The fact is the double accusation
The case dealt with starts from the sentence pronounced by the Court for the construction, in a seismic area, of an underground sewer pipe of approximately 200 meters with attached inspection wells. The conduit had been connected to the public sewer instead of the accumulation tank provided for by the building permit. There were two charges: the essential change to the building permit pursuant to art. 44, paragraph 1, letter. b), of Presidential Decree 380/2001, and the violation of articles. 93 and 95 of the same decree for the failure to deposit the project documents with the competent Civil Engineering Office.
During the judgement, the Court reclassified the conduct from essential variation to partial non-conformity pursuant to art. 44, paragraph 1, letter. a), and a fine of 2,000 euros is expected. In addition to this, however, the demolition order of the works had also been ordered pursuant to art. 31, paragraph 9, of the Consolidated Law on Construction, however making this compliance subject to the granting of the benefit of conditional suspension of the sentence. The sentence was appealed and the matter reached the Supreme Court, which ruled in favor of the manufacturer.
When demolition is always mandatory
In the ruling, the Court first recalled the scope of application of the art. 31, paragraph 9, of the TEU. The text provides that, for the illegal works “referred to in this article”, the judge, with the conviction for the crime of building abuse (art. 44), also orders the demolition of the abuse itself.
The reference to the abuses foreseen by the “this article” concerns, however, substantially listed in the text in question, i.e. interventions carried out: in the absence of a building permit; in total dissimilarity; with essential variations. Therefore these and only these are the types of abuse that fall within the scope of the article and which therefore impose the demolition order without the possibility of alternative sanctions.
Partial discrepancy that can be remedied with taxation
In cases not expressly listed, therefore, the demolition of the abuse is not a necessary action. In particular, we read in the sentence, for the partial discrepancy – sanctioned by the art. 44, paragraph 1, letter. a) – the criminal judge can only impose a fine. The other measures, i.e. the order to restore the state of the premises or in the imposition of a substitute pecuniary sanction pursuant to art. 34 of the TEU, remain the exclusive competence of the municipal administrative authority.
In the case in question, the Court had itself characterized the conduct as a partial non-compliance and that was it. Once this redevelopment has been carried out, therefore, the adoption of the demolition order pursuant to art. 31, paragraph 9, was completely devoid of any regulatory basis.
Anti-seismic violations, only the substantial ones count
The Court of Cassation also excludes that the demolition order may be applicable for violation of the anti-seismic regulations. The art. 98, paragraph 3, of the TEU, in fact, in this context allows the judge to order the demolition of the property only when the ascertained violation is of a substantial nature, or when it concerns the failure to comply with the technical construction standards.
The disputed violation – the failure to deposit the planning documents with the Civil Engineers pursuant to articles. 93 and 95 of the TUEd – can be classified as a merely formal violation, relating to a procedural fulfillment. As reiterated by Section III in numerous rulings (nos. 6371/2013, 37322/2007, 40985/2006, 48685/2003, 3113/1993) and confirmed by Section. 3, no. 2342/2022, the incidental verification of technical violations that are not the subject of a supplementary dispute cannot legitimize the demolition order pursuant to art. 98, paragraph 3, TEU. Hence the yes to the appeal.
The Court thus annuls without postponement the sentence of the Court of Naples North limited to the demolition order, which it eliminates, and to the subordination of the conditional suspension of the sentence to the fulfillment of the demolition itself.
Types of building abuse and sanctioning powers
Here is a summary table of the types of offenses for which demolition can be imposed, without the possibility of contestation, and those for which it is not possible.
|
Type of abuse |
Art. TUEd |
Crime pursuant to art. 44 |
Demolition order. criminal judge (art. 31, co. 9) |
PA administrative sanction |
|---|---|---|---|---|
|
No building permit |
Article 31 |
Letter b)/c) |
Yes |
Office demolition |
|
Total discrepancy |
Article 31 |
Letter b)/c) |
Yes |
Office demolition |
|
Essential variation |
Articles 31-32 |
Lett. b) or lett. to) |
Yes |
Office demolition |
|
Partial discrepancy |
Article 34 |
Letter a) |
No |
Reinstatement or substitute pecuniary sanction (art. 34) |
Anti-seismic violations and demolition order (art. 98, co. 3, TUEd)
|
Type of violation |
Nature |
Demolition order. art. 98, co. 3 |
|---|---|---|
|
Failure to comply with technical construction standards |
Substantial |
Yes |
|
Failure to file project documents with the Civil Engineers |
Formal |
No |
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