Anti-Mafia Interdictions and fundamental rights in the perspective of the separation of powers

Abstract

The essay addresses the theme of safeguarding fundamental rights within the framework of anti-mafia interdictions, from the perspective of the separation of powers, highlighting how the lack of a discipline that delimits, in its prerequisites, the application of anti-mafia preventive measures prevents the judge from exercising full and effective oversight. In particular, after highlighting the legal aspects of the anti-mafia preventive discipline, which are misaligned both with constitutional guarantees safeguarding personal freedom and with the norms of the European Convention on Human Rights (ECHR), the work focuses on the alleged technical discretion of the Prefect's power, evoked by the Constitutional Court based on administrative case law, which over time have identified a series of behaviors in the presence of which it would be legitimate to presume the existence of the justifying danger for the application of the restrictive measure. The approach followed by the Constitutional Court is subjected to a critical review to conclude that the relationship between powers must find legitimacy in the effectiveness of individuals' rights, which cannot be relinquished in relation to the effectiveness of public law without respecting the constitutional guarantees and those of the ECHR protecting fundamental freedoms. In this perspective, it is believed that the principle of full jurisdiction, invoked by doctrine to overcome the limits of judicial review over the administration's power, is not sufficient to ensure effective control, as the use of this "rule" would be left to the judge's discretion, who, in the case of interdictions, unlike in other areas, appears reluctant to conduct thorough scrutiny of anti-mafia prefectural measures.