Leggi retroattive di contenimento della spesa pubblica e giusto processo (a margine della sentenza della Corte costituzionale n. 12 del 2018)

Abstract

The essay is about limits imposed to the legislature to enact retroactive statute law in “civil matters”. It tackles the dichotomy existing between the European Court of Human Rights’ and the Italian Constitutional Court’s jurisprudence on the theme. The first one has repeatedly ruled that the legislature is not prevented from regulating, through new retrospective provisions, rights derived from the laws in force. Nevertheless, the principle of the rule of law and the notion of a fair trial enshrined in Article 6 of the European Convention of Human Rights preclude, except for compelling public-interest reasons, interference by the legislature with the administration of justice designed to influence the judicial determination of a dispute. Statutory pension regulations are liable to change and a judicial decision cannot be relied on as a guarantee against such changes in the future, even if such changes are to the disadvantage of certain welfare recipients. However, the State cannot interfere with the process of adjudication in an arbitrary manner. Differently, the Italian Constitutional Court tends to recognize the possibility for the legislature to enact retroactive statute law, if it is sufficiently justified under the reasonableness standard.