Benedetto Ponti

La nozione di indipendenza nel diritto pubblico come condizione del funzionario

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The essay offers a critical rereading of the notion of independence in public law, moving from a destructuring of the multiform notion historically elaborated by law scholarship and jurisprudence in the direction of a basically biunique relation between the concept of independence and that of jurisdiction. On the one hand, such destructuring serves to highlight the positive autonomous deep-rootedness of a set of 'characteristics' traditionally leading back to independence, identified in the constitutional principles concerning jurisdiction ("natural judge, third-party position of the judge, obligatory nature of penal action"). On the other hand, the analysis leads to recognising independence as a characteristic of the public functionary (as a person). Conditioning mechanisms able to affect the person and overcome his (or her) capacity to resist are identified in light of the categories of general theory - elaborated by A. Falzea - of 'unmanifested human circumstances'. Next, it is verified how the system arranges for structuring the condition of independence - shaping the 'service relation' of the functionary to this end - in such a way as to prevent the conditioning mechanisms from working in concrete fashion. The reinstating of independence as a condition ensured by the system to public functionaries makes it possible to reread the positive disciplines for the safeguarding of independence and to highlight the limits thereof (as concerns both functionaries with a role in the magistracy and the so-called independent authorities). Furthermore, the notion of independence is also proposed as key to reading the condition to be guaranteed to the administrative executive in the construction of the delicate balance between accountability and autonomy in decision-making that is necessary for the fulfilment of the constitutional canon of impartiality.

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