Il giudizio costituzionale in via incidentale

Abstract

This paper aims to review briefly key features of our constitutional justice system highlighting gaps and weaknesses, with regard to the incidental judgment. Some shaded areas of constitutional incidental judgment did doubt the effectiveness and stability of our guarantee system and the protection of fundamental rights. This system can not waver into a constitutional system such as the Italian one. For these reasons, it was widely reflected on the possibility of introducing a direct appeal to the Constitutional Court in Italy, which would overcome current difficulties and, above all, would make this instrument the "final" piece to the strengthening of the protection system of fundamental rights, as well as completion of the system itself. Really, it can be noted, through several interesting and articulate reflections, that introduction of the individual recourse, with consequent approach of the Italian constitutional justice system to the Spanish, is more negative than positive mainly because of the considerable “clogging” risk of our constitutional justice organ. In this way, the organization and proper functioning of the Constitutional Court may be severely compromised. Therefore, this study attempts to proceed to the identification of other possible solutions that focus on the improvement of the existing system, rather than on expanding the access roads to the Constitutional Court, emphasizing the elements of diffused nature of the laws constitutional control system. This means also to enhance greatly the incidental judgment and consider it as a primary form of fundamental rights protection.