Newsletter - November 2009

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The Italian Constitutional Court’s Rejection of the Immunity Law: A Comparative Analysis

Author: Ernesto Gregorio Valenti

On 7 October 2009, the judges of the Italian Constitutional Court voted by a majority that an immunity law passed in 2008 (Law number 124/2008, also known as the Lodo Alfano) was unconstitutional. The purpose of the law was to shield the President, the Prime Minister, and the speakers of both houses of Parliament from prosecution in criminal proceedings during the course of their respective terms of office. The law applied to crimes committed before or during their mandates. The Italian Constitutional Court had already rejected a similar law (Law number 140/2003, also known as the Lodo Schifano) in 2004, which had also aimed at suspending criminal proceedings against the highest ranking Italian officials.

The Constitutional Court’s opinion focused on two factors in reaching its decision: (i) a constitutional amendment is required to introduce immunity, therefore the Lodo Alfano was invalid; and (ii) the constitutional principle of equality was breached, because the Prime Minister should be treated in the same manner as all ministers of the cabinet. The Court also analysed the complex issue of balancing the defense rights of the highest ranking state officials against the public interest in the efficient execution of governmental functions. The Court held that this issue should be tackled by judges on a case by case basis, in line with the protection afforded to defendants, to obtain the adjournment of criminal hearings in the event that evidence of a legitimate impediment is shown (Article 420-ter of the Italian Code of Criminal Procedure). Put simply, the Italian Constitutional Court has assigned the lower courts the task of determining whether holding a high ranking state official position will qualify as a legitimate impediment to defend oneself in a criminal proceeding.

The debates surrounding the introduction of the immunity law have also focused on comparative law issues. In particular, the supporters of the law argued that similar provisions had already been adopted in several western democratic countries such as France, Spain, Germany, the United Kingdom, and the United States. However, the comparison is only accurate to a certain extent as the high ranking state officials to whom immunity is granted in these countries are not the equivalent of the position of the Prime Minister of Italy. The Italian Prime Minister is the head of the government, but he or she is not the head of state; this role is reserved for the President of the Republic. As a result, the Prime Minister role cannot be compared, from an official standpoint, with positions such as the President of the Republic of France or the President of the Federal Republic of Germany, who are granted immunity to some extent from criminal proceedings during their terms of office.

This point of comparison brings out another key difference between the Lodo Alfano and the French and German constitutional provisions. The Lodo Alfano provided for an automatic suspension of criminal proceedings against the highest ranking state officials. However, the French Constitution (Article 68) subjects the President to criminal prosecution in the event of acts that are manifestly incompatible with the exercise of his or her mandate. The German Constitution (Article 61) provides that the President is subject to criminal prosecution in the event of willful violation of any federal law. Each legal system provides for an impeachment-type procedure before both houses of Parliament.

A similar procedure is provided by the Italian Constitution for the President, the Prime Minister, and the ministers (Articles 90 and 96). However, the Lodo Alfano granted these officials automatic immunity from crimes committed within and outside the scope of their official functions. Furthermore, as underlined by the Italian Constitutional Court’s opinion, the Lodo Alfano unconstitutionally granted immunity to the Prime Minister and the speakers of both houses of Parliament, but not to the other ministers and members of Parliament. The Court deemed this preferential treatment to be unjustified in view of the constitutional provisions that place them on a level playing field in relation to governmental functions (Articles 70 and 95 of the Italian Constitution). The immunity granted to the Prime Minister by the Lodo Alfano therefore represented a particularly unique provision in the context of western democracies, because no equivalent provision suspending all criminal proceedings within and outside the scope of the head of government’s duties exists at the moment among the countries analysed in the immunity law debate.

In light of these issues and the pending criminal proceedings against the current Prime Minister, the Italian Constitutional Court’s decision was greeted with great anticipation by the Italian and international constituency. Silvio Berlusconi is currently on trial before the Court of Milan, where he is charged with the bribery of David Mills, the British lawyer for Mr Berlusconi’s Fininvest group, in connection with Mr Mills’ alleged false testimony in a 1997 trial. Mr Mills has already been convicted of taking the bribe, which the Court ruled originated from Mr Berlusconi. An additional proceeding arising from this trial pertains to tax fraud charges against the Prime Minister. The third proceeding facing Mr Berlusconi in Milan relates to embezzlement charges in connection with transactions by his television network, Mediaset. In view of the Italian Constitutional Court’s decision, all of these cases, which had been frozen by the enactment of the Lodo Alfano, will now proceed.

The conclusion reached by the judges of the Italian Constitutional Court should comfort those who support limiting immunity to high ranking state officials. The impeachment procedures provided for by most Western democracies provide for a significant check and balance system in the executive branch of government. It could be argued that providing automatic immunity to the four highest ranking state officials would have provided an imbalanced prerogative to the defense rights of these individuals. Some legal commentators argue that the Italian Constitutional Court should be commended for its impartial analysis of this complex issue of immunity, which straddles the fine line between politics and law.

Many foreign commentators have criticised Italy for its lax position on prosecuting fraud in the past. However, the Court’s decision, ongoing crackdowns on organised crime, and recent legislative developments on clamping down on tax dodgers have provided a response to these criticisms, and should provide reassurance to those who believed that Italy was a country destined to be riddled with fraud and injustice.

© 2009 Anti-Fraud Network.

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News

Italy’s Prime Minister Not Immune to Prosecution
The Italian Constitutional Court has ruled that a law passed in 2008 granting Prime Minister Silvio Berlusconi immunity from prosecution violated the principle of equality and was not passed legally. The law had resulted in the suspension of proceedings against Mr Berlusconi for corruption and tax fraud; these proceedings look set to be reopened. One of the cases involved David Mills, the husband of UK Olympics Minister, Tessa Jowell. Mr Mills was subsequently found guilty and sentenced to over four years in prison; a recent appeal by Mr Mills was lost. The other case relates to tax fraud involving Sr Berlusconi’s company, Mediaset. For more information on the Court’s decision, see this month’s article.

Italian Bribes Allegedly Caused Deaths of French Soldiers in Afghanistan
According to The Times newspaper, US Intelligence officials have discovered that Italy was paying bribes to the Taliban in order to keep an area free of violence. The bribes, apparently running into US$ tens of thousands, were paid secretly by the Italian Secret Service up until mid 2008 when patrols of the area were then taken over by French forces. As a result of the artificially suppressed violence, The Times suggests that the French troops made a “catastrophically incorrect threat assessment”, leading to their deaths. The Italian Government denies any bribes were made.

Former Interpol Head and SA Chief of Police on Trial for Corruption
Jackie Selebi, former head of Interpol and national Chief of Police for South Africa has gone on trial for alleged corruption. Mr Selebi is accused of receiving gifts for himself, his wife and his girlfriend from an alleged gangster in return for, amongst other things, advanced notification of investigations. On the first day of the trial, however, Mr Selebi’s lawyer read out a statement accusing two former national directors of public prosecution of corruption. A spokesman for the National Prosecuting Authority has denied the claims.

New Zealand Passes AML Law
New Zealand’s Parliament has passed the Anti-Money Laundering and Countering Financing of Terrorism Act. Justice Minister Simon Power said “The Act will… ensure that New Zealand's financial sector continues to be attractive to legitimate international investors, and is not seen as a safe haven for organised criminals and tax evaders. New Zealand cannot be seen as a weak link for organised criminals and terrorists.” The Reserve Bank, the Securities Commission, and the Department of Internal Affairs have been tasked with supervisory roles and will support the new regime as it is phased in.

Australia Increases Penalties for Bribing Foreign Officials
In response to criticisms from the Organisation for Economic Co-operation and Development (OECD), Australia has increased the potential penalties on those found guilty of bribing foreign officials. Those convicted face a maximum of 10 years’ imprisonment, a fine of AUS$1,100,000 or both. This is a significant increase from the previous maximum fine of AUS$66,000. For more information, please see the article written by Allens Arthur Robinson partner Matthew Skinner and senior associate Tim Robinson on our Articles page.

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