Consult, Flick: “push judges to go beyond often inappropriate, Legislator in crisis”

The warning of the Constitutional Court which expires tomorrow, granted to the Legislator in the decree 132/2020 ‘Offenses of defamation in the press and application of the prison sentence’, “is different from the two emblematic precedents (end of life and impedimental life sentence) that raised uproar and discussions: This time the Council has not dictated any new discipline or affirmed the unconstitutionality, temporarily paralyzing it “. But Parliament’s inattention “shows that recourse to warnings is a tool that has unfortunately worn out”. The former president of the Constitutional Court, Giovanni Maria Flick, talks about it with Adnkronos, saying: “Pushing judges to go further is often not appropriate. But I realize, however, that often there are no other solutions, also because on the parliamentary front we are witnessing a profound crisis of delegitimization of Parliament as a legislative body, for which the Legislator is also responsible “. Flick recalls: “In the Cappato case, the legislator was asked to introduce non-existent legislation in the face of a dramatic situation; in the life imprisonment impediment the unconstitutionality of a provision was recognized but the Court asked the legislator to modify the discipline taking into account the danger situations of this type, delaying the ‘cancellation’ of the law itself for unconstitutionality “. The position of the Council is different in the ordinance 132/2020 on the crimes of defamation in the press and the application of the prison sentence: “the Court – Flick remarks – recognizes unconstitutionality but does not pronounce it because an amendment procedure is in progress by the Legislator. He therefore postpones the decision, waiting for the Parliament to complete the process “. However, the process has not been completed, so? “I am not able to make predictions. I am against ‘predictive’ interviews, bad copies of ‘predictive’ judgments which they think they can make predictions about the future from the past – he replies – I have too much respect for the Constitutional Court to express any advance assessment on what it will decide. It is certain, however, that the Council has neither accelerated on unconstitutionality, nor has it deemed it possible to advance the outline of a legislative discipline that could regulate the situation. However, I note that making judgments of unconstitutionality without making them operational, or however building alternative rules (as in the Cappato case for the end of life) pushes the judges to go further. And this is perhaps inappropriate. Tomorrow the Council will find itself faced with a situation in which it has expressed strong perplexity following the rulings from the Court European Union of human rights on prison for defamation, binding on us. But – concludes Flick – it has no no new discipline or affirmed unconstitutionality temporarily paralyzing it “. (by Roberta Lanzara)