The sovereignty of the Free Territory of Trieste is not under the competences of Italian courts

Analysis by Paolo G. Parovel

 

As we have written before (LINK), Italian authorities are attempting to trial and convicts certain heads and activists of the Free Trieste Movement because they affirm the nonexistence of the sovereignty of the State of Italy over the present-day Free Territory of Trieste (F.T.T.).

The present-day Free Territory of Trieste is a little European sovereign State, established and recognized since 15 September 1947 under a provisional regime of government, entrusted to the military administration of the Governments of the United States and of the United Kingdom, which since 1954 have sub-delegated its military defence to the NATO and its temporary civil administration to the Italian Government, which violates it simulating the re-establishment of Italian sovereignty (LINK).

As for the fact that this is a political, antidemocratic and illegal trial, there is no doubt: it is based on old rules of the Italian Fascist regime for the defence of the State, and in the investigation files there is a letter with which the public prosecutor (F. Frezza) invited the Italian political police (DIGOS) to prosecute as a crime the peaceful political action that deny Italian sovereignty over Trieste.

 

That reckless political trial is now turning against Italian authorities themselves, and it has already made possible proving that the decisions concerning the sovereignty of State of the current Free Territory of Trieste cannot be made by an Italian judge (no matter if criminal, civil, administrative or tax judge) but only by a neutral judge appointed, on the base of specific international obligations, by the Governments of the United States and of the United Kingdom, or by the United Nations Security Council directly.

1. The first phase of the trial.

During the first hearing, on 9 November 2015 the defence has presented a legal exception with which it demands that the Italian judge declares “preliminarily to other acts, 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”.

The question cannot be avoided, because the certainty of jurisdiction is the fundamental premise needed to carry out a fair trial, and for four more specific reasons:

a) the sources and rules of the legal order of the Free Territory of Trieste, as established and recognized since 15 September 1947 as sovereign State and member de jure of the United Nations, protected by their Security Council and under the provisional regime of government, entrusted, as a special, civil trusteeship mandate, to the responsibility of the Italian Government are different from those of the legal order of the Republic of Italy, and can only coincide with these for the compatible parts that were extended to it jurisdictional measures of the entrusted provisional Government (see also: Italian Supreme Court of Cassation, I Civil Section, judgment No. 323 of September 26th, 1965);

b) the main topic of the trial is the enforcement, in Trieste, of criminal laws that defend the sovereignty and integrity of the State of Italy and, for this very purpose, cannot be legally extended or enforced to the territory of another State recognized by the Republic of Italy with both domestic and international legal instruments in force, as the Free Territory of Trieste is;

c) as for this matter, the Italian judge is not neutral;

d) the explicit of implicit declaration of the sovereignty of the State of Italy over the current Free Territory of Trieste contradicts the laws in force of the State of Italy itself (a precise list is included in the act) that recognize the sovereignty of State of the Free Territory of Trieste as an international obligation that the Constitution of the Republic of Italy makes higher in rank than national and regional law, as well as contradicting the provisional administration of the Free Territory entrusted to the Italian Government.

2. The second hearing.

During the hearing held on 16 November 2015, the Italian judge did not want to make a decision about the exception of jurisdiction and he gave a response that is legally null and void (LINK), because it is ambiguous and it was formulated as an ordinance within the trial instead of being issued as the requested declaratory judgment (article 20 of the Italian Code of Criminal Procedure).

On 2 December 2015, the accused persons did therefore renew the exception of jurisdiction, demanding that the judge expresses himself with a judgment, not in ambiguous terms and, if he decides to affirm Italian jurisdiction, that he clearly lists which national laws and international legal instruments and legal measures would establish Italian sovereignty over the current Free Territory of Trieste.

This is a Checkmate, because those laws, legal instruments and measures do not exist. The Italian judge who would want to declare the sovereignty of Italy over the Free Territory of Trieste would therefore take a political action, not a legal one, and this is forbidden to Italian judges under article 101.2 of the Constitution of the Republic of Italy: «Judges are subject only to the law».

The new request did also develop two new legal arguments that the Italian judge cannot avoid.

3. The impossible annexation.

The first new argument is Italian Constitutional Law No. 1-1963, approving the Statute of Region Friuli Venezia Giulia, which includes, for administrative purposes and along with two Italian provinces, also the municipalities that belong to the present’day Free Territory of Trieste: this is because at article 70, paragraph 1, this law confirms that the annexation of those municiaplities to the Republic of Italy would require a special law.

Therefore, it would take a law of annexation. But the Italian Parliament could not and cannot pass one, because it would constitute a legal recognition of the previous non-existence of Italian sovereignty, and because it would be subject to three preliminary conditions of international and Italian law, precisely:

a) the explicit, preliminary and ultimate consent – in the forms established by the Vienna Convention on the Law of Treaties – of all signatory States of the Treaty of Peace with Italy of 10 February 1947, of all of their successor States, and of all other States of the international Community as holders of general and special rights over the international Free Port of the Free Territory of Trieste (Treaty of Peace, Annex VI art. 34, Annex VIII, articles 1, 3 n.3, 5 n. 1, 16, 21-24);

b) the explicit, preliminary and ultimate consent of the United Nations Security Council, as legal, direct guarantor of the integrity and independence of the Free Territory of Trieste (Resolution S/RES/16 (1947); Treaty of Peace with Italy of 10 February 1947, art. 21 n. 1).

c) a referendum for self-determination by the population of the present-day Free Territory of Trieste (Charter of the United Nations; Declaration of Principles of International Law, Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations; UN General Assembly Resolution 2625/1970; International Covenant on Civil and Political Rights; Final Act of the Conference on Security and Co-operation in Europe) which should take place under the control of the United Nations Security Council.

4. The Fascist political oath of Italian lawyers.

The second new argument is that the assignation to Italian courts of legal decisions (being those criminal, civil, administrative or related to taxation) concerning the sovereignty of State of the Free Territory of Trieste, besides violating the fundamental principles of neutrality of the judge, can harm the fundamental rights related to the freedom of legal defence.

Until 2 February 2013, in order to enter the profession of lawyer, Italian law graduates were forced under a law established during the era of the Fascist dictatorship (Royal Legislative Decree No. 1578, article 12, issued on 27 November 1933) to swear to fulfil their professional duties not only «for the superior ends of justice» but also «for the interests of the Nations», which, as such, have a prevailing political and economic nature.

Since the Italian Nation has violated and is still violating the rights of State of the Free Territory of Trieste for its own political and economic interests, that constraint established by the oath can prevent Italian lawyers from defending the legitimate interests of the individuals or enterprises that claim before Court those rights, in spire of Italian national interests.

Not even the direct and independent intervention of the lawyers of other European Countries is possible, since Italian law No. 31/1982 in execution of Directive 77/249 EEC allows them to exercise their profession it Italy only if they become Italian lawyers or are supported by an Italian lawyer.

This evident political-legal obstacle can therefore constitute a fundamental violation of the freedom of legal defence established and recognized by the international legal system and also by that of Italy.

5. The international competence.

Due to this, all legal decisions (criminal, civil, administrative and on taxation) in which the jurisdiction of the State of Italy over the Free Territory of Trieste is under question cannot be assigned to Italian magistracy, but only to a neutral judge, toward whom Italian lawyers themselves have no political obligations. And their appointment cannot fall under the competences of Italian authorities.

In fulfilment of the specific international obligations, the appointment of that judge does actually fall under the competences of the Governments of the United Nations and of the United Kingdom as holders of the primary mandate of government of the present-day Free Territory of Trieste (Treaty of Peace with Italy, Annex VII, art. 1; Memorandum of Understanding of London, of 5 October 1954), or directly to the United Nations Security Council as guarantor of the Free Territory of Trieste (Resolution S/RES/16 (1947); Treaty of Peace with Italy, art. 21 and Annex VI, art. 2).

As part of the procedures to appoint the judge and acknowledgment of the parties, it is also necessary taking into account the provisions on this matter in the Treaty of Peace, especially when it comes to the Final Clauses concerning the Solution of Disputes (articles 87 and 86) and articles 21 and 90 which, by establishing the Free Territory of Trieste as new sovereign State from the date of the coming into force of the Treaty (15 September 1947) did also assign to it the role of party in all controversies that concern it, directly or indirectly.

6. The reactivated International Representation.

Since 16 September 2015 the legal and political-diplomatic representation of the Free Territory of Trieste as international subject has been reactivated and assumed (LINK) by the «International Provisional Representative of the Free Territory of Trieste», acronym «I.P.R. F.T.T.» (alternative, official names: «Rappresentanza Internazionale Provvisoria del Territorio Libero di Trieste – Začasno Mednarodno Predstavništvo Svobodnega Tržaškega Ozemlja – Provisorische Internationale Vertretung des FreienTerritoriums Triest»).

Therefore, the I.P.R. F.T.T. does also have also title to act with this title in all disputes, of all kind and at all levels, that involve the rights of the Free Territory of Trieste, of its bodies and corporations of State, including the international Free Port, its citizens, its enterprises and the rights of the other States, of their citizens and of their enterprises over the international Free Port of the Free Territory of Trieste.

This is why it would be appropriate that the International Community, especially the States holding more rights and with higher interests in the development of the Free Territory of Trieste and of its international Free Port, invite the Italian authorities to acknowledge it.

© 6 Gennaio 2016