The contact points
The two proposals therefore focus on simplification, organic definition and reduction of qualifications, reorganization of the regulation of discrepancies and tolerances, coordination with seismic and structural safety regulations, coordination with urban planning regulations. In response to these indications, however, the government text introduces new forms of criminal liability of the technician. Precisely this aspect is contested by the professions, which require modifications.
Regarding expressly the role of technical professionals, in the Mazzetti text we find a first explicit reference to the art. 2, letter h), point 5, which talks about “recognizing and enhancing the certification and attestation of conformity functions carried out in the general interest by qualified technicians”. Then there is letter p), point 4, which talks about “distinguishing roles, skills and responsibilities” of the subjects of the construction process “also with reference to the forms of indemnity policy”. In fact, in the first case a formulation of openness and valorisation of the professional role, while the responsibility is declined exclusively in an insurance/civil perspective, never in a criminal perspective.
The MIT bill instead explicitly introduces among the directive criteria for the future Construction Code the obligation to certify the details of previous qualifications “pursuant to and for the effects, including criminal ones” of Presidential Decree 445/2000, necessary to certify the legitimate status of the property.
Regulatory references
The art. 4, paragraph b of the MIT bill provides for the revision and simplification of the discipline of certification of the legitimate state of the property, with the identification of the criteria and qualifications that allow its demonstration, in line with the needs of protecting the owner’s trust on the basis of the most recent qualification, even formed by silent consent, provided that the last title indicates the details of the original title and any subsequent titles, certified by certification of a qualified professional, pursuant to and for the effects, including criminal ones, referred to in the Presidential Decree of 28 December 2000, n. 445.
The reference to Presidential Decree 445/2000 is crucial: the art. 76 of that decree provides for the forfeiture of benefits obtained on the basis of false declarations and the referral to the criminal sanctions of the penal code. The mechanism is grafted onto the art. 481 of the Criminal Code already in force for building certifications, but here it projects it onto a new object: not the conformity of the ongoing intervention, but the reconstruction of the legitimacy of the entire building history of the property. It is this extension of the object of the certification to previous qualifications, which the professional did not produce and never verified, which the technical categories contest as a structural imbalance of the mechanism.
Sworn statement and previous work
On the basis of this formulation, in fact, the technical professional in charge becomes the person who certifies not only the ongoing intervention, but the legality of the entire construction history of the property on which he works, with liability explicitly classified as criminal.
The professional, essentially, would be held criminally accountable for documents that often do not exist, are incomplete or are stored in municipal archives that are difficult to access, and which he himself did not produce nor could verify at the time of release.
On this point the clearest doubts come from the National Council of Engineers. The mechanism is judged to be unbalanced because knowledge of the building history of a property is primarily the responsibility of the owner, while the technician is asked to guarantee the legitimacy of historical acts and measures over which he had no control.
Furthermore, the jurisprudence of the Criminal Court of Cassation has already consolidated the orientation according to which the technician who falsely certifies the conformity of building works with urban planning instruments is liable for the crime of ideological falsity in certificates pursuant to art. 481 of the Criminal Code, an instantaneous crime punishable even if the works are not subsequently carried out. The MIT bill extends this logic to the historical dimension of the property, significantly broadening the scope of sworn liability.
Double seismic compliance, another unresolved issue
Another issue is that of the mandatory double seismic compliance in the event of an amnesty: the works in the seismic zone must comply with the technical standards both at the time of construction and at the time of the amnesty. The point is linked to the problems of regulatory stratification accumulated over the years.
In fact, the sworn technician should guarantee technical requirements referring to different eras, with standards that may have changed in the meantime and with constructions over which he had no supervision during construction.
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