Functional guarantees recognized to Secret Service personnel (3 / 3)

05/03/15

Once the exploration of the requisites necessary for a conduct constituting a crime committed by agents of the Security Information Services during an intelligence operation to be eliminated, it is of fundamental importance to analyze the procedure by which the conduct, or the conduct, are legitimately authorized by the President of the Council of Ministers or by the delegated Authority where established.

Article. 18 begins by reconfirming the paragraph 1 the need, for the issue of the authorization by the Authorities required by law, the presence of the conditions provided for by art. 17 and their strict compliance with the established limits.

The primary characteristic of the provision is its motivation. Here emerges another of the pervasive principles of administrative law, ie the principle of reasonableness, which provides for the obligation to state reasons for all the measures taken within the public administration in order to allow the judge to censor those acts of the PAs that turn out to be contradictory, illogical or irrational and inconsistent motivations.

The obligation to state reasons, in general, but above all in this case, is to prevent the administrative authority from escaping the delimited sphere of discretion assigned to it, resulting in the arbitrary exercise of power. Precisely for this reason the paragraph 2 of the art. 18 provides that the President of the Board or the Delegated Authority, if established, will justify the authorization provision on the basis of a detailed request by the directors of the Information Services concerned.

The request must therefore be accompanied by a precise identification of all the elements of fact and law that affect the operation and the related conduct, retracing in a timely and complete manner all the parameters necessary for issuing the authorization provision. Only in this way the Authority in charge of issuing the deed will be put in a position to carry out a realistic and objective assessment of the necessary authorization issue. In carrying out this analytical activity, the Chairman of the Board or the delegated authority may use the technical support of the Department of safety information, based on the provisions of paragraph 1 of art. 4 which provides as follows: “The President of the Council of Ministers and the Delegated Authority, where established, make use of the DIS for the exercise of their competences, in order to ensure full unity in the programming of the information search of the Information System for security, as well as in the analysis and operational activities of security information services ". Precisely for this reason it is envisaged that the director of the service that transmits the request will also inform the DIS.

The paragraph 3 of the article under analysis contemplates the possibility in the hands of the administrative Authorities to modify or withdraw in any case the provision adopted pursuant to paragraph 1, with the simultaneous obligation of the motivation. This can happen if the conditions are not met or the limits and conditions have not been respected or even when an operation different from the one established is carried out.

Continuing the systematic analysis of the 18 article we find the legislator's prediction of a particular procedure, which can be adopted in cases of urgency.

The urgency procedure is an eventuality that can be implemented if there are cases in which the carrying out of the ordinary authorization procedure would entail, for the times that this requires, damage to national security due to failure to carry out the intelligence operation aimed at retrieval of certain information of absolute importance. Precisely for this reason, the urgency is defined as absolute, that is, such as not to allow any temporal delay given by the technical times for the study and for the implementation of the ordinary authorization procedure.

The situation just proposed finds its solution in the paragraph 4 of the art. 18, which provides for the possibility, in the hands of the Director of the Information Service concerned, to issue the authorization to proceed with the operation, and therefore to carry out the conduct envisaged by law as a crime. This act must be communicated promptly, and in any case not later than twenty-four hours, to the President of the Council of Ministers, informing the DIS.

If the request, promptly transmitted to the competent Authority to decide, is compliant with the rules governing its content and the President of the Board or the Delegated Authority where established believes that all the conditions for its ratification are met, will validate the request in the ten days from receipt.

The ratification mechanism foreseen by the law is functional to realize the respect about the legitimation to adopt certain measures in the field of national security provided by law and attributed to the National Authority for security. In confirmation of this the paragraph 6 of the art. 18 establishes that where the conduct envisaged by the law as a crime has been committed in the absence or beyond the limits of the authorizations provided for in the same article, the President of the Council of Ministers is obliged to take the necessary measures consisting in the annulment of the provision and in the fulfillment of any precautionary and disciplinary actions. Of all this it is always required to notify the Judicial Authority without delay.

Article. 18 ends with the implicit provision of the necessary written form for each provision envisaged by the same article, in order to officially attribute the issue of the authorization, thus bringing the Authority that originates it to assume the relevant political responsibilities, but also in order to to file all the documentation relating to the operation, including requests from the directors of the Services (also written in writing) in the secret register kept at the DIS together with the documentation regarding the related expenses according to the rules issued with the regulation referred to 4 article, paragraph 7.

Andrea Strippoli Lanternini

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(in the photo the general director of DIS, Ambassador Giampiero Massolo)