Almost daily, in the exercise of our professional activity, we find ourselves facing disciplinary measures imposed by the public administration against military personnel. But when can a disciplinary sanction really be successfully challenged? In what cases and with what limits can the administrative judge, once the hierarchical appeal has been unsuccessfully made, accept an appeal against such acts? Let us try to answer these questions.
The starting point: the discretion of the public administration
The starting point is substantiated in the observation of the fact that the public administration enjoys a wide discretion, also in the matter of disciplinary sanctions. In the very recent Cons. State, Section II, 21 March 2022, n. 2001, we read in this regard, confirming what is being said, that "It is common ground in jurisprudence that the assessments of the administrative bodies in the disciplinary proceedings are characterized by wide discretion, also with regard to the relevance of the behavior for the purpose of imposing a specific sanction, since the assessment in relation to the gravity of the facts charged in relation to the application of a disciplinary sanction constitutes an expression of administrative discretion ". In other words, it is up to the Administration to evaluate the facts to establish whether and to what extent the person concerned is liable to a penalty. And that the discretion enjoyed by the public administration in this matter is relevant is a fact that is now constantly enshrined in consolidated jurisprudence (see, among others, Cons. State, Section IV, 18 February 2016, no. 652; Cons. State, Section IV, March 15, 2012, no. 1452; State Council, Section IV, October 31, 2012, no. 5582). The same jurisprudence, moreover, has reiterated that "It is up to the administration when drawing up the sanctioning provision to establish the relationship between the infringement and the fact, which assumes disciplinary relevance on the basis of an appreciation of wide discretion, since it has a wide discretion in independently assessing the various disciplinary hypotheses " (State Council, Section II, 23 November 2020, no. 7336; State Council, Section II, 8 October 2020, no. 5969, State Council, Section II, 15 May 2020, no. 3112).
The limits of judicial review in terms of disciplinary sanctions
Considering both the extent and relevance of the discretion held by the public administration in terms of disciplinary sanctions, it clearly follows that the judicial review on the matter is very limited and circumscribed. It is obvious, first of all, that the disciplinary commission (or in any case any body that holds disciplinary power) "expresses a judgment that cannot be questioned on the merits": the administrative judge, in other words, it cannot pronounce on the appropriateness or convenience or otherwise of the provision, but only on its legitimacy (State Council, Section IV, October 4, 2018, n. 5700; State Council, Section II, May 15, 2020, no. 3112). The control carried out in the trial is therefore limited to verifying compliance by the proceeding Administration with the so-called external limits administrative discretion.
It follows that the exercise of disciplinary power can only be challenged in the trial "In the event of manifest illogicality and unreasonableness, evident disproportionality and misrepresentation of the facts" (State Council, Section IV, 28 October 2019, no. 7335; State Council, Section IV, section IV, 22 March 2017, no. 1302; State Council, Section III, 31 May 2019, no. . 3652). In addition to this, the power of the judge to verify compliance, by the body holding disciplinary power, with all the terms and requirements that mark the relative proceedings, obviously remains unaffected. Thus, by way of example only, "By constant jurisprudence, (...) against a military person every disciplinary sanction must be preceded by the contestation of the charges which must be precise and congruous with regard to the timing and methods of carrying out the disciplinary procedure, in the absence of which the disciplinary measure must be considered illegitimate " (ex multis, see TAR Lazio Rome, Section I, 5 October 2009, no. 9734). Furthermore, the term within which it is possible to initiate the sanctioning procedure, passing from the preliminary assessments to the notification of the objection of the charges to the accused, will also be examined, which sets the start of the procedure (TAR Friuli - Venezia Giulia, 26 May 2003, no. 188).
At the end of this brief examination of the matter of the limits imposed on the judge in the review of legitimacy on disciplinary measures, it seems necessary to highlight at least two data.
First and foremost, it is useful to reiterate (and the question will be the subject of a distinct, specific contribution) that the judge will be able to know the legitimacy of a disciplinary measure only at the outcome (evidently negative) the experiment of a hierarchical appeal. The profile is confirmed, among other things, with specific regard to body sanctions, by art. 1363, paragraph 2, of the Military Code, Legislative Decree n. 66/2010, in mind of which "Against the body disciplinary sanctions, no judicial appeal or extraordinary appeal to the President of the Republic is allowed if no hierarchical appeal has been made before or ninety days have passed from the date of presentation of the appeal". The jurisprudence, however, considers the principle applicable in general, and therefore also with reference to state sanctions.
Secondly and last but not least, without prejudice to the above, once the conditions for the valid and admissible establishment of an administrative judgment have been met - and it should be noted that the appellant will not be able to propose further and distinct reasons for grievance in court from those already formulated in an administrative way, with the consequent evident need to be assisted, if necessary, already in the hierarchical appeal -, the review of the judge, evidently limited to the vices of legitimacy only, will be further limited to the examination of abnormal violations, essentially referring, in addition to the non-observance of procedural terms and profiles, to hypotheses of manifest unreasonableness and illogicality of the act, as well as to the verification compliance with the principle of necessary proportionality between the violation allegedly committed and the sanction actually imposed.
Photo: US DoD