US embassy cable - 03ROME2529

UNCLAS  ROME 002529 
 
SIPDIS 
 
 
SENSITIVE 
 
E.O. 12958:  N/A 
TAGS: PGOV, IT 
SUBJECT:  SENATE LAYS GROUND FOR BERLUSCONI'S TRIAL-FREE EU 
PRESIDENCY 
 
REF:  A) ROME 2495  B) ROME 2284  C) ROME 1971 
 
1.  (SBU)  SUMMARY:  Before Italy assumes the EU Presidency 
on July 1, the Italian Parliament is virtually guaranteed 
to pass legislation suspending trials against the country's 
top five institutional leaders, likely quashing the 
possibility of embarrassing corruption hearings against 
Prime Minister Berlusconi during the six-month Presidency, 
and indeed for the duration of his term.  The GOI is also 
seeking limited parliamentary immunity in the same 
legislation, utilizing a previously-introduced bill 
implementing the Constitution, rather than a constitutional 
amendment.   The legislation passed the Senate handily on 
June 5, and passage by the Chamber of Deputies and full 
effectiveness are expected before the end of June.  END 
SUMMARY. 
 
2.  (U)  On June 5, the Senate passed a bill which would 
provide for the suspension of trials against the country's 
top five institutional leaders (the Presidents of the 
Republic, the Constitutional Court, the Senate, and the 
Chamber, and the Prime Minister) during their terms of 
office.  The law would not provide total immunity for the 
named positions.  The President of the Republic could still 
be accused and tried by Parliament for high treason and 
attacks on the Constitution, as foreseen in Article 90 of 
the Constitution.  Likewise, the Prime Minister could be 
tried, with Parliamentary approval, for offenses committed 
in exercising his role, according to Article 96.  The 
officials would also be subject to investigation, but 
trials could not begin until the person leaves office.  The 
statute of limitations clock stops for the duration of the 
individual's term.  (COMMENT:  In a tactical maneuver which 
probably adds to opposition wrath, the governing coalition 
took to calling this part of the legislation the "Lodo 
Maccanico."  "Lodo" implies an uncontroversial agreement, 
and "Maccanico" is the name of a respected center-left 
Senator who last year proposed similar legislation.  END 
COMMENT.) 
 
3.  (U)  The same legislation seeks to expand parliamentary 
immunity.  Prior to the 1990's "Tangentopoli" 
("Bribesgate") corruption scandal, Article 68 of the 
Constitution guaranteed full immunity to parliamentarians 
during their terms of office.  In 1993, after the uproar 
created when Parliament rejected the magistracy's request 
to investigate former Prime Minister Bettino Craxi, Article 
68 was revised to permit investigations and prosecution 
without previous parliamentary authorization.  (Arrest, 
wiretaps, or search still require parliamentary approval.) 
The present bill would reinstate immunity from 
investigation and prosecution related to all parliamentary- 
related activities.  (Currently, only votes and opinions 
are protected.)  Magistrates would also need parliamentary 
permission to use information from a wiretap if a 
parliamentarian were one of the speakers, even if s/he was 
not the focus of the investigation.  (COMMENT:  In another 
galling (for the opposition) irony, the legislative 
proposal was appended to a bill introduced by Greens Deputy 
Marco Boato, who sought to restrict judicial phone taps of 
legislators.  Boato, needless to say, has demanded that his 
name be removed from the legislation.  END COMMENT.) 
 
4.  (U)  The legislation is drafted as a law to implement 
the Constitution, not as a constitutional amendment.  An 
amendment would require two readings, three months apart, 
in each house, and probably a referendum as well, likely 
about a year-long process.  This appears to be a precedent- 
setting approach, although the erstwhile "Boato Law" would 
have relied on the same technique.  It now goes to the 
Chamber of Deputies, where it is expected to pass on June 
20-21.  It will take full effect the day after it is signed 
by the President of the Republic and published in the 
official gazette, normally the day after final passage.  As 
planned, this would be well in time for the beginning of 
the EU presidency, even allowing about a week for the dust 
to settle. 
 
5.  (SBU)  The opposition is divided on this issue.  The 
more centrist Union of Democrats of Europe (UDEUR) and 
Italian Democratic Socialists (SDI) abstained on the Senate 
vote (a tacit sign of support) and can be expected to do 
the same in the Chamber, while the further left parties 
have indicated they will present a referendum to abolish 
the law.  (If they succeed, the referendum could not be 
held before Spring of 2004.)  The opposition charges 
(correctly) that the bill seeks to freeze the on-going 
judicial bribery trial against Prime Minister Berlusconi 
(Ref B).  The center-right counters it is needed to 
 
 
safeguard the institutional figure of the Prime Minister in 
light of Italy's impending EU presidency.  Some in the 
opposition have charged that the legislation is 
unconstitutional because it provides separate treatment for 
the five high-level institutional figures.  President 
Ciampi has weighed in, calling on all to tone down their 
rhetoric, which makes Italy look bad in the run-up to the 
EU presidency.  It seems clear the GOI has received 
Ciampi's green light (explicitly or implicitly) that the 
legislation passes constitutional muster in his eyes. 
Meanwhile, the center-right has also presented a draft 
constitutional amendment, mirroring that passed recently by 
the EU Parliament (with the support of center-left Euro 
Parliamentarians). 
 
6.  (SBU)  COMMENT:  Given the Government's majority, it is 
safe to say the legislation will pass prior to the 
beginning of the Italian EU Presidency.  This should rid 
the Prime Minister of the worry of corruption hearings in 
the midst of the Presidency, and indeed for the remainder 
of his term.  The only wrinkle is that the same Milan court 
accused by Berlusconi and his supporters of politicized 
justice (Refs B and C) has the right to request a 
Constitutional Court review of the legislation when it 
passes.  Although Italian justice is known for grinding 
exceptionally slowly, we cannot rule out lightning action 
by the Constitutional Court.  END COMMENT. 
SKODON 
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 2003ROME02529 - Classification: UNCLASSIFIED