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Everyone is equal before the law, ... but some are more equal than others

01 August 2003

The Italian parliament passed law 140/2003 on 20 June 2003, granting the five top Italian
institutional figures, the president, head of government, the president of the constitutional court
and leaders of the two legislative chambers (the senate and parliament), immunity from the
judicial process while they are in service. The passing of the law was surrounded by
controversy due to its direct implication for the trials involving Italian prime minister Silvio
Berlusconi, who is involved in proceedings over the alleged bribing of judges in the 1980s in a
case relating to the purchase of previously state-run agricultural food company SME (which
was privatised in 1985). Prosecutors asked for an 11-year sentence for Berlusconi´s
co-defendant Cesare Previti, who is accused of corrupting some Roman judges on
Berlusconi´s behalf (although the proceedings involving the two have now been separated).
Previti was the prime minister´s former lawyer, and a defence minister in the short-lived
government that Berlusconi led in 1994.

The law was approved by the government coalition, which holds a majority in parliament, with
the centre left opposition (apart from 17 members) and Rifondazione Comunista MPs
walking out in protest. It says that these figures cannot "undergo criminal trials for any crimes,
including events that preceded their assumption of their powers". Any criminal trials that are in
progress, "at any stage" of the proceedings and concerning "any crime, including events that
precede.. are suspended" as of the entry into force of the new law. Other measures that are
part of the new law include the splitting of proceedings involving the five top institutional
figures from those of co-defendants, to allow cases against the latter to continue (article 3.2);
tightening the regulations for the ordering by magistrates of searches, interception of
communications or measures of deprivation of liberty (such as detention) against MPs or
senators, which must be authorised by the chamber (senate or parliament) to which they
belong (article 4); and, likewise, subjecting the use of evidence gathered against an MP or
senator through interceptions or communications data to authorisation by the relevant
chamber: if such an authorisation does not take place, all evidence is to be destroyed
immediately (article 6).

The passing of the law was justified on the basis that if the Italian prime minister was to face
trial during the six-month Italian presidency of the European Council, it would represent a
severe loss of face. It also fits in with allegations by the prime minister that he is being
persecuted by "red gowns" (that is, Communist judges, as any judge who dares to probe into
his affairs is labelled). Roberto Castelli, the Lega Nord (LN, Northern League) justice
minister, has been supportive of these claims with repeated attacks on magistrates for acting
outside of their institutional duties if they speak to the media to criticise legal reforms or to
defend themselves from criticism. The LN came to prominence in the 1990s campaigning
vigorously against immigration, for the secession of the north of Italy and to erradicate
corruption, and was strongly supportive of judges investigating corruption charges in the
so-called Mani Pulite (Clean Hands) scandal that brought down several parties, including the
then dominant Democrazia Cristiana Christian Democratic party. Since then, however,
pragmatism seems to have taken hold. Ongoing conflict between the government and
magistrature resulted in an urgent mission to Italy in March 2002 by the UN Special
rapporteur on the independence of judges and magistrates, Param Cumaraswamy (see
Statewatch vol 11 no 5). His preliminary report found that there was