Condonation and proof of the time of abuse
The jurisprudence has also clarified that the proof must be rigorous and based on certain and unambiguous documentation and in any case on objective elements, «having, among other things, to deny any relevance to declarations in lieu of affidavits or simple declarations made by third parties, as they cannot be verified»(4).
Since the building activity is susceptible to timely documentation, «the objective principles of proof concerning the location of the artefacts both in space and in time are found in the ruins, foundations, aerial photography, cadastral mapswhere levidence for witnesses is entirely residual; given the premise, it follows that the proof of the time of construction is deduced from objective data, which resist those resulting from the cadastral extracts or from testimonial evidence and it is the burden of the private individual, who disputes the administration's data, to provide rigorous proof of the different era of construction of the property, exceeding that provided by the public part. It follows that in construction disputes the testimonial evidence, which is only written however, is completely recessive compared to objective evidence concerning the location of the artefacts both in space and in time»(5).
The exception
However, we cannot ignore the temperaments introduced in this direction as a tribute to the principle of reasonableness, proportionality and logicwith the aim of avoiding the imposition of a burden of proof that is impossible to fulfill having regard to the dating back in time of the artefacts(6): this where, on the one hand, the private individual supports his thesis on the implementation of the intervention before a certain date relevant and unambiguous elements (such as, for example, aerial photography or other certifications attesting to facts that constitute important circumstances) and, on the other hand, the Municipality does not duly evaluate these elements and provides uncertain elements regarding the presumable date of construction of the building without a building permit(7) .
A concrete case
A case that can well be considered to fall within theexception to the general rule was the subject of evaluation by the TAR Lazio, Rome, section. IV-ter, in the sentence. 1 March 2024, n. 4119. Specifically, the judges held the following evidential elements regarding the creation of the building to be condoned are convincing (buffered room to be considered a veranda) by 12.31.1993:
- two invoices issued in 1993, concerning the “supply and installation of wooden frames of various sizes and poplar chipboard panels, at the property subject to the amnesty application”;
- there declaration in lieu of an affidavit issued on behalf of a supplierissuer of one of the invoices referred to in the previous point, issued in January 1993, which stated that the invoice referred to works carried out by December 31, 1993;
- the written statements from customersfiled in the documents of the amnesty procedure on 20 March 2006, all of similar tenor, in which it is stated that he had used the “veranda” subject to the amnesty, located to the right of the entrance to the premises since the 1980s;
- a sworn technical report drawn up on behalf of the previous owners of the restaurant affected by the intervention to be condoned, relating to the works to be carried out with a DIA, which refers to the “remaking of the perimeter topping with materials similar to those replaced”;
- the testimonies of an employee of the Municipal Technical Office who had made some access to the premises and an accountant who had handled the negotiation phase relating to the sale of the property, used during a criminal proceeding and who, in agreement, confirmed the existence of the infills.
These elements provided, according to the judges, covered a “high degree of plausibility” regarding the completion of the works by 31 December 1993. And in fact, it is known in this regard that proof of the facts underlying the application can also be offered by resorting to presumptions which have the characteristics of gravity, precision and concordance as required by the art. 2729 cc
The gravity requirement implies the need for a high degree of reliability of the presumption in relation to the belief that it is capable of producing in the judge: this does not mean, however, that the affirmation of the existence of the ignored fact must be deduced from the known fact with absolute certainty, a degree of probability higher than that of the opposite thesis of its non-existence being sufficient. A similar conclusion is accepted by the prevailing jurisprudence, which does not require that, through presumptive inference, absolute certainty be reached regarding the existence of the fact to be proven, but considers it sufficient that the relationship of logical dependence between this and the fact known is ascertained according to canons of probability and with reference to a possible and plausible connection of events, whose sequence and recurrence can occur according to rules of experience (8).
The precision requirement in turn evokes a concept of non-equivocality, meaning to exclude the validity of presumptive reasoning where contradictory conclusions derive from it and which are not univocally referable to the fact to be proven. In line with what was said about the requirement of gravity, the consequence regarding the existence of factum probandum it does not necessarily have to be the only possible one, it being sufficient that it is the most probable among those that can derive from the known fact.
There concordancefinally, refers to the necessary convergence on the same conclusion of a plurality of simple presumptions.
In the present case, the interested party provided a series of circumstantial elementssuch as invoices for the purchase of materials, sworn technical reports, declarations in lieu of affidavits and testimonies given in other proceedings, which, considered together, took on the characteristics of gravity, precision and concordance and allow us to infer that the works were carried out within the deadline required by the amnesty regulations.
Note
(1) See: Council of Administrative Justice for the Sicilian Region, sentence. 13 March 2023, n. 219 and sentences. 8 March 2019, n. 225; Council of State, sec. II, sentence. 4 January 2021, n. 80; section VI, sentence. 17 May 2018, n. 2995.
(2) Council of State, sec. II, sentence. 26 January 2024, n. 853; section VII, sentence. 29 September 2023, n. 8594; sent. 7 August 2023, n. 7628 and sent. March 24, 2023, n. 3011; section VI, sentence. 12 October 2020, n. 6112; sent. 18 May 2021, n. 3853.
(3) Council of State, sec. VI, sentence. 25 May 2020, n. 3304.
(4) Council of State, sec. VI, sentence. 20 April 2020, n. 2524; sent. 4 March 2019, n. 1476; sent. 9 July 2018, n. 4168; sent. 30 March 2018, n. 2020.
(5) Council of State, sec. VI, sentence. 3 January 2022, n. 4.
(6) Council of State, section VI, sentence. 18 July 2016, n. 3177; sent. 13 November 2018, n. 6360 and sent. 19 October 2018, n. 5988.
(7) Council of State, sec. VI, sentence. 20 January 2020, n. 454.
(8) Ex multis, Cass. civ., n. 20342/2020.
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