La funzione parlamentare al cospetto della funzione giurisdizionale nel prisma della giurisprudenza costituzionale sui conflitti tra poteri. Uno studio sugli ultimi trent'anni

Since the beginning of Nineties years of last Century, both the anti-corruption operation started by Judges – well known as Mani Pulite – and the result of Referendum on Electoral Law produced a dramatic effect on Italian politics. The traditional parties’ system - that had supported the national institutions for more than forty years - failed. At constitutional level, one of the main effects was the increasingly tense in relationship between political branch and judiciary. Since there, the conflict on allocation of powers between branches of the State has experienced an unknown vitality before the Constitutional Court (until then, mostly involved in judicial review of legislation and conflicts between State and Regions judgments). Indeed, a new era of the Constitutional Court case-law started at the turn of 2000s, the so called Conflicts Season (stagione dei conflitti). This essay aims to analyze the enormous amount of decisions ruled by the Constitutional Court in such conflicts case-law arised between a judicial organ and a House of Parliament, regarding the immunity guaranteed to Members of Parliament by Constitution (art. 68 Const.). In particular, the first part is focused on conflicts that more than others have characterized the Conflict Season: conflicts based on art. 68, par. 1, which establishes the non-liability of Members for opinions and votes cast in the performance of their function. The scope of the protection afforded as regards “opinions” stated is one of the most controversial aspect of non-liability. To avoid a broad interpretation of this immunity that can turn it in a personal privilege, the Constitutional Court has created a functional link (nesso funzionale) between opinion that can be covered by immunity and parliamentary activity. Yet, this concept is very debated, especially in current social media era of communication. The second part is focused on conflicts based on art. 68, par. 2 and 3 that lay down rules governing inviolability. After Reform in 1993, authorization of the House is no longer required in order to institute criminal proceedings. Instead, it is necessary only if the Judge proposed to take certain steps against a Member of Parliament such as arrest or other specific measures (autorizzazioni ad acta). Finally, the essay focused on few conflitcs arised between a judge and House of Parliament regarding the “legitimate impediment” claimed by a Member of Parliament on appearing before the Court due his duties. After an overview of the criteria adopted by the Court in dealing with such conflicts that clear up some judicial tendencies, the essay identifies two aspects that can affect these conflicts before the Court: the new rules on Constitutional Court proceeding and the Constitutional Reform (adopted by Const. Law 1/2020) that had reduced Members of Italian Parliament from next Legislature.