In recent days, news has been circulating of an alleged new disciplinary charge against General Vannacci, recently elected member of the European Parliament, which is said to even lead to his loss of rank through removal.
As you may remember, we have already examined the story of the high official who became famous for the publication of the book “The World Upside Down”, now more than a real best sellers, to examine the legal system that governs freedom of expression within the military system (read article).
Today, according to many press sources, including specialist ones, the topic is back in the news. Let's try to clarify, especially from our point of view, the strictly technical-legal one. With a necessary premise: General Vannacci, although now a public figure, has full right to the confidentiality of the disciplinary and judicial proceedings that concern him, and this article does not at all aim to offer certain answers on rumors unconfirmed, but rather to examine the legal institutions in relevant theses and to help the reader understand what could be, if any, the developments of the story, in the event that it actually had assumed the contours that certain media outlets report. That said, let's examine the legally relevant profiles.
1) The terms of the (new) disciplinary issue: the facts and the applicable rules
Already in an article published by La Repubblica last September 2nd we read that “Vannacci risks losing his rank” and it is argued in this regard that the general reported in his second book, “Il coraggio vince”, of an autobiographical nature, episodes regarding missions, relationships with other contingents and relations with diplomats, without – it is said – ever having asked for the necessary authorization, an essential condition for being able to disseminate this type of information. A new disciplinary proceeding has therefore ensued – after the one that led to the suspension for 11 months from service –, at the end of which the soldier could suffer the aforementioned expulsion sanction. The news of the opening of the aforementioned proceeding has been confirmed by the interested party himself and his lawyer.
That said, as for the facts, the rules and legal institutions that are relevant (to limit ourselves to the essential data) are the following: – articles 1472 of Legislative Decree no. 66/2010 and 722 of Presidential Decree 90/2010, on the subject of freedom of expression in the military system; – article 865 of Legislative Decree, which provides for the sanction of loss of rank due to removal; – the principle of proportionality and reasonableness in matters of sanctions, pursuant to article 1355 of Legislative Decree; – in particular, recidivism. Let us examine them in order.
2) The rules regulating freedom of expression in the military (reference)
With reference to the rules governing freedom of expression in the military system, as well as to the jurisprudence matured on the matter, we refer to our already cited article, published in this Journal.
If anything, it is worth remembering in summary that art. 1472 clearly establishes that "The military can freely publish their writings, hold public conferences and in any case publicly express their thoughts, except in the case of confidential topics of military or service interest for which authorization must be obtained". This provision is then specified in art. 722 TUOM, which specifies that "The soldier, in addition to scrupulously observing the rules on the protection of secrecy, must: a) acquire and maintain the habit of secrecy on topics or news whose disclosure may be prejudicial to state security, excluding from private conversations, even if they take place with family members, any reference to the aforementioned topics or news; b) avoid the disclosure of information relating to the service which, even if insignificant, may constitute informative material".
From a textual reading of the above-mentioned legal provisions, it is therefore clear that the soldier, as an Italian (and European) citizen, and even before that as a person considered in and of himself, has the full and sacrosanct right to express his own thoughts.
The specificity of his status as a subject inserted in a peculiar system, such as that of the Defense, also imposes some limitations on the exercise of the aforementioned freedom, essentially linked to the relevance to topics to be considered of a confidential nature, as they are of military or service interest. And moreover, even with regard to these latter profiles, if we look closely, the possibility for the soldier to express his thoughts is not completely excluded, but rather it is subordinated to prior authorization.
3) The sanction of loss of rank through removal
The loss of rank due to removal, recalled by certain press organs with reference to the case in question, is the maximum disciplinary sanction provided for in our military system, in art. 865 com
This is one of the hypotheses of loss of rank provided for by art. 861, paragraph 1, com, and must be kept distinct from the loss of rank resulting from a criminal conviction, governed by art. 866 com and not relevant in this case.
Adopted by ministerial decree following a formal investigation and referral to the Disciplinary Commission, this measure takes effect from the date of adoption of the determination of termination of service (see below), or, for legal purposes only, from the date of application of the precautionary suspension, if on that date there is pending criminal or disciplinary proceedings that subsequently end with the loss of rank, except in the cases of readmission to service referred to in Articles 918, paragraph 2, and 919, paragraph 1, com (see the Technical Guide “Disciplinary Procedures”, eighth edition, year 2023, of the Ministry of Defense – General Directorate for Military Personnel).
As for the conditions for its adoption, the current regulations do not identify an exhaustive list of the cases in which the sanction can or must be adopted. Moreover, the disciplinary matter is characterized by a broad discretion of the proceeding bodies, except for the limits (internal and external) dictated, in addition to the delimitation a contrario of the operational field of the measure, by reason of the (greater) definition of the scope of application of the sanctions (of body and state) of lesser severity, by the necessary observance of the principle of proportionality between the contested infringement and the sanction, which will be discussed below.
Administrative jurisprudence on this point has long clarified that the seriousness of the failure (...) should rather be deduced from the meaning that the related actions assume in the "administrative" context of the matter, or in function of the Administration's need to be able to have personnel who do not endanger the pursuit of its institutional purposes, (...) objectively put at risk by those who show that they are no longer able to guarantee the correctness and loyalty of their actions, also for having been responsible for an evident damage to the image and decorum of the organization to which they belong (TAR Emilia-Romagna, Section I, n. 1025/2015).
The main effect of the loss of rank through removal is to reduce the punished soldier, regardless of his rank, to the position of a soldier without any rank (see art. 861, paragraph 3, com), while retaining the status of soldier.
For military personnel in permanent service, the sanction entails the termination of the employment relationship (art. 923, letter i, com) and the consequent placement on leave. The military personnel is entitled to retirement benefits only if he has accrued the requirements (and periods of service) provided for by social security legislation.
4) The principle of proportionality and recidivism
As mentioned, the principle of proportionality cannot fail to be relevant in the case in question, and more generally in disciplinary matters. This is established by art. 1355 com, according to which, in paragraph 1, “Disciplinary sanctions are commensurate with the type of offence committed and its seriousness” (for a jurisprudential reference, see, among many, Council of State, Section IV, no. 1086 of 2017).
The same provision, although hypothetically of interest for the case under consideration, specifies:
– in paragraph 2, which “In determining the type and, if applicable, the duration of the sanction, previous disciplinary records are also taken into consideration”;
– in paragraph 3, which “The following infringements must be punished more severely: (…) d) recurring with a recidivist nature”.
Conclusions
Having stated this, and necessarily in extreme synthesis, it seems possible to draw the following conclusive considerations with reference to the case under examination.
While we cannot – and do not want to – in any way, as stated, allow ourselves any judgement on the Vannacci case, out of respect for the official (and MEP) and those who represent him, as well as for the obvious limited information at our disposal, it is possible to isolate some data that appear certain:
– the soldier has already undergone disciplinary proceedings and is currently under precautionary suspension due to the measure already imposed on him, the precautionary suspension for 11 months;
– further disciplinary proceedings are underway for facts allegedly different and additional to those already contested;
– the suspension already imposed has been contested and could therefore be annulled by the competent administrative judge;
– the Military Administration, at the end of the new disciplinary procedure, could, among the hypotheses that can be abstractly imagined, order the maximum sanction of loss of rank through removal, contesting among other things, in addition to the alleged seriousness of the reported facts, also the recidivism, for the reasons set out above;
– certainly, the aforementioned expulsion measure should be supported by an exhaustive motivation adequate to the gravity of the sanction itself, such as to justify why the interested party should have requested, among other things, authorisations to disclose facts and information, not only dating back in time, but also in theory devoid of military relevance, nor even less subject to any secrecy, and such a further sanction could in turn be challenged by the general before the TAR;
– if the disciplinary proceedings in progress were to conclude with the adoption of the loss of rank by removal before the conclusion of the administrative proceedings currently pending for the other and previous sanction, it is clear that, if the aforementioned judgment already initiated were to result in the acceptance of the appeal and the annulment of the previous sanction, this could not fail to have repercussions on the expulsion measure imposed in the meantime, also on the basis – as mentioned – of a hypothetical recidivism.
As can be seen, therefore, the scenario - although unpredictable - is certainly more complex and varied than some of the press has led us to believe, exploiting the popularity of the officer and resorting to definitive and high-sounding titles.
The Military Administration itself, in fact, will have to take into account all the implications, first of all procedural, of the affair, otherwise it risks adopting decisions that are only provisionally decisive and, on the contrary, whose effectiveness is inevitably more than precarious.
We will respectfully wait and see.
Photo: European Union
