Unification of the Forestry to the Carabinieri: new question of legitimacy to the Consulta

16/03/18

Many awaited the decision of the Constitutional Court on the question of legitimacy raised, last 16 in August 20171, from the TAR Abruzzo, a section of Pescara, on the unification of the Forestry all'Arma dei Carabinieri. However, the Veneto Regional Administrative Court (first section) was added to the Collegio abruzzese by a special order2, points out presumed profiles of unconstitutionality in the choice, made by the Italian legislator, to pass most of the members of the Forestry Corps into the Merit, with the consequent acquisition of their military status.

Pending the ruling of the Consulta, we analyze the motivations identified by the two administrative courts, actually very similar.

The TAR Abruzzo is the first to raise the question of constitutionality of Legislative Decree 12 September 2016 n. 177, registered "Provisions on the rationalization of police functions and absorption of the State Forestry Corps", issued, in turn, implementing the delegation, contained in art. 8 comma 1 lett. A ln 124 / 2015, reform Madia, laying down "Delegations to the Government regarding the reorganization of public administrations".

On this occasion, the appellant, a forestry vice-manager, had challenged the relevant implementing measure3, by which his assignment was available to the Carabinieri Army. His interest in recurring was therefore focused on the will to continue to operate in the dissolved Forestry Corps and, in the alternative, not to be merged into the Weapon or another military force with a military system but only, eventually, in the State Police4. On the contrary, the Legislative Decree n. 177 / 2016 does not provide any generalized transit option in the Police or other civil administration: the art. 7 establishes, in fact, the unification in the weapon and the art. 12 the relative transit of personnel. This, according to the applicant, affects the freedom of self-determination of members of the Forestry, considering the substantial impossibility, for the latter, to voluntarily opt for the transition to military status. This, in short, the position made in trial by the vice-president.

The Abruzzese College, in the analysis of the question, indicates an alleged contrast of the art. 8 lett. a) ln 124 / 2015 with the articles 3, commi 1 and 2, 9, 32, 76, 77 comma 1 and 81 Cost.

First of all, the Court finds a violation of Article 2 Cost., For the violation of the principle of self-determination of the individual: the Executive, on the basis of a proxy law considered imprecise, would have operated a substantially forced militarization of the State Forestry Corps; specifically, the Government, on the basis of the criteria provided by the legislator, was obliged to provide "(...) the reorganization of the CFS and possible absorption of the same in another police force safeguarding the existing professionalism, the specialties and the unity of the functions to be assigned, ensuring the necessary correspondence between the functions transferred and the transit of the relative personnel ". As a consequence of this, however, the same Government had, pursuant to art 7 paragraph 1 D. lgs 177 / 2016, the direct unification of the Carabinieri, with the exception of the competences in the fight against forest fires and extinguishing attributed to the Firefighters, as well as the functions attributed to the State Police and the body of the Guardia di Finanza and the activities of the Ministry of Agricultural, Food and Forestry Policies. As a result, it also redeemed the increase in its organic plants.

As regards transit, it was then established that the Head of the dissolved Forestry Corps had to identify the most appropriate destination for the professionalism of the personnel to be relocated. The same staff, just to protect the specific professional skills acquired, could indicate, at the time of submitting the application for reassignment, even if, in case of non-acceptance, it intended to remain in the security sector or flow into the Ministry of Agriculture. Whereas, on the other hand, the forestry, renounced with respect to the Arma option, had not provided for such indications and its request for assignment in another Administration had not been accepted, could be used for mobility procedures and placement in availability, with the consequences of the case.

The transit in other police forces or civil administration appears, then, further limited, in the opinion of the two TAR, considering the available places (about 600 in front of a contingent of agents 8000).

In substance, therefore, the administrative colleges believe that the Forestry, even in the absence of a specific provision in the delegated law, was militarized and with it its members, with the exception of some destined, only in a small percentage, to another civil administration.

A choice, therefore, that the courts consider different than that made in the past on the occasion of the demilitarization of both the State Police and other bodies5.

The two colleges are, therefore, in agreement in considering the self-determination of the individual injured: the recent order of the Veneto TAR states that "(...) the forced assumption of military legal status, with all the limitations and penalties connected to this status (...) seem to significantly affect the fundamental freedom of self-determination of the individual, protected by art. 2 of the Constitution, which recognizes and affirms the value of the individual, as well as his right to fully develop his personality, independently making his own choices by asserting his rights and fulfilling his duties. This freedom of self-determination finds a specific declination (...) in the art. 4 of the Constitution, with the recognition of the freedom of choice of every citizen of his work; which implies, on the part of the public authorities, ithe duty to abstain from any interference in the freedom of the individual to choose independently the profession that best suits his personality ". To the Consulta, therefore, the decision on the matter.

However, even in the face of the fundamental principle of self-determination of the individual, it is opportune to underline, here, also other elements that can not be considered in the future comparison judgment.

It is true that the military have a differentiated position compared to that of ordinary citizens: by way of example, consider the provisions of art. 1465 d. lgs 66 / 2010 according to which "(...) the military is entitled to the rights that the Constitution of the Republic recognizes to its citizens. To ensure the fulfillment of the duties of the armed forces are imposed on the military limitations in the exercise of some of these rights, as well as the observance of particular duties within the constitutional principles ". Added to this is the different jurisdiction and subjection to the military penal code. But the limitations referred to in the aforementioned article are, in reality, deemed necessary to ensure the impartial work of the Armed Forces and a better fulfillment of the tasks assigned. So the military is subject to constraints not tending to differentiate it negatively from other common citizens, but aimed at taking care of the public interest entrusted to the body of reference. Furthermore, in order to prevent the military from perceiving an unjust discrimination of their position, the domestic courts are also moving in the direction of eliminating the differences6.

In the same way, the fact that, as underlined by the Veneto Regional Administrative Court in the referral order, "(...) the Government was delegated to provide for the reorganization of the State Forestry Corps and eventual absorption of the same in another police force, safeguarding the existing professionalism, the specialties and the unity of the functions to be assigned, ensuring the necessary correspondence between the functions transferred and the transit of the relative personnel ": a reference, therefore, to the consistency of the new assignments but not to the maintenance of the civil status of the individual. Moreover, in this regard, it is not possible to disregard what was affirmed by the Council of State, in the consultative context7, according to which "(…) the personnel whose status change is, here, discussing does not belong to a civil public administration like any other, but to a body that is characterized by marked traits of analogy with the military (...). The change of status, consequently, implies effects on subjective situations much less intense than those that would be produced for the common civil servants of the State ".

It will now be up to the Council to understand if the transition to military status, with the assumption of the above limits, by former foresters, can be considered compatible with the need to ensure a unitary and efficient protection of the environment within the Carabinieri, as supported by the Council of State, or not, as deemed by the TAR in question8.

The re-ordination orders then believe that the militarization of the Corps is not necessary for the maintenance of "high standards "as specified, however, in the delegated law and the related implementing decree: the nature of Armed Force would not be synonymous with the better protection of a given asset; in this regard, it is true that the Forestry has achieved, over the years, a high professionalism specialist, repeatedly recognized even in institutional9, but it is also necessary to consider that this reality is not incompatible with a unification in a military structure, rooted in the territory in a capillary manner, as, precisely, that of the Carabinieri; this, not to mention the fact that unification can lead to objective advantages, both in terms of coordination of resources in a single structure and with a view to improving action strategies dictated by a synergy of greater knowledge and skills.

These considerations emerge from the reading of one of the motivations reported by the TAR Abruzzo: this college, unlike the Veneto, considers the discipline in question unconstitutional even for the alleged violation of the right to protection and protection of the environment. In fact, this is a fundamental right of the person, pursuant to art. 9 Cost, considered by jurisprudential interpretations, as part of the broader right to health, referred to 32 Cost10. Therefore, given its location, even the protection of the environment should be considered an incompressible right and, therefore, not expendable for mere budgetary requirements and cost savings11. However, environmental protection does not seem to be lacking as a result of the unification, given the already planned and operational defense structure within the Merit12For decades the Carabinieri have dealt with the matter in question, directly depending on the Ministry of the Environment; in fact, 1986 is the institution of the NOE, an Ecological Operating Unit, which, in 2001, has become the Carabinieri Command for Environmental Protection. The 25 October 2016 was born, then, in compliance with the reform Madia, the Command Unit for the protection of forest, environmental and agri-food Carabinieri, within which the Carabinieri Command for environmental protection and part of the new Carabinieri Forestati merged ; the latter, unlike what happened in the past, are therefore nowadays dependent on the Ministry of the Environment, and no longer on the Ministry of Agricultural Policies.

Contrary to what has been outlined above, the Veneto Regional Administrative Court considers that there is no consistency between the Arma dei Carabinieri, despite the presence, consolidated over the years, of a structure to protect the environment and directly depend on the relative Ministry , and the Forestry Corps. It is read, in fact, in the order that "(...) the proof of the defective formulation of the guiding criteria is seen precisely in the consequent disorientation of the Government which, at the time of implementing the reform, in the absence of criteria that could guide it in identifying the most suitable police force to absorb the Forestry Corps and more compliant to it, has chosen the Arma dei Carabinieri, or the police force, among the existing ones, less homogeneous and even incompatible from an ordinal point of view with the Forestry Corps ".

The Forestry has taken over the years, a set of specific skills in environmental protection; just the sum of the above-mentioned skills, which fell into a military organization, could guarantee even more efficient protection. True that an indiscriminate passage in the Arma dei Carabinieri wards, with different purposes, could cause the loss of these skills (in the same way as it would risk losing them allowing a transit, without a guideline, to any civil state administration) ; however, the confluence in the structure, indicated above, of the Merit would allow to maintain the consistency of former foresters with respect to previous tasks, to strengthen the skills and knowledge within a single Corpus, as well as better manage the available forces which , with the unification, today fall under a single command.

Like every passage and new beginning, however, administrative difficulties are not lacking: in fact, a series of problems have been registered13 not so much linked to the consistency of the choice of the unification, as to a subsequent lack of coordination in concrete; it will now be up to the governing bodies to resolve everything as quickly as possible through the most suitable initiatives14.

Instead, the Constitutional Court will evaluate the possible contrast of the article 8 paragraph 1 lett. a) of the law n. 124 / 2015 (containing the delegation to the Executive), considered by the two TARs not sufficiently specific, with the art. 76 Cost.

The Collegio Veneto, then, hopes, in conclusion, the prediction of a transit not in the Arma, but in the State Police, providing, then, any positions in military forces, for those wishing to opt for this route.

The two TARs, therefore, in the light of the objections so far exposed, the question of constitutionality to the Consulta and the countless pending appeals, presented by former foresters, must be suspended pending the judgment.

On the other hand, the Council of State has a different opinion with respect to the two TARs, which, in the advisory, stated that "(...) iThe Council of State shared the Government's decision to dispose of the State Forestry Corps to be absorbed by the Carabinieri Army, with the exception of the competences regarding forest fires transferred to the National Corps of Fire and Marine Surveillance of the natural parks assigned to the Guardia di Finanza, not only because the ARMA has developed and consolidated specialized environmental and agri-food skills over time, but also because the Forestry Corps stations go alongside the already widespread network of Carabinieri garrisons with predictable positive effects on the quality and intensity of territorial control. With the solution adopted, the principles of delegation are also respected, such as "safeguarding existing professional skills", "specialties and unitariness of functions" and "correspondence between transferred functions and personnel transit"; then continues, believing that "(...) as to the doubts on the legitimacy of the absorption of the Forestry Corps and on the militarization of its staff at the time of the passage in the Weapon, the Commission considered that the objections can be overcome also in light of the constitutional jurisprudence, considering that the abolition of public offices is in full readiness of the legislator, without prejudice to those who have a constitutional guarantee of existence (50 2015 Constitutional Court) and that in this case no constitutionally relevant good is sacrificed. In addition, the economic treatment of the personnel concerned is safeguarded with the assignment of the resignable ad personam allowance. (...) The change in status does not even appear to be preclusive, given that the economic and regulatory treatment between the members of the police forces has progressively become uniform and that "(...) The guarantee of the fundamental rights of individual military citizens does not therefore recede the needs of the military structure; so that the collective needs of members of the Armed Forces (...), in order to ensure the conformity of the military system to the democratic spirit, deserve protection "»(Court of the Constitution No. 449 of the 1999). (...) The Council of State has shared solutions for the classification of personnel of the Forestry Corps in the Carabinieri Army, in the other police forces and in public administrations. With reference to the possibility of an option for transit to other public administrations, it has signaled to the Government the need to reduce flexibility in its provisions, so that the limits and objectives set by the delegating legislator are observed, first of all the unity and continuity of the protection functions in the environmental and agri-food sectors hitherto fulfilled by the Forestry Corps and can be prevented from any litigation "15.

The comparison between the different assets, all of constitutional relevance, emerging in the affair, will not be easy to solve.

Katia Sacchetti

 

3 Decree of the Head of the Forestry Corps n. 81278 / 2016

4 Law n. 121 / 1981 "New order of the Public Security Administration". The full text can be found at the link http://presidenza.governo.it/USRI/ufficio_studi/normativa/Legge_121_1_Aprile_1981.pdf

5 Affirms the TAR Abruzzo, ord. 235 / 2017, cit. that "(...) the choice of the Government is not even rational (...) given that the choice of militarization, in view of the considerable sacrifice imposed on staff, does not appear proportional to the purpose of maintaining the efficiency that the body has always been recognized (...). If this were to be the case, in the long run it would have proceeded over time to the militarization of all civil police forces, especially those with greater functional overlap with other military orders (...). Instead, (...) in our system we have historically assisted to a demilitarization of all the organizations of the security sector in a broad sense, except the Guardia di Finanza (...) and the Carabinieri: the State Police, the Prison Police, the Police fire (...) and even the State Forestry Corps, whose nature of police force with a civil order has recently been fully implemented with the reorganization law n. 36 / 2004 (...) ".

6 In this sense, the Council of State is cited, order for referral to the Constitutional Court n. 2043 / 2017 (http://www.grnet.it/allegati/Ordinanza-CS-Diritti-Sindacali.pdf ), regarding the recognition of trade union freedoms, according to which "(...) the Board considers that the question of constitutional legitimacy of art. 1475 paragraph 2 of the Legislative Decree 66 / 2010 is relevant and not manifestly unfounded (...). (...) the restriction of the exercise of the right of union association of the military can not go so far as to deny the ownership of this right, under penalty of violation of the articles 11 and 14 of the Convention (see EDU) ".

7 Council of State, special commission, opinion no. 1183 / 2016. The text can be found at the link http://www.lexitalia.it/a/2016/77139 . In the opposite direction, TAR Abruzzo, ord. n. 235 / 2017, according to which the aforesaid relief "(...) does not exclude that the change of status has been realized, with deeply impacting the professional and personal life of the subjects involved, but rather highlights that the relative effects may be less intense than to other civil servants of the state ".

8 It is read in TAR Abruzzo, ord. 235 / 2017, cit.:"(...) violation of art. 3 commi 1 and 2 of the Constitution, where the choice made by the government to militarize the staff of the dissolved State Forestry Corps, in view of the considerable sacrifice imposed on the personnel, does not appear proportional to the purpose of maintaining efficiency that the body is always been recognized (...) ".

9 It is read in "Report to the bill n. 1535 ", Chamber of Deputies, http://legxiv.camera.it/_dati/leg14/lavori/schedela/trovaschedacamera_wai.asp?Pdl=1535 : "(...) the State Forestry Corps is established in the 1822; A worthy body that for almost one hundred and eighty years has carried out, despite the lack of available resources, an effective action in the rural area, through prevention, control and repression activities for the protection of the national agricultural and forestry sector. (...) In a context of great environmental and natural emergency in which our country is ever more to be found (...) the reform, reorganization and technological adaptation of the State Forestry Corps can give this emergency a signal of inversion of route producing its beneficial effects through the preparation of an agile, effective, efficient reform, capable of making a leap to a body that has all the human and professional potential to become a force of excellence, with the creation of a high structure technical and operational specialization ".

10 Corte Cost. Sentence n. 641 / 1987 on http://www.giurcost.org/decisioni/index.html : "(...) the environment is protected as a determinative element of the quality of life. Its protection does not pursue abstract naturalistic or aestheticizing purposes, but expresses the need for a natural habitat in which man lives and acts and which is necessary for the community and, for it, for the citizens, according to widely felt values; it is imposed, first of all, by constitutional precepts (articles 9 and 32), for which it rises to primary and absolute value ".

11 Corte Cost. Sentence n. 275 / 2016 on http://giurcost.org/decisioni/2016/0275s-16.html. In this regard, L. MADAU in "It is the guarantee of the incompressible rights to affect the financial statements, and not the balance of this to condition the proper payment" believes that "(...) the constitutionalization of the principle of balance sheet balance, which occurred with the modification of the art. 81 Cost in the 2012, aroused in doctrine not a few fears about the effects it would have had on the guarantee and effectiveness of fundamental rights. (...) It was feared, among other things, that the vulnus created by the new art. 81 Cost to the rights could have been achieved in the judicial protection of the same, and more particularly in the constitutional legitimacy. In this context, indeed, the budget balance could have played a decisive role, through its reinforced insertion in the activity of balancing constitutionally relevant interests, an activity now included in the ordinary operations to which the Constitutional Court is called in all the judgments of his competence (...) ".

12 We read in Opinion of the Council of State n. 1183 / 2016, cit .: "(...) in the report it is clarified that the Weapon was considered among the Police Forces the most suitable to absorb the Forestry Corps, having already developed in its field specific competences in the environmental and agri-food sectors and being structured in a capillary way on the territory ".

13 V. VALENTINI, "Fires, not just stationary helicopters: with the extinction of the Forestry there is no longer even prevention in the woods", www.ilfattoquotidiano.it, 14 / 07 / 2017, in relation to the extinguishing of fires: "(...) the Forestry was particularly prepared in this task and the former guards transferred among the firemen hoped to be automatically assigned to that task (the carabinieri do not operate in fire). So it was not. And so on one side the firefighters were forced to race against the clock to train their staff in this difficult task, on the other hand many former foresters have found themselves relegated to roles of minor responsibilities or parked without duties, in waiting for implementing decrees envisaged in the reform ". G. MASINI, "Firefighting of foresters assigned to the Carabinieri", 16 / 02 / 2017, http://www.ilgiornale.it/news/cronache/vigili-fuoco-anticendio-dei-forestali-assegnati-ai-1364953.html : "(...) CONAPO denounces that only the 365 ex Forestali on 8mila would be assigned to the Fire Brigade. Not only. The general secretary Antonio Brizzi also complains about the assignment to the Carabinieri of some fire-fighting vehicles. According to Conapo, this attribution "clearly conflicts with the principles contained in Legislative Decree no. 177 / 2016 which in the division of tasks and functions of the dissolved State Forestry Department exclusively attributes the competence of the extinguishing of forest fires, in competition with the Regions, to the National Fire Brigade, both for ground operations and for the air fleet "(...)".

14 Please read, in this sense, "Supplementary and corrective provisions to d. lgs 19 August 2016 n. 177, regarding the rationalization of police functions and absorption of the State Forestry Corps ", http://www.senato.it/service/PDF/PDFServer/BGT/01044758.pdf

15 Council of State, Special Commission, 12 opinion May 2016 n. 1183, https://www.giustizia-amministrativa.it/cdsintra/cdsintra/Notiziasingola/index.html?p=NSIGA_4089882

(Photo: Arms of the Carabinieri)