03/03/2015 - On Tuesday 10 February 2015 the Council of Ministers approved, on the proposal of the Prime Minister Matteo Renzi, and of the Ministers of the Interior Angelino Alfano, of Foreign Affairs and International Cooperation Paolo Gentiloni, of Defense Roberta Pinotti, and of Justice Andrea Orlando , a law decree called "Urgent measures to combat terrorism, including international ones, as well as the extension of the international missions of 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 , here, 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 new discipline of secrecy". The articles 17, 18 and following of Chapter III of this law regulate this particular list that the legislator of the 2007 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 operative field 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 activities carried out by the AISE (Information Agency for External Security) and the AISI (Information Agency for Internal Security). Article. 6 in the 1 paragraph states that "The Information and External Security Agency (AISE) is established, which is entrusted with the task of researching and developing in the areas of competence all information useful for the defense of the independence, integrity and security of the Republic, also in implementation of international agreements, from threats from abroad". The paragraph 2 then provides that "Furthermore, the activities relating to counter-proliferation concerning strategic materials, as well as information security activities, which take place outside the national territory, to protect the political, military, economic, scientific and industrial interests of the Italy", While the paragraph 3 states that"It is also the task of the AISE to identify and combat outside Italy the activities of espionage directed against Italy and activities aimed at damaging national interests". Of the same tenor is the art. 7 which, according to 1, 2 and 3, states that "The Information and Internal Security Agency (AISI) is established, which is entrusted with the task of researching and developing in the areas of competence all information useful for defending, including in implementation of international agreements, the internal security of the Republic and the democratic institutions imposed by the Constitution on its foundation from any threat, from any subversive activity and from any form of criminal or terrorist aggression "; "AISI is responsible for information security activities, 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 combat within the national territory the activities of espionage directed against Italy and activities aimed at damaging national interests".

As it is easy to see, the main activity of the current Italian Intelligence Agencies is dedicated to researching and processing information. Activity 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 the phases in which the information security activity is organized, from the indications of the Government Authorities to the dissemination of intelligence products to institutional users, passing through 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 illustrated, especially in the moment of the search for information, can lead to the completion of operations and actions that escape 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 border line, borderline, with the penal precepts. This situation brings with it two important consequences: the first concerns the potential circumvention of legality in the activity of services; the second concerns the condition of the intelligence operators, who are at risk of being 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 considered that the law n. 801 / 77, in regulating the subject of state secrets, contained within it provisions for the protection of operators. This also emerges by analyzing the art. 12 comma 2, which provided for the only case in which the state secret was not enforceable, ie relative to subversive facts of the constitutional order. By not establishing anything else, one could easily make an argument Conversely identifying the cases in which the secret was applicable, thus legitimating the activities of the services, and therefore of the operators, whenever these were not subject to the illegal case envisaged by the aforesaid article.

Despite the presence of such a protection instrument, however, the need was felt to realize a complex regulatory framework (in primis) achieve greater protection for Information Services personnel and, in secundis, transfer the focus of the issue from the criminal trial to the substantive criminal plan. 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 40 article 3 paragraph of the law, it is clear that in art. 204 of the criminal procedure code has been inserted the paragraph 1-up to which states that: "The secrecy foreseen by the articles 201, 202 and 203 can not be subjected to facts, news or documents concerning the conduct carried out by members of the security information services in violation of the discipline concerning the special cause of justification envisaged for the activities of security information services. The violations of the aforesaid discipline are considered to be conducts for which, since the specific procedure provided for by the law has been carried out, 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.

Having said that, in discussing functional guarantees, we can not avoid reflecting on what appears to be the main problem that is the background of the entire institution, namely the conceptual distinction between legitimacy and legality. According to some doctrine, legality poses itself "strict observance of the written laws, while legitimacy is the correspondence to the needs not foreseen by them but nevertheless so essential that they condition their survival "(1). This contraposition of concepts leads to the possibility of foreseeing the possibility of legal acts and behaviors that are legitimate but illegal, since the concept of legitimacy implies all the series of acts and behaviors aimed at achieving the highest 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 trying to place it within the activity of the Information Services, and the debate on it was one of the main aspects on which the doctrine discussed in thinking a reform of Services, especially with reference to the issue of 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 intelligentsia, without providing a set of rules that would protect operators from judicial consequences arising from their activity, when it was implemented for the prosecution of those ends established by the law; but also that to identify the perimeter within which the same could move. Therefore, even in the context of the reform of the Secret Services, it was hopeless to facilitate the pragmatic turnaround that was already found in some sectors of the legal system, which "Already expresses institutions and trends that do not match the category of illegitimacy with that of illegality and for which the benchmark should not consist of a normative case, but in achieving social utility, even better, the utility general "(3). Legitimacy in illegality, therefore. Eventuality that finds justification for the ultimate goal that one wants to reach. It should not be forgotten that legality, the fundamental principle of any democratic system, must always be considered as the polar star that guides the activity of every citizen, but above all of those who belong to the administrations of the state. The violation of this principle inevitably leads to clashes with the judicial authority which, as foreseen by art. 112 of the Constitution, has the obligation to exercise the criminal action. However, in relation to certain activities and mainly those carried out by the information agencies, the binomial legitimacy - legality finds its own derogation precisely because of the aims 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 unavoidable interests of the State, the which are the foundations of its very existence. The use of forms or activities and actions that are formally illegal are therefore allowed to the intelligence operators if they are legitimately put into effect, that is when they are aimed at the pursuit of the interests mentioned above.

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 related to the formal or substantial typicality of the activities of intelligence operators, recognizing them ab origine as substantially adhering to the reference 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 found to operate in a particularly unstable context in which it is practically impossible to carry out any type of behavioral prognosis since it is faced with a variegated phenomenology practically impossible to foresee objectively. Because of this, it would have been impossible to protect service agents by identifying ab origine a series of activities typed as normally performed by the operators during their activity. In this way there would inevitably be left uncovered of the areas of operation precisely because of the natural inability to make predictions about the possible conduct that the agents would be called to take in the fulfillment of their duties, with inevitable repercussions also in the process. In the impossibility of drawing a precise boundary line between legitimate (why typed) and illegitimate (not typed) activities, one would invariably resort to the institution of state secrecy, continuing to use this instrument outside the ranks that physiologically they compete. This would have contributed, as happened in the past, to move more and more in the community that sense of reliance on an apparatus of the State that exists, resists and persists precisely to protect the safety of the community in many ways.

For these reasons, functional guarantees, brought within the scope of the substantive criminal law and drawn up by the legislator of 2007 in such a way as to provide a discriminating for operators who carry out conduct, formally illegal, but authorized and documented from time to time in order to fulfilling the institutional tasks recognized to them by the law itself, turn out to be the most appropriate choice; having regard also to the need, arising from the threats of the 21st century, to include information services for the security of the Italian Republic in the context of intelligence community international.

It seems appropriate to quote the words of the Constitutional Court which, with the sentence n.86 / 77, said: "the security of the State is an essential, irrepressible interest of the community, with a clear character of absolute pre-eminence over each other, since it touches, as has been repeated, the very existence of the State, an aspect of which is the jurisdiction". The law of 2007, in laying the foundation of the existence of the Services itself, the institutional aims identified by the Constitutional Court, brings with it the inevitable geopolitical, geoeconomic and social change that has occurred in the course of thirty years of history. The state security today must be analyzed with an eye sensitive to perceive the multidimensionality of threats that may come from both the channels already identified in the past, such as the external and internal, but which can also be identified in totally new forms of aggression such as the cyberterrorism, cybercrime or cyberwar. In a completely globalized world context, where the security of a state no longer depends solely on its military ability to defend its borders and its sensitive objectives, it is subject to the predisposition of a whole series of measures and countermeasures supported by IT technology that allow to protect markets, financial interests, critical infrastructures and the most important asset, that is information, the activity of the Intelligencesi Services informs this purpose. Inevitably, therefore, an expansion of the original meaning of security of the State identified in its all-encompassing characters, so far-sighted, by the Constitutional Court is inevitable.

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, For Aspera ad Veritatem 1997

(opening a film frame of the film Casino Royale)