On Tuesday, 10 February 2015, the Council of Ministers approved, on the proposal of the Prime Minister Matteo Renzi, and the Interior Ministers Angelino Alfano, Foreign Affairs and international cooperation Paolo Gentiloni, Defense Roberta Pinotti, and Justice Andrea Orlando, a decree called "Urgent measures to combat terrorism, including those of an international nature, as well as the extension of international missions by the armed forces and police, development cooperation initiatives".
The issuance of this decree, postponed several times, is the Italian response to the terrorist emergency raised after the events in France between the 7 and the 9 January 2015.
Among the various innovations introduced by the decree, which can be viewed , promising, there is one particularly important that deserves further study. This is the extension of the "functional guarantees" recognized to members of the Information Services, which exclude the punishment of a series of behaviors in the field of terrorism (other than the crimes of attack or kidnapping), committed by the staff of the Agencies intelligence for institutional purposes and subject to authorization by the President of the Council of Ministers.
What are functional guarantees?
The discipline of functional guarantees can be traced in the 3 Law August 2007 n. 124 entitled "Information system for the security of the Republic and a new discipline of secrecy". Articles 17, 18 and the following of Chapter III of the present law regulate this particular excuse that the 2007 legislator wanted to introduce in order to better protect the intelligence operators engaged in carrying out the institutional activities assigned to them.
Before moving on to an in-depth analysis of this institute, it is necessary to frame the operational context in which the modern Italian Information Services operate. To do this it is necessary to take into consideration the articles. 6 and 7 of the law in question which describe respectively the activity carried out by the AISE (Agency for Information for External Security) and by the AISI (Information Agency for Internal Security). Article. 6 in the paragraph 1 establishes that “The External Information and Security Agency (AISE) is established, which is entrusted with the task of researching and elaborating in the areas of competence all the information useful for the defense of independence, integrity and security of the Republic, also in implementation of international agreements, from threats from abroad ". Subparagraph 2 then provides that “AISE also has the task of counter-proliferation activities concerning strategic materials, as well as security information activities, which take place outside the national territory, to protect political and military interests, economic, scientific and industrial in Italy ", while the paragraph 3 establishes that" It is also the task of the AISE to identify and combat outside the national territory the espionage activities directed against Italy and the activities aimed at damaging the national interests ”. The same tenor is the art. 7 which in the paragraphs 1, 2 and 3 provides that “The Internal Information and Security Agency (AISI) is established, which is entrusted with the task of researching and processing in the areas of competence all the information useful to defend, even in implementation of international agreements, the internal security of the Republic and the democratic institutions set by the Constitution as its foundation from every threat, from any subversive activity and from any form of criminal or terrorist aggression "; "The AISI is responsible for information activities for security, which take place within the national territory, to protect Italy's political, military, economic, scientific and industrial interests"; "It is also the task of the AISI to identify and oppose within the national territory espionage activities directed against Italy and activities aimed at damaging national interests".
As is easy to see, the main activity of the current Italian intelligence agencies is dedicated to research and information processing. Activities that should be framed in the broader cycle of intelligence that the Department of Security Information in its Glossary Intelligence defines as "the complex of phases in which the information security activity is articulated, from the indications of the Government Authorities to the dissemination of intelligence products to institutional users, via information planning, information research and processing.
Generally not included in the graphical representations of the cycle of intelligence, but of great importance, the feedback phase assessing the extent to which the intelligence products have met the cognitive needs of the Government Authorities and other institutional interlocutors in the field of national security and it is determined whether, on a specific situation or phenomenon, further research and development activities are required. The need to fill in any knowledge gaps by restarting the informative research phase can also be reported by analysts, and therefore before the intelligence cycle, in its abstract form, has been completed ".
It is easy to understand, at this point, how the type of activity just described, especially when searching for information, can lead to the completion of operations and actions that are outside the scope of legality required by law. The Information Services indeed, precisely because of their operational and finalistic peculiarities, often act along a very thin borderline, with the criminal precepts. This situation brings with it two important consequences: the first concerns the potential avoidance of legality in the activity of services; the second concerns the condition of intelligence operators, who suffer the risk of being criminally prosecuted if they commit an act or participate in an illegal activity.
So long felt was the need to remedy the regulatory vacuum left by the previous legislation on Information Services and State Secrecy (Act No. 801 / 77) which left almost completely uncovered the two aspects described above, contributing to create an aura of mystery and mistrust towards the cd. secret services.
Actually the law n. 801 / 77 provided a primitive agent protection mechanism within it. This mechanism consisted in the application or confirmation of the state secret, by the President of the Council of Ministers, to the entire operation in which the operator had participated, thus causing the foreclosure for the judicial authority to know about the activity put in place by the agent and preventing the magistrate to pursue the same in case of commission of facts constituting crime. The only way by which the public prosecutor could have read the documents relating to the operation and thus proceeded against the information services operator was to raise a conflict of powers between the powers of the State before the Constitutional Court. This, if it had considered legitimate the confirmation of the opposition of secrecy, and the evidence deriving from the knowledge of such documents was essential for the definition of the trial, obliged the judge to close the same through the issuing of a non-place judgment to proceed . Otherwise, the magistrate holder of the investigations would have had access to the documents, thus continuing his activity, pursuing, if necessary, the agent of the Services.
It can therefore be assumed that the law n. 801 / 77, in regulating the matter of State secrecy, contained within it provisions to protect operators. This also emerges by analyzing the art. 12 paragraph 2, which provided for the only case in which state secrecy was not enforceable, and that is in relation to subversive facts of the constitutional order. Not establishing anything else, you could easily carry out a contrary reasoning by identifying the cases in which the secret was applicable, thus legitimizing the activities of the services, and therefore of the operators, whenever these were not subsumable to the illegal case provided for in the aforementioned article.
Despite the presence of such an instrument of protection, however, the need was felt to implement a complex regulation that first of all achieved greater protection for the personnel of the Information Services and, in secundis, transferred the focus of the question from the criminal procedural plan to the penal plan substantial. This in order to free the matter from the dynamics of the ritual giving it a more stable connotation.
In a context of general reform of the Information Services for the Security of the Republic and of the regulation of State secrecy, the legislator has included a series of rules on functional guarantees, thus satisfying the need to identify precisely the conduct of to consider lawful by virtue of a special extrusion and at the same time to identify the conduct that does not adhere to institutional aims, which can not be scratched precisely in virtue of the normative provision contained in art. 17 of the law n. 124 / 2007 (modified by the recent decree).
The new functional guarantees, in fact, consist in the provision of a non-punishable lawsuit in favor of intelligence operators when, during the course of a transaction, they carry out abstract conduct provided for by the law as a crime, provided that such conduct has obtained , for that specific operation, the authorization from the Political Authority is essential to achieve the institutional purposes of the Services.
As we have just seen, the question concerning the protection of the agents of the Services has always been linked to the institution of state secrets. The law n. 124 / 2007, in an attempt to modernize the state apparatus of intelligence has modified the terms of this connection making the system of the services more transparent and more adherent to the constitutional dictate.
Analyzing the article 40 paragraph 3 of the law, it can be deduced that in the art. 204 of the Criminal Procedure Code has been inserted the paragraph 1-bis which states that: “It cannot be the subject of the secrecy provided by the articles 201, 202 and 203 facts, news or documents concerning the conduct carried out by members of the services of security information in violation of the regulations concerning the special cause of justification envisaged for the activities of security information service personnel. Violations of the aforementioned discipline are considered to be those behaviors for which, having performed the specific procedure provided for by the law, the existence of the special cause of justification is excluded. "
This article has sanctioned a drastic and energetic change of course, since the entry into force of the reform law can no longer be covered by the secret, and therefore not knowable by the judicial authority, the conduct of members of services that are not before been authorized according to the procedure provided for by the combined provisions of Articles 17-18 reads n. 124 / 2007. This has contributed to giving the matter of the state secret a more "democratic" connotation and at the same time has thrown water on the burning minds of those who saw in the Information Services and in the state secret an enemy to be defeated.
That said, in discussing functional guarantees, we cannot avoid reflecting on what appears to be the main problem that is the background of the entire institute, namely the conceptual distinction between legitimacy and legality. According to some doctrine, legality presents itself as "strict observance of written laws, while legitimacy is the correspondence to the needs not foreseen by them but nevertheless so essential that they condition survival" (1). This juxtaposition of concepts results in the possibility of foreseeing the legal eventuality of legitimate even illegal acts and behaviors, since the concept of legitimacy implies all that series of acts and behaviors aimed at achieving the supreme interests identified by the law, even if this objective is pursued by means partially or totally not compliant with one or more legal provisions (2). The dichotomy on which it is reflected emerges in all its impetus when it is attempted to place it within the activity of the Information Services, and the debate on it has been one of the main aspects on which the doctrine has discussed in thinking about a reform of the Services, especially with reference to the question of the protection of agents.
Even before the entry into force of the law n. 124 / 2007 authoritative doctrine argued that it was unthinkable or even desirable to reform a particular sector such as the state intelligence office, without providing a set of rules that would protect operators from judicial consequences arising from their activity, when this was put in place for prosecution of those purposes established by law; but also to identify the perimeter within which they could move. It was therefore hoped, even in the context of the reform of the Secret Services, to facilitate that pragmatic shift that was already found in some sectors of the legal system which “already expresses institutions and trends that do not make the category of illegality coincide with that of illegality and for which the reference parameter should not consist in a normative case, but in the achievement of social utility, or better, of general utility ”(3). Legitimacy in illegality, therefore. Eventuality that finds justification in the ultimate goal that we set ourselves to achieve. It should not be forgotten that legality, the fundamental principle of any democratic order, must always be considered as the guiding light for the activity of every citizen, but above all of those who belong to state administrations. The violation of this principle inevitably leads to clash with the judicial authority which, as envisaged by art. 112 of the Constitution has the obligation to prosecute. However, in relation to certain activities and especially those carried out by news agencies, the combination of legitimacy and legality finds its own derogation by virtue of the aims that are to be pursued. Fini that, as established by the Constitutional Court in the sentence n.86 / 77 and then reiterated in the articles of the law n.124 / 2007 that identify the tasks of the two information agencies, are aimed at protecting the supreme and indispensable interests of the State, the which are placed at the foundation of its very existence. The use of modalities or activities and formally illegal actions are therefore allowed to the intelligence operators if they are legitimately put into effect, and that is when they are aimed at pursuing the aforementioned interests.
Among the various solutions studied by the doctrine to obviate the issue that is being analyzed by the legislator of 2007, aware of having to resolve the issue in the field of substantive criminal law, has opted for the adoption of functional guarantees consisting of the special cause of justification provided by 'art.17 of the law n.124 / 2007. Solution solicited by the enactment, just a year before, of the legislation relating to undercover operations (Law n.146 / 2006), which provides a very important for the officers of the PG who are to carry out certain operational activities, but also encouraged by the tendency to accept a functionalistic view of the penal system.
This choice of legislation has evaded disputes relating to the formal or substantial nature of the activities of the intelligence operators, recognizing them ab origine as substantially adhering to the relevant criminal case.
It is precisely such substantial compliance with the law that allows for a provision to be set forth. This was possible by bringing the whole back to the fundamental tripartite theory that permeates the discipline of substantive criminal law. With reference to this theory, the adoption of a cause of justification within the law n.124 / 2007 finds residence in the absence of social damage, since their recurrence takes away from the action to which the antagonistic character refers to the purposes of the law and, at the same time, eliminate the necessity of the sanction as they make the conduct suitable to satisfy an interest bearing a value greater than that which is sacrificed.
The 2007 legislator in constructing the reform of the Information Services and the State Secret therefore opted for the use of a justification case as a means of protection for intelligence operators. The provision of discriminatory behavior based on an authorization issued by the Political Authority, called to carry out an assessment of the most suitable instruments to achieve the objective of national security, appears to be the most suitable to face the new challenges that the changed context social configuration mainly towards Western countries.
Service operators are indeed operating in a particularly unstable context in which it is practically impossible to carry out any kind of behavioral prognosis since we are faced with a variegated phenomenology practically impossible to foresee objectively. For this reason it would have been impossible to protect the agents of the services by identifying ab set-up a series of typed activities as normally performed by the operators during their activity. This would inevitably leave uncovered areas of operation precisely because of the natural inability to make predictions about the possible conduct that agents would be required to perform in fulfilling their duties, with inevitable repercussions even in the trial. In the impossibility of tracing a precise boundary line between legitimate (because typified) and illegitimate (because not typed) activities, the institution of state secrecy would invariably have been used, continuing to use this tool out of ranks and physiologically they compete. This would have contributed, as happened in the past, to increasingly displacing in the community that sense of reliance on a state apparatus that exists, resists and persists precisely to protect the safety of the community in many respects.
For these reasons the functional guarantees, brought under the substantive criminal law and designed by the legislator of the 2007 in order to provide an exoneration for the operators who carry out conducted, formally illegal, but authorized and documented from time to time in order to to fulfill the institutional tasks recognized by the law itself, appear to be the most appropriate choice; also considering the need, always arising from the threats of the 21st century, to include the information services for the security of the Italian Republic in the context of an international intelligence community.
It seems appropriate to mention the words of the Constitutional Court which, with the Judgment n.86 / 77 argued: "State security is an essential, irrepressible interest of the community, with a clear character of absolute pre-eminence over all others, as it touches, as it is repeated, the very existence of the State, an aspect of which is the jurisdiction ". The law of 2007, in laying the very existence of the Services as the foundation of the institutional aims identified by the Constitutional Court, brings with it the inevitable geopolitical, geo-economic and social change that has occurred over the course of thirty years of history. State security today must be analyzed with a sensitive eye to perceive the multidimensionality of the threats that can come either from channels already identified in the past, such as external and internal, but which can also be identified in totally new forms of aggression such as cyber-terrorism , cyber crime or cyberwar. In a completely globalized global context, where the security of a State no longer depends only on the military capacity of the same to defend its borders and its sensitive objectives, but is subject to the preparation of a series of measures and countermeasures supported by the information technology that allow to protect the markets, financial interests, critical infrastructures and the most important asset, that is information, the activity of the intelligence services informs for this purpose. It is therefore inevitable an expansion of the original meaning of state security identified in its all-encompassing characters, so far-sightedly, by the Constitutional Court.
Andrea Strippoli Lanternini
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(1) MORTATI V., Institutions under public law, Padua, 1976
(2) BERARDINO F., Mode and tools of information and security activities between legitimacy and illegality: the problematic of functional guarantees, in Per Aspera ad Veritatem N.9 September-December 1997
(3) CAIANELLO V., Legality, Per Aspera ad Veritatem 1997
(at the opening a frame taken from the film Casino Royale)
