The new judicial strategies of the Free Territory of Trieste

Analysis by Paolo G. Parovel

On 9 November 2015, in Trieste, took place the first hearing of the trial in which Italian authorities accuse the supporters of the independence of Trieste with crimes because of a peaceful demonstration held on 10 February 2014 in defense of the international Free Port of the Free Territory of Trieste. The public prosecutor enforced a law of the Fascist Code to charge them with “rebellion” against the State of Italy.

The truth is that the current Free Territory of Trieste is a little independent State with an international Free Port, it was created with the Treaty of Peace of Paris of 10 February 1947, and it is temporarily entrusted to the responsibility of the Italian Government – not to the State of Italy – under a mandate of civil administration. But, in facts, the provisional Government does unlawfully treat both the Free Territory and the international Free Port as if they were subject to Italian sovereignty.

This is why the trial becomes a boomerang for Italian authorities. Essentially, the Free Trieste Movement uses it to document the real legal situation, so the judge must either recognize it – acquitting the defendants – or deny it, committing a scandalous violation of international and Italian law, which will be impugned before all competent Courts.

To do so, the Free Trieste Movement lodged, in person of its defence lawyer Edoardo Longo, three preliminary exceptions with which it demonstrates that the State of Italy has no jurisdiction over the Free Territory of Trieste, that when it comes to this matter, an Italian judge cannot be neutral nor a third party, and that the attempt to subject the Free Territory to the sovereignty of the State of Italy violates the very Constitution of the Republic of Italy.

The trial was postponed to the next week, on 16 November, to allow the judge and the prosecution to examine the raised exceptions and possibly reject them with plausible motivations. But doing so, they would have to revert the paradox of affirming the jurisdiction of the State of Italy, violating its own laws that recognize the Free Territory of Trieste.

Since this is a complex matter, to allow its best possible understanding, follows the publication of the three procedural exceptions of the Free Trieste Movement.

A. The exception of the jurisdiction of State

The first and main exception requests that the judge decides, primarily to any other act, 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.

For this purpose, the documents make it clear to the judge that:

1. the instruments of international law now in force (see: US Department of State, Treaties in force) establishing the jurisdiction of the current Free Territory of Trieste as sovereign State, member de jure of the United Nations and under the direct protection of the Security Council, as well as entrusting its temporary civil administration to the Italian Government under a special, second-level trusteeship mandate, deriving from the first mandate entrusted to the military command structures of the Governments of the United States of America and of the United Kingdom of Great Britain and Northern Ireland, are:

a) the Treaty of Peace between the Allied and Associated Powers with Italy, signed at Paris on 10 February 1947, articles 4, 21, 22, 48 paragraph 5, 78 paragraph7, 79 paragraph 6 g, 85 and Annexes I D (Borders), VI (Permanent Statute), VII (Provisional Regime), VIII (Instrument for the international Free Port), IX (Technical dispositions), X (Economic and Financial provisions).

b) the Memorandum of Understanding between the Government of Italy, of the United Kingdom, of the United States and of Yugoslavia, concerning the Free Territory of Trieste, signed in London on 5 October 1954 as an additional instrument for the execution of the Treaty of Peace.

2. Both titles are implemented in the legal system of the Republic of Italy, as part of which they constitute international obligations prevailing on both national and regional law (articles 10, sub-paragraph 1 and 117, sub-paragraph 1 of the Italian Constitution) with the following laws of ratification and execution, in force: Law No. 811 of 2 August 1947, Legislative Decree of the Provisional Head of State No. 1430 of 27 November 1947, Law No. 3054 of 25/11/1952, Decree of the President of the Republic of 27 October 1954, Constitutional Law No. 1/1963, article 70.

3. The Republic of Italy did as well confirm to recognize the Free Territory of Trieste from 1947 to the present day with bilateral and multilateral agreements undersigned, in particular, with the Free Territory itself, with the United States of America, with the United Kingdom and in international and European organizations (ERP, OEEC-OECE, EPU-UEP, ECMT-CEMT, ICPO, etc.), as well as with dozens of consequent legal acts on the matters of diplomatic representation, terrestrial and maritime borders, justice, administrative bodies, finances etc. which are all in force (including expenditure notes of the current, 2015 State Budget).

4. In accordance with the generally recognized principles of international law, consolidated in the Charter of the United Nations and in the Vienna Convention on the Law of Treaties, the Treaty of Peace was never amended, except for the territorial extension, inapplicable since 1992 only when it come to the territorial clauses concerning former “Zone B” of the Free Territory of Trieste, as a direct consequence of the international recognition of the Republics of Slovenia and Croatia consolidated under Resolutions of the UN Security Council S/RES/753 (1992), S/RES/754 (1992) and S/RES/777 (1992).

5. The validity and legal force of the Memorandum of Understanding of London of 1954 towards the Free Territory of Trieste, the provisional Governments and all other States were confirmed once again in the Italian legal system:

a) by the Decree of the President of the Republic of 27 October 1954, title: “Nomina di un Commissario del Governo per il Territorio di Trieste” (Appointment of a Commissar of the Government for the Territory of Trieste) and by article 70 of the Constitutional Law 1/1963 that transferred this functionary’s legislative and trusteeship powers to the Commissar of the Italian Government in Region Friuli Venezia Giulia and, in part, to the Prefect and to the Region itself.

b) by article 7 of the bilateral Italian-Yugoslav Treaty of 10 November 1975, which declared that the effects of the Memorandum of Understanding cease to have effect in relations between the Italian Republic and the Socialist Federal Republic of Yugoslavia (Vienna Convention on the law of treaties, article 41), did therefore recognize their legal value and efficacy in relations between all other subjects of international law.

c) the circumstance that the Italian Government still exercises, to this day, the international mandate of temporary civil administration over the Free Territory with its own legal provisions or with those of the bodies it has delegated under article 70 of Constitutional Law No. 1/1963, in articular, acts of the Commissar of the Government on the matters of financial allocations relating to the exercise of this mandate and concerning the areas of the international Free Port (see also Law No. 190/2014, article 1, sub-paragraph 618; Decree of the Commissar of the Government No. 19/8-33/2015 of 15 May 2015).

6.As for the administration of justice, the issuing of judicial decisions in the Court of Trieste since 1955 with the formal expression «Repubblica Italiana – in nome del Popolo italiano» (Republic of Italy, in the name of the people of Italy) is deceptive because it does not constitute an evidence of the exercise of the sovereignty of State of the Republic of Italy, but of the exercise of the sovereignty of State of the Free Territory of Trieste.

For instance, this formula does not follow the Italian law that established it (Legislative Decree of the Provisional Head of State No. 1 of 19 June 1946), because that has never been extended to the Free Territory of Trieste, rather, it follows an autonomous legislative act of the temporary civil administration of the Free Territory of Trieste, precisely, Decree No. 184 of 7 June 1955 of the General Commissar of the Government (a copy is annexed to the exception).

6. As for the thesis of the alleged re-establishment of Italian sovereignty over the Free Territory of Trieste that appear as carbon copies of the erroneous decisions of certain magistrates of this Court and of the Regional Administrative Court, those are doctrinal productions with political purposes, their lack of legal bases has already been pointed out to the President of the Court of Trieste with an act dated 29 June 2015 (a copy is annexed to the exception).

B. The exception of the non-neutrality of the Italian judge

The second exception follows from the first: if the Judge declares that in the trial he exercises the jurisdiction of State of the Republic of Italy, he would no longer be neutral on this matter, nor would he be a third party. Therefore, the trial would violate the fundamental legislation on fair trial established by the Constitution of the Republic of Italy (article 111, paragraphs 1 and 2), of the Charter of Fundamental Rights of the European Unions (article 47) and of the Universal Declaration of Human Rights (article 10).

This is because the criminal judge who exercises the jurisdiction of the State of Italy cannot be considered, both subjectively and objectively, neutral or a third party in a trial aiming at repressing and punishing as main offence the democratic right of the citizens of Trieste to demonstrate, peacefully and in accordance with the law, the non-existence on legal bases of that jurisdiction over their territory.

In this case, therefore, the judge is rejected, and the question is open on an international level, because he should be substituted by a third-party judge, appointed by the Italian Government in its role of current temporary civil trustee of the Free Territory of Trieste, or by the Governments of the United States and of the United Kingdom as they hold the primary administration mandate (Treaty of Peace, Annex VII, article 1), or appointed directly by the Security Council of the United Nations as guarantor of the Free Territory of Trieste (see: Resolution S/RES/16 (1947); Treaty of Peace, article 21 and Annex VI, article 2).

C. The exception of unconstitutionality

The third exception is based on the fact that the violation of the international obligations of the State of Italy does as well violate its own Constitution.

Therefore, are unconstitutional all laws of the Italian legal system establishing the Italian judicial bodies (Courts, Courts of Appeal, etc.) in their parts that include the Court and Court of Appeal of Trieste, without specifying that they are not extending the jurisdiction of the State of Italy, but the jurisdiction of State of the Free Territory of Trieste, entrusted under a mandate of temporary civil administration to the Italian Government.

The legal evidences lodged by the Free Trieste Movement extend on five levels:

1. The Republic of Italy has taken upon the obligation to recognize and respect the sovereignty of State of the Free Territory of Trieste:

a) with the laws, in force, of ratification and execution – without reserves – of the Treaty of Peace between the Allied and Associated Powers and Italy signed at Paris on 10 February 1947, in force (Law No, 811 of 2 August 1947, Legislative Decree of the Provisional Head of State No. 1430 of 27 November 1947, Law No. 3054 of 25/11/1952);

b) with the laws of ratification and execution of the international instruments, in force, which defined and consolidated the international laws generally recognized on the matter, in particular: the Charter of the United Nations, the Vienna Convention on the law of treaties– including its articles No. 27, 30, 34, 35, 40. 41, 42, 62 paragraph 2 a) and b); the Declaration of Principles of International Law, Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations; the International Covenant on Civil and Political Rights; the Final Act of the Conference on Security and Co-operation in Europe.

2. The violation of those norms and international obligations would be committed by the bodies of the Republic of Italy if they refuse to recognize the sovereignty and jurisdiction of State of the Free Territory of Trieste would also violate the Constitution of the Republic of Italy, precisely, its article 10, paragraph 1, which establishes that the Italian legal system conforms to the generally recognised principles of international law, and its article 117, paragraph 1, rules that Legislative powers shall be vested in the State and the Regions in compliance with the Constitution and with the constraints deriving from international obligations, which therefore prevail on it.

3. The Italian legal order has recognized and executed the mandate of temporary civil administration over the Free Territory of Trieste, entrusted to the responsibility of the Italian Government (not of the State of Italy, since that would have caused a conflict of sovereignty) with the Memorandum of Understanding of London of 5 October 1954 in execution of the Treaty of Peace of Paris of 10 February 1947, constituting in two different, specific legislative acts, both in force:

a) the Decree of the President of the Italian Republic dated 27 October 1954 (Official Gazette of 28 October 1959, No. 249) titled “Appointment of a Commissar of the Government for the Territory of Trieste”. The General Commissar was appointed by the President of the Republic of Italy with Decree dated 27 October 1954, justified with «the need to assign to a general Commissar the administration of the Territory of Trieste, placed, upon the ceasing of the Allied Military Government, under the responsibility of the Italian Government».

b) article 70 of Constitutional Law No. 1/1963, ruling that «Until otherwise indicated with a Law of the Republic, the powers of administration of the general Commissar of the Government for the territory of Trieste – excluding those entitled to the Prefect and those transferred to the Region – shall be exercised by the Commissar of the Government in the Region.»

4. Following the establishment of the Free Territory of Trieste as an independent State since 15 September 1947, the State of Italy has excluded from its judicial order the Court of Trieste and the Court of Appeal of Trieste with the following legal measures:

a) Legislative Decree of the Provisional Head of State No. 1430 of 27 November 1947 «Modifications of the jurisdictional circumscription of the Court of Appeal of Trieste» which has aggregated to other circumscriptions its sections that had remained under Italy sovereignty: the Court of Gorizia to the Court of appeal of Venice, and the Municipality of Grado to the Pretura (District Court) of Monfalcone, with legal effects since 16 September 1947, first day after the coming into force of the Free Territory of Trieste (with the previous Legislative Decree of the Lieutenant No. 91/1946, the Courts of Pordenone, Tolmezzo and Udine had already been detached from the Court of Appeal of Trieste and aggregated to that of Venice).

b) Legislative Decree of the Provisional Head of State No. 1641/1947 «Final institution of the Court in the Municipalities of Orvieto and Vasto», which, at article 2 and at tables B, C, D, E, F, modifies the general organisation charts of the personnel of Italian Courts (magistrates, officers of the chancellery and secretary, judicial officers and Court ushers) reducing to zero the personnel of the former Italian Courts of Trieste and Capodistria (Free Territory of Trieste) and Pola, Fiume, Zara (territories ceded to Yugoslavia).

5. This is because, since 1955, even the issuing of judicial decisions of the Court of Trieste and of the Court of Appeal of Trieste with the formula «Repubblica Italiana – in nome del Popolo italiano» (Republic of Italy – inthe name of the people of Italy) does not follow the Italian law, but an independent legislative act, in force, issued as part of the exercise of temporary civil administration over the Free Territory of Trieste, precisely,Decree No. 184 of 7 June 1955 issued by the general Commissar of the Italian Government for the Free Territory of Trieste.

International attention

So far, the Italian magistracy in Trieste has rejected all exceptions of Italian jurisdiction; the Court supported its decisions with thesis of political, not legal, nature. The analysis of the contents of those judgments and their time sequence do even make clear that Italian political circles outside the magistracy have influenced those legal decisions.

As for this trial, the Italian judge has three choices: to recognize the legal existence of the Free Territory of Trieste, denying it or finding a way to cancel the trial without expressing himself on the subject. But, nevertheless, there are two reasons why Italian authorities cannot consider to keep suffocating with local judgments an international question.

The first reason is that the Free Trieste Movement, in this trial, used only a part of the legal elements in its favour, many others are kept in reserve. The second reason is that it has already gained the increasing, international attention of financial groups, mass media and foreign Governments on both the rights and extraordinary fiscal advantages of the Free Territory of Trieste and its international Free Port.

© 13 Novembre 2015