With a sharp sponge, the Constitutional Court with sentence n. 240 / 16 has canceled the expectations of the staff of the FF.AA. employed in UN missions, expressing himself negatively on the question of constitutional legitimacy raised by the Regional Administrative Court of Friuli Venezia Giulia and that of Abruzzo in relation to the violation of the principle of substantial equality pursuant to art. 3 of the Constitution in consideration of the interpretations made, and constituent living law, in various judgments by the State Council on the question of whether or not the Ln1074 / 62 is applied with which the benefits provided for by the norms in favor of the "combatants" are applied to personnel employed in UN missions.
In recent years, the issue has involved various administrative courts and the State Council, with mixed success, in a judicial battle that found its conclusion in the aforementioned sentence of the Constitutional Court which, continuing on a vision already outlined by the Council of State , considers the claims regarding the application of the aforementioned benefits to the requesting personnel unfounded.
A BIT OF HISTORY
The Ln1746 / 1962 takes its cue from a brutal episode in the history of UN missions (the Kindu massacre of the 1961) as a result of which we dramatically realized that UN missions could have entailed risks comparable to situations of armed conflict (rectius, war) for the personnel employed. To compensate for the risks and exposure to the "similar" situation, the single article of the LN1746 / 62 applied to personnel engaged in UN missions "the benefits provided by the rules in favor of the combatants".
The question has gone smoothly for different times as long as the number of missions and the size of the contingents did not come to be suitable for honoring ever greater commitments that the international community required; the regulatory provision exposed dangerously the public purse to disbursements that were not foreseen, even if foreseeable, by virtue of a military presence in foreign operating theaters ever more consistent. The first "judicial proceeding" is perceived in the 2010 by the sentence 1288 of the 2010 of the Veneto Regional Administrative Court following an appeal for the recognition of the right forwarded even in the 2003 by military personnel employed in UN missions. With this provision and with the deductive reasoning contained therein, the Veneto Regional Administrative Court acknowledged the right of the applicants to overestimate the periods of service performed on behalf of the UN, having recourse to the combined provisions of the 18 of the DPR n.1092 / 73 and of the 'art.3 of the Ln390 / 50 to achieve the perfect identification of the benefits of the Ln1746 / 62 in the over-evaluation of a year of service for each war campaign.
Following this ruling, a compliant orientation was established based on the sentence n.01168 / 2014 of the Lombardy TAR Section One and of the sentence n.450 given on 28.08.2014 by the Friuli Venezia Giulia TAR but also of the jurisprudence of the Court of Accounts which recognized correspondingly the same benefits to the retired personnel, even though the accounting jurisprudence was consistent and consistent in two levels of judgment differently, as will be seen, from the administrative jurisprudence.
Certainly the Treasury warned of the dangerousness of the situation, envisaging an economic flaw of all respect where the above interpretation had taken hold, and this not only for itself but also for the INPS, the body providing retirement benefits following the takeover of it to the previous INPDAP provider. Evidently "empathizing" with the Treasury, the State Council intervened to restore order, quashing favorable first-level sentences and establishing what, correctly in the transmission order to the Constitutional Court, the Chairman of the Friuli Venezia Giulia TAR defines "living law" as a constituent judged to be substantial; obviously this orientation prevents any definitive success for the plaintiffs who, although winners in the first instance, will certainly be unsuccessful on appeal, since the Council of State can proceed, on the previously established orientation, to render sentences in simplified form.
Sensitive to the particular trend that the issue was assuming within the judicial process and to the constant jurisprudential contrast, the President of the TAR of Friuli Venezia Giulia referred the decision on its interpretation to the Constitutional Court, asserting that the lack of equality between combatants and military personnel participating in UN missions, given the presence of significantly and evidently comparable risks and dangers, constituted a violation of the principle of substantial equality pursuant to art.3 of Cost.it.
The conclusion of the story is known: the Constitutional Court ruled that the question of legitimacy was inadmissible and turned off the hopes and expectations of the staff who, however, is certainly not going through the best of its historical periods.
THE JUDGMENT NO. 240 / 2016 OF THE CONSTITUTIONAL COURT
We must necessarily go into the reasons for the Court's ruling in order to try to reconstruct the logic that led to the decision in question. First, we will however have to take up the reasons underlying the claims of the applicants; they are basically the violation and the false application of the LN1746 / 62, of the art. 18 of the DPR n.1092 / 73 and of the art. 3 of the Ln390 / 50: the art. 1 of the Ln1746 / 62 states that "to the military personnel who on behalf of the UN have lent or lend service in areas of intervention, the benefits provided by the rules in favor of the fighters are extended"; the art. 18 of the DPR n.1092 / 73 states that "the computable service is increased by one year for each war campaign recognized pursuant to the provisions in force on the subject"While the 3 of the Ln390 / 50 states how"to get recognition of the campaign, it is necessary that the persons referred to in the previous article have loaned for each calendar year not less than three months of service, even if not continuous referred to in article 1. If in the calendar year the minimum period referred to in the previous paragraph is not reached, but the participation in the operating cycle is continuous at the turn of two years, the service provided in the following year may be calculated for the recognition of at least one campaign, unless this, in turn, is not of such duration to buy the recognition of another campaign. In this case, only the latter will be recognized".
The reconstruction of the aforementioned regulatory structure makes it possible to conclude coherently with the deductive argument of the Veneto Regional Administrative Court in the aforementioned sentence n.128872010 cited above, for the application of the benefits as identified in a year of overvaluation for each "war campaign" and just as the provision of the single article of the LN1746 / 62 would like it to be applied to its simple reading but also in the face of an action of interpretation since the linearity and essentiality of the provision does not allow to reach contents different from those expressed. The ancients said "in claris non fit interpretatio ”.
In addition to the callbacks (but also to other reasons) of law, some observations were made on the evolution of the concept of "war" that had been detected since the Second World War onwards: from the first Gulf War to the recent cyber attacks reported by the outgoing President USA Obama, the concept of "war" has undergone a radical transformation that has led him not to identify himself (in the opinion of the writer but also of more authoritative authors) more with that conception in which armies were opposed in three-dimensional logic ( earth, sky and sea) following a formal declaration of war. Today, everyday life shows us that in fact the population is already living in a state of siege in which attempts are made to force its way of life towards a radical change and, at the same time, military personnel engaged in missions abroad can see themselves immersed in a low-medium-high intensity theaters, also depending on the type of operation in which you see employees (peacekeeping, peaceenforcing, peacebuilding), exposed to an "asymmetric" conflict not comparable to the traditional war in terms of conception but absolutely comparable in terms of effects.
These are the arguments of fact and law summarized in the appeals.
On the basis of a question of legitimacy relating to the unequal treatment of personnel employed in UN missions and the "combatants" pursuant to art. 3 Cost.it. we have arrived at the pronunciation of the Consulta which is thus represented in its essential lines.
In principle, the Court maintains that the evaluation of the provision in question cannot fail to take into consideration the historical moment in which it was issued and the reasons which determined its necessity (the aforementioned killing of Kindu), given the total absence of any forecast legislation governing the participation of military personnel in UN missions. For the same need of historical contextualization of the provisions, the Court states as from the 2000 onwards, the Italian participation in the missions abroad was to be regulated in whole by specific regulatory provisions which also included all the provisions relating to economic and social security treatment. The consequence of this is that the comparison of the Ln1746 / 62 between personnel engaged in UN missions and "combatants" cannot constitute the first of the specific rights provided that the legislation and following the best practices which accompanies every military intervention abroad, a structure frame normative in which everything comes to be foreseen. According to the Court, the omnipotence of the provisions is also sanctified, in the art. 1808 COM, the closing rule of the process of adaptation of the military order to the changed historical and juridical needs.
That the legislator then had in mind the distinction between war campaigns and UN missions is also demonstrated by the fact that the latter are applied to typical institutes of the former (eg, all of them, war pensions) precisely to mean that the two types each had its own star and fortune.
The Court continues the motivation of its provision by keeping in mind the meaning of the term "combatant": in this regard, it refers to what was already determined at the time with regard to the definition of participants in various capacities in the Second World War, identified in the military figures, militarized , prisoners and partisans and specifying as a source for the identification of the combatants, the requirements and causes of exclusion from this status, and the Legislative Decree n.137 of the 04.03.1948 as amended by the Ln93 / 52.
As for the equalization / assimilation of the UN mission to the war situation for an adaptation of the national order to the dictates of the international order, the Court observes that this does not constitute a pertinent complaint even if we consider how during the operation "Enduring Freedom" is the military penal code was applied to thesubjects employed (only) in some armed operations". Beyond that, the Court still maintains that the assimilation to the armed conflict of armed military operations carried out abroad took place partially and expressly only for certain purposes and with certain limits, through the addition of two paragraphs to art. 165 cpmg through the art. 2 of the Ln15 / 2002, meaning what beyond this precise circumstance, no other assimilation could have been possible between the two concepts.
Final distinctive criterion, for the purpose of determining the application benefits in the specific cases "beyond the presence of deadly risks"The" quantitative "dimension of the personnel employed in contexts of limited contingents in foreign operating theater compared to a situation in which, instead, the use of compulsory military service would be configured: from this, according to the Court, would be understood in a manner clear and clear "the choice of the legislator not to extend to the military all the soldiers engaged in UN missions all the combat benefits as they are".
The Court concludes its motivation by arguing as "there is no inequality between the position of the soldier who voluntarily decides to participate in international missions as part of a professionally performed service and who therefore receives a peculiar salary, in any case an improvement over that normally received in the course of the employment relationship and that of the 'enlisted following more or less general measures of reference to arms, which would be - in the state of the existing legislation - in addition to the only overestimation referred to in the art. 18 of the 1092 dPRn1973 a daily fee, the so-called pay, little more than symbolic".
THE PRESSURE
This is established by the Constitutional Court: it seems appropriate not to enter immediately into the merits of the reasons for their correctness or not, but rather to make an assessment on the conformity of what is represented in the Court's sentence with respect to the action taken by the Defense Administration. As shown in the introductory appeals, probably no doubt would have arisen and no claim would have been made if the Ln1746 / 62 from the 1987 had not been referred to by the SMD Directive which listed the missions according to the aforementioned legislation and for its effects , to be considered "intervention areas". What, in fact, leaves us perplexed is why we had to resort to a directive to indicate which missions are to be included in the application of the benefits referred to in the single article of Law n. 1746 / 62 (directive configurable at this point as violation of law) although the provisions were clearly to be understood as being of the opposite sign, as the State Council would seem to support in its jurisprudence on the subject.
Perplexity also arouses the fact that, if indeed the reading to be given to the aforementioned provision, had been that supported by the Council of State, then it is normal to ask why it has never occurred to modify a provision that created doubts of interpretation of not a little account, but a line has continued which not only did not resolve but even led to a considerable amount of disputes.
Perplexity still where the motivations that were put forward between the first and second degree by the Avvocatura dello Stato were among the most diverse: the observation that the state representative carries out in the Council of State where he claimed that the benefits were applicable only to the categories that could be progressed by classes and clicks (therefore only the managerial categories) creating in turn a further unequal treatment not only between the various categories of FA personnel but also within the same category Officers: the idea that this theory gives of itself is that of the classic climbing on mirrors.
In short, the final feeling is that the CEO has never succeeded in performing a convincing defense in law point since it is clear that the reading given to the LN1746 / 62 can only be univocal, the only example in the national panorama of law clear and immediate in its ratio and in its application: the only aspect that really played a fundamental role in the game in question is solely and exclusively the one linked, (in primis), to the economic disbursement that would have involved for the exchequer, the recognition and the application of the benefits and, secondly, the exodus of personnel in an uncontrollable measure with all the consequences of the case regarding the international obligations and the internal commitments hired by the FF.AA.
However, the Court's decision would seem to render, in the state of the acts and interpretations rendered, in vain any further appeal for obtaining the combative benefits referred to in the LN1746 / 62: beyond an involvement of the European Court of Human Rights Man (ECHR), it does not seem that there are other possibilities to continue the battle unless, on which substantial doubts are expressed, the interpretations of the Constitutional Court do not suffer distortions or other interpretative lines are identified on which to give a new reading and, also in this case, the doubts are very substantial.
THE CONCLUSIONS
There is no doubt that the "coup" has succeeded among the CEO: between the exegesis of the "Council of State" and the closure of the Constitutional Court, the worst was miraculously avoided: the flaw did not open, the CEO can sleep peacefully and the INPS "must not bring the books into court"; for many belonging to the FF.AA. it remains the bitterness to see many missions transcribed with reference to the effects of L.1746 / 62 in their state of service without knowing their usefulness and after that this remark was a legitimate hope, fueled by the conduct of the CEO who, if really (the writer strongly doubts this) the interpretation that had to be given to the rule had been that made by the Council of State and the Constitutional Court, then it would have done better to suppress it immediately and not to follow up the issuing of the SMD directive.
The sentences given appear to be “political” sentences because they are aimed more at correcting an error by the CEO than at protecting the legal positions represented in the appeals and, as has already been said, for this purpose there remains only the possibility of submitting the question to the European Court of Human Rights calling for an effective intervention by the latter to bring the dispute back to the right order.
(photo: US DoD / Web)
