INDICE

INTRODUZIONE – INTRODUCTION

Cristiano Celone – Lo stretto legame tra sviluppo sostenibile, tutela della biodiversità e degli ecosistemi

I SEZIONE
SCENARI DI SVILUPPO SOSTENIBILE – SCENARIOS OF SUSTAINABLE DEVELOPMENT

Viviana Molaschi – Le molteplici dimensioni dello sviluppo sostenibile
Vicente De Paula Ataíde Junior, Yuri Fernandes Lima – Sustentabilidade ética e senciência animal
Luiz Guilherme Arcaro Conci – Protection of people displaced for environmental reasons and the problems arising from regulatory asymmetry in Latin America
Marcello Pollara – La promozione delle energie rinnovabili in Italia tra interessi pubblici e privati
Eduardo Parisi – Notazioni in merito al criterio “non arrecare danno significativo”
Anna Simonati – Scenarios of sustainable development

II SEZIONE
TUTELA DELL’ACQUA E SERVIZI ECOSISTEMICI – WATER PROTECTION AND ECOSYSTEM SERVICES

Salvatrice Vizzini – Biodiversità marina: una risorsa fondamentale per i servizi ecosistemici e lo sviluppo sostenibile
Carmela Leone – Acqua, ambiente e responsabilità condivisa: verso una governance integrata dei beni comuni
Antonio Francipane, Leonardo Valerio Noto La risorsa idrica nel Mediterraneo e in Sicilia: Trend storici e proiezioni future
Giulia Torta – La qualità dell’aria: tutela giuridica tra dinamiche normative e sviluppo sostenibile
Antonio Mazzola – Water protection and ecosystem services 197

III SEZIONE
AGRICOLTURA SOSTENIBILE E RIPRISTINO DELLA BIODIVERSITÀ – SUSTAINABLE AGRICULTURE AND BIODIVERSITY RESTORATION

Marco Brocca – Agricoltura, paesaggio e biodiversità tra sviluppo economico e tutela dell’ambiente
Giannantonio Domina – Conca d’Oro (Palermo, NW Sicily) landscape transformation and the connected biodiversity loss risk
Rafael Da Silveira Bueno – Ecological restoration of areas under desertification
Ettore Barone – Sustainable agriculture and biodiversity restoration

IV SEZIONE
SOSTENIBILITÀ CLIMATICA E TUTELA DELL’AMBIENTE – CLIMATE SUSTAINABILITY AND ENVIRONMENTAL PROTECTION

Francisco De Assis Mendonça – Mudanças/Emergência climática e sustentabilidade: cenários e desafios desde o Brasil
Francesco Sottile – Agrobiodiversity as a tool for a better climate
Estefânia Maria De Queiroz Barboza, Thalison Daniel Dullius – Socioenvironmental Constitutionalism and Authoritarian Regressions: Indigenous Rights and Judicial Resistance in Brazil
Nicola Gullo – Climate sustainability and environmental protection

V SEZIONE
USO SOSTENIBILE DEL SUOLO E TRANSIZIONE ECOLOGICA – SUSTAINABLE LAND USE AND ECOLOGICAL TRANSITION

Giuseppe Andrea Primerano – Soil Consumption and Urban Regeneration
Daniele Ronsivalle – Rigenerazione urbana e nodi di mobilità: strategie integrate per la qualità dello spazio pubblico. Analisi teorica e applicazioni 
Daniele Di Trapani, Giovanni Vinti, Gaspare Viviani – Brownfields: come limitare il consumo di suolo rigenerando le aree urbane
Alessio Martini – Il rafforzamento della tutela giuridica del suolo. Nuovi obiettivi, vincoli ed esigenze di coordinamento amministrativo
Giovanni Francesco Tuzzolino – L’architettura e la cura del suolo
I curatori e gli autori

L'articolo Nuove Autonomie – Numero 2-2025 – Speciale proviene da Nuove Autonomie.

INDICE
DOTTRINA

Marco Mazzamuto – Esiste una nozione giuridica di periferia? – 5
Josep Ramon Fuentes i Gasó y Marina Rodríguez Beas – La protezione delle coste nell’ordinamento giuridico spagnolo – 17
Anna Romeo – Autonomia scolastica e diritti fondamentali – 55
Vittoria Berlingò – Per un nuovo rapporto tra Scuola e Territorio: Il Piano Nazionale per la prevenzione della dispersione scolastica nelle periferie – 65
Cristiano Celone – Una postilla su una delle novità introdotte dall’art. 84 del codice dei contratti pubblici (d.lgs. n. 50/2016). L’obbligo delle stazioni appaltanti di controllare anche gli attestati di qualificazione rilasciati alle imprese dalle SOA – 75
Sara Forasassi – Gli strumenti finanziari derivati in mano pubblica. Parte I – 81
Luca Griselli – Le novità in materia di S.C.I.A. in seguito al Decreto Legislativo 30 giugno 2016 n.126: luci ed ombre – 115

GIURISPRUDENZA

Alessandra Bifani Sconocchia – Il diritto fondamentale all’istruzione degli studenti disabili e i confini della
giurisdizione amministrativa esclusiva – 139

Abstracts

Abstract Is there any Legal Concept of Periphery?

by Marco Mazzamuto

The present paper aims to investigate the existence of a legal concept of periphery. In the legal system the term periphery is mainly used in the sense of degraded or disadvantaged area in comparison with the central area. The central area is increasingly considered as an abstract set of legal standards no longer necessarily linked to a territorial area, involving many legal values, from traditional urban issues to protection of environment, social exclusion or public order, and legitimizing the intervention of public authorities. Periphery is confronted today with new models for sustainable development, as is the case of smart cities.

Abstract Coastal protection in the Spanish legal system

by Josep Ramon Fuentes i Gasó y Marina Rodríguez Beas

In this paper, the A. focuses on the role of the State, the Autonomous Communities and local governments on the coastal protection. The new law of 29th May 2013, n. 2, amending the basic law of the 28th June 1988 n. 22, introduced in Spain a new definition of “terrestrial maritime domain”, with important effects on the powers of the different governments that have expertise in coastal protection. It was, in effect, necessary to ensure integrity and conservation in front of the excessive coastal exploitation and the absence of an adequate legislation. After a short introduction, the A. analyzes, first, the complexity of the competences conferred by the old law. The State has a central role in managing and planning that comes from ownership on state property. The powers of the Autonomous Authorities are defined in a generic way and without concreteness. The role of the local governments is secondary: it depends from the legislation of the Autonomies. The new law points out the possibility for the state to control local governments: the faculty to suspend acts and agreements in order to preserve state property without the need to go to court, that is called “antialgarròbico” clause. Technical recommendations of the state and state planning are the tools for the coordination of skills. In the second part the A. describes the “demanialización” of the coasts as the way for the state to protect the coast and the environment, to defend general interests. This way, the state keeps its own powers of authorization and licensing. The new law reduces the cases of public property and effectively delegates to the regulations the definitions of the criteria for the identification of terrestrial maritime zone. In closing the A. identifies the discipline of the state property and the uses regime, in particular the restrictions on the right of ownership. Although the new law has been submitted to the positive judgment of the Constitutional Court, legal uncertainties about the concept of public property remain.

School autonomy and fundamental rights

by Anna Romeo

The paper examines school autonomy with specific reference to the organizational profile that is considered in the light of the recent reform introduced with L.13 July 2015 n.107. In particular, premised a brief explanation of the school system as outlined in the Italian law, it is examined the model currently in force and its compatibility with the guidelines resulting from the Constitutional Charter, i.e. with artt.33 and 34 Cost., as rules protecting the right to education, to qualify as a fundamental right, as well as with artt. 2, 117 and 118 of the Constitution. Considering this legal basis, the paper proposes a redefinition of the division of powers between the State and Regions in the field of school autonomy, in the aim to draw a new organizational model that looks at a development of local autonomy which venues where you can better identify the needs of the communities

For a new cooperation between school and territory: National Plan for the prevention of school dropouts in the suburbs

by Vittoria Berlingò

This essay was inspired by adoption of the Ministerial Decree April 27th, 2016, n° 273, bearing the «National Plan for the prevention of school dropouts in the suburbs», to deepen, also in a supranational perspective, the reasons and the nature of the activities listed therein. The Author proposes, in particular, to be found in the so called autonomy of interaction with the context – that of school autonomy, as most recently regulated by the Law July 13th, 2015, n° 107, entitled «Reform of the national education and training system and powers in the reorganization of existing laws», highlights one of the possible types – the most suitable breeding ground for the production of social utility, as well as the benefits and advantages, result in a reciprocal synergy through special relations that are established between the various players involved in the funded activities and the users-students, the benefits and advantages that justify the ministerial funding.

A note on one of the new measures introduced by Article 84 of the Italian Public Procurements Code (Legislative decree No 50/2016). The obligation of contracting authorities to verify the qualification certificate of contractors issued by SOA

by Cristiano Celone

Article 84 of the new Italian Public Procurements Code, which (along with other provisions) sets out the qualification system for economic operators offering the execution of works for an amount equal to or over 150,000 Euro, introduces several new provisions. In addition to the widely publicised and certainly significant one attributing broad regulatory powers to ANAC (the Italian Independent Authority supervising public procurements), Article 84 imposes an obligation on contracting administrations to perform certain spot checks, in accordance with pre-agreed modalities, to verify the qualification requirements of contractors certified by SOA (Italian certification bodies established under public law). The obligation now imposed on these administrations is certainly noteworthy, particularly as it finally reconciles the conflicting views expressed by scholars on this issue to date.

Financial derivatives and italian local bodies

by Sara Forasassi

This study is an overview of the main issues concerning the derivatives. In particular, it regards the issue of financial derivatives of the Italian local bodies. Italian local authorities have made extensive use of financial derivative instruments as part of the restructuring of its debt. In addition to the problem related to the use of the financial derivatives, it is focused the critical use of renegotiation of the same derivatives contracts, a very common practice adopted by Italian local bodies. The study shows the different types of financial derivatives and examines the legislative terms regarding those contracts imposed to the Italian public authorities. Then, it examines the issues of Italian local bodies with a specific analysis regarding the use of the self-redress power and the consequences concerning the effectiveness of financial contracts.

The news on the S.C.I.A. following the Legislative Decree 126 of June 30, 2016: lights and shadows

by Luca Griselli

The aim of this essay is to analyse the last reform of the “segnalazione certificata d’inizio attività” in order to see if this new regulation is able to resolve the different problems, underlined by the doctrine and the administrative case law, regarding this theme. The first part is dedicated to the historical evolution of article 19 L. n. 241, and in particular to the different solutions made by the case law regarding the judicial protection of the third parties. In the final part of the essay we will seek an answer for the question if the new regulation can give an end to all the problematic aspects underlined in the first part.

The students with disabilities fundamental right to education and the boundaries of exclusive administrative jurisdiction

by Alessandra Bifani Sconocchia

The paper concerns the relationship between the public Administration power on the educational service and the disable student’s right to education. In particular, the Plenary Assembly of the Council of State rules about criteria for defining the administrative judge’s jurisdiction on public services. The decision is important because it underlines that the fundamental rights protection offered by the administrative judge is no less strong than the ordinary one. Further, the decision states the administrative judge’s ability to offer a full protection of these rights when they fall within his sphere of exclusive competence.

L'articolo Nuove Autonomie 1-2016 proviene da Nuove Autonomie.

INDICE
DOTTRINA

Maria Immordino – Strumenti di contrasto alla corruzione nella pubblica amministrazione tra ordinamento italiano ed ordinamento brasiliano. Relazione introduttiva – 395
Emerson Gabardo – A nova lei anticorrupção brasileira: aspectos controvertidos e os mecanismos de responsabilização das pessoas jurídicas – 415
Fabrício Ricardo De Limas Tomio e Ilton Norberto Robl Filho – Controle do poder judiciário: estruturas teóricas da ccountability judicial e análise crítica da autuação do Conselho nacional de justiça – brasileiro de 2005 a 2013 – 427
Estefânia Maria De Queiroz Barboza – Corruzione e impunità in Brasile – 453
Eneida Desiree Salgado – Finanziamento ai partiti politici in Brasile: corruzione e democrazia – 469
Ana Claudia Santano – O desenvolvimento de políticas públicas e o direito fundamental de participação política. A regulaçãao da atividade de lobby no contexto democrático – 489
Luca R. Perfetti – Sulla distinzione tra procedimento e processo. Diritto brasiliano e tradizione giuridica italiana alla luce della riforma del procedimento amministrativo introdotta dalla legislazione anti-corruzione – 501
Nicola Gullo – La politica di contrasto alla corruzione in Italia ed i soggetti responsabili della prevenzione della corruzione – 521
Sandro Amorosino – Il Piano Nazionale Anticorruzione come atto di indirizzo e coordinamento amministrativo
Francesco Manganaro – Trasparenza e obblighi di pubblicazione – 553
Alfredo Contieri – Trasparenza e accesso – 563
Margherita Ramajoli – Inconferibilità e incompatibilità di incarichi nelle pubbliche amministrazioni – 577
Cristiano Celone – Le responsabilità e le sanzioni per la violazione degli obblighi di pubblicazione e delle situazioni di inconferibilità e incompatibilità degli incarichi nelle pubbliche amministrazioni – 591
Elena Quadri – I controlli antima ia e il giudice amministrativo – 617
Mariaconcetta D’Arienzo – Prevenzione e repressione della corruzione con particolare riferimento alla disciplina del conflitto di interesse ed ai connessi profili della responsabilità – 637
Jole Buggea – Le white list: strumento di prevenzione del fenomeno corruttivo e delle infiltrazioni del crimine organizzato nel settore degli appalti pubblici – 675
Marcella Tropia – La figura del responsabile della prevenzione della corruzione negli enti locali – 687

Abstracts

INSTRUMENTS AGAINST THE CORRUPTION IN THE PUBLIC ADMINISTRATION BETWEEN ITALIAN AND BRAZILIAN LAW. INTRODUCITON

by Maria Immordino

This paper examines the anti-corruption policies in the Italian and Brazilian law to underline the similarities and the differences. After having individualized the causes of the corruption according to the principal international searches, the article analyzes the remedies that have been experimented by the Italian and Brazilian legislator.

THE NEW BRAZILIAN ANTI-CORRUPTION LAW: CONTROVERSIAL ASPECTS AND PENALTY MECHANISMS OF PRIVATE ENTITIES

by Emerson Gabardo

The paper aims to study the new Brazilian anti-corruption law. The text makes a descriptive analysis of the liability of private entities that relate to the State. Among the issues addressed, are spotlighted: the scope of the law; typified conducts in the law; penalties provided for in Brazilian legislation; the problem of independence of instances; the fence to bis in idem; and, yet, the administrative process punitive. Finally, the text emphasizes the subsidiary character of the judicial process.

CONTROL OF JUDICIARY: TEORETICAL STRUCTURES OF JUDICIAL ACCOUNTABILITY AND CRITICAL ANALISYS OF BRAZILIAN NATIONAL JUDICIAL COUNCIL (CNJ) FROM 2005 TO 2013

by Fabrício Ricardo de Limas Tomio – Ilton Norberto Robl Filho

The debate on the Reform of the Judiciary (Constitutional Amendment 45^th) was made to implement better mechanisms of judicial accountability and the expedite judicial process. Brazilian Judiciary has a strong institutional and decisional judicial independence after the 1988 Federal Constitution. The performance of the National Judicial Council (CNJ), created by 45^th Amendment, mainly promotes a partial redesign of the power in the administrative, disciplinary and financial judicial powers. The article analyzes how the constitutional powers and institutionalization process of CNJ have determined major judicial accountability (institutional and behavioral) and judicial efficiency. The method used institutional variables (constitutional powers of the CNJ) and empirical data to expand the understanding of CNJ’s decision making and outcomes (administrative judgments and resolutions) which allowed the growth of accountability in the judiciary institutions. The judiciary has become more accountable after the creation of the CNJ, however, this did not result in greater procedural efficiency.

CORRUPTION AND IMPUNITY IN BRAZIL

by Estefânia Maria de Queiroz Barboza

This paper aims to analyze the problem of corruption in general in the Brazilian courts, going after, the specific issue of impunity in the judgments of corruption cases from these courts. Also, exposes the problem of impunity due to structural difficulties of Brazilian system for what concerns the punishment. The article treats, also, of the issue of electoral justice that, although plays an important and independent role, in the sense of the warranty the campaign finance undeclared. Finally, faced the issue of campaign financing by private persons, which creates an environment that favors corruption.

POLITICAL PARTIES FINANCING IN BRAZIL: CORRUPTION AND DEMOCRACY

by Eneida Desiree Salgado

Contradicting the dominant juridical thought, is believed that exist alternatives to the political parties models. The parties are established by the modern Constitutions and it is absolutely necessary to reflect about their functioning and especially about their financing, which is very important in the democracy because it involves corruption questions. This paper intents to analyze the political regulation in Brazil, the public and private financing and offer suggestions to reform the financing system.

THE DEVELOPMENT OF PUBLIC POLICIES AND THE FUNDAMENTAL RIGHT TO POLITICAL PARTICIPATION – THE REGULATION OF LOBBYING ACTIVITY IN DEMOCRATIC CONTEXT

by Ana Claudia Santano

This paper aims to demystify the lobby activity, which is very marginalized by the society, but at the same time composes one undeniable reality in the power spheres. Therefore, through specialized doctrine review, it was intended to expose some concepts which are wrongly used as a synonymous, as interest groups, pressure groups and lobby. After, the lobbies’ actuation dynamics was described, differentiating themselves of corruption and influence peddling, in a trial to deconstruct this stigma which prevents any impartial analysis. With a constitutional basis of lobby in Brazilian case, it was asked why there is not any regulation, considering the fight against corruption context. In light of this, it should be highlighted the lack of interest of congressmen, lobbyists and including the society of proceeding with it, as a result of a social capital deficit currently visible in Brazil.

ON DISTINCTION BETWEEN THE PROCEDURE AND PROCESS. BRAZILIAN LAW AND ITALIAN LEGAL TRADITION IN

THE LIGHT OF THE ADMINISTRATIVE PROCEDURE REFORM INTRODUCED BY ANTI-CORRUPTION LAW

by Luca R. Perfetti

The article refers to the tendency to approach the administrative procedure for the purpose and function of the process, resulting from the introduction during proceedings of typical institutions of the court by the law n. 190 of 2012 (so-called “anti-corruption law”). Such phenomenon, entirely new on the European scene, but not on to the Brazilian, leads the author to investigate the origins of the distinction between administrative procedure and process, and to analyze the subsequent developments, along the trail dotted by Hans Kelsen and, as regards Italy, by Feliciano Benvenuti.

THE ANTI-CORRUPTION POLICY IN ITALY AND THE SUBJECTS RESPONSIBLE FOR PREVENTION

by Nicola Gullo

This paper analyzes the contents of the politics against the corruption in Italian law and it examines the principal phases of the formation of the administrative organization responsible for the prevention of the corruption. The most important role is that of the Anti-Corruption National Authority, the authority that approves the Anti Corruption National Plan and that controls the application of the legislation against corruption by the administrations

THE ANTI-CORRUPTION NATIONAL PLAN AS ACT OF ADMINISTRATIVE DIRECTIVE AND COORDINATION

by Sandro Amorosino

The Anti-Corruption National Plan (PNA), approved in 2013, in an important instrument for the implementation of the italian law against corruption, approved in 2012. This paper takes into exam its nature and role to conclude it is an act of administrative directive and coordination – defined “act of directive” – and highlights its deficiencies and limits of effectiveness.

TRASPARENCY AND DISCLOSURE REQUIREMENTS

by Francesco Manganaro

Trasparency – principle of the Administrative Procedure Act and in the Brunetta’s law on the organization – emerges as comprehensibility of administrative action in the anti-corruption legislation. The excessive disclosure requirements, established by the anti-corruption legislation, not always guarantee transparency. But it is a prerequisite for anyone to exercise the new right of “accesso civico”, when the administration is in default to the disclosure requirements.

TRASPARENCY AND CIVIC ACCESS

by Alfredo Contieri

The Legislative Decree No. 33/2014 introduced new requirements for publication on the web of documents, data and information access and a new form of civic access, distinct from the traditional access to administrative documents inspired to the principle of transparency. However the rules for publication in Italy are different from the American FOIA: it is not configurable an unconditional obligation to publication of all data and information held by public authorities, but only of documents contemplated by law.

INCOMPATIBILITY AND PROHIBITIONS FOR HOLDERS OF PUBLIC OFFICE

by Margherita Ramajoli

One of the most important innovations introduced by the overall and recent anti-corruption legislation (law no. 190 of 6 November 2012, and legislative decrees no. 39 of 8 April 2013) consists of the discipline of incompatibility and prohibitions for holders of public office. It constitutes a general tool for the prevention of conflicts between public interest and private interests, as well as a measure of subjective impartiality of public officials. The provisions concerning the incompatibility and prohibitions innovate deeply than in the past, as strike conducted previously admitted, and not concern all public employees, being taken into consideration only public managerial positions, internal and external, and other high-level office. The law marks a break with the past, even probably needs additions, clarifications and adjustments, as well as an inevitable break-in period.

ACCOUNTABILITY AND SANCTIONS FOR VIOLATION OF DISCLOSURE REQUIREMENTS AND INCOMPATIBILITY AND PROHIBITIONS FOR HOLDERS OF PUBLIC OFFICE

by Cristiano Celone

The adoption of the anti-corruption law, in November 2012, and two legislative decrees on transparency of information within public administration and incompatibility and prohibitions for holders of public office, in March and April 2013, represented a significant step forward in the fight against corruption in Italy. The law and the decrees require each public administration to put in place specific measures to prevent corruption. These include: the adoption of plans to prevent corruption and to ensure transparency and integrity within public administration; the online publication of many information on public administration and the correlative right of everyone to require their publication; strict observance of the rules on incompatibility and prohibitions for holders of public office. In order to ensure compliance with these provisions that aim to prevent corruption and to raise the level of transparency, efficiency and impartially within public administration, the legislature also implemented a supervisory and sanctioning system that acts as a deterrent relating to disclosure requirements and conflicts of interest for public officials. With regard to the sanctioning system, it will look at various types of liability and sanctions introduced by the laws in question.

THE ANTI-MAFIA CHECKS AND THE ADMINISTRATIVE JUDGE

by Elena Quadri

This article proposes to analyse the anti-mafia checks as introduced by anti-mafia legislation. These checks constitute an important tools for prevention of mafia infiltrations in the field of public procurement. In the first part, the author introduces different measures established by legislator, in particular the anti-mafia notice (“comunicazione antimafia”), anti-mafia alert (“informativa antimafia”), white list, integrity agreement (“patto o protocollo di integrità o di legalità”); the author shows, for each point, the main features and issues. Furthermore the author shows the emergency provisions for Expo 2015. Finally, the last part of the article focuses on the procedural viewpoint of anti-mafia checks.

PREVENTION AND REPRESSION OF CORRUPTION, WITH PARTICULAR REFERENCE TO THE RULES OF THE CONFLICT

OF INTEREST AND THE RELATED PROFILES OF RESPONSABILITY

by Mariaconcetta D’Arienzo

The article 6 bis of Law no. 241/90 emphasizes the prescriptive nature of the duties of absention and signaling conferred to the Official who is responsible of the proceedings and to the officials who are in the other situations prescribed in the Article 323 of the Criminal code. The provision emphasizes, more effectively than it has done in the past, the role and responsibilities of the recipients of those obligations, both in the investigative phase than in the decisional phase and it is characterized by the provision of a broad concept of conflict of interest that is also tackled only in its potential dimension. These considerations lead us to see in the analysed provision the conditions for annulment, even through administrative proceeding, of acts adopted in violation of those obligations, cause of responsibility for public damage, damages to the image and the prestige of the Public Authority (even just a potential level), for the outcry generated by the episode within the offices and on the relations between the Public Authority and citizens.

WHITE LISTS: AN INSTRUMENT TO FIGHT MAFIA INFILTRATION AND TO PREVENT CORRUPTION IN PUBLIC PROCUREMENTS

by Jole Buggea

Fundamental principles of public procurements such as competition, transparency as well as fair trading are affected by the phenomenon of corruption. This work focuses on white lists, that is an important instrument to fight mafia infiltration and to prevent corruption. Furthermore, it investigates the discretionary power of the Prefect and analyses the effects of simplification of the anti-Mafia law system.

THE OFFICIAL RESPONSIBLE FOR ANTICORRUPTION PLAN AT LOCAL LEVEL

by Marcella Tropia

Local level plays a strategic role in the fight against corruption due to the utmost importance of proximity to citizens and of local authorities’ responsibilities (public procurement, grants and financial contributions). Within this context, the Secretary of Municipality – who is the official responsible to ensure observance and implementation of anticorruption law in Municipalities and Provinces – is a key driver of this legal battle. The present article analyses the provisions related to this official responsible for anticorruption plan at local level through three different angles. Firstly the article lays out a review of the constitutional legitimacy of the rules regulating the division of powers between national and regional legislator (art.117 Cost.). Secondly, it sheds light on the reasons why the Secretary of Municipality. In other words, specific legal provisions do not apply to the Secretary of Municipality on one hand, and, on the other hand, applicable sanctions prevent form properly exercising his role and powers freely, hence placing him/her in a weak position.

L'articolo Nuove Autonomie 3-2014 proviene da Nuove Autonomie.

INDICE

Indirizzi di saluto
Maria Immordino, Presidente del Polo Universitario della Provincia di Agrigento – 177

Mons. Francesco Montenegro , Arcivescovo di Agrigento – 181

Antonio Scaglione, Preside della Facoltà di Giurisprudenza dell’Università degli studi di Palermo – 183

Dottrina

Antonio Carlos Wolkmer – La etica intercultural como fundamento del derecho humano a migrar – 189

Maria Immordino – La salute degli immigrati irregolari tra “certezza” del diritto e “incertezza” della sua effettività – 197

Alberto Zito – Beni primari, diritti sociali degli immigrati e ruolo delle pubbliche amministrazioni – 223

Fabrizio Fracchia – Integrazione, eguaglianza, solidarietà – 229

Estefânia Maria de Queiroz Barboza – La protezione normativa dei rifugiati in America Latina ed in Brasile – 241

Giovanni Francesco Tuzzolino – Lampedusa. Architetture per l’accoglienza – 261

Ornella Spataro – I diritti degli immigrati nella giurisprudenza della Corte Costituzionale – 269

Cristiano Celone – La “detenzione amministrativa” degli stranieri irregolari nell’ordinamento italiano e dell’Unione europea ed il diritto fondamentale di ogni persona alla libertà ed alla tutela giurisdizionale – 299

Roberta Teresa Di Rosa – La tutela dei minori stranieri alla prova delle politiche migratorie – 335

Licia Siracusa – Il diritto penale dell’immigrato: brevi spunti per una riflessione sul diritto penale della paura – 365

Elisa Cavasino – Le trasformazioni del diritto d’asilo – 385

Alessandro Riccobono – Immigrazione e lavoro al tempo della crisi. Aspetti problematici e prospettive di riforma del quadro normativo – 401

Alessandra Sciurba – Le violazioni dei diritti umani nel mercato del lavoro di cura prestato dalle donne migranti – 431

Giuseppe Puma – Convenzione europea dei diritti dell’uomo e non-refoulment in mare – 451

Rosario Papania – La tutela giurisdizionale degli stranieri tra sistema dualistico, giurisdizione “piena” del giudice ordinario e tendenze migratorie dalla giurisdizione amministrativa – 475

Laura Verduci – La condizione esistenziale del migrante e la privazione della libertà personale – 505

Vincenzo Cerulli Irelli – Politica dell’immigrazione e tutela dei migranti (una disciplina positiva in corso di evoluzione) – 519

Abstract

Intercultural ethics as THE FOUNDATION OF THE HUMAN RIGHT TO MIGRATE
by Antonio Carlos Wolkmer

The paper proposes to reflect on a redefinition of the Human Rights concept from a decolonized and intercultural perspective. This re-conceptualization should entail a new methodological rearrangement and an epistemological renovation of their content. It also suggests that, in order to meet the expectations and demands of new subaltern subjects and collective migration movements, the path of Human Rights evolution should be revisited from a critical, emancipatory and contextualized viewpoint. If understood in terms of resistance struggles and social practices of minority groups, fundamental human rights should offer a new ethical foundation for the theoretical development of

the right to migrate. MIGRANTS’ HEALTH BETWEEN THE “CERTAINTY” OF LAW AND THE “UNCERTAINTY” OF ITS EFFECTIVENESS”
by Maria Immordino

The current economic crisis seriously affects the implementation of the migrants’ right to health. This paper focuses on the Italian case, and after a review of the relevant legislation and constitutional jurisprudence, it investigates the many problems related to the effective realization of such right.

CULTURAL BACKGROUN D OF THE IMMIGRANTS AND PROTECTION OF THE SOCIAL RIGHTS
by Alberto Zito

The issue analyzes the protection of the social rights of immigrants with particular regard to the right to health. It addresses the question whether public authorities have to ensure in practice the enjoyment of social rights in accordance with the cultural background of the immigrants. If there are no additional costs, the government should be required to make performance so as to respect the cultural background of the immigrants.

Integration, Equality, Solidarity
by Fabrizio Fracchia

The essay analyses the matter of the integration not only from the point of view – as usually done by scholars – of rights, but stressing the idea of solidarity and the dimension of the duties. Particular attention is given to the conditions that a legal system might require in order to integrate foreign people. After examining the insufficient perspective both of rights and of the principle of equality, established by art. 3 Const., the article suggests that the art. 2 Const. might be considered as the legal provision that can support a new paradigm in the integration process, emphasizing aspects such as the bilateral duties and the personal commitments. In this context the article also examines the link with the problem of the sustainable development and the needs of the future generation, once more based on the idea of duties and solidarity.

THE LEGAL SYSTEM TO PROTECT REFUGEES IN LATIN AMERICA AND BRAZIL
by Estefânia Maria de Queiroz Barboza

In the twentieth century, the international community, horrified by the direction of the war, noted the urgent need for the United Nation member countries to provide assistance to those who were being harassed in their territories. It was recognized that each applicant for asylum or refuge was the result of a pattern of violation of fundamental rights. All definitions of refugees provided in different international and national normative texts in different countries are not exclusive, however, are complementary, and their content are open. The international construction in this topic influenced directly the national regulatory updates of Brazil and other Latin American countries. Most Latin American countries, including Brazil, adopted provisions within the expanded definition of refugee that was set out in Conclusion third of the Cartagena Declaration of refugees. The main challenges to be faced by Latin American countries concerns the refugees and Internally Displaced People from Colombia because of violence and the Haitians who, because of the 2010 earthquake, need humanitarian protection from other countries.

Lampedusa. Architecture for hospitality
by Giovanni Francesco Tuzzolino

The experience, carried on in the architectonical design laboratories, in the faculty of Architecture in Palermo, has had the aim to qualify the teaching of the project with the introduction of important ethic and social contents. If, on the one hand, hospitality is one of the most important value for architecture, on the other hand, it asks us about questions related to human solidarity, to the pacific cohabitation among people and also about the framework of physical and social relations. Today is very useful to confirm the anthropological and social meaning of the project, its inescapable role to converge in form and space all living inquietudes. The way illustrated in these pages get a sense of how the forms of cohabitation among different ethnic groups are necessary and above all they are a resource. Indeed, new architectures not only satisfy the specific living requirements related to the cultural traditions of immigrants, but they also offer useful solutions to the unresolved spatial conditions of the city. Finally, the city is able to provide itself new centralities, places, functions and spaces which are necessary for now. In this way, the hospitality current necessities create the opportunity to offer quality to the urban space, across the theory of coherence and beauty

The rights of immigrants in the jurisprudence of the Constitutional Court
by Ornella Spataro

The issue of migrants’ rights can not be examined except in the light of constitutional law, since, in the absence of normative data with completeness, it should be just to the judgments of the court of law, in large part, the reconstruction of the constitutional status of the immigrant in our area. The identification of the rights to be granted to immigrants, still, is fraught with issues of major problematic, and passes through the rethinking of the fundamental categories of Republican constitutionalism, leading to a reflection that involves the doctrine of fundamental rights issues related to state sovereignty on its territory and the quality of citizenship as a conceptual figure that governs the political participation of the subjects. All this is further complicated when one considers the pluralism of sources within and outside of our legal system, are enabled to affect the subject. Against the backdrop of issues characterized by similar complexity, the script examines the guidelines drawn up by the Constitutional Court, according to a methodological criterion that, in an effort to simplify, distinguishes the issue of jus migrandi and immigration policy, the issue of civil liberties, social rights, political rights. For each of these strands are highlighted efforts made by the national laws towards the enhancement of inclusive tendencies in the Constitution, maximally evident at the level of civil liberties and social rights; whereas, on the contrary, in the area of political rights and immigration policy has so far emerged with more clarity the building conceptual recall that, in the traditional sense, is based on the theory of sovereignty which the State exercises on its territory and that links to formal citizenship, mainly jure sanguinis, the circuit of political participation.

ADMINISTRATIVE DETENTION OF IRREGULAR FOREIGNERS IN Italy AND IN THE EUROPEAN UNION AND THE FUNDAMENTAL HUMAN RIGHT TO PERSONAL FREEDOM AND PROPER DEFENSE
by Cristiano Celone

Foreigners are particularly subject to the restriction of personal freedom. A great number of countries resort to the detention of irregular migrants and asylum seekers by reason of the violation of immigration laws, including irregularly crossing the State border, using false document, non-possession of identification documents, staying after the permit of stay has expired, etc.. In Italy and in other member States of the European Union we can notice an ordinary use of administrative detention of foreigners (without authorization to entry or stay in EU countries) and of other measures of restriction of personal freedom also with respect to aylum seekers. The purpose of this article is to examine the italian and european legal framework of administrative detention of non EU citizens and stateless persons, to see if it comply with the fundamental principles of constitutional and international law and case-law on human rights, with regard, in particular, to the protection of personal freedom and proper defense.

The protection of foreign minors challenged by migration policies
by Roberta Teresa Di Rosa

The aim of the research and the studies was to analyse the space given to minor migrants and their families within the Child Welfare System, comparing it with the laws and services available for native minors and families. Using the analysis of the policy framework and the characteristics of the presence of foreigners in Italy as a starting point, it was possible to observe the characteristics of the service system provided and implemented for foreign minors and their families, as well as those of the principal agents involved in the reception process and the social instruments available for their integration. In addition, the historic analysis of the laws issued on this subject has shown how the level of protection established for the families and minors is inversely proportionate to the definition of the issue of immigration as a question of security and public order. The stereotypical depiction of immigrants, which is prevalently negative, also affects the efficacy of the services, reflecting on the performance of the operators. In the specific case of Italy, this study has revealed how here the presence of a consistent number of unaccompanied foreign minors has led to legal provisions and greater investment in the field of services being focussed specifically on these, while foreign
minors accompanied by their families the are provided with same services that exist for Italian minors and families, without any particular distinction (except to some extent with regard to schooling). Only recently have immigrant families begun to be subject to legal provisions, even though this space, which is provided for in social policy, has yet to materialise in practice. In any case, whatever the rights and services established by law, it has become evident that the perception of cultural difference influences the relationship of the immigrants with the service system. Indeed, it must be underlined that the difference in aid offered is based more on the perception of diversity than on the norms. Hence the need to invest more on training and all-life-long courses for the operators to promote the full application of the laws and a more effective recognition of the rights of immigrant minors and families.

The Immigration Criminal Law: brief remarks on the Criminal Law of Fear
by Licia Siracusa

Immigration Criminal Law should be more appropriately called “Criminal Law of the Irregular Immigrant”, since it shows to essentially be based on the criminalization of mere subjective “status”, rather than offensive managements of legal goods. Indeed, behind the protective shelter of an apparent balance between the need to legally protect human rights and the interest in controlling the migratory flow, the system of incriminations in this sector seems to be deeply imbalanced towards the punishment of types of perpetrators who are socially dangerous. It is namely a matter of model of criminal law very similar to the well known standard of “ Criminal Law of the Enemy”. The inspiring “ratio” of the discipline hasn’t even changed following its adjustment due to the obligation forced by the 2008/115/CE European legislation, decided with Law n.129 of August 2nd 2011. As a matter of fact this didn’t determine a total improvement of the system in a form of compliance to the fundamental principles of legal law, but on the contrary it expanded the ancillary function of criminal law towards the legal action of repatriation, without, on the other hand, removing the irrational aspects of the repressive decisions made by the Italian legislator.

The Transformations of the Right to Asylum
by Elisa Cavasino

Asylum is changing shape. It was a sovereign privilege of the State. After II World War, when Western Europe
had built a new constitutional architecture to fundamental rights of the person, Asylum has become a Constitutional right. Nowadays, territorial Asylum is losing ground. This is due to the interpretation and the application of other Aliens protection regimes drafted in International Treaties and EU Law. The transformations of Asylum is due to precise political, legislative and jurisprudential choices, wich led to the limitation of National Sovereignty. These choices have determined that National Sovereignty has been limited: the Constitutional Right of Asylum is no more receiving autonomous application. It is not clear if this transformation is due to the changing position of the National Constitutional Law towards protection of the Fundamental Rights of the Person, but the legal framework wich resulted from it cannot guarantee equivalent or more effective protection to the Fundamental Rights of Aliens.

Immigration and work at the time of crisis. Current problems and possible reforms of the regulatory framework
by Alessandro Riccobono

The essay analyzes the phenomenon of migration in his role as a structural component of the Italian labor market. Despite the negative effects of the crisis, the contribution of foreign labor has to be considered as a valuable resource to restart the competitiveness of enterprises and to develop the productivity of the economic system. Through an analysis of the regulatory framework currently in force – also in the light of the most recent legislative changes – the Author highlights some of the main critical issues of the discipline about immigrant labor and reports the possible paths of reform to be included in the political agenda of the new government.

THE VIOLATION OF HUMAN RIGHTS IN THE MIGRANT DOMESTIC WORK CARE MARKET
by Alessandra Sciurba

Domestic and care work of migrants women has by now become the subject of extensive international but also Italian studies. Taking for granted some well-established assumptions from the literature, we can thus try to examine the way in which this phenomenon, so relevant in contemporary societies, structurally involves a violation of some of the fundamental rights of these workers and their families. Before entering into the detail of this topic, we will make explicit some general premises that define the outlines of the phenomena of migration and labor market in globalization, within which the domestic and care work provided at a fee by migrant women in Italy have to be read and interpreted. Starting from the analysis of their condition, this paper aims to investigate, within the migrant domestic work and care market, the violation of the right to family unity and that of the child to receive care from their parents in the case of the minors “left behind”, offering a complex perspective with respect both to the quality of the content of these rights and to the level of their violation as a result of the migration of care workers, and with respect to the responsibility for this violation. Finally, taking into account the “care” as a social imperative, fundamentally connected to the human condition, we will examine the possibility to rethink a right to care articulated with respect to the content (either to give and to receive care), and universal and unconditional with respect to its access, reasoning here about its violation in relation with the structural characteristics of the migrant domestic work and care market.

EUROPEAN CONVENTION ON HUMAN RIGHTS AND NON-REFOULEMENT AT SEA
by Giuseppe Puma

This work analyzes the praxis of the push-back operations carried out by the Italian government in order to face the arrival to its coasts of thousands of migrants. The aim of this contribution is to assess the consistency of these operations with the rules laid down in the European Convention on Human Rights. The preliminary question to be solved is to determine whether the Convention is applicable to the push back operations carried out in the high seas, given that, under article 1 of the ECHR, States are obliged to respect the rights set forth in the Convention to all individuals within their jurisdiction. The analysis then focuses on two substantial rules of the ECHR: the first one is that of article 3, which prohibits torture or inhuman or degrading treatment. The European Court have emphasized the fundamental nature of Article 3 in holding that the prohibition is made in absolute terms irrespective of a victim’s conduct. The Court has also held that States cannot deport or extradite individuals who might be subjected to torture, inhuman or degrading treatment or punishment, in the recipient State. On the basis of this provision, we can argue that the ECHR system provides a non-refoulement principle whose scope of application is broader than that contained in the 1951 Geneva Convention on the status of refugees. The other substantial rule that could be applied to the individuals pushed back at the high seas is that contained in article 4 of the Fourth Protocol additional to the ECHR, which states that collective expulsion of aliens in prohibited.

THE JUDICIAL PROTECTION OF FOREIGNERS BETWEEN DUALISTIC SYSTEM, JURISDICTION “FULL” OF THE ORDINARY COURTS AND MIGRATION TRENDS BY THE ADMINISTRATIVE COURT
by Rosario Papania

Different solutions to the issue of the judicial protection of the migrants could be found in the d.lgs. n. 286/1998.
The fact that the migrant is the holder of subjective rights and legitimate interests involves, on the side of the case, the distribution of disputes between ordinary courts and administrative courts, with all the problems that this distribution involves, especially when related acts are given to different judges. The author pauses to describe the powers that the ordinary courts in the context of the so-called full jurisdiction within which fall a large number of cases relating to the
protection of fundamental rights of the human person, it is also analyzed the role that performs the administrative judge in immigration, both from the procedural point of view, both in terms of the case. Finally, it seeks to enhance the contribution that an administrative court can give to the defense of the inviolable rights of foreigners.

THE EXISTENTIAL CONDITION OF MIGRANTS RELATED TO HUMAN RIGHTS
by Laura Verduci

The analytical path that led us through the categories of money, freedom and identity let the immigrant’s existential condition emerge as a unitary condition, though it is structured on many levels. The choice of these three constitutive points doesn’t claim itself to be exhaustive but stands as an approach to this particular otherness’ expression. As already seen, money is not to be interpreted as a mere tool but, considered in a wider existential frame, it becomes an expectations’ symbol; freedom shows its vulnerability; identity, once its uniqueness is lost, gets a bureaucratic and instrumental value. Considering this analysis, the rights’ issues take on a wider connotation. The matter isn’t just to outline an immigrants’ rights specific field from a juridical point of view or, from a sociological one, to give an account of the infringements of their rights. The immigrants’ existential condition is rather an advantaged point of view in order to let a particular social dynamics emerge, where human rights turn out as indivisible and non-negotiable.

IMMIGRATION POLICY AND THE PROTECTION OF MIGRANTS (an evolving discipline)
by Vincenzo Cerulli Irelli

The article outlines the most outstanding features of the legislation on immigration and its problematic profiles, taking into account the reports presented at the Conference on “Immigration law and rights of migrants”. It focuses primarily on immigration policy, traditionally regarded as a corollary of State sovereignty, illustrating the powers of the European Union in the matter of asylum, immigration and control of external borders, the common rules and procedures to entry or stay in EU member States and to repatriate irregular citizens of third countries. Then it outlines the “status” of non EU immigrant in the domestic context, with particular regard to the rights of freedom and to the social rights that must be recognized to him, regardless of the regularity of his stay on the national territory, in the light of the constitutional and legislative framework and in the light of the jurisprudence of the Italian Constitutional Court. Finally, it deals with the national and European legislation on asylum, on entry or stay, on expulsion of migrants, highlighting the most controversial aspects of this legislation with particular regard to the judicial protection and to the allocation of the jurisdiction.

L'articolo Nuove Autonomie 2-3 2013 proviene da Nuove Autonomie.