AVV. BALDASSARE LAURIA
Defence Counsel appearing before the Higher Courts
Via D. La Bruna 9tel 0924 27522
MEMORANDUM IN SUPPORT OF OPPOSITION TO THE EXTRADITION APPLICATION MADE BY ITALY TO THE REPUBLIC OF SOUTH AFRICA.
Distinguished Attorney SNITCHER,
As you are already aware Mr. VITO ROBERTO PALAZZOLO, born in Terrasini on 31.07.1947, has been conclusively sentenced in terms of judgment handed down by the Italian Supreme Court of Appeal on 13.03.2009 to nine years imprisonment because he was considered to be affiliated to the Mafia (article 416 bis Italian Criminal Code).
The litany of proceedings against Mr. PALAZZOLO have been marked by a sequel of proceedings, both in Italy and abroad, which have had as their subject the same conduct, that had been ascribed to Palazzolo during the eighties.
Before dedicating our attention to the violations, which came about during the course of these proceedings with regard to legal standards that are undisputedly recognised by all Democratic States, and specifically to the violations with regard to “due process” dictated by the European Convention on Human Rights, and now unquestionably confirmed by the European Court for Human Rights, we need to check whether Mr PALAZZOLO could have and/or should have been subjected to the above proceedings by the Italian Authorities.
A careful reading of the records of the proceedings clearly and unquestionably shows that Mr. PALAZZOLO could not and should not under any circumstances, have been subjected to the umpteenth criminal action on the part of the Attorney General at the Court of Palermo.
Indeed, due to the very repetitiveness of the criminal proceedings brought against the accused, several aspects point towards the persecutory nature of the action brought about by the Italian Judicial Authorities.
For a better understanding of the course of the proceedings, it seems appropriate to give a brief summary of the facts.
Mr. PALAZZOLO left Italy in 1962 for Germany and then went to Switzerland until 1988, when he moved permanently to the Republic of South Africa.
In 1982, due to his position as Chairman of a Swiss financing company, Mr PALAZZOLO was involved in a criminal investigation, relating to the transfer of funds from the USA to Switzerland on behalf of certain clients.
On 20 April 1984 he was arrested in Lugano (Switzerland) on the basis of a warrant of arrest issued by the Court of Rome and signed by Judge GALASSO, which requested his extradition for the following crimes: 416 bis Criminal Code (Mafia association), 416 Criminal Code (association to commit a crime) and article 75 Law 685/1975 (association with the purpose of financing the trafficking of narcotics).
The charge referred to incidents where Mr PALAZZOLO had organised the transfer of US dollars in collaboration with three Swiss citizens.
The Swiss Authorities however refused the extradition application made by the Italian and even the American Authorities, and tried Mr PALAZZOLO, together with Messrs ROSSINI and DELLA TORRE, for the violation of Federal regulations on narcotics, operating essentially on an extension of the interpretation given to the concept of financing.
To complete the picture, it should be said that the crime in point is typical of the situation of “money laundering”, which the Swiss Criminal Code only made provision for as from 1990.
With the conclusive judgment handed down on 3.5.1994, Mr. VITO ROBERTO PALAZZOLO was sentenced to three years nine months imprisonment Annex 1 and 2.
The Judicial initiatives of the Italian Authorities.
Following the Swiss court action, the Attorney General at the Court of Palermo also became involved with Mr. PALAZZOLO: in fact, on 11.06.1985, the Investigating Judge in Palermo, Dr. Falcone, issued a warrant of arrest against PALAZZOLO for the same facts that had formed the subject of the Swiss investigation (transfer of funds from USA – Switzerland).
Nonetheless, the existence of duplicate actions against PALAZZOLO basically created a conflict in jurisdiction between the Court in Rome and the Court in Palermo, and this all the while he was being tried in Switzerland for the same facts.
The above conflict relating to jurisdiction was resolved on 9.01.1990 by the Supreme Court of Appeal, who established that the Court in Rome had jurisdiction with regards to the crimes under article 75 Law 685/75 (association with the purpose of financing for narcotics trafficking) and 416 bis of the Criminal Code (Mafia association), while the jurisdiction of the Court in Palermo was established in relation to articles 71 and 74 of Law 685/75.
Naturally, this meant that proceedings were duplicated against Mr PALAZZOLO before two different Judges Annex 3.
So it happened that the Court in Rome handed down judgment on 28 March 1992, sentencing PALAZZOLO to two years imprisonment by agreement of the parties to the trial (plea bargaining) for the crime under article 75 Law 689/75, and this because at the time there was no convention in existence between the two Countries, which recognised the “ne bis in idem” [double jeopardy] principle, while with regard to the crime under article 416 bis of the Criminal Code, the Court in Rome acquitted him with the statement “because the fact does not exist” Annex4 .
In the meantime, in the First Order hearing at the Court in Palermo, judgment was handed down on 12.10.2000 sentencing PALAZZOLO to12 years’ imprisonment.
In its judgment, even though stating that the facts under review were the same as the ones that had formed the subject of the Swiss judgment, the Court assumed that given the lack of ratification in the Italy-Switzerland treaty, the “ne bis in idem” principle provided under article 3 thereof, could not find application.
However, during the delay for the Second Order judgment before the Appeal Court in Palermo, the Republic of Italy ratified the Cooperation Treaty between Italy and Switzerland under Law no.367 dated 05.10.2001, so that the Palermo Court of Appeal in its judgment handed down on 22.7.2003, in reviewing the First Order judgment, correctly sanctioned the fact that the criminal action against PALAZZOLO could not proceed due to the constraints of the previous judgment Annex5.
Now, despite the fact that PALAZZOLO had been absent from Italy, the Italian Judicial Authorities have not spared him from an all-out judicial offensive, whose modus operandi appears typical of the actions of totalitarian Countries, in bringing to bear a series of judicial actions that have compromised Mr PALAZZOLO’S liberty even in the Republic of South Africa, in disregard of his basic human rights.
The persecution of Mr PALAZZOLO by the Italian Authorities reached its climax in 1997, when a further warrant of arrest was issued, almost certainly generated by the SMITH report (so-called “Operation Intrigue”) Annex 6.
This report was forwarded to the Italian Judicial Authorities and to the S.C.O. (Central Coordinating Unit of the Italian State Police) on 10.02.1997, after months of contact between SMITH and officers from the S.C.O, which had NOT BEEN AUTHORISED by the South African Police.
The content of this unauthorised police collaboration, which gave rise to the new warrant of arrest, came to light during an interview that Dr. GOZZO, a Magistrate at the Court of Palermo, and Dr. MANGANELLI, Head of the Palermo Police Department, gave to the “SPECIAL ASSIGNMENT ” programme on South African television: during this interview, it was confirmed that a warrant of arrest had been issued against Mr. PALAZZOLO, who was identified as one of the most dangerous fugitives from justice, and well-known criminals affiliated to the Mafia.
Mr PALAZZOLO was not notified of the existence of this new warrant of arrest, and his legal representative Attorney MORMINO only learnt of this after the press release, following an application he made to the Deputy Attorney General Dr. Gozzo. Annex 7
In point of fact, the irregular nature of the relations between the S.C.O. and two South African Police Officials, which as we noted previously, were never authorised by any official South African channel, is clearly deduced from a letter dated 25.03.1998 from the Head of the Interpol Office in Pretoria, Dr. BRUCE, and the Head of the Legal Department of Interpol in Pretoria Advocate G. JOUBERT, in which the S.C.O was asked to return the documentation that had been acquired illegally by SMITH and LINCOLN, against whom they noted, criminal proceedings were pending for crimes committed in SOUTH AFRICA Annex8.
So, despite the illegitimacy of the investigations conducted in South Africa by the Italian Judiciary, with the complicity of the two South African Police Officers, the Italian Attorney General went on to apply for the extradition of Mr. PALAZZOLO.
A further extradition request made by the Prosecutor at the Court of Palermo, Dr Caselli, was however denied by the South African Authorities, who noted a significant concurrence in the facts forming the subject of the warrant of arrest, with those that formed the subject of the sentence handed down by the Court of Appeal in Lugano (SWITZERLAND).
Following the public outcry that the above circumstances stirred in South Africa, and given the context of the UN Summit on International Crime that was held in Palermo in 2000, an investigation was ordered by the ex-President NELSON MANDELA to establish the truth of the charges put forward by the Italian Judiciary. The investigation was entrusted to the Attorney General of the Republic of South Africa Advocate BULELANI NGUKA, who headed up a special unit called the SCORPIONS.
The Attorney General headed the investigation that had as its subject the same facts entirely as those disputed in the precautionary custody sentence of 1997 (association to commit a crime, international money laundering, abetting the “fugitives from justice” BONOMO and GELARDI by providing hospitality). He in turn conferred the task on the Attorney General of Cape Town.
The latter, in a sworn statement took the statements made by SMITH, VILJOEN and LINCOLN to be his own, and in the same document requested the judicial assistance of various foreign countries in order to check the elements supporting the alleged money laundering activities.
The higher ex parte application contained serious charges that had already been the subject of the warrant of arrest issued by the Judicial Authorities in Palermo as far back as 1982.
Mr PALAZZOLO began proceedings relating to the alleged falseness of these charges against the Judge President of the Court in Cape Town, Dr. KING, and against the Head of the National Organised Crime Unit, BULELANI NGUKA.
Nonetheless, the Attorney General ordered the arrest of PALAZZOLO in respect of an indictment that was set out over six charges, and referred to as case no. 029/00147/992.
The charges indicated under numbers 1 to 5 were directed at ascertaining Mr. PALAZZOLO’S inclusion in organised crime in South Africa, and the crimes that had been committed in this context.
The charge set out under number 6 on the other hand, related to ascertaining whether correct procedures had been followed for Mr. PALAZZOLO’S acquisition of South African citizenship.
Faced with these charges, and certain of his non involvement in the facts alleged against him, Mr PALAZZOLO brought a case against the National Attorney General, the Director of Special Operations, and the State Prosecutor in the Provincial Division of the Cape of Good Hope, and the Minister of Justice.
The investigations conducted in the above proceedings by the Authorities in the Country established that the reports prepared by the same Police Officers mentioned above, did not contain any proof of what had been alleged, and that the charges against Palazzolo to the effect that he had established a criminal organisation in SOUTH AFRICA, were without substance.
It was further established that the sources for the probatory elements relating to the charges, consisted exclusively of information provided by the Italian investigators and by the media.
In the light of the above, the presiding Authorities made a plea bargain proposal to PALAZZOLO, according to which Mr. PALAZZOLO would withdraw the case against them, and at the same time an order would be handed down by the Supreme Court of South Africa containing the withdrawal of the charges under points 1 to 5, which related to the organised crime charges; furthermore they gave an undertaking to never again subject Mr. Palazzolo to charges in the future, with regard to the facts dealt with in this investigation that closed with the above Court Order.
The charge indicated under point 6 (acquisition of citizenship), on the other hand, stood and was left unchanged, since it would have to be subject to a Court hearing.
The Supreme Court of South Africa, Cape of Good Hope Provincial Division, in the person of Judge THRING issued the Order in Cape Town on 7.09.2001.
With regard to the charges relating to the acquisition of citizenship procedures (point 6 of the charges), a hearing was held under case n° 029/00147/992 in which the charges against Palazzolo were supported by the Deputy Attorney General for the Provincial Court District of the Cape of Good Hope, B. G. MORRISON.
The case was heard in Cape Town before Judge C J VERMEULEN, under case no. 29/147/99, and concluded on 14.3.03 with the full acquittal of Palazzolo. As can be seen from a reading of the sentence, the Judge even expressed his surprise at the fact that a case had been brought before the Court, which should never have ever begun because it was lacking in any elements of proof to support the charge.
The above dealings can only lead to one conclusion!
An attempt was being made to strip Palazzolo of his citizenship so as to make his deportation to Italy possible, thus overcoming the denial of the extradition application. This “disturbing” judicial incident was the outcome of a co-ordinated strategy put in place by the South Africa police officials Smith, Lincoln and Viljoen together with the Italian S.C.O. This is demonstrated by the content of the S.C.O service report copied to the Attorney General’s Office in Palermo Annex 9 and 10
And yet, the Orders handed down by the Supreme Court of the Country regarding the above facts, should have prevented any act of judicial assistance been given by the South African Authorities in favour of the Italian Judiciary regarding the same facts.
This argument finds its basis in a fundamental principle of International Law, which prevents any act of judicial assistance to be given, or for a person to be handed over, when the Country receiving the request for assistance has already conducted their own judicial enquiry into the facts in question.
The above principle of Internal Law has been codified under article 9 of the European Convention on Extradition signed in Paris on 13.12.1957, according to which:
Extradition shall not be permitted if final judgment has been passed by the competent authorities of the requested Party upon the person claimed in respect of the facts for which extradition is requested. Extradition may be refused if the competent authorities of the requested Party have decided either not to institute criminal proceedings or to terminate proceedings that have already been initiated in respect of the same facts.
And yet in a completely incomprehensible manner, and despite the conclusion of the criminal proceedings brought against PALAZZOLO which closed as indicated with the plea bargain arrangement between the Attorney General and PALAZZOLO, the South Africa Authorities continued to offer the judicial assistance requested by the Italian Authorities.
On this point, one needs to highlight that the criminal proceedings against LINCOLN sentenced him to nine years imprisonment, while SMITH was admitted to a criminal mental institution due to a full-blown mental condition, after the latter had resigned from the Police Force, which leads us to seriously reflect regarding the correctness of the investigations conducted by the abovementioned officers.
And in fact it seems completely illogical and incomprehensible why the Judicial Authorities in Palermo continued to maintain their relations with the South African Police Officers (Smith and Lincoln), even though they had been warned by Dr. BRUCE, Director of Interpol in Pretoria, and by the Head of the Legal Office of Interpol in Pretoria, Advocate G. JOUBERT that the abovementioned were not authorised to provide documents and cooperation outside of diplomatic channels, and this also because they were facing charges in South Africa.
SMITH, who was called as a witness for the Prosecution in the rogatory proceedings conducted in South Africa by the Court and presided over by Dr. PULEO, refused to give his testimony in Cape Town, citing the alleged mental illness that was certified by a psychiatrist, but did not make a similar decision when he was to give testimony during court proceedings in Palermo.
This decision is easy to understand.
The Court got around the rogatory proceedings, giving Smith the possibility of restating the false statements that had already been deprived of legitimacy in South Africa under the Order of 7.9.2001; statements which had they been made to the relevant South African Authorities, would have led to criminal consequences.
But beyond the violation of the most basic principles of Internal Law on the subject of cooperation and judicial assistance, the persecutory nature of the warrant of arrest can easily be seen in the actual charges brought against PALAZZOLO.
A)In the first place PALAZZOLO’S association with the Sicilian Mafia organisation is claimed from the year 1980;
B)in the second place the hospitality provided by PALAZZOLO in South Africato two Italians that were considered Mafia members and fugitives from justice, and therefore fugitives in respect of Italy, namely Giovanni Bonomo and Giuseppe Gelardi, businessmen operating in the wine industry;
C)in the third place reference is made to charges brought by several state witnesses on Palazzolo’s conduct.
But on closer examination, the unfounded nature of the above can easily be confirmed on the basis of the documentation on file from the proceedings.
With regard to the first alleged charge, namely that PALAZZOLO was part of the Mafia association from the eighties, this allegation can easily be disproved by the judgment handed down by the Court in Rome on 28 March 1992, which acquitted him because the fact did not exist, a judgment that constitutes an unassailable judgment in terms of our legal system.
And in fact, the very existence of this judgment forced a change to be made to the charges at the outset of the proceedings that subsequently became a conviction, where it held that the tempus commissi delicti should run from the 29 March 1992, and not from 1980.
With regard to the second alleged charge, namely that PALAZZOLO had offered hospitality to two fugitives, incorrectly assumed to be fugitives from justice, this fact is disproved in documentation, and more specifically in relation to the irrefutable fact that precautionary measures were imposed against both BONOMO and GELARDI only on the 29 May, that is subsequent to their departure from South Africa, which took place on the 21 May 1996.
The above is confirmed where they entered South Africa on their passports, as documented by their passing through customs and that up until that date, they had not been subjected to any criminal proceedings.
But even once they had been subjected to the restrictive measures regarding their personal freedom, issued by the Italian Judicial Authorities, nobody can consider these circumstances as confirmation of their guilt.
As in any Democratic Country, and in compliance with the principles of Law (presumption of innocence), all citizens are innocent until an irrevocable conviction is passed against them.
In the light of these incontrovertible factual and legal elements, one cannot understand what role Mr PALAZZOLO would have had, and what the assistance provided to two free Italian citizens could have consisted of.
But, further consideration is necessary on this point.
Even by changing the tempus commissi delicti of the crime of Mafia association alleged against PALAZZOLO, the records of the proceedings have shown how the statements made by the state witnesses (informants) again placed PALAZZOLO’S association with the Mafia to be precisely during the eighties, a fact, which as has been said, was rejected by the judgment handed down by the Court in Rome that acquitted PALAZZOLO.
On the contrary, no “informant” was able to confirm that he had any knowledge of PALAZZOLO’S inclusion after 1992, a fact that should have neutralised the Mafia charges brought against PALAZZOLO, despite the constraints of the previous judgment, and this with reference to the circumstances that all the facts – proof that emerged during the proceedings had not demonstrated anything new in relation to what had been established by the Swiss conviction and by the judgment handed down by the Court in Rome on 28 March 1992, which has been referred to a number of times.
But, looking closely, it is the very judgment of the Palermo Court of Appeal, confirmed by the Supreme Court of Appeal, which demonstrates its persecutory character.
More specifically, in the above judgment of the Supreme Court on page 5 we read: “…In this regard, while the Court noted that the accused had resided in South Africa for many years, it stated that these circumstances did not necessarily mean that the accused had withdrawn from the Mafia association, …. The Court then went on to refer specifically to the testimony given by the South African Police Inspector Peter Viljoen, and the testimony subsequently given in Italy by Inspector Abraham Smith. The Court went on to note that the reliable statements given by Viljoen and Smith, as well as the documentation on file, constituted a distressing picture made up of various episodes of conditioning and corruption that Palazzolo had put in place to influence the outcome of investigations against him, stating that the observations made by the witnesses were confirmed by a series of proceedings on file or by investigations that had been manipulated to fail …”.
The statements made by the Supreme Court of Appeal critically question the seriousness of the entire South African judicial system with regard to the legitimacy of the Court Orders issued with serious charges against the two South African police officials, who from the outset had been censured by the highest Authorities of Interpol in Pretoria, and which therefore espouse the clearly false statements made by the above police officials.
And this is not all.
In order to justify the above statements, the Court did not hesitate to put forward allegations of corruption committed by Palazzolo.
Furthermore, we cannot ignore the opportunity to make reference to the bad faith of the Judiciary in Palermo, who used the South African judicial co-operation channels in an illegitimate manner.
And in fact, in the Note dated 5 March 1997 – Re: Palazzolo Vito – the S.C.O forwarded the report on the mission that had been conducted in South Africa to Dr. GOZZO, which had been organised as stated above, with the collateral South African investigations headed by Lincoln, and which would have made it possible to capture the fugitives from justice Bonomo, Gelardi and Troia, thanks to the information they had and also to hand over documentation regarding Palazzolo.
However, this mission proved to be a failure, because nothing that had been indicated telephonically by the South African agents until a few hours before the arrival of the Italian agents on site was found to be substantiated.
In the Note dated 16 April 1998, – Re: Palazzolo Vito – Case no. 573/97 D.D.A addressed to the Deputy Attorney General Dr. Gozzo in Palermo we read “ that notwithstanding repeated requests, the letter received informally in February 1997(document without signature, prepared on paper without a letterhead and never formalised) from the Presidential Investigation Task Unit in Cape Town, the Heads of which (Smith and Lincoln) had just previously participated in a meeting in Rome with officials from this Office and with officials from this Attorney General’s Office”.
Again in the same Note, the S.C.O. takes note that this Investigation Unit from Cape Town was under investigation in its own Country, because it was considered responsible for various crimes of a criminal and Departmental nature.
The S.C.O. concluded that its own Office, precisely due to the previous events (see abovementioned Note dated 5 March 1997), no longer considered it appropriate to participate in the Rogatory proceedings Annex 11.
Further reason to consider the criminal proceedings conducted against Mr PALAZZOLO as illegitimate emerges from the modus operandi of the Court in Palermo on the occasion of a meeting, which took place on 15/10/003, between the Court and a delegation from the South Africa Department of Justice, consisting of four officials: Advocate Pikoli, E. Daniels, N.J. Makhuebele and F.Fortune.
We firstly need to specify that this meeting took place while proceedings were underway in the trial, thus leading as we will show, to critical and irredeemable consequences to the detriment of the accused.
During this event, the Court in Palermo was conditioned by the delegation who insisted that the Italian and South African defence counsel be excluded from the meeting, assuming that the meeting would take place confidentially.
In the confidential meeting, the delegation stated that they were prepared to accept the rogatory proceedings proposed by the Italian Authorities, on condition that the witnesses that had already been approved by the Court, namely Bulelani Nguka, Morrison and DJM Bruce were excluded from the list of witnesses, otherwise the rogatory proceedings would not be allowed.
At this point, without consulting the Defence and in their absence, the Court accepted the above condition, thus excluding the abovementioned from the rogatory proceedings.
With regard to the request made by the South African delegation, it is worthwhile clarifying their real motive.
The high ranking officials making up the delegation had made the above request with the purpose of avoiding that the Deputy Attorney General, the Attorney General of the Republic of South Africa and the Head of the Interpol Office in Pretoria, were put in a position of great “discomfort” during their testimony.
This because they would have been asked by Palazzolo’s Defence Counsel whether he had committed any crimes in South Africa, and whether there were any investigations underway in his regard.
They would have had to respond that there were no accusations pending against Palazzolo and that they themselves had withdrawn all the charges based on the police reports drawn up by Smith and Viljoen, as can be seen from the Order dated 7.9.2001, in which it specified that they “would never again in the future proceed against him with regard to the same faces referred to in the Order”.
As they would also have had to refer to the existence of the acquittal judgment relating to PALAZZOLO handed down on 14.3.2003, for the charge of fraud regarding the acquisition of South African citizenship.
What would therefore have had emerged, would be the complete non usability and falseness of the reports signed by the police officials Smith and Viljoen, which had been illegally handed over to the S.C.O.
In conclusion, the conduct of the Judicial Authorities in Palermo who “ganged up” together with the South African Authorities, led to the umpteenth contemptible violation of the accused’s rights to a defence, and provided full proof of their wish to persecute him, by interrogating people that had already been disqualified by the proposing Authorities, with the sole purpose of convicting PALAZZOLO for crimes that he never committed.
PALAZZOLO’s lawyers lodged a complaint in this regard with the self-governing body for Italy’s judiciary system [Consiglio Superiore della Magistratura] Annex12.
So, by their very nature, the criminal proceedings initiated by the Italian Judicial Authorities, in the criminal actions brought against PALAZZOLO are manifestly illegitimate in relation to the principles of “due process”, and fall outside the sphere of International Law.
A series of violations (set out hereunder) of the principles associated with proces equitable on the part of the Italian Authorities, have led to a full-scale judicial persecution against Mr. PALAZZOLO, which is irreconcilable with the democratic principles of a civil society.
1. VIOLATION OF THE PRINCIPLE OF DUE PROCESS
ART. 6 EUROPEAN CONVENTION OF HUMAN RIGHTS
The judgment of the Appeal Court in Palermo that convicted PALAZZOLO, and which forms the subject of the extradition application to the Republic of South Africa, was adopted in clear violation of the principle of “due process” stipulated under article 6 of the European Convention on Human Rights.
In fact, article 6 provides that… “In the determination of their civil rights and obligations or of any criminal charge against them, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial Court established by Law.
Among the rights inherent in the defence of the accused, and provided for under article 6, is certainly the right that sets down the obligation to specify the nature and the causes for the charges formulated against the accused.
This principle refers to the prerequisite that the accused must know of the fact being contested in its historical, factual and temporal context, so as to avoid theexploitation of a so-called “bait charge” used to draw in a further charge for a different fact further down the line.
It is this very principle that was violated in the proceedings against PALAZZOLO, where the crime of association was contested on different occasions.
For the sake of completeness, it should be stated that based on the stipulations set down by the European Convention on Human Rights, the principle of due process was introduced into the Italian Constitution under article 11, which recognises the absolute and irrefutable right to “due process”.
In the Italian legal system, the Constitution of the Republic prevails over any other source of law, which must above all conform to the former.
In compliance with this principle stipulated by the European Convention, besides as we have said, being made part of the Constitution under article 11, the regulating of the process must therefore be directed at achieving certain objectives, while respecting these principles.
And if the objective of the process is the safeguarding of basic rights, the purpose of the regulations that govern the process must of necessity be such that they ensure that the process is appropriate to this objective.
In the first place, for the process to be conducted correctly, the principles relating to cross-examination, the right to accuse and to a defence, the equal standing of the parties and the impartiality of the Judge, all need to be respected.
Well then, the proceedings in question against Mr. PALAZZOLO did not respect the principles of due process, given firstly that he was judged by a Court that was not impartial.
And in fact, article 36 of the Italian Criminal Procedure Code imposes the duty of abstention on the Judge in the face of situations of incompatibility.
In our case, Dr. SALVATORE SCADUTI, the Judge President of the Appeal Court in Palermo who handed down the conviction against Mr. PALAZZOLO, disregarded the legal duty imposed on him by article 36 of the Criminal Procedure Code, even though the conditions existed, which made it incompatible for him to decide the case.
The same Judge had in fact judged Mr. VITO ROBERTO PALAZZOLO in the context of previous proceedings, which the Italian judicial system calls proceedings for precautionary measures; these proceedings provide a series of restrictions on the personal freedom of a person when they present a social danger in the regional context in which they are living in.
So, in the case in point, Palazzolo was considered someone that was a social danger even though he had been absent from Italian soil from 1962. It is therefore clear that the element of danger that is essential to the application of these measures is without grounds.
Specifically, we refer to case no. 3/1994 R.M.P. in which Dr. SALVATORE SCADUTI himself presided over the Court of Palermo, and on the 22.12.1994, issued an order applying personal precautionary measures with regard to PALAZZOLO with orders not to leave a specific municipal area, as it was held that he belonged to the Mafia, basing this decision on the same facts used in Switzerland and subsequently to which we have made reference, going so far as to criticise the acquittal judgement for the crime under article 416 of the Criminal Code that had been handed down by the Court in Rome on 28 March 1992.
In his motivation he stated that the elements emerging from the Swiss and Roman proceedings could only lead to a single conclusion: “… they lead us to consider as circumstantial evidence not only that Palazzolo had been involved in the trafficking of narcotics, but they that he actually belonged to the structure of the Mafia organisation”.
In essence, it cannot be denied that the guilty judgment handed down in the conviction had been decided by the prejudice of PALAZZOLO belonging to the “Mafia”.
The obviously illegitimate conduct of the Judge President of the Appeal Court in Palermo basically meant that the decision taken by the same Appeal Court Judges had been preconceived: this conduct involves a disciplinary offence against the Judge President, and this deprived the proceedings of the mandatory prerequisite set out under article 6 of the European Convention on Human Rights.
3.VIOLATION OF ARTICLE 4 PROTOCOL 7 ATTACHMENT TO THE EUROPEAN CONVENTION ON HUMAN RIGHTS (NE BIS IN IDEM PRINCIPLE)
Again, the conviction against PALAZZOLO handed down by the Appeal Court in Palermo cannot be considered valid for the purposes of authorising the extradition application, since it has been adopted in obvious violation of article 4 of Protocol no. 7, attachment to the European Convention on Human Rights.
In fact, the above article 4 (Right not to be tried or punished twice) specifically stipulates that:
1. No one shall be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been conclusively acquitted or convicted with a final sentence in accordance with the Law and criminal procedures of said State.
2.The provisions of the preceding paragraph shall not prevent the re-opening of the case in accordance with the Law and criminal procedures of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.
3. Noderogation from this Article shall be made in accordance with Article 15 of the Convention.
The ne bis in idemprinciple, as an expression of an advanced judicial system, is substantiated in precluding criminal action aimed at prosecuting a person when that person has already been judged, and is provided for under article 649 of the Italian Criminal Procedure Code, according to which once the accused has been acquitted or convicted, they cannot be subjected to criminal proceedings for the same fact, even if this is considered different because of its designation, level or the circumstances.
So then, notwithstanding the integrated nature of this principle of Law, the conviction handed down by the Court of Appeal in Palermo and which forms the subject of the extradition application, not only subjected, but also convicted Mr.PALAZZOLO for a fact-crime (article 416 bis Criminal Code, Mafia association) for which he had been acquitted in terms of the judgment from the Court in Rome on 28.03.1992.
So then, as we have stated, in terms of the Order issued on 19.02.1997 by the Judge in the Preliminary Investigations at the Court in Palermo, Mr. VITO ROBERTO PALAZZOLO was subjected to precautionary detention measures for the crime of Mafia association.
This order was subsequently revoked by the Review Court in Palermo, who had been ordered on 09-01-2004 by the First Criminal Section of the Supreme Court of Appeal to review the judgment.
In the motivation the Supreme Court of Appeal underlined that it was impossible for the Presiding Judge to take into consideration facts prior to 1992, the date on which the Court in Rome had acquitted PALAZZOLO for the crime of association to commit a Mafia type crime; it was impossible to consider as permanent a crime of association that never existed, and finally, it was impossible to consider the series of probatory elements on facts subsequent to 1992 as being significant.
Consequently, based on the above principles outlined by the Supreme Court of Appeal, the Review Court of Palermo with order dated 06.04.2004, revoked the order for precautionary detention measures issued against Palazzolo, given the lack of serious elements to prove guilt for the alleged crime under article 416 bis of the Criminal Code.
Furthermore, it is worth pointing out that Mr. Palazzolo had always stated that he wanted to be heard, and made himself available to the Attorney General in Palermo. But the latter has always refused to question him, giving as their reason that for the Italian government, Palazzolo was to be considered a fugitive from justice.
This is a statement completely lacking in substance. Mr. Palazzolo left Europe, moving from Switzerland, a country that had conducted proceedings against him for the same facts argued by Italy and the USA, and once he had served his sentence, he was free to go wherever he wanted, and was therefore not a fugitive from any Country whatsoever. The Attorney General that conducted the rogatory proceedings in Cape Town during March 2004 interviewed a serious of totally unreliable witnesses, with the exception of the most important and significant person to the proceedings, namely Mr. Palazzolo himself. On that occasion, they could no longer hide behind the false explanation that Palazzolo was a fugitive, considering that the Review Court in Palermo had already cancelled the warrant for his arrest.
And this also related to the objective circumstances, referred to by the Supreme Court of Appeal, with regard to PALAZZOLO’S absence from Italy from as far back as 1982.
We need to take note that at this stage that the Court was able to review all the probatory material from the proceedings, since the case was in the trial phase, and that from the time of the judgment onwards, the only new probatory element was the deposition given by Giuffrè, which we will discuss further hereunder. Nonetheless, despite the judgment handed down by the Supreme Court of Appeal regarding the non existence of the crime alleged against PALAZZOLO for Mafia association in terms of the precautionary measures order issued against him, he was subjected to proceedings and irrevocably convicted to a sentence of nine years imprisonment, for the very same crime. In fact, in the text of the motivation given by the Appeal Court in Palermo, we read that……. “PALAZZOLO belonged to the Mafia association called the “Cosa Nostra” round about the eighties, and remained therein permanently after this date, see pages82 and 111of the judgment, statement made by state witness GIUFFRE’.
But this statement finds no real reference in the elements of proof taken from the same judgment, which after 1992 were based exclusively on the statements made by the states witness Antonino Giuffrè, who without any reason to lie, states that he had never met Palazzolo and that he had only heard talk about him.
But there is more!
Despite the above, the methods used to include the state witness during the trial cannot be concealed, where they are in obvious conflict with Law 45/2001, which governs the procedures for the collaboration of state witnesses.
According to the above Law, the person who intends collaborating with the State must set out in an informative memo, within one hundred and eighty days from when he has manifested his intention to turn states witness, all the facts that he is aware of, further certifying that he has nothing more to record in future on the criminal association, or on others that belong to criminal groupings.
Well then, in the informative memo dated 11.12.2002, the states witness ANTONINO GIUFFRE’ never made any mention about Vito Roberto Palazzolo.
During the trial, the Prosecutors Dr. Gozzo and Dr. Paci had asked the Court to file the transcript of the hearing of other proceedings, (proceedings for prevention measures D’Anna), in which the state witness Giuffrè had allegedly brought up the name Palazzolo, but surprisingly, a reading of this transcript clearly shows that the state witness on this occasion was making reference to a certain Palazzolo from Cinisi, specifying that this referred to the brother-in-law of the Mafia boss Bernardo Provenzano, and certainly not Vito Roberto Palazzolo.
The Prosecution claimed that on having read the above transcript (D’Anna proceedings), it had decided to go on and question the state witness regarding the information that he knew ofregarding the accused. Subsequently the Presiding Judge, Dr. Puleo issued an order, admitting the testimony of the state witness Giuffrè in the trial, claiming that in terms of article 507 of the Criminal Procedure Code, he needed to be heard because he had already spoken about Palazzolo.
This surprise act, in blatant violation of the principles regarding discovery during proceedings in fact compromised PALAZZOLO’S right to a defence. Annex 13
On page 6, the Supreme Court of Appeal states, in a completely unsubstantiated manner, that Giuffrè’s statements are confirmed by numerous corresponding elements, including telephone interceptions and audio surveillance, but these interceptions refer to other people, who never mentioned Palazzolo in their conversations. Annex 14
Furthermore on page 19, the Court states in a totally contradictory fashion: “And in fact, the inadmissibility of a second judgment for the same crime does not prevent the same historical facts or specific aspects of these from being taken into consideration, so as to freely evaluate them for the purposes of proof relating to a different crime than the one that judgment was passed on, given that what become irrevocable is the legal truth of the fact-crime, and not the reality of the historical fact”. But the case in question does not deal with a different crime from the one that had been judged, but rather with the same one, and has as its subject the facts that had already been evaluated.
And not only: the fact-crime and the historical fact are one and the same.
In actual fact, the conviction judgment that forms the subject of the extradition application, upholds the prosecution of PALAZZOLO’S association links to the “Cosa Nostra”, confirming his affiliation during the eighties.
But if we consider this carefully, the nature of the conviction is one that has ascertained an historical fact (PALAZZOLO belonging to a Mafia association), an historical fact on the other hand that had been totally excluded in terms of a judgment handed down by another Court in the Italian Republic.
This sequence of proceedings, which are completely incomprehensible in terms of the principles of due process, constitute a violation of the ne bis in idem principle, and bear out the unmitigated political prosecution of Mr VITO ROBERTO PALAZZOLO.
But there is more.
VIOLATION OF THE INTERNATIONAL NE BIS IN IDEM PRINCIPLE
The series of proceedings against Mr. VITO ROBERTO PALAZZOLO present a further aspect of inconsistency with regard to the inviolable principles of international law, which cannot be ignored during the deliberation on the extradition application.
According to the conviction judgment handed down by the Appeal Court in Palermo, an open evaluation of the initial information constituted by PALAZZOLO’S affiliation to the Mafia during the eighties, and the specific conduct brought about by PALAZZOLO prior to 1982, sanctioned the definition given to the accused’s conduct as being part of the Criminal organisation called “Cosa nostra”, with links to the association being continuous and permanent in nature.
As is well-known, PALAZZOLO was convicted by the Criminal Appeal Court in the Ticino Canton (SWITZERLAND), with judgment dated 26.09.1985, to a sentence of three years nine months imprisonment for the contravention of Swiss Federal Law on narcotics.
Furthermore, still for the violation of Italian Law on drug trafficking, PALAZZOLO was subjected to criminal action, and was acquitted with judgment handed down by the Appeal Court in Palermo on 22.07.2003, given that they were unable to proceed in the criminal action because of the obstacle of the previous judgment ( ne bis in idem).
According to the judgment of the Court in Palermo, aside from the legal qualification used by the two different judicial systems, the facts that formed the subject of the these last proceedings, intended as the same in terms of conduct, random relations and the event, are the same as those that formed the subject of the Swiss proceedings.
Now if we look closely, the conviction judgment in question also concluded with the duplication of the judgment handed down by the Swiss Court, in which case the sentence had been fully served.
In the last criminal judgment that PALAZZOLO has been subjected to, both the compendium of probatory elements, as well as the facts forming the basis for the alleged affiliation of the above to the Sicilian Mafia organisation, correspond in a perfectly surprising manner with those forming the basis for the Swiss conviction, and conversely, with those forming the basis for the acquittal due to the obstacle of the previous judgement.
The international ne bis in idem principle, besides by now finding provision in a series of International Conventions including the International Covenant for Civil and Political Rights signed in New York on 23.03.1966 ( article 7), also finds specific sanction in the European context under article 4 of Protocol no. 7 attached to the European Convention on Human Rights, under article 54 of the Schengen Agreement and in the European Union’s Declaration on Fundamental Rights, proclaimed by the European Parliament on 12.12.2007.
But due to the effective circulation that this has had in international agreement instruments, the international ne bis in idem principle now constitutes an expression of judicial society and integrates a tangible principle of customary International Law.
In fact, article 54 of the Schengen Agreement dated 14.06.1985 specifically makes provision as follows:
“A person whose trial has been concluded in one Contracting State may not be prosecuted in another Contracting State for the same facts, provided that if a penalty has been imposed, this has been carried out, or is currently in the process of being effectively carried out in terms of the Laws of the Contracting State that has handed down the conviction judgment”.
From a literal reading of the article it follows that the possibility of differing judicial classifications for the same facts in two different Contracting States does not constitute any obstacle to the application of article 54 of the Schengen Agreement.
Essentially, the criteria relevant for the application of this application is the identity of the material facts, taken to mean the existence of a series of facts that are inseparably linked among themselves, aside from the judicial definition of these facts or the judicial interests being protected.
Case Law from the European Court of Human Rights (European Court of Human Rights judgment in case dated 10.02.2009 ZOLOTUKHIN v/ RUSSIA) interpreted the differing provisions on the subject of ne bis in idem in the sense that the guarantee provided by article 4 of Protocol no. 7 of the Convention relates to the start of a new criminal action, in circumstances where a previous acquittal or conviction has already acquired the status of becoming final.
The Court analysed the profile of the “same facts” concept for the purposes of the bis in idem principle sanctioned under article 4 of Protocol no.7. It stated that in the past it had adopted different approaches, and now placed the emphasis on the identity of the facts, independently of their judicial definition, accepting the theory that the identity could also be deduced from different crimes, and on the existence of mutual elements that were common to different crimes. It therefore considered it appropriate to provide a clear definition of what should be understood by the “same offence” for the purposes of the Convention. It clarified that the guarantee provided by the above article was created to prohibit the prosecution or trial of a person for the second time for a crime that had as its subject the same facts, or facts that were “substantially” the same as the ones for which he had already been judged.
This principle is destined to protect the rights of individuals who have been tried for illegal facts, thus avoiding that they are subjected to new proceedings for the same reason.
The Court held that the use of the word “offence” in the text of article 4 Protocol no.7 cannot justify the interpretation put forward by those who follow a more restrictive approach, thus restating that the Convention must be interpreted and applied in such a way as to make the rights that it sanctions practical and effective, rather than theoretical and illusory.
In the context of accepted sources on the principle, the above considerations must be also be read in the light of article 3 of decision 2002/584/GAI on the European warrant of arrest, under the heading «Reasons for the mandatory non enforcement of the European warrant of arrest», according to which the Judicial Authorities of the executing Member State refuse to carry out the European warrant of arrest, if on the basis of information in the possession of the executing Judicial Authorities it appears that the person wanted by the Police has been judged under a final sentence for the same facts by another Member State (on condition that in the case of a conviction, the penalty has been applied or is in the process of execution or it cannot be carried out on the basis of the Laws of the Member State handing down the conviction».)
Well then, the conviction judgment handed down by the Appeal Court in Palermo based its guilty verdict against PALAZZOLO on a series of facts-proof relating to the period, which had been evaluated and formed the basis of the Swiss judgment.
Almost all the state witnesses indicated PALAZZOLO as a “man of honour” with formal affiliations to the Mafia, whose role was played out in putting his experience as a financier and skilled businessman able to launder funds originating from drug trafficking. Page 3 judgment.
Again, the same judgment being evaluated used the testimony of a certain Oliveri as proof, who had been detained at the same time as Palazzolo during his imprisonment in Switzerland.
The same state witness GIUFFRE’, who constituted the element of new probatory material after 1992 for the judgment, made reference to PALAZZOLO’S role during the eighties while he was living in Switzerland, page 9 judgment.
Essentially, the facts forming the basis of the conviction, even though they had been qualified by a different judicial definition, correspond perfectly with what had been evaluated by the Swiss judgment, but in this way constitute an illegitimate duplication of the judgment against Mr. PALAZZOLO.
On the basis of the above considerations, we can therefore consider the conviction judgment that forms the subject of the extradition application not to be enforceable due to the violation of the principles contained in the European Convention on Human Rights, with regard to the exclusion on prosecuting the same person twice for the same fact.
On the basis of what has been set out, the Defence will be taking other legal steps on behalf of our client, which are provided for under the Italian judicial system, namely making a special application to the Appeal Court and a review of the proceedings.
Furthermore, we are going ahead with denouncing the Italian Government at the European Court of Human Rights for the violations that have been committed with regards to Mr. Palazzolo; this application will be presented within six months from the date of the judgment.
We remain available for any further clarification that may be required by Defence Counsel.
Trapani, 13 May 2009
AttorneysBaldassare LAURIA and Manuela CANALE