a. The facts
In September 1991, following a series of terrorist attacks carried out by a foreign terrorist group on the Italian territory against targets connected to the country concerned, SISDe together with the State Police performed intelligence and surveillance activities on a national from that country.
In January 1997, after the Public Prosecutor of Rome received the documents on the operation, two Police and one SISDe officers were indicted for illegal entrance (into another's dwelling) and illegal interceptions of communications (articles 110, 614 and 617 bis of the Criminal Code).
During preliminary investigations by the Public Prosecutor of Rome, State secrecy was upheld on two occasions: by the officer from SISDe during questioning and then by the Director of SISDe after he received an order for the submission of documents before the Judicial Authority.
The Prime Minister, called upon by the Judicial Authority, confirmed both instances of secrecy.
In particular, State secrecy was confirmed in order not to disclose the Service's modus operandi nor the identity of the operators involved, and also in order to protect the Service's reputation within the international context.
The Oversight Parliamentary Committee on the Intelligence and Security Services was of a similar opinion and deemed the confirmation of State secrecy by the Prime Minister fully justified.
After the Public Prosecutor of Rome had stated his lack of territorial jurisdiction, all the records were transmitted to the Public Prosecutor of Bologna, who was well aware of the secrecy claims and of the ensuing confirmation by the Prime Minister. He nevertheless started investigations, issuing the Questura of Bologna (local Police Headquarters) with an order to submit documents. The Questura abode by the request but underlined, at the same time, that the records transmitted were covered by secrecy.
The Public Prosecutor of Bologna continued nevertheless in his investigations in particular on those agents who had partecipated in the anti-terrorist operation, gathering further evidence on specific circumstances also covered by State secrecy. Among them the name of another SISDe employee, found in the records submitted by the Questura of Bologna.
At that point the Prime Minister, upon deliberation by the Council of Ministers on a proposal by the Minister of the Interior, gave mandate to the Avvocatura Generale dello Stato (Body of State Lawyers) to raise a conflict of competences before the Constitutional Court.
b. The first conflict: the two theses and the judgment
The State Lawyer in his introductory claim outlined that the Prime Minister is entrusted by the Constitution with the task of protecting State security through the upholding of State secrecy. This constitutional function had instead been infringed upon by the investigative activities carried out by the Public Prosecutor in Bologna with the aim of ascertaining facts and gathering information covered by secrecy, in order to start criminal proceedings already precluded for the existence of a State secret. It is significant to underline at this point that in the Italian system the starting of criminal proceedings by the public prosecutor is a judicial activity.
The Public Prosecutor of Bologna, entering the proceedings, responded that State secrecy limits the exercise of the judicial function only by precluding the use of an element of documentary or testimonial evidence. The prohibition to testify on matters covered by State secrecy or to submit records or documents covered by the same would therefore be a procedural prerogative not to comply with a legal duty, provided to a precisely listed group of individuals (public officials, persons entrusted with a public function and civil servants). The prohibition, in view of its subjective nature, would only apply ope exceptionis. The judge would therefore be able to make use of information however obtained, even if covered by State secrecy.
The defence of the Prime Minister was instead of the opinion that refraining from testifying on matters covered by State secrecy is not a prerogative, but rather a legal duty and that secrecy applies neither to the form of the information nor to the method used to obtain it, but to the information itself, to its content of knowledge, objectively considered, whatever form it may take (memories, documents, facts etc.). This is clearly indicated in the "overdetailed" phrase adopted by the legislator in sec. 12 of
law 24.10.1977, n. 801: "proceedings, documents, information, activities and any matter whose disclosure is apt to jeopardize the integrity of the democratic State ... are covered by State secrecy". This is clearly the same as saying "any source of information".
The defence of the Prime Minister deemed that this was confirmed by the principle of "secrecy as a means to an end", linking the scope and the extent of secrecy to the value it has to protect by law. In this respect it also added that:
"Criminal proceedings are, by their very nature, testing grounds for the relationship between transparency and secrecy. In criminal proceedings the path towards the truth must find as few obstacles as possible, in such proceedings the rule of ‘secrecy as a means to an end' must be enforced with utmost rigour. This rule entails that the ‘differentiation' from general cases is legitimate only when secrecy is necessary to protect interests provided for by law.
As a matter of fact the restrictions to be applied to evidence in criminal proceedings in relation to secrecy may fall into different categories, depending on whether they are referred to the methods used to obtain the information, to the person whose testimony is the source of evidence or to the information itself, as thema probandum.
A typical example of the first category can be found in the provisions on the interception of communications. A typical example of the second is secrecy applied to professionals or clergymen. An example of the third is State secrecy.
Whether, how and to what extent the evidence obtained violating secrecy in the first two categories might be used within criminal proceedings it is not relevant here.
To the purpose of the present judgment it is necessary to establish whether information covered by secrecy, in the various cases mentioned above, could be legitimately obtained from different sources. The answer appears obviously easy when considering the values secrecy is in the various cases called upon to protect.
In the first instance (interception of communications) the value to be protected is a fundamental right of the individual which cannot be limited unless appropriate guarantees and conditions are ensured. The breach stems from the way in which the information is obtained and not from the acquisition per se. So, in this case we cannot but be in agreement. Imagine, for example an individual whose communications have been unlawfully intercepted and who, having recorded the telephone conversation, has the tape lawfully taken away by the law enforcement authorities.
The same holds good for the second instance (professional secret) where the value to be protected by secrecy is a confidential relationship between individuals. The confidentiality is essential for professions which provide a service of public utility like the medical or the legal profession, and even more so when at stake is the free exercise of one's own religious belief. It is clear how in this case too, secrecy does not cover the piece of information but rather the way it has been obtained from a third party. No conscience will feel disturbed if testimony is provided by a third party having accidentally learnt a piece of information a professional or a clergyman were being entrusted with. The key circumstance as to secrecy is that the information cannot be obtained directly from the professional or from the clergyman.
The same cannot be held valid for State secrecy. In fact the values protected by this special differential regime are the integrity and the security of the democratic State, which would be undermined by the disclosure of certain information. Criminal proceedings would ex se entail such disclosure.
In this particular case it is neither the source nor the way the information has been obtained to be the objects of secrecy, but the information per se as thema probandum."
With
judgment n. 110 of 26.6.98 the Constitutional Court, even though it did not fully agree with the State Lawyers (the information even when secret could be known and evaluated if obtained autonomously), agreed with the claim and invalidated the Public Prosecutor's investigations, quashing the ensuing application for committal for trial. Further, the Court confirmed the principle by which secrecy entails a limitation to the judicial function. Here follows the most significant part of the grounds for the judgment:
"On the basis of these principles and of the fact that current legislation does not provide for immunity from prosecution for Intelligence Services operators, the upholding of State secrecy by the Prime Minister is not meant to prevent the Public Prosecutor from investigating crimes as referred to in a notitia criminis and, where needed, from starting criminal proceedings, it is rather meant to prevent the judicial authorities from obtaining and then using knowledge and evidence covered by secrecy.
This forbids using secret records and documents either directly as a starting point for criminal proceedings, or indirectly as an input for further investigations. In those two cases, the results possibly stemming from these investigations would be illegitimate and ruled nul and void by way of their origin".
c. The second conflict: the two theses and the judgment
Following the above-mentioned judgment, the Public Prosecutor in Bologna, upon receiving back the records from the Preliminary Investigation Judge, applied again for committal for trial, just eliminating from this application reference to documents provided by the Questura of Bologna and covered by State secrecy. He nevertheless enclosed in the application the very documents covered by secrecy, in practice disclosing them.
A new conflict of competences was then raised before the Constitutional Court.
The State Lawyers deemed that in compliance with the previous judgment by the Court, the Public Prosecutor should have examined all the records relevant to the case but he should have removed and returned to the legitimate holders all of those covered by secrecy; he should have eliminated those stemming from sources of evidence covered by secrecy (i.e. questioning of defendants charged on the basis of elements contained in secret documents); and he should have started ex novo using autonomous sources of evidence not covered by secrecy, if such sources existed and were sufficient to justify the carrying out of further investigations.
"As a matter of fact - this is the exact wording of the claim - in this particular case, in view of the nature of the sources of evidence and the secrecy uhpheld, it appears that autonomous indicting elements do not exist. Secrecy in this particular case directly or indirectly entails that the court action cannot be proceeded by the judicial authority".
The Bologna Public Prosecutor on the contrary stated that he had submitted all of the documents to comply with a legal duty and that the elements of evidence had been obtained through autonomous investigations, carried out in parallel to those aimed at acquiring the secret documents.
With
judgment n. 410 of 16.12.98 the Constitutional Court quashed the application for committal for trial, being of the opinion that such an application was directly or indirectly founded on elements of evidence obtained in breach of State secrecy.
d. The third conflict and the uncostitutionality claim
The Public Prosecutor in Bologna then submitted to the Preliminary Investigation Judge an application to close the case enclosing once again all the - secret! - documents like in the two previous applications for committal for trial.
Here follow the conclusions of this application:
"Unfortunately the Constitutional Court does not clearly indicate which documents from the Questura of Bologna were used in the second application for committal for trial and this makes their removal from the new application impossible.
In such a situation the Public Prosecutor deems to be obliged to close the case without understanding the legal grounds for the judgment by the Constitutional Court and therefore without being able to agree with them".
Upon receiving this application the Preliminary Investigation Judge fixed a hearing in compliance with art. 409, II para. c.p.c. to decide whether to carry out further investigations or to issue an "imputazione coatta".
The Avvocatura Generale dello Stato, upon mandate by the Prime Minister and after deliberation by the Council itself, raised two new conflicts before the Constitutional Court, against the Public Prosecutor and against the Preliminary Investigation Judge.
The following remarks were put forth against the first:
"The Public Prosecutor in Bologna, instead of returning the secret documents to the legitimate holders and requesting the closure of the action on grounds of loyal co-operation with the Constitutional Court, the Executive and the Preliminary Investigation Judge, has again acted in breach of State secrecy and has undermined the powers of the Prime Minister in this particular domain.
The decision by the Prosecutor to make available to the judge the secret documents is on the one hand in contrast with what the Constitutional Court set out in judgments n. 110 and 410 of 1998 and, on the other hand has caused the Preliminary Investigation Judge to decide on the above mentioned application for closure of the case on the basis of documents of which he should have no knowledge.
Further, it should be noted that the Public Prosecutor in its application to close the case states its inability to understand the grounds for judgment n. 410/98 by the Constitutional Court and, while recognizing the elimination of the non usable documents to be practically impossible in the same way as the application for committal for trial for the defendants, on the other hand, without any justification whatsoever forwards to the Preliminary Investigation Judge the entire bulk of documents in order to request the closure of the case due to the existence of a State secret. The Public Prosecutor appears therefore to have acted in an ambiguous and contradictory manner, so as to convince the judge of the need for further investigations or for a "compulsory indictment".
In any case, the Public Prosecutor has made available for the third time in a public hearing all of the secret documents, in particular they were made available to the ‘damaged party' which in this case is alleged to be a dangerous foreign terrorist".
As far as the Judge's decision to fix the hearing was concerned, it was underlined that the decision by the Preliminary Investigation Judge had violated the Executive's powers regarding State secrecy in so much as:
- the decision was reached using secret documents of which the Preliminary Investigation Judge should have had no knowledge;
- it made these documents publicly available, in particular to the "damaged party" (allegedly a very dangerous foreign terrorist);
- it led to two possible judicial developments - further investigations or a compulsory indictment - already precluded by secrecy which had already rendered all of the previous investigations nul and void.
After the hearing, the Preliminary Investigation Judge in Bologna raised a claim of uncostitutionality of art. 256 of the Criminal Procedure Code (which excludes from testimony information covered by State secrecy) "as far as it allows the upholding of State secrecy also in relation to documents which are not secret anymore because inserted in the trial file" for violating the constitutional principles of reasonableness, of independence of the judge and of the obligation to start criminal proceedings in presence of a notitia criminis.
For obvious reasons I refrain from commenting on the last three judgments now pending before the Constitutional Court.
Still I feel justified to try and seek the underlying reasons for this singular dispute between Judiciary and Executive which has obviously touched on a sore point of the first.
The reason, in my opinion, lays in the fact that the upholding of State secrecy might entail a limitation of the judicial function, and this emerges clearly from the Public Prosecutor's statements.
Examining the issue carefully it is possible to see the consequences of ancient disputes between the Executive and the Judiciary powers, starting when both emerged 200 years ago with "fluid borders" from the all-encompassing power of the absolute Sovereign.
It is well known that at least in Continental Europe it took the Judiciary decades before it was able to check on the Executive and traces of this latter's old supremacy still pollute (or have polluted till recently) some systems, even in today's advanced democracies, and above all when secrecy is involved. This is a domain where the traditional requirements of the "raison d'état" appear to take longer to die away.
It is sufficient to consider the "Crown Privilege" in the United Kingdom, until 1968
(3) , and also the "acts of State" and the "political questions" in the USA.
(4)
Within the Italian system, undoubtedly, State secrecy (before termed political-military secret) was, up until judgement n. 86 of 24.5.77 of the Constitutional Court, an adequate means to restrict the power of the Judiciary totally in the hands of the Executive. This (for obvious reasons) was not in compliance with the constitutional republican system.
After the above-mentioned judgment and following the
reform of the Intelligence Services' legislation in 1977 (direct consequence of such judgment) and after the coming into force of the new criminal proceeding code, where the said legislation is applied, the Judiciary's concern over the need to defend itself in order not to be superseded by the Executive has lost its raison d'être.
The interests State secrecy has to protect in today's legal framework, e.g. the integrity and the security of the democratic State, refer to the State as community not to the State as subject, and are therefore clearly distinguished from the interests of the Government and of its supporting political parties.
Similarly, the Prime Minister as supreme political authority has jurisdiction to confirm definitely the upholding of State secrecy. This confirmation is a typically political act, therefore free in purpose, and which has the same rank as an Act of Parliament subjected to the political oversight of the Parliament. The latter exercises this oversight activity on the basis of the grounds the Prime Minister has the duty to supply Parliament with (as to sec.16 L.801/77). From these grounds the object of secrecy and the essential reasons for its upholding must be drawn.
It should therefore be neither strange nor shocking that the upholding of State secrecy becomes "a barrier for the exercise of the judicial power" (a phrase used by the Constitutional Court in the already mentioned judgment 86/77, par. 8), in view of the fact that such a "barrier" originates from a source which has the same rank as an Act of Parliament. In this way the supreme values of the integrity and security of the democratic State take precedence over other constitutionally-guaranteed values such as the exercise of jurisdiction, of course the right to legal representation, the freedom of expression and the right to information.
Anyhow, the principle that when an Executive's decision reaches the political level it represents a limit for the Judicial Power, is a very ancient one ruled in the Administrative Courts all over Continental Europe (see for instance sec. 31 T.U. on the Consiglio di Stato 26.6.24 n. 1054). And this is a domain of justice which for obvious reasons is particular sensitive to the need to regulate the limits between State powers.