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• Everyone is equal before the law... but some are more equal than others: Berlusconi and the law

Everyone is equal before the law... but some are more equal than others: Berlusconi and the law

28 March 2012

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 "reasonable cause for judges and prosecutors to feel that their independence is threatened", calling on "prominent political figures" involved in criminal investigations to "respect the principles of due process and not to use their positions to delay proceddings unduly".

The newly passed law partly re-instates the parliamentary immunity that was abolished in 1993 in response to investigations that uncovered widespread corruption in Italian politics. It does not take into account that prime ministers enjoying a majority in parliament can successfully exert pressure to change laws that could adversely affect them. The Berlusconi government has given a master-class on how to use the legislative process at a political level to influence ongoing judicial proceedings. For example, false accounting (and consequent tax evasion) ceased to be a considered a criminal offence in 2002, becoming an offence that could be paid off with a fine, shortly before his brother Paolo and his close associate Marcello Dell´Utri stood trial. The two were found innocent on the grounds that "the facts do not constitute a crime". Likewise, a measure was passed to ensure that material obtained from foreign magistrates needed to be obtained with a much higher standard of authenticity, which were different from the standard procedure that was being used in international exchanges of documentation. This meant that documentation obtained by judges in cases involving Berlusconi, including the SME case, particularly those obtained from Swiss judges concerning anonymous Swiss bank accounts in which payments were alleged to have been made, would no longer be allowed as evidence in trials. The new law will prevent Berlusconi from facing trial at least until 2006, when his mandate runs out, which is when the statute of limitations would become applicable to the SME trial.

Legge 20 giugno 2003, n. 140; El País 5.6.03, 14.6.03, 19.6.03, 26.7.03; il manifesto 28.5, 29.5, 6.6.03; Independent 18.6.03.