Military jurisdiction and the democratic state. From the justice of the chiefs to the law 180/1981

Abstract

The essay reconstructs the history of military jurisdiction in Republican Italy, from the legacy of the 1941 codification, to the Constitution, to Law 180/1981, Amendments to the Military Judicial System of Peace. Before then, territorial military courts were composed of a majority of officers, hierarchical superiors of the accused soldier; the reporting judge, the only professional judge, depended on the military attorney general, who, in the case of urgent service reasons, could appoint substitute military prosecutors acting as investigating judge, contrary to the principle of the natural judge; two levels of jurisdiction were foreseen, without the possibility of appeal to the Supreme Court for violation of the law. Members of the Armed Forces were subject to military jurisdiction; the military courts had jurisdiction over military crimes – pursuant to art. 263 of the military penal code of peace – and over numerous common crimes, considered offensive to military interests pursuant to art. 264 of the Italian Criminal Code.

            This was the key to the functioning of the so-called justice of the Chiefs, with the military criminal process based on the disciplinary one; in the light of the Constitution, Piero Calamandrei clearly indicated the difference between «legal doctrine» and «military spirit», striving to anchor the castrensis iurisdictio obtusior to the principle of strict legality. The criminal lawyer Ettore Gallo also measured the distance between «judging and commanding»; for his part, Vittorio Veutro – military attorney general at the Court of Cassation, among the protagonists of the 1981 reform – reflected on an «element of ambiguity», constitutive of the jurisdiction ‘in uniform’, the pole of tension between the «independence of the magistrate and the yes-men of the military».

In the light of the fascist experience, the Constituent Assembly discussed Calamandrei’s proposal to abolish special jurisdictions; Mortati’s proposal was successful – aimed at recognizing special military judges the same jurisdictional functions and guarantees of independence as ordinary judges – and Bettiol’s proposal, regarding the «army [which] has its own particular sense of honor, with respect to which, for example, the rules of common criminal legislation do not apply». The Constitution assigned military courts in times of war the jurisdiction established by law, in times of peace only the jurisdiction for military crimes, committed by members of the Armed Forces. It provided that, within one year of the entry into force of the Constitution, the legislator proceeded to reorganize the Supreme Military Court in relation to art. 111.

            Within these constitutional nodes, the essay examines the thinking of the «scholars» of military criminal law, defined by the military magistrate Rino Messina as the «poor relations of the family of penal disciplines», because the cpmp, «a real sick man […] has had its day». There were ‘continuists’ and ‘innovators’: the former understood the specialty of military criminal law, ratione personae and ratione materiae, as swift justice, to «eliminate serious disturbances that arise from service and discipline»; among other things, a «Complete Military Penal Code» was proposed, in the name of the expansion of military jurisdiction into civil society. The latter – among these above all Girolamo Bellavista, Calamandrei, Rodolfo Venditti, Vittorio Bachelet, Ettore Gallo, Vittorio Veutro himself, Luciano Violante, Giuseppe Riccio – over the years ‘militated’ with constitutionally oriented proposals. They reconsidered Santi Romano’s thinking on legal systems; they argued that military justice, not ‘self-sufficient’, was subject to constitutional norms, like ordinary justice. Hence the criticism of the justice of the chiefs, «an extension of the disciplinary sanctioning system», in particular with regard to the role of the SMC. It was also observed that any intervention by the Constitutional Court on legislation that conflicted with the Constitution ran the risk of being considered an «act of insubordination to military discipline».

            The essay examines two issues, much debated at the time, which brought military justice to the attention of public opinion and the legislator, the famous trial L’Armata s’agapò, the repression of conscientious objection to conscription by military courts. In 1953, the conviction of Renzi and Aristarco for the publication of a film subject, punished as contempt of the fascist army, was at the origin of law 167/1956, Amendments to the military penal code of peace and to the penal code, which restricted the jurisdiction of military courts. Above all, the conviction of Catholic conscientious objectors to military prison and the Encyclical Gaudium et Spes inspired law 772/1972 n. 772, Norms for the recognition of conscientious objection.

            Since the late 1960s, the modernization of Italian society also suggested to the military judiciary that it should move beyond the ideology of the Armed Forces as a separate body; in 1969 the National Association of Italian Military Magistrates was established, with the aim of legislatively recognizing the «independence of military jurisdiction according to constitutional principles». In 1975, the Military Justice Review was born, edited by the Military Attorney General; the Review presented itself as a platform for developing and proposing to the legislator a «policy of reforms for judicial structures». The criticism of disciplinary justice required the legislator to respect «citizens in uniform»; hence law 382/1978, ​​Principles of Military Discipline. Sandulli indicated the constitutional importance of the «oath of absolute loyalty to republican institutions» and of the concept of «honor», anchored in art. 54 of the Constitution.

            In this context, driven by the referendum to abolish 41 articles of the cpmp, proposed by the Radical Party, law 180/1981 equated «the legal status, guarantees of independence and advancement of military magistrates» to those of ordinary magistrates. In accordance with the referendum questions, the military courts were reformed, with the prevalence of the technical component; with the establishment of the Military Court of Appeal; with the implicit suppression of the SMC. The essay considers the different reactions of the doctrine; many jurists argued that the constitutionally founded profiles of the law would have had an effective outcome only with the radical revision of the codes of 1941, in the years not repealed, albeit reformed.

The slow constitutional implementation seems to have made sense in the strong theme of the continuity of the State, of the leaders of the uniformed judiciary – for a long time those of the fascist regime – of the Armed Forces. In clear terms the conviction for contempt of the Army in the famous trial L’armata s’agapò had established the «historical continuity […] the tricolour is always the same». Furthermore, especially at the time of the Cold War, to the governments of the Republic military criminal law of 1941 had seemed effective even against the internal enemy.