The Burden of Proof in Administrative Sanctions: The Judge's Powers in Order No. 17041/2025

Order No. 17041 of June 25, 2025, issued by the Court of Cassation, is fundamental for anyone contesting an administrative sanction. The ruling, by Dr. M. F. and Dr. A. C., clarifies the role of the Public Administration (PA) and the judge's powers in opposition proceedings, ensuring fairness even in cases of PA inaction.

The PA's Evidentiary Burden and Procedural Inertia

The general principle, pursuant to Article 2697 of the Civil Code, requires the PA to prove the constituent elements of the offense. Order No. 17041/2025 clearly reiterates this: "the burden of proving the constituent elements of the offense rests with the opposing administration."

However, the PA's procedural inertia does not automatically render the transgression unfounded. The judge, in fact, does not limit themselves to a formal review but is called upon to "reconstruct the entire sanctioning relationship."

The Judge's Ex Officio Investigative Powers

For this reconstruction, the judge has broad ex officio investigative powers, as provided for by Legislative Decree No. 150 of 2011. They may:

• Evaluate documents already acquired, even if produced late (e.g., Police reports).
• Order ex officio the necessary means of proof to ascertain the truth of the facts.

The judgment rejected the appeal against the decision of the TRIBUNALE C. of 18/10/2023, confirming the legitimacy of the acquisition of Police reports by the justice of the peace, even beyond the deadline. This example highlights the prevalence of the search for truth over strict formality.

The Cassation's Headnote: Legal Balance

The headnote of the judgment summarizes the principle:

In matters of opposition to an administrative sanction, the burden of proving the constituent elements of the offense rests with the opposing administration, but its procedural inertia does not lead – notwithstanding Article 6, paragraph 10, letter b, of Legislative Decree No. 150 of 2011 and the analogous Article 7, paragraph 9, letter b – to the automatic finding of the transgression being unfounded, as the judge, called upon to reconstruct the entire sanctioning relationship and not merely to assess the lawfulness of the sanctioning measure, may remedy this by both evaluating the documents already acquired and ordering ex officio the means of proof deemed necessary. (In application of this principle, the SC rejected the appeal, deeming legitimate the acquisition by the justice of the peace of Police reports in support of the investigation reports and the penalty orders-injunctions already produced, even beyond the deadline provided for by paragraph 8 of Article 6 of the aforementioned legislative decree).

This key passage establishes a balance between the PA's evidentiary duty and the judge's active and "supplementary" role. Even in cases of PA negligence, the judge can seek material truth to ensure a decision based on a complete factual assessment, balancing administrative diligence and substantive justice.

Conclusions

Order No. 17041/2025 is a fundamental reference. It reinforces the PA's burden of proof and highlights the judge's investigative powers, aimed at substantive truth.

For the citizen, the PA's inertia does not guarantee an automatic victory, but the judge will evaluate all elements. For professionals, the ruling underscores the importance of a defense strategy that considers both the PA's evidentiary shortcomings and the judge's ex officio powers, promoting a fairer process.