INDICE
DOTTRINA

Laura Lorello – Sistema dei partiti, legislazione elettorale e disciplina dei gruppi parlamentari: è possibile governare la frammentazione politica in Italia? -145
Francesco Manganaro – L’eguaglianza di genere nelle pubbliche amministrazioni e nelle Università – 179
Anna Romeo – Statuto siciliano e specialità: tradizione e futuro dell’autonomia regionale – 197
Alberto Zito – La politica pubblica dei trasporti tra libertà di movimento ed interessi sociali ed economici: profili concettuali e sistematici – 215
Ornella Spataro – Autorità amministrative indipendenti e istituzioni politiche: questioni problematiche – 227
Marco Ragusa – Responsabilità degli amministratori di società pubbliche e giurisdizione contabile. Brevi notazioni critiche – 267
Alessio Rauti – L’accesso alla cittadinanza come strumento di integrazione – 287
Dario Capotorto – I “super poteri” dell’ANAC: contraddizioni e paradossi delle misure di prevenzione anticorruzione sulle imprese “sospette” – 323

NOTE E COMMENTI

Mario Palma – Competenze legislative statali e regionali nella determinazione della disciplina del procedimento amministrativo: il caso della Conferenza di servizi. (Commento a Corte costituzionale 25 gennaio 2019 n. 9) – 379
Vincenzo Desantis – Recensione al volume di Pasquale Pantalone, Autorità indipendenti e matrici della legalità, Napoli, Editoriale scientifica, 2018 – 401

Abstract
Fragmented party system in Italy: nightmare or advantage for democracy?
by Laura Lorello

In building the newly-established democracy, the Authors of the Italian Constitution attributed a fundamental role to political parties. Therefore, the Italian political system comprises numerous political parties, often small in size, which have to coalesce to form a government majority. The resulting fragmented party system in Italy is generally considered a negative characteristic. Historically, it has been very difficult to reduce the number of political parties. Many attempts were made to modify the electoral system, from proportional representation to majority rule during the last thirty years. More recently, further attempts have been made to introduce more restrictive rules to form a parliamentary group in the Senate (one of the two Houses of Parliament). However, it can be said that the fact of having many parties is advantageous to the contemporary Italian and global contexts in preserving democracy from attrition, degeneration and self- destruction.

Gender equality in public administrations and universities
by Francesco Manganaro

The work analyses the slow evolution of the discipline on gender balance in political and management bodies of public administrations, detecting progress and persistent weaknesses noting its progress and persistent gaps. In particular, the effects of this discipline are examined in universities and research centres.

Sicilian statute and regional specialty: tradition and future of regional autonomy
by Anna Romeo

In the context of a reflection on the continuing relevance of special autonomies, the work examines the value to be given to the Statute of the Sicily Region, as a region with special autonomy, and in particular, the continuing relevance of its Statute, especially in light of the draft revision of the same. In this draft, a different logic would seem to emerge than the original Statute of 1946, and in particular, a logic no longer characterized by a self-referential dimension but inspired by the affirmation of a democracy open to the participation of citizens, individuals and associates, as well as local authorities present in the territory. In order to outline the terms of an effective responsibility for political and administrative power towards the community of reference, the work calls for a reflection on the regional powers and prerogatives to be directed towards the best guarantee and protection, at a given historical moment, of the constitutionally relevant interests of citizens. The suggested direction is that of a rethinking of the guarantees contained in the Statutes of Regions with special autonomy that takes into account the need to achieve a delicate balance between divergent interests: protection of special autonomy and, together, national unity, on the one hand; legal certainty and effectiveness of guaranteeing autonomistic needs on the other.

Public transport policy between freedom of movement and social and economic interests: conceptual and systematic profiles
by Alberto Zito

The essay aims to analyze the interests present in public transport policy and the correct method of taking decisions. In this policy, which today is defined in particular at European level, there are many interests. The most relevant is the person’s interest in mobility that constitutes a fundamental freedom recognized in the Italian and European legal system. Starting from this premise, the essay analyzes the decision-making process in the field of public transport policy, showing the importance of the participation of all stakeholders.

Independent administrative authorities and political institutions: problematic issues.
by Ornella Spataro

The independent Authorities represent a model of regulation that is foreign to the Italian legal tradition, and, for this reason, their legal positioning has aroused, and continues to arouse, doubts and uncertainties, re-proposing fundamental questions that appear to be anything but dormant. Furthermore, the dynamics connected to the functioning of the independent Authorities have shown a remarkable evolutionary capacity, so their role has undergone important changes, taking on different characteristics with respect to the functioning of the form of government, and involving new arrangements in relations with the organs of legislation, as well as with the organs of the jurisdiction. Functional autonomy, neutrality and independence, in fact, do not mean absolute separation from the circuit of the political direction, with which the decisions of the Authorities necessarily interface: the decisions of the Authorities, although adopted outside the logic of the political party, combine to form the legal system, not only with the production of acts attributable to “soft law”, but also through a concrete participation in the determination of the political-regulatory direction in the individual sectors of reference. The independent Authorities exercise heterogeneous competences, some typically administrative, some integrate decision-making functions, while, in other cases, their competences result in the production of juridical norms. This determines that they, by subtracting significant shares of activity from the political as well as from the jurisdictional bodies, are included in the decision-making powers in which the state apparatus is articulated, of which they constitute an indefectible structural side by material constitution . The independent Authorities occupy portions of statehood, no longer included in the traditional parliamentary model. At the base of the phenomenon we can identify the insufficiency of the classic system of separation of powers to resolve new questions, in which the high technicality intersects the problems of fundamental rights, projected against the background of economic and juridical scenarios animated by strongly evolutionary logics. This testifies that the state order, as it has evolved according to the schemes of representative democracy, has lost his completeness in the face of the evolution of the markets and the fundamental rights; hence the need to trace new organizational methods that go beyond the traditional cycles of political direction and responsibility: the structure of the material constitution has by now incorporated a type of regulation that representative democracy, not having the right tools to guaran-266 Ornella Spataro tee the proper functioning of complex sectional orders, cannot express. In this perspective, the legitimacy of the Authorities, based on the canons of procedural democracy that inform their functions, could be traced with reference to different constitutional formulas, responding to the schemes of participatory or deliberative democracy, which found alternative democratic models to the one built on political representation Parole chiave: autorità indipendenti; costituzione economica; legittimazione democratic.

The liability of publicly-owned companies’ directors under the jurisdiction of the Corte dei conti. Some
critical brief remarks.
by Marco Ragusa

The art. 12 of d.lgs. n. 175/2016 transposes the conclusions reached by the Italian Corte di cassazione on the liability of publicly-owned companies’ directors (and about and the consequential division between ordinary courts and the Corte dei conti jurisdiction). The paper retraces the fundamental stages of the jurisprudential path that led to this result and highlights some of its contradictory aspects.

Access to citizenship as a means of integration.
by Alessio Rauti

The paper aims to analyze the relationship between the integration needs of foreigners and the legislative choices on the criteria of citizenship acquisition and loss. In particular, we highlight the critical issues tied to the concepts of ontological citizenship and market citizenship: the first – which still supports entirely the Law on Italian citizenship – relies on questionable presumption of blood citizen supplied with civic virtues; instead, the second one is beginning to appear in European Countries and it’s not less dangerous because of his potentially discriminatory power and the lack of a “genuine link” between the citizen and the political community. Arguing the postulate that the legislative power is not completely free in the choice of the criteria for the acquisition and the loss of citizenship, a reconstruction is proposed in terms of constitutional policy, starting from the development of personalistic principle.

The “super powers” of the ANAC (National Anti-Corruption Authority): contradictions and paradoxes of anti-corruption prevention measures on “suspicious” companies.
by Dario Capotorto

The essay examines the controversial issue of extraordinary measures for the management, support and monitoring of companies that are successful tenderers of public contracts for the construction of public works, services or supplies of suspected illicit origin, introduced by article 32, of legislative decree 24 June 2014, n° 90 (i.e. anti-corruption decree, converted with amendments to the law of 11 August 2014, n° 114). After a detailed analysis of these measures, also in the light of the case-law and the practice established in the first five years of application, the author highlights the interpretative issues and difficulties of application, focusing in particular on the paradoxes and inconsistencies produced by this new legislation. In particular, it should be noted that the effect of conservation of public procurement contracts in progress – assured by the new management tools – produces serious prejudices regarding the correct functioning of competitive mechanisms, as well as significant coordination problems with other laws.

State and regional legislative powers in determining the administrative procedure: the case of the Services Conference (Conferenza di servizi). (Note to Constitutional Court no. 9 of January 25, 2019).
by Mario Palma

With the sentence no. 9 of January 25, 2019, the Constitutional Court deemed that the regional regulation set forth under the law of the Lombardy Region n. 36/2017, governing the procedure for the approval of the environmental impact assessment through a service conference, breached the exclusive legislative competence of the State with regard to the essential service levels – pursuant to art. 117 second paragraph, letter m) of the Constitution. The qualification as essential service levels pursuant to art. 117 paragraph 2, letter m) of the Constitution – of the State rules governing the administrative proceedings significantly affects regional competences. The decision of the Constitutional Court n. 9/2019 examined in detail the regional regulations and the exceptions set by the latter to State regulation, highlighting the nature of interposed norms of specific provisions among those regulating the services conference under law n. 241/1990. State provisions are included in those setting essential levels of services, not on the basis of their scope of application but in light of the adequacy of these rules to guarantee uniform protection of significant interests.

L'articolo Nuove Autonomie 2-2019 proviene da Nuove Autonomie.

INDICE
DOTTRINA

Alfredo Contieri – Il riesame del provvedimento amministrativo dopo la legge n. 124/2015 – 331
Alberto Zito – La nuova disciplina degli acquisti centralizzati ad oggetto “informatico”, introdotta dalla legge di stabilità per il 2016: dalla ricognizione dei problemi ad un primo inquadramento sistematico – 341
Nicola Gullo – La contratación pública social y verde en Italia – 353
Ornella Spataro – La revisione costituzionale tra processi riformatori e crisi della rappresentanza politica. Spunti di riflessione – 371
Annalaura Giannelli – Il nuovo codice dei contratti pubblici: cronaca di una rivoluzione (solo) annunciata – 391
Roberto Leonardi – La natura giuridica dell’imballaggio terziario rotto: rifiuto o sottoprodotto? – 419
Fortunato Gambardella – Il vincolo indiretto di inedificabilità assoluta nella tutela dei beni culturali, tra proporzionalità e indennizzo – 437
Viviana Molaschi – La tutela della salute nelle periferie: problemi e prospettive di intervento – 455
Paola Savona – Access to public records and proactive disclosure of information in Italy: an overview – 485

Abstract

The review of administrative action, after the Law 124/2015
by Alfredo Contieri

Following the recent Law n. 124/2015, the Italian public authorities may annul, only within eighteen months, the unlawful administrative measures that enable private activities or give economic advantages. This time limit sacrifices the rule of law and in general the public interest but strengthens the Community principle of trust and of legal certainty also in order to encourage foreign investments in Italy.

The new rules governing purchasing by public administrations of IT services
by Alberto Zito

Law 208 of 28 december 2015 introduced new rules governing purchases of IT services. On the basis of said rules public administrations and their companies are obliged to purchase said services using public central purchasing bodies. The article examines new rules in order to enable correct application by public bodies.

Social and environmental aspects of public procurement in Italy
by Nicola Gullo

This paper examines how the European Union policy induced the Italian legislator to integrate social and environmental considerations into public procurement practices. The new code of public procurement, giving application of the 2014 EU directives, introduce two fundamental instruments. First, the legislative provisions allow contracting authorities to exclude from contract award procedures any supplier or contractor who was found guilty of breaching rules of environmental protection or social objectives promotion. Second, the code allows, under certain conditions, to include social and environmental protection objectives among the criteria for the selection of candidates.

Reflections upon the constitutional review between reform processes and crisis of political representation
by Ornella Spataro

The law of constitutional amendment for which we will vote on December 4 puts citizens before large uncertainties. On the one hand it is presented as a response to unpostponable demands for reform, on the other involves some of the fundamental italian institutions, operating controversial choices on the level of constitutional law. The constitutional reform provides the transformation of equal bicameralism, with consequential changes to the legislative process, the review of relations between State and Regions, the reform of the participating institutions, the abolition of Provinces and CNEL, with system effects that have major repercussions on the overall dynamics of the form of government. The present comment puts in evidence the lights and shadows of the constitutional reform, in order to verify if there is the possibility of identifying a relationship of congruence between the political aims that are invoked to justify it, and the legal instruments that in view of the abovementioned objectives are prepared.

The new Italian public procurement Code: chronicle of a revolution only announced
by Annalaura Giannelli

The paper examines the contents of the new Italian public procurement Code. The analysis aims to verify which are the objectives of the recent reform and whether these objectives have been pursued by the new rules. From this point of view the Code is affected by many contradictions, which must be overcome by the scientific literature doctrine and by jurisprudence.

The legal nature of the broken tertiary packaging: waste or byproduct ?
by Roberto Leonardi

The essay concerns packaging management and especially broken packages. Pending the transposition of the european directive adopted in 2008, broken packages were considered by jurisprudence as waste with the consequent application of the penalty rules in terms of waste management unauthorized. Legislation development, together with the immediate application of the waste directive adopted in 2008, by article 117, 1 Cost., allowed to consider broken but reusable packages as byproducts, with the application of the related discipline provided by Environment Code of 2006.

The indirect restriction of a total construction ban in the protection of cultural assets, including proportionality and compensation
by Fortunato Gambardella

Article 45 of the Code of Cultural Heritage and Landscape regulates the institution of the so-called “indirect restriction” that describes the faculty of the public administration to adopt measures necessary to protect the architectural and environmental context into which cultural assets fall. These measures may also impose, at the expense of the citizens, absolute prohibitions on buildability in privately-owned areas and, in such instances, the law does not recognise any compensation to private individuals. The study evaluates the possibility of overcoming this jurisprudential direction in consideration of the particular importance that the law acknowledges, by way of motivating such restrictive measures, of the proportional nature of the administrative decision and in light of recent reflections on compensation as a rule for the activities of the administration which entail a sacrifice for the private individual.

Health Protection on the Periphery: Problems and Intervention Perspectives
by Viviana Molaschi

The paper tackles the issue of health protection in peripheries. First, it clarifies the notion of periphery, which no longer has only a spatial dimension as a suburb, and introduces the concept of social peripheries, defined as “extensive” and “widespread” by F. Martinelli, which is the context of this research. Then, after analysing the Constitutional and legal framework of health guarantees, it investigates the health situation in peripheries, looking into the reasons why it is worse there and why there are more criticalities and health protection gaps. The study focuses on the following: the effect of financial conditioning factors and the consequences of the economic crisis and of the related service cuts; the issue of the territorial distribution of health and social-health services; the importance of social policies (and of other policies) in guaranteeing the right to health; the role of municipalities in health protection. The analysis aims at identifying instruments that can contribute to improving the health situation of people residing in peripheries. It considers international and European trends that highlight what municipalities can do in order to grant health protection within the Health in All Policies strategy, which has fostered the creation of Healthy Cities Networks.

Access to public records and proactive disclosure of information in Italy: an overview
by Paola Savona

The paper analyses the rules related to the right of access to public documents laid down in Law No. 241/1990 on administrative procedure, and the interpretation given to them by case law. It then presents the Italian FOIA enacted in 2016 and the system of proactive disclosure of public sector information. It concludes that, notwithstanding the salutary introduction in the Italian legal system of a general right to know, the norms on transparency still need to be improved in order to clarify the statutory framework and to find a better balance between public interest in disclosure of information and personal data protection.

L'articolo Nuove Autonomie 3-2016 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.

Indice
Dottrina

LUIS FEDERICO ARIAS – La justicia argentina frente a la transformación social – 595
FRANCISCO BALAGUER CALLEJÓN – El Estado Autonómico en el contexto de la integración europea. Un comentario a la STC 31/2010, de 28 dejunio – 615
MARIA DE BENEDETTO – Qualche appunto sui rapporti tra morale, economia e diritto in una prospettiva giuspubblicistica – 649
ORNELLA SPATARO – La disciplina sulle energie rinnovabili nella dinamica delle fonti del diritto. La legislazione regionale nella morsa della sussidiarietà? – 697
MARIA TERESA DENARO – Soggetti deboli, soggetti indeboliti e diritti fondamentali: spunti e riflessioni – 727

Giurisprudenza

SENTENZA 18 ottobre 2010 n. 299 – Pres. Amirante – Red. Tesauro – Pres. Cons. Ministri – Regione Puglia con nota di ANTONELLA SCIORTINO, «Volevamo braccia, sono arrivati uomini». Note a margine della sentenza della Corte costituzionale n. 299 del 2010 – 763
GUIDO CORSO – L’ordinamento della giustizia amministrativa in Sicilia – 771
MARIA IMMORDINO – Qualche riflessione sul C.G.A. a margine del libro di Salvatore Raimondi – 775
ANTONIO SAITTA – Riflessioni sul libro di Salvatore Raimondi – 783
FABIO SAITTA – Divagazioni sul sistema di giustizia amministrativa siciliano e sul giusto processo (rileggendo un recente libro di Salvatore Raimondi) – 787

Rassegne

Rassegna della giurisprudenza del Consiglio di Stato Speciale in tema di danno da ritardo di SALVATORE DETTORI – 797
assegna della recente giurisprudenza del Consiglio di Giustizia amministrativa per la Regione Sicilia (settembre-dicembre 2010) di PAOLA SAVONA – 811
Rassegna della giurisprudenza dei Tribunali amministrativi regionali Speciale in tema di danno da ritardo di SARA FORASASSI – 823

Osservatorio Parlamentare Regionale – 837

SALVATORE DI GREGORIO – Il contenzioso costituzionale sui criteri di riparto tra Stato e Regione del gettito dei tributi erariali – 853

Abstract

LA JUSTICIA ARGENTINA FRENTE A LA TRANSFORMACIÓN SOCIAL
by Luis Federico Arias

El presente trabajo presenta un análisis acerca de los cambios verificados en las decisiones del Poder Judicial argentino frente a la transformación social de ese país en las últimas décadas. En particular, se destacan los avances jurisprudenciales de la Corte Suprema de Justicia de la Nación, en la protección de los derechos fundamentales y el abandono de ciertos rigorismos formales, por parte de ese Tribunal, para favorecer el acceso a la justicia de los sectores más vulnerables. Antecedentes del Dr. Luis Federico Arias:
• Abogado y Especialista en Derecho Administrativo, egresado de la Universidad
Nacional de La Plata, donde también cursó sus estudios de Doctorado.
• Ejerció como asesor en diversos ámbitos de la Administración Nacional, Provincial
y Municipal.
• Actualmente es Juez en lo Contencioso Administrativo del Departamento Judicial
La Plata y Vicepresidente de la Asociación Bonaerense de Derecho Administrativo.
• Se desempeña como docente en cursos y carreras de post-grado de derecho
constitucional y sociología de la Facultad de Derecho de la Universidad de La Plata.
• Es autor de diversas publicaciones, y ha brindado diversas conferencias en Argentina y en el exterior.

THE AUTONOMOUS STATE IN THE CONTEXT OF EUROPEAN INTEGRATION. A COMMENTARY ON THE DECISION 31/2010 OF THE SPANISH CONSTITUTIONAL COURT
by Francisco Balaguer Calleión

This paper analyzes the decision 31/2010 of the Spanish Constitutional Court, on the New Statute of Catalonia. Up to now, the almost unanimous assessment is that the Court has deactivated the fundamental lines of the Statute. This assessment is perhaps connected to the projection of some general principles established by the Court, which are clearly regressive not only for Catalonia but for the whole concept of the Autonomous State, to other parts of the decision. But those general declarations do not necessarily affect the more specific about the different parts of the Statute if we consider that the Court had the opportunity to declare their unconstitutionality but did not, thus validating the statutory options. From that perspective, this paper intends to offer an interpretation of the decision in relation with many of those problematic questions (competences, statutory rights, etc.) which show that the court validates the statutory options. Notwithstanding, some of the doctrinal lines have not only generated important political problems, but they also prove that the Court maintains an outdated notion of the Spanish State which does not take into account the constitutional reality of today. On the other hand, the arguable idea the Court establishes about the relationship between the Statute and the Constitution expresses distrust for the growth of the constitutional density of the Autonomous Communities, generating unnecessary conflicts between the text of the 1978 Constitution and the current constitutional context of the Autonomous State integrated in Europe.

NI ANGE, NI BÊTE. SOME NOTES ON THE RELATIONSHIP BETWEEN MORAL, ECONOMY AND LAW (FROM A PUBLIC LAW POINT OF VIEW)
by Maria De Benedetto

Since its inception economy has been considered a part of moral philosophy. What has happened? Why has the main problem of the market become a moral one? The paper analyses the development of the relationship between moral, economy and law, adopting a public law point of view and dividing the question into three sections. The first question concerns the moral of the merchant (and also the moral-politicalinstitutional framework of social market economy, as described by Roepke, that requests a minimun amount of honesty in business). The second question relates to the moral of the consumer (and also the ambiguity of the institutional approach to this question). The third deals with the moral of the regulator (referring to ethic codes and facing the problems of creative compliance and regulation failures).
The conclusion is that law (and more specifically public law) has to act properly as mediator between economy and moral, never forgetting the relevance of its enforcement and never aiming to replace moral.

RENEWABLE ENERGIES AND REGIONAL LEGISLATION BETWEEN SUBSIDIARITY AND LOYAL COOPERATION
by Ornella Spataro

The Constitutional Court has had occasion to deal with some recent decisions of legislative apportionment in the energy field between State and Regions. In particular, the judgments on a number of regional laws governing the production of energy from renewable sources, have revealed a series of critical issues that underlies it, as the dynamics
of the sources, the materials interferences between different areas of competence, the role of subsidiarity and loyal cooperation in the matter, and, more generally, the relationship State-Regions in the exercise of legislative shared power. Finally, the adoption of national guidelines, far from clarifying these issues, seems to further confirm the doubts about some aspects of the dynamics of the current sources of law.

AN INSIGHT INTO VULNERABLE AND REDUCED RIGHTS INDIVIDUALS AND THEIR FUNDAMENTAL RIGHT
by Maria Teresa Denaro

The article examines the condition of basic rights and vulnerable and reduced rights individuals in National and International Court systems. Having described the two subject categories, the article then analyses the status of their basic rights and the safeguard of their unassailable core, issue that also emerges from the indications provided by national law and European Court oh human rights.

L'articolo Nuove Autonomie 3-2010 proviene da Nuove Autonomie.