28 March 2012
Abu Omar trial to go ahead as government is accused of "disloyalty"
The trial in Milan for the kidnapping and rendition in February 2003 of Egyptian imam Abu Omar, in which charges against 35 people including former SISMI director Nicolò Pollari, Italian secret service officials and 26 CIA officers is set to continue. It will thus be heard after it has been suspended since 18 June 2007, ten days after it started. The suspension was decreed to allow the constitutional court to rule on whether Milan prosecutors had acted outside their competencies by using documents covered by state secret, as was alleged by the state's prosecution services.
In a hearing in a Brescia court, public prosecutor Armando Spataro criticised the government for its lack of clarity and ambiguity in relation to the state secret to which documents that are relevant for the case were subjected, which has given rise to the conflict of attributions. Spataro claims that the government stopped the matter from being decided upon in January 2008 by expressing its readiness to withdraw allegations of a conflict between institutional powers, until the crisis that resulted in the Prodi government losing its parliamentary support and new elections being called.
Spataro argues that the case presented by the state included errors of fact when it alleged that prosecuting magistrates has contravened legislation on state secrets. The documents were confiscated during a raid in July 2006 on a SISMI office in Rome's via Nazionale run by Pio Pompa, who has come under investigation for "misinformation" and covert activities such as the surveillance of judges and NGOs (see Statewatch vol. 17 no. 2). They were also sent to the European Parliament TDIP committee investigating renditions as evidence that Italian intelligence services were aware of Abu Omar's whereabouts at a time when this was being officially denied (see Statewatch news online, November 2006).
The Brescia court that heard the case against investigating magistrates shared the view that answers provided by the government did not clarify matters. The memo that Spataro submitted to the court accuses the government of "disloyal co-operation" by affixing a state secret that was "inexistent and instrumental" and by raising a case of "conflict of attributions" by using the deceitful arguments of a defendant (Pollari) rather than for the defence of national security. Moreover, negotiations to withdraw the "conflict" by mutual consent were proposed, only to be dropped once the decision by the constitutional court was postponed, in what Spataro suggests was a dilatory tactic, although he also accepts that it was impossible to continue the procedure to shelve the objections once elections were called as the government was only allowed to fulfil "caretaker" functions.
The government reacted angrily to the allegations by Spataro, explaining in a statement that the documents were covered by a state secret placed on them by the Berlusconi government (after they had come into the public domain) that was merely confirmed by the Prodi government "on express request from the previous government during the takeover process". The statement went on to argue that "the state secret" does not cover "matters concerning the Abu Omar kidnapping", which can nonetheless be ascertained by magistrates with every evidence collection allowed, while respecting the state secret".
The decision to re-start the trial was justified by Judge Oscar Magi in order to ensure "a reasonable duration of the trial", on the basis of negotiations between the government and prosecutors that reduce the significance of the conflict, and temporarily excludes some of the documents in question from the trial papers. Prosecutors have reportedly accepted not to use the documents in question, if they are allowed to substitute them for others sent by SISMI, parts of which are blacked out. The constitutional court is scheduled to decide on the conflict of competencies on 8 July 2008, a decision that may influence proceedings.
ANSA, 19.3.2008; Repubblica, 12.3.2008; Corriere della Sera, 20.3.2008.
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