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| Ugo De Siervo, President of the Constitutional Court |
January 25 was filed Judgement 23/2011 first issued on 13th of the month by the Constitutional Court, ruling in which was partially rejected the Law 51/2010, entitled Provisions for refusal to appear at the hearing but known as "legal impediment".
In accordance with this Act, the President of the Council of Ministers and the Ministers of the Republic constitute cause for such failure to appear in court, besides the activities defined in Law 400/1988, Legislative Decree 303/1999 in and the Decree of the President of the Council of Ministers of 10 November 1993 , including preparatory activities and consequential damages and any activities deemed co-essential, function of government. What an
is or is not cause for such failure are also entitled to the Presidency of the Council of Ministers, and the court has no choice but to postpone the hearing to a later date, up to a maximum of six months unless duplication. This period of suspension is not counted toward the requirement.
The law is considered applicable also to the processes under way, of every grade and type.
to the degree of adherence in terms of content and timing of the law with the actual situation faced by the Chairman of the Board, by a narrow ruling on the Mills case, at least at first instance, approaches inexorably despite the imminent requirement, jump immediately evident in the content of the law system di fattuale autocertificazione messo in mano alla Presidenza del Consiglio.
Il Presidente del Consiglio è colui che certifica se le azioni del Presidente del Consiglio costituiscono legittimo impedimento alla presentazione del Presidente del Consiglio in tribunale.
Questo meccanismo è sostanzialmente ciò che ha spinto le sezioni I e X del Tribunale di Milano, ed il GIP del medesimo tribunale, a sollevare tra il marzo ed il giugno 2010 le eccezioni le eccezioni di costituzionalità alla legge che hanno poi portato alla sentenza della Consulta del 13 gennaio 2011.
Al momento dell'esame della legge, la Corte Costituzionale ha votato a larga maggioranza - ma non all'unanimità - per una bocciatura parziale del testo. Hanno discordant opinion judges Finocchiaro, Mazzella and Napolitano, who were inclined rather to the failure of all the exceptions of unconstitutionality.
In detail, has been completely rejected the paragraph 4 of Article 1, paragraph 3 partially rejected, promoted paragraphs 2, 5 and 6 and also promoted the first paragraph in the form re-interpreted by the Court.
While the effects of rejection are evident at the political level, with the imminent resumption of trials of Silvio Berlusconi, it is equally important to understand the motivations that led to the rejection, even partial, of the law.
According to the consultation, it is stated in the ruling, the characteristics of self and continuity that paragraphs 3 and 4 of Article 1 of the Act are cause for such failure, as they had raised sections I and X of the Court of Milan and the GIP of the same court, a continuous form of immunity in the short term compared to the non-Justiciability provided by Lodo Schifani and by Alfano. The judgments
24/2004 and 262/2009 for the two awards are in fact cited a legal precedent in assessing the law on such failure, he conveyed the previous sentence in a decisive way towards removing the causes of continuatività is automatic - albeit factual and non-formal - the state of impediment.
Similarly, the decisions 225/2001, 263/2003 , 284/2004 and 451/2005 restrict and regulate the relationship between the powers in cases where the accused parliamentary roles: the Court held that the position of 'Parliamentary defendant "is not assisted by special constitutional guarantees" and against it are fully applied "the general rules of the trial" , while taking due account of the need to charge so that is programmed the schedule of hearings to avoid overlap with the days of the meeting of Parliamentary . No need then for additional protection laws governing the rules of court appearance of those elected by the people, because the existing law already covers the full series.
The Court then determined that the law on such failure as proposed provides for an exception to the normal rules of a process, the points where the accused can afford to furnish general and unspecified reasons and the inability of the court as an impediment to evaluate and possibly reject the impediment.
In detail the individual points of the law, the consultation considered that paragraph 1, which lists general points constituting such failure, is declared as unconstitutional because there is at least an interpretation of the law which is in line with the dictates of Constitution. Will be the judge to declare from time to time the spirit with which the impediment was required. It then reads the attempt to re-interpretation of the law only in a spirit of genuine cooperation between the powers of state the text of this section does not go against the Constitution, the judge and evaluate each time it is used if it is or is not in the groove. Paragraph 3
effectively limits the ability of the court to reject the impediment to only two cases: that the reason given is not to be, or may not be attributable to a function co-essential work of government. The Court has declared unconstitutional the paragraph to the extent that it limits the functions of the court than expected from ' Article 420-ter of the Code of Criminal Procedure 2. According to the consultation, in fact, the law under consideration would deprive the court of the possibility of entering into the merits of the reasons given and to judge the level of compulsory nature of the urgency of the summons in court: paragraph 3 of the Act enables a straightforward assessment of the binary possibility that the alleged commitment is or is not cause for such failure, and, if so, allows the judge to just move the hearing. The ruling returns the Look instead to the judiciary the final say on the assessment of the impediment, allowing an assessment of not only quantitative but also qualitative.
Paragraph 4, finally, with the procedure of self replaces existing law with an exemption applies only to the figures of the Prime Minister and Ministers. In addition to being contrary to Article 3 of the Constitution, the procedure provided for in paragraph 4 prevents the court to assess the various commitments given to prevent, since the form is valid time, ongoing and potentially repeatable in the time to ' infinity without the need to specify the precise daily commitments that causes obstructions.
A large majority, therefore, the consultation has rejected the spirit of a law that would have heavily altered the balance of power from judiciary to the executive, creating a permanent shield to the processability of the powers that be.
The strong references to the Constitution, the Code of Criminal Procedure and the previous judgments of the Court on the show there is strong structural system to defend the fundamental right of equality before the law and the right / duty to face justice in a fair process rights, despite continuous efforts we are seeing in recent years, it is not so easy to bend rules tailored to deal with situations much - too much - personalistic.
1: The search page of the judgments of the Constitutional Court becomes parte delle fonti del blog
2 : il Codice di Procedura Penale entra a far parte delle fonti del blog
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