31 May Order of demolition and building abuses

The demolition order of an abusive artifact, provided for by art. 31, comma 9, d.P.R. n. 380/2001 (Consolidated Construction Text) it concerns not only the building subject to the procedure that gave birth to the executive title but also any other intervention that, For his accessory to the illegal work, makes the order itself unexecutable, any further construction cannot be allowed, somehow, hinder the full implementation of the judicial order.
In other words, what is important is the intangibility of the demolition order relating to the building in its entirety given that the demolition obligation is configured as a duty of restitutio in integrum of the state of the places, and as such its object is the illegal construction originally contested, both accessory and complementary works as well as subsequent additions, on which the abusive nature of the original construction spills over.
This is specified by the ruling of the Court of Cassation of 6 August 2024, n. 31821, with which the legitimacy of the demolition execution order was confirmed.
According to the appellant, a request for a building permit under amnesty had been submitted on the property, rejected by the local Administration for failure to attach the documentation required by the urban planning regulation and the PUC implementation rules, without therefore carrying out any real investigative activity, since it had not been formalized, by the institution, no request for additions to the appellant. Consequently, the judge could have proceeded with further technical investigations, ordering the manager of the municipal technical office to verify the possibility that the works declared illegal could receive a positive amnesty measure because they comply with the urban planning instruments.
Furthermore, confirmation of the execution of the demolition, issued five years after the conviction became final, would not have provided adequate motivation on the current public interest in demolishing and sacrificing legal positions consolidated over time, despite the time that has passed and the consequent reliance placed on the private individual.
Preliminarily the judges of Piazza Cavour explained that the judge of the execution, in disregarding the request for suspension and/or revocation of the demolition order, acknowledged that it had ascertained that the request for a building permit submitted by the appellant had been rejected by the local authority, on the assumption that the intervention could not be absent because the practice lacked the documentation required by the building regulations and the implementation rules.
The decision taken by the executing judge complies with the principles established by the jurisprudence of legitimacy, as it is not part of the duties of the enforcement judge to carry out further technical checks ex officio in order to evaluate the curability of illegal works.
It is incumbent on anyone who intends to make use of a faculty or enjoy a benefit that is provided for by law, provide proof of the existence of the assumption on which the application is based, not being able, in the absence of a rule that expressly provides for it, establish on the part of the judge competent to decide on it the obligation to acquire it ex officio.
It would have been the applicant's responsibility to verify the status of the amnesty application presented at the administrative level and the possibility of a positive outcome, accompanying the application with the necessary documentation requested by the competent offices of the local authority, to then ritually support the request for suspension of the execution order made during the criminal execution.
Furthermore, the confirmation of demolition was issued on the basis of the building crime referred to in art. 44 d.P.R. n. 380/2001 and anti-seismic violations, violations that, if persistent, have a negative impact on the possibility of obtaining the amnesty provided for by the art. 36 d.P.R. n. 380/2001.
On the subject of urban planning crimes, the amnesty of building abuses suitable for extinguishing the crime referred to in the art. 44 d.P.R. 6 June 2001, n. 380, to preclude the imposition of the demolition order of the illegal work provided for by the art. 31, comma 9, of the same Consolidated Building Act and to determine, if possibly issued after the sentence has become final, the revocation of said order, it can only be that which complies with the conditions expressly indicated by the art. 36 of the decree itself, which requires double compliance of the works with current urban planning regulations, both at the time of creation of the product, and at the time of submitting the application for amnesty permit, having to exclude the possibility of posthumous legitimization of originally abusive works which, only later, in application of the so-called amnesty “jurisprudential” o “improper”, have become compliant with building regulations or urban planning tools.
Likewise, the requirement of double conformity is to be considered excluded in the case of construction carried out – as in the case under consideration – in the absence of prior obtaining of the seismic authorization.
In reference to the demolition order for illegal works carried out in addition to others for which the crime has become statute barred, stoats remember that every demolition order, indeed, pronounced pursuant to art. 31, comma 9, d.P.R. n. 380/2001 and issued following a criminal trial concerning specific conduct violating the art. 44 d.P.R. n. 380/2001, it relates to the abusive works carried out with the specific conduct contested in that judgment.
It follows that the lapsing of one of the demolition orders relating to ongoing abusive works due to the statute of limitations of the crime has no impact on the effectiveness of another demolition order. “crystallized” in an irrevocable condemnation sentence relating to other abusive works, even previous ones, carried out on the same property.
Can't do it, in the case in question, the legitimacy of the demolition order of the entire building, even if for some merely complementary works the demolition order had previously been revoked, in continuity with the more general principle according to which the demolition order of the illegal building, provided for by art. 31, comma 9, d.P.R. 6 June 2001, n. 380, concerns the building which is the subject of the proceeding which gave rise to the enforcement title but also any other intervention, that, For his accessory to the illegal work, makes the order itself unexecutable, any further construction cannot be allowed, somehow, hinder the full implementation of the judicial order.
In other words, what stands out is the intangibility of the demolition order relating to the building in its entirety given that the demolition obligation is configured as a duty of restitutio in integrum of the state of the places, and as such it cannot fail to have as its object the illegal construction originally contested, both accessory and complementary works as well as subsequent additions, on which the abusive nature of the original construction spills over .
Furthermore, jurisprudence has stated that the continuation of construction work on illegally constructed buildings constitutes a new illicit conduct, regardless of the extent of the works carried out and even when the statute of limitations has expired for the conduct relating to the initial construction, given that the new interventions repeat the same characteristics of illegitimacy from the main work to which they structurally belong.
Demolition order does not expire with the passage of time
Finally, according to a consolidated orientation of legitimacy, the demolition order of illegal building works, having the nature of an administrative sanction, it is not susceptible to extinction due to the passage of time. This is because the passage of time could cause the State's interest in punishment to disappear, but not to eliminate an illegal building from the territory.
It is in fact an administrative sanction which fulfills the function of restoring the damaged property, it therefore has no punitive purpose and has a real character, with effects on the subject who is in relationship with the good, even if he is not the perpetrator of the abuse, with the consequence that it cannot be traced back to the conventional notion of “pena” in the sense developed by the jurisprudence of the ECtHR and is not subject to prescription.
The passage of time, far from rooting to some extent the legal position of the interested party, rather it reinforces the abusive nature of the intervention. It follows that the demolition ordered by the criminal judge constitutes a necessary act, explanation of an autonomous and non-alternative power to that of the administrative authority, with which it can be coordinated in the execution phase, a power that aims to close the administrative sanctioning system.