This is an abstract by the editorial office of the two decisions by the Constitutional Court regarding a case of "state secrecy upholding"
The two complete texts are published in N. 10/98 e N. 12/98.



As regards the Intelligence officers' modus operandi and the issue of State secrecy, as well as relations with the Judicial Authority, we would like to outline a case - highlighted by the press - whose developments offered the opportunity for an in-depth study of the State secrecy issue, especially the basis and the procedure for its "upholding".
The case concerns criminal proceedings before the Public Prosecutor's Office to the Bologna Court against some members of the Service and of the State Police charged with alleged complicity in the following offenses committed during a counter-terrorism operation in 1991: unlawful break-in (Criminal Code, art. 614), bugging and wire tapping (Criminal Code, art. 617 bis).
During the development of the criminal proceedings, in compliance with current procedures, the existence of a State secret was declared in two instances: firstly, by SISDE's officers during questioning conducted by the prosecutor about the modus operandi used in the above counter-terrorism operation; and then, by the Service's Director General regarding Judicial Authority's warrant for the submission of documents concerning operational and technical details of the case.
Later, the Prime Minister confirmed this "upholding" of State secrecy calling upon art. 12 of law 801/1977. The Parliamentary Committee for the Intelligence and Security Services, empowered by art. 16 of the above law, unanimously considered it founded.
The Judicial Authority's continuous investigation to acquire information on circumstances covered by State secrecy - secrecy "upheld" and confirmed by the Prime Minister - resulted in a clash of competences between State powers. The Prime Minister brought this case before the Constitutional Court versus the Public Prosecutor's Office to the Bologna Court.
This appeal was forwarded because the Public Prosecutor's Office in Bologna ignored the fact that State secrecy had been confirmed and tried successfully to obtain the information, which had been covered by secrecy for national security reasons (names of Service's employees and "modus operandi") thinking that, even though the secrecy had been "upheld" by a single subject, the public prosecutor was allowed to conduct "aliunde" a research of circumstantial evidence relevant to the offence. Therefore, the actions of the Public prosecutor's Office in bologna seemed to undermine the Prime Minister's powers, particularly as regards his power to forbid disclosure of information that could be detrimental to the Democratic State's security in accordance with a jurisprudential interpretation urderlining the objective nature of the State secrecy, which should not be ignored.
The Court accepted the claim by decision pronounced on April 9-10, 1998, reasserting principles mentioned in its previous decision n. 86 pronounced in 1977 concerning grounds and limitations of the secrecy "upholding", for national and international security reasons, by Executive powers against the Judicial Authority. According to these principles, secrecy is legitimate when there is the need to safeguard the Nation's highest interests (national security, State's integrity and democracy), which are the community's fundamental and insuppressible interests, as well as absolutely preeminent because they affect the Nation's very existence.
In particular, the Court recognized that State secrecy confirmed by the Prime Minister prevents Judicial Authority from acquiring and using information and evidence covered by secrecy (but it does not prevent the Public Prosecutor from investigating crimes as by notitia criminis in his possession, and from promoting the criminal action).
This veto concerns both the direct use of acts and documents covered by secrecy - that is, they cannot be used as grounds for criminal action - and their indirect use as a starting point for further investigations, whose results would also be tainted by the illegitimacy of their origin.
Reading this decision one becomes aware of the importance of stating categorically that the "upholding" of secrecy relates to the actual "information", and not to the person possessing the classified information.
Consequently, further investigation could not be considered legal.
The Constitutional Court has called for a new comprehensive law regulating the secrecy issue, so as to avoid future contrasting interpretations.
Following developments of the Judicial Authority's investigation, further proceedings for clash of competences between State powers was brought before the Constitutional Court, whose decision was pronounced on December 16, 1998.
With this decision the Court reasserted principles mentioned in its previous decision, recognizing that State secrecy prevents Judicial Authority from acquiring and using information and evidence covered by secrecy.
With decision n. 110, pronounced on 10.4.1998, the Constitutional Court accepted the Prime Minister's first claim of 25.11.1997, on the basis of the following considerations.
According to the Constitutional Court, principles - stated in decisions pronounced before the coming into force of law n. 801 of 1977, on the grounds and limits of the "upholding" of State secrecy, for national and international State security reasons, by executive bodies to the Judicial Authority - should be complied with.
As for the decision n. 86 of 1977, the "upholding" of State secrecy is legitimate only when fundamental State interests must be protected.
With regards to the power of blocking the Judiciary's Constitution-guaranteed authority, the above mentioned Constitutional Court's decision stated that national security is a community's inalienable and fundamental interest, relevant to the very existence of the State.
The Constitutional Court underlined that, since the Government's authority is not boundless, the main foundations for the "upholding" of secrecy should be set out. Moreover, secrecy should never be "upheld" to hinder investigations on facts that could jeopardize the constitutional order. Finally, the Constitutional Court stressed the Parliament's central role in this field in order to exert a political control on the safeguarding of secrecy.
Following decision n. 86 of 1977, the Parliament approved law n. 801 of 1977 regulating the State secrecy issue. However, this was not a complete reform, as stated in art. 18 that defers to a further exhaustive law on the matter, which is still desirable.
Even though some uncertainties as for the extent of secrecy emerged, according to art. 12 of law n. 801 and to articles 202 and 256 of the Code of Criminal Procedure, the judge could declare that he cannot proceed if he believes that the "upholding" of secrecy concerns elements essential to the proceedings.
With the complaint of the proceedings in question, the claimant asked the Constitutional Court to declare that the Public Prosecutor, after taking note of the "upholding" and confirmation of State secrecy, is not entitled to investigate on those facts covered by secrecy.
The Constitutional Court does not agree with the Legal Bar's theory stating that the "upholding" of secrecy would prevent the Judicial Authority from knowing facts covered by secrecy and the Public Prosecutor from investigating, even though the investigation is based on information acquired in another manner. In fact, this definition would alter the balance between the Executive power and the Judicial Authority in this field. At the same time, the Constitutional Court cannot replace the legislator, evaluating and balancing constitutional aspects concerning the needs to for safeguard secrecy and the importance of circumstantial evidence in such cases.
Therefore, according to these principles and to the current normative framework, the Intelligence Services do not benefit from basic immunity, and the "upholding" of State secrecy by the Prime Minister does not prevent the Public Prosecutor from investigating on criminal offences the "notitia criminis" in his possession refers to, and if necessary from promoting a criminal suit. In this case, the "upholding" of secrecy only prevents the Judicial Authority from acquiring and using directly or indirectly information and evidence covered by secrecy.
This is the rule of law, still relations between the Government and the Judicial Authority should be based on fairness and respect of their respective competences. In this framework, the Judicial Authority could not, for instance, circumvent surreptitiously the secrecy "upheld" by the Prime Minister, forwarding to other bodies requests for submission of documents known to be covered by secrecy.
The specific attitude of the Public Prosecutor to the Bologna Court does not appear fair because, although he knew about the "upholding" of secrecy, he did not take it into account when he asked the Chief of the Bologna Police to submit documents concerning past investigations carried out by the Police and the Intelligence Services.
Therefore, the Prime Minister's constitutional competences have been infringed upon, not only to obtain documents and information, but also for the ensuing investigation conducted using them.
On the other hand, if the Public Prosecutor obtains evidence from another source indipendently on the documents covered by secrecy, he will be allowed to proceed.
In that case, the final decision is up to the judge to whom the Public Prosecutor addresses his request. He will decide if the latter should not proceed because State secrecy has been "upheld" preventing him from obtaining and using essential evidence.
In the case in question, it appears that acts covered by secrecy were obtained and used, and they also were the base for further investigations and for the request for trial committal submitted by the Bologna Public Prosecutor on November 19, 1997. From this point of view, the Constitutional Court admitted the claimant's request and stated that the results of the investigation, obtained using evidence covered by secrecy, and the consequent request for trial committal should be invalidated.
For all these reasons, the Constitutional Court has declared that the Bologna Public Prosecutor to the Bologna Court is not allowed to acquire and use, directly or indirectly, documents covered by State secrecy, legitimately "upheld" and confirmed by the Prime Minister, nor can the Public Prosecutor investigate in order to bring a suit on the grounds of evidence covered by State secrecy. Therefore, the Constitutional Court declared void the results of the investigation carried out in these circumstances and the consequent request for committal for trial.
On May 5, 1998 the Public Prosecutor to the Bologna Court forwarded a second request for committal for trial, and the Prime Minister contested it again on July 10, 1998, raising before the Constitutional Court a second clash of competences among State powers. The examination of that request forwarded by the Bologna Public Prosecutor's Office revealed that it promoted again a criminal suit without indicating circumstantial evidence different from acts and documents covered by secrecy it already possessed, and using new investigation results aimed at obtaining lawfully new evidence.
The only difference that may be found between the two requests for committal for trial is that in the second request the Bologna Police did not mention the documents it acquired. Indeed, by Decision n. 110 of 10.4.1998, the Constitutional Court again recognized as illegitimate the request for documents submission forwarded to the Chief of the Bologna Police - because the documents concerning the Police and the Intelligence Services' activity were covered by secrecy already opposed to the investigating magistrates of the Rome Public Prosecutor's Office - as well as the ensuing investigations carried out using such information as grounds for the first request for committal for trial.
Therefore, by decision n. 410 of 16.12.1998, the Constitutional Court stated that the use of documents by the Public Prosecutor to the Bologna Court aimed at justifying the new and almost identical request for committal for trial is clearly illegitimate. The Constitutional Court declared the Public Prosecutor's second request for committal for trial invalid because of the use of documents unlawfully obatined, making the new request for committal for trial detrimental to the Prime Minister's competences on the safeguarding of State secrecy. Consequently, the Constitutional Court accepted the Prime Minister's second claim.