Appunti Fundamental Rights-The effects of the ICC decisions + The Italian Constitution in the European area

Effects of Italian constitutional court decisions

Within judicial review of legislation

The Italian system is a centralized one. The reference model is the Kelsenian model. Only the Italian Constitutional Court (ICC) is empowered with the power to strike down legislation when it is found inconsistent with legislation. However, ordinary judges play a filter function in this scenario. They are called to analyze some pre-conditions:

• Relevance of the doubt ("question") in terms of applicability and influence on the main proceeding: the solution of the question of constitutionality must be applicable and have an influence on the main proceeding (the one brought before the referring judge).
• The doubt must be "not manifestly unfounded".

Every judge (not only high courts) can submit a question of constitutionality, not only if asked by the parties of the main judgment (also by the judge sua sponte) even when the parties do not explicitly ask for it. Every ordinary judge has been described by the scholarship as the "gatekeeper" of the constitutional review of legislation because they exercise this kind of filter function. Therefore, the Italian system is a centralized one, but some elements of diffusion or decentralization are provided.

Effects in general

Art. 136 of the Italian Constitution states: "When the Court declares the constitutional illegitimacy of a law or enactment having the force of law, the law ceases to have effect from the day following the publication of the decision."

Art. 30.3, Law no. 87/1953, states: "Provisions declared as unconstitutional cannot find application from the day following the publication of the decision."

What do these two provisions imply? They imply full retrospective effects in general decisions of unconstitutionality, although with some exceptions, inspired by the principle of legal certainty. The decisions of the constitutional court have effects ex nunc from when the provision entered into force. What criterion is applied?

Some exceptions inspired by the general principle of legal uncertainty are provided:

• Generally speaking, declarations of unconstitutionality do not affect "relations that have been concluded" (exhausted relationships, "rapporti esauriti"). The main example for exhausted relationships is represented by those which were issued by a final decision or chose jugée.
• Respect for the chose jugée (final decision), with the significant "exception of the exception" in cases of imprisonment or similar criminal penalties. The habeas corpus prevails over the legal certainty: in this specific case, personal freedom prevails over the contrasting principles of the constitution.

The ICC states that retroactivity "only applies to legal relations that are still producing their effects, and hence does not apply to those the effects of which have expired, which continue to be regulated by the law struck down as invalid" (Decision no. 139/1984).

Only those decisions which declare a piece of legislation to be unconstitutional are considered legally binding, while other decisions are not legally binding to everyone, all individuals and public authorities, but only to the parties of the proceeding.

Article 136.2 of the Italian Constitution indicates that the Italian Constitutional Court has not opened the possibility to use tools practiced by other constitutional Courts (e.g., in Germany). For example, the German federal constitutional court has tools like:

• Fristsetzung: to set a future moment when the effects of the declaration of unconstitutionality will start to run.
• Unvereinbarkeit: declaration of "simple" incompatibility, without the effects of the declaration of unconstitutionality.

However, the Italian Court can count on a long practice of intermediate decisions:

• Interpretative: the court may argue "the law is not constitutional, because the interpretation of the referring court was wrong..." Judges can derive many different meanings from the same provision.
• Some judgments may be manipulative of the text: all the provisions may be declared unconstitutional.
• Decisions of partial unconstitutionality.
• Integrative ("the law is unconstitutional because it does NOT foresee that...").
• Substitutive ("the law is unconstitutional because it foresees X instead of Y").
• Additive of principles (when no clear solutions are available) with a (more clear) message to the Parliament that a new law is needed (but the judge can anyway make use of the principle in the case at hand).

These kinds of decisions are distinguished based on the different types of effects. However, there could also be a distinction based on temporal factors:

Different temporal effects

1. Unconstitutionality of the laws older than the Constitution. This general rule was established in decision no. 1/1956: laws from the fascist period are not repealed (abrogated) with the entry into force of the constitution; they have become unconstitutional.

2. Decisions on laws which became unconstitutional because of a later fact of constitutional relevance that changed the legal system. For example:

• A law becoming unconstitutional because of a subsequent constitutional amendment (Decision no. 266/1988).
• A law becoming unconstitutional because of a new interpretation of a constitutional principle emerging from a decision of the ICC taken meanwhile (Decision no. 178/2015).
• A law becoming unconstitutional because it violates a subsequent decision of the European Court of Human Rights (which means a violation of art. 117,1 const.).

The evolution of case law of the Italian Constitutional Court, as well as that of the ECtHR, may have effects on the judicial review of constitutionality and the temporary effects of inconstancy. In this situation, contrary to the previous and general case, the unconstitutionality starts when the contrasts actually occurred.

Special cases

Controversial case that was ruled by the Court: ICC, No. 10/2015 (on the so-called "Robin Hood Tax"). The Italian Constitutional Court does not have the same tools that, for instance, are available to other constitutional courts.