Asimmetrie federative nel Controllo di Costituzionalità

la Difesa Pubblica tra gli Stati e l’Unione

Abstract

Objective: To examine why state Public Defender’s Offices are allowed to bring abstract constitutional review before State Courts of Justice, whereas the Federal Public Defender’s Office (DPU) is not listed among Article 103 petitioners, and to assess how this asymmetry affects nationwide uniform protection of fundamental rights. Method: Doctrinal-exegetical analysis of Articles 103 and 125 §2 of the Constitution, the relevant procedural framework, and specialized literature, coupled with an institutional reading of the CPC/2015 precedent-making microsystem, without original empirical collection. Findings: State-level standing follows from the constitutional room for design granted to the States, whose exclusive parameter is their own Constitution; the DPU’s exclusion results from the federal taxative list aimed at preserving objectivity and decisional economy. Effects: Decision-making delays, inter-regional fragmentation, and structural dependence on third-party petitioners, disproportionately burdening vulnerable groups. Harmonization paths: (i) constitutional amendment with safeguards (substantive thematic pertinence, heightened justification, agenda governance); (ii) institutional cooperation between DPU and the Federal Prosecutor-General, stronger amicus curiae participation, inclusive public hearings, and strategic use of ADPF; (iii) intensive use of IRDR/IAC to stabilize theses and feed national uniformity. Conclusion: Calibrated governance—opening with safeguards plus vertical coordination—can reconcile federal autonomy, equality, and decisional rationality.