-Decree. Would this lack not be plain, the Court has affirmed it will defer to the Parliament's political discretion. Secondly, this decision is a strong sign - the first after more than ten years - made towards Parliament and Government in order to warn them that the use of the Law-Decree tool must be made consistent with the provisions of the Italian Constitution and the form of government it shapes. At this point in time, it is difficult to foresee if this decision will represent but the first step in a set of decisions, aiming at creating a stronger jurisprudence and at making the use of the Law-Degree tool consistent with the exceptional character the constitution had attributed it. What is already clear it is that this decision represents a sign the doctrine was waiting for since long, and without which the final goal would have been definitely unachievable. (Nicola Vizioli)