Limiti della giurisdizione e divieto di non liquet. L’accesso dei diritti alla giustizia

The problem of protection of rights understood as sets of claims, freedom and authority, takes place on two levels, usually called "substantial", which identifies the various positions attributed to subjects of law and "procedural", which provides forms and tools to react against the injury of such positions before a judge and ask for the protection. A right is protected establishing its recognition or attribution in the law and so being able to access to justice. The problem of protection of rights is conditioned by the choices that the legislator operates on the levels mentioned above. This research work investigates if there are cases in which the judge may refrain from pronouncing judgment, or if such cases cannot be admitted. In order to answer this question it is possible to start from the analysis of the relationship between prohibition of non liquet, on the one hand, and the effects that this prohibition produces on the legal protection of rights, on the other. The prohibition of non liquet is historically considered as a logical consequence of the completeness of the legal system and, in this context, is seen as a tool of powerful guarantee against arbitrariness of judges and rights uncertainty. In the contemporary context, the picture appears to be significantly changed. Not only for the progressive awareness about the impossibility of a complete law system ab origine, but also for the metamorphosis of prohibition of non liquet in this context. If there isn't any specific law concerning a legal question, it's necessary to investigate Legal System to find a solution to the matter. The Italian Legal System has a not flexible Constitution, where art. 24, 1° comma, together with art. 12 of the introductory provisions to the Italian Civil Code of 1942, do not allow the Court to refuse from deciding on a matter because of the silence or the obscurity of the law. As a result of an examination of some sensitive cases, recently occurred, the judges enhance as much as possible the access to justice even in the absence of a specific provision about a legal matter. The conclusion of the analysis highlights how the aim of prohibition of non liquet is different from the past. Born in a context where the utmost confidence was placed in the legislator and in the completeness of the Code, the prohibition of non liquet ensures the protection of rights when Codes don't give a specific provision. Thanks to this important evolution of prohibition of non liquet, nowadays it is possible both ask for a right to be protected and obtain an answer from a judge, also in absence of a specific provision. Certainty of Law depends on the work of judges and it means not only to be able to know in advance the consequences of a certain behavior, but also to be able to obtain legal protection for rights.