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On December 21st, the mandates of three judges of the Italian Constitutional Court will expire, creating a total of 4 vacancies. While Parliament is responsible for filling the seats, political parties are far from reaching an agreement on who should get appointed. The majority’s strategic obstruction of the appointment process in combination with Meloni’s assertions that it is up to her political majority to “deal the cards” for these elections raise the specter of the Court’s politicization. While the Italian legal system has several safeguards to preserve the impartiality and effectiveness of its Constitutional Court, these do not immunizes it against practices that could slowly and almost imperceptibly undermine its independence.

In countries where populist movements have garnered significant electoral support, their self-proclaimed role as the sole representatives of the true will of a unified people has led them to assert that their democratic legitimacy surpasses the technocratic authority of constitutional courts. The requirement of supermajorities in the election of Italy's constitutional judges has, in combination with a changed political landscape, led to political deadlocks, entailing the risk of jeopardizing the Court’s operability and partisanship-based appointments.

The Italian Constitutional Court (ItCC) has shown a recent trend towards a "re-centralization" of constitutional review. This inclination represents the Court's attempt to "regain" the space that it had conceded to both national and supranational judges, but it also lies within a wider perspective, which includes the legal, political, cultural, and social context within which the Court works. In fact, although the national rules regulating the ItCC's functions remain unaltered, the latter's role seems nevertheless to change across time, thus suggesting that change occurs elsewhere. In other words, as the context changes so do the Court's role, its case-law, and its jurisprudential practice. The second thesis the Author emphasizes is the idea that the context deeply affects the development of the ItCC's doctrines. An understanding of the past becomes helpful to comprehend both the present and the dynamics that underlie the Court's relationship with the legislator, ordinary judges, and the doctrine. An overview of the past is also useful to highlight that the ItCC's peculiarities surfaced from the very beginning of its experience, and that it was through those same characteristics that the Court strengthened its action and role. Although the national rules regulating the Court's functions remain unaltered, the latter's role and doctrines seem nevertheless to change across time; this is because it is the context that changes. The first and second thesis come together and merge into the third and final one, which conveys the idea that the judicial seasons' diversities, as well as the doctrines' evolutions across time, reflect the ItCC's constant attempt to hoard as much legitimization as possible. Although it is still not possible to fully grasp the achievements produced by the judicial season of "re-centralization" that is still under way, it is fair to say that the Court has proved to be not merely a sentinel that guards the borders between functions and powers, but rather a body that is fully merged within the context, greatly influenced by it and deeply concerned with keeping constitutionally sound and efficient relations among powers. For what concerns its relationship with political discretion, the evolution of its doctrines has opened the door to possible conflicts with the legislator, as well as with ordinary judges and the EU legal order; however, these frictions have always existed and they have repeatedly surfaced in the history of the Italian legal order. [ABSTRACT FROM AUTHOR]

This article examines the Italian Constitutional Court's Judgment No. 192/2023 on a question of constitutional legitimacy raised in the course of the criminal trial against four Egyptian nationals for the murder and torture of Italian doctoral researcher Giulio Regeni in Egypt in 2016. By declaring the partial unconstitutionality of the Italian legislation on in absentia proceedings, the Court's decision allowed the trial to proceed even in the defendants' absence. The judgment is assessed against a backdrop of institutional inertia in securing justice for Regeni. The article first analyses the significance of the Court's decision, highlighting its implications for international human rights law and, in particular, the duty to exercise criminal jurisdiction over acts of torture under the UN Convention Against Torture. It then critiques the emphasis placed on criminal accountability, as illustrated by Regeni's case. It argues that such emphasis, combined with the inadequacy of other State responses, risks diluting the right to truth and accountability in its broader sense. [ABSTRACT FROM AUTHOR]

Copyright of Revista Española de Derecho Constitucional is the property of Centro de Estudios Politicos y Constitucionales and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

Surrogacy is an arrangement by which a surrogate mother bears a child for another couple or person, and is often thought of as a form of 'treatment' for couples (or even individuals) with fertility or sterility issues. Still, surrogacy entails ethical issues related to gender, fundamental human rights, exploitation and inequality. Starting from the Italian state of affairs, the authors have set out to briefly expound upon such complexities, taking into account relevant jurisprudence on the subject, with a particular focus on inter-country surrogacy and second-parent adoption, which can themselves engender significant legal dilemmas. When residents of countries where surrogacy is banned travel abroad and hire a surrogate, that may lead to considerable legal hurdles as well. In Italy and elsewhere, the courts have all too often had to fill the vacuum left by the lack of targeted legislation. The Italian Constitutional Court has recently urged lawmakers to enact new legislation to uphold the minor's best interests. In fact, while some countries recognise the surrogate as the legal parent, others ascribe parenthood to the commissioning parents. That discrepancy can lead to a 'clash of laws', resulting in children ending up stateless and unable to maintain an already established family relationship. Just like fundamental protection of human rights and public health, the regulation of revolutionary technologies that change the very notion of reproduction, parenthood, and human identity needs to be governed by uniform standards, shared at least by nations which espouse common core values. [ABSTRACT FROM AUTHOR]

(Series Information) European Papers - A Journal on Law and Integration, 2020 5(1), 493-522 | European Forum Insight of 19 June 2020 | (Table of Contents) I. Introduzione: il quadro è chiaro... ma non troppo. - II. Le più recenti pronunce della Corte costituzionale: la sentenza n. 11 del 2020. - III. Segue: la sentenza n. 44 del 2020. - IV. Prove di "doppio rinvio contemporaneo": le ordinanze della Corte di Appello di Napoli in materia di licenziamenti collettivi. - V. Il necessario recupero del ruolo centrale del giudice comune. - VI. Il rapporto tra parametri interni e parametri europei nel giudizio della Corte costituzionale. | (Abstract) This Insight deals with the recent case-law of the Italian courts regarding the relationship between domestic and Community rules on fundamental rights, taking into account in particular the substantial and procedural problems that arise when a law is suspected to violate both the Charter of the Fundamental Rights of the EU and the Italian Constitution. After an analysis of the most recent rulings of the Italian Constitutional Court on this subject, it focuses critically on the initiative, taken by a court of appeal, to adopt simultaneously two different orders of referral to the Court of Justice and the Constitutional Court on the same matter, thus creating a difficult situation to manage by both Courts. Finally, this article suggests that the best solution to prevent conflicts among the various actors can only start form a revaluation of the role of the national judge as "juge de droit commun du droit de l'Union européenne".

Italy was one of the countries that signed the Treaty of Rome in 1957, which created the European Economic Community. Despite initial resistance and the numerous difficulties encountered during subsequent years, the choice to commit to Europe was widely shared, becoming irreversibly embedded in the national consciousness. However, whilst other legal systems chose at various stages of their European journey to amend their constitutions by incorporating a European clause, this never happened in Italy. Italy did not change its Constitution as a result of joining the European Economic Community, and has not done so subsequently after becoming part of the European Union with the Maastricht Treaty, following the adoption of the Treaty of Lisbon, nor indeed at any subsequent stage in the process of European integration. It was only in 2001, with the reform of Title V of the Constitution involving changes in the allocation of powers between the state, the regions, and the local authorities, that the expression "Community law" was incorporated into the Constitution. Given the absence of a European clause, the relationship between the Italian Constitution and Europe has been shaped by the Constitutional Court. First and foremost, it interpreted Article 11 of the Constitution, which lays down a generic clause intended to enable the exercise of sovereign powers by international organizations, in such a manner as to bring the European project within its scope. The Constitutional Court developed its case law in its subsequent decisions, even though progress was at times hardfought, and in some cases marked by contradictions; Italy's cohabitation with Europe was undoubtedly welcome, but this did not mean that it was painless. [ABSTRACT FROM AUTHOR]

The primacy of EU law continues to be challenged by domestic courts relying on the notion of constitutional identity. These challenges are no longer limited to the Solange case law of the German 'Bundesverfassungsgericht' (BVerfG) and the 'controlimiti' doctrine of the Italian 'Corte Costituzionale'. More recently, the Hungarian Constitutional Court introduced the notion of ‘historical constitutional identity’ – at a time when the rule of law and independence of the judiciary are in retreat in several parts of the EU. Against this backdrop, this article argues that the Court of Justice of the EU (CJEU) missed a formidable opportunity to clarify the outer limits of constitutional identity under Article 4(2) of the Treaty on European Union in 'Taricco II'. Given prudential considerations as well as parallel legislative developments, it can be explained why the CJEU chose to side-step the issue. However, in the 'Corte Costituzionale', the CJEU found a cooperative and EU law-friendly interlocutor which would have allowed it to clarify these limits on its own terms. The CJEU cannot and should not hide from this issue forever. The next domestic court to raise this issue may be less interested in judicial dialogue and more in undermining the primacy of EU law in ever more extensive ways.

(Series Information) European Papers - A Journal on Law and Integration, 2018 3(2), 843-855 | European Forum Insight of 14 July 2018 | (Table of Contents) I. Introduction. - II. Limitation and principle of legality in criminal matters according to the CJEU. - III. The Taricco II judgment. - IV. Implications: Italian Constitutional Court's judgment no. 269/17. - V. Conclusions. | (Abstract) The interaction between European sources and national provisions has increased the degree of uncertainty with regard to the nature of time limitation in criminal law in the Italian system. In this respect, in case M.A.S. and M.B (judgment of 5 december 2017, case C-42/17) the Grand Chamber of the CJEU answered the question referred for a preliminary ruling by the Italian Constitutional Court concerning the connection between the internal principle of legality in criminal matters and EU law. Afterwards, the Italian Constitutional Court replied, with judgment no. 269/17, by taking a stance over the primacy of EU law. In this Insight the issue of what kind of conflicts is at stake in the context of multilevel dialogue between supranational and constitutional courts will be considered, with special focus on the Italian Constitutional Court judgment no. 269/17. Particularly, in this judgment, the Italian Constitutional Court questioned the Court of Justice competence in interpreting the Charter of Fundamental Rights of the European Union and the constitutional traditions common to the Member States provided for by Art. 6, para. 3, TEU. Finally, the Author will introduce some new legal developments that could arise from this multilevel exchange of viewpoint and will further illustrate their relevance to the whole community.

The article analyzes the recent ruling of the Italian Constitutional Court amending article 580 of the Italian Criminal Code, relating to aid and incitement to suicide. According to the first Assize Court of Milan, article 580, conceived in 1930, reflects the fascist culture of its author. The problem of the Constitutional Court was therefore to establish whether a democratic state can still place limits on aid for suicide and in what terms it can do so. [ABSTRACT FROM AUTHOR]

The primacy of EU law continues to be challenged by domestic courts relying on the notion of constitutional identity. These challenges are no longer limited to the Solange case law of the German Bundesverfassungsgericht (BVerfG) and the controlimiti doctrine of the Italian Corte Costituzionale. More recently, the Hungarian Constitutional Court introduced the notion of 'historical constitutional identity' - at a time when the rule of law and independence of the judiciary are in retreat in several parts of the EU. Against this backdrop, this article argues that the Court of Justice of the EU (CJEU) missed a formidable opportunity to clarify the outer limits of constitutional identity under Article 4(2) of the Treaty on European Union in Taricco II. Given prudential considerations as well as parallel legislative developments, it can be explained why the CJEU chose to side-step the issue. However, in the Corte Costituzionale, the CJEU found a cooperative and EU law-friendly interlocutor which would have allowed it to clarify these limits on its own terms. The CJEU cannot and should not hide from this issue forever. The next domestic court to raise this issue may be less interested in judicial dialogue and more in undermining the primacy of EU law in ever more extensive ways. [ABSTRACT FROM AUTHOR]

Copyright of Revista Española de Derecho Constitucional is the property of Centro de Estudios Politicos y Constitucionales and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

(Series Information) European Papers - A Journal on Law and Integration, 2018 3(1), 445-458 | European Forum Insight of 8 January 2018 | (Table of Contents) I. Premessa. - II. Il giudizio della Corte. - III. Un tentativo di ricostruzione critica della pronuncia. - IV. La tutela dei diritti fondamentali. - V. Il principio di legalità e il divieto di retroattività. - VI. Il principio di legalità e la sufficiente determinatezza del regime di punibilità. - VII. L'identità costituzionale e i controlimiti. - VIII. Conclusioni. | (Abstract) The purpose of this work is to analyze the decision of the Court of Justice in M.A.S. judgment (Court of Justice, judgment of 5 December 2017, case C-42/17, M.A.S. and M.B. [GC]), after the reference for preliminary ruling of the Italian Constitutional Court, concerning the connection between the internal principle of legality in criminal matters and the European Union law. The Court of Justice declares, inexplicably, that national provisions on limitation in criminal matters may not fall within the scope of European Union law. Consequently, the Italian Republic is free to provide that in its legal system those provisions form part of substantive criminal law, and are thereby subject to the principle that offences and penalties must be defined by law. It follows that national courts have to ascertain whether the application of Taricco decisum leads to a situation of uncertainty in the Italian legal system about the determination of the applicable limitation provisions, that would produce a violation of the principle that the applicable law must be precise. If so, the national court is not obliged to disapply those provisions. With this decision the Court of Justice has heavily hit the principle of primacy. Perhaps, it could have better remarked another element of the principle of legality: the reserve of law. So it would have been possible anchoring to "normative", and "objective" parameters the requirement that the applicable law must be precise, and avoiding the national court could act in absolute discretion. And if the parameters were finally founded within the European law, the primacy would not have been compromised.

(Series Information) European Papers - A Journal on Law and Integration, 2017 2(3), 987-1004 | European Forum Insight of 7 September 2017 | (Table of Contents) I. Introduzione. - II. Brevi cenni sul caso Taricco e sul suo seguito. - III. La sentenza Taricco va confermata tout court o è possibile attenuarne il rigore?. - IV. Potrebbero essere meglio precisati i criteri della sentenza Taricco? - V. Potrebbe l'art. 53 della Carta dei diritti fondamentali permettere di continuare ad applicare in Italia gli artt. 160 e 161 c.p. in quanto più favorevoli del livello di tutela garantito dall'art. 49 della stessa Carta e dall'art. 7 CEDU? - VI. Potrebbe il rispetto della "identità nazionale" degli Stati membri (art. 4, par. 2, TUE) portare allo stesso risultato? - VII. Davvero l'art. 7 CEDU permette che i termini di prescrizione siano prolungati dopo la commissione del reato? - VIII. Conclusioni: l'Avvocato generale risponde realmente alle questioni pregiudiziali della Corte costituzionale? | (Abstract) The reference of the Constitutional Court for a preliminary ruling under Art. 267 TFEU in the follow-up of the Taricco case (Court of Justice, judgment of 8 September 2015, case C-105/14, Taricco et al. [GS]) should not be read as a bold challenge to the Court of Justice's ruling, but as an opportunity for a real dialogue between the two Courts on very delicate questions: the protection of fundamental rights, namely the principle of legality in criminal matters, and the possibility for Member States to maintain their higher level of protection in the scope of EU law. The referring Court offered three different solutions, each of which, in its view, would have avoided a clash between EU law and the basic principles of the Constitutional legal order. In case all the solutions were rejected, the Constitutional Court warned that this might trigger the so called "counter-limits" rule. Under this rule, EU law infringing fundamental principles of the national legal order or human rights as protected under the Constitution should not be enforced by Italian courts. The opinion delivered by AG Bot is not promising. Mr. Bot proposes to give a negative answer for each of the three preliminary questions and indicates that the ruling in Taricco should be confirmed as a whole. Were the Court of Justice to follow the Advocate General entirely, the clash with the Italian Constitutional Court would become almost unavoidable. The aim of this Insight is to point out at the many good grounds under which the Court of Justice may adopt a more understanding attitude towards the Constitutional Court and inaugurate a real dialogue between the two Courts.

International and constitutional law, originally distinct realms with limited areas of intersection, are getting closer and closer, particularly in the European landscape within the human rights protection field, where these mere contacts between the two systems have become intersections and overlaps. The present article will try to shed light on the still unsolved and problematic issues to which overlapping human rights protection systems give rise, by focusing on an analysis of the heterologous in vitro fertilization case, where both the Strasbourg Court and the Italian Constitutional Court delivered relevant judgments on very similar matters (ECtHR’s S.H. Judgment; Judgment No. 162/2014 from the Italian CC). Such analysis revealed useful in highlighting connections and disconnections between the different levels of protection of rights, and led us to argue that the development of a multilevel protection of rights is also, at least partially, a tale of Courts, each competing to have the last word on human rights adjudication.

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Copyright of Il Diritto Dell'unione Europea is the property of Giappichelli Editore srl and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

http://dx.doi.org/10.5007/2177-7055.2016v37n74p97 The article discusses the judgment 238/2014 rendered by the Italian Constitutional Court on State immunity in cases of serious violations of human rights or humanitarian law. It aims to provide some critical reflections on the potential relevance of this judgment in the further development of the international legal regime in respect of state immunity in cases of serious violations of human rights or humanitarian law. To best address this purpose, the analysis will be divided into two parts. In the first part, it will be addressed the potential significance of the stance taken by the Court. In the second part, the Italian Constitutional Court’s approach will be assessed, with a focus on its capacity to affect to a greater extent the development of the relevant practice.

Resumen: El estudio analiza el principio de proporcionalidad, o mejor dicho el test de proporcionalidad como técnica argumentativa aplicada por la Corte constitucional italiana, por el Tribunal de Justicia y por el Tribunal Europeo de Derechos Humanos. Esta técnica argumentativa, nacida en el ordenamiento alemán, ya se ha expandido, gracias al obrar del Tribunal de Justicia entre otras cosas, a muchos países no solo de la Unión Europea, sino también de common law. Hasta podría decirse que el principio de proporcionalidad se ha convertido en uno de los conceptos centrales del constitucionalismo global, en calidad de instrumento que favorece el diálogo entre los Tribunales a través de la circulación de modelos jurídicos y standards de argumentación. Después una premisa sobre las constituciones de la segunda posguerra en la Europa occidental, en la que se enuncian más que nada principios, caracterizados por circunstancias abiertas y heterogéneas, se tratan por separado las técnicas de equilibrio elaboradas por el legislador y también por el juez ordinario. El estudio prosigue señalando la existencia de diversos precedentes, prestando atención especial a la sentencia n.º 1 del 2014 de la Corte constitucional italiana, que declaró incostitucional la ley electoral n.º 270 de 2005 para la elección del Parlamento italiano y a la sentencia del Tribunal de Justicia (14 de junio de 2015) en materia de control de las políticas monetarias del BCE. Para terminar, se tiene en cuenta la doctrina europea y de países del common law, que expresa su preocupación por el alto nivel de discrecionalidad que acompaña a la utilización de estos instrumentos decisorios. El debate teórico internacional más reciente se centró en el déficit de legitimación democrática de los Tribunales constitucionales y llamó la atención sobre los peligros inherentes al escrutinio de proporcionalidad y más en general sobre las técnicas argumentativas de equilibrio. El temor que subyace es que el principio de proporcionalidad, instrumento por excelencia del age of balancing termine sofocando la autonomía de la política democrática. A pesar de los innegables riesgos inherentes a las operaciones de control efectuadas por los Tribunales constitucionales sobre las decisiones de los órganos representativos, el estudio acepta la tesis de la doctrina según la cual la existencia de un órgano de garantía, llamado a controlar y, llegado el caso, a corregir la decisión de la mayoría, constituye una herramienta irrenunciable de tutela de los valores fundamentales del ordenamiento, ya sea interno o supranacional. Los Tribunales constitucionales hallan el fundamento de su legitimidad democrática no en la elección popular, sino en la función llevada a cabo, gracias a la cual las las minorías aceptan las decisiones mayoritarias, en los casos y como expresión de valores compartidos. Abstract: The article analyzes the application of the principle of proportionality, or rather of the proportionality test as interpretative criterion of the Italian Constitutional Court, European Court of Justice and European Court of Human Rights. This criterion was originally adopted within the German legal order and then, thanks to the jurisprudence of the European Court of Justice, it has spread in many countries including common law countries. Therefore, the proportionality test became one of the central concepts of global constitutionalism, as an instrument fostering the dialogue between the courts through the circulation of legal models and argumentative standards. The paper starts with an introduction relating to the development of European constitutions from the end of World War II up to now and containing mostly principles that are characterized by open and heterogeneous cases. Then, the paper analyzes the techniques of balance that are particularly used both in new legislation and case-law. The analysis continues with an examination of the case study, with special attention to Sentence n. 1 of 2014 of the Italian Constitutional Court (which declared the unconstitutionality of the electoral system for the election of Parliament) and the Decision of the European Court of Justice of 14 June 2015 relating to the assessment of the ECB’s monetary policy. Finally, this paper examines European and non EU doctrine that has shown its main concern due to the wide discretion that these decision-making instruments allow. In fact, the most recent international theoretical debate has focused on the deficit of democratic legitimacy occurring in the jurisprudence of constitutional courts and has drawn the attention to the inherent danger in the scrutiny of proportionality and, more generally, in all the interpretative techniques of balance. The above-mentioned fear involves the fact that the principle of proportionality, which is the «par excellence» instrument of the «AGE of balancing», ends up stifling the democratic political autonomy. Despite the undeniable risk that courts can go into a non-allowed land, subverting the delicate balance of the decisions of the representative bodies, this paper accepts the idea that the existence of an oversight body, aimed at criticizing and, when appropriate, correcting the majority decision, is an indispensable instrument to protect the fundamental values both of national and international legal orders. In short, constitutional courts do not find the basis of their democratic legitimacy in popular election, but in their function itself, so as that the majority decision is also accepted by the minority forces if and to the extent it is the expression of shared values. Summary: 1. PREFACE. 2. LEVELS OF BALANCE. 3. EQUALITY AND REASONABLENESS. 4. PROPORTIONALITY IN THE GERMAN MODEL. 5. PROPORTIONALITY IN THE EUROPEAN COURT OF JUSTICE: a) Proportionality as legitimacy parameter of measures restricting fundamental freedoms. b) Proportionality as validity parameter of acts of the European institutions: the monitoring on the monetary policies. 6. EUROPEAN COURT OF HUMAN RIGHTS AND EVALUATING PROPORTIONALITY: THE MARGIN OF APPRECIATION FOR EU MEMBER STATES. 7. FINAL CONSIDERATIONS.

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Copyright of Revista Brasileira de Estudos Politicos is the property of Universidade Federal de Minas Gerais (Revista Brasileira de Estudos Politicos) and its content may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder's express written permission. However, users may print, download, or email articles for individual use. This abstract may be abridged. No warranty is given about the accuracy of the copy. Users should refer to the original published version of the material for the full abstract. (Copyright applies to all Abstracts.)

The contribute illustrates and examines the contents of some recent italian constitutional court's decisions on important issues of ecclesiastical law, particularly about the position and rights of religious confessions without agreement. [ABSTRACT FROM AUTHOR]

To what extent do Italian courts adapt the national legal instruments (principles,rules, techniques, legal concepts) regarding state structure to therequirements of EU law? This paper aims to give an answer to this questionby providing an overview of the most emblematic cases of “re-adaptations”operated by the Italian courts in order to ensure the respect of the structuralprinciples of EU law. This contribution is structured as follows: first, Iwill explain the reasons why research like this is “difficult”, while secondlyI will move to the analysis of the of some legal instruments (principle ofcompetence, substitutive power, “cedevolezza”). Some final remarks willbe presented at the end of the paper. Generally speaking, my main idea isthat EU law has had a certain impact on the relationship between Stateand Regions in Italy, especially looking at the seasons of the principle ofcompetence, that has been conceived more and more as referring to theidea of “legislative preference” rather than as to the existence of a “legislativereserved domain”.

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On 1 January 2015 a new institution, the metropolitan city, took its place among the Italian territorial authorities. Despite its incorporation in the Italian Constitution since 2001, the metropolitan city become a reality only when the national government carried out a process of reform and transformation of Italian territorial government by transforming 10 large cities into metropolitan cities and depriving other intermediate governments (regions and provinces) of their fundamental competences. This article critically reviews the activation of metropolitan cities and the reshuffle of Italian territorial authorities. It stresses the way in which this reform marks the shift towards a new phase of Italian regionalism, which is dominated both by a dynamic of recentralizing intergovernmental relations and by the resulting loss for provincial and regional governments. [ABSTRACT FROM AUTHOR]

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Judgment 238/2014 of the Italian Constitutional Court reopens the debate on the extent of the immunity enjoyed by states for violations of jus cogens. The decision, which questions the authority of the ICJ's 2012 judgment in Germany v Italy, could certainly have effects on the formation of customary international law. In addition, it revives the discussion on the relationship between national and international law and on the supremacy of the latter over the former, especially if read in light of the previous Medellín and Kadi I decisions. Judgment 238/2014 is an opportunity to reappraise the role played by international law in domestic courts, particularly in cases where international law conflicts with core domestic constitutional values. [ABSTRACT FROM AUTHOR]

In judgment No. 238/2014 the Constitutional Court unhesitatingly gave prevalence to the right to jurisdictional protection over compliance with international law. The present paper argues that, at least in its reasoning, the Constitutional Court, instead of targeting exclusively the way in which international law regulates State immunity, should have assessed the possible role of alternative forms of protection of the rights of the victims of Nazi crimes. In particular, the Court should have considered whether negotiation can be an alternative form of protection of the rights of the victims and whether State action at the international level can substitute for individual access to justice. By taking into consideration the role of political organs of the State in the protection of the rights of nationals at the international level, it could have given its contribution to the current trend towards limiting the discretionary nature of diplomatic protection, particularly when grave breaches of human rights are at stake. It would also have contributed to delineate a possible way out of a situation of serious disrespect for international law. [ABSTRACT FROM AUTHOR]