Prof. Jörg Luther
Dipartimento Polis
Università del Piemonte Orientale
I diritti fondamentali in Italia
Contributi alla ricerca “Fundamental Rights in Europe and North-America“,
diretta dal Prof. Dr. Albrecht Weber, University of Osnabrück, Germany
(delivered papers per 1.1.2004)
Vol. II: Equality rights (III + IV)
Third Section: Equality rights – Diritti di eguaglianza
1st Chapter: General principle of equality
2nd Chapter: Political equality rights (L. Imarisio)
I. General civil and political status
II. Equality of election and eligibility
III. Principle of equality and political parties
1. Access to political parties
2. Access of a political party to public services
3. Party financing
IV. Access to political functions and offices
3rd Chapter: Specific rights of equality (M. Caielli)
I. Interdiction of discrimination
II. Specific obligations of non-discrimination
1. in constitutional law
2. by the legislator
III. Specific problems of inverted discrimination
Fourth Section: Due process of law – Diritti processuali
I. Right to audit
II. Right to natural judge (F. Caporilli)
III. Ne bis in idem (A. di Martino)
IV. Nulla poena sine lege (A. di Martino)
V. Principle of pecision and foreseeability of legal norms
VI. Presumption of innocence
VII. Right to council (S. Campanella)
VIII. Right to an interpreter
IX. Fair trial
X. Effective judicial protection
2d Chap: Political equality rights – Diritti di eguaglianza politica (L. Imarisio)
I. General civil and political status
1. Abolition of class privileges
The fourteenth of Transitory and Final Provisions of Italian Constitution provides that titles of nobility shall not be recognized and that the value of nobility particles pertaining to those existing before October 28, 1922 is that of a part of the family name.
It provides, moreover, that the Order of Saint Mauritius shall be maintained as a hospital corporation and operate in the manner established by law. It provides, finally, that the law shall regulate the suppression of the Heraldic Council.
2. Equality in taxation
Article 53 of Constitution provides that all shall contribute to public expenditure in proportion to their resources and that the taxation system shall conform to the principle of progressivism.
Constitutional Court fixed that, also respecting legislator's discretional assessment about the definition of fiscal politics[1], the principle of the respect of contributory burden has compulsory and not only programmatic value, allowing a control in case of absolute irrationality and arbitrariness of the rules[2]. So the constitutional judge fixed that the "vital minimum"[3] shall be exempt from taxation and that retroactive tax laws shall not violate the principle of topicality of the contributory burden[4].
3. Equality in compulsory military service
Article 52 of Constitution provides that the defence of the Country is the sacred duty of every citizen and that military service shall be compulsory, within the limits and in the ways laid down by law. It provides, moreover, that the fulfilment of military duties shall not prejudice a citizen's position as an employee, nor in the exercises of his political rights.
The Constitutional Court hold up the statute which imposes the military service on stateless persons.[5]
Law n. 772/1972 introduced the possibility of doing military service through a not armed service or civil service. Referring to conscience objection, the Constitutional Court fixed, besides, that due to equality the citizens admitted to the civil service have to be subtracted from military courts' jurisdiction[6], and that civil service shall not be longer than military service[7].
Article 4 of the Agreement between Italy and Catholic Church, ratified by law n. 121/1985, granted exemption from military service to priests, deacons and other religious figures.
In regard to new rules about the admission of women to the military service, we defer to the third paragraph.
Law n. 331/2000 provided for the substitution of military service with a professional military service. This change shall be put into practice within seven years. The compulsory recruitment will be limited to the case of inadequacy of the military personnel caused by wartime or international serious crisis. Law n. 64/2001, reforming Italian civil service, provides that from the date of suppression of the compulsory military service, the civil service shall be executed only voluntarily.
4. Equality in access to general public services
evt. giudicati del Consiglio di Stato
5. Equality of Minorities
5.1. Religious Minorities
Article 19 of Constitution provides that all shall be entitled to profess their religious beliefs freely in any form, individual or in association, to promote them, and to celebrate their rites in public or in private, provided that they are not offensive to public morality.
Article 3 provides the equality of citizens before the law without distinction, besides, as to religion. But a distinction of legal treatment between the catholic religion and other confessions (and also between different not Catholic religions) is outlined by articles 7 and 8 of Constitution in relation to the rules that regulate their relationship with the State.
Article 7 of Constitution provides that the State and the Catholic Church shall be, each within its own order, independent and sovereign and that the Lateran Pacts shall regulate their relations. It provides, moreover, that such Pacts shall be changed by ordinary law and consensus of both parties or by the procedure for Constitutional amendment.
Article 8 of Constitution, besides enunciating that all religious denominations (confessions?) shall be equally free before the law, provides that religious denominations other than Catholic shall have the right to organize themselves according to their own by-laws provided that they are not in conflict with the Italian legal system. It provides, moreover, that their relations with the State shall be regulated by law on the basis of agreements with their respective representatives.
The Constitutional judge interpreted the principle of equality in religious matter as a principle referred to individual freedom, excluding that it involves an absolute equality of legal treatment between religious denominations. “The legal system shall consider differently the several denominations, according to their different relevance in the state community"[8]. Such variety of treatment was, initially, considered lawful also in relation to the criminal law.[9] More recently, the Constitutional Court dropped the “quantitative” standard. This standard was used earlier in order to justify a preferential treatment for the majoritarian religion[10]. Therefore the Criminal code was modified (?) to equalize the penalities for the offensive behaviour towards the religious objects, which were more severe when referred to the catholic religion.[11] In a recent decision, the Court declared finally unconstitutional the provision that punished the offensive behaviour towards the “religion of the State”.[12]
5.2. Language Minorities
According to article 6 of Constitution, the Republic shall safeguard linguistic minorities by means of special provisions.
The process of fulfilment of this constitutional rule shall be articulated in various outlines, largely corresponding to different historical periods.[13] In a first period, linguistic minorities of Alto Adige, of Valle of Aosta and, for certain aspects, of Friuli Venezia Giulia, were guaranteed by specific rules in the Statutes of the respective Regions, adopted by constitutional law. In a second period, Constitutional Court seems orientated to extend the guardianship to other minorities and other Regions, fixing the minimum level of guardianship legislation should guarantee to the recognized minorities (poco chiaro e da rivedere: non interessano tanto le proposte quanto indicazioni circa il “minimum level”)[14]. From the 90s the Regions provided legislative warranties to minorities in their territories. This involves a widening of protected minorities, sometimes including nomads and extracomunitari, and an extension of guardianship for the regional identity, for example protecting dialectal idioms.[15] The national legislator recently adopted a law for the protection of a wide number of historical language minorities[16]. This law provides the guardianship of language minorities in schools, in public offices, in toponymy, in media and in relation to names and surnames of interested people and provides that regions, in their competence matters, have to conform their legislation to such new principles.
The constitutional protection of language minorities has been finally specified by a recent reform of the statutes of the “special” regions. (spiegare brevemente le recenti riforme degli statuti speciali).
5.3. Ethnical Minorities
There are no specific rules existing in relation to such ethnical minorities which constitute no language minority.
II. Equality of election and elegibility
Article 51 section I of Constitution provides that all citizens of either sex shall be eligible for public office and for elective positions on conditions of equality, according to the rules established by law.
The indication of causes of ineligibility and incompatibility is submitted to saving clause, according to articles 65 (office of deputy or senator), 122 (office of a member of the regional council), 128 of Constitution (provincial and municipal offices).
The Constitutional Court, at first recognized wide discretionality to the legislator in determining the cases of ineligibility and incompatibility[17]. More recently, the constitutional judge provided the degradation to cases of incompatibility of some cases of ineligibility foreseen in hypothesis in which there wasn't danger of injury of equality of election, but only danger of conflict of interests.[18] (dare esempi(o), ad es. cenno al caso Berlusconi, giudicato inammissibile dalla Corte dei diritti dell’uomo di Strasburgo).
The thirteenth of Transitory and Final Provisions of Constitution provides that the members and descendants of the House of Savoy shall not be entitled to vote and may not hold any public or elective office.
Article 51 III comma of Constitution provides that any person elected to a public office shall be entitled to the time necessary for the fulfillment of such duties while keeping his job. The Constitutional Court recognized such principle as strumental to the warranty of equality of citizens in eligibility for elective positions.[19] It doesn’t imply necessarily the right to a remuneration for the time due to the exercise of the elective position.[20]
1. Universal Suffrage
Article 48, I comma of Constitution provides that all citizens, men or women, who have attained their majority shall be entitled to vote.
Article 51, II comma of Constitution provides that the law may grant Italians who do not belong to the Republic the same opportunities as citizens in relation to their right to be selected for public positions and elective offices.
In regard to the exercise of the right to vote of Italian citizens who reside abroad, it's appropriate to indicate the modification of article 48 of Constitution by the law for Constitutional amendment Jan. 17th, 2000 n. 1. Such reform provides a different way to exercise the right to vote of Italians who live also permanently abroad, and this is a right in itself already recognized and protected by law Feb. 7th, 1979 n. 40. The constitutional law number 1/2000 abolished purely the need of repatriation to exercise the right to vote, instituting a constituency Foreign (?) for the election of the members of the two Chambers and providing to it the grant of seats in a number fixed by a constitutional rule and according to criterion fixed by the law. A second law for constitutional amendment, Jan. 23th, n. 1, changed then the text of articles 56 and 57 of Constitution, providing in the constituency Foreign the election of twelve Deputies and six Senators. The thirteenth legislature, neverthless, ended without the approval of the ordinary law that define the way how to elect the Members of Parliament in the constituency Foreign.[21]
1.1. Minimum age
Article 56 II comma of Constitution provides that all those voters who have reached the age of twenty - five years on the day of the election may be elected as deputies.
Article 58 of Constitution provides, instead, that senators shall be elected by universal and direct ballot by voters over twenty - five years of age, while all voters over forty years of age may be elected to the Senate.
For other elective offices, franchise and eligibility are up to all citizens who have attained their majority. The law n. 39/1975 fixed the attainment of the majority with the completion of eighteen years.
1.2. (Regional) suffrage for foreigners
For foreigners of a country of the European Union, the Maastricht treaty of 1992, institutive of the European Union citizenship, provided the opportunity for all the citizens of the Union to exercize the right to vote and to be eligible for the Municipal Elections in the member State of the Union they live in, at the same conditions of the citizens of such State. How to put into practice such right was defined by directive n. 80/1994[22], received, in Italy, by D.Lgs. Apr. 12th, 1996 n. 197 that provides the enrolment of interested people, on their request, in a proper added ballot list, instituted in the Municipality[23].
The law n. 203/1994 provides limited and atypical ways to exercise the right to vote in Municipalities by (extracomunitarian) foreigners resident in Italy (such as …). This law aims to fulfil the committment assumpted by signing the convention of Strasburg adopted by the European Council on Feb. 5th, 1992. (parti restanti poco chiare) … was subordinated to the adoption of a law of constitutional amendment of article 48 of Constitution. Such amendment, in doubtful legal necessity, isn't still operative ??
2. Equal suffrage
Article 48 II comma of Constitution provides that the vote shall be personal and equal, free and secret and its exercice is a “civic duty”.
Regarding the need to support the exercise of the right to vote, the Constitutional Court stated … [24].
In accordance with case laws of the Constitutional Court, the principle of the equal vote excludes the admissibility of multiple or plural vote[25], but it doesn't necessarily imply the adoption of a proportional electoral system[26].
About the principle of the free vote, the Constitutional Court excluded that the legislative (?) determination of the order of the candidates[27] on the list by political parties could be an injury of the psychological freedom of the voter. But it considered unconstituitional the proposal of a referendum to abrogate a law with differente heterogeneous rules and principles (aventi ad oggetto complessi normativi non unitari and disomogenei) because it would not permit the voter to uphold a part of them.[28]
About the principle of the secrete vote, the Constitutional Judge asserted that such requirement is exploitable as to that of the free vote and declared consitutionally illegitimate the disposals of a law of the Region Sicily that provided a system of ballot papers with words that allowed the identification of the voters[29] (poco chiaro).
Articles 4 and 115 of the D.P.R. Mar. 30th, 1957 n. 361, respectively, depicted the exercise of the right to vote as "an obligation nobody can escape from, without escaping from his precise duty towards his Country" and foresaw the registration of the not voters in a register in every Municipality. The words "he didn't vote" were, moreover, registered on the certificate of good behaviour. Afterwards, the article 3 of the law Dec. 20th, 1993 repealed the article 115 of the D.P.R. n. 361/1957, changing moreover the article 4 I comma of the same D.P.R. that qualifies actually the vote no more as a duty, but as "a right of all citizens, whose free exercise shall be guaranted and promoted by the Republic".