Italian Constitutional Court Annual Report 2020 Italian Constitutional Court Annual Report 2020 CONTENTS 4 EMBEDDED IN REALITY: THE CONSTITUTIONAL COURT IN 2020 Interview with President Giancarlo Coraggio 8 THE JUDGES 12 THE YEAR IN NUMBERS 16 2020 JUDGMENTS 26 JANUARY “Open” proceedings 28 FEBRUARY Using multimedia and Il Viaggio in Italia - Around Italy 32 MARCH The pandemic breaks out 34 APRIL-MAY Remote hearings and the Annual Report via podcast 36 JUNE The Podcast Library 38 JULY The “new normal” for hearings 40 AUGUST-SEPTEMBER The Court’s mobile app and digital signatures New judges and a new President 44 OCTOBER-NOVEMBER The Court goes into the schools 46 DECEMBER Coraggio elected President A record number of women at the Court 4 EMBEDDED IN REALITY: THE CONSTITUTIONAL COURT IN 2020 Interview with President Giancarlo Coraggio Italian Constitutional Court Annual Report 2020 Interview with President Giancarlo Coraggio Mr President, 2020 was the year “outside voices” with its decision of the pandemic. The Court had taken in January to accept ami- to reorganise its work to en- cus curiae briefs and hear ex- sure ongoing constitutional jus- pert witnesses in some fields. A tice during the emergency. Since year on, what thoughts can you April, judges and lawyers have share about this new experience, been participating in the Court’s which brings the Court more into public hearings remotely, and line with other countries? judgments may now be signed It is certainly positive. Although the electronically. The statistics for admission of amicus curiae briefs 2020 show a drop in the number is alien to our judicial tradition, it of pending cases, with proceed- was fairly easy to introduce them in ings now taking less than nine Constitutional Court proceedings, months, having the shortest av- which have special features both in erage duration since 2016. Over- terms of purpose and legal effects. all, it’s a fairly positive picture. The Court’s judicious Would you agree? Read the President’s use of this new faculty In reality, the restrictions Annual Report (we accepted 28 out of arising from the pandemic 64 applications in 12 out have not had a negative of a total of 326 cases) impact on the Court’s enriched the discussion of “production”, as it were, our cases without adding and the number of cases delays, as the amici pending has actually curiae only participate dropped. Thanks to the through written briefs. efforts of the Secretary The experts also made General and the staff, important contributions the Court holds its public hearings on some occasions. For example, and meetings in chambers remotely. in the 2020 proceedings on the It is remarkable how quickly my “Positions Entailing High Levels colleagues and the Bar adapted to of Responsibility” of tax agencies, using this technology, although the which gave the Court a better insight lack of direct and personal face- into some specific technical aspects. to-face interaction was no small Increasing involvement of civil sacrifice. It should be mentioned, society – noted favourably in the however, that the Constitutional 2020 EU Rule of Law Report – has Court benefited from its undeniably had a very positive effect. privileged position compared with other judicial offices thanks to its In 2020, the number of judg- relatively smaller number of cases ments continued to grow with and its financial and technical respect to the number of orders, resources. as did the tendency for the Court to overcome admissibility issues As in the past, the Court has and address the merits of the shown concern for civil socie- questions. The Court also con- ty, opening its proceedings to tinued to fill the gaps in consti- tutional protection, even in the suitable remedy against Constitutional absence of a single solution to fill breaches. the gap created by a declaration Nevertheless, we have been extremely of unconstitutionality. Would you cautious in this approach, by trying to say these trends are now well shape the remedies afforded by our established? judgments according to patterns that already exist in the law. The leading Regarding the first question, it is case here is Marta Cartabia’s Judgment generally true that, whatever the No. 40 of 2019, remodelling penalties form of the ruling – be it a judgment for drug offences on the basis of those or an order – the number of rulings already provided for in legislation of inadmissibility continues to governing the same area. The Court also fall, due to better formulation of followed this pattern in other rulings of referral orders and appeals, as well 2020. as the Court’s greater willingness to examine the merits. I personally Would you say that the “sincere welcome this trend because I have co-operation” between the Court always thought, in my many years and the legislator is generally ef- working as a judge, that any rulings fective? of inadmissibility amount to a defeat for justice. It must be said that the judgments where the Court calls upon the legislator to amend the law are on And the second question? the rise, while most of these calls This touches on a sensitive aspect are regrettably not followed by any of the role and function of the Court: legislative action. Nevertheless, its relationship with the legislator. one good example of sincere co- Essentially, the approach of the operation is the review of the monthly Court is one of self-restraint vis- allowance due to persons with total à-vis legislative discretion. This invalidity: immediately following the approach has traditionally led the Court’s decision that the allowance Court to abstain from declaring the was insufficient to meet the unconstitutionality of a law when recipients’ basic subsistence needs, such a declaration would require the legislator moved to adjust the the Court to replace the legislative amount of the allowance. I realise solution with one of several possible of course, especially in the current alternatives, the choice of which lies, political climate, that Parliament is in principle, within the discretion facing challenges of equal delicacy of the legislator. Over time, the and importance. Nevertheless, the changing circumstances in which Court will continue to underline constitutional justice operates, the the need for stronger co-operation emergence of new fundamental between the two institutions. This rights, and an increasing awareness difficulty in seeing our decisions of the need to effectively protect implemented sets the context for the them, have compelled the Court procedural innovation which took to step in even in such instances place through our 2019 judgment where an exercise of discretion on assisted suicide. In this case, as proves necessary in order to find a is widely known, the Court did not Italian Constitutional Court Annual Report 2020 Interview with President Giancarlo Coraggio simply call for legislative action, Absolutely. It is a new way of viewing as it used to do in the past. Having the relationship between civil concluded that the law in force society and the institutions. Modern at the time was unconstitutional, technology in communications has Parliament was given a deadline a degree of openness that has never within which to act, and, at the same been possible before now, and I time, a new hearing was scheduled, must say, the results have been making it clear that if the legislator extremely positive; there has been failed to take action by the deadline, real and growing public interest. Our the Court would intervene directly social media channels have proved (Order No. 207/2018). Following the to be precious tools for channelling legislator’s inaction, after a year had information on the Constitution elapsed, the Court took action and and the work of the Court in a more declared the impugned provision modern and effective way, and they unconstitutional. are particularly popular with young The same exceptional route people and women. was followed in 2020 regarding prison sentences for the crime of 2020 also saw the launch of a defamation by the press, which new series of podcasts, called the Court held incompatible with ENCOUNTERS, featuring per- the Constitution and the European sonalities from the world of cul- Convention on Human Rights (Order ture. Following the outreach to No. 132 of 2020). The legislator is students, detainees, and the still in time to act on this question general public, dialogue with the (the deadline being 22 June 2021), “outside world” is still ongoing. and it would be welcomed if How would you assess this new Parliament showed greater concern initiative? for a matter that involves one of the I would say it is extremely positive. It cornerstones of democracy. has opened up a dialogue on some key topics, such as the electoral system, Another sign of the Court open- information, university, and the family, ing up during the pandemic is the as well as the environment, science, introduction of podcasts. The literature, and art. Not only has this Court’s Podcast Library was set consolidated the Court’s openness to up in 2020 in a bid to further pro- civil society, but it has truly enriched mote constitutional culture. You us, the judges, as clearly emerges are the only institution to make from the comments of my colleagues, use of this new means of com- who have been taking part in the munication in your institutional project with enthusiasm. I have work too – in the Annual Report, always felt that judges risk becoming for example. 2020 also saw the somewhat inward looking, and I am launch of the Court’s mobile app, increasingly convinced that opening the new website, and its Twitter up to social, economic, and cultural profile, all of which would appear realities is essential in an institution to reinforce the image of an open such as the Court, whose decisions and modern institution.