PROSECUTOR IN BERLUSCONI TRIAL CALLS LAW

UNCLAS ROME 002949

SIPDIS


SENSITIVE

E.O. 12958: N/A
TAGS: PGOV IT
SUBJECT: PROSECUTOR IN BERLUSCONI TRIAL CALLS LAW
SUSPENDING CASES UNCONSTITUTIONAL

REF: A) ROME 2799 B) ROME 2529

SENSITIVE BUT UNCLASSIFIED; NOT FOR INTERNET DISTRIBUTION.


1. (U) SUMMARY: Prime Minister Berlusconi's judicial
bribery case is on hold for the immediate future. As
expected, the prosecuting magistrates in the case used a
scheduled June 25 hearing to charge that the law suspending
the trial is unconstitutional. The court will decide on
June 30 whether to accept prosecution arguments and seek a
review by the Constitutional Court. Whether it does or
does not seek the review, the case will be suspended,
likely long enough to allow Parliament to pass a
constitutional amendment with similar provisions to the
current law. END SUMMARY.


2. (U) Prime Minister Berlusconi did not appear at the
scheduled June 25 hearing in the "SME" judicial bribery
case against him. His attorneys requested a suspension on
the basis of the newly-passed law precluding trials against
the five highest Italian officials while in office (refs
and previous). President Ciampi signed the legislation,
which became effective on June 22. The Greens and
Communist parties have begun an initiative to bring a
referendum to repeal the law, but this would be a lengthy
process. A referendum could not be scheduled before next
spring, at the earliest.


3. (U) Also as expected, Ilda Boccasini and Gherardo
Colombo, the prosecuting magistrates in the case,
criticized Berlusconi for failing to appear at the hearing
and requested a constitutional review of the law. Colombo
argued that the law is unconstitutional because:
-- all citizens are equal before the law; high
constitutional figures should not be treated differently
where non-political crimes are concerned;

-- trials should not be "unduly" long;

-- magistrates are obliged under the Italian constitution
to pursue any offense brought before them (COMMENT: Which
has the practical effect of allowing the judiciary -- not
the Justice Ministry or the government -- to set
investigative and prosecutorial priorities. END COMMENT.);
and

-- Italian legal principle states that the work of the
magistracy should not be impeded.

Colombo also asserted that the law violated the European
Convention on Human Rights and should have been a
constitutional amendment, not an ordinary law.


4. (U) The Milan tribunal will reconvene June 30 to
determine whether it accepts the prosecutors' arguments.
If it were to disagree, the trial would be suspended under
the new law. If the tribunal concurs, the law would be
sent to the Constitutional Court for review. The
preponderance of pundits, experts, journalists, and other
observers predicts that the Constitutional Court will be in
no hurry to conclude its review. Court members are
selected by Parliament, the President of the Republic, and
by their fellow magistrates, and thus have known political
backgrounds. While on the Court, however, they tend to
hold themselves as part of an "institutional" entity above
the political fray. Like President of the Republic Ciampi
(and unlike some of their fellow magistrates),
Constitutional Court judges tend to avoid overt political
activism during their tenures. They would likely be
susceptible to Ciampi's public calls (not directed to the
Court) for political stability during Italy's EU
Presidency, at a minimum.


5. (U) Ciampi, meanwhile, in an official visit to Germany
on June 26, was asked by a student at a Berlin University
conference why he countersigned the new law. Ciampi
responded that, although he usually does not discuss
domestic politics when abroad, he would answer this
question. The Constitutional Court is responsible for
reviewing a law's constitutionality, he explained, and the
President of the Republic can send a law back to Parliament
only in cases of manifest unconstitutionality. If
Parliament were to approve the law a second time, the
President would be obliged to sign it. Ciampi added that,
in the last twenty years, fewer than 100 laws were
overturned by the Constitutional Court.


6. (SBU) COMMENT: We are fast approaching the point when


the Berlusconi trial and possible outcomes will no longer
be worth reporting. A constitutional amendment (with even
some opposition support) mirroring the just-passed law is
making its way through Parliament. Assuming the pundits
and we are correct in predicting the Constitutional Court
will not act rapidly, an amendment would likely be far
enough along in the process to obviate questions on the
current law's constitutionality by the time the Court
undertakes its review. Opponents could still organize a
referendum, but would have high obstacles (participation of
50 percent plus one of Italian voters, with a majority
voting in favor) to overturn either the just-passed law or
a future constitutional amendment.
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2003ROME02949 - Classification: UNCLASSIFIED