US embassy cable - 03ROME2949

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. 
SEMBLER 
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	2003ROME02949 - Classification: UNCLASSIFIED