La garanzia dell'elettorato passivo: Corte costituzionale e Parlamento (ancora) alla ricerca di strumenti adeguati di tutela giurisdizionale

Abstract

The paper deals with the right to stand as a candidate at elections to the national Parliament taking into account the recent decision no. 48 of 2021 of the Constitutional Court. It is analysed the pivotal question of an appropriate legal protection of this particular political right in the“pre-electoral” phase. The Italian Constitution, legislation and case law confer to each chamber of the Parliament the “jurisdiction” on the electoral process, and expressly empower only elected candidates to enforce this constitutional right. So, the right to defence it is strongly limited and the right to access to a judge, independent, impartial and neutral seems to be foreclosed. The Constitutional Court indicates as possible way to follow an action before the“ordinary judge” (i.e. the judge of rights) in a phase preceding the elections. At the same time the Court urges an intervention of the Legislator to give a prompt and effective legal action and procedure, so as to guarantee the lists of political parties and candidates to participate in electoral process.