The "case" Thirty: let's be clear

22/01/19

As is known, some newspapers (even the highest level) have beaten a few hours ago the news of the "rejection" by the Court of Auditors of a decree appointing its own advisor, issued by the Minister of Defense Elisabetta Trenta. The same newspapers have even feared the risk of the possible configuration of the responsibility of the dicastery for damage to the State.

It seems necessary to clarify, at least highlighting four points that seem technically objective, and therefore incontestable:

- it is not a process;

- much less, it is a final decision;

- it is really unlikely (or rather, here it is excluded) that there is a liability for tax damage;

- the worst case scenario (in the ministerial perspective) is that of replacing the originally chosen director.

Let's proceed with order.

1. This is not a process

For the avoidance of misunderstandings (perhaps suggested by the titles and in any case by the aroused media hype), it should be clarified above all that there is no trial in this regard against Minister Trenta.

What the newspapers refer to simply is nothing else but the activity of preventive control of legitimacy that the Court of Auditors - a constitutional body specifically appointed to carry out control functions, as well as jurisdictional ones - is always called by itself to exercise by law on certain acts, including ministerial appointment documents, such as the one in question.

The activity in question, therefore, is not of a procedural nature (in the strict sense), and is routinely (and necessarily) performed by the Court of Auditors on all the acts of the type to which the measure in question is related, as well as on other acts expressly indicated by the law 14 January 1994, n. 19 (as modified by the 23 dl October 1996, No. 543, converted into 20 December 1996, 639).

2. This is not a final decision

Not only then - as could be understood - there is no ongoing trial against Minister Trenta, but the decision of the Court of Auditors has no definitive character. Indeed, to date, it can not even speak of a "decision". So far the Court of Auditors has raised doubts as to the legitimacy of the nomination act in question.

In view of these prospects, the Ministry has provided clarifications, depositing a written statement, which must be carefully examined by the same control body.

Strictly speaking, therefore, we can not see how we can talk about a "rejection", at least at the current stage of the procedure.

3. It is unlikely that there will be liability for tax loss

Third and last, it is very unlikely that there will be any liability for tax damages incurred by the Minister of Defense.

On the contrary, in this context (of preventive control of the legitimacy of the act), this is radically excluded.

The administrative liability for tax loss, in short, is none other than the responsibility of the public official to the pa of belonging for a pecuniary damage caused directly to the Administration or to third parties, who have for this same reason to claim in turn in the comparing it.

Now, this specific form of responsibility, above all, certainly can not be ascertained in the context to which it refers, which is that - as stated, quite distinct - of the activity of preventive control of legitimacy on the acts. If anything, this may - if appropriate - constitute the object of a subsequent and possible judgment intended to take place, yes, before the same Court of Auditors, but in the completely different context of a real process, which at present does not appear not even on the horizon.

Secondly, in order to have responsibility for tax damage it is not sufficient for an act to be illegitimate (and mind you, it is still not clear that this illegality is found in this case!). It is also necessary that the other conditions laid down by the legal system (and refined by the same jurisprudence), starting from the so-called subjective or psychological requirement, which in the case of administrative liability occurs in the qualified or aggravated form of "malice" or " serious fault ".

In other words, in order for such a form of responsibility to arise, it is essential to prove that the public official who issued the offending administrative act has put in place an illegitimate provision in an intentional manner (in fact, with malice) , that is to say, in full awareness of the anti-juridical nature of its determination, or in any case violating the ordinary rules of diligence and expertise in an evident way.

Now, without going into the merits of the affair - this, obviously, we are not competent, and we would not even have the tools -, it seems truly unlikely that such a circumstance can be demonstrated in the hypothesis that occupies us, in which, if anything, the Minister is reproached. not to have appointed an ordinary magistrate as adviser (as required by applicable law), but a military magistrate (who also in the past had served as ordinary magistrate). This country has (unfortunately) seen much worse, in terms of ministerial appointments. Yet we do not know (but we wait for denials) that no Minister of the Republic (First, Second or Third) has ever been convicted of state damage. Even less as a result of the ascertainment of the illegitimacy of a nomination order.

This is to say nothing of the other assumptions, first of all that of the actual configuration of a damage: is it really considered a concrete (and demonstrable) pecuniary prejudice for the coffers of the State in this case? In which terms? To what extent?

4. The worst scenario (from a ministerial perspective): the replacement of the councilor

But then, if this is the case, what can happen in practice, according to the law?

The worst of the configurable scenarios (from the point of view of Minister Trenta) is not in all likelihood the one just mentioned, of liability for tax damage, but rather the replacement of the originally chosen advisor. If, in fact, at the outcome of the control procedure, the Court of Auditors should definitively consider the illegitimacy of the appointment, then there would be a necessary replacement of one of the figures that the current holder of the Defense wanted with him from the beginning of the his mandate.

Of course, it would still be a bad blow for the Minister, for his work group and also for his image. At a time when - recently the voices of a government reshuffle - we were looking for new balances and new legitimating assumptions, also through the way in our judgment that is questionable (even if partially imposed by the Constitutional Court and even earlier by the ECHR) of recognition of the first Italian military union, no later than ten days ago.

The findings formulated by the Court of Auditors involve both procedural profiles (the absence of the conditions of urgency, against the immediate acquisition of effectiveness by the decree of appointment, in the absence of the related "visa" by the control body), that substantial (the lack of the requirements of the appointed councilor, in the terms mentioned above). Of course, these are targeted protests and in the face of which the aforementioned negative outcome can not be aprioristically excluded, to want to be realistic.

At the same time, however, with the same yardstick, the three points mentioned above remain firm. And we can not fail to underline how the case - if just "chance" we can speak - appears if nothing else emphasized, in the story of its legal contours and its possible consequences.

Conclusions

Ultimately and in conclusion, "a lot of noise for nothing". Yes, because the story - to want to ennoble, of course - has Shakespearean traits.

Processes are evoked (or at least, so it seems), and there are none. There is talk of "failures", but here the exams are still far away, let alone one glimpse a final verdict, those that do not even leave you the chance to repair "in September". There are invaria- ble damages that can not even be seen, not even on the horizon, and there is an administrative liability that can not even be ascertained in the current location, and that in a future process (if there will be) it will be almost impossible to prove.

It remains, of course, the possibility that the appointment is considered illegitimate, with all that could be achieved. But on a political (in a broader sense) level, rather than on a legal one.

To what (or who) you need all of this, let's imagine it to others.

We are interested only in the good of the Armed Forces. And of the country.

All the rest passes.

Avv. Francesco Fameli

expert in military administrative law

Photo: Ministry of Defense