US embassy cable - 04ROME122

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