The Constitutional Court has partially upheld the appeal regarding Bartolozzi: the opposition is celebrating but has completely missed the point

Yesterday’s decision by the Constitutional Court by no means brings the Bartolozzi case to a close; on the contrary, it remains very much open, with the not-unlikely possibility that it will return before the Court. The Constitutional Court has partially upheld the dispute over the division of powers raised by the Chamber of Deputies against the Ministers’ Tribunal and the Rome Public Prosecutor’s Office, which had been dealing with the case of Osama Almasri, the Libyan general accused of torture and rape by the International Criminal Court, who was arrested in Italy last year and then repatriated on a secret service aircraft. The appeal concerned the position of Giusi Bartolozzi, who at the time of the events was chief of staff to the Minister of Justice, Carlo Nordio (the only person excluded from the proceedings authorising the prosecution to proceed). The Constitutional Court ruled that the Ministers’ Tribunal had infringed Parliament’s prerogatives because it should have explicitly stated the reasons why it did not consider Bartolozzi to be liable for complicity in the offences attributed to the minister. The Rome Public Prosecutor’s Office had similarly failed to fulfil its duty, as it should have communicated the Tribunal’s findings to the Chamber of Deputies. On the other hand, the Court ruled that neither the Ministers’ Tribunal nor the Public Prosecutor’s Office was under any obligation to seek authorisation to proceed against Bartolozzi for the offence of making false statements, which she is accused of having committed in relation to the accounts she gave to the Ministers’ Tribunal regarding the Almasri case. The opposition is claiming victory, but the reality is quite different. 

First and foremost, a significant point must be noted: the Constitutional Court has clearly stated that the Ministers’ Tribunal has caused “an infringement of the Chamber’s prerogatives” (represented in court by Prof. Vittorio Manes). The Court noted, in fact, that following the investigations carried out by the Court of Ministers into Minister Nordio, the Rome Public Prosecutor’s Office had expressly urged the Court to classify Bartolozzi’s conduct as aiding and abetting the offences attributed to Minister Nordio or, alternatively, to charge her with the offence of making false statements during the investigations. “By virtue of the principle of loyal cooperation between the branches of government,” the Court states, “in response to this request, the Court should have explicitly set out the reasons why it did not consider Dr Bartolozzi to be liable for complicity in the offences attributed to the Minister. Had it established such complicity, in fact, the Court of Ministers would have had to seek authorisation from the Chamber to proceed against Dr Bartolozzi herself, as well as against the minister.” The Court of Ministers, however, did none of this in its final report.

Another breach of Parliament’s constitutional prerogatives was committed by the Rome Public Prosecutor’s Office, which, on this point, should have communicated the Court’s findings to the Chamber of Deputies, “so as to enable it to bring a conflict of jurisdiction case against the judicial authority, should it have considered that the Court’s decision had infringed its constitutional prerogatives”.

It is against this backdrop that the case concerning the false statements made by Bartolozzi arises. Regarding this allegation, the Constitutional Court ruled that there was no obligation on the judiciary to seek authorisation to proceed. However, all this took place after the violation of Parliament’s prerogatives. The alleged false statements would not have been made by Bartolozzi had she been interviewed from the outset as a person under investigation as an accomplice in the offences then alleged against the Minister of Justice. “In that case, in fact, the Panel would have had to precede the hearing with the warnings due to persons under investigation, and in particular the warning regarding the right to remain silent. In any event, the alleged offence under Article 371-bis of the Criminal Code (false information, ed.) could not, in principle, have been attributed to her, given that a co-defendant in the same offence is incompatible with giving evidence.”

For these reasons, the Court emphasises that “the question of whether the consequences in question actually amount to violations of the Chamber’s constitutional prerogatives remains open. Similarly, it remains open whether they may be assessed as violations of the defendant’s rights of defence, to be invoked as such in any criminal proceedings that may be brought against her”.

In other words, the Court of Ministers ‘had – and still has’ – the responsibility to set out its assessment regarding Bartolozzi’s position and to communicate it, via the public prosecutor’s office, to the Chamber of Deputies. When this happens, the Chamber of Deputies, should it deem the Court’s assessments to be incorrect, may raise a new conflict of jurisdiction before the Constitutional Court. Furthermore, it remains to be seen whether the Constitutional Court’s criticisms regarding violations of the right to a defence will have direct implications for the trial against Bartolozzi (whose husband, the former vice-president of the Sicilian Region, Gaetano Armao, has in the meantime been placed under house arrest on charges of corruption).