Previous penalties, pending charges and enlistment in the Armed Forces

19/02/19

"I am a defendant in criminal proceedings. Can I participate in the competition to enroll in the Army?"I confess that this is one of the most frequent questions that are asked - almost daily - by those who turn to my law firm.

The answer is simple - and will certainly be known to the most knowledgeable readers - but the theme still deserves to be addressed, to provide a useful clarification especially with regard to some topics, so to speak, contour and if anything, in fact, for its indisputable impact in practice.

1. The regulatory framework of reference: the requirements for enlistment in the Armed Forces

In order to provide an answer to our question, it is necessary to refer to the legislative provisions that contemplate and regulate the requirements for enlistment in the Armed Forces.

These are distinguished in general requirements, established by the art. 635, first paragraph, of the Code of the Military Ordinance Legislative Decree n. 66 / 2010 (previously, from the abridged article 4, paragraph 1, of the law No. 226 / 2004), and special (or special) requirements, sanctioned both by the same Code, for specific categories of military, and by individual calls of competition, in accordance with the provisions of the same art. 635 com, in the third paragraph.

It will be good to fully report the text of the aforementioned first paragraph of the art. 635 com, so as to dispel any doubt:

"For recruitment in the Armed Forces the following general requirements are required:

a) be an Italian citizen;

b) be in possession of an adequate qualification;

c) possess the psychophysical and attitudinal suitability for unconditional military service;

d) fall within the height limits established in the regulation;

e) enjoy civil and political rights;

f) have not been dismissed, dispensed or declared lapsed from employment in a public administration, dismissed from employment in the employment of public administrations as a result of disciplinary proceedings, or acquitted, of authority or office, from previous enlistment in the Armed Forces or police, excluding the acquittals for psycho-physical unsuitability;

g) have not been convicted of non-culpable offenses, even with sentence of application of the sentence upon request, on conditionally suspended sentence or with a penalty order, or not being imputed in criminal proceedings for non-culpable offenses;

h) have not been subjected to preventive measures;

i) have held uncensurable conduct;

l) not to have behaved towards democratic institutions that do not give sure of scrupulous loyalty to the Republican Constitution and the reasons of security of the State;

m) have completed the 18 year of age (...);

n) negative result of diagnostic tests for alcohol abuse, for the use, even occasional or occasional, of drugs, as well as for the use of psychotropic substances for non-therapeutic purposes".

2. The answer to our question (and some clarifications)

The simple reading of the aforementioned law allows us to give a secure answer to our question. The letter g) of the first paragraph of the art. 635 com is indeed clear in excluding from participation in insolvency procedures preordained to enlistment in the Armed Forces all those who have been convicted of non-negligent crimes or are charged in criminal proceedings for the same kind of crimes.

If this is true, it is also true that some clarifications seem necessary.

a) In the first place, from what has been said, it follows that the answer to the underlying question that we have asked ourselves will not necessarily be negative, but it will be resolved - one forgives the desired simplification - in one "it depends". The possibility of taking a useful part in the selective tests for recruitment in the ranks of the Army is in fact conditioned not to the slope of any criminal procedure (or the fact of having suffered any sentence of criminal conviction), but to the nature of the crime ( or of the crimes) for which one proceeds (or by virtue of which one has been convicted): only the malicious crimes, in fact, entail the negative consequence of precluding the person concerned from enlisting. So, if for example we are investigated (or convicted) for having injured (even serious) as a result of negligence - precisely - failure to comply with the rules of the Highway Code, this will have no relevance to what is being said.

b) Secondly, it is worth noting whereas the aforementioned provision places on the same level, with regard to the recollected effect of excluding the possibility of competing for the addressee, the conviction and the mere quality of a defendant. Therefore, it is not even required that the aforesaid sentence be final - that is, it has been pronounced by a final sentence which is in the final judgment and therefore no longer contestable -, and to the conviction tout court the sentence on application of the penalty on request (the so-called plea bargaining), the sentence subject to penalty conditionally suspended or pronounced by means of a penal decree, is compared. On this point we will return to the next paragraph, except to point out immediately that the order thus excludes - among other things - from any assessment of the seriousness of the non-culpable crime at stake.

c) Third and last, it must be emphasized that to come into play on the matter is not only the requirement under letter g), but also that referred to in letter h) of the aforementioned first paragraph of art. 635 com, which excludes the right to enlist even for those who have been the recipient of "prevention measures". The latter, as is known, are so-called special prevention measures doors o prater delictum, ie applied before or regardless of the commission of (further) offenses, on the basis of the assessment of social danger of the person receiving the measure (think of the oral notice, the seizure and confiscation of assets, and so on).

3. The debate on the constitutional legitimacy of the rule: the opinion of the jurisprudence

The last two clarifications just noted lead inevitably to highlight that the choice of our legislator on this subject was absolutely radical: in fact, it was decided to eliminate at the root the risk of any involvement among the members of the Armed Forces of those who find themselves in any position of ambiguity, even if minimally crystallized with character of finality, with respect to any incriminating offense negligent. Not only is the fact that the person concerned has been convicted by a final sentence, but it ignores the fact that there has been no sentence, attributing importance to the mere inclination of the criminal proceedings and therefore to the mere quality of the defendant of the subject involved, and even before that even the crime is ignored, also attributing importance to the application of mere prevention measures.

Given the above, it is natural that one would come to doubt the constitutional legitimacy of such provisions, with regard first of all to the principle of the presumption of innocence, enshrined in art. 27, paragraph 2, Cost. The jurisprudence, on several occasions, however, has always considered the manifest groundlessness of such questions of constitutionality, promptly confirming compliance with the Charter of the rules under discussion..

Lastly, it is noted in this sense TAR Lazio, Sec. I Bis, 10 September 2015, n. 11197, which considered the exclusion from a competition for the access to the roles of the troops of permanent service troops (VSP) of a major Army caporal, based on the assumption of the verification of the slope against which a criminal proceeding was a non-culpable offense. In the appeal of the candidate the above provision was censured, noting the contrast between the competition notice (and the provisions of law referred to in it: neither more nor less than those mentioned above), on the one hand, and in fact Article. 27, c. 2, Cost., Recalled in one with the analogous norms of the art. 6, commi 2 and 3, of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and art. 48 of the Charter of Fundamental Rights of the European Union. In this regard, the administrative judge appealed observed that "it is not illogical, nor does it violate the constitutional reference principles, which the Administration, because of the delicate institutional functions entrusted to the military, limits the competitors' base, regardless of whether they have or have the military qualification, excluding those who the time of the contest and before the definition of the same is found in an ambiguous judicial position, already summarily scrutinized by the judicial authority". And there does not seem to be anything to be added about it.

4. One last doubt to dispel: the irrelevance of rehabilitation

Considered so, it remains perhaps to dispel a last doubt. In fact, there are not a few who believe they can circumvent the problem by resorting to rehabilitation: it is, however, a conviction devoid of any foundation whatsoever.

The institute of rehabilitation, foreseen in our order from the art. 178 cp, allows those who have been convicted, and have shown certain signs of repentance, to obtain, subject to the recurrence of the conditions provided for by law, the extinction of the penal effects of the sentence, as well as of the accessory penalties (including, for example, interdiction from public offices), unless the law provides otherwise. Unfortunately, if the rehabilitation allows the interested party, on the one hand, to once again gain the opportunity to participate in the general public competitions, to this they are an exception, on the other, precisely the selective procedures intended for enrollment in the Armed Forces.

Conclusions

Consequently, from the brief analysis of the turning point, it is clear that the criminal record (or even only the pending criminal charges) of the candidate constitute a reason to legitimately and irrevocably determine the exclusion from the competitions for access to any role in the Armed Forces. In this regard, a conviction (even if not definitive) is sufficient, or even only having acquired, as a result of preliminary investigations, the status of defendant, or the fact that he was the recipient of preventive measures (therefore, even before and regardless of 'ascertainment of a crime). This with the sole temperament of the non-culpable nature of the crime for which one proceeds or is deemed to have been established.

Of course, a solution that may seem radical, if not drastic, but which justifies with the orderly will to preserve the integrity of the Armed Forces at the highest level, clearing the field of every slightest margin of ambiguity, that can even just scratch the structure and staff, at every hierarchical level.

Avv. Francesco Fameli

expert in military administrative law