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Constitutional Adjudication and Interpretation of the Constitution
Italy
Constitutional Adjudication and Interpretation of the Italian
Constitution
Prepared by: Maria Dicosola
CO.CO.A. FINAL PRESENTATION
ITALY
Maria Dicosola
1. CONSTITUTIONAL ADJUDICATION AND INTERPRETATION OF THE CONSTITUTION
The Italian Constitutional Court adopts in many cases interpretative decisions.
We can distinguish first of all between decisions which give an interpretation of the law and
decisions which give an interpretation of the Constitution.
To interpret the law, the Constitutional Court uses the interpretative decisions.
There are two kinds of interpretative sentences: decisions which state that the law is
constitutional as long as interpreted in a sense conform to the Constitution (interpretative
decisions on conformity - sentenze interpretative di rigetto) and decisions which state that a
particular interpretation of the law is unconstitutional, while all other interpretations consistent
with the Constitution are permitted (interpretative decisions on non-conformity - sentenze
interpretative di accoglimento).
The main problem related to these kind of decisions is the effectiveness.
We can understand how much the problem of effectiveness is relevant if we think that, in the
first years of its activity, the Constitutional Court only gave interpretative decisions on
conformity (an example is decision n. 3/1956). The aim of this type of decision was to avoid
creating a normative vacuum. In the first years of activity of the Constitutional Court, this risk
was serious: in fact the Court had to control and to conform the existing legislation adopted
during the fascist regime to the new Constitution. Faced with this hard task, the Court decided
to adopt a technique by which it was possible to save the existing law, reducing at minimum
the risk of normative void. But this technique was not perfect because in some cases ordinary
jurisdictions refused to conform to the interpretation of the Constitutional Court. It’s the
case of sentenza n. 8/1956.
In this case, the Court was concerned with the interpretation of art. 2 Law on public security.
This article gave the Prefect (chief officer) the power to adopt extraordinaire measures. The
problem was connected to the nature of those powers. In the opinion of the Court they were
administrative powers. This means that they are strictly limited in time and space. The Court
ruled that, interpreted in this sense, the norm was constitutional and invited the legislator to
reform the law to make clear that this was the correct interpretation.
The main problem of this decision was that ordinary judges refused to conform their
jurisprudence to this interpretation. This is why the Constitutional Court decided to adopt a
stronger technique of decision, the interpretative sentence on non-conformity: some years
later, on the same norm, the Court gave the sentenza n. 26/1961.
In this decision, the Court asserted that, notwithstanding the invitation in decision n. 2, the
legislator did not reform the law. Moreover, there were some judicial decisions which gave an
interpretation inconsistent with the one given by the Constitutional Court. Therefore, the Court
declared the law unconstitutional, as long as interpreted in the sense expressed in the motives.
Even with this stronger technique of decision, the Constitutional Court was not able to assure
the effectiveness of the interpretative decisions.
Indeed in the Italian legal system the body which has the power to give the final interpretation
of the law is the Court of Cassation (the supreme ordinary court). So still faced with the
interpretative sentences of the Constitutional Court, in many cases, the Court of Cassation
refuses to conform its jurisprudence to the interpretation given by the constitutional judge.
To describe this situation, we usually speak of the fight between the Courts.
The last case of the fight between the Courts concerns the duration of preventive detention in
prison, regulated by art. 303 c. 4 criminal procedure code.
With sentence n. 292/1998, the Constitutional Court gave an extensive interpretation of the
norm, adding another case of release, in favour of the inmate. This interpretation was
confirmed in ordinanza of the Constitutional Court n. 429/1999 and the Court of Cassation did
not refused to conform to it. But with sentenza n. 23016/2004, Court of Cassation changed its
jurisprudence and decided to no longer conform to the interpretation given by the
Constitutional Court, but to adopt a more restrictive interpretation.
The Court of Cassation clearly affirmed that interpretative decisions of unconstitutionality
don’t have an effectiveness erga omnes, differently from decisions which declare the
definitive unconstitutionality of the law. Therefore there is only a negative effect for the judge
who appealed the Constitutional Court. This means that he cannot give the interpretation
declared unconstitutional by the Constitutional Court, but he conserves the freedom - and the
duty - to freely interpret the law, as long as the interpretation is consistent with the
Constitution.
The last decision about the duration of preventive detention in prison is sentenza of the
Constitutional Court n. 299/2005.
In this decision, the Court, summarizing the jurisprudence – ordinary and constitutional –
on art. 303 cpp, recognised that the interpretation of Court of Cassation was consolidated and
was as well life law. Therefore, it was not possible to give an interpretative decision.
Thherefore the Constitutional Court decided to declare the norm simply unconstitutional.
To interpret the Constitution, the Constitutional Court uses the decisions with “manipulating
effects†on Constitution.
These decisions are also called “constitutional reform decisions†: in fact, by the
interpretation of the Constitution, the Court invents new constitutional rules.
Here there are some examples.
Sentenza n. 16/1978
This decision faced the problem of the cases of inadmissibility of referendum.
The Court stated that in Italian Constitution there are expressed and implicit limits at the
admissibility of referendum. Expressed limits are enumerated in art. 75 Const. Implicit limits
can be deduced by the interpretation of this article.
Interpreting art. 75 Cost., the Court stated that referendum is not admissible:
- When citizens are required to decide on a lot of different questions (limite
dell’omogeneità )
- On constitutional laws
- On law of the Parliament which applies the Constitution (leggi a contenuto costituzionalmente
vincolato).
Sentenza n. 15/1982
This case arose from art. 10 of decreto legge 15 dicembre 1979, n. 625, which allows, in
exceptional cases (internal terrorism), preventive arrest for longer than usual.
In the reasoning of the Court, in this case preventive arrest duration did not violate art. 13
Const. (personal freedom) and art 27 Const. (right to defence), because the suspension of
these rights was justified by more relevant security requirements.
In these decision the Court introduced the concept – new in Italian Constitutional law – of
suspension of human rights.
Sentenza n. 170/1984
This case analysed the relationship between national and European law.
Interpreting art. 11 Const., the Constitutional Court decided that when national law is in
contrast with European law, the judge should apply European law. Because, in the fields
reserved to it the European law is prevalent on antecedent or successive national law.
The case is mainly important because the Constitutional Court overruled its jurisprudence.
Indeed, since 1984, if Italian laws were in contrast to the European law, they were considered
unconstitutional for violation of art. 11 Const. This solution was founded on the idea that, to
not reduce the sovereignty of Parliament, the European law was not directly applicable.
Therefore, the application of incompatible European law was possible only in cases of
declaration of unconstitutionality of national law.
In this decision, changing the interpretation of article 11, the Court argued that the European
law prevails on the Italian law, not in terms of hierarchy of norms, which implies a problem of
sovereignty, but in terms of attribution of competences: in the fields reserved to the European
law, this is the exclusive rule. Therefore, in case of incompatibility between national and
European law, the judge is not obliged to appeal the Constitutional Court, but can decide to
apply the European law instead of the national law.
Therefore, in the opinion of the Court, the question of unconstitutionality of national law, by
contrast with art. 11 Const., was not admissible.
With the third decision mentioned, the Constitutional Court introduces a type of diffuse judicial
review of legislation, which all the ordinary judges can apply when domestic law is inconsistent
with the European law, although it’s not contained in the text of the Constitution.
The technique of decision with manipulating effects on the Constitution does not pose the
same problem of interpretative decisions: in the Italian legal system, the Constitutional Court
is the body specialised in the interpretation of the Constitution. The real problem is: how far
can the interpretation of the Constitutional Court go? Can the constitutional interpretation be
so broad to be similar to a reform of the Constitution? Can the Constitutional Court adopt an
interpretation founded on “values†, which go over the formal meaning of the text?
The debate is still open.
On this point, we can remember the opinions of two Italian scholars.
Alessandro Pace (Metodi interpretative e costituzonalismo Quad. Cost., 2001) affirms that the
interpretation founded on values is dangerous: it gives the Constitutional Court a very broad
power, but this power belongs to the Parliament. Only an interpretation which respects the
formal norms of the Constitution is admitted, if we do not want to violate the principle of
separation of powers.
Franco Modugno (Interpretazione costituzionale e interpretazione per valori,
www.costituzionalismo.it) on the contrary, says that the Constitutional Court is the most
important interpreter of the Constitution. In this activity, the Court is free enough to integrate
codified constitutional law. But the separation of power is warranted by respecting textual and
logic limits, in the interpretation given by the Constitutional Court. Thereafter, the
interpretation is always connected to the text of the Constitution.