The “due process” of constitutional revision: which guidance from Europe?

C. Fasone
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Abstract

This paper deals with the influence exerted by the Council of Europe, notably by the Venice Commission, and by the European Union on constitutional amendments with a special focus on Italy, a founding member state of both organisations. It proceeds as follows: it first provides a quick introduction into the vexata questio of the difficult balance between rigidity and flexibility of democratic Constitutions, well-illustrated by the academic debate and by the Venice Commission’s Report on constitutional amendments of 2010 (CDL-AD(2010)001). Second, the paper considers which European standards have been set, especially by the Venice Commission, to design an effective and legitimate constitutional amendment procedure, and whether the Italian constitutional provisions and practice have abide to them. Third, the contribution reflects on the influence exerted by the Italian participation in the Council of Europe and in the European Union on the substance of the amendments adopted to the Italian Constitution. It is argued that at least since the mid-Twentieth century constitutional amendments procedures can no longer be treated as purely national phenomena. They are more and more guided by standards set at supranational level, notably by the Venice Commission, as derived by the European common constitutional heritage. The influence is exerted both on a procedural level, defining what can be called as the “due process” of constitutional revision, and on a more substantive level.
修宪的“正当程序”:欧洲提供了哪些指导?
本文论述了欧洲委员会,特别是威尼斯委员会和欧盟对宪法修正案的影响,特别关注意大利,这两个组织的创始成员国。它的进展如下:它首先简要介绍了民主宪法的刚性和灵活性之间难以平衡的问题,学术辩论和威尼斯委员会关于2010年宪法修正案的报告(CDL-AD(2010)001)很好地说明了这一点。其次,本文考虑了哪些欧洲标准,特别是威尼斯委员会制定的标准,以设计有效合法的宪法修正程序,以及意大利宪法条款和实践是否遵守了这些标准。第三,这一贡献反映了意大利参加欧洲委员会和欧洲联盟对意大利宪法修正案的实质内容所产生的影响。有人认为,至少自20世纪中期以来,宪法修正程序不能再被视为纯粹的国家现象。他们越来越多地受到超国家层面制定的标准的指导,特别是威尼斯委员会制定的标准,该标准源自欧洲共同宪法遗产。这种影响既体现在程序层面,即所谓的修宪“正当程序”,也体现在更实质的层面。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
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