Jurisdiction in matters of ineligibility

With the decision of 28.5.2015, n. 11131, the joint sections of the Court of Cassation established that the jurisdiction regarding the prefectural measures of suspension by law from elective offices adopted pursuant to Legislative Decree 12.31.2012, n. 235 belongs to the ordinary judge. In these hypotheses, in fact, a totally restricted activity of the public administration concerning the subjective right to stand for election would be highlighted.

THE RECONNAISSANCE

The decision of the joint sections of the Court of Cassation 28.5.2015, n. 11131 deals with identifying the jurisdiction in relation to the appeal of the suspension measures by law from the elective offices adopted pursuant to the legislative decree 31.12.2012, n. 235 ( Consolidated text of the provisions on the subject of ineligibility and prohibition to hold elective and government offices consequent to definitive sentences of conviction for crimes committed with negligence ).

The ordinance of the joint sections concerned the prefectural provision which provided for the suspension from the office of a mayor following a conviction in the first instance for various offenses all attributable to art. 323 of the Criminal Code The provision was adopted pursuant to art. 11, co. 1, lit. a ), Legislative Decree no. 235/2012 which provides for the suspension by law from the offices, among other things, of the president of the province, mayor, councilor and provincial municipal councilor for those who have reported a non-definitive conviction for one of the crimes indicated in article 10, co . 1, letter a ), b ) and c ). These crimes include the ones sanctioned by art. 323 criminal code (abuse of office).

Pending the settlement of the dispute before the administrative judge, a voluntary intervener filed an appeal for regulation of jurisdiction asking for the affirmation of the jurisdiction of the ordinary judge.

The Court of Cassation took note of the existence of two different orientations regarding jurisdiction: the first affirms the jurisdiction of the administrative judge as the suspension would not definitively affect the right to stand for election but the exercise of the mandate and, in any case, The suspensive effect would be determined following the Prefect's decree since a sentence of conviction is not sufficient to automatically entail the suspension and, for this purpose, an activity of verification and control by the administrative body is required ¹. This activity takes the form of a provision that integrates the normative precept and determines its application to the concrete case. It is, therefore, a question that involves the subjective legal position of legitimate interest 

The second address, on the other hand, affirms the jurisdiction of the ordinary judge arguing that disputes concerning forfeiture, ineligibility, and incompatibility, as they concern the passive electorate, concern the protection of a perfect individual right. A dispute relating to the suspension of office must be assimilated to those concerning the right to a passive electorate, for which the jurisdiction is the ordinary one.

Even the Court of Cassation, in the provision that is the subject of this comment, believes that the jurisdiction of the ordinary judge must be affirmed in the case in question.

In fact, the prefect's provision would not affect the mandate but rather the performance of the mandate would constitute a consequence of the assumption of the office with respect to which the question of the right to hold it, which involves a subjective right, is preliminary and absorbing.

Furthermore, the jurisprudence of the Cassation, in the matter of electoral disputes, has always affirmed the jurisdiction of the ordinary judge with reference to disputes concerning ineligibility, forfeiture, and incompatibility as aimed at protecting a subjective right to passive electorate ³ .

The fact that the application of the rule is mediated by an administrative provision is not decisive considering that the latter has a restricted nature: the suspension, in fact, follows directly and exclusively from the conviction. It is a purely executive activity of the perfect and the appeal before the administrative judge does not change the fact that the dispute concerns a perfect individual right.

Nor can the jurisdiction of the ordinary judge be denied in relation to the circumstance that the suspension is not included in the matters referred to in art. 22, legislative decree 1.9.2011, n. 150, ( Complementary provisions to the code of civil procedure on the subject of reduction and simplification of civil proceedings of cognition ), which, in art. 22, governs the procedure for disputes relating to eligibility, forfeiture and incompatibility in municipal, provincial and regional elections.

According to the Cassation, the suspension from office is comparable "by continence" to the questions of ineligibility, ineligibility, and forfeiture. This conclusion does not change in relation to the circumstance that the provision has temporary effects: the temporary nature of the effects of the provision does not change the legal position of subjective rights. The suspension, therefore, differs from the forfeiture only because it is a provision with effects limited in time. A Perfect Explanation Of Subject Matter Jurisdiction

Finally, the Cassation is not convinced of the thesis according to which the suspension measure would affect the functioning of the elective body rather than the elected person's right to stand for election. According to this reconstruction, the suspension would constitute a choice of the legislator aimed at implementing the reconciliation between the subjective position of the elected individual and the public interest in that the holders of elected offices are not convicted, with a final sentence, for certain crimes. In keeping with the functioning of the body, the dispute should fall within those referred to in art. 119, co. 1, letter e), cpa according to which "the dissolution measures of the governing bodies of local and related bodies, which concern their formation and their functioning, are subject to a special procedure". According to the Cassation, the dispute over the suspension does not concern the dissolution of bodies but the temporary suspension from the office of the person who holds the body.

THE FOCUS

The decision of the Cassation invests the general theme of the criterion for allocating jurisdiction in electoral matters ⁴ .

In disputes concerning administrative elections, the jurisdiction is divided between the administrative judge and the ordinary one in relation to the criterion for allocating the double track, i.e. in relation to the consistency of the legal situation of the subjective right or legitimate interest of which one is requesting the guardianship; consequently, disputes concerning questions of ineligibility, forfeiture and incompatibility of candidates, because they concern subjective rights of passive electorate, are devolved to the jurisdiction of the ordinary judge, while questions concerning the regularity of electoral operations belong to the jurisdiction of the administrative judge, because they to positions of legitimate interest. In electoral matters, the jurisdiction of the administrative judge therefore exists⁵. While the assessment of the ownership or not of the right to elect is devolved to the jurisdiction of the ordinary judge since the electorate detects as a subjective public right that cannot be degraded by the public administration; it follows that when the judicial protection requested does not pertain to the concrete performance of electoral operations, but is aimed at asserting the protection of the perfect individual right or inherent in the eligibility or otherwise of a person, ordinary jurisdiction must always be considered to exist. Furthermore, the jurisdiction of the ordinary judge does not find limitations or exceptions in the event that the question of eligibility is introduced by challenging the provision of the council on the validation of those elected or by challenging the deed of proclamation,⁶ .

This division criterion was reaffirmed by the code of administrative process according to which the administrative judge has jurisdiction over electoral operations relating to the renewal of the elective bodies of the municipalities, provinces, regions and the election of the members of the European Parliament due to Italy and this jurisdiction is extended to the merits (articles 126 and 130); as well as in relation to the measures immediately harmful to the appellant's right to participate in the preparatory procedure for the municipal, provincial, regional elections and for the renewal of the members of the European Parliament (art. 129 cpa).

Furthermore, disputes relating to the dissolution of local government bodies and related bodies, which concern their formation and functioning (Article 119 of the Code of Criminal Procedure) ⁷ , are up to the administrative jurisdiction .

PROBLEMATIC PROFILES

The problem of jurisdiction over ineligibility in general, and, consequently, also over suspension, however, presents some problematic profiles in spite of the consolidated division criterion just illustrated.

In fact, the provision contained in the aforementioned art. 129 of the Code of Civil Procedure devolves to the jurisdiction of the administrative judge the appeal of «measures immediately prejudicial to the appellant's right to participate in the preparatory procedure for the elections».

It should be remembered that ineligibility is not perfectly comparable to the hypotheses of ineligibility and incompatibility. Indeed, ineligibility – unlike ineligibility, which gives rise to the eventual forfeiture of the elected after the conclusion of the electoral procedure – entails the impossibility of taking part, right from the start, in the electoral competition; the ineligibility, therefore, precludes the inclusion of the name of the ineligible person in any list. Therefore, it could be a question of a pre-election dispute for which in this hypothesis the art. 129 cpa

Moreover, this provision is referred to by Legislative Decree no. 235/2012 with regard to the assessment of ineligibility for the European Parliament (while disputes relating to the preparatory procedure for the political elections of the Chamber and the Senate escape the jurisdiction of both ordinary and administrative courts ⁸ ).

Therefore, it is not excluded that the problem of jurisdiction over prefectural measures may be reopened in the future.

The question of ineligibility undoubtedly involves public law aspects, even at a constitutional level; the issue of ineligibility, in fact, is placed to guarantee the good performance of the public administration (art. 97 of the Constitution) and the right of local communities to have guaranteed the right to vote in order to be guaranteed a political structure as immune as possible from contamination and deviations of any kind. Furthermore, it has been stated that the effects of the nullity of the election provided for by art. 10 of Legislative Decree no. 235/2012, in the event that the existence of conditions impeding the candidacy of a director already in office (whose candidacy at the time of him has not been contested and whose election has been validated) is known after some time from the consultations electoral,⁹ . These are profiles that inevitably pertain to the regularity of electoral operations.

However, not only the ordinance in question but also the administrative jurisprudence itself placed these considerations, which could have led to the jurisdiction of the administrative judge. In fact, prior to the decision of the joint Sections, the Council of State had had the opportunity to clarify that in the case of elected offices, the activity that can be carried out by the administration is bound to the mere verification of any conditions of ineligibility or incandability established by law, without there is no room for discretionary evaluation that could weaken or compress that right; consequently, on the basis of the cardinal criterion of the petitumsubstantive, it is up to the ordinary judge to hear disputes concerning forfeiture, ineligibility and incompatibility, since these are questions concerning the passive electorate which, as such, concern the protection of positions of perfect subjective law ¹⁰ . This is because the right to stand for election is a fundamental political right, recognized by art. 51 of the Constitution to every citizen and is inviolable and unconditional: its restriction is permitted only to the legislator who enjoys an absolute reservation in this regard. It follows that, in the exercise of this right, the activity that can be carried out by the Administration in the electoral procedure appears to be restricted ¹¹ .

A further problematic profile relating to the issue of ineligibility pertains to the retroactive application of this measure. It is clearly a profile that does not pertain to jurisdiction but rather to the legal nature of the measure applied.

On this point, the jurisprudence has clarified that the application of the impediments set by Legislative Decree no. 235/2012 to the convictions made before the entry into force of the same does not violate the principle of non-retroactivity of the criminal law, since the law in question does not have a sanctioning, criminal or administrative nature, not even in the broad sense. The irrevocable penal sentence is considered as a mere objective presupposition to which a judgment of moral unsuitability to hold an elected office is connected.

The new discipline on causes of ineligibility (Legislative Decree No. 235/2012) has the purpose of removing from the performance of elective offices the subjects whose unsuitability is confirmed by irrevocable pronouncements of justice. The foreclosure to candidacy does not represent a penal effect or an accessory sanction to the sentence, but an effect of an administrative nature which, in application of the general regulation on the effectiveness of the law over time, also applies to final sentences prior to the entry into force of the new discipline ¹² .Q