Military and drug use: what consequences?

(To Avv. Francesco Fameli)
21/12/21

Unfortunately, the cases of soldiers and members of the Police Forces whose positivity to the use of narcotic substances is ascertained are not uncommon. Moreover, the competent authorities appropriately periodically submit the personnel belonging to the so-called "Drug-test" randomly.

Deplorable in any case the use of drugs, it is a question here of examining the sanctions that can actually be applied, and then groped to define the essential lines of a possible defensive strategy, to be specified with reference to the single relevant case.

Let's proceed with order.

The concretely applicable sanctions

For military personnel, the ascertainment of positivity to the use of narcotic substances usually entails the immediate precautionary suspension of the interested party, who must be subjected to counter-analysis, and certainly, upon the positive outcome of the aforementioned, the submission of the same to state disciplinary proceedings for violation of articles 713, paragraph 2, and 732, paragraphs 1 and 3, lett. d), of the regulation approved with Presidential Decree no. 15. In detail, as is known, art. 2010, paragraph 90, provides that the military "Must refrain, even when out of service, from behaviors that may in any case affect the exercise of his functions, damage the prestige of the institution to which he belongs and jeopardize the extraneousness of the Armed Forces as such to political competitions, without prejudice to the provisions of article 1483 of the code ". Pursuant to art. 732, paragraph 1, "The military must in all circumstances keep exemplary conduct to safeguard the prestige of the Armed Forces", and again, based on the third paragraph, lett. d), of the same provision the same must "Abstain from excesses in the use of alcoholic beverages and avoid the use of substances that can alter the psychic balance". These provisions must then coordinate with art. 957 com, which in the first paragraph establishes that "The acquittal from the firm is ordered (...) [even in the case of] a positive outcome of the diagnostic tests for alcohol abuse, for the use, even occasional or occasional, of drugs".

The sanctions actually applicable, therefore, as per art. 1357 commences from the suspension from the employment from one to twelve months up to the cessation of the firm or the reaffirmation, or to the loss of the rank due to removal.

A possible defensive strategy: the necessary application of the principle of proportionality in the imposition of the sanction

Without prejudice to the foregoing, in the event of absolute occasionality of proven drug use, or in the event that this occurrence has occurred once and only once, perhaps and moreover in the presence of an absolutely positive picture with regard to the known characteristics and in the absence of disciplinary recidivism, there remains the possibility of opting for a defensive strategy which, leveraging on the aforementioned assumptions, requires the application of the minimum legal sanction. This is in accordance with the necessary compliance with the principle of proportionality, to which the administrative action must always comply.

In this regard, it should be noted, among other things, that the Lazio TAR has stated on the matter (see TAR Lazio - Rome, section II, 26 April 2011, no. 3560, but also see TAR Lazio - Rome, section II , 21 December 2010, n. 37899), which "The consumption of narcotic substances constitutes for the military (...) violation of the obligations assumed with the oath and can even justify the imposition of the expulsive sanction, because it indicates a lack of moral and character qualities and in any case detrimental to the prestige of the Body". However, this must happen "always respecting the proportion between charge and sanction, which is expressive of legal civilization" (see Council of State, Section IV, 10 May 2007, no. 2189).

Therefore, the charge, albeit reprehensible, of an occasional consumption or a single episode of drug use cannot reasonably be placed on the same level as the charge, for example, of dealing and consumption, perhaps in an organized and systematic form. . Indeed, that such violations all constitute a weak point the oath taken is incontrovertible, but that they must all be punished with the maximum sanction, as if the weak point were of the same level in any case, it is assumed ontologically different, in the various hypotheses, of the incidence of the violation on the duties of loyalty and loyalty assumed by the military, precisely, with the taking of the oath and also resulting in a different level of lack of moral qualities and of attitude. It is concluded that "The ascertained occasional use of [drugs] by military personnel (...) is not a sufficient prerequisite for the adoption of the sanctioning measure of the loss of rank due to removal (…). The loss of the grade would, in fact, be a single and indivisible sanction, not having been established with the provision of a minimum and a maximum, within which the Administration must exercise the sanctioning power ". In the same sense, see also TAR Puglia - Lecce, sect. III, 8 March 2012, n. 469, according to which "The occasional nature of the taking of the narcotic substance by the appellant (...) combined with the appreciable professional curriculum of the same, therefore constitute, in application of the principles set out and recalled up to now, elements in relation to which the [expulsive] sanction applied , in the opinion of the Board, due to its dramatic effects on the life of the recipient and his or her family, it goes beyond the aforementioned limits of reasonableness and, above all, graduality ".

The existence of the opposite jurisprudential orientation

If what has just been said is true, it is also true that the existence of the jurisprudential orientation opposite to that mentioned so far must be acknowledged, which tends to reaffirm the legitimacy of the expulsive measure even in the presence of even a merely occasional use of drugs. We read in this sense for example in Cons. State, Section VI, n. 1329/2017, which, in accordance with the textual diction of art. 957 com, reported above, "The ascertainment of even a single episode of drug use does not make it illegitimate to acquit the military after having tested positive for the diagnostic test".

Conclusions

At the end of this brief examination, reaffirmed the strongest disapproval for the use of any narcotic substance, the absolute gravity of the conduct in which the military may have committed in this case is confirmed. Considering this, in the face of the specter of the expulsive sanction of the loss of rank by removal, it is possible to invoke the application of the principle of proportionality and reasonableness, but only and exclusively in the hypothesis in which the fact is isolated and absolutely not repeated, and perhaps it is insert in a context of well-known positive characteristics.

As is obvious, this contribution cannot and does not want to constitute the definition of a defensive strategy, much less a defensive strategy valid a priori and for all cases that may arise in the matter under consideration. In fact, we wanted to give only general indications, which must then necessarily be clarified and calibrated in examining the single specific case, taking into account, as mentioned, also the existence of unfavorable jurisprudential orientations.

Photo: US Air Force

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