04/03/2015 - To better understand what is contained in art. 17 of the law in question, a systematic analysis of the same will be carried out, with the aim of capturing all the even more hidden aspects that are hidden behind a lexical structure at times of dubious interpretation.

Article. 17 in the 1 paragraph states that " Without prejudice to the provisions of art. 51 of the criminal code is not punishable by the staff of the information security services who carry out the conduct provided by law as a crime, legitimately authorized from time to time as essential for the institutional purposes of these services, in strict compliance with the limits set out in paragraphs 2, 3, 4 and 5 of the present article and of the procedures established by art. 18 ".

The first part of this article identifies the recipients of the regulation in question. According to the provisions of art. 2 paragraph 2 for Information Services, it is necessary to refer to the two agencies constituted by this law, namely the AISE and the AISI. Recipients of the special cause of justification are therefore only the operators of these agencies excluding those who are in force at DIS because this is not included among the information services but is incorporated into the Information System, which also includes the President of the Council of Ministers, COPASIR and the Delegated Authority where established.

An important aspect to be analyzed in this context is the position of those who do not participate strictly in the Services, but have participated in the activity, in competition with one or more employees of the Agencies. Returning to the substantive approach of the law n. 146 / 06 in which the comma 5 of the art. 9 provides for the extension of the cause of non-punishment even for auxiliaries who collaborate with the officers of the PG in certain operations, including the law n. 124 / 2007 foresees the same eventuality. The comma 7 of the art. 17 provides that when for specific conditions of fact and for exceptional needs, the activities indicated in the article in question were carried out by subjects who do not belong to the Services themselves, in competition with one or more of them, and it appears that the use of their work was indispensable and had been authorized according to the procedures set out in the 18 article, these people benefit from the special cause of justification like the operators of the Services.

The paragraph in question needs some clarifications. First of all the implicit reference to art. 119 of the penal code, which in paragraph 2 establishes that the objective circumstances that exclude the penalty, namely those contained in articles. 50 - 54, have effect for all those who have competed in the crime. Always to the penal code, this time to the art. 110, we must refer to correctly interpret the part in which we identify the subjects with whom we compete, as this article includes both cases of moral and material competition.

Major difficulties emerge in the interpretation of the terms used to identify the cases in which the activity of external subjects is required, as this inevitably affects the authorization process that risks being provided with a weak motivation due to the difficulty of identifying the exact meaning of the formulas used by the legislator (1). Eventuality that would risk causing the cancellation of the authorization provision in the event of a conflict before the Constitutional Court with consequent submission to the penalty for the external competitor. From the objective point of view, obvious difficulties emerge at the time of authorization of the pipelines. The conduct established by law as a crime to be criminalized must be legitimately authorized and the set of factors to be assessed for the issue of a legitimate authorization is difficult to analyze. Difficulty due to the fact of having to take into account a series of connections and parameters that can be questioned in judicial first and then constitutional control. Reference is made to the criteria established in the paragraph 5, whose compliance allows the applicability of the cause of justification and which will be object of reflection later.

The time of these authorizations is also significant. Article. 17 comma 1 of the law n. 124 / 2007 provides that the same are released from time to time for each individual operation. Consequence of this presentation is the impossibility for the political Authority to issue a generic authorization for all those conduct that respond to the determined canons and at the same time the need for circumstantial requests coming from the directors of the two agencies in order to allow the political Authority to examine the whole proposed operation and to decide on the issue of the authorization. The comma 1 of the art. 17 ends with the reference to strict compliance with the limits set forth in the 2, 3, 4 and 5 paragraphs of this article and the procedures set out in the 18 article.

Although it seems obvious a reference to the concept of strict respect in regulating a situation normatively, here this reference seems to deserve some more consideration. Leaving aside the obvious connection between the considered formula and the political Authority called to authorize the conduct, the forecast expressed by the legislator assumes greater significance if it refers to the paragraph 4 of the art. 18 where it is foreseen the possibility for the directors of the Agencies to release the authorization in cases of necessity and urgency that do not allow to regularly acquire the same on the basis of the procedure provided for by the paragraph 2 of the same article. In these particular cases the directors of the Services must strictly respect the rules for authorization in order to avoid that at the time of ratification the President of the Council of Ministers or the Delegated Authority finds himself having to revoke, modify or suspend the effectiveness of the itself for lack of the requisites with consequent informative to the Judicial Authority as foreseen by the comma 6 of the art. 18.

Moving on to analyze the objective limits contained in the art. 17 comes across a series of assets that the legislator has identified as not subject to comparison with the purposes pursued by the Services in a balancing of interests. Article. 17 2 paragraph provides that " The special cause of justification referred to in paragraph 1 does not apply if the conduct established by law as a crime configures crimes aimed at endangering or harming life, physical integrity, individual personality, personal freedom, moral freedom, the health or safety of one or more people. "

The lexical technique used in the art. 17 comma 2 divides the non-aggrandiable goods by categories corresponding to some of the qualifications foreseen in the special part of the penal code allowing the interpreter to have a clear vision of the cases in which conduct provided by law as a crime can not be justified.

With regard to the good of life and physical integrity, the law implicitly refers to the crimes of: murder, beatings, personal injury, brawl, failure to rescue. With regard to crimes against the individual personality, we can list those of reduction or maintenance in slavery; induction, aiding or exploitation of child prostitution or child pornography; it is about people. The reference to personal freedom refers to the crime of kidnapping, illegal arrest, undue limitation of personal freedom, abuse of authority against arrested or detained, searches and arbitrary personal inspections, sexual assault, corruption of a minor. The authorization will also always be excluded in reference to those conducted to commit the crime of private violence, violence or threat to force anyone to commit a crime, threat, extortion and robbery.

Still the art. 17 will not be able to scrutinize the crimes of massacre, fire, damage caused by fire, airborne and railway disaster, attack on transport safety, the safety of electricity and gas installations or public communications, manufacture and possession of exploding material. The health aspect is protected in reference to crimes of epidemic, poisoning of water and food substances and all those pertaining to the offense of public health.

The recognition of situations excluded from the possibility of applying the special cause of justification contained in art. 17 proceeds by identifying a series of goods that, due to their democratic, political and social importance, are considered prevalent to any other in balancing interests. The paragraph 3 refers to the crime of attack against constitutional bodies and regional assemblies (Article 289 cp), which would be configured through the commission of violent acts aimed at preventing all or part, even temporarily, the exercise of functions of constitutional bodies and regional assemblies. The law continues with the identification of the crime of attack against the political rights of the citizen (Article 294 cp) and with those against the administration of justice. These include implicitly the crimes of: simulation of crime, slander, false information to the public prosecutor, false testimony, trial fraud, false declarations or attestations in documents intended for judicial authorities, obstruction of justice, disclosure of secrets inherent in a proceeding criminal law, obtaining evasion, arbitrary exercise of their own reasons. Among the latter, crimes of personal or real aiding that are indispensable for the institutional purposes of the security information services are explicitly excluded and implemented in strict compliance with the procedures set out in Article 18. Such cases to be authorized must not be carried out through false declarations to the judicial authorities or through the concealment of evidence of a crime or must not be aimed at misleading the investigations ordered by the judicial authority. The scope of non-application of the negligent continues in providing for not allowed the crime provided for by art. 255 cp rubricato Deletion, falsification or subtraction of acts or documents concerning the security of the State and that of exploitation of prostitution under the law 20 February 1958, n. 75, and subsequent modifications.

The comma 4 of the art. 17, in providing still conducts that can not be justified, makes a connection with the art. 39 paragraph 11, of the Criminal Code providing that conduct can not be authorized under the law as a crime for which the state secrecy can not be opposed pursuant to Article 39, paragraph 11, with the exception of the cases referred to in the 270 articles, according to subparagraph, 270-bis, second paragraph, 270-ter, 270-quater.1, 270-quinquies, 302, 306 second paragraph, 414, fourth paragraph, and 416-bis, first paragraph, of the penal code (before the anti-terrorism decree the second paragraph 270-ter, 270-quater.270, 1-quinquies, 270, 302 second paragraph, 306, fourth paragraph were excluded). Analyzing the combined provisions of the subsection 414 art. 4 and of the comma 17 art. 11 emerges as can not be scriminated even the direct conduct to configure the crimes of devastation looting and massacre aimed at threatening the security of the state (Article 39 cp), mafia political exchange (Article 285-ter) and a massacre aimed at endangering public safety (Article 422 cp).

The examination of the cases of exclusion of the special cause of justification ends with the paragraph 5 of the art. 17 which takes into consideration particular places where the operators of the Services can not put in place certain behaviors. This paragraph states that " The conduct referred to in paragraph 1 can not be carried out in the seats of political parties represented in Parliament or in an assembly or regional council, in the offices of trade unions or against professional journalists registered in the register ".

The provision is aimed at avoiding the involvement of particularly representative bodies of politics and trade unions in matters of intelligence. The reference to the category of professional journalists is aimed at safeguarding the exercise of one of the most important rights provided by the Constitutional Charter, that is the one of expression of thought and news (article 21 Cost.) That the legislator considered to be non-expendable in no case.

The comma 6 of the art. 17 reads n. 124 / 2007 identifies the conditions for the Authority's authorization to be issued, stating that " The special cause of justification applies when the pipelines:

a) are implemented during the year or due to the institutional duties of the security information services, in implementation of an authorized and documented operation pursuant to Article 18 and according to the organizational rules of the Security Information System;

b) they are indispensable and proportionate to the achievement of the objectives of the operation not otherwise punishable;

c) are the result of an objective and complete comparison of the public and private interests involved;

d) they are carried out in such a way as to result in the least possible damage to injured interests.

The reading of the considered standard brings, ictu oculi, to be able to make the first considerations.

Points b) and c) refer to the principles of proportionality and impartiality typical of administrative law. The principle of proportionality requires that in order for the administrative decision to be proportionate there must be three profiles: the adequacy of the decision itself in order to achieve it; the fact that the measure does not exceed what is necessary to achieve the prefixed end and that there are no less restrictive measures; the balanced proportion between the public utilities to whose pursuit the decision is finalized and the sacrifices imposed. To this last aspect is connected the principle of impartiality that provides for the obligation for the public administration to make an adequate assessment of all the interests at stake before deciding.

The natural consequence of these forecasts is the connection with the articles 1, 3 and 18 which provide for the discretionary power to authorize the behaviors that constitute offenses in the context of an intelligence operation only to the President of the Council of Ministers or to the Delegated Authority where established.

Among the considerations that can be made at a first glance, it is worth noting that relating to the complexity deriving from an excessive enumeration of limits that leads to a difficult balancing of interests with the possible consequence of placing the operators of the Services and the Authority that issued the authorization in a vulnerable position (2). However, even if it is inevitable to affirm the complexity of achieving a coordination between all the parameters provided for by the paragraph 6 of the art. 17 this can not do anything but help the legitimated Authority to issue the authorization, which will in fact be obliged to make the relevant decisions through a series of steps that will allow it not to escape from the legislative canons that guarantee the legitimacy of the authorization. Otherwise, in fact, the risk is to see the authorization canceled at the time of the assignment conflict before the Constitutional Court, after the opposition of the provision before the Judicial Authority. In this case the operators would be exposed to the risk of being punished for the conduct held if the exemption from art. 51 cp as executors of an order knowingly recognized as illegitimate.

What has been said about the tendency of the law n. 124 / 2007 to model itself on the will to regulate and therefore to authorize only those activities defined as ordinary, is particularly found in the legislative provision established by the letter a) of the paragraph 6.

The reference to the institutional tasks of the Information Services inevitably leads back to the provisions of Articles 6 and 7. The phrase to refer to is that which establishes that AISE and AISI " is entrusted with the task of researching and developing in the areas of competence all the information useful for ... ". The informative research aimed at acquiring useful information for the homeland security through activities of humint, techint, osint and of all the other methods of research it is therefore to guide the Authority and the operator in authorizing and in committing actions envisaged by the law as a crime.

Therefore, this aim is to protect all the activity of modern services, thus implying that only the behaviors envisaged abstractly as a crime, functional to this task, will be able to find their justification in the pertinent regulatory scenario.

In this context, the reference to art. 23 comma 2. The distinction that is found in this article between specific operations of the Services and activities for the protection of the structure and personnel that can be performed even by members of the DIS appears to be non-decisive to recognize the special cause of justification only to staff called to perform operations of intelligence. The derelict object of the art. 17 will therefore be recognized also to those who perform the activities identified pursuant to art. 23 2 paragraph on the basis of the same parameters by virtue of which it is recognized to operators belonging to AISE and AISI, ie only when the activity is aimed, even if indirectly and through a mere security activity, to implement the information assets of the Services themselves. This means that the provision of a justification relating to the commission of facts constituting a crime that take place in the context of mere internal or external security operations of that purpose (3) is excluded. These behaviors will be discriminated on the basis of normal justifying procedures, especially with reference to art. 51 cp. It can therefore be concluded by claiming that they will be non-discriminable pursuant to art. 17 criminal conduct that, although oriented to prohibit a threat to the security of the State from inside or outside the country, are not connoted by the requirement of regulatory acquisition and therefore normatively out of the cases provided for by art. 17 and 23 comma 2 of the law n. 124 / 2007.

The letter a) the paragraph in question continues its determination by establishing the necessary authorization and documentation of the operation in question. The authorization refers to the precise procedure contained in art. 18 and the organizational rules of the Information Security System pursuant to art. 43 of the law n. 124 / 2007. The provision of a necessary authorization is functional to the protection of the operator as he can, in the event of a conflict of attribution before the Constitutional Court, highlight on the basis of the attached documentation, the adherence of his conduct to the order legitimately given by the Authority higher. Therefore, taking advantage of the criterion of transparency that permeates all the regulatory framework in question, the judge called upon to decide on the matter will be able to evaluate without any doubt the criminal liability of the agent or the application of the general cause of justification guaranteed by the art. . 51 cp The systematic analysis of the paragraph 6 then leads to pay attention to the issue of the indispensability and proportionality of the conduct aimed at achieving the objectives of the operation not otherwise achievable. The requirement of indispensability therefore requires that the conduct established by law as a crime is the only option that can be implemented to achieve the objective set. To temper this parameter, so that it is not used disproportionately, intervenes the character of proportionality of the conduct, which must be reasonably adequate to the pursuit of the information objective. The conduct constituting a crime will therefore not be considered legitimate and therefore justifiable when it is put into place in order to pursue a result objectively achievable with a less invasive action.

The third condition that must occur so that the special cause of justification can be considered operative is identified by the legislator in the objective and complete comparison of the public and private interests involved. In fact, from this requirement emerges the usefulness of providing a series of factors (those contained in the paragraph 6) that the Authority responsible for issuing the authorization must consider even if rather complex. As repeatedly mentioned, the Information Services for the Security of the Republic devote its activity to guaranteeing the security of the State. This intention has often been the subject of profound reflections also by the Constitutional Court, which have sanctioned in a solemn and particularly shareable way the idea that the security of the State is a supreme and essential interest compared to which all other interests are be inevitably recessive.

It would therefore seem that a comparison such as that provided for in the letter c) the paragraph 6 is always intended to see the public interest triumphant because of the private interest that would inevitably be sacrificed. Although this prospect may seem obvious should not be left to a superficial reading of the rule that instead requires an interpretation combined with the provisions of the previous paragraphs. The paragraphs 2, 3, 4 and 5 provide for a whole series of assets that the legislator has deemed appropriate to protect even against a very high interest such as national security. For this reason it can be considered that, despite the activity of the Information Services, it is guided by the attainment of objectives deemed indispensable as they include a complex series of values, these, if they are prosecuted by behaviors provided abstractly by the law as a crime, not they can be subdued if compared with the private interests indicated in the paragraphs 2, 3, 4 and 5 of the law n. 124 / 2007.

The last requirement required by law to deem a criminal offense to be criminalized is that indicated in the letter d) which provides for the necessary planning of the conduct in such a way as to cause the least possible harm to the injured interests. This testifies to the legislator's desire to believe that even if the damage of a good is necessary, it must in any case be of such intensity as to bring the least possible damage with respect to the objectives to be pursued.

Andrea Strippoli Lanternini

 Click here for the first part (1 / 3) 

 Click here for the third part (3 / 3) 

(1) MOSCOW C., GAMBACURTA S., SCANDONE G., VALENTINI M., The information services and the state secret (Law 3 August 2007, n.124), Giuffrè ed.

(2) Ibidem

(3) CISTERNA A., Secret agents, The guarantees provided by law.

(opening a film frame of the film Skyfall)