The most recent events, linked to the media and political clamor following the publication of the book "The world upside down", of the gen. Roberto Vannacci, repropose to the collective attention, both of legal operators and of ordinary citizens who want to understand i real terms of the question, the ever-debated topic of freedom of expression of thought within the ambit of the military order, of his method of legitimate expression and inherent limits to the specialty of military and civil law status of military.
Here the topic will be dealt with in general terms, examining the normative references and the last stops of the administrative jurisprudence.
For the application of these coordinates to the specific case mentioned above, please refer to the contribution already published signed by the lawyer. Marco Valerio Verni (read article "The world upside down: beware of the general's counterattack")
So let's proceed in order.
1. The reference standards
First of all, as regards the regulatory framework of reference, it is essential to mention first of all the constitutional recognition of the freedom to express one's thoughts, contained in art. 21 of the Constitution, on the basis of which “Everyone has the right to freely express their thoughts in speech, writing and any other means of dissemination. The press cannot be subjected to authorization or censorship”.
At the supranational level, then, among other things, the following come into play:
– the art. 19, paragraph 1, of the Universal Declaration of Human Rights, according to which “Everyone has the right to freedom of opinion and expression including the right not to be harassed in holding his or her opinion and to seek, receive and disseminate information and ideas by any means and without regard to frontiers”;
– the art. 11, paragraph 1, of the Charter of Fundamental Rights of the EU, according to which “Everyone has the right to freedom of expression. This right includes the freedom of opinion and the freedom to receive or communicate information or ideas without interference from public authorities and without frontier limits.;
– the art. 10, paragraph 1, of the European Convention on Human Rights, which states that “Everyone has the right to freedom of expression. This right includes the freedom of opinion and the freedom to receive or communicate information or ideas without interference from public authorities and without frontier limits..
As regards specifically the military system, the art. 21 of the Constitution finds its punctual implementation in art. 1472 of the COM - Code of the Military Order, legislative decree n. 66/2010, which 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 the art. 722 of the Consolidated text of the regulatory provisions concerning the military system - Presidential Decree 90/2010, 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 the textual reading of the aforementioned regulatory provisions it is therefore clear that the military, as an Italian (and European) citizen, and even before that as a person considered in and for himself, has the full and sacred right to express his thoughts. The specificity of his nature as a subject inserted in a particular order, such as that of the Defense, does indeed impose some limitations on the exercise of the aforementioned freedom, but which must be rigorously justified, in compliance with the aforementioned regulatory provisions, by reason of 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 the latter profiles, on closer inspection, the possibility for the soldier to express his thoughts is not even completely excluded, but if anything, it is subordinated to a prior authorization.
2. The most recent jurisprudential guidelines on the matter
Having said that with regard to the relevant provisions on the subject, let us now see how the jurisprudence is actually applying them.
The absolutely prevailing orientation endorses the above-mentioned assumption, as it can only acknowledge the normative recognition of the freedom of expression of thought also in the hands of the military and allowing its limitations only in the cases strictly provided for by law.
With regard to the most recent rulings, for example the Piedmont TAR, Section I, 10 October 2022, n. 839, in which the question was raised of a media campaign conducted by an army marshal with the aim of denouncing the excessive number of suicides in the defense sector. It reads about it that “the statements of (…) the appellant are expressions of the right to express one's thoughts protected by art. 21 of the Constitution and by art. 1472 of the military order which constitutes its implementation; in the present case, in fact, we are not dealing with arguments of a military or service nature, nor with an expression of a question internal to the legal system that must find development in the hierarchical chain, but with a series of completely external observations to strictly service matters".
In Cons. State, Section II, 6 June 2023, no. 5566, which confirmed the aforementioned first instance sentence, which had annulled the contested disciplinary measure of loss of grade for removal, offers an even more extensive and articulated examination of the matter in question.
This pronouncement, however very recent and full of references to previous sentences, can therefore be taken as a reference for probing the state of the art of the praetorian application of the aforementioned provisions.
Among other things, it is stated that:
1) even the military, as a citizen, must be recognized the freedom of expression of thought: "in liberal legal systems - to which the Italian one should be included, at least due to its adherence to the aforementioned international organizations and conventions - in principle it is not forbidden for citizens to have personal opinions of any content, even dissonant with the founding constitutional principles , nor express them”;
2) this freedom is subject, in the case of the military, to specific limits: "nor is there any doubt, on the other hand, that more stringent limits, even in terms of expression of such opinions, can be imposed on military personnel in service and on some categories of public officials (arg. ex art. 98, third paragraph , Constitution); so that this objective and abstract traceability of the military's conduct to the aforementioned fundamental principle is not valid ex se to exclude the possible disciplinary relevance of the same, in consideration of the limits that its application perimeter bears.
In fact, the Constitutional Court has remarked, with numerous rulings, the boundaries, for the protection, for example, of the security of the State, "referring to the protection of the existence, integrity, unity, independence, peace and military defense and civil status of the State” (sentence n. 25 of 1965) or of the prestige of the Government, the judiciary and the armed forces (sentence n. 20 of 1974). The same Court of Cassation recognized that a right is being considered which "cannot be considered without limits" (Civil Cassation, section III, 5 November 2018, n. 28084)";
3) the assessment of compliance with the aforementioned limits is left to the Military Administration, which must adequately motivate on the point, as well as consequently with regard to the adoption of any disciplinary sanctions, with a discretion with respect to which the judge's union cannot go as far as point of superimposing and replacing the determination of the proceeding pa: "the assessment of the seriousness of the facts charged in relation to the application of a disciplinary sanction, constitutes an expression of administrative discretion, which cannot be challenged in a general way by the judge of legitimacy, except in the case of excess of power, in its various symptomatic forms , such as manifest illogicality, manifest unreasonableness, apparent disproportionality and misrepresentation. In particular, the rules relating to the disciplinary procedure are necessarily inclusive of various hypotheses and, therefore, it is up to the Administration, when drafting the sanctioning measure, to establish the relationship between the infringement and the fact, which assumes disciplinary relevance on the basis to an appreciation of wide discretion (cf. State Council, section IV, 29 March 2021, n. 2629)";
4) nevertheless, the judge can review, taking into account the specificity of the concrete case, the respect of the internal and external limits to the exercise of the discretionary administrative power and the motivational obligation of the sanction (and the correlated judicial examination) the more pregnant they are, the more the sanction, if applicable, is severe: “The fatal impact of the expulsive sanction imposed nevertheless implements the intensity of the review of this judge since it is possible to verify, albeit according to criteria of immediate evidence, the existence of facts endowed with absolute gravity as such capable of constituting a suitable justification. (…) It follows that the behavior of the -OMISSIS- although in theory attributable to the freedom of expression of thought of constitutional coinage, does not appear free from possible disciplinary effects, even if not serious enough to justify the sanction imposed, due to the expressions used as potentially capable of unduly undermining, in the absence of precise evidence, the climate of trust that must accompany the work of a military institution in its hierarchical articulations".
The Council of State, Section II, had reached similar conclusions in the previous sentence n. 1905 of 16 March 2022, with which the provision of loss of rank for removal inflicted on a police officer for statements deemed racist and fascist, issued to a journalist, was annulled.
Similar considerations were then reaffirmed most recently in the Sicily Regional Administrative Court - Palermo, Section I, 4 July 2023, n. 2233, in which a question was raised of comments that were considered inappropriate, published on his Facebook profile by a carabiniere, commander of the capital station, regarding political figures and magistrates.
With regard to a recent case in which the judge deemed prior hierarchical authorization necessary, specifically concerning the matter dealt with, military or service interests, see finally TAR Campania - Section Salerno detachment, 2 March 2023, n. 491.
Conclusions
The regulatory and jurisprudential framework outlined above allows the following conclusions to be highlighted:
- the same freedom of expression of thought that characterizes every citizen must be recognized in the military;
- this freedom encounters a single, specific limit (which can be overcome with prior authorisation) only in cases where issues to be considered confidential, as they are of military or service interest, are raised;
- any limitation on the exercise of the freedom in question by the soldier must be duly justified by the Administration, as well as any disciplinary sanction that is deemed to be applied to the same in the event that the aforementioned limits are to be considered exceeded, the judge being then able to review the exercise of the aforementioned discretion in the aforementioned terms.
Ultimately and in conclusion, it follows therefore that, without prejudice to the need for a case-by-case verification, which values the peculiarities of the single contingent situation, any hypothesis, comment or evaluation that one wishes to formulate in relation to the hypotheses in question, and therefore also lastly with regard to theAffair Vannacci cannot in any way disregard the aforementioned fundamental coordinates, on pain of fatally leaving the legal context of reference, as outlined at a supranational, constitutional, regulatory and jurisprudential level.
Photo: Ministry of Defense
