The precautionary measures provided for in the disciplinary regulations of the Armed Forces and the general power of caution in the military administration

Abstract

The disciplinary regulations of the Armed Forces predict some measures of precautionary bias, which were grouped into four thematic axes to facilitate its understanding: the disciplinary imprisonment in the act; the preventive arrest; the deprivation of liberty for convalescence; and the precautionary removal of the military who does not comply with the acts of his hierarchical superior. In addition to these literal predictions, the possibility for the competent authority to adopt atypical measures is controversial, since there is no doctrinal consensus on the existence and viability of the so-called administrative “general power of caution”. On the one hand, administrative acts are limited by the principle of legality, but, on the other, it is necessary that the authorities that have a duty to decide can adopt measures capable of safeguarding the effectiveness of the decision-making process. The viability or not of the general power of administrative caution must be guided by the rules and principles of public administration, which also apply to the administrative activities of the Armed Forces. Finally, some specific characteristics of military activities were briefly highlighted in this study, in order to foster the hypothesis under discussion also within military organizations.