Split atom and prefectural silence: between anti-mafia interdiction and judicial control (note to TAR Reggio Calabria, 25 January 2024, n. 68)
by Renato Rolli and Martina Maggiolini***
Summary: 1. Brief reconstruction of the dispute; 2. On the functional autonomy between anti-mafia interdiction and judicial control; 3. The silence of the prefectural authority between legislation and jurisprudence.
1. Brief reconstruction of the contentious story
The relationship between judicial control and anti-mafia interdiction leads the legal practitioner to ask himself ever-changing questions. This combination requires constant attention, in order to fully grasp the scope of the two institutes in their individual sphere and in their synergy; as well as in order to identify and overcome the limits that arise in their application [1].
In the ruling under comment, the judge of first treatmentswas hit by the appeal of the individual company which requested the verification of the illegitimacy of the silence maintained by the prefectural authority in response to the request for revision of the disqualifying assessment.
Despite the succession of reminders, the administration limited itself to confirming the pending investigation aimed at updating the company’s status.
Meanwhile, the company obtained admission from the Prevention Measures Court to the measure of judicial control referred to in the art. 34 bis Legislative Decree. n. 159/2011 and on the basis of this the administration objected to the inadmissibility of the appeal due to lack of interest, motivating it by reason of the declared non-existence, on the part of the Prefecture, of the obligation to define the request for review until the outcome of the measure referred to in the art. 34 bis Anti-Mafia Code.
The judge, arguing as follows, concluded for the acceptance of the appeal with a simultaneous declaration of illegitimacy of the Prefecture’s silence and ordered express action to be taken.
2. On the functional autonomy between anti-mafia interdiction and judicial control
It is necessary to investigate the extension of the institution of judicial control pursuant to art. 34-bis of legislative decree no. 159 of 2011, in particular with regard to the effects that are produced on the legal sphere of the company which is the recipient of an anti-mafia disqualification measure.
It is necessary to point out the presence of a wide range of measures to combat mafia infiltration in the economy which vary in intensity and pervasiveness in proportion to the level of mafia contagion.
The application of these measures has posed ever-changing questions over time, which doctrine and jurisprudence have attempted to answer by establishing the two institutions as a system.
The most convincing solution appears to be that according to which the two institutions are communicating vessels that do not flow into each other but rather maintain their contents in watertight compartments.
Thus, the highest body of administrative justice recently investigated the relationship between the anti-mafia disqualification provision and judicial control with the rulings of Plenary Assembly no. 6 and 7 of 2023 [2].
Now, it is clear how voluntary judicial control can be requested by “companies receiving anti-mafia disqualification information pursuant to Article 84, paragraph 4, which have proposed to appeal the relevant prefect’s provision”, when, pursuant to paragraph 1 , the facilitation of individuals suspected of belonging to mafia-type organizations “is occasional”.
Already following the introduction of the institution of judicial control, the power-duty of the administrative judge to decide appeals against the anti-mafia disqualification provision was also questioned by the writer, where the company has obtained from the Prevention Court the measure of judicial control.
On this point, the Plenary Assembly considered that, by virtue of the legislation in force, the orientation which recognizes the autonomy of the proceedings is valid and that admission to judicial control does not prevent the administrative judgment of appeal against these from being defined without delay. ‘last.
In confirmation of this, the orientation according to which it is believed that, even if the disqualification is not annulled following the outcome of the appeal proceedings submitted to the administrative judge and, therefore, is ascertained on the basis of the principle of more probable than not, is acceptable the existence of mafia infiltration in the company, this does not mean that the need to reorganize it should be considered to have disappeared. In this circumstance it is also necessary to intervene with the tools in force in order to give the company the opportunity to re-enter the healthy economy.
In this sense, in addition to reading the regulatory provision, it lays down its healing function. The judicial control starts following the prefectural anti-mafia provision but is based on an autonomous prognostic assessment by the Court of the prevention of overcoming the occasional conditioning circumstances [3].
Therefore, postulating the suspension of the appeal against the disqualification measure would lead to distorting the intrinsic function of the process by transforming it into an instrument for the activation of further means of protection, distancing it from the natural ratio protection of legal situations.
Therefore, the Plenary Assembly believes that no prejudicial relationship is detectable between the judgment challenging the anti-mafia interdiction and the judicial control.
Therefore, it is also clear that the activation of judicial control does not affect the possibility of obtaining release from the anti-mafia information.
The entire apparatus is based and justified on the functional autonomy of the two institutes. Judicial control originates from the interdictory provision and is a split but orbiting atom from the following moment.
Having reiterated the autonomy of the investigations under the jurisdiction of the Criminal Prevention Court compared to those carried out by the prefectural authority, when releasing anti-mafia information, a fortiori the prefectural decision regarding the release of the company subject to the interdiction must be considered free [4].
In conclusion, it is clear that the anti-mafia interdiction is based on a static evaluation of elements from which the activation of judicial control pursuant to art. 34 bis cd. Anti-mafia code. The latter travels, from this moment on, on a parallel track.
3. The silence of the prefectural authority between legislation and jurisprudence
The static nature of the evaluation of the anti-mafia prohibition requires a balancing of the interests involved in order to avoid useless and unjust compressions of constitutionally guaranteed rights.
Thus, the Constitutional Court [5] establishes the legitimacy of the anti-mafia interdictory information, recognizing its advanced function in the fight against mafia conditioning, in its anticipatory function of the defense of legality.
Only such a chameleon-like measure appears to be suitable for severing all ties with the mafia environment where this is more likely than not[6].
This represents a departure from the rule of law which is justified exclusively by the desire to intervene and protect the overriding public interest.
Therefore, the invasiveness of this instrument requires the necessary weighing of the opposing values, excluding circumstances in which the subject receiving the disqualification measure is deprived of its corporate identity.
Together with a few others, one of the regulatory provisions necessary to ensure the survival and correct exercise of economic activity is certainly the “provisional nature of the measure”, as provided for by the art. 86 paragraph 2 Legislative Decree. n. 159/2011, followed by the Prefecture’s obligation to update the elements underlying it, as expressly provided for in the subsequent art. 91 paragraph 5.
Therefore, one of the forms of protection of the private individual can be found in the temporal validity limited to twelve months of the disqualification measure, at the end of which, the prefectural authority is required to proceed with the verification of the persistence or otherwise of the circumstances underlying the disqualification, with the direct effect, in the positive hypothesis, of the reintegration of the company into the free and healthy market.
In order to avoid the unjustified compression of a constitutionally guaranteed right such as freedom of enterprise in a prolonged manner, it is necessary for the administration to proceed without delay with the re-evaluation of the apparatus that supports the disqualification provision.
Nonetheless, the company has the right to obtain a re-evaluation of its position in the market in order to avoid unnecessary limitations that would be illegitimate.
In the present case, the inert behavior of the prefectural authority is therefore in conflict with the more general principle provided for in the art. 2 L. n. 241/90, as well as with the special regulations of the anti-mafia code regarding the renewal of the evaluation of the disqualification provision referred to in the art. 91 paragraph 5 Legislative Decree. n. 159/2011, according to which the “prefect, also on the documented request of the interested party, updates the outcome of the information when the relevant circumstances no longer exist for the purposes of ascertaining attempts at mafia infiltration” [7].
The ruling in question therefore deserves to be highlighted for the affirmation of the administration’s obligation to process requests for updating anti-mafia information to avoid the risk of useless compressions which could lead to the economic death of the company and not to penalize itself the companies that have proven to be most collaborative in the recovery.
In conclusion, the conditioning relationship between judicial control and the administrative review procedure pursuant to art. 91 paragraph 5 of the Anti-Mafia Code, both pending against the appellant company, moves in a diametrically opposite direction to that implemented by the prefectural authority in this case.
*** Although the result of a unitary work, it is possible to attribute the third paragraph to Prof. Renato Rolli, the remaining ones to Dr. Martina Maggiolini.
[1] Please refer extensively to MASandulli, Relationships between the judgment on the legitimacy of anti-mafia information and the institution of judicial control, L’Amministrativista, 2022
[2] Please allow reference to R. Rolli, V. Bilotto, F. Bruno, Anti-mafia interdictions and voluntary judicial control: the plenary meeting puts an end (?) to the debated relationship between the two institutes, RatioIuris, 2023; R. Rolli, V. Bilotto, F. Bruno, Anti-mafia interdictions and their difficult (and troubled) relationship with voluntary judicial control: an overview awaiting the plenary meeting, Ratio Iuris, 2023
[3] On this point, we note the ruling of the Supreme Court, United Criminal Sections, 19 November 2019, n. 46898, which stated that the latter institution constitutes an «alternative response on the part of the legislator: because the purpose of these is alternative, aimed not at severing the relationship with the owner but at recovering the corporate reality to free competition, following a amending path”, characterized by the assumption of the “occasional nature of facilitating dangerous subjects” and by the prognostic evaluation focused “on the concrete possibilities that the individual company has or does not have to fruitfully complete the path towards realignment with the healthy economic context”, on the basis of the ‘prescriptive control’ of the Criminal Prevention Court.
Thus Plenary Meeting 7/2023: “the pending judicial control upon request pursuant to art. 34-bis, paragraph 6, of the legislative decree of 6 September 2011, n. 159, is not a cause for suspension of the appeal proceedings against the disqualifying anti-mafia information”.
[4] Thus Plenary Meeting 7/2023: “the pending judicial control upon request pursuant to art. 34-bis, paragraph 6, of the legislative decree of 6 September 2011, n. 159, is not a cause for suspension of the appeal proceedings against the disqualifying anti-mafia information”.
[5] Sentence of 03.26.2020, n. 57
[6] Please allow reference to R. Rolli, Anti-mafia information as an “advanced frontier” (Note to the State Council ruling, Section III, n. 3641 of 8 June 2020), in This magazine, 3 July 2020
[7] see, among many, TAR Calabria, Reggio Calabria, 3.08.2023, n. 661; 09.23.2022, n. 633
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