Case law and scholarly debate on fact-finding

The relevance of legislative facts or other non-legal arguments for the judicial review of legislation is fully recognized by Italian scholars, dating at least as far back as the seventies.

Scholars tried to categorize those arguments and the role they play in constitutional review. Several categories of facts (natural, social, economic, scientific, political, administrative) have been examined,4’ as well as several aspects of the constitutional adjudication that they can affect (the standard of review, the object, the typology of the decision, etc.).[1]

Special attention was given to scientific facts due to the growing number of cases affecting life sciences and thus involving new technologies, medicine, and bioethics. The emphasis on scientific facts was also due to increased legislative activity in those fields. For example, in the last decade, the Court has been called upon several times to review the constitutionality of the assisted reproduction law: in these decisions, the lack of a transparent scientific expertise has been highly criticized.

The economic consequences and financial obligations that may arise from Constitutional Court decisions have also attracted the attention of scholars. Although the majority of commentators, and the Constitutional Court itself, have pointed out that the constitutional rules on a balanced budget are not applicable to judicial decisions, the prevalent interpretation still allows the Court, in deciding on constitutional challenges, to take into account the financial consequences of its decisions. This raises the question of the adequacy of the tools the Court has to know the possible financial impact of its decisions. This issue has been deeply debated by scholars, especially in the context of the Great Recession.[2]

The Court itself refers to non-legal arguments in many decisions, especially to assess the “reasonableness” (ragionevolezza) of a legislative provision (that is, to measure the proportionality of the regulation to the factual situation) or to assess in advance the impact of its decisions (especially in terms of financial impact). As a result of this assessment, the Court can decide which type of decision to adopt, taking into account the different consequences.

However, the factual arguments are formulated very generically, without any reference to the source of the information and without using the formal fact-finding provisions contained in the rules on Constitutional Court proceedings. The factual basis according to which the Court refers to the “situation of environmental emergency”, to the “employment emergency”, to the “loss of many thousands of jobs”, or to the “macroeconomic impact of the repayment of taxes” (to quote a few examples) remains mysterious.

Sometimes, the Court relies on information provided by the parties. Nevertheless, the Court’s rejection of third-party interventions and amici curiae prevents the Court from gathering information from a wider range of sources, and ultimately enhances the role of the government as the main provider of information to the Court.

As for its own ex-officio fact-finding, in the vast majority of cases the Court acquires facts or other non-legal arguments informally during the preliminary investigation carried out by the judge rapporteur and by his clerks. The Court does not mention this activity in the text of the decision - not even in the “in fact” section. In order to formally regulate this informal activity, in 2004 (as we indicated above) the S.P. were amended to allow the documents acquired to be made available to the parties, but this rule does not seem to have had any impact on the use of arguments.

In 1994, the Court established, because of several very widely discussed financial decisions on “spending’’, a special section of the Court’s Studies and Research Department to “investigate the cost of the decisions”. This was clearly a step in the right direction, since it allowed the Court to assess the financial consequences of its decisions independently. This meant that the Court did not have to rely exclusively on the claims of the parties or on data provided by the government, which, in most cases, has a concrete stake in the dismissal of the case by the Court.[3] However, after just a few years, that office was abolished (in 2000), and today the Court, as it did before 1994, bases its decisions on information obtained through informal requests presented by the judge rapporteur to the public administration.

The Court has made use of its formal fact-finding powers, requiring a collegial deliberation and an evidence-gathering order, in very few cases. The analysis of those cases does not show any coherence, with regard to both the circumstances that prompted the Court to start a formal fact-finding proceeding, the documents requested, and the recipients of the requests. The haphazard nature of the evidence-gathering orders has generated doubts, repeatedly raised by scholars, that these orders may likely be used by the Court in order to postpone complex decisions or to give notice to the legislature of a possible forthcoming declaration of unconstitutionality.

In addition, once the Court has received the information requested in the order, only rarely has it referred to the order and to the evidence gathered in the actual judgment addressing the question of constitutionality. It may happen that no reference to the order is made in the judgment, either in the “facts of the case” (fatto) or in the “conclusions on points of law” (diritto). This makes it even more difficult to understand the role played by the formal fact-finding procedure.55

The reluctant attitude of the Court towards the use of its formal fact-finding powers, or, at least, towards a more transparent use of its informal powers, has been repeatedly criticized by scholars, who have underlined the political, more than judicial, behaviour of the Court.[4] The issue of a fair acquisition of the facts remains currently open for the Italian constitutional adjudication.

  • [1] vi della Corte costituzionale e il sindacato di legittimità astratto, in Giur. Cost. (1973), 1497 if.; A. GERRI, / poteri istruttori della Corte costituzionale nei giudizi sulle leggi e sui conflitti, in Giur. Cost. (1978), 1335 ff.; M. CHIAVARIO, Ordinanze interlocutorie della Corte costituzionale nei giudizi di legittimità promossi in via incidentale, in Scritti in ono-re di Crisafulli, Milan, Giuffré Editore, 1986, I, 232 ff.; M. LUCIANI, I fatti e la Corte: sugli accertamenti istruttori del giudice costituzionale nei giudizi sulle leggi, in AA.VV., Strumenti e tecniche di giudizio della Corte costituzionale Milan, Giuffré Editore, 1988, 521 ff.; G. BrUNELLI, A. PUGIOTTO, Appunti per un diritto probatorio neiprocesso costituzionale: la centralita del “fatto” nelle decisioni della Corte, in AA.VV., Annali del-l’Università di Ferrara, 1995, 185 ff. 2 M. AlNIS, Sul rilievo dei «fatti» nei giudizio di legittimità costituzionale. Appunti 3 per una ricerca, in AA.VV., Studi in onore di Franco Modugno, I, Naples, Editoriale 4 scientilica, 2011, 2. 5 G.A. FERRO, Modelli processuali ed istruttoria nei giudizi di legittimità costituzionale, Turin, Giappichelli Editore, 2012,153 ff. 6 M. CARTAMA, Qualche riflessione di un giudice costituzionale intorno al problema dell’intreccio tra diritto, scienza e tecnología, op.cit., 12, according to which “of course, the Court is not blind to medical-scientific problems and procures documentation whenever necessary. However, it cannot be denied that the characteristics of current scientific research pose the problem of updating the procedural evidence available to the courts”. 7 Recently see A. lANNUZZI, Istruttoria e valutazioni tecnico-scientifiche, in Rivista del Gruppo di Pisa, No. 1, (2017). 8 The balanced budget principle has been introduced in Articles 81, 97, 117 and 119 of the Italian Constitution by Constitutional Law no. 1/2012.
  • [2] T. GROPPI, I. SPIGNO, N. VlZIOLI, The Constitutional Consequences of the Financial Crisis in Italy, in X. CONTIADES (eds.), Global Financial Crisis and the Constitution. A Comparative Analysis, Farnham, Ashgate, 2013, 89 if. 2 T. GROPPI, I. SPIGNO, Constitutional Reasoning in the Italian Constitutional Court, in A. JAKAB, A. DYEVRE, G. ITZCOVICH (eds.), Comparative Constitutional Reasoning, Cambridge, Cambridge University Press, 2017, 516 ff. 3 See M. CART ABIA, Qualche riflessione di un giudice costituzionale intorno al prob-lema dell’intreccio tra diritto, scienza e tecnologia, op.cit., 12, according to which “[a] dually, the in-depth preliminary studies that the clerks of the judge rapporteur conduct in relation to each case that is assigned to the judge include, in addition to all the relevant legal materials - laws, jurisprudence and academic literature - also relevant scientific and technical data”.
  • [3] For further analysis see T. GROPPI, La quantificazione degli oneri finanziari deri-vanti dalle decision della Corte costituzionale: profili organizzativi e conseguenze sul pro-cesso costituzionale, in P. COSTANZO (eds.), L' organizzazione e il funzionamento della Corte costituzionale, Turin, Giappichelli Editore, 1995, 274 ff. 2 See T. GROPPI, I poteri istruttori della Corte costituzionale nel giudizio sulle leggi, op.cit., according to which, until 1996, the evidence-gathering orders were 55, up to 11,802 decisions of the Court. From 1987 the evidence-gathering orders are neither numbered nor published in the Official Journal (Gazzetta Ufficiale), unlike the other decisions of the Court. Therefore, they can be acceded only by filing a request to the Registry. Between 1997 and 2016, 38 orders were adopted, out of 8,268 decisions. In total, the evidence-gathering orders were 93. Only 68 were adopted in the judicial review of statutes. Among them, 47 were adopted in incidenter proceedings: M. NlSITICO, Le problematiche del potere istruttorio nelle competenze della Corte, in Rivista del Grup-po di Pisa, No. 1, (2017). The Author underlines that the Court never adopted an evidence-gathering order in one of its leading cases. Our previously mentioned research fully supports this argument.
  • [4] See M. TROISI, Attivita istruttoria, conseguenze finanziarie e modulazione degli ef-fetti temporali delle decision, in Rivista del gruppo di Pisa, No. 1, (2017). 2 G.A. FERRO, Modelli processuali ed istruttoria nei giudizi di legittimita costituzio-nale, op.cit., 300 ff.
 
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