Costitution of Italy 1 st step Monarchy was

Costitution of Italy 1 st step: Monarchy was abolished and the Constituent Assembly was elected by universal suffrage on 2 June 1946 (men and women could vote for the first time) 2 nd step : The Italian Constitution was enacted by the Constituent Assembly on 22 December 1947 3 rd step : The Constitution came into force on 1 January 1948, one century after the Statuto Albertino was enacted 4 th step: The Constitution forbade the male descendants of the royal family from entering the territory of the Republic (repealed in 2002)

The Constitutional compromise The constitutional compromise: The three tendencies: §solidaristic christian democratic §liberal §left-wing They enlivened debate in the Assembly and wanted to insert something reflecting their values in the Constitution EXAMPLES 1) marriage and the family solidaristic Christian democratic 2) workers' rights communism and socialism They reached an agreement on one point: • NO DICTATOR SHOULD HAVE TYRANNIZED ON THE COUNTRY

The Constitution’s structure The Constitution is composed of 139 articles and arranged into three main parts: 1 st: Fundamental Principles (articles 1– 12) 2 nd: Rights and Duties of Citizens (articles 13– 54) 3 rd: Organisation of the Republic (articles 55– 139), followed by 18 Transitory and Final Provisions Power is divided among : • the executive The Constitution establishes the balancing and • the legislative interaction of these branches • judicial branches

Revisions to the 1948 Costitution Parliamentary Commissions have been convened to review the 1948 text particulaly Part II. In each instance the necessary political consensus for change was lacking. Three Parliamentary Commissions have been convened in: 1983– 1985 1992– 1994 1997– 1998

Amendments The text of the Constitution has been amended 14 times: Article 48 Article 51 Article 56, 57 & 60 Article 68 Article 79 Article 88 Article 96 Article 114 to 132 Article 134 & 135 Article 10 and 26

IMPORTANT AMENDMENTS parliamentary representation of Italians living abroad the devolution of powers to the Regions the direct election of Regional Presidents, and guarantees of fair trials in courts the limitation of the civil rights of the male descendants of the House of Savoy participation in politics no death penalty was ever sentenced and the capital punishment was canceled from military laws

Article 48 (postal voting) The law defines the conditions under which the citizens living abroad can exercise their electoral right. A constituency of Italians abroad is established for election of the Houses of Parliament the number of seats of such constituency is set forth in a constitutional provision and in accordance with criteria established by law.

Article 51 (women's participation) Citizens of one or the other sex are eligible for public offices and for elective positions under equal conditions, according to the rules established by law. To this end, the Republic adopts specific measures in order to promote equal chances for men and women.

Article 56, 57 & 60 • The Chamber of Deputies is elected by direct and universal suffrage. • The number of Deputies is six hundred and thirty, twelve of which are elected in the Overseas Constituency. • The Senate of the Republic is elected on a regional basis. The number of Senators to be elected is three hundred and fifteen, six of which are elected in the Overseas Constituency. • The Chamber of Deputies and the Senate of the Republic are elected for five years. • The term for each House cannot be extended, except by law and only in the case of war.

Article 68 (indemnity and immunity of members of Parliament) • Members of Parliament cannot be held accountable for the opinions expressed or votes cast in the performance of their function. • Without the authorisation of their respective House, Members of Parliament may not be submitted to personal or home search, nor may they be arrested or otherwise deprived of their personal freedom. • The same authorisation is required for Members of Parliament to be submitted to the surveillance of their conversations or communication, in any form, and to the seizure of their correspondence.

Article 79 (amnesties and pardons) The law granting an amnesty or pardon establishes the deadline for its implementation. Amnesty and pardon cannot in any case apply to offences committed following the introduction of the bill in Parliament.

Article 88 (dissolution of the Houses of Parliament) The President of the Republic, having heard the Presidents of the Houses, may dissolve Parliament or even only one House. The President of the Republic cannot exercise said right during the last six months of the presidential mandate, unless said period coincides in full or in part with the last six months of Parliament.

Article 96 (impeachment) The President of the Council of Ministers and the Ministers, even if they resign from office, are subject to normal justice for crimes committed in the exercise of their duties, provided authorisation is given by the Senate of the Republic or the Chamber of Deputies, in accordance with the norms established by Constitutional Law.

Article 114 to 132 (Regions, Provinces and Municipalities in its entirety) The Republic is composed of the Municipalities, the Provinces, the Metropolitan Cities, the Regions and the State. Municipalities, provinces, metropolitan cities and regions are autonomous entities having their own statutes, powers and functions in accordance with the principles laid down in the Constitution.

Article 134 & 135 (composition and length of term of the Constitutional Court) The Constitutional Court shall pass judgement on: • controversies on the constitutional legitimacy of laws and enactments having the force of law issued by the State and the Regions; • conflicts arising from allocation of powers of the State and those powers allocated to State and Regions, and between Regions; • accusations made against the President of the Republic and the Ministers, according to the provisions of the Constitution

Article 10 and 26 Articles were integrated by a constitutional provision which established that their last paragraphs which forbid the extradition of a foreigner for political offences do not apply in case of crimes of genocide.

Fundamental rights and their protection

Every citizen is able to do what he wants (he has always to respect laws) Everybody is free in his space and the authority has to abstain

UK has not a catalogue of rights: you can bring them from cases about rights and individual freedom: 1. Rule of law 2. Habeas corpus

Rights and documents 1. Right of the individual’s Magna Charta Libertatum freedom 2. Right of property 3. Freedom of expression Bill of Rights 1689 4. Freedom of meeting 5. Freedom of association Protection of the fundamental rights

Freedom of demonstration 1. Censorship is banned 2. News are limited: Ø Secret state Ø Obscene acts Ø Racial hate 1. Quality and impartiality of TV 2. Capacity of survey of the press 3. Information has a tradition of: Ø Freedom Ø Indipendence from politics Control of power

Negative aspects of UK system 1. Legislative power has no limit 2. No law is superior and can protect the individual from parliament Great Britain wants to introduce a new Bill of Rights

UK Common Law European Conventions on Human Rights of 1950/51 1. Abolition of corporal penalty at school 2. Interpretation of UK Common Law on the negative aspects of UK System

Human Rights Act 1998 It is the official union between UK Common Law and European Conventions: 1. Protection on Human Rights in UK 2. Prohibition to act against European Convention (Incompatibility of the Common Law) 3. Citizen have a right to a compensation when there are “Incompatibility cases” Application Constitutional validity

Application of Human Rights Act 1998 Human Rights on the foreign people after 11 September 2001 of Anti – Terrorism Act (2000) Detention of inmate for indeterminate time

Constitutional Reform Act 2005 Institution of High Court on the debate of “Incompatibility”: Ø Power of Judge to save the Constitutional Validity The importance of UK Parliament as representation of England Freedom do not let up

Common Law

What is it? • It refers to law and to the legal system developed through decisions of courts and similar tribunals (case law). • It is law created and refined by judges

Where is it used now a day? England Wales Ireland Federal law in USA and in Canada Australia and New Zealand India Africa And every country which has been colonised by Great Britain

Primary Connotations: 1. Common Law as opposed to statutory law and regulatory law 2. Common law legal systems as opposed to civil law legal systems 3. Law as opposed to equity

Common law as opposed to statutory law and regulatory law Common law : Decisions issued by courts Statutory law: enacted by a legislature Regulatory law: promulgated by executive branch agencies pursuant to a delegation of rule – making authority from legislature

Common law legal systems as opposed to civil law legal systems Common law: systems place great weight on court decisions. They are considered "law“ with the same force of law as statutes. Civil law: judicial precedent is given relatively less weight, and scholarly literature is given relatively more

Law as opposed to equity Courts of law: could only award money damages and recognized only the legal owner of property Courts of equity: could issue injunctive relief and recognized trusts of property.

Where was important the distinction between law and equity? Categorizing and prioritizing rights to property The remedies available and rules of procedure to be applied The standard of review and degree of deference given by an appellate tribunal to the decision of the lower tribunal under review.

History of the common law It was the law that the whole country had in common The form of reasoning used was known as casuistry or case-based reasoning It was devised as a means of compensating someone for wrongful acts known as torts The type of procedure practiced was known as the adversarial system

Common law legal system now a day The main alternative to it is the civil system. The opposition between it and the civil system has become blurred, with the growing importance of jurisprudence civil law countries and of statute law and codes in common law countries. An example of this is the United States, where matters of criminal law, commercial law and procedure have been codified

Common law and civil system : Scotland It usess the civil law system but in fact it has a unique system that combines elements of an uncodified civil law dating back to the Corpus Juris Civilis with an element of common law long predating the Treaty of Union with England in 1707.

Common law and civil system : Israel It has a mixed system of common law and civil law. Israeli law is undergoing codification but its basic principles resemble those of British and American law (the role of courts in creating the body of law and the authority of the supreme court in overturning legislative and executive decisions)

Common law and civil system: The USA federal governement It has a variant on a common law system: USA federal courts only act as interpreters of statutes and the constitution but, unlike state courts, do not act as an independent source of common law.

Basic principes of Common Law

Common law adjudication Several stages of analysis determinate what “the law is” in a given situation: To aschertain the facts To locate any relevant statutes and cases To extract principles, analogies and statments To integrate all the lines drawn To determine what “the law is” To apply the law to facts

Evolution The common law courts can revise a law to adapt it to new trends The common law evolves through gradual steps and the evolution is in the hands of judges

Interaction of constitutional, statutory and Common low In England, Wales and most states of the USA the basic law of contracts, torts and property do not exist in statute but only in Common law You have to locate precedential decisions on a topic to find out what the precise law is Some statutes displace Common law by contrast to statutory codification of Common law to create a new cause of action that did not exist in the Common law

Contrasting role of treatises and academic writings in common law and in civil law sistem In common law jurisdictions, legal treatises compile common law decisions and state overarching principles that explain the result of the cases In civil law jurisdictions the writings og law professors are given significant weight by courts

Common law as a foundation for commercial economies The reliance on judicial opinion is a strength of common law systems It is a significant contributor to the robust commercial system in the UK and USA In non-common-law countries and jurisdiction fine questions of law are redetermined anew each time they arise In jurisdiction that do not have a strong allegiance to a large body of precedents, parties have less a priori guidance and a bigger “safety margin” of unexploited opportunities

Forms of government • France • Switzerland • The United Kingdom • USA • Spain • Germany

France The French Republic is a semi-presidential republic It has a strong democracy traditions

Semi-presidential It is a system of government in which a president and a prime minister are both active participants in the administration of the state.

Switzerland It is an old federal governaments It is an original example of Direct democracy The Swiss Confederation consists of 26 cantons

Cantons A canton is a type of administrative division of a country Cantons are small in terms of area and population

The United Kingdom It is an exmple of parlamentary and democracy The United Kingdom is a constitutional monarchy

Constitutional monarchy A constitutional monarchy is a form of constitutional government, where either an elected or hereditary monarch is the head of state Most constitutional monarchy have a parliamentary system in which the monarch is the head of state, but an elected prime minister is head of government.

USA It is a constitutional republic It si composed by fifty states It is structured as a rapresentative democracy

Spain is a constitutional monarchy, with a hereditary monarch and a bicameral parliament Spain is politically organized into 17 autonomous communities

Germany is a federal, parliamentary, representative democratic republic The German political system operates under a framework laid out in the 1949 constitutional document known as the Grundgesetz (Basic Law).

Federal republic is a federation of states with a republican form of government. A federation is the central government. The states in a federation also maintain the federation.

Parliamentary systems are characterized by no clear-cut separation of powers between the executive and legislative branches,

Representative Democracy Representative democracy is a form of government founded on the principle of elected individuals representing the people

Republic is a state or country that is not led by a hereditary monarch The people have an impact on its government The word 'republic' is derived from the Latin res publica which can be translated as "public thing".

Democracy is a form of government in which state-power is held by the majority of citizens.

THE PARLIAMENT and THE CROWN

Functions Approve laws Organize the financial means so that the Government could do its functions. Control the activity of the Government and of the administration Discuss themes on the agenda

The English Parliament Composition: House of Commons House of Lords Sovereign Site: Westminster Meetings: The Houses usually execute their functions separately They meet only in symbolical occasions (for example the opening of the parliamentary session)

Imperfect bicameralism House of Commons: Decision body Between I and the Government there is a trust indenture House of Lords: It isn’t representative Its powers are limited Chamber of second-thought (It can only delay the approval of laws)

House of Lords Composition: PRESIDENT: Lord Chancellor (Justice Minister and Prime Judge of the Kingdom) 733 COMPONENTS: 588 Life Lords (nominated by the sovereign) 25 Spiritual Lords (bishops of the Anglican Church) 92 Lords for “rights of blood” 28 Judicial Lords (Law Lords) House of Lords = Court of Law BUT Constitutional Reform Act 2005: Creation of a Supreme Court of U. K.

House of Commons Elections: every 5 years - universal suffrage Composition: 659 members PRESIDENT: impartial Speaker Parliamentary Commissions : Standing commissions (specific competences, legislative function) Selected commissions (control the Government)

House of Commons “Architectonic structure” Other Countries’ Parliament House of Commons Semi-cycle Parallel lines Debate between majority and opposition

The sessions Parliamentary life is organised into sessions (DURATION: 1 year / about 160 meetings) Development The Government tells its political program Queen’s speech new bills Discussion Voting APPROBATION REFUSAL: the Premier can: resign dismiss the House of Commons

The approbation of the laws Government + House of Commons House of Lords Sovrano Bill ed approbation Second thought and approbation Royal Assent

Legislative Process Bill: Can be proposed by every member of the Parliament Decay at the end of every session Examined by the House of Commons Ancient procedure: 3 readings Take into consideration Debate on the general principles Detailed exam Examined by the House of Lords (similar procedure)

Control of the executive Interrogations the commissions interrogate the ministers about themes of public interest QUESTION TIME the opposition is allowed to discuss and criticize the Government’s work The Prime Minister answers from the public TV twice a week

The crown Histoy of British constitution affirmation of the monarchic form (Republic only from 1649 to 1660) Regina Head of State Symbol of national unity Chief of the executive and of Justice Important role in the legislative power Chief of the army Chief of the Anglican Church

Limits of the monarchic power Limits: Act only on propose of the ministers The Queen cannot act alone Consent of a minister Effective powers : Right of: Being consulted Encourage Admonish In rare cases: She can name the Premier She can dismiss the House of Commons

Treaty establishing a Constitution for Europe

The European Constitution was an international treaty intended to create a constitution for the European Union • It would have replaced the existing Treaties of the European Union with a single text • Given limited legal force to the Charter of Fundamental Rights • Expanded Qualified Majority Voting into policy areas

2004 It was signed in by representatives of then 25 member states of the European Union and needed to be ratified by all member states to enter into force 2005 The rejection of the Constitution by French and Dutch 2007 The European Council decided to start negotiations on a Reform Treaty The Lisbon Treaty

Drafting Valéry Giscard d'Estaing proposed to draft a "European Constitution” July 2003 The "Draft Treaty establishing a Constitution for Europe“ was published In the meanwhile … Romano Prodi backed a draft text which contained a deeper integration of the countries Penelope Project June 2004 The Irish presidency the final text of the TCE

Signing and ratification 29 october 2004 53 senior political figures from the 25 member states of the European Union signed the Constitution for Europe 12 Jenuary 2005 The European Parliament voted a legally non-binding resolution in support of the Constitution 29 may 2005 The French public rejected the Constitution by margin of 55% to 45% on a turn out of 69% The Dutch rejected the constitution by a margin of 61% to 39% on a turnout of 62% 10 July 2005 Luxembourg held a referendum on 10 July 2005 approving the Constitution by 57% to 43%

Post-rejection 4 June 2007 The Amato Group proposed to rewrite the Treaty on European Union The new treaty would be based on the first and fourth parts of the Constitution June 2007 • Member States agreed to abandon the constitution and to amend the existing treaties • They agreed a detailed mandate for a new intergovernmental conference to negotiate a new treaty containing 13 december 2007 The new treaty become the Lisbon Treaty on its signing in Lisbon

Institutional structure • The Council of the European Union would have been formally renamed the "Council of Ministers” • The "General Affairs Council" would have been formally split from the "Foreign Affairs Council” which had held meetings separately since June 2002 • The TCE included a flag, an anthem and a motto

Conferral, subsidiarity, proportionality The TCE would have reiterated several key principles of how the Union functions: • The principle of conferral: that all EU competences are conferred on it voluntarily by member states; • The principle of subsidiarity: that governmental decisions should be taken at the lowest level possible while still remaining effective; • The principle of proportionality: that the EU may only act to exactly the extent that is needed to achieve its objectives; • The primacy of EU law: in areas where member states have made legally binding agreements at EU level, they may not then pass national laws incompatible with those EU laws.

Primacy of Union law The European Court of Justice has consistently ruled since 1964 that EU law has primacy over the laws of member states in the areas where member states allow it to legislate. National law is deemed to be 'disapplied' when questions arise in courts. The case of Van Gend en Loos in 1963 which was followed in Costa v. ENEL in 1964

Common values of the Union's member states: • Human dignity • Freedom • Democracy • Equality • Trule of law • Respect for human rights • Minority rights • Free market

Member states also declare that the following principles prevail in their society: • Pluralism • Non-discrimination • Tolerance • Justice • Solidarity • Equality of the sexes Some of these provisions are codified for the first time in the TCE.

Aims of the Union The aims of the EU, according to the TCE, are made explicit (Article I-3): • Promotion of peace, its values and the well-being of its people • Maintenance of freedom, security and justice without internal borders, and an internal market where competition is free and undistorted • Sustainable development based on balanced economic growth and price stability, a highly competitive social market economy • Social justice and protection, equality between women and men, solidarity between generations and protection of the rights of the child • Economic, social and territorial cohesion, and solidarity among member states • Respect for linguistic and cultural diversity

In its relations with the wider world the Union's objectives are: • To uphold and promote its values and interests • To contribute to peace, security, the sustainable development of the Earth • Solidarity and mutual respect among people • Free and fair trade • Eradication of poverty and the protection of human rights, in particular the rights of the child • Strict observance and development of international law, including respect for the principles of the United Nations Charter

Competences The EU has six exclusive competences, policy areas in which member states have agreed that they should act exclusively through the EU and not legislate at a national level. • Customs union • Those competition rules that govern the internal market • Eurozone monetary policy • Conservation of marine biological resources (the Common Fisheries Policy) • Common commercial policy • The conclusion of certain limited international agreements

Flexibility clause The TCE's flexibility clause allows the EU to act in areas not made explicit in the TCE, but only: • If all member states agree • With the consent of the European Parliament • Where this is necessary to achieve an agreed objective under the TCE This clause has been present in EU law since the original Treaty of Rome, which established the EEC in 1958

Legal personality The European Union for the first time has legal personality under the TCE. This means that it is able to represent itself as a single body in certain circumstances under international law. Most significantly, it is able to sign treaties as a single body where all its member states agree.

Criminal justice proceedings Member states would have continued to co-operate in some areas of criminal judicial proceedings. Under the TCE, seven new areas of co-operation would have been added: • Terrorism • Trafficking in persons • Offences against children • Drug trafficking • Arms trafficking • Corruption • Fraud

Solidarity clause The new solidarity clause of the TCE specifies that any member state which falls : victim to a terrorist attack disaster will receive assistance from other member states The type of assistance is not specified The arrangements will be decided by the Council of Ministers should the situation arise.

Charter of Fundamental Rights of the European Union Main article: Charter of Fundamental Rights of the European Union The TCE includes a copy of the Charter already agreed to by all EU member states. This is included in the Constitution so that EU institutions themselves are obliged to conform to the same standards of fundamental rights

Simplified jargon and legal instruments The TCE makes an effort to simplify jargon and reduce the number of EU legal instruments The TCE unifies legal instruments across areas of policy : • 'European Regulations' and 'Decisions' both become referred to as European laws. • 'European Directives' and 'Framework Decisions' both become referred to as European framework laws. • 'Conventions' are done away with, replaced in every case by either European laws or European framework laws. • 'Joint actions' and 'Common positions' are both replaced by Decisions.

Position of Union Minister for Foreign Affairs The present role of High Representative for the Common Foreign and Security Policy would be amalgamated with the role of the Commissioner for External Relations This would create a new Union Minister for Foreign Affairs who would also be a Vice President of the Commission This individual would be responsible for co-ordinating foreign policy across the Union where member states agree to speak with one voice.

Qualified majority voting More day-to-day decisions in the Council of Ministers would be to be taken by qualified majority voting, requiring a 55% majority of members of the Council representing a 65% majority of citizens. The unanimous agreement of all member states would only be required for decisions on more sensitive issues, such as tax, social security, foreign policy and defense.

President of the European Council The Presidency of the European Council would switch to a chair chosen by the heads of government, in office for 2½ years and renewable once. The role itself would remain administrative and non-executive Rather than the Presidency being held by a member state as at present It would be held by an individual elected by and accountable to the Council.

President of the Council of Ministers The Presidency of the Council of Ministers coincides with the Presidency of the European Council He would be changed to an 18 -month rotating Presidency shared by a trio of member countries The exception would be the Council's Foreign Affairs configuration, which would be chaired by the newly-created Union Minister for Foreign Affairs.

Parliamentary power and transparency • President of the Commission • Parliament as co-legislature • Meeting in public The candidate would be proposed by the European Council, after consultation with MEPs The European Parliament would acquire equal legislative power under the codecision procedure with the Council. It had this power in in most cases but not allall power most cases but not Council of Ministers would be required to meet in public when debating all new laws but only for texts covered under the Codecision procedure

• Budget • Role of national parliaments • Popular mandate (aka initiative) The final say over the EU's annual budget would be given to the European Parliament Member states' national parliaments would be given a new role in scrutinising proposed EU laws, and would be entitled to object if they feel a proposal oversteps the boundary of the Union's agreed areas of responsibility The Commission would be invited to consider any proposal "on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Constitution" which has the support of one million citizens

Treaty revisions The unanimous agreement decided the alteration of the European Council Proponents of the TCE claim that any amendments to the Constitutional treaty will involve the convening of a new Convention This process may be bypassed if the European Parliament agrees A small revisions can be made by the European Council through the so-called 'Passerelle Clause' (Article IV-444) if every member state agrees

Withdrawal clause A new clause in the TCE allows for the withdrawal of any member state without renegotiation of the TCE or violation of treaty commitments (clause I-60). When a country notifies the Council of its intent to withdraw, a settlement is agreed in the Council with the consent of Parliament. If negotiations are not agreed within two years, the country leaves anyway. The process described is a formalisation of the process which Greenland used to leave the EC in 1985.