Harnwell Protests His Innocence, Says Italy’s Government Broke Italian and EU Rules on Competing for Public Tenders

For politically motivated reasons, the Italian government has broken its own rules on competing for public tenders and those of the European Union, setting a very dangerous precedent for the future, argues Benjamin Harnwell, director of the Dignitatis Humanae Institute.

He continues to defend his innocence and promises to fight on.

Harnwell’s statement in full: 

On 15th March, in a shock announcement that made headlines around the world, the Dignitatis Humanae Institute lost its high-profile legal challenge against the Italian Ministry for Culture regarding the politically motivated annulment of the lease for the monastery of Trisulti.

The surprising sentence from the Council of State followed an otherwise unbroken run of seven out of seven legal decisions won by the DHI over the last two years.

The legal instrument that the ministry had used (Article 21 nonies, Law on Administrative Procedure, 7 August 1990, n. 241) to annul the lease clearly states that the Italian civil service — when seeking, after 18 months from the decree of adjudication, to annul a contract on the grounds of fraudulent statements made during a tender — can only do so after it has obtained a definitive sentence from the criminal courts affirming the criminal nature of the purported fraudulent statements.

Astonishingly, even though this legally-obligatory procedure is still yet to take place, Mibact nonetheless unilaterally annulled the lease, effectively arguing that the law is for me to obey, not them. Even more astonishingly, the Council of State accepted and endorsed this argument.

The ministry annulled our lease at 28 months after the decree of adjudication — well after the limit explicitly established by law.

It ought to go without saying, I made no fraudulent statements in the tender (as had been repeatedly affirmed in the previous legal decisions).

But there’s more.

I also signed a legally-binding “auto-certification” when I participated in the public tender, confirming that the DHI met the necessary conditions to participate.

An auto-certification is a very important legal mechanism in Italian jurisprudence, which can only be declared false by the criminal courts (i.e. not by the administrative courts, of which the Council of State is the highest expression).

I therefore demand my right to be tried in the criminal courts, in absolute confidence that I will be totally exonerated of any wrongdoing. And in fact, there is already a criminal case that will start in November of this year which will consider, amongst other things, the charge that I made fraudulent statements during the public tender.

The highest court of appeal in Italy is the Court of Cassation, which hears appeals from all three branches of Italian law (criminal, administrative and civil).

If on appeal, the Cassation were to uphold the Council of State’s sentence, two consequences would immediately arise that would totally transform the Italian jurisprudential landscape.

1. The Italian civil service would henceforth have the power to unilaterally assume the proper jurisdiction of the criminal court in declaring false any citizen’s auto-certification, based exclusively on its own authority.

2. The Italian civil service would henceforth have the power to unilaterally annul any public tender award — at any point in time — based exclusively on its own authority.

Both of these new legal precedents, were they to be upheld at Italy’s highest court of appeal, would clearly have catastrophic and immeasurable repercussions both for the rights of the citizen (in the first instance) and all entities that have won any public tender (in the second).

Both of these new legal precedents would also be totally unnecessary because, as mentioned above, a criminal case is already set to start this November. If I should be condemned in the criminal courts, the ministry will obtain what it needs to proceed with the annulment without needing to trample all over the law to get me out, and especially without needing to force on Italy these two new horrific legal precedents in order to do so.

Everybody, both friends and opponents alike, readily acknowledges that this dispute is really about “political and social considerations” as one of the earlier sentences, in our favour, was candid enough to affirm.

It is also clear that the Italian political left is, perhaps not surprisingly, vehemently opposed to the idea of a school run by Steve Bannon to defend the West’s Judeo-Christian heritage taking place on the Italian peninsula. And in Italy, the left dominates with its henchmen strategically placed throughout the civil service, the press — and according to many, also the judiciary.

Against these omnipresent and omnipotent forces, my only protection is the law.

Since the Council of State sentence came out in March, I have been deluged by literally thousands of messages of support, especially from local people, encouraging us on, pleading with us not to give up.

Therefore, on behalf of all citizens of the Italian republic, both those who support and those who oppose my personal politics; as well as on behalf of all businesses and organisations who have won any public tender (or who have any aspiration to do so), as well as all those whose jobs depend on such contracts; as well as on behalf of any foreign enterprise that wishes to come to this most beautiful but deeply troubled country in order to bring much needed investment — I have today instructed the DHI’s lawyers to formally deposit our appeal with the Court of Cassation.

We shall fight on, we fight to win.

On the wall of every court chamber in Italy, the words “The Law is Equal for All” are proudly emblazoned.

The world is now watching to see just how true that actually is in practice.

Benjamin Harnwell
Director, Dignitatis Humanae Institute
twitter @ben_harnwell

May 14, 2021