Memorandum Tricoli & Viola in English

Avv. Roberto Fabio TricoliAvv.GianfrancoViola

Avvocatodel Foro di PalermoAvvocato delForodiPalermo

ViaG. La Farinan° 13/AVia Autonomia Siciliana n° 18

90141 Palermo90143 Palermo

MEMORANDUM

Mr. Vito Roberto Palazzolo was born in Terrasini [Palermo] in 1947 into a family of noble and honest origins. Over several generations the family has never been involved in any judicial proceedings, but on the contrary has been prominent thanks to their commitment to civil, social and political structures.

After leaving Italy in 1962 at the age of fifteen, Palazzolo lived in Switzerland and Germany where he studied and then worked, and maintained his residence for twenty four years until 1986. From 1986, he was a permanent resident in the Republic of South Africa and in 1994, became a naturalised South African citizen.

In the early eighties, Mr Palazzolo was appointed Chairman of a financing and trust company of one of the three largest and most important Swiss banks. In 1982, the bank sold a significant shareholding of this financing company to Mr Palazzolo, but continued the appointment of one of their own managers while Mr Palazzolo maintained his role as Chairman.

On this premise, we will review the judicial proceedings that Palazzolo has had to deal with and the relative outcome from 1984 (in chronological order), when he was without a record, and an unknown subject to police files and dossiers around the world.

While he held this position and in his capacity within the financing company, which included the financial management of wealthy international clients and financial companies, Mr Palazzolo became involved in a judicial enquiry regarding the transfer of funds from the USA to Switzerland. At the end of these well-publicised criminal proceedings in Switzerland, and where the Court recognised the extenuating circumstance of so-called “serious distress” (consistent with psychological coercion), which forced Mr Palazzolo to violate the law due to the threats that he had received, he was sentenced to three years and nine months imprisonment for having violated Federal Narcotic Law.

The judgment in particular, refers to conduct consistent specifically with participation in the transfer of certain sums of money from the United States to Switzerland, which allegedly took place around 1982.

In effect, and as was duly recognised by the Criminal Court of Appeal in the Ticino Canton in their judgment handed down on 26.11.1985, Palazzolo never trafficked in drugs or otherwise touched drugs, but was restricted to giving funds to those who had a right to those funds, as he had no authority to freeze monies that did not belong to him, and which at the time, the Judicial Authorities had no cause to consider the origins of these funds as being illegal.

This well-publicised case against Palazzolo, effectively related to a matter of “money laundering”. It was the first case of its kind to occur in Switzerland, which had no prior provision for this under their criminal system until 01.08.1990.

It was for this reason only that in 1985 the Criminal Court applied Federal regulations with regard to narcotics, going to great lengths in discussing the concept of financing and intermediation, since the illegal activity consisted solely in organising the transfer of monies from the United States to Switzerland on behalf of clients that were implicated in drug trafficking, without any direct participation in the trafficking itself and without the money that was transferred being subsequently invested to finance the purchase of drugs.

This much is true from an objective point of view in terms of the intention to commit the act, where the Criminal Court of Appeal in the Ticino Canton established that even though Palazzolo had doubts and concerns, he did not act voluntarily or with awareness because he did not know that the transferred funds could have come from the sale of drugs, or that his clients were drug traffickers.

Consequently, he was attributed the illegal act merely in the form of possible intent, or intent at the lowest possible level. Palazzolo not only served a prison sentence in Switzerland with regard to these judicial proceedings, but as was subsequently established by the Federal Swiss Court in judgment handed down on 06.01.1992, (which became final on the 03.05.1995), Palazzolo served a period of unjustified imprisonment totalling one year and nine months, which was duly recognised with damages for unjust detention.

In any case, of greater interest is the fact that Palazzolo was arrested in Switzerland on 20.04.1984 following an extradition application from Italy relating to a warrant of arrest issued by the Court of Rome on the 16.04.1984.

This unequivocally demonstrates how the Italian Judicial Authorities were proceeding in relation to the same facts that formed the subject of the publicised case in Switzerland instituted by the Public Prosecutor in Lugano on the 14.11.1984.

Again on the basis of the same facts relating to money laundering of the abovementioned funds, the United States requested the extradition of Palazzolo from the Swiss Authorities. However, the original charge made by the Prosecution in New York, alleging that a certain “Palazzolo” had close Mafia connections, in fact referred to another person with the same name: Vito Girolamo Palazzolo, who was born in Cinisi in 1946 and was resident there in Via Archimede.

In order to demonstrate that he had no family ties with this person, Vito Roberto Palazzolo had to submit historic certificates to the Swiss Authorities relating to his family.

On the 20.03.1985, the Swiss Federal Courts denied Palazzolo’s extradition to Italy, on the basis that the Swiss Authorities had already conducted proceedings against him for the same facts indicated in the Italian rogatory application to Switzerland (principle of double jeopardy).

On the 26.06.1985, the Swiss Federal Office of Justice and Police denied the extradition application submitted by the United States of America for the same reasons outlined in the case of the Italian application.

With the conclusion of these proceedings in Switzerland, Palazzolo’s judicial proceedings should have conclusively come to an end, given the so-called “ne bis in idem” principle, which is an expression of judicial consideration operational in any civil society.

However, notwithstanding the convincing motivation supporting the denial of the extradition applications, the Attorneys General at the Courts of both Rome and Palermo continued with proceedings against Palazzolo, based on the same facts that formed the subject of proceedings in Switzerland, because the Italian Government did not recognise judgment handed down by the Swiss Judicial Authorities. The agreement between Italy and Switzerland on matters of judicial assistance in criminal matters was only stipulated on the 10.09.1998, ratified with Law no. 367 on the 5 October 2001, and came into effect on the 1 June 2003.

Article III Section I of this Law, under the heading “Ne bis in idem”, states that: “judicial assistance is denied if the application concerns facts on the basis of which the accused person has already been fully acquitted, or sentenced in the Country in which the application is made for a corresponding crime relating to the essential aspects [of the crime], on condition that the criminal sanctions that were ordered are either currently being served or have already been completed”.

Nonetheless, even with the obstacle of this provision, Palazzolo still today finds himself on trial in Italy for Mafia association charges, even though he has in fact been absent from Italy for about forty years, and the charge that he is currently accused of was the subject of an irrevocable judgment, whereby he was fully acquitted by the Court of Rome on 28 March 1992. The fact that he was asked to respond to in the original charge was effectively covered by the so-called locally and internationally recognised “ne bis in idem” principle (“double jeopardy” principle).

Despite the previous acquittal judgement, which was based on the formula “because the fact does not exist” handed down by the Court in Rome on the 28.03.1992 for the same crime under article 416 bis of the Criminal Code, the Judicial Authorities in Palermo are unbelievably conducting proceedings against Palazzolo with regard to facts (in reality non existent) that he allegedly committed after 1992, and therefore while in South Africa. From a legal point of view, this premise of a charge is in itself contradictory, in the sense that it seems unreasonable to allege a connection between the “cosa nostra” criminal organisation that exists in Palermo, and a person like Vito Roberto Palazzolo who has lived outside of Italy for more than forty years (cfr. first level judgment).

In any case, it is the non existence of any illegal fact emerging while he was in South Africa that has already been established by the South African Judicial Authorities (cfr. attachment), which demonstrates the prejudice that is at the basis of the judicial action being pursued against Palazzolo.

If in other words, Palazzolo is to be considered associated with the Mafia based on facts that he allegedly committed in South Africa (and therefore subsequent to 1992), and if there are no illegal actions that have emerged in relation to him in South Africa, the entire Italian proceedings seem to be lacking in any reasonable foundation.

Given that the facts are unchallenged (Palazzolo has been living in South Africa for more than twenty years, where he has never committed any crime), the criminal proceedings against Palazzolo are largely transformed into proceedings against the South African Government, its jurisdiction, and in certain aspects, its very sovereignty.

The assessment of absolute legitimacy in Mr Palazzolo’s conduct was not in the least affected by the ambiguous conduct of certain South African investigators, who tried to accredit themselves directly with their Italian counterparts by means of false and misleading statements, and supporting charges that were not validated by the official channels of the Interpol office in Pretoria (cfr. attachments).

This involves the same investigators that were subsequently charged under criminal and/or disciplinary proceedings in South Africa.

Specifically, Mr Lincoln was sentenced to nine years imprisonment for various crimes against the Police Department, and Mr Smith voluntarily resigned citing serious mental health problems, to avoid the disciplinary hearings that had been instituted and which would have led to serious sanctions being imposed against him (cfr. Attachment).

With all this however, the Italian Judicial Authorities continued to give credence to the two investigator’s statements and this resulted in damage to Mr Palazzolo’s image, exposure to a continued media frenzy of exaggerated proportions, as well as having to stand trial for the illegal acquisition of his South African citizenship.

The latter charge, as with the others, was found to be clearly unsubstantiated, so much so that the proceedings concluded with a full acquittal. The Court found not only that his citizenship had been legally acquired, but censured the investigative structures that had instituted the criminal action.

We can therefore confirm that if Palazzolo were to be tried for Mafia association crimes relating to facts subsequent to 1992, and during that period he was resident in South Africa, the illegal facts that needed to be established would have to have been committed in South Africa, but since nothing has come to light against him, the Italian Judicial Authorities continue to base their convictions merely on prejudice, which continuously arises from the events that were extensively covered by the Swiss judgments and corresponding Italian judgments.

These prejudices have prevailed until now (the judgment is not yet finalised, and under the Italian Constitution the principle of presumed innocence until the final conclusion of proceedings prevails – article 27 of the Constitution), despite the judgment handed down on the 9 January 2004 by the Supreme Court of Appeal, in which the existence of serious elements of proof within the context of the precautionary measures to be imposed against the accused, were excluded.

The Supreme Court judgment irrefutably affirmed the following principles of law:

A)Any facts or events before 1992 could not be taken into consideration because they were covered by the acquittal judgment;

B)In the case of Mr Palazzolo, the motion put forward by the Prosecution cannot be accepted that his participation in a Mafia organisation would imply a permanent connection. This because, the permanent nature of the association could only be supposed if a conviction had been handed down against Palazzolo, and certainly would not be applicable in the case of an irrevocable acquittal judgment;

C)The non existence of criminally significant facts in the period subsequent to the 28 March 1992.

With regard to the first point in particular, the Supreme Court stated that: “As was correctly pointed out by the defence, we need to start from the uncontested and undisputed fact that Mr Palazzolo was acquitted on the charge of participation in a mafia association, which he allegedly was part of until the 28/3/1992, the date on which the acquittal judgment was handed down by the Court of Rome. From this we must inevitably conclude that the formulation of any possible continued participation in a mafia organisation can only be linked to facts or conduct subsequent to the above date, as we can no longer refer to events and circumstances prior to this date, since they have been conclusively covered by the acquittal judgement, and excluded because they did not give substantial proof of the accused’s participation in a criminal association during the period under consideration by the above judgement.” [Pages 5 & 6, Judgment n°82/04 Supreme Court dated 9.01.2004].

With reference to the second point, the Supreme Court further states that: “When an acquittal judgement has been handed down, it is inconceivable to consider any permanency to the criminal conduct that has already been excluded by the court and by judgment handed down, and all the effects of exclusion outlined under article 649 of the Criminal Procedure Code would then be effective. So that, once the material elements of the crime have been set aside, an unlawful situation (which was deemed never to have existed) cannot substantiate the legal case against the person being investigated (or the accused).” [Page 6 & 7, Judgment n°82/04 Supreme Court dated 9.01.2004].

Going on to the third point, which relates to checking on whether the elements of proof indicated in the warrant of arrest exist subsequent to the 28 March 1992, the Supreme Court besides referring to the completely vague and generalised nature of the elements of proof contained in the above warrant, excluded both that Palazzolo had given refuge to two fugitives from justice in South Africa in 1996, and the criminal relevance of this alleged conduct, as being sufficient to establish the crime of participation in a Mafia organisation.

According to the Supreme Court in fact: Apart from the fact that the two people indicated above were not subject to any custody measures at the time, it is more than obvious that the above elements of proof as they stand, cannot formulate a sufficiently serious framework of proof to meet the requirements of the law. [Page 7, Judgment n°82/04 Supreme Court dated 9.01.2004].

In applying these principles, the Supreme Court ordered as follows:

“On the basis of the considerations outlined above, the judgement being contested is annulled, since it is flawed and it contravenes the law, and is lacking in motivation. It is consequently referred to the same Court of Review, which should consist of a different panel of judges, for new judgement to be handed down, that would take into consideration the concepts and principles outlined above”.

Based on these precise indications from the Supreme Court of Appeal, the Court of Review [Judge who has authority to cancel warrant of arrests, and whose decisions can only be challenged before the Supreme Court of Appeal], handed down judgment on the 06.04.2004, and revoked the warrant of arrest issued against Palazzolo, given the insufficient nature of the elements of proof that had been presented to support this measure.

It is therefore evident that the conviction handed down by the Court of Palermo and confirmed by the Court of Appeal of Palermo on the 11.07.2007, have very obviously violated the principles of law set down by the Supreme Court, according to which no-one can be judged twice for the same facts.

Taken against this, like a game of mirrors, while the Supreme Court of Appeal deliberated that the Prosecution’s presentation was lacking in any foundation, because no elements of proof emerged in the period subsequent to 1992 (while Palazzolo was living in South Africa), the presiding Judges decided to charge the accused with Mafia association, notwithstanding that the period indicated above related exclusively to Palazzolo as a resident and citizen of South Africa, a person who was distanced and distant not only in geographical terms, but also from the charges brought against him.

Vito Roberto Palazzolo, who has had a completely clean record from the age of thirty eight, has more than adequately paid his debt to justice by serving his sentence in Switzerland, and today, at this time when we are at a considerable distance from the facts, this unjustified legal odyssey goes against the principles of judicial consideration common to any rule of law. The Supreme Court of Appeal, in the person of the legitimate judge will put an end to these unjust proceedings that Mr Palazzolo is currently facing in Italy, with the same incisive ruling handed down in the past.

Advocate Roberto F. TricoliAdvocate Gianfranco Viola