Catherine Williams La Trobe University
Upon hearing that Italy’s Constitutional Court has today released the reasons for its decision on the conflict between the powers of the President and the powers of Palermo’s Office of Public Prosecutions, the first thing that came to my mind was that comforting phrase inscribed on all Italian courts of law: ‘la legge è uguale per tutti’ (a maxim of such importance it is even given a constitutional guarantee in Article 3 of the Italian Constitution).
The conflict at the centre of the case arose after Palermo’s Office of Public Prosecutions inadvertently intercepted phonecalls to President Giorgio Napolitano while tapping ex-Minister Nicola Mancino’s phone as part of their investigations into the trattativa Stato-Mafia (four conversations with Napolitano were intercepted, and their content was deemed by the investigators involved to be innocuous). The Court had already determined (back in early December 2012) that conversations and other communications of the Italian Head of State are endowed with absolute confidentiality and cannot be intercepted, but only today has it released the 49-page elaboration of its reasons (see:http://www.cortecostituzionale.it/actionSchedaPronuncia.do). According to the Court, article 90 of the Constitution and article 7 of Law 219/1989 forbid any wiretapping (even indirect) of the President’s conversations, except in cases of high treason or an attack on the Constitution: article 90 provides the President with a partial immunity, absolving him of responsibility for acts undertaken in the exercise of his functions (save the two above exceptions – high treason or an attack on the Constitution), while according to the Court, article 7(3) of Law 219/1989 (New norms on ministerial crimes and crimes contemplated by article 90 of the Constitution) absolutely forbids the intercepting of the President’s telephone conversations or other communications without the Court’s prior permission.*
The Court held further that ‘far from constituting an “inadmissible privilege” […] infringing upon the principle of citizens’ equality before the law, the immunity in question [that contained in article 90] is instrumental to the carrying out of the high-level tasks the Constitution demands of the President’. Though the Court’s statement seems to suggest the contrary, the fact that some immunity is granted and may be instrumental to the President’s functions does not ipso facto render that immunity consistent with the principle of equality of all citizens before the law. The argument has been rendered deceptively complicated, but at its core is a simple, straightforward logic: either the law is the same for all, or it isn’t. If Tizio and Caio’s telephone calls can be intercepted legally, but the President’s cannot, then the law is not the same for Tizio and Caio, and the President: Tizio and Caio are subject to the law, but the President is above it. To pretend otherwise is to make even more of a mockery of the maxim than has already been made over the last two decades. It would seem that Beppe Grillo said it best when he declared that the law isn’t the same for all: it’s the same for all the others.
* Prima facie it looks as though there may be a question of interpretation concerning whether Law 219/1989 is even relevant to the circumstances of the case: given that both the title of Law 219/1989 and the title of the Part of it cited by the Court clearly state that they apply only to the crimes contemplated by Article 90 (high treason and attack on the Constitution), their application should arguably be limited to investigations into those crimes rather than investigations generally.