Abstract

Il saggio, analizzando lo stato di attuazione delle riforme volte a ristabilire l’efficienza della rete pubblica dei servizi di assistenza, cura e sostegno alle persone con disabilità, suggerisce l’adozione di un modello organizzativo a rete, alternativo sia al mercato, sia alla gerarchia, che coinvolga attivamente, in regime sussidiario e di amministrazione coordinata e condivisa, il Terzo settore auspicando che esso possa acquisire carattere permanente e integrato nell’ambito di un quadro erogatorio prestabilito, tarato sull’omogeneità e sulla qualità delle prestazioni e dei servizi resi all’utenza.

Social Innovation Models for the Protection of the Rights of Persons with Disabilities: Challenges and Perspectives for the Third Sector

The essay, analyzing the state of implementation of the reforms aimed at re-establishing the efficiency of the public network of assistance, care and support services for people with disabilities, suggests the adoption of a network organizational model, alternative to both the market and hierarchy, which actively involves, in a subsidiary regime and coordinated and shared administration, the Third Sector with the hope that it can acquire a permanent and integrated character within a pre-established delivery framework, calibrated on the homogeneity and quality of the services and of services rendered to users.

L'articolo Modelli di innovazione sociale per la tutela dei diritti delle persone con disabilità: sfide e prospettive per il Terzo settore proviene da Nuove Autonomie.

INDICE

SAGGI

Francesco de Leonardis “Ambiente, biodiversità, ecosistemi”: riflessioni sull’art. 9 Cost.

Paolo Duret La crisi ambientale-climatica nel prisma del sindacato giurisdizionale tra aporie e profezie

Guido Rivosecchi Giudizio di parificazione dei rendiconti e autonomia regionale

Giuseppe Verde Alcune considerazioni sui decreti legislativi di attuazione degli Statuti speciali

Mariaconcetta D’Arienzo Modelli di innovazione sociale per la tutela dei diritti delle persone con disabilità: sfide e prospettive per il Terzo settore

Alessandro Berrettini Amministrazione digitale e “attività conoscitiva” nei contratti pubblici in direzione della ragionevolezza e della proporzionalità

Giulia Torta Partecipazione pubblica e promozione dello sviluppo sostenibile: il caso emblematico della disciplina delle “materie prime critiche”

Marco Francesco Errico Il principio del consolidamento nella dinamica del processo amministrativo

Pasquale La Selva Tempo e risultato nei contratti della pubblica amministrazione

LA DOTTRINA DIALOGA CON LA GIURISPRUDENZA

Roberta Pecoraro Sulla configurabilità dell’annullamento doveroso

L’ANGOLO DELLE LIBERTÀ

Pier Luigi Portaluri La pianificazione standardizzata e il «caso Milano»: riflessioni dopo un’audizione parlamentare

RECENSIONI

Loredana Giani, Artistide Police Anna Simonati, Diversity as Strategic Opportunity. Exploring New Paths to Good Administration, Charlotte (U.S.A.), Information Age Publishing, 2024

L'articolo Nuove Autonomie – Numero 3-2024 proviene da Nuove Autonomie.

Fascicoli 2-3/2011

Pdf

Abstracts

THE RIGHT TO A HEALTHY ENVIRONMENT IN COLOMBIA

by Gloria Amparo Rodríguez

This paper describes the progressive recognition of the right to a healthy environment in Colombian legal system, one of the more advanced models of environmental guardianship in Latin America. The 1991 Colombian Constitution not only contains several regulations foreseeing environment protection, but it also consecrates the individual right to the environment and it foresees the duty of the State to guarantee the participation of the people to decisions able to engrave on the environment. The environmental legislation has introduced different mechanisms allowing people to take part to administrative proceedings on environmental matter (law n. 99 of the 1993) and it also has regulated different tools for jurisdictional guardianship of the individual right to the environment, as popular actions to defend collective interests, among which the interest to a healthy environment (law n. 472 of the 1998). Nevertheless, the article underlines how, although Colombian system is highly sophisticate, there are still many operational problems that compromise the real application of this normative of environmental protection.

ABOUT THE CONSTITUTIONAL TRIAL LENGTH

by Giovanni Pitruzzella

The subdued contribution regards the timing of the constitutional trial, as another expression of its peculiarity: in particular, aside of relative quickness of it – in comparison with the ordinary ones – the Author underlines the primary topic of the proper protection of the (fundamental) rights, usually implied in all the different types of Constitutional Jurisdiction. Along such topic, in the contribution emerges indeed the unique role of the Court, whose sentences overlap both the political and the judicial competence, and it is for such reason, then, that the Court’s «authority» cannot depend on its quickness in resolving cases but – more properly – on its capability of pursuing and issuing sentences, the more shared as possible by all the Judges themselves. The length of the Constitutional trial – and its procedural terms, prescriptions, decadences – is, therefore, another profile of the absolutely sui generis nature of the Constitutional Jurisdiction.

PRINCIPLE OF NON-REGRESSION, NATURAL PROTECTED AREAS, DECLASSIFICATION

by Fernando López Ramón

Exposition on the development of the legal system of declassification of protected natural areas under Spanish law according to the principle of non regression, considering: a) historical links with economic interests, b) conservationist interpretations derived from the 1978 Constitution, c) international and European system of declassification, in particular the case-law related to the network Natura 2000, d) impulse given by some regional experiences, e) the constitutional and administrative case-law, and f) the assumption of the principle of non-regression in this area by the basic legislation of 2007.

THE SCIENTIFIC CONTRIBUTION OF FABIO MERUSI ON THE ITALIAN SYSTEM OF JUDICIAL REVIEW OF ADMINISTRATIVE ACTS AND DECISIONS

by Alberto Zito

Fabio Merusi is one of the most prominent scholar of administrative law in Italy. The essay examines the works of Fabio Merusi on the Italian system of judicial review of administrative acts. According to Fabio Merusi this system was not able in the past to guarantee the effective protection of citizens against administrative decisions. The essay also examines the reform proposals advanced by Fabio Merusi.

ABOUT THE LEGAL-CONSTITUTIONAL BASES OF THE OBLIGATION TO ADOPT PROVISIONS

by Antonio Colavecchio

The paper examines the legal-constitutional bases of the obligation, on the part of Public Administrations, to finalize their own procedures with an explicit provision (the so-called clare loqui). Such obligation stems from art. 2 of law no. 241/1990. The analysis is carried out by pinning down the contribution of each constitutional and general principle of our administrative framework (as integrated by the EU Law) to the legal basis of the obligation to adopt provisions, as well as to the definition of its content and scope. In particular, the paper points out the contribution of the fundamental principles of the administrative action, such as “impartially”, “good administration”, “transparency”, “legitimate expectation”, in establishing – at constitutional level – the clare loqui obligation, as well as their contribution to make it effective. From this latter point of view, the paper highlights the evolution that, mainly thanks to recent reforms in administrative procedures, has marked the system of protection for citizens in case the Public Administration does not fulfill the obligation to adopt provisions. Such evolution, in the picture of the synergy between legislation and case-law, also in the light of the contribution of the scholars, strengthens the perspective of the citizen claiming an “administrative response” in good time as a real subjective right and, from the European Law point of view, as a fundamental right of the person.

FROM THE STATE REGIONS COOPERATION TO THE PROTECTION OF THE FUNDAMENTAL RIGHTS (AND BACK):

THE CLOSING CIRCLE IN THE SICILIAN REGIONAL EXPERIENCE

by Stefano Agosta

In a very innovative way compared to a “guaranteed” one, the opposite pattern of “cooperative” Regionalism is inspired by a radically different intuition for which the center and the suburbs – precisely with a spirit of fair cooperation – must contribute each other to the exercise of their constitutional functions. From this particular point of view, the Sicilian regional experience represents undoubtedly a real “constitutional forge” ante litteram, being able to distinguish itself in a useful way between an “organic” cooperation and a “procedural” one: in particular, the first one concerns the special prevision of the possible invitation of the Sicilian Region President to take part in Council of Ministers deliberations; the second one, instead, is related to a sort of increasing “scale”, ranging from the mere commitment of information and communication among the several governments levels until the highest “step” represented by the State-Sicily Region agreement. So the “circle” between loyal cooperation and protection of the fundamental rights closes itself whenever the State operates to “unify” regional functions ex art. 117, par. 2, lett. m, Const. (for example, in educational field or public housing development, etc.): that is a cooperation with Sicily, which is equally opened to the whole possible span of existence of State L.E.P. (in particular at the beginning, during and at the end of their emanation). Jurisprudence has the hard task to define – with an acceptable degree of security and stability – the judgment’s standards to use, time after time, for the evaluation of the effective proportionally (sic, reasonableness) of the statal and regional joint action, in view of the highest value in field, that is the super-constitutional one of human dignity.

FORECASTING AND RISK MANAGEMENT IN AREAS OF HIGH HYDRAULIC HAZARD

by Mariaconcetta D’Arienzo

In a field characterized by innate uncertainty and limited rationality, where the need for prudential and preventive dealing collides with the freedom of private initiative, the “co-decision” allows to remove or reduce many of the practical difficulties of implementation plans, providing a meditated assessment of the involved interests and fair balance between the needs of planning and the environmental conservation

SOME NOTES ABOUT RISIKOVERWALTUNG

by Paola Savona

This paper analyses the role played by the precautionary principle (Vorsorgeprinzip) in German constitutional and administrative law. Referring to the principle, several statutes allow public administration to act in order to prevent or reduce risks, i. e. situations in which formal probabilities cannot be assigned to the outcomes due to lack of empirical data or theoretical basis (uncertainty). In such cases, the Administration (s.c. Risikoverwaltung) is endowed with a discretionary power, much broader then the power to counteract a dangers, legal concept commonly referred to a situation in which, if not prevented from taking its course, can be expected, with a sufficient degree of probability, a damage to public or private goods. To balance this power, law creates institutions and procedures, which aim to generate new knowledge and, in the meantime, to guarantee legal certainty.

L'articolo Nuove Autonomie 2-3-2011 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.