What the Court said in 2004 on the "Schifani award":
1. the institution of suspension of the criminal process is already in our legal system and serves to create the conditions for the conduct and outcome of criminal trials has regular
2. the smooth conduct of the functions of the upper echelons of the state interest is a welcome and may be protected but in harmony with the principles of. It is ultimately the security function;
3. the idea that the appointment to high office in the State may constitute a legitimate ground of the accused to appear at the hearing resulting in the de facto protection of the function;
4. Schifani the award is a suspension of the criminal trial, a suspension that is general, automatic and indefinite:
1. is general because it covers all conceivable crimes, committed at any time, and non-functional (ie not linked to the constitutional position covered);
2. is automatic because it does not distinguish between different assumptions and allocation between different stages or phases of the proceedings;
3. is indefinite because it does not take into account the reiterabilità assignments, and then you can not set a time limit.
5. In this way, the Court says, it creates a different penal regime. In itself a criminal regime is not differentiated in breach of Article 3 of the Constitution, because the same rules apply in similar situations, but in different situations, different rules may apply. But, says the Court, a criminal regime can be differentiated in our system if account is taken of the level of values \u200b\u200bto be compressed. In this case, if the award Schifani, the level of values \u200b\u200bto be compressed is that fundamental values.
A) Basic training is in fact the rule of law the principle of equal treatment;
B) is the fundamental right of defense of the accused in this case he is crippled having to choose between continuing to exercise his office in the face a serious and slanderous charges or resign renouncing a right guaranteed by the Constitution (Article 51 of the Constitution);
C) Finally, is the fundamental right to defend the civil party but may transfer a civil action subject to the suspension referred to in paragraph 3 of art. 75 of the Code of Criminal Procedure.
The Court also notes that it violated Article 3 of the Constitution for unreasonableness because not only the presidents of the senior members of the body but also the respective enjoy the same dignity and, finally, the Court notes that Article 3 of the Constitution is violated Schifani also unreasonable for the law than the immunity provided to judges of the Constitutional Court by a constitutional law of which the law does not take into account Schifani.
The Court therefore clearly stated which censored and the limits of the law more generally where the limits of legislative power on the suspension of criminal proceedings of the highest offices of state. The next
Alfano, captures only part of the criticism of the Court. To have been accepted by the legislature are just observations on indefinite suspension and the sacrifice of the right of civil action. Nothing on the rest.
the "Lodo Alfano", in addition to not collect all the tips and all the objections of the Constitutional Court, does not capture the substance of the criticisms of the Court, a law intended to regulate ordinary though special cases, can not affect the fundamental rights guaranteed by the Constitution . It literally reads the Court: "From the above shows, first, that the measure prepared by the contested legislation creates a different regime in the exercise of jurisdiction, in particular the criminal law.
The finding of such a distinction in itself does not lead to the affirmation of the rule of contrast with the art. 3 of the Constitution. The principle of equality implies that, if circumstances require equal equal discipline, different situations may involve different standards. In this latter case, however, decisive attention on the level that the system attributes to the values \u200b\u200bagainst which the connotation of diversity can be taken into consideration. In the present case are fundamental values \u200b\u200bcompared to which the legislature considered the overriding need to protect the serenity of carrying out activities related to the charges in question. "
the Court essentially says you can also make the differences between citizens, but beware: if you do not affect the fundamental values You can use the ordinary law. That is the need to protect the high office is a considerable interest by the legislature but not a fundamental right (constitutionally guaranteed) and you can not change or collapse with an ordinary law that is established as a fundamental value in the Constitution.
Now, if it is understandable that an ordinary citizen may have some uncertainty in assessing the significance practice of the Constitutional Court, it is quite understandable that brave lawyers available to the Government, and the majority of those parties that argue that Government and Offices of the Presidency of the Republic, did not understand the practical sense of the sentence. Especially as the type of language used by the Court is accessible from the level of university students struggling with the basic concept of the hierarchy of sources. Ask a law student's first year: a regulation may be in contrast to an ordinary law? He will answer: never. And try to ask him later: an ordinary law can be contrary to the Constitution? He will answer: never. The juice the question is this: if the Court tells you that the law called "Schifani award" felt the need to protect the prevailing serenity to the activity of the highest offices of State with respect to the fundamental values, how can you think that touching up here and Beyond the Law "award Schifani" you can do without touching core values?
On October 19, 2009 were filed that the reasons for the sentence but rejected the so-called "Lodo Alfano". The sentence is very long because long were the arguments that the private parties and the Court have held court. The Constitutional Court confirmed the sentence preceding point by point and also provided some clarification. He explained why he had not dealt directly with the question of whether the protection of the highest offices of state should be done with an ordinary law or a constitutional law. And he said about that, yes it is true that the device had not been told anything but the reasons for the decision was explained how and why. That is already explained that a change of basic rights in the Constitution can not be done by ordinary law but it takes a constitutional law. And on this subject has considered having to do a little lesson in constitutional law. It is said in the sentence: of course understood that the legislature with an ordinary law dealing with fundamental rights required by the Constitution. This happens when the legislature (Parliament) shall by means of an ordinary law a fundamental principle in the Constitution, makes it immediately operative in the process. What this does is consistent with the Constitution. There are dozens of examples of this Court and lists them. For example, he says, the Constitution provides for ministers of the guarantees of criminal proceedings and a subsequent Act of Parliament applying ordinary principle that indicates the manner and terms and conditions for criminal proceedings against a Minister, apply the Constitution by an ordinary law , makes it practical and not theoretical. One thing is to apply the core values \u200b\u200bwith an ordinary law and a ' another thing is to contradict them, break them with ordinary law. And he adds, there are even basic values \u200b\u200band highest that can be neither better nor worse by legislation nor by the ordinary laws or with constitutional law.
With this ruling, the Court certifies that the text Alfano has collected only part of the findings made with the first sentence. It ignored the findings heavier, pretending to ignore them, insisted on matters already decided in a clear previously, for example the question of the equal dignity of Ministers with respect to the President of the Council and that of MPs compared to the President of the Chamber. He denied that the new electoral law that obliges the state to the party or coalition that should be a constitutional rule that establishes a rule of Prime Minister on the Government itself (as argued Berlusconi's lawyers). They are lies, he said. A reform of this kind can only make a constitutional law. The Court has also ridiculed one of the adjustments made by the previous law Alfano Schifani defunct law. Alfano, the Minister emphatically in the policy and with no less fervor Berlusconi's lawyers before the Court had found that with the new text was prepared a reasonable and temporary protection to high office in the State stating that the suspension of the trial would not last for more than a warrant. The Court noted that if an office of the State as the Chairman of the House or the Senate or the same President of the Council were appointed towards the end of the term, in fact, would not that some very short period of protection, months or weeks, whereas if it were elected at the beginning of the term so-called protection would last the whole term, 5 years. With an unreasonable discrimination.
The controversy that followed the news of the preliminary ruling of the device, prior to the filing of the reasons, it was mostly focused on two poles: on one hand said he was "Hannu ammazzatu cumpari Turiddu," and the other is cumpari Turiddu CA surfaces ammazzari "shocked and surprised each other cynically satisfied. But the discussion was more appropriate be due to the fact that "cumpari Turiddu was already Mortu.
was a form of affectionate delicacy towards a 'Head of State, whose serenity (lovingly called as the Court) was already compromised? I'm talking about a delicacy not to say that the type of ugly that the dead man is dead you are beginning to say that he felt ill and that doctors there are ... you know how ... and then the hospitals know how they work ... the ill-health ... that we must have faith and strength. And he's got that Faith and Strength (...) well, it will be, or has been, convinced that all was not lost and that the dead man was not dead.
however, was the assurance that the new composition of the Court and any "help" policy would have ruled in favor of those arguing the primacy of the serenity of the high offices of state in the 'performance of duties? But it had never happened before the Constitutional Court reject itself by denying what had just argued, without hesitation and ambiguity? No, never.
was a clever deception to imply that the process before the Constitutional Court could "fix"? It was therefore a 'naive understanding of the facts to bite artificial cleverly crafted from old hands (whose mantle is known to be red)?
roughly Sciascia said that intelligence is not enough to discover the truth. You can make thousands of logical assumptions, unfounded, and all that hold the razor intellect but all criticism, however, contradict each other, because there is only one truth, and if no one shows you the truth, the only truth, not'll never know.
And here it appears that this is not the truth we will never know.
Why Alfano if the text was too similar to the text Schifani because in essence he had only changed one part-and even the most important one-why, say, the lawyers of the Prime Minister did not accept, for example, the relief moved by the unreasonableness of the Court that both the Prime Ministers since the equal dignity in the exercise of government because the government is a collegial body and therefore the ministers were protected in their serenity as the President of the Council? Because they openly defied the Court arguing that relief unfounded because, they say, if it falls on the head of government also falls if the government falls as a Minister does not fall all the government? They must have been removed from memory the recent story Mastella: the Prodi government falls because a minister resigns, whose wife is the subject of a case of serious crime and is arrested (as a precautionary measure). And they have also removed the most serious case that occurred during the crisis of Sigonella (Prime Minister Craxi) Spadolini when he resigned from government in full international crisis causing the fall (though temporary) that forced Craxi to return to Parliament for a new vote of confidence.
And because the head of state clearly suggests that the main criticisms of the Court, at least those relevant to him in terms of duties to be performed, seemed they had been welcomed and accepted by the new text? To make the situation? To take time? Opponent not to go to the government? To enhance the dialogue between the majority and the opposition? Because he preferred to run the risk of being Napolitano Pontius Pilate? Perhaps he knew that he could not take that risk, because no one would have reproached him? But now, that the reproach of not having exercised its prerogatives, is not going better?
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