Autore
Ponti, Benedetto

Titolo
L’indipendenza e l’imparzialità del giudice amministrativo vent’anni dopo i "Sonntagsgedanken". Elementi di verifica e di conferma nella giurisprudenza
Periodico
Diritto pubblico
Anno: 2025 - Fascicolo: 3 - Pagina iniziale: 1031 - Pagina finale: 1064

Twenty years after Andrea Orsi Battaglini’s "Sonntagsgedanken", this essay aims to verify whether and to what extent his critical reading of the independence and impartiality of administrative judges has been reflected in constitutional, administrative and conventional case law developed since the publication of the essay "Alla ricerca dello stato di diritto. Per una giustizia 'non amministrativa'" (In search of the rule of law. For a "non-administrative" justice system). Starting from a preliminary reconstruction of the theoretical framework proposed by the author, the essay highlights the "reversal of perspective" with respect to the thesis of the constitutional reception of the model of administrative justice inherited from the republican legal system; a reversal based on the systematic link to Articles 24 and 111 of the Constitution and on the principle of the third and impartial judge as an indispensable condition of any judicial protection. This approach leads to a drastic reduction in legislative discretion in the shaping of the institutional guarantees of the administrative judge and to the enhancement of a core of "common constitutional principles" on the subject of independence. An analysis of case law reveals significant findings, particularly in the decisions of the Constitutional Court, which recognise more stringent limits on differences in status between the various branches of the judiciary. More problematic, however, is the comparison with the "crucial issues" identified by Orsi Battaglini – appointments of administrative judges by the government, the accumulation of advisory and judicial functions, extrajudicial assignments – with regard to which case law, particularly that of the European Court of Human Rights, shows a cautious and essentially casuistic attitude. The result is a picture marked by a gradual but contradictory process of convergence between administrative judges and ordinary judges, which ultimately revives the unresolved tension between judges conceived as guardians of individual rights and courts entrusted with the safeguarding of public purposes and the systemic issue of the relationship between judicial independence and oversight of the public interest.



SICI: 1721-8985(2025)3<1031:LELDGA>2.0.ZU;2-K
Testo completo: https://www.rivisteweb.it/download/article/10.1438/119877
Testo completo alternativo: https://www.rivisteweb.it/doi/10.1438/119877

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