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Italy: Civil court orders transport and defence ministries to pay damages to Ustica victims' relatives, collateral victims of undeclared warfare in the Mediterranean

28 March 2012

On 10 September 2011, 31 years after the Ustica air disaster in which an Itavia flight from Bologna to Palermo on a DC9 aircraft was shot down on 27 June 1980 killing 81 people, allegedly during an attack against a Libyan Mig fighter plane, the third section of the civil court in Palermo ruled that the defence and transport ministries must pay a group of 81 relatives of the victims 100m euro in damages. Judge Paola Proto Pisani found that the ministries had been guilty of "omissions and negligence" in failing to guarantee the flight's safety, as well as being involved in covering up responsibilities in the incident during investigations through lies and the destruction of documents, causing the victims' relatives "considerable moral and psychological harm". The relatives' lawyers have argued that the air disaster was caused by a missile fired by either a French or US aircraft, and called upon the Italian authorities to seek information from the two countries of their involvement. They also expressed hope that the toppling of the Libyan regime may enable access to secret archives that may shed light on the matter.

The aeroplane crashed into the Tyrrhenean sea between the islands of Ponza and Ustica in the evening of 27 June 1980. Nobody survived and the victims comprised four crew members and 77 passengers. Investigative proceedings were initiated by the prosecutors' offices in Bologna and Palermo, but they were transferred to Rome, where judge Rosario Priore submitted his investigation's ordnance/sentence on 31 August 1999 (see Statewatch, vol. 9 no. 5, Sep-Oct 1999), resulting in four air force generals facing charges of high treason and undermining constitutional bodies for an alleged cover-up concerning the incident. Excluding that a terrorist bomb or structural failure may have caused the crash, Priore claimed it was an undeclared "act of war" by NATO forces against a Libyan Mig aircraft. No charges were brought for the mass murder, because its culprits were not identified, nor for a series of offences related to the cover-up by members of the Italian air force including false testimony, aiding and abetting, destruction of public documents, abuse of office, because they were either no longer applicable (death of the accused, statute of limitations, and changes in legislation that had struck off offences from the relevant codes), or due to charges being dropped. The trial of the generals in the Rome assizes court on 30 April 2004 resulted in their acquittal with some charges neutralised by the statute of limitations, and their acquittal was confirmed and reinforced when the Rome appeals assizes court ruled in their favour for "not having committed the act" on 15 December 2005. The Court of Cassation (Italy's highest appeal court) ended penal proceedings by deeming the general prosecutor's appeal against the acquittals inadmissible on 2 March 2007.

Proceedings for this civil lawsuit that began after the Court of Cassation's ruling in 2007 have acquired all the material submitted in previous trials. There were also testimonies by now-deceased former president Francesco Cossiga and former PM Giuliano Amato that were not deemed useful for the investigation. The former said that he was told that the aeroplane was shot down by mistake by a French Navy Air Force jet that took off from an aircraft carrier in the high sea to the south of Corsica by admiral Fulvio Martini, then head of the military intelligence service (SISMI). However, Cossiga also claimed that Amato had been informed (which the latter denies) and that Martini's sources were "informations that were doing the rounds in the services' milieu". Thus, they were not deemed reliable. No further checks were carried out during the case to explain the reasons for the crash, due to the length of past proceedings and the sheer amount and quality of the work that had already been undertaken to do so. Evidence from the penal trial acquired by the civil court are part of the evidence for the judge to consider, in the light of the autonomy between penal and civil proceedings, whereby the judge may rely on "elements of fact" ascertained in a penal proceeding regardless of its outcome and assess them critically, bearing in mind the different burden of proof that applies to civil proceedings, "on the balance of probabilities", rather than "beyond reasonable doubt", as applies in penal trials.

The first part of the ruling concerns the responsibilities of the administrations that have been sued "for not having ensured the flight's safety". Judge Proto Pisani notes that she is called upon to reach a decision as to the nature of the accident, for which there are three different possibilities, only one of which, "interference by other aircraft" in the disaster, would make it possible to satisfy the applicants, because "only in such a case" can the ministries be deemed to have failed to provide guarantees for the flight's safety. After proceedings excluded the likelihood of a structural failure, the remaining options to explain the crash were a near collision involving the Itavia flight, a missile striking it and an internal explosion due to a bomb being on board. On the basis of material from past proceedings, the judge ruled out this last possibility and deemed that deciding which of the other two possibilities were likeliest was irrelevant, as both of them implied a responsibility by the two ministries in relation to the crash. This is because they did not prevent a civilian flight from being in an "airborne scenario that enabled it to be downed", and this fact would not be altered depending on whether it was shot down or crashed as a result of a near-collision.

The ruling then examines experts' opinions and reports acquired by investigating magistrates to establish the causes of the crash. Legal-medical reports and autopsies carried out on behalf of the Palermo court excluded the existence of injuries resulting from an explosion. A series of widely contrasting expert reports were published between 1982 and 1999, whose findings are outlined in the sentence, with all the possible theories supported (absence and presence of other aircraft, explosion, missile or near-collision). The two key expert reports that supported opposite views were the Misiti report which supported the theory of a bomb in the toilet in the rear of the aeroplane and the absence of any other unusual activity in the skies, and the Dalle Mese technical report on radar tracking data which spoke of a complex scenario involving other aircraft. Judge Proto Pisani considered the Dalle Mese report to be more reliable in view of its possessing better data, examining the full length of the flight rather than only its final phases, and the findings by judge Priore in 1999 that there had been elements of "contamination by experts" in the Misiti committee.

In establishing the causes for the crash, the sentence states that:

"All the elements considered make it possible to deem it proven -according to the standards of certainty that apply to a civil judgement- that the incident that occured to the DC9 took place due to the operation conducted by two fighter planes which, in the final part of the DC9's route, travelled parallel to it, to intercept a military aircraft that had previously hidden in the DC9's slipstream in order not to be detected by radars, as a direct consequence of the explosion of a missile fired by the pursuing aeroplanes against the hidden aeroplane or of a near-collision that occured between the hidden aeroplane and the DC9." (p. 52 of the sentence)

The sentence then focusses on the transport and defence ministries' duties and the causal link of their conduct to the crash, in particular the actions that were not carried out which would have been appropriate to prevent the crash. The judge considers that in view of the fact that it is not disputed that the Itavia flight was regularly travelling along the route it was assigned in accordance with its flight plan, the defence and transport ministries carry the burden of blame for the presence of other aircraft along its route. They should have "guaranteed the absence of obstacles to air travel and/or other aircraft" along its route, or in any case adopted measures to prevent the accident, such as not authorising the flight to take off, or flight along its usual route, or assigning it a different route for that day. There was a "particular situation" in the sky that called for the adoption of special measures, in view of the defence ministry's duty to "guarantee safety in the skies and prevent access to unauthorised or enemy aeroplanes" and the transport ministry's duty to guarantee the flight "assistance and security". (p. 53) The failure to enact such duties is deemed to have a direct causal link to the crash, because "if the ministries had adopted the behaviour required of them, adequately monitoring the situation in the skies, perceiving the presence of other aeroplanes along the DC9 I-TIGI's route and warning its pilot of the need to change route in order to avoid the dangers connected to the presence of military aeroplanes, the event would not have happened." (p. 56)

The second part of the sentence examines the ministries' responsibilities in obstructing investigations to ascertain the truth about the crash. The plaintiffs claimed damages due to the "concrete" obstruction of investigations by members of the Italian air force "from the first phases subsequent to the disaster, then throughout the penal procedure", which made it impossible to identify the culprits who have gone unpunished. Their claim is two-fold: on the one hand they have been unable to claim damages from the unknown individuals who materially caused the disaster; on the other, they seek redress for the existential and emotional distress caused by their 30-year ordeal. In analysing conducts deemed to have had the aim of covering up the causes for the crash, judge Proto Pisani relies on the 1999 findings by judge Rosario Priore, which identified a number of shortcomings and omissions by member of the air force, including a failure to inform political and judicial authorities about "the presence of US military traffic, the search for US aircraft as of 27 June 1980, the hypothesis of an explosion involving the aircraft and the results of the analysis of the Fiumicino/Ciampino [airports in Rome] radar tracking", as well as the surfacing of facts that are incompatible with the reported crash of a Libyan Mig aircraft in the Sila [a highland region in Calabria] on the morning of 18 July 1980, with the air force high command misusing their position to misinform political authorities by claiming that there were no other aeroplanes involved and that they did not have access to the Fiumicino/Ciampino radar tracking data. Further alleged shortcomings included aiding and abetting, providing false testimony and false documentation, misuse of public office, "veritable side-tracking of investigations", suppression of public acts concerning radar tracking, failure to safekeep public documents and holding back information from the judicial authorities. Without requiring an in-depth examination of these allegations, the judge deems that "for the purpose of recognising the responsibility in question, it suffices to take into account the failure to supply all the documentation available at the time of the crash regarding radar data concerning the DC9's flight from start to finish to the judicial authority", and the destruction of such data. These acts, both passive and active, obstructed the investigation into the causes for the crash, and this is an element of "serious guilt" in a case involving the death of 81 people.

Daria Bonfietti, president of the Ustica victims' relatives association and a senator for the opposition Partito Democratico (PD), welcomed the ruling arguing that its importance stems from the fact that "it confirms the reconstruction of the crash by judge Rosario Priore and recognises the validity of the sentence in the first trial (overturned in subsequent judgements) of the penal proceedings. It is not the amount that is important but rather, what this sentence recognises. Today, it is reasserted that the aeroplane was shot down in an episode of aerial warfare, and the responsibility of the two ministries is reasserted in a civil court as well: they did not watch over the safety of civilian flights and they hid the truth with the subsequent cover-ups". Under-secretary of state Carlo Giovanardi was highly critical, announcing an appeal against the sentence by the government and arguing that "The sentence of the Palermo civil court, on the basis of what the reasons for it appear to be, contrasts entirely with the sentence of the Court of Cassation, which is final, and with the other sentences of the Rome civil court".

He added that "It has now been ascertained on the basis of the official documentation acquired from NATO that there was not any other aeroplane in flight that night close to the Itavia DC9, while the international experts' commission headed by Aurelio Misiti unanimously concluded, after the relic was recovered, that a bomb had exploded in a toilet on board. It will be interesting to know on the basis of what documents, unknown to the Italian government and the [Court of] Cassation, the Palermo civil court has drawn its conclusions that, naturally, will have to be examined in the subsequent levels of judgement". In the explanation of the sentence published on 21 September 2011, judge Proto Pisani explained that the material examined was the same as that which was available in penal proceedings, yet she assessed it on the basis of the different burden of proof applicable in a civil trial and its autonomy from penal proceedings.
This is the third sentence that grants compensation to the victims' relatives; the first one, on 30 May 2007, had decreed that around 15 plaintiffs should receive 980,000 euros, whereas the second one, in June 2010, increased the amount due to 1 million and 390,000 euros. The ruling notes the court's reliance on evidence from the ordnance/sentence of 1999 to reach its conclusion.

Sources

Sentenza, Tribunale di Palermo, Sezione III Civile, 10.9.11.

Comprehensive documentation on the Ustica case and trials, including past judgements and expert reports

Corriere della Sera, 12.9.11; Repubblica, 12-13, 21.9.11.