Appunti Fundamental Rights- The Italian Constitutional Court

The Italian Constitutional Court

The Italian Constitutional Court is a hybrid between the Kelsenian model, since it is the only specialized body in the Italian legal system empowered to declare the unconstitutionality of ordinary laws and primary acts, and the US model, outlined by the presence of elements of decentralization or diffusion of constitutional judicial review of legislation.

The Italian Constitutional Court is a classic example of those constitutional courts that may be placed in the first wave of judicial review of legislation, along with the German Bundesverfassungsgericht. It identifies those constitutional courts established after WWII.

Revolutionary constitution

These courts are established by revolutionary constitutions, since they are adopted after the failure of democracy, the establishment of a dictatorship or totalitarian regime, which was fought by the people and followed by the adoption of a constitution.

In order to protect the principles and the fundamental values listed in these revolutionary constitutions, they established the constitutional court, the guarantee for the constitutional pacts and the fundamental rights.

Features

The main features of these kinds of constitutional courts include:

• Rigidity of the constitution based on the constitutional amendment procedure
• Limits to constitutional amendments: eternal clauses
• Centralized scrutiny: a centralized review of constitutionality
• Openness to the international legal order and European law

Composition of the Italian Constitutional Court

The Italian Constitutional Court is characterized by a perfect balance between all the components of the court: 15 members:

• 5 elected by the President of the Republic (POR)
• 5 by the Parliament in a joint session with a 2/3 majority in the first two rounds; after the second round, a 3/5 majority is sufficient. Since the Parliament in joint sessions is called to vote on a specific person, secret ballots are undertaken
• 5 members by the Supreme Court: 3 by the Court of Cassation, 1 by the Council of State and 1 by the Court of Accounts or Auditors (competences on accounting and public spending in general)

Who can be appointed or elected as constitutional judge?

The professional qualifications are similar to other national courts. Candidates must be:

• Judges of the highest court (even retired)
• Full law professors
• Attorneys with at least 20 years of experience

Even if in the composition of the court there is a technical component, other judges elected or appointed must have a strong juridical background.

The mandate is 9 years long, without the possibility to be re-elected. This is a way to preserve the independence of judges from political influences. Indeed their mandate is longer than the one of the representatives of the Parliament. In the US legal system, judges of the Supreme Court have a life-long mandate.

There is no prorogation (prorogatio): they cannot stay in office when the 9 years of mandate are passed. Consequently, any delay in the renewals will determine that the courts operate not in its plenum. In other words, judges who have completed the mandate cannot stay in office until the other two judges are elected or appointed.