ITALY'S CONSTITUTIONAL COURT ANNULS IMMUNITY FOR

UNCLAS ROME 000122

SIPDIS


SENSITIVE

STATE FOR EUR/WE

E.O. 12958: N/A
TAGS: PGOV IT
SUBJECT: ITALY'S CONSTITUTIONAL COURT ANNULS IMMUNITY FOR
PM BERLUSCONI

REF: A. ROME 2799

B. ROME 2949

C. ROME 2284


1. (U) Summary. Following a Constitutional Court decision on
January 13 PM Berlusconi is no longer protected from
prosecution in a Milan-based corruption trial while serving
as Prime Minister--a safeguard he was afforded by a June 2003
law. The Court found that the measure protecting the five
most important institutional figures from criminal
prosecution during their terms in office conflicted with the
constitutional principle of equality before the law.
Prosecutors will re-open the trial against Berlusconi but at
the moment they will not be able to pick up where they left
off when proceedings were suspended last June. The
government, whose priority was to protect Berlusconi during
Italy's EU presidency, will now move to pass a more
complicated constitutional law mirroring the annulled
Schifani bill and adding as a sweetener to the center-left
opposition the reinstitution of full immunity for sitting
parliamentarians. End Summary.


2. (U) Italy's Constitutional Court today (January 13) ruled
unconstitutional a June 20, 2003 law which protected the five
most important institutional figures from trial during their
terms in office (ref A). The center-right governing
coalition had pushed the immunity law (known in Italy as the
Lodo Schifani) through the Parliament to freeze proceedings
in a Milan-based corruption trial that featured PM Berlusconi
as the key defendant. The Court determined the measure
violated the constitutional principle of equality before the
law. It also asserted that, because the Constitution does
not provide for immunity from crimes not connected with an
official's duties, an ordinary law could not establish such
protection. Press reports suggest that the sentence should
render moot a referendum to abrogate the Schifani Law
promoted by part of the opposition and now awaiting final
approval by the Supreme Court.


3. (U) Reaction to the verdict was generally low-key.
Center-left leaders crowed that they had said all along the
effort to implement such a radical change with ordinary
legislation conflicted with constitutional norms.
Nevertheless, the Senate leader of the largest opposition
party (Democratici di Sinistra/Left Democrats) left the door
open to a future constitutional bill that would strengthen
immunity for all parliamentarians and, potentially, the same
five office holders covered by the Lodo Schifani. (Note: Such
immunity is the norm in most other EU states. End Note) The
House leader of the important opposition Daisy party echoed
this approach. Government representatives, clinging to the
high road, claimed they had acted in good faith to safeguard
Italy's institutions, believing the center-right's approach
was constitutional.


4. (SBU) Comment: How the decision will shake out for
Berlusconi is not entirely clear. Certainly, the Milan
prosecutors who brought the issue of the immunity law's
constitutionality before the High Court (ref B) will re-open
their case against him. However, for technical reasons,
Italian analysts say they probably will not be able to pick
up exactly where they left off when proceedings against
Berlusconi in the so-called SME case (ref C) were suspended
last June, which is likely to prolong a trial that has
already been in court for three years. There are also
questions surrounding what form the trial will take as a
result of the sentencing of former Berlusconi lawyer Cesare
Previti to five years in prison in the same proceedings
subsequent to passage of the Schifani Law. (Note: The bill
did not protect Previti, allowing prosecutors to proceed with
the sentencing phase against him. End Note) Berlusconi's
lawyers could argue that the sentencing of Previti is
prejudicial to the PM.


5. (SBU) Comment cont: In the run-up to Italy's EU
Presidency (July-December 2003),we were told by contacts in
the center-right coalition that the government would act to
safeguard PM Berlusconi from prosecution during its six month
term. The timing of the Constitutional Court's decision,
given that it could have issued a ruling at any time over the
last few months, suggests that an implicit condominium was
reached to ensure that the Presidency would not be tarnished
by a guilty verdict against Berlusconi. Now, we expect the
government to push for passage of a constitutional bill
(which time pressures in June did not permit) that will
provide similar protections as the Schifani Law and re-extend
full immunity to all sitting parliamentarians. It could be a


race against time for the government to pass such a law,
which will require several months at a minimum, before the
Milan trial moves into the sentencing phase. As the
technicalities of this complex affair shake out, and possible
outcomes crystallize, we will report them septel. End
Comment.
SKODON


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2004ROME00122 - Classification: UNCLASSIFIED