Legge 5 febbraio 1992, n. 104 : punto di situazione degli enti della difesa. : limiti nell'applicazione e nei controlli

Abstract

The care of people with disability represents a primary objective related to the duties of assistance that the Constitution provides as tasks of the Republic and stated also by rules of international and European nature. Among the measures the system predisposes for the protection of disability, those tools are placed directed to let the civilian invalids’ families with a serious handicap to take care of them in case of need. Among these measures are particularly relevant the ones related to the approval for the family of disabled persons to rest from work aimed to protect the mental and physical health but also to the social integration of these subjects. The specificity of the military employment relationship, the so-called military state, is represented by the total availability in the line of duty that characterizes the military profession, based on a disciplined enact and enforce directives and orders governing the hierarchical organization in terms of operativity of the military means. By that emerges a natural tension between military state and enjoyment of the working facilities to assist a disabled familiar. The “caregiver in uniform”, by reason of the specific nature of the organization in which is included, undergoes a differentiated undergoes a differentiated application regime of the rules, as it is conditioned by the specific needs of the type of employment of his work activity. In this perspective, the study analyses the limits of application of the legislation with regard to assistance to the disabled for the entities in the field of defence military personnel and control inspection regime that military administration carries out in order to prevent e sanction possible abuse and expected benefits. In the first part I exanimate the general regulations looking both at the international and European principles and rules and at the specific provisions provided for the Italian legal system (l. February 5, 1992 n. 104) related to the benefits accorded to the worker for the care of the disabled familiar. In the second part, I analyse the provisions expressly provided for the military personnel in their applicative aspect in the light of the considerations given by administrative case law and by guidelines given by competent departments of the Armed Force general staff. In the final analysis we stress that, in contrast to what has been register in the private sector, the speciality in the relationship of military condition leads to a general prevalence of the needs of the organization compared to the taking care of the familiar. This emerges in a more extensively way in the regulation of the so-called“welfare transfers”, but it seems to find a feedback in case law also in that one of issuing of licences. In the administrative practice, there is a lack of a unified instrument of regulation: each Armed Force, except for some common profiles, regulates in a different way the procedural aspects and the areas of competence. Regarding testing regimes, there is a lack of a punctual regulation, generally leaving this job to the Corps commanders, even though there is the attempt to direct the activity of these ones with guidance documents of the departments of the of the Armed Force general staff.