The Italian Constitutional Court
How the Court Was Born
When the Constituent Assembly set about drafting the Constitution of
the Italian Republic, it made a fundamental choice in attributing a “supralegislative”
force to the new Constitution, so that “ordinary” laws could
not amend it or derogate from it. The rights and obligations ratified by the
Constitution, and the rules that guarantee the balance of power among
the various constitutional organs, were thereby protected even from laws
of Parliament. To safeguard this choice, the Constituent Assembly provided
in a section entitled “Guarantees of the Constitution” (Title VI,
Part II) for a Constitutional Court. The Court was charged in Article 134
with the task of passing judgement “in cases relating to the constitutional
legitimacy of laws, and acts having the force of law, of the State and the
Regions; on conflicts regarding the allocation of power among the branches
of the State and on those between the State and the Regions, and
among the Regions; and on charges brought against the President of the
Republic, according to the Constitution,” in cases of high treason and
attacks on the Constitution.
This last duty was originally accompanied by the task of passing judgement
on government ministers for crimes committed during the execution
of their duties. However, this power was exercised only once, in the
Lockheed bribery case in 1979, and was subsequently abolished by a constitutional
amendment in 1989 which transferred this duty to the ordinary
courts.
Another of the Court’s functions, added with Constitutional Law
1/1953, is to review the constitutionality of requests for abrogative referenda
(referendum abrogativo), in which citizens are called upon to vote
whether to repeal a statute.
The Slow Implementation of the Court
The Constitution itself provides for the institution of the Court and its basic functions (Art. 134), its composition (Art. 135), and the effects of its decisions on statutes (Art. 136). Further regulation of the Court and its activities was, however, deferred to subsequent constitutional laws and ordinary laws which had to be approved before the Court could concretely be formed and begin to function. In February 1948 the Constituent Assembly approved Constitutional Law No. 1/1948, which stipulates who can petition the Court and in what way. However, it took another five years before Constitutional Law No. 1/1953 and ordinary Law No. 87/1953 completed the regulation of the Court. Following new elections in 1953, further delays were caused by problems in reaching the agreement necessary to elect the five judges nominated by Parliament by the necessary three-fifths majority. The first full membership of the Constitutional Court was only finalized in 1955. At this point the Court was able to establish itself in the Palazzo della Consulta and to set up the necessary organizational structures, adopting its internal regulations known as the “norme integrative.” Thus, seven years after the Constitution came into force, the Court was finally able to function.
The First Hearing and the First Question
The Court’s first public hearing (udienza pubblica) was held on April
23, 1956. It was presided over by the Court’s first President, Enrico De
Nicola, who had been the provisional Head of the Republic and, for a few
months, the President of the Republic.
The first question regarded the constitutionality of a provision of a
1931 law on public security which required police authorization to distribute
leaflets or to put up posters, and which punished any unauthorized
distribution or posting. The issue was raised by no fewer than thirty different
criminal judges throughout Italy, who questioned the compatibility of
the law with Article 21 of the Constitution, which guarantees freedom of
expression. Arguments that the law was unconstitutional came from some
of the most illustrious Italian lawyers and jurists of the time, including
Costantino Mortati, Vezio Crisafulli and Giuliano Vassalli, as well as Piero Calamandrei,
a member of the Constituent Assembly and an expert
in procedural law and constitutional adjudication, and Massimo Severo
Giannini, former Head of Cabinet at the Ministry for the Constituent
Assembly.
As an initial matter, the Court had to decide the controversial issue of
whether its jurisdiction to review the constitutionality of laws extended to
acts passed prior to the enactment of the Constitution, such as the 1931
law at issue, or whether it was instead limited to laws approved afterwards,
as the Advocate General of the State argued. This issue was of crucial
importance given that a large portion of the legislation of the Italian state
in force at the time and for many years to come had been enacted during
and before the Fascist era. Limiting the scope of constitutional review to
post-1948 legislation would have meant de facto preventing the
Constitution from becoming truly operative in many sectors, thus postponing
the realization of many constitutional guarantees indefinitely. The
Court ruled that all laws, enacted both before and after the 1948
Constitution, could be reviewed and had to be declared invalid if found
to be incompatible with the Constitution. The principles of the
Constitution refer not only to the legislature, but to everyone-citizens,
public authorities and judges alike. The contested legal provision on public
security was thus declared unconstitutional. It was this seminal
Decision No. 1/1956 that paved way for innumerable later judgements
which “swept away” many provisions in old laws that were incompatible
with the new Constitution, in fields where Parliament had failed to do so
on its own.
Some Basic Data
Since 1956 the Court has issued literally thousands of decisions.
In the last three years, between 300 and 500 cases were brought before
the Constitutional Court each year; in the same period, the Court decided
and published (grouping together similar cases) on average approximately
three hundred decisions. The extraordinary work commitment required to
carry out the Lockheed bribery trial in 1978 and 1979 created delays in
the Court’s work on other cases. This backlog was cleared with an exceptional
organizational effort, carried out under the presidency of Francesco
Saja. The Court has since managed to keep up with the flow of cases filed
each year.
At the beginning of the calendar year the President of the Court makes
his annual public address and presents a report on the work of the Court
during the previous year, giving an account of the most important decisions
and statistics on the Court’s activities. The reports are printed and
are available for the public as are the decisions of the Court and the acts
containing the Court’s judgements which are published every Wednesday
in a special issue of the Official Journal (Gazzetta Ufficiale della
Repubblica). Today, the texts of the Court’s decisions, reports and other
documentation can be consulted on the Court’s website (www.cortecostituzionale.
it), as well as in other specialized publications and databases.