Instructional goals
The course aims at providing students with the notions and conceptual tools necessary to autonomously analyse the Italian Constitution and to understand the main interpretive issues related to its application, with a special focus on the discipline of rights and duties. Moreover, the course aims at enriching each student’s “constitutional vocabulary” through the analysis of the case-law of the Italian Constitutional Court and of the European human rights courts.
Prerequisites
Ability to apply one’s knowledge and understanding: Students will be able to interpret and apply to real cases the principles and notions of Italian constitutional law, especially with respect to fundamental rights. Furthermore, students will be able to connect those notions and principles to supranational and international ones, in line with so-called “multilevel constitutionalism”.
Making judgements: By making use of the methodologies learned during the course, students will be able to interpret constitutional provisions on human and civil rights, to critically analyse legal provisions and to examine the Constitutional Court’s case-law, both on its own and in relation to supranational Courts’ assessments and judgements.
Communication skills: By the end of the course, students will be able to use the legal and technical vocabulary of constitutional law, particularly regarding constitutional and legal guarantees of fundamental rights. By taking part in class discussions on the most relevant case-law, students will gain advanced rhetorical skills with respect to constitutionality proceedings.
Learning ability: the knowledge gained during the course will allow students to autonomously understand and interpret regulatory changes, new case-law and scholars’ approaches to constitutional provisions on fundamental rights.
Intended learning outcomes
Students are required to pass the Constitutional Law 1 exam (Diritto Costituzionale 1) before taking the Constitutional Law 2 exam (Diritto Costituzionale 2).
Course Contents
The course aims at analysing the protection of fundamental rights in the Italian constitutional system and in the supranational dimension.
Namely, the following topics will be addressed:
*Constitution, constitutionalism and the protection of fundamental rights.
*Rights in the Italian Constitution. Form of state, democratic principle and rights. “Multilevel constitutionalism”.
*Rights of freedom in the Italian Constitution. Structure, content and limits to the rights of freedom. Rights of freedom and social rights.
*Rights in progress: art. 2 of the Italian Constitution between inviolable rights and mandatory duties of solidarity; human dignity; imprisonment and constitutional rights; freedom of speech online; historical negationism; freedom of artistic expression; right to education and compulsory education; the fundamental nature of the right to health; homosexual couples’ rights; freedom and military law; the right to associate into political parties; right to vote; democratic participation.
Reference Books
It is essential to be familiar with the Italian Constitution and the basic notions gained during the Constitutional Law I (Diritto Costituzionale I) course.
Students can prepare for the exam by studying the following texts:
1) Donatella Morana (ed.), “I diritti costituzionali in divenire. Tutele consolidate e nuove esigenze di protezione”, Editoriale scientifica, Napoli, 2nd ed., 2023.
2) Raffaele Bifulco e Marco Benvenuti (eds.), “I diritti e i doveri costituzionali”, 3rd volume of the “Trattato di diritto costituzionale”, Giappichelli, Torino, 2022 (except for chapters III.4, III.7 and III.8).
Judgements and papers analysed during lectures will be part of the exam program (further details will be shared on MyLuiss).
Teaching Methods
“Face to face” teaching, case analysis and class discussion. Group work and presentations by the students.
Assessment Method
During the oral exam, students will be required to demonstrate: that they know and understand the Italian constitutional system, especially those provisions regarding fundamental rights; that they understand the main interpretive issues addressed in the Italian constitutional case-law on the subject of fundamental rights; that they understand the scope of application of both national and international guarantees of fundamental rights. Students are expected to be able to independently analyse the relevant sources of law and the Italian constitutional case-law and to use the appropriate technical and legal vocabulary, thus proving that they have acquired the study method and the learning ability necessary to further delve into the subject.
The following evaluation criteria will be taken into account to assign the final grade (out of 30): - failure to pass the exam: poor preparation; - from 18 to 21: sufficient knowledge of the basic notions of constitutional law regarding fundamental rights; from 22 to 24: more than sufficient knowledge, good rhetorical skills when addressing the main interpretive issues tackled by the courts; - from 25 to 27: good level of knowledge and ability to independently analyse legal institutions and the case-law; - from 28 to 30: excellent level of knowledge and communication skills, as well as extensive knowledge of the legal institutions and notions; - 30 cum laude: excellent level of knowledge and brilliant exposition, as well as full autonomy in making judgements. Activities carried out during the course (student presentations, group work etc.) and active participation in the classroom discussion will also be taken into account for the purposes of awarding the grade.
Thesis assignment criteria
Interest in the course; grade of at least 27/30 as a result of the final oral exam.
Week 1
Introduction to the Course.
Constitutionalism and the protection of fundamental rights. Rights of freedom and rule of law. The addition of social rights to 20th-century Constitutions. The “internationalization” of human rights.
(see A. D’Atena, Le stagioni del costituzionalismo nel suo rapporto con la tutela dei diritti fondamentali, in Diritto e società, 1/2017, available on MyLuiss)
Comparative analysis of the constitutional texts that marked the birth of modern constitutionalism.
Week 2
The protection of rights in the democratic-liberal model. Principles, values, rights.
(see A. D'Atena, Tensioni e sfide della democrazia, in Rivista AIC, 2018, available on MyLuiss)
Introduction to the main models of Court decisions that are of interest in constitutional law and analysis.
Week 3
Article 2 of the Italian Constitution. The so-called personalistic principle. Inviolability of rights.
So-called “new rights”. The right to privacy. Sexual freedom.
Preparations for student group work. Introduction to case-law analysis sheets. Example of presentation.
Week 4
Human dignity and equal social dignity. Objective and subjective dignity in the constitutional case-law.
Human dignity and end of life.
Constitutional Court, judgement no. 141/2019: human dignity as a limitation to the freedom of private economic enterprise. Constitutional Court, ord. no. 207/2018 and judgement no. 242/2019: the “Cappato case”; Constitutional Court, judgement no. 50/2022: inadmissibility of the referendum on consensual homicide; Constitutional Court, judgment no. 135/2024: current requirements for access to medically assisted suicide. Case-law analysis, student presentations and discussion.
Week 5
Supranational and international protection of human rights. The so-called multilevel system.
(see F. Biondi, Quale dialogo tra le Corti?, in federalismi.it, 18/2019, available on MyLuiss)
Constitutional Court, judgements no. 269/2017 and no. 20/2019, ord. no. 117/2019: the protection of rights between the Nice Charter and the Italian Constitution; Constitutional Court, judgement no. 15/2024: direct application of EU law and constitutional review in anti-discrimination proceedings. Case-law analysis, student presentations and discussion.
Week 6
Personal freedom.
Inviolability of the home.
Right to reside and travel freely.
Dignity, self-determination and health when in prison. ECHR, Yakovlyev v. Ukraine, 8.12.2022: hunger strike, forced feeding and prohibition of «inhuman or degrading treatment» of inmates.
Case-law analysis, student presentations and discussion.
Week 7
Imprisonment and constitutional rights. Inmates’ rights. Re-educational paradigm of penitentiary treatment.
Constitutional Court, judgment no. 253/2019, ord. no. 97/2021 and 122/2022: questionable constitutionality of legal provisions precluding inmates convicted of certain mafia-related crimes and serving a life sentence from eligibility for bonus periods of short release. References to relevant ECHR case-law, and especially to Viola v. Italy (no. 2), 13.06.2019. Constitutional Court, judgment no. 10/2024: the right to emotional and affective relationships for inmates.
Case-law analysis, student presentations and discussion.
Week 8
Freedom and confidentiality of correspondence and of every other form of communication, freedom of expression.
Freedom of speech online and its limits. Hate speech and fake news. The online press.
Historical negationism.
Constitutional Court, judgement no. 150/2021: freedom of information and defamation. Constitutional Court, judgment no. 170/2023: are emails and WhatsApp messages considered correspondence?
ECHR case-law on historical negationism: from Remer v. Germany (1995) and Garaudy v. France (2003), on Holocaust denial, to Perinçek v. Switzerland (2015), on the Armenian genocide.
Case-law analysis, student presentations and discussion.
Week 9
Constitutionally protected freedoms and the Covid-19 health emergency: personal obligations (art. 23), health protection and restrictions on the right to reside and travel freely in any part of the country.
(see D. Morana, Le libertà costituzionali in emergenza: spigolature tra libertà personale, circolazione del territorio e prestazioni personali imposte, 2020, available on MyLuiss)
The fundamental nature of the right to health: observations on the “Ilva case”.
Constitutional Court, judgement no. 198/2021: health emergency and sources of law; Constitutional Court, judgement no. 127/2022: mandatory isolation.
Case-law analysis, student presentations and discussion.
Week 10
Religion in the Italian Constitution; religious freedom.
Freedom of artistic expression.
Homosexual couples’ rights and the Constitution. Same-sex parenting.
ECHR, Ben el Mahi and others v. Denmark, 11.12.2006: freedom of artistic expression v. protection of religious sensitivities.
From Constitutional Court, judgment no. 170/2014, to Constitutional Court, judgments nos. 269/2022 and 143/2024: gender identity, right to marry and the Constitution.
Case-law analysis, student presentations and discussion.
Week 11
Right to assemble and right to form or join associations.
Right to vote and freedom to associate into political parties. Democratic participation.
Constitutional Court, judgement no. 150/2018, and Court of Cassation, civil division, United Sections, judgement no. 8906/2020: magistrates and the right to become members of political parties.
Council of State, IV Section, judgment no. 5845/2017, and Constitutional Court, judgment no. 120/2018: military personnel’s freedom of political association and right to unionize.
Case-law analysis, student presentations and discussion.
Week 12
Social rights, legislative implementation and budgetary constraints.
Right to education, right to health, right to social assistance.
The “swinging” case law of the Italian Constitutional Court: judgements no. 10/2015, 70/2015, 152/2020, 10/2022. Analysis and discussion.
(see L. Pirozzi, Dalla sentenza n. 10/2015 alla sentenza n. 70/2015: dichiarazioni di illegittimità costituzionale “costose” e oscillazioni della Corte, available on MyLuiss)
Constitutional Court, judgment no. 275/2016: financially conditional and/but «incompressible» rights; Constitutional Court, judgment no. 83/2019: funding for the support of students with disabilities must always be guaranteed.
Case-law analysis, student presentations and discussion.