The first judicial victory of the Free Territory of Trieste

Trieste, 1947 – ship Victoria with the flags of State of the Free Territory of Trieste and of the United States of America

 

Analysis by Paolo G. Parovel

In a previous analysis (LINK) we have already described the new legal defences of the Free Territory of Trieste and of its international Free Port from the anti-democratic attempt of the Italian administration to trial 17 directors and activists of the Free Trieste Movement by charging them with “rebellion” against the sovereignty of the State of Italy.

The claims have no legal bases, being the current Free Territory of Trieste established since 1947 as an independent sovereign State, member de jure of the United Nations, under the protection of the Security Council and, since 1954, it is entrusted under a mandate of temporary civil administration to the responsibility of the Italian Government. Not to the State of Italy, which has no sovereignty over it. For the same reason, Italian laws can be enforced in Trieste only if extended and adapted through the suitable decrees of the provisional Government.

Also, the Republic of Italy has recognized the Free Territory of Trieste and its provisional regime of Government with dedicated laws that are part of its legal system and with international treaties and agreements, which establish obligations that are binding under its own Constitution. Declaring the sovereignty of the State of Italy over Trieste is therefore a contradiction in legal terms, because it violates the very legal system of the State of Italy. And the supporters of the independence of Trieste are not “rebels” but citizens who claim respect for the laws of both States.

The Free Trieste Movement had founded its previous exceptions of jurisdiction on the international status of the Free Territory of Trieste, but Italian judges had rejected them with reasons consisting in false interpretations of international law, political declarations and threatens, also, to prevent their impugnation, they had issued those as ordinances instead of as judgments.

In the current trial, Free Trieste has questioned the jurisdiction of the State of Italy over the Free Territory of Trieste using also the Italian laws that recognize this State. By doing so, it has made it impossible for the judge to declare the sovereignty of the State of Italy without knowingly infringe Italian law. And it has also prevented subordinate exceptions of the non-neutrality of the judge and of anticonstitutionality.

The judge has rejected the exception with the usual, illegal instrument of ordinance just like his predecessors, however, contrarily to them, he attempted to hide the legal impossibility to claim Italian sovereignty over Trieste with a declaration built in order to be possibly interpreted both in positive or negative terms, therefore, leaving the question suspended until the end of the trial.

But the truth is that the choice of ambiguity is a first and double victory for the Free Trieste Movement. Because it means that the judge considered it not legally possible declaring the sovereignty of the State of Italy over Trieste, but he is not even free to declare that of the Free Territory because political pressures prevent it. And this kind of pressing violates the Italian Constitution, which establishes the independence of the judges

The escamotage of the judge is clear, because the exception presented requested him to declare «if during the trial he wants to exercise the jurisdiction of State of the current Free Territory of Trieste – Territorio Libero di Trieste – Svobodno Tržaško Ozemlje under the provisional regime of government – temporary civil administration – entrusted to the responsibility of the Italian Government, or the jurisdiction of State of the Republic of Italy».

Yet, in his ordinance, the judge did not declare what he was requested to, but «observes» that «criminal offences committed within the territory of the State are subject to Italian criminal law, and within the mentioned territorial borders exists the jurisdiction of the Republic of Italy, exercised by the bodies that the Constitutions appoints in this role». As clear, he does not recise if the State he refers to is Italy of the Free Territory of Trieste administered by the Italian Government. And this makes the sentence bivalent, thus deceptive.

In facts, if the “State” identifies the Free Territory of Trieste, this sentence would mean that crimes committed within its borders are subject to Italian criminal law since it is the provisional Italian Government that exercises its jurisdiction in there, being it a Constitutional body of the Republic of Italy, as it is the magistracy that it appoints within the trust territory.

On the contrary, if he refers to the State of Italy, the sentence would have the self-evident meaning that crimes committed within the national territory of the State of Italy are subject territorial boundaries, to the Italian criminal law, due to the exercise of the sovereign jurisdiction of the Republic of Italy.

The conceptual escamotage is the oracular kind of the ancient Sybille: “Ibis redibis non morieris in bello” leaving room for two opposite interpretations, but ultimately, the actual choice and all responsibility belong to the interlocutor. But in the context of legal principles it is not allowed pronouncing ambiguous or deceptive judgments, nor it is allowed substituting judgments with mere ordinances.

Therefore, the ordinance of the judge is null and void for both reasons, and the Free Trieste Movement renews the exception of jurisdiction. as well as demanding that the Judge expresses himself with the expected judgement, declaring clearly which of the jurisdictions he is willing to exercise, as well as listing what international legal instruments and Italian laws did, eventually, establish the sovereign jurisdiction of the State of Italy over the current Free Territory of Trieste.

Because those international instruments and Italian laws do not exist, and the Italian judge who would continue to simulate the sovereignty of the State of Italy over the Free Territory of Trieste and over its international Free Port would violate also Italian law in order to convict 17 not guilty citizens, and would also cause a political-legal scandal that, to this point, could not but be exposed as far as before the United Nations.

Paris, 1948 – the Delegates of the member States of the OEEC – OECE: in the front there is the representative of the Territoire Libre de Trieste, between those of Switzerland and of occupied Germany.

© 27 Novembre 2015