The new formulation of art. 270 bis. Criminal code. seems to point out two demonstrative forms of subversive associations:
- associations which intend to use “armed struggle” to disrupt the constitutional and democratic system inside the Italian State, independent of the use of terrorist methods and of reaching terrorist goals, which can also be concurrent (so-called subversive movements);
- terrorist Associations whose objectives are to carry out acts of violence with exclusive terrorist finality, having the Italian State as its target (so-called domestic terrorism) or else foreign States, international bodies or institutions (so-called international terrorism).
The new international terrorist association, therefore, fills a void in the Law which has, for a long time, been put in evidence by the Supreme Court . With the precedent formulation of art. 270 bis. criminal code. the activities of clandestine organizations, operating, even partially, in the Italian territories but whose programme of armed violence was directed towards other nations, could not be prosecuted. To such cases in point, only the Regulation ex art. 416 criminal code. could be applied in cases where important criminal actions had been committed on Italian territory. For example: the receiving of stolen goods, forgery, complicity in clandestine immigration etc.
It should be said that in the same body of Art. 270 bis criminal code, prior to the Reform of 2001, no reference was made to terrorism (only one reference was made in the title), but only to “subversion”, and also in the applicative experience of the years in which frequent use of the Regulation was made (the 1980’s until the beginning of the 90’s) the major part of the prosecuted organizations aimed at subverting the democratic order of our country, uprooting the basic principles fixed in the Constitutional Charter.
In this connection, a sentence of the Supreme Court, intervening for the first time in the new law of 2001, has confirmed that people can be prosecuted for acts of international terrorism but not for subversion of a foreign state. According to the Supreme Court, “to terrorize the community by indiscriminate criminal actions”, constitutes a finality in terrorism, while what is meant by subversion is “ a more restricted goal to subvert the constitutional system and to overturn the pluralistic and democratic order of the State, disrupting the structure, impeding the functioning or deviating it from the fundamental principles”. The Judges of the Supreme Court held that with the recent law, it was intended to extend criminal liability only to associations with aims of international terrorism, but not to those which had subversive intentions towards a foreign state: as much for reasons of political opportunity as for motives of internal and international law. The subversion of the democratic system implies and presumes a pluralistic and democratic order of the state and no system could tolerate that the democratic spirit of their own social and institutional order be criticized or controlled by a foreign judge.
In the case in point, two Italian citizens were accused, together with others, of having constituted and organized an association with an end to subvert the constitutional order of some foreign states. To reach their objective, they recruited trained personnel in their own territory and obtained financing to prepare and carry out military actions programmed in Bermania and the Commodore Islands.
It must be clearly stressed that the Legislator did not proceed to identify the concept of terrorism, leaving to the interpreter the concrete identification of the type of conduct to prosecute as “terrorist activity”. The evident sociological and political content that the concept of terrorism conjures, requires a flexible application of the principle whereby no person can be punished for a deed which has not been expressly defined by the law, which could hardly satisfy the exigency to punish the more heterogeneous behaviour and 3/ yet, in certain ways, is unpredictable, just because the phenomenon has characteristics of newness which are not only juridical.
It is evident that the ample space left to interpretation could permit - in an initial phase of research for jurisprudential stability - also sentences which may appear to be in harsh contrast with the intention or spirit of the legislator, as much, however, can be deduced from the records of the parliamentary discussions on the same law. It cannot be ignored, in interpreting this law, that it was promulgated following the attack of 11th of September 2001, receiving, - thanks to the acceleration given to the events in those days - the solicitations from the many judicial operators (magistrates and judicial police) who, for some time, had, already, had to counteract episodes traceable to Islamic terrorism without, however, having the legislative instrument to punish such conduct “ad hoc”.
As in other experiences of judicial elaboration of concepts of a necessarily ‘open’ content , it is also possible to find sentences which do not correspond to what the majority of the operators expected, following the introduction of the Norm with the reform of Art. 270 bis.
An interesting pronouncement from the Judge for Preliminary Hearings (G.U.P.) of Milan of January 2005 also consents to the synthetic treatment of the problem relative to the juridical evaluation to be given to such behaviour, ascertaining also, that during recent investigations in our country, there existed individuals who organized the dispatch of entire combat groups to support the Iraqi army in the recent conflict of March 2003.
In the sentence, such behaviour is held to of no criminal importance, and so such behaviour would be exonerated by the definition of the crime - useful to the mere hermeneutic ends utilized by the judge – which may be inferred from the draft of convention on the Global Terrorism Act by the United Nations, whose work, which was initiated in 1999, has not yet found a conclusive solution, because it seems to be very difficult to come to an agreement on the definition of a ‘terrorist act’.
Synthetically, the debate is concerning itself with the following three possible definitions of ‘terrorism’:
- to spread terror throughout the population by violent and indiscriminate acts with no subversive target. ( exclusively for terrorist ends);
- to act with subversive ends, by means of violent acts which strike, for example, a person because of his social function or for what he represents in the institutions, without spreading terror ( exclusively for subversive ends.);
- to act with both objectives, when indiscriminate violence is finalized to undermine people’s confidence in the institutions and in the fundamental principles of the system (both terrorist and subversive ends).
At the U.N.O. it was then decided, in order to overcome the backlog of work, to call for a commission of experts, a (HIGH level panel) to arrive at a shared definition of a ‘terrorist act’.
According to the Panel, the definition of terrorism must be articulated around the following elements:
- the conduct contemplated by the 12 conventions against terrorism;
- the definition of a terrorist act as contained in the Resolution 1566 of the U.N. Security Council;
- the definition of terrorism contained in the Geneva conventions and protocols;
- any other act intended to cause death or serious injury to civilians or non-combatants, when the objective of such acts, whether for their nature or context, is that of intimidation of a population or to compel a government or an international organization to do or to omit something;
- the definition contained in the Convention against the financing of terrorism.

Today, the debate is still very much alive in the following points: the inclusion or not, in the definition of ‘acts of terrorism’, of the activities committed by Sovereign States Armed Forces; the relation between those same terrorist acts and the actions taken to affirm the right of self-determination of the people.
On the basis of a definition still in the elaborative phase, the Milan Judge for Preliminary Hearings (GUP ) has decided that the accused are not terrorists, but guerrilla fighters, as if they were part of a liberation movement of a territory actually occupied by an invading state or coalition.
The mere activity of adhesion to a war, with one’s own participation, is not, in itself, in my opinion, punishable according to Art. 270 bis of the criminal code. But if such conduct is demonstrated by Islamic Fundamentalist groups, already active in Italy and in the same context, and have conducted illegal activities necessary to the financing and material support of their association (fund raising from drug sales and the collection of forged documents) and have also recruited mujahiddins or kamikaze to send to Iraq, then I believe that also this specific conduct complies with the notion of international terrorism, punishable by Art. 270 bis. criminal code. The kamikaze methodology, in fact, is directed, without discrimination, at civilian targets or international organizations, (for example; the attacks on the Bagdad United Nations and Red Cross centres. Neither can it be maintained that the “sacred war” – their war – be automatically representative of interests in the liberation of a State where the same war - understood as support to an army of a former laic government as that of the Iraqi army of Saddam today, the Taliban Army in Afghanistan in the recent past, and in the Balkans before that - is carried out.
The different ethnic cultures of the members of these cells, strongly characterized by religious radicalism, leads one to exclude a co-representation in the asserted activity of resistance.
Also, the normative techniques are different from state to state. In Europe, a few states do not even have specific rules on the matter of terrorism and the terrorist acts are punished like common crimes; others have laws or specific judicial instruments in the matter of terrorism, where the terms “terrorism “ and “terrorist” are explicitly indicated, but without definitions. Such is the case of France, Germany and Italy (where there is reference to “subversion of the democratic system”), of Portugal, Spain and The United Kingdom.
In other cases, in order to indicate the phenomenon of terrorism or the terrorist objective, circumlocutions of various types are utilized. The French penal code refers to acts that gravely upset public order with intimidation or terror; the Portuguese penal code speaks of prejudice against national interests, of the alteration or subversion of the functioning of State Institutions, of coercion towards public authorities or intimidation of persons or the population. The Spanish penal code, in the same way as those of the French and Portuguese, makes allusion to the finality aimed for in subverting the constitutional system and to gravely upsetting the public peace.
The United Kingdom legislation on this matter, the Terrorism Act 2000, Is probably the one which faces the theme in a more extended and systematic way. Terrorism is defined as an action or a threatened action aimed at influencing the government or intimidating the population, or a part of it; as an action or a threatened action with the scope of promoting a political, religious or ideological cause. Such action must involve serious violence against a person, serious damage to property, or determine a serious risk to the health and security of the population or to part of the population.
On occasions of pronouncements such as the above mentioned, there are some who wish to re-open the debate on the necessity of specialization, not only in the Examining Magistracy, with the consequence of creating a possible “double track”, which today, represents an hypothesis “de iure condendo” which is disputed among the judicial operators ( the judge is specialised, but not special).
Also, for the reasons above mentioned, it appears that there is a real urgency for legislative activity at the European Community level which would aim at harmonizing the various legislations of the European Community countries in order to better combat this criminal phenomenon.
In fact, there is also diversity in the investigative options among the various legislations, which further enhance the difficulties in judicial co-operation. There is the case, as a mere example, of the relations of co-operation experienced with countries of Anglo-Saxon tradition, (Great Britain),where, thanks to the possibility of being able to arrest for terrorism on the basis of mere ‘suspicion’, the prevention strategy adopted by the police authorities, is to proceed with a series of ‘lighting operations’ with arrests which have, however, a time limit of 4 months, but within this period, unless the maximum terms for the arrest expire, the trial process must be commenced. Well, in these four months, since the investigators have, indeed, only “suspicions” in their hands, a frantic activity is launched, to acquire probative material (relative to the accusation of international terrorism) making rogatory letters to other judicial authorities or from police forces from other countries, in order to corroborate the accusations of terrorism. In the event that Italy is the country ’requested’ -- where, vice versa, the ‘investigative tradition’ in the matter of organized crime, is such that a long and thorough investigation is preferred before intervening with restrictive measures, and this in done to permit the widest possible knowledge of the criminal group and its activities and of the subjects affiliated with the organization -- then, it happens that it is not always possible to transmit information which is still covered by investigative secrecy and destined to be contested by the suspects before the English judge. Finally, it must be said that such cooperation is not cemented by the activity of exchanging judicial information, but rather, from the good will of the organizations in charge of this.



Exchange of information/evidence,
not only by rogatory letters and
their utilization.

In the course of the exchange of information and/or evidence through the rogatory instrument, a serious and recurring problem has immediately become evident, with extremely negative affects for judicial cooperation. In particular, it concerns the countries of an Anglo-Saxon cultural origin,(in this case USA, GB and CANADA) where, in fact, the greater part of the investigative activity takes place within the area defined as intelligence, which is distinct from the probative activity defined as evidence, not only for the institutional subjects in charge of these two activities, (normally, but not necessarily, The Secret Services for intelligence and The Judicial Police for evidence) but, above all, for their utilization in the Hearing phase or, even before, in the investigative phase.
One of the more frequent problems which are encountered in investigations into trans national organized criminality – not only regarding terrorism – is that of the exchange of evidence, relative to proceedings, to be acquired through rogatory means.
As is known, according to Articles. 723 – 729 of the Code of Criminal Procedure (c.p.p.), only the evidence that can have access to the Hearings dossier, can be utilized. The objects of a rogatory letter can be the means of evidence and the means of investigating for the evidence listed, respectively, in Chapters II and III of the Code of Criminal Procedure. The means of investigating for evidence are; inspections, searches, confiscations, acquisition of documents and the interception of communications and conversations. While the means of evidence are; the testimonies, examinations and cross-examinations, confrontations, identifications, judicial experiments and expert valuations. The object of a rogatory letter can also be any evidence, even if not expressly provided for by the Code of Criminal Procedure, which responds to the requisites indicated in Art. 189 c.p.p. Furthermore, the object of the rogatory letter can concern the transmission of material and documented evidence, as well as, even if not specifically stated, the cross examination report of a suspect or a defendant.
Well, limitations to the utilization of rogatory information and evidence obtained from abroad can only be provided for in conventions or international agreements. In the case of violation, however, the utilization of irregularly acquired information can be objected to in any state or level of the proceedings, (pursuant to Art. 729, co. 2nd, c.p.p.). Another facet of the same problem regards the applicability of the internal trial discipline on the question of the utilization of the information. Particularly, – without going over the jurisprudential evolution up to the present day – it can be said that according to our legal system, that also the evidence gathered abroad - if for same, a cross-examination is foreseen in the code of procedure - this evidence must be constituted assuring the Defence Counsel of the same rights provided for under the Italian Law.
The normative framework of reference being preliminarily established, a frequently posed problem concerns the declarations made by subjects detained abroad in the absence of a defence counsel, even if such declarations are regularly transmitted through the cooperation activity between police and, consequently conveyed by information reports, which are subsequently submitted to the Judicial Authorities where they are adequately verified.
The necessity of acquiring evidence from beyond the national borders according to formalities which permit the utilization of it for judicial ends, is mandatory in light of the new version of Art. 431, para.1, lett.f), c.p.p. In fact, to protect the defendants, reports of evidence obtained abroad through international rogatory letter are accepted in the hearing dossier, only if, “defence counsellors were put in a position to assist and to exercise their powers conferred on them by the Italian Law”. This, unless the evidence is not repeatable, which, in any case, can be acquired according to Art. 431, lett.d).
A recent case law tendency has also confirmed, in this regard, the absolute impossibility of utilizing ( also in the preliminary phase of investigation) that which has been acquired in the absence of the minimum legal requirements necessary to render such evidence valid, as set forth in the Italian Code of Criminal Procedure.
A further aspect of the same problem is that represented by the transmission of extremely useful information, (sometimes essential for the development and good outcome of the proceedings) utilizing the cooperation channels between the police forces, with precautionary requests for rigorous secrecy from the foreign police or foreign judicial authorities who send it.
Well, in these cases, the Italian Judicial Police has not been able to utilize the cooperation channels as an activity coming from a “foreign collateral body” and consequently, in the course of the proceedings, a great part of the potential utilization of that information has been lost. In fact, in those countries (France and England) where sections of the same police corps carry out different ontological activities - sometimes intelligence, sometimes judicial police – the transfusion of the results of the first activity into the ambit of the second is physiological, provided that the procedure of acquiring the information is never revealed, which means that to protect and safeguard the source of the information is more important than the necessity of obtaining results on the judicial level.
In such cases the judicial cooperation, obviously, comes to a halt and paradoxically, the truth revealed during proceedings does not manage to reflect even the least controversial historical truths.
Another problem that arises regarding relations between intelligence and evidence is that of the impossibility of receiving by rogatory letter, the results of an ‘information gathering activity’ made in a war zone by military intelligence, Even wanting to activate a rogatory procedure, it is extremely difficult to locate the place where the judicial authority of reference, to whom the request must be transmitted, originally existed. It happened –during the course of a recent Iraqi conflict – to have received news of the discovery of many documents, released by Italian municipalities (probably, but not necessarily, forged) in the hands of mujahiddin coming from Europe and arrested in Iraq. Fundamental evidence to demonstrate the utilization of documents recovered from terrorist cells in Europe, but the proof of the utilization of these documents can be given only after they have actually been used, and not before ( even if hundreds of telephone calls regarding these documents have been regularly intercepted).


Informers

It should be explained that with the Law 13.3.2001.No. 45, the rules relative to the protection and treatment of informers and state witnesses have been extended also to crimes of terrorism and subversion. As of today, the cooperation in this sector has been very rare, perhaps, also in consideration of the very light punishment inflicted to date. (Why cooperate?). However, the fear of being deported to their country of origin, after serving sentence, is strongly felt by the convicted criminal. For some of them, such circumstances could represent a stimulation to cooperate, provided they feel protected in our Country. It should be noted that the present rules do not permit the granting of benefits in our system, to whom, arrested in Italy, is discovered to be an ‘informative source’ for the investigative agents of other European countries (and the same also applies for a possible case of ‘exemption from criminal liability’ if the subject is an undercover agent for another country).
Still in the area of difficulties, one problem which is often experienced in the co-operation among the Judiciary Authorities of several European Countries, is a sort of resistance, in the managing of the rare state witnesses, “to share” the valuable information of these co-operators; in the sense that it is permitted to interrogate only after the trial hearings, in which the witnesses must testify, are concluded. This, in order to avoid introducing possible elements of disturbance in the already difficult management of these subjects. The problem, obviously, lies in the fact that to wait years before the conclusion of the hearings does not permit a counteraction to this phenomenon of trans-national criminality, adequate to the gravity and danger of same. In this way, important opportunities for repressive intervention which could really affect the structure of the trans-national terrorist associations, are lost.


The problem of internal
coordination

The recent legislative reform December, 2001, has partially reorganized the jurisdiction in relation to the above mentioned crimes, assigning them to the Office of Public Prosecutor of the main town where there is local Public Prosecutor’s Office, with the ensuing jurisdiction of the “District G.I.P.” (Preliminary Investigations Judge). However, the powers of coordination and initiative have not been attributed to the National Direction of the Anti-Mafia, (foreseen exclusively for crimes referred to in paragraph 3 bis of Art. 51 Code of Criminal Procedure) since such powers still fall within the jurisdiction of the General Public Prosecutor’s Offices in the individual Courts of Appeal (Art. 118 bis. Implementing provisions c.p.p. ). The following problems, have, in part, remained unresolved: the problems of ‘loyal competition’ in the case of investigations of a trans-national nature and in which the members of the association are present in various regions of the Italian territory. Obviously, this has complicated, and continues to render more difficult, the investigative activity in a sector where it is no longer possible to tolerate under-estimations or useless investigative impediments. Therefore, it appears imperative to attribute powers of coordination to a central body; that of the DNA (adequately reinforced) and, in particular, to a specialized section of the same, using the structure and the logistics (for instance, the data bank), which already exists – also, in order not to interfere with the important coordination activities in ‘mafia’ matters. This would permit the achievement of the target in a much shorter time, compared to that necessary for the creation of a National Power of Attorney for Anti-Terrorism, for which funds and resources would be necessary to give it adequate logistics for its effective operation.


Undercover activities

The Art 4 of law N° 438/2001 has introduced undercover operations for crimes committed for terrorist ends, with the aim of acquiring elements of evidence, (this type of investigative instrument is already contemplated under Italian Law for the purchase of narcotics, money laundering, arms trafficking, infant pornography). Among the new measures, it is certainly worth mentioning the reference to “indirectly, by means of a third party “,to whom a special cause for exemption from punishment may be extended . In fact, it provides that any Judicial Police Officers who either directly or indirectly “through a third party purchase, receive, substitute or hide money, arms, documents, narcotics, assets or things which are the object, product, profit or the means to commit a crime or, otherwise, hinder the identification of their origin or permit the use, shall be exempt from criminal liability. Furthermore, the infiltrated officer may also act “indirectly, by means of a third party” thereby involving, third parties who are not part of the Judicial Police Force.
It is, in this way, that the employment as infiltrators of Judiciary Police auxiliaries is foreseen; for the most part, skilled in particular and specialized technical training.
It is foreseen that the Public Prosecutor, without delay and during the course of the operations, shall be kept informed of the structure of the operation itself and about the subjects who have participated and their results; the legislator has thus intended to stress that the Public Prosecutor must be constantly informed of the developments of the operations, from the beginning to the conclusion. The Public Prosecutor can also request, for necessities related to the investigation, the names of the officers of the Judicial Police who are infiltrators, together with the names of the auxiliary persons employed.
Furthermore, the Public Prosecutor must evaluate whether or not, the behaviour of the infiltrated agent and of his auxiliaries are in compliance with the premises of Art. 4 ( which saves the application of art 51 c.p.) and, therefore, is exempt from criminal liability, even if crimes are committed.
Obviously, the use of false personal details and false identity cards, during the undercover activity, is foreseen.

However, it is not foreseen that the above officers and agents keep their true identity a secret, using their undercover identity in subsequent moments after the end of the operation, hopefully, until the trial, with the advantages to their investigative bodies who could employ them in other operations. Above all, with great advantage to the agents’ personal safety.
This regulation is evidently one of the reasons for scarce application until today, together with the objective difficulty of finding suitable subjects to infiltrate in sectors like those of Islamic terrorism, characterized by reciprocal mistrust between members of the same group.


Lack of interpreters

One of the unresolved problems in the past two years, following the investigative escalation caused by the 11 September events in the specific sector of the Islamic terrorism, is that of the chronic shortage of interpreters. One of the main reasons is the fear of reprisals for cooperation given to the Police Forces. To solve this serious problem, it does not appear ‘peculiar’ to propose concrete forms of guarantees for the anonymity of these “consultants” of the Public Prosecutor, other than a ‘revisit’ to the professional fees, only for determinate investigative sectors.


Conclusions

The recent attacks by Islamic terrorism and of organized criminality underline the necessity and urgency to create new instruments for investigations at an international level.
The paths followed to date, of the judicial cooperation and police assistance in criminal matters, in order to reach the objective of the creation of a common juridical space, have not yielded the desired results in terms of efficiency and the speed of action necessary to counteract the grave forms of international criminality.
After the recent and extremely serious facts of international terrorism, it becomes absolutely essential to choose more rapid and efficient ways at a European level, to face such disquieting forms of criminality.
Consequently, the new initiatives of cooperation which aim to reach a more efficient prevention are indicated in the following:
With the adoption of Law 15, December, 2001, No.438, as well as, the adoption of the Law 27, November, 2001,No. 415 (bearing provisions of sanctions for the violations of the measures adopted towards Afghan factions of the “Taliban”), Italy has accepted the recommendations of the European Council and has conformed with its conclusions.
The Council ‘Justice and Internal affairs, Civil Protection’, in its sitting of 20th September, 2001, took initiatives “ to adopt the necessary measures to maintain the highest possible security levels, as well as, all the appropriate provisions to fight terrorism”, soliciting a better utilization of the cooperation instruments which are available within the European Union, today: which are, the Convention of the 29th of May 2000 regarding judiciary assistance in criminal matters, the Institution of Europol in 1995, staffed with specialists in the fight against terrorism (and within the organization, an interstate body of Chiefs of Police), the institution of Eurojust, which became finalized in 2002. Both Europol and Eurojust have been urged to establish informal cooperation with the United States, while waiting for the conclusion of a formal agreement which had its first formalization in June, 2003, ( in particular, an exchange of liaison officers between Europol and the American agencies active in the police sector, while Eurojust had the unofficial participation of the USA representative in Eurojust in work meetings regarding Islamic terrorism.
With regard to the immediate future - of interest, there appears to be the foreseen creation of investigative squads comprised of magistrates and police officials ( in this regard, it can be said that, as of to day, the only project which has realized any squads at all, is that made up of representatives of the Powers of Attorney of Milan and Rome, together with their corresponding colleagues of Madrid and Athens – within Eurojust – during the 11/Spanish presidency, in the Spring of 2002, at the time of investigations into a subversive anarchic- insurrectional group which was active in the three countries). Also, on the matter of extradition, after the 1995 and 1996 conventions, between the State members, we must remember the objective to substitute extradition with a procedure of ‘handing-over’ the authors of the terrorist attacks, based on a European warrant of arrest. In order to achieve such a goal, however, a prerequisite appears to be the reaching of an agreement on the definition of terrorism.
The joint action of 22 April 1996, must also be mentioned, for the exchange between member States of “liaison magistrates” who have functions in the areas of judiciary assistance, extraditions and information circulation. Subsequently, with a common resolution of the 29th of June 1998, a “ European Judiciary Network” was set up, comprised of a series of contact points intended to guarantee the exchange of information and statistic data among the respective judiciary systems, with the perspective of improving the preparation of the applications for cooperation and their material execution.
But, obviously, real cooperation usually comes from the person who actually gives it – not always though - even recently, it has been possible to appreciate an improvement in ‘approach’ in this matter, by the operators (magistrates and police officials) who are still strongly conditioned by their training; where the territorial boundary, among other things, also signifies the cessation of their cooperation beyond it - and a natural tendency arises to keep for themselves, their information, techniques and investigative methods and safeguard them from outsiders.
Still now it often happens that cooperation works only when there is reciprocal interest among member States towards one particular investigation. while it does not work when there is a request by a member State which is interested in a ‘unilateral’ investigative result; that is, a result which is not necessarily of interest to the state who receives the request.
All this, together with the traditional difficulty of the States to renounce their own exclusive sovereignty in the administration of criminal justice, represents an aspect of weakness which, in the fight against global terrorism, we can no longer afford.