Aspetti problematici dei giudizi per conflitto di attribuzione tra enti

This thesis is focused on problematic aspects regarding constitutional conflicts between the State and Regions and is divided in four chapters. In the first chapter, the general outlines related to such institution are analyzed, considering, in particular, the preliminary works of the Constituent Assembly and, then, the provisions on constitutional conflicts contained in law no. 87 of 1953 and in the Additional Regulations on constitutional proceedings before the Court. Moreover, subjective and objective profiles of the constitutional conflicts and the matter of the relationship between the Constitutional Court’s judgments on the conflicts and the following constitutional, administrative, civil and criminal judgments are analyzed. The main chapters are dedicated to the analysis of the constitutional conflicts promoted by the Regions against the State on a jurisdictional act, which has become one of the possible conflicts’ objects after the known judgment no. 66 of 1964, that introduced conflicts concerning interferences through which Regions and the Province of Trento and Bolzano may take action before the Court when the State has encroached upon it own attributions assigned them by the Constitution or constitutional law. In particular, in the second chapter, two cases of conflict are explained: conflicts against the non-application of regional laws retained unconstitutional, often made by judges of last resort, and conflicts on the prerogatives of the Regional Committee’s members. Before focusing on the analysis on prerogative conflicts, a close examination on the Regional Committee’s role and functions is made, highlighting the differences between this entity and the Parliament – these differences reflect the different constitutional position of the Regions and State - and from which is consequent the impossibility to extend to regional councilmen all the guarantees accorded to members of Parliament, that continues also after the reform on the Tithe V of the Constitution. So, after examining the status of the Regional Committee’s members, constitutional judgements about immunity, as provided by article 122 par. 4 of the Constitution, are analyzed and three different profiles are considered: the guarantee’s substantial and objective profiles and the problem of an eventual "council prejudicial". Regarding this latter, some interesting recent decisions of the Court establish that the resolutions adopted by the Regional Council may have the same inhibitory effect recognized for the parliamentary deliberations, considering the the “different location of the Regional Committee and the Parliamentary Assemblies in constitutional system” (judgments no. 301 of 2007 and no. 279 of 2008). In two other decisions (judgments no. 195 and no. 235 of 2007), the Constitutional Court has also denied that the decisions under which the regional government has decided to challenge a jurisdictional dispute may stop the exercise of the judicial function. In the third chapter, after a brief explanation of the guarantees of autonomy and independence granted to the judiciary power, are analyzed two problematic procedural aspects arising from the application to conflicts between Regions and the judiciary power of the rules provided for different conflicts, that is conflict between State and Regions having subject so-called vindicatio potestatis. Firstly, the problem regarding the representation and defense of the judge which adopted the contested act, that has been examinee for a long time by Constitutional Court and scholars, and because of the inactivity of the legislator, a partial answer has been found in an Additional Regulations’ amendment, under which is now provided an obligation on Regions to notify the recourse also to the judge. Secondly, the matter of the defects that may be challenged by recourse, and related to this, the issue of the limits of the control that the Constitutional Court is performing in evaluating a judicial act, that raises some doubts, especially in cases in which the conflict is caused by a decision of the Court of Cassation. In four chapter, a recognition of other problematic aspects common to jurisdictional disputes is made, of which the most important is the problem of the protection of "third parties" in the conflicts, that is not yet over despite some recent "openness", influenced by European Court of Human Rights on the so called. right to judge provided by article 6 § 1 ECHR, and then encouraged by the 2004 amendment to the Additional Regulations, pursuant to which the possibility of intervention by third parties is now formally provided, being understood the jurisdiction of the Constitutional Court as regards their admissibility. A related problem is the protection of the local authorities in constitutional judgments. They still do not have direct access to the Court despite an increasing pluralism of the institution, started firstly with the Bassanini reforms and, thereafter, culminated with the reform of Title V. See, then, the recognition of the principle of local and regional autonomy and the regional and local dimension of subsidiary pursuant to the new article no. 5 § 3 of the EU Treaty. Local authorities may be defended before the Constitutional Court only through a proceeding concerning the constitutionality of laws or a constitutional despute, challenged by the relevant Regions, acting as a representing institution, but it not a solution always appropriate. Lastly, following the introduction of the obligation for Regions to notify the recourse also to the Authorities different than the government and the authorities depending from the government, that have issued the act under which the conflict is arisen, it is shown the possibility that the Court accepts other possible "abnormal" conflicts that like conflicts on a jurisdictional act raise the question of representation and defense of the independent authority - in particular the conflict between Regions and the independent administrative authorities.