Sentenza n. 190 del 2024

Judgment No. 190 of 2024

JUDGMENT NO. 190

YEAR 2024

ITALIAN REPUBLIC

IN THE NAME OF THE ITALIAN PEOPLE

THE CONSTITUTIONAL COURT

composed of:

President: Augusto Antonio BARBERA

Justices: Giulio PROSPERETTI, Giovanni AMOROSO, Francesco VIGANÒ, Luca ANTONINI, Stefano PETITTI, Angelo BUSCEMA, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco D’ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI,

has issued the following

JUDGMENT

in the proceedings concerning the constitutional legitimacy of Article 1 of the Decree of the President of the Republic of 24 April 1982, no. 339 (Transfer of personnel unfit to perform police services to other roles within the Public Security Administration or other State administrations), initiated by the Council of State, Second Section, in the proceedings between M. S. and the Ministry of the Interior, by order of 10 May 2024, registered under no. 103 of the register of orders for 2024 and published in the Official Gazette of the Republic no. 24, first special series, of the year 2024, the hearing of which was set for the meeting in the Council Chamber of 29 October 2024.

Heard in the Council Chamber of 30 October 2024, the Reporting Judge, Marco D’Alberti;

Deliberated in the Council Chamber of 30 October 2024.

Facts of the Case

1.‒ By order of 10 May 2024, registered under no. 103 of the register of orders for 2024, the Council of State, Second Section, raised, with reference to Articles 1, 3, 4, 27, 35, 36, 51, 76, and 97 of the Constitution, questions of constitutional legitimacy of Article 1 of the Decree of the President of the Republic of 24 April 1982, no. 339 (Transfer of personnel unfit to perform police services to other roles within the Public Security Administration or other State administrations), insofar as it provides that «[t]he personnel of the State Police roles, who perform police duties, deemed absolutely unfit for health reasons, including those dependent on service causes, to perform the institutional tasks may, upon request, be transferred to the corresponding qualifications of other roles of the State Police or other State administrations, provided that the ascertained infirmity allows their further employment».

The provision is challenged «in that it excludes or, in any case, does not provide for the possibility of arranging the transfer to the civil roles of the Public Security Administration or another public administration for those belonging to the State Police roles who perform police duties, in the event of a verified lack of aptitude requirements».

2.‒ The referring body explains that there is pending before it the appeal against the judgment with which the Regional Administrative Court for Puglia rejected the appeal brought by a chosen agent of the State Police against the acts with which the Ministry of the Interior, in 2013, after having ordered the revocation of the precautionary suspension of the appellant from service and the verification of the permanence of the psychophysical and aptitude requirements, ordered his termination from service in the public security administration, as he was unfit for police service.

The Council of State reports that, in support of the appeal, the appellant argues, inter alia, that Article 1 of Presidential Decree no. 339 of 1982 ‒ if interpreted as meaning to allow the transfer to other roles of the same or another administration only in favor of the employee declared unfit for service for health reasons ‒ would lead to an unjustified disparity in treatment, in violation of the constitutional principles that safeguard employment (Articles 1, paragraph 1, 3, 4, 38, and 97 of the Constitution), compared to the situation of the employee who is unfit for health reasons, who could instead benefit from the transfer to other roles.

3.‒ With reference to the requirement of relevance, the referring body highlights that the issue of the appeal concerns the faculty of the State Police administration to verify the permanence of the aptitude requirements of its employees even after taking up service, as well as the possibility ‒ in the event of a negative outcome of such verification ‒ of assigning such employees to other roles of the public security administration or other public administrations.

In this regard, the referring court believes it should adhere to the judgment of the Plenary Assembly of 29 March 2023, no. 12, which states that the loss of the aptitude requirement does not fall within the provisions of Article 1 of Presidential Decree no. 339 of 1982 and, consequently, does not give rise to the transfer of the State Police employee to other roles in the public security administration or other State administrations, but is a cause of termination of employment in accordance with Article 129 of Presidential Decree 10 January 1957, no. 3 (Consolidated Text of the provisions concerning the statute of civil servants of the State). With the same decision, the Plenary Assembly also considered manifestly unfounded the doubt about the constitutional legitimacy of such discipline, as well as about any conflict with EU law.

That being stated, the referring court considers that the ground of appeal by which it is assumed that no verification would be provided for regarding the permanence of the psycho-aptitude requirements for those belonging to the State Police roles who already perform police duties is unfounded. The referring body believes, in fact, that the assessment of the possession of the aptitude requirements of the State Police member can also be carried out during the course of the employment relationship, with possible fatal consequences on its persistence.

Furthermore, the possibility of transfer to civil roles for personnel belonging to the State Police should be excluded. In fact, precisely in light of what was stated by the Plenary Assembly in the aforementioned ruling, the loss of aptitude requirements entails not only the cessation of membership of the Police Forces, but, in a drastic and definitive sense, the termination of the employment relationship.

The question of the constitutional legitimacy of Article 1 of Presidential Decree no. 339 of 1982 would therefore be relevant for the purposes of defining the ongoing proceedings. In the opinion of the Council of State, the interpretation of this provision made by the Plenary Assembly constitutes "living law", understood as the interpretation of the rule in cases of its concrete application. In consideration of the nomophilactic function of the Plenary Assembly, there would be no room for a different interpretation of the provision in question, such as to allow the transfer to civil roles of a member of the State Police with police duties.

4.‒ The challenged provision would conflict, first of all, with Articles 1, 3, 4, and 35 of the Constitution.

Article 1 of Presidential Decree no. 339 of 1982, in precluding any use of those belonging to the State Police roles who have been found to be without the aptitudes for employment in the State Police, entails the definitive termination of the public employment relationship, thus being in stark contrast with the principle of reasonableness under Article 3 of the Constitution, with Article 4 of the Constitution, which recognizes the right to work for all citizens, as well as with the "protection of work", under Article 35 of the Constitution.

Indeed, in the opinion of the referring body, deriving from the loss of the aptitude requirement for the performance of a specific public employment, the radical unusability of the worker in any employment in the public administration would constitute a clear violation of the aforementioned constitutional principles. The consequence of the termination of the public employment relationship (pursuant to Article 58 of Presidential Decree 24 April 1982, no. 335, containing "Regulations for the personnel of the State Police who perform police duties”, and Article 129 of Presidential Decree no. 3 of 1957) would not be consistent with the principle of reasonableness, pursuant to Article 3 of the Constitution, as outlined by the jurisprudence of this Court.

In order to make the constitutional principles effective, it should be considered, on the contrary, that the public administration can proceed with the termination of the employment relationship only when the worker's unusability is ascertained, due to his own subjective conditions or other reasons, with any public employment. However, the referring body observes, this would not be the case contemplated by the challenged provision.

5.‒ From a different perspective, the challenged provision would conflict with Articles 3, 4, 35, and 51 of the Constitution.

In this regard, the referring court emphasizes that the discipline in question would diverge from that provided for by Article 930 of Legislative Decree 15 March 2010, no. 66 (Code of the military system) for military personnel belonging to the Carabinieri Corps, as well as by Article 14 of Law 28 July 1999, no. 266 (Delegation to the Government for the reorganization of the diplomatic and prefectural careers, as well as provisions for the remaining personnel of the Ministry of Foreign Affairs, for the military personnel of the Ministry of Defense, for the personnel of the Penitentiary Administration and for the personnel of the Superior Council of the Magistracy), for those belonging to the Finance Guard. For both these categories of public employees, the possibility of being used differently by the public administration would be recognized.

Such differences in discipline would entail an unjustifiably detrimental treatment of the employees of the State Police who have been found to be lacking the aptitude requirements, compared to those belonging to the Carabinieri Corps and the Finance Guard, to whom the possibility of being used differently by the public administration is recognized. This would constitute an objective impediment to the exercise of the right to work, recognized by Articles 4 and 35 of the Constitution, as well as a violation of the principle of equality under Article 3 of the Constitution, also understood as equality in access to and maintenance of the employment relationship with the public administration (Article 51 of the Constitution).

6.‒ The principles of impartiality and good performance enunciated by Article 97 of the Constitution would also be violated, since the administration would deprive itself of the work activity of an already trained employee, in the absence of any plausible reason.

In the case submitted to the examination of the Council of State, the conflict with the aforementioned principles under Articles 3, 4, 51, 76, and 97 of the Constitution would be even more evident in light of the factual circumstances that characterize the situation of the appellant, who ‒ after having been placed under house arrest for complicity in the crime of aiding and abetting prostitution ‒ was subsequently acquitted of the charges ascribed to him because the fact does not exist.

The assessment of the continued possession of the physical and psycho-aptitude requirements was therefore determined by the lapse of time (during which the employee was suspended from service) that elapsed in the meantime of the definition of the judgment which ended with the full acquittal of the accused.

Therefore, in the case under examination, the exclusion of the possibility of transfer to civil roles would not respond to criteria of logic and reasonableness, since the absence from service for a considerable period of time, due to the dynamics of the criminal trial to which he was subjected, cannot be attributed to the employee, given the acquitting outcome of the criminal trial.

On the other hand, the referring body observes, the supervening lack of aptitude requirements would lead to the termination of the employment relationship, although this is not expressly contemplated either by Article 58 of Presidential Decree no. 335 of 1982, nor by Article 129 of Presidential Decree no. 3 of 1957, nor by any other provision of the system.

7.‒ Finally, the referring court mentions the violation of Article 76 of the Constitution, for the conflict of the challenged provision with the provisions of Article 36, point XX, of the delegation Law 1 April 1981, no. 121 (New organization of the Public Security Administration), which ‒ among the principles and guidelines imparted to the Government ‒ provides for the «determination of the procedures, in relation to particular infirmities or the degree of fitness to perform police services, for the transfer of personnel, for service needs or upon request, to equivalent qualifications of other roles of the public security administration or of other State administrations, safeguarding the rights and positions of personnel belonging to these latter roles».

This provision of the delegation law would not exclude the transfer to other roles of the public security administration or other State administrations for personnel who ‒ after being hired ‒ have been found unfit to perform police services.

8.‒ Finally, the referring body sees the conflict of the challenged provision with the need, underlying the constitutional principles of Articles 27, 35, and 36 of the Constitution, to ensure the continuity of the employment relationship in the presence of an event, such as the loss of aptitude requirements, not dependent on the will of the worker, especially where, as in the case under examination, «the lack of continuity of service is due to involvement in a criminal trial that ended with an acquittal judgment».

The challenged provision would therefore result in the application of detrimental and discriminatory treatment for a public employee subjected to criminal proceedings and acquitted with a full acquittal formula. In the opinion of the referring body, this would translate de facto into a "punishment", inflicted in the absence of any violation of the law.

Reasoning in Law

1.‒ With the order indicated in the heading, the Council of State, Second Section, raised, with reference to Articles 1, 3, 4, 27, 35, 36, 51, 76, and 97 of the Constitution, questions of constitutional legitimacy of Article 1 of Presidential Decree no. 339 of 1982, where it provides that «[t]he personnel of the State Police roles, who perform police duties, deemed absolutely unfit for health reasons, including those dependent on service causes, to perform the institutional tasks may, upon request, be transferred to the corresponding qualifications of other roles of the State Police or other State administrations, provided that the ascertained infirmity allows their further employment».

With reference to the requirement of relevance, the referring body highlights that the issue of the appeal concerns the faculty of the State Police administration to verify the permanence of the aptitude requirements of its employees even after taking up service, as well as the possibility ‒ in the event of a negative outcome of such verification ‒ of assigning such employees to other roles of the public security administration or other public administrations.

In this regard, the referring court believes it should adhere, as an expression of "living law", to the judgment of the Plenary Assembly no. 12 of 2023, which states that the loss of the aptitude requirement does not fall within the provisions of Article 1 of Presidential Decree no. 339 of 1982 and, consequently, does not give rise to the transfer of the State Police employee to other roles in the public security administration or other State administrations, but is a cause of termination of employment in accordance with Article 129 of Presidential Decree no. 3 of 1957.

The challenged provision, thus interpreted, would conflict, first of all, with Articles 1, 3, 4, and 35 of the Constitution, with regard to the principles of reasonableness, of the recognition to all citizens of the right to work, as well as of the "protection of work", under Article 35 of the Constitution.

From a different perspective, the referring court emphasizes the disparity in treatment between the personnel of the State Police and the military personnel belonging to the Carabinieri Corps and those belonging to the Finance Guard, to whom the possibility of being used differently by the public administration would be recognized. There would also be an objective impediment to the exercise of the right to work, recognized by Articles 4 and 35 of the Constitution, as well as a violation of the principle of equality under Article 3 of the Constitution, also understood as equality in access to and maintenance of the employment relationship with the public administration (Article 51 of the Constitution).

The principles of impartiality and good performance enunciated by Article 97 of the Constitution would also be violated, since the administration would deprive itself of the work activity of an already trained employee, in the absence of any plausible reason.

The referring body also mentions the violation of Article 76 of the Constitution, due to the conflict of the challenged provision with the provisions of the delegation law.

Finally, the referring court sees the conflict of the aforementioned provision with the need, underlying the constitutional principles of Articles 27, 35, and 36 of the Constitution, to ensure the continuity of the employment relationship in the presence of an event, such as the loss of aptitude requirements, not dependent on the will of the worker, especially where, as in the case under examination, «the lack of continuity of service is due to involvement in a criminal trial that ended with an acquittal judgment». In the opinion of the referring body, this would translate de facto into a "punishment", inflicted in the absence of any violation of the law.

2.‒ In preliminary terms, the inadmissibility of the questions raised with reference to Articles 1 and 36 of the Constitution must be noted, as they are not provided with any motivation in terms of not being manifestly unfounded. The question relating to Article 76 of the Constitution is also inadmissible, since the referring body limits itself to arguing, in general terms, that the possible conflict of the challenged provision «with a principle and with a rule of the delegation law» should not be excluded, without further clarifying the reasons for the alleged conflict with the evoked parameter (in terms, among others, judgments no. 118 of 2022 and no. 213 of 2021). The question submitted with reference to Article 27 of the Constitution is also inadmissible. The referring body points out that the police officer did not pass the aptitude test after being subjected to a long period of suspension from service, due to the continuation of criminal proceedings that ended with full acquittal. In this regard, it argues that the challenged provision would resolve «in practice, […] into a "punishment" in the absence of any violation of the law». The discipline in question, however, concerning the matter of termination from service of public employees, is totally unrelated to the scope of application of the principle of personality of criminal responsibility (judgment no. 363 of 1996).

3.‒ Before examining the merits of the other questions raised, a brief reconstruction of the reference regulatory framework is useful.

Pursuant to Article 58 of Presidential Decree no. 335 of 1982, the causes for termination from service of State Police personnel who perform police duties are those provided for by Presidential Decree no. 3 of 1957. According to Article 129 of the latter Presidential Decree, the employee who has become disabled for health reasons is discharged from service, unless he is used differently in other tasks, as well as the employee who has demonstrated incapacity or persistent insufficient performance.

Thus, Article 129 of Presidential Decree no. 3 of 1957 imposes termination from service in three distinct cases: disability for health reasons, incapacity, and insufficient performance. This provision, however, allows only the employee who has become disabled for health reasons to avoid discharge through assignment to other tasks. Such assignment is governed, for the Police Forces, by the challenged Article 1 of Presidential Decree no. 339 of 1982, which provides for the transfer ‒ upon request ‒ of personnel unfit for health reasons to perform police services to other roles within the Public Security Administration or other State administrations.

4.‒ That being stated, passing to the examination of the questions raised with reference to the violation of Article 3 of the Constitution, the referring body believes that Article 1 of Presidential Decree no. 339 of 1982, interpreted as meaning that the State Police officer lacking aptitude requirements is subject to termination of the public employment relationship, would not be consistent with the principle of reasonableness.

In this regard, it must be noted that there is no ‒ either for employers in the public sector or for those in the private sector ‒ a generalized obligation to assign a worker who proves incapable of performing the required work to another area of responsibility, except in the case of partial unsuitability for employment caused by a supervening health deficit.

Only in the case of a physical or mental impairment do the constitutional principles of social solidarity and the EU principles of non-discrimination under Directive 2000/78/EC of the Council of 27 November 2000, which establishes a general framework for equal treatment in employment and working conditions, impose such an obligation. In this case, a particular point of equilibrium has been identified between the needs of the employer for optimal use of its resources and those of the worker, which takes into account the objective difficulty that a person who suffers an infirmity may encounter in finding a new placement in the world of work. The same Directive 2000/78/EC, furthermore, in its consideration 17, «does not require [...] the maintenance of employment [...] of an individual who is not competent, capable or available to perform the essential functions of the job in question, without prejudice to the obligation to provide an appropriate solution for disabled people».

Therefore, it is not unreasonable, and constitutes a choice left to the discretion of the legislator, not to allow the transfer to other roles in the administration of the State Police officer who, being found to be lacking the aptitude requirements, is no longer in possession of the specific working capacity required for the performance of the functions for which he was hired.

The challenged provision, furthermore, insofar as it does not provide for the transfer to other roles in the event of loss of the aptitude requirement, is consistent with what is provided for other categories of workers in the public sector for which the possession of specific aptitudes is required, such as teachers, who are subject to discharge from service for "teaching incapacity" (see Article 512 of Legislative Decree 16 April 1994, no. 297, containing «Approval of the consolidated text of the legislative provisions in force on education, relating to schools of all levels and grades»).

5.‒ The choice of the legislator does not even lead, as hypothesized in the order for reference, to a violation of Article 3 of the Constitution due to disparity in treatment compared to the personnel of the Carabinieri Corps and the Finance Guard.

In fact, the provisions cited by the referring court, which allow the transfer to other roles of such personnel (for the Carabinieri Corps, Article 930, paragraph 1, of Legislative Decree no. 66 of 2010 and for the Finance Guard, Article 14, paragraph 5, of Law no. 266 of 1999), refer to the case of unsuitability for service «due to injuries dependent or not on service causes» and, therefore, do not apply in the case of loss of the aptitude requirements.

6.‒ The questions raised with reference to Articles 4 and 35 of the Constitution and concerning the right to work and its protection are also unfounded. The recognition of this right does not entail a generalized obligation to guarantee the preservation of the job to the worker who does not possess the necessary requirements to adequately fulfill the required services. As repeatedly stated by the jurisprudence of this Court, «the guarantee of the right to work does not entail a general and indistinct freedom to carry out any professional activity, it being up to the legislator to fix conditions and limits in view of the protection of other interests equally worthy of consideration and, more particularly, to assess, in the interest of the community and clients […] the requirements of adequate preparation necessary for the exercise of the professional activity itself» (judgment no. 441 of 2000).

7.‒ For the same reasons, there is not even a violation of Article 51 of the Constitution, regarding access to public offices under equal conditions, since it is not possible to identify, in the case of loss of aptitudes, a right to the maintenance of the employment relationship with the public administration.

8.‒ As for the conflict with Article 97 of the Constitution, according to the referring body, the administration, by ordering the termination from service, would deprive itself «of the work activity of an already trained employee, without any plausible reason or a psycho-physical impediment to using it in different tasks». However, access to employment for police personnel takes place through a public competition in which the possession of particular aptitude requirements is specifically required, which must remain throughout the employment relationship. The question, therefore, is unfounded, as compliance with the principle of good performance does not entail an obligation for the administration to verify whether a State Police officer, who has proven no longer capable of providing the service for which he was hired, can still be used to perform functions other than those of the police.

for these reasons

THE CONSTITUTIONAL COURT

1) declares inadmissible the questions of constitutional legitimacy of Article 1 of the Decree of the President of the Republic of 24 April 1982, no. 339 (Transfer of personnel unfit to perform police services to other roles within the Public Security Administration or other State administrations), raised, with reference to Articles 1, 27, 36, and 76 of the Constitution, by the Council of State, Second Section, with the order indicated in the heading;

2) declares unfounded the questions of constitutional legitimacy of Article 1 of Presidential Decree no. 339 of 1982 raised, with reference to Articles 3, 4, 35, 51, and 97 of the Constitution, by the Council of State, Second Section, with the order indicated in the heading.

Thus decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on 30 October 2024.

Signed:

Augusto Antonio BARBERA, President

Marco D'ALBERTI, Reporting Judge

Roberto MILANA, Director of the Registry

Filed in the Registry on 28 November 2024