Constitutional Court: what it is, composition, functions, and rulings
Composition of the Constitutional Court
The Supreme Court is composed of 15 judges who are chosen for distinguished academic merit, experience in the field of law, and for meritoriousness in the field of higher jurisdictions; specifically, according to Art. 135 of the Constitution, the members are appointed as follows:
5 by the supreme ordinary and administrative magistracies (3 by the Court of Cassation, 1 by the Council of State, 1 by the Court of Auditors);
5 appointed by the Parliament in joint session, by secret ballot and a majority of ⅔ of the members;
5 chosen by the President of the Republic from among magistrates, including retired ones, and ordinary professors of law.
These, who remain in office for 9 years and are not eligible for re-election, after their appointment, elect by secret ballot the President of the Constitutional Court, who, on the other hand, remains in office for 3 years and is eligible for re-election.
Its main functions
Our Constitution assigns four fundamental functions to the Constitutional Court:
overseeing the legitimacy of State laws;
to judge conflicts of attribution;
admitting or not admitting requests for abrogative referendums;
ruling on charges against the President of the Republic.
Obviously, given the value of this institution, it is essential that the independence of the Court from the political bodies that appoint them is ensured, mainly through the length of the term of office of the magistrates that make it up (which exceeds that of all other institutions).
The main function of the Constitutional Court is the exercise of control over the constitutionality of norms passed by the institutions currently in office; this judgement is only instituted incidentally.
In the incidental judgement, the initiative lies with the parties to the case or the judge on the merits, when doubts as to whether a rule complies with constitutional principles are such that they prevent the case from being resolved, obviously the ‘doubt’ must be well-founded and not manifestly inadmissible.
In addition, the judgement on the constitutional legitimacy of a law can also be brought by way of principal action, or ‘action’, when it is the Government that has doubts about the constitutional legitimacy of a specific law, or the way it was voted on.
Pursuant to Article 134 of the Constitution, then, the Supreme Court also has the task of ruling on any conflicts of attribution, between State and Regions, and between State bodies.The conflict of attribution is that situation in which several bodies claim the same competence, or conversely refuse their own attribution.
It is worth emphasising how, in general, over the years, the Constitutional Court has ruled on an allegedly ‘impossible’ legitimacy of the individual citizen to the conflict of attribution between the powers of the State.
Again in 2019, the Court returned to the subject, namely the legitimacy of a private citizen to the conflict of attributions between the powers of the State. In this regard, the number of appeals brought by an individual in such a forum has multiplied in recent years, however, the Constitutional Court does not seem to have ever made significant openings or shown any willingness to do so. Indeed, in the context decisions pronounced in recent years, the Court has stated that “in no case can an individual citizen be deemed to be invested with a constitutionally relevant function such as to entitle him to raise a conflict of attribution under Article 134 of the Constitution and Article 37 of Law No. 87 of 1953”.
Dictum, the latter, only partly tempered by the circumstance that, more recently, the expression “in no case” “has given way to a more contextualised statement”, according to which: “the quality of citizen-elector does not imply that he is ‘invested’ with a constitutionally relevant function such as to entitle him to raise a conflict of attribution”.
Despite this, hypotheses in which an individual citizen brings the action are not uncommon! By way of example, think of the conflict raised by a person who defined himself as a member of “the constitutional body ‘electoral body'”, or that cultivated by a private individual “in the capacity of a citizen who performs the constitutional duties of loyalty and defence of the Republic and the Constitution”, insofar as he is “directly invested by the Constitution with the public function of constitutional rank consisting in the defence of the fundamental and intangible core of the republican and democratic form of the State”. In this regard, the Constitutional Court has ruled out that the appeal filed by a private citizencan be admitted where it would otherwise be possible to raise the issue of constitutional legitimacy in an incidental manner; moreover, it has reiterated the need for “an injury to the sphere of attributions determined by constitutional norms to be raised in unequivocal terms”. The litigation must have a wider public importance so as to apply to other citizens.
Returning to the attributions of the Supreme Court, the latter, after the Court of Cassation has expressed its opinion on the legitimacy of the abrogative referendum, has the task of assessing whether the referendum text is not contrary to what is established by the Constitution; subsequently, if the judges declare the referendum admissible, the President of the Republic is obliged to call it, otherwise, if they rule to the contrary, the inadmissibility of the referendum is only valid for the specific case.
The Constitutional Court also has the task of judging the guilt of the President of the Republic after the ‘indictment’ by the Chamber of Deputies. The ‘indictment’ can only be brought when there is a suspicion that the President of the Republic is guilty of high treason, i.e. collusion with enemy states, an attack on the Constitution, i.e. violation of constitutional norms with the intent to subvert the order of the Constitution. As can be deduced from what has been specified above, our legal system favours a form of access to the review of constitutionality of the incidental type, i.e. through the ‘filter’ of a judge who, in the course of a trial, finds himself having to apply a legislative provision whose constitutional legitimacy he doubts.
Logically for this type of access there must be a trial as an opportunity for the promotion of the quaestio legitimitatis, therefore private parties and citizens can collaborate, assisted by a specialised lawyer, with the referring judge and the constitutional judge in the promotion and resolution of doubts on the constitutionality of the law.
In this regard, the law firm of criminal lawyers International Lawyers Associates can provide assistance to citizens in the promotion of this type of judgement; indeed, within International Lawyers Associates work some of the most specialised lawyers on the Constitutional Court, who can boast decades of experience in assisting private parties in the establishment of the incidental review of constitutionality.
Proceedings before the Constitutional Court
How does a constitutional judgment take place?
First of all, the judge who has raised the issue must notify his order to the parties to the proceedings and to the Prime Minister and have it communicated to the Presidents of the Houses of Parliament or the President of the Regional Council concerned; he then forwards it to the registry of the Constitutional Court.The order received herein shall be published in the Official Gazette.
From the date of publication, the period within which the parties taking part in the proceedings may submit their submissions and arguments shall commence; in addition, the parties may lodge written pleadings.
The law provides that the President of the Council, who may, in certain cases, take part in the proceedings before the Court, is defended before the Court by the Advocate General of the State.
The forms in which cases are heard are twofold, i.e., there may be a “public hearing”, i.e., a meeting open to the public, at which, after the Judge-Rapporteur has explained the matter, the lawyers representing the parties in the case present their arguments before the Court assembled.
Alternatively, the case may be heard in the courtroom, relying solely on written documents; this simplified procedure is used when there are no parties registered with the Court.
The Court, whether in open court or in chambers, sits in its full composition of fifteen judges.
The President then appoints a judge-rapporteur for each specific case. The choice of rapporteur is important, because it is the one who, by delving into all aspects of the case, proposes to the panel the terms of the question and possible solutions.
The Court meets in a public hearing, in the special courtroom of the Court building, normally every fortnight, on Tuesday mornings at 9.30 am. Behind the horseshoe-shaped bench sit the judges with the President at the centre, in fixed seats, from the most senior in terms of office to the most recently appointed.
In front of all the judges sits the Lawyers’ bench who intervene, no more than two on each side, to argue the cases. Obviously, they must be International Lawyers Associates in proceedings before the Supreme Court, and especially lawyers, such as those who are part of the International Lawyers Associates team, qualified to defend before the ‘higher courts’; for this, enrolment in a special register is required!
These advocates take the floor in the order indicated by the president, after the rapporteur judge’s report. Usually, the judges listen to the lawyers who present their arguments without interruption. A space is reserved behind the lawyers for journalists and study assistants.
It is then in chambers, in the total absence of publicity, that the discussion between the judges takes place to decide the issues. In fact, it must be considered that the Court’s decision does not only consist of the so-called operative part of the ruling but, above all, of the reasoning behind it.These are important because they constitute the nucleus of precedents that may be recalled in cases that the Court is subsequently called upon to decide in the same or similar matter.
All Supreme Court pronouncements
In order to shed further light on the work of this fundamental body, it is only right to specify all the rulings that may be pronounced by the Consulta.
These can be of five types.
1# Conceding Judgments
Conceding judgments are those in which the Court, having made an assessment of the issue of constitutionality, upholds it, declaring the law under review unconstitutional.
These types of pronouncements take effect in relation to everyone from the day after publication of the judgment in the Official Gazette. This implies that any other judge who finds himself applying that rule to decide a dispute can no longer use it.
As a rule, however, the effectiveness of upholding judgments is retroactive, i.e., it only affects relations arising thereafter.
There are, however, some exceptions to this “rule”, inasmuch as some judgments of the Court are retroactive and have effect on situations which are still pending (e.g. judgments in progress, i.e. judgments which have not yet become final) or when judgments are concluded with an irrevocable criminal conviction.
2# Rejection judgments
Dismissal judgments, whereby the Court, having judged the question of the constitutionality of the law, considers the issue to be unfounded; these judgments do not have effect with regard to everyone, but only between the parties involved in the constitutionality judgment.
3# Interpretive judgements
Interpretative judgements, concerning the interpretation given to a law. They may be either upholding, when the Court declares a given interpretation of the law to be unconstitutional and imposes an interpretation in conformity with the Constitution, or rejecting, when it declares the law to be constitutionally legitimate provided it is interpreted in a given way.
4# So-called manipulative upholding judgements
So-called manipulative upholding judgments, whereby the Court reviews the content of a law in order to avoid declaring it unconstitutional and thus prevent the formation of a legal vacuum in the system. These have erga omnes effect and are distinguished according to the type of intervention made by the Court in: additive, ablative, and substitutive.
5# Judgments of partial unconstitutionality
Judgments of partial unconstitutionality, whereby the Court eliminates only that part of the law considered unconstitutional.