The Functions of the Court
Review of the Constitutionality of Laws
Having described the machinery of the Constitutional Court, let us
now examine in detail the functions of the Court, which are outlined in
general terms by the Constitution and by constitutional laws.
The first and, historically, the most important task of the Court is to rule on controversies or disputes “regarding the constitutional legitimacy of the laws and acts having the force of law issued by the State and the Regions” (Art. 134, Italian Constitution). The Court is called on to review whether legislative acts have been enacted in accordance with the procedures stipulated in the Constitution (“formal constitutionality”), and whether their content conforms to constitutional principles (“substantive constitutionality”). Legislative acts cover not only statutes enacted by Parliament, but also delegated legislative decrees (decreti legislativi delegati, enacted by the Government pursuant to authority delegated by Parliament), decree-laws (decreti-legge, emergency decrees adopted by the Government which expire unless converted into permanent law by Parliament), and laws issued by the Regions and the Autonomous Provinces, which have their own legislative power in the Italian constitutional system. By contrast, enactments that are subordinate to statutes, such as administrative regulations, are not subject to direct constitutional review by the Court, but are instead subject to review for conformity with statutes by the ordinary courts. Insofar as statutes must conform to the Constitution, and regulations must conform to statutes, such regulations should also conform to the Constitution, without there being any need for constitutional review of the regulations themselves by the Court.
Who Invokes the Jurisdiction of the Court?
One of the most discussed issues regarding the Court in its capacity of
“judge of the laws”, has been the question of “access” to the Court. As is
generally the case with all judges, the Constitutional Court is not free to
decide autonomously which questions to examine, but must be called on
to do so through specific procedures. Who is authorised to apply to the
Court to pass judgement on the constitutionality of a law? An individual
citizen, the Head of State, the Government, parliamentary minorities, or
The Constituent Assembly did not resolve this issue immediately, but instead deferred the matter to a subsequent Constitutional Law, approved by the Constituent Assembly in February 1948 (Constitutional Law No. 1/1948). Article 2 of the law stipulated that – in addition to Art. 127 of the Constitution, which authorizes the Government to contest regional laws alleged to be incompatible with the Constitution before the Constitutional Court – the Regions can in turn contest laws of the State deemed prejudicial to their own autonomy guaranteed by the Constitution, within a relatively short time after the publication of these laws. This provision has now been integrated into the new text of Art. 127 of the Constitution, with the amendment of Title V of Part II, introduced by Constitutional Law No. 3/2001.
In such cases constitutional proceedings are designed to resolve disputes between the State and Regions regarding the limits of their respective powers, and thus to defend the autonomy of the Regions from encroachment by the central government, and to protect the legislative power of the State against the misuse of power by regional legislatures. All this occurs within the framework of a “regionalized” government, where the Constitution is responsible for allocating power among the State and the Regions, and the Constitutional Court serves as a referee in any controversies that arise between these entities.
Above all, the Constituent Assembly made a fundamental choice as regards the general system of the judicial review of the constitutionality of laws; it stipulated that a law could not be directly challenged before the Court by any party, but that questions of a law’s constitutionality could only be raised by judges in the course of applying that law. Thus, any judicial authority – from the justice of the peace of a small town, to the tax commission of a Province, up to the Supreme Court, or even an official arbitrator – who must resolve a dispute that requires the application of a legal provision, where there is a doubt as to that provision’s constitutionality, has both the power and the duty to certify that question to the Constitutional Court.
The judge cannot simply decide the case as if the law did not exist, that is, by ignoring it, even if he is convinced of its unconstitutionality, but neither is he required to apply that law “mechanically”: if he is unable to confer upon the law an interpretation that enables it to conform to the Constitution, he must instead put the question of constitutionality to the only organ with authority to resolve it–that is, the Constitutional Court. Thus, there are as many ways of access to the Court as there are judges, at all levels. To sum up, one can say that a judge is not obliged to apply a law where there is a doubt as to its constitutionality, but that only the Constitutional Court can free him definitively from the obligation to apply that law by declaring it unconstitutional and thus allowing him to decide the case without taking that law into account. This type of constitutional review is referred to as “incidental,” insofar as the question of a law’s constitutionality arises as an “incident” to ordinary legal proceedings, and is certified to the Court by the judge presiding over those proceedings.
Ordinary Judges as “Gatekeepers” of Constitutional Judgement
In an ordinary case, the question of the constitutionality of a law can
be raised by either of the parties (including the defendant or prosecutor in
a criminal case, the plaintiff or defendant in a civil case, the claimant or
administration in an administrative case), or can simply be raised sua
sponte by the presiding judge, that is, without its being specifically requested
by any party. If one of the parties requests that the question be referred
to the Constitutional Court, the judge is not obliged to do so automatically.
Rather, he must engage in a two-step analysis.
Ai giudici comuni è affidato dunque, secondo un'immagine usata da Piero Calamandrei, il ruolo di "portieri" del giudizio di costituzionalità: ad essi spetta cioè il potere di aprire o chiudere la porta che dà ingresso alla Corte.
In the first place he must offer a reasoned decision as to whether the proposed question is legally relevant in the case at bar; that is, whether the law, the constitutionality of which is in question, is necessary to decide the case: otherwise the question is deemed irrelevant. In the second place, he must determine whether, in his opinion, the challenge has any merit. If the question of the constitutionality of the law appears to be clearly without foundation, the judge must reject the request for constitutional review by the party on the grounds of “manifest unfoundedness.” Where this is not the case, the judge is not permitted to resolve the question himself, and must refer it to the Constitutional Court.
To use an expression coined by Piero Calamandrei, ordinary judges serve as “gatekeepers” of constitutional adjudication, with the power to open or close the door that allows access to the Court.
Initially, it was feared that such a power on the part of judges would effectively impede access to, and the intervention of, the Court; that is, that the “door” would prove too “narrow.” Experience has shown, however, that far from keeping the door closed, ordinary judges open it with great frequency.
The Court and Ordinary Judges: A Permanent Dialogue
Far from leaving the Court without work, giving the ordinary judges
the function of filter or gatekeeper for questions of constitutionality has
generated a significant volume of constitutional litigation. Indeed, in legal
proceedings, statutes are considered not only in the abstract, but also in
relation to their possible applications and consequences in concrete cases.
What is discussed before the judges is not so much the abstract nature of
the rule of law, as the concrete nature of human events. The problems of
constitutionality are thus multiplied given the infinite variety of situations
to which the laws apply.
Moreover, the Constitution is not simply a compilation of detailed legal provisions; it is a text that expresses the underlying principles that inspire the entire Italian legal system. Thus, the constitutionality of a law is rarely a question of a simple conflict between legal provisions and constitutional norms, but of the way in which constitutional principles are rendered concrete in particular legal rules and their application in the real world.
For example, a great many questions (indeed, the greater part of them) are raised by invoking the constitutional principle of equality cited in Article 3 of the Constitution. In order to establish whether or not this principle has been upheld, one must ask whether a particular legal rule, in its application or effect, conforms to the general but important principle that every individual has equal value and that legal distinctions among them must be reasonable. There is rarely a distinct line separating, on the one hand, legitimate distinctions adopted by the legislature in efforts to achieve ever-changing policy objectives from, on the other, constitutionally- prohibited discrimination.
Furthermore, the meaning of different legislative provisions and the way in which these interact are not always clear. There are often a variety of ways to resolve legal problems, and it is the job of the judges to do so by interpreting and applying the laws appropriately and in the light of constitutional principles. It is not unusual for judges, when uncertain as to how to interpret particular statutes, to refer to the Constitutional Court questions that could be avoided by interpreting the laws in accordance with constitutional principles. However, it is not unusual for the Court – the task of which is not to interpret statutes, but to review their constitutionality – to respond by indicating the most correct interpretation, or inviting the judge to do so himself.
This ‘dialogue’ between the Constitutional Court and the thousands of ordinary judges, which represents the greater part of constitutional jurisprudence, is made possible by the system of incidental review of laws adopted by the Constituent Assembly.
The Court and Legislative Discretion
When, therefore, Parliament makes a questionable or controversial legislative
choice, which a judge, called on to apply it, refers to the Court for a review
of its constitutionality, the Court must strike a delicate balance
between its duty to engage in judicial review (to guarantee the observance
of constitutional principles, even against the wishes of a parliamentary
majority), and respect for the legislature’s right to make political choices
which it considers to be in the best interests of the country, and which the
Court has no power to obstruct even if it considers them unwise.
The Court is not a third legislative chamber, to which one can petition to contest or amend legislative choices made for political reasons by elected representatives. The Court’s job is to maintain “boundaries.” If the legislature remains within the limits of the Constitution (which leave ample room for legislative freedom of action), the Court has no power to condemn its actions, even if these appear to be inadequate or mistaken. If, however, the legislature goes beyond those limits, it is the Court’s job to condemn the law or to bring it back within those limits, in order to avoid a violation of the Constitution.
The Time Factor
The “incidental” system of constitutional review means that statutes cannot simply be brought immediately and directly before the Court for review by anyone who claims they are unconstitutional. There must be a pending case in which a judge needs to apply the statute and therefore certifies the question of its constitutionality to the Court. It sometimes happens that the precise meaning of a law becomes clear only over a great deal of time, as it is successively applied in concrete cases. Years may pass before a particular legislative provision of dubious constitutionality is considered by the Court, simply because no judge has had occasion to apply that law. Therefore, an outdated but rarely applied law might be declared unconstitutional decades after its enactment, and even decades after the Constitution came into effect and the Constitutional Court began its work. An example is Article 569 of the Criminal Code of 1930, which automatically imposed the ancillary punishment of loss of parental authority – today, responsibility – upon parents who were found guilty of crimes against the state of family. The provision was declared unconstitutional only with Judgement No. 31 of 2012 and Judgement No 7 of 2013, in which it was stated that the automatic infliction of the ancillary punishment prevented judges from realistically evaluating the interests of minor children in maintaining a balanced and continuous relationship with both of their parents.
The Decisions of the Court
When the Court reaches a decision on the merits of a certified question
regarding the constitutionality of a legal provision, it issues a decision that
either sustains or rejects the challenge. A decision sustaining the challenge,
which declares a legal provision unconstitutional, is known as a pronuncia
di accoglimento ; a decision rejecting the challenge is known as a pronuncia
In some cases, the Court does not reach a decision on the merits of the constitutional question and instead finds the question “inadmissible” for any of several reasons. For example, a question is inadmissible if the certifying judge has not indicated the reasons why resolution of the matter is relevant in the case over which he is presiding, or if he has proposed it in an inherently contradictory way, or if the question does not involve an act having the force of law. In the case of a direct appeal in disputes between the State and the Regions, a constitutional question may be inadmissible if the deadline for lodging an appeal has passed, or if the petition fails to adequately identify the specific object of the appeal. This type of declaration is not unusual, especially in response to certified questions, given the large number of questions raised, as well as a common tendency among judges to certify questions that ultimately turn on interpretations of law rather than questions constitutionality.
At other times, the Court does not reach a decision because, in the meantime, some legislative innovation may have rendered the Court’s decision superfluous. In such circumstances, the case file is returned to the judge who originally certified the question, so that he can decide whether to re-propose the question in the light of the new law.
Declarations of Unconstitutionality and Their Effect
When the Court sustains a constitutional challenge (that is, issues a sentenza
di accoglimento), it declares a law unconstitutional. In this case the
law in question automatically loses effect from the day after publication of
the Court’s decision in the Gazzetta Ufficiale , in accordance with Article
136 of the Constitution. That means that the law can no longer be applied
by any judicial organ. The Court’s declaration is definitive and generally
applicable, in that its effect is not limited to the case in which the question
was certified. Parliament may enact another provision to take its place, but
cannot enact a provision which is identical to the one declared unconstitutional.
Parliament can override a declaration of unconstitutionality only
by amending the Constitution, thus rendering constitutional the legal
provision which was formerly unconstitutional. To do so, Parliament
must follow the special procedures prescribed for constitutional amendments
laid down in Article 138 of the Constitution. And in no event may
an amendment alter the fundamental principles on which the
Constitution is based, such as the Republican form of the State (Art. 139),
or the inviolable rights of the individual (Art. 2).
It is often the case that a declaration of unconstitutionality affects only a portion of a law which is deemed incompatible with the Constitution, leaving the rest of the law intact. In order to reduce the risk of a “legislative vacuum” produced by a declaration of unconstitutionality, the Court carefully describes in its judgment the portion of the law that is abrogated, and sometimes even identifies the provision that will replace it, extrapolating either from the Constitution itself or from the body of national law. These methods have led to talk of “manipulative” or “additive” judgements in the sense that the Court somehow rewrites the law, or adds new elements – always drawn from the Constitution or from other laws – into the existing law in order to make it compatible with the Constitution.
It should be noted that a declaration of unconstitutionality has general effect beyond the case in which the question was certified. Not only does such a decision establish a new legal standard that applies to future events, but it also precludes the application of the unconstitutional provision to past events. To protect established expectations, such a decision has no effect on situations where the effects of the invalidated provision are already entrenched as, for example, when they can no longer be contested in court because a final judgement has been issued, or because a statute of limitations has expired. By contrast, if the Court invalidates a substantive criminal provision that proscribes certain conduct, not only is the law annulled, but final convictions arising from that provision, and for which a sentence is still being served, cease to have effect.
Decisions Rejecting a Constitutional Challenge
When the Court rejects a constitutional challenge (that is, when it
issues a sentenza di rigetto), it declares the certified question “unfounded,”
and the law remains in force. In contrast to declarations of unconstitutionality,
however, declarations of rejection do not have a general, conclusive
effect, insofar as the same claim can be raised subsequently in another
case, perhaps using a different line of legal reasoning or argumentation,
and the Court could agree with such a suggestion of unconstitutionality
on the basis of the new argument or simply by rethinking its prior position.
The Court does not frequently contradict its own judgements, but this sometimes occurs insofar as both the composition of the Court and – within certain limits – the interpretation and application of contested constitutional provisions, change over time. For example, the law that made adultery by a wife punishable as a criminal offence was judged not unconstitutional in 1961 (Judgement No. 64/61), but was subsequently declared unconstitutional in 1968 in that it violated the principle of the moral and legal equality between spouses established by Articles 3 and 29 of the Constitution (Judgement No. 126/68).
Moreover, the case law of the Constitutional Court – like that of any decision-making body the composition of which changes gradually over time – has an underlying continuity of theory and practice which is gradually enriched and refined by an incremental process that clarifies, adjusts, and elaborates the details of constitutional principles. Changes in constitutional case law are also linked to those changes taking place within society and legal culture which reveal changing attitudes and needs. The Constitutional Court, which operates in a concrete historical context, is not immune to the effects of such change, but this does not mean that it is necessarily subject to the whims of public opinion, as this would contradict the role of judicial review as a safeguard of the Constitution.
The Court frequently rejects claims that a legal provision is unconstitutional
not because such claims are unfounded as a constitutional matter,
but because the presiding judge has incorrectly interpreted the legal provision,
and where a different interpretation would render the provision
constitutional. This occurs in the case of so-called “interpretative” decisions
(sentenze interpretative) where a given legal provision lends itself to
differing interpretations, and is premised on the Court’s established principle
that the law must, whenever possible, be interpreted in conformity
with the Constitution.
Interpretative declarations thus endorse a “constitutional” interpretation of a given law, but they are formally binding only on the judge who certifies the question. Other judges are free to interpret the law differently. Generally speaking, however, the judiciary tend to conform to the interpretation of the Court if this will prevent the law from taking on an unconstitutional meaning. According to case law recently handed down by the Court of Cassation, if the Constitutional Court has ruled out a given interpretation, judges (other than the referring judge) are not formally precluded from applying that interpretation to the law. However, it is recognised that the interpretive decision gains authority, including in relation to the unfoundedness of the question of constitutionality of the law. Therefore, usually, should judges deem it impossible to adopt the alternative interpretation given by the Court, they may raise the question of constitutionality anew; and the Court may then sustain the constitutional challenge to the law, recognising that the case law of the ordinary courts does not accept the interpretive solution that would save it from unconstitutionality.
This is part of the Court’s permanent dialogue not only with the judiciary but also with the legislature. At times the Court addresses itself to the legislature in the form of a “warning” or sentenza di monito which contains suggestions and guidance for resolving legislative issues in closer accord with the Constitution.
Disputes Arising Between the State and the Regions, and Between Regions
There is another way, apart from certifying questions, to refer a law to
the Constitutional Court for constitutional review. In the case of constitutional
controversy arising between the Regions and the State, the
Government can appeal directly against a regional law, and a Region can appeal directly
against a national law or a law enacted by another Region.
In these cases, a judgement follows the same rules, has the same range of
possible outcomes, and produces similar effects to those discussed above.
A different appeal mechanism applies when a controversy arising between the State and a Region or among Regions regards not a law, but instead some other sort of enactment (such as a regulation, administrative act, or judicial act). The Region that alleges an encroachment on its constitutional autonomy is authorized to challenge the authority of the State (represented by the President of the Council of Ministers) or another Region. The national Government, in turn, may challenge the authority of a Region (represented by its President) on the ground that its act (as distinct from a statute) exceeds the limits of regional powers or intrudes on the powers of the State.
In such cases, the Court decides where the contested power lies, or how it should be exercised without intruding on the jurisdiction of other branches, and may, ultimately, annul the act found to be illegitimate.
Separation of Powers
Within the category of cases arising out of the separation of powers
(conflitti di attribuzione) the Court is also called on to arbitrate “among
the powers of the State,” when those organs claim that the powers
assigned to them by the Constitution have been encroached upon by
another branch of government. In the past, these conflicts were not subject
to judicial resolution, but were left to political solutions. Because the
Constitution is designed to ensure that an arbitral body impartially applies
the rules governing the allocation powers, such disputes have also been
entrusted to the Constitutional Court.
A conflict may arise, for example, between a judicial organ and a house of Parliament, regarding the immunity guaranteed to Members of Parliament by the Constitution; between the Minister of Justice and the Superior Council of the Magistrature regarding their respective powers over magistrates; between the Government and a public prosecutor regarding the use of classified documents (segreto di Stato); between a Minister and a house of Parliament that has passed a vote of no confidence against him; or between the sponsors of an abrogative referendum and the Office of the Supreme Court that reviews compliance with referendum procedures.
Even the Constitutional Court can find itself in conflict with another body, when its own powers are challenged. In such a case, because there is no third party to serve as a referee, the Court simultaneously operates as both party and judge in the dispute.
Decisions Regarding the Permissibility of Referenda
Constitutional Law No. 1/1953 conferred an additional power upon
the Court, beyond those discussed above, in that the Court must passes
judgement on the permissibility of any referendum requested, pursuant to
Article 75 of the Constitution by at least 500,000 voters or five Regional
Councils, for the total or partial abrogation of a law or an act having the
force of law of the State (decreto legislativo, or decreto-legge).
Initially, it was thought that the role of the Court in connection with referenda was limited to verifying whether the law subject to referendum belonged to one of the four categories of law not covered by Article 75 of the Constitution, that is, taxation laws, budgetary laws, laws authorizing or ratifying international treaties, and laws of amnesty and general pardon. However, in Judgment No. 16/1978 the Constitutional Court, called on to rule on the permissibility of a group of eight referenda, established that in addition to these four explicit grounds for disallowing a referendum, there are others which may be inferred from constitutional principles and from the very nature of referenda. For example, the Court has disallowed requests for referenda in which a single question incorporates several distinct items to be abrogated, thus precluding voters from independently exercising their judgment with respect to each component of the referendum. Likewise, the Court has blocked requests for referenda aimed at abrogating laws the content of which is in some way bound by the Constitution, or which cannot be amended without revising the Constitution itself. A referendum is not permitted if it amounts to an attempt to introduce new legal provisions by rewriting a legislative text rather than an attempt to simply eliminate existing provisions. Nor may a referendum seek to repeal laws required by international or Community obligations, to avoid giving rise to international responsibility on the part of the State without parliamentary approval.
The Court must rule on the permissibility of a referendum after the Central Office of the Supreme Court rules that the request complies with procedural requirements. There is no need for any party to file a petition with the Court to trigger its jurisdiction. The referendum is put to a vote only if the Court approves it.
The law stipulates that petitions for referenda, presented by September 30 each year, shall be examined by the Central Office by December 15, and by the Constitutional Court by the following January 20, so that a The Functions of the Court 5. vote may be held between April 15 and June 15. This is why, when requests for abrogative referenda are filed, the Court convenes a special session in January, with a particularly accelerated proceeding.
The decisions of the Court on referenda have often been at the centre of public and political debate, not only on account of the subjects of the proposed referenda, but also because of the potential impact that these may have on political and parliamentary life.
Given their special political implications, criminal proceedings against
the Head of State or Members of the Government for crimes committed
in the course of the exercise of their functions are traditionally entrusted
to a special organ, or at least to special legal procedures. The Italian
Constituent Assembly adhered to this tradition, establishing that the
Constitutional Court should adjudicate such criminal charges. The fifteen
members of the Court are supplemented in such cases by sixteen Italian
citizens (lay judges or giudici popolari, since they are not necessarily chosen
from among jurists) selected at random, specifically for the trial, from a
list of forty-five people over the age of forty chosen every nine years by
Parliament sitting in joint session.
Only once in its history has the Court been called on, with this full complement of thirty-one members, to preside over a case of this type: in the 1978-1979 Lockheed corruption trial, in which two former Ministers were charged.
In the wake of this experience, which blocked the other activities of the Court for a considerable period of time, it was decided that it would be better to reduce the special criminal jurisdiction of the Court to charges against the President of the Republic. For Ministers, jurisdiction was transferred to the ordinary criminal courts, subject to special procedures (Constitutional Law No. 1/1989).