ITALY

 Judiciary in the dock

TENSIONS between the Italian judiciary and the Italian Government peaked in January 2002 when magistrates  took the unprecedented step of taking to the streets nationwide to express their concerns over what they considered to be the Government's attempt to undermine their independence. This protest led to the Special Rapporteur of the Commission on Human Rights on the independence of judges and lawyers, Dato' Param Cumaraswamy of Malaysia, to visit Italy in March 2002. His preliminary report was submitted to the 58th session of the Commission. The Special Rapporteur then undertook a follow-up mission to Italy from 5 to 8 November 2002. An advanced edited version of his second report, titled 'Report on the Mission to Italy', has been made available and will be before the Commission at the 59th session.

The magistrates' specific complaint which led to the protest was a Senate resolution of 4 December 2001 that accused them of failing to comply with the Constitutional Court ruling that judicial process does not have precedence over parliamentary business. However, it is no secret that the animosity between the judiciary and the Government runs much deeper than this. During the 1990's magistrates were actively involved in investigating corruption amongst Italy's political elite. Through their "clean hands" or tangentopoli corruption trials, they investigated some 3,200 suspects, brought 2,575 before the courts as defendants and witnesses, and secured 577 guilty verdicts. However, La Republica reported that more than half the charged suspects walked free because the lengthy appeals process exceeded the statue of limitations. 

This campaign is still continuing and its effects are being felt at the very highest level. At the end of last year Giulio Andreotti, Italy's seven-time prime minister, was found guilty of complicity in a Mafia-style murder committed in 1979 and sentenced to 24 year's imprisonment. 

Moreover, Italy's current Prime Minister, Silvio Berlusconi, continues to face criminal proceedings. Prime Minister Berlusconi has already faced criminal charges of false accounting, which were reduced to a civil offence when his own Government amended the law. He was also cleared of charges of corruption, illegal financing of a political party and tax fraud when the cases overran the statute of limitations. In his remaining trial he is charged with bribing judges in a 1986 court case. The allegations involved seriously undermine the credibility of both the judiciary and the Government.

An elite section of Italian politics has seen itself as under fire for a number of years and it has reacted against the judiciary accordingly. The political backlash has been anything but subtle, varying from personal attacks and propaganda against the credibility of individual judges, to amendments to legislation which the judiciary argues undermine its independence.

Prime Minister Berlusconi has accused his prosecutors of being politically motivated "red gowns" who act in league with the Italian left.  This has been perceived by the judiciary as an attack on the judiciary as a whole. The Government stands accused of having lost sight of the distinction between the legitimate exercise of criticising judgments and judicial procedure, and the undemocratic act of bringing personal attacks against individual members of the judiciary. 

In a press release of 15 November 2002 the Special Rapporteur expressed concern about the continuing trials of prominent politicians before the Milan court, including the case of Prime Minister Berlusconi. Through the so-called Cirami Bill named after Senator Cirami who initiated the bill in the Senate, the Italian Parliament has amended the Criminal Procedure Code to provide for transfer of proceedings to a different court if there is "legitimate suspicion" of impartiality of the court.

The Special Rapporteur referred to "concerns" that the amendments are retrospective and, therefore, will apply to existing cases before the courts. He noted that the speed of the Parliamentary process to amend the Criminal Procedure Code is "unprecedented" and that the perception is that the immediate beneficiary of this amendment is the Prime Minister; although he recognised that there was a need for such an amendment to the Criminal Procedure Code. 

There have been other accusations of attempts by the Government to use the legislative process to introduce procedural amendments in the hope that the statutes of limitation may come into effect before certain high profile trials are completed. Another example identified by the Special Rapporteur is legislation on letters rogatory  - used to obtain witness evidence or documents from foreign jurisdictions - ratifying a bilateral agreement with Switzerland, again with retroactive effect.

In both his November press release and his report to the 59th session, the Special Rapporteur criticises the Prime Minister for failing to appear in two trials to give witness testimony. There is a provision in the Criminal Procedure Code permitting high-ranking individuals the option to call upon the court to receive their testimonies at a venue of their choice. The Special Rapporteur states this position to be "untenable" and offending the principle of equality before the law provided for in Article 3 of the Italian Constitution, and also Articles 14(1) (right to a fair trial) and 26 (equality before the law) of the International Covenant on Civil and Political Rights. The Special Rapporteur expresses his concern that the Prime Minister should not be seen to be "above the law": "[T]he contention…that the executive…stands at a higher plain than the judiciary…strikes not only at the very core of the rule of law but also the doctrine of separation of powers and the equal status of the three organs of the State," he stated.

The Special Rapporteur reports that since November last year the Prime Minister appeared before the magistrate at a special sitting of one of the trials.  However, he refused to answer questions on grounds that they would incriminate him in another trial where he is the accused and faces charges.

The Special Rapporteur has also expressed concern that one of the Prime Minister's lead lawyers, Gaetano Pecorella, a fellow Forza Italia MP, is also a member of the House of Deputies and President of the Justice Commission. Italy's 1948 constitution separates Italy's legislative, administrative and judicial powers. The Special Rapporteur states that "[t]he conflict appears clear and apparent" and the ethical issues involved have not been addressed by the Parliament.

Other examples of practices that threaten to undermine the separation of powers are given. Controversially, Italian magistrates can run for political office. If they are elected they must leave the judiciary, but the door is left open if the 'politician' should wish to return to be a magistrate. This blurring of the division of powers tends to at least undermine the perception of judicial independence.

In his preliminary report he identified the root cause of Italy's judicial problems, among other things, as the "cumbersome legal system and its procedures and the high-profile criminal cases before the Milan courts, and the manor in which the procedures were taken advantage of to delay the trials, had contributed to the situation. This was compounded by the perception that legislative process was used to enact legislation which was then used in cases already before the courts".

According to the Special Rapporteur's latest report, "the tension between the Government and magistrates continued increasingly to the detriment of the due administration of justice. The developments led to mutual suspicion and mistrust between the Government and magistrates".

The Special Rapporteur has reported that the average time to dispose of a criminal case is nine years and 10 years for a civil action.  The Committee of Ministers of the Council of Europe is monitoring the efficiency of criminal justice in Italy. The Committee has noted that the statistics for 2000-2001 do not show "any significant progress in the efficiency of the criminal justice in Italy".  The Committee is monitoring the excessive length of judicial proceedings in Italy and the number of judgments of the European Court of Human Rights finding Italy in violation of Article 6 (right to a fair trial) of the European Convention of Human Rights; 12,000 such cases have been filed concerning Italy.  Back in 1998 the Human Rights Committee noted in its Concluding Observations on Italy that its "attention has been drawn to steps taken to speed up both criminal and civil trials, but it is concerned that, so far, no result has become apparent."

The overall impression is that one way or another this current crisis could be a turning point for the Italian judicial system. One must not lose sight of where the Italian judiciary was 10 years ago. It was only a decade ago that the Mafia assassinated Falconi, Italy's chief anti-mafia prosecutor. Such memories were jolted recently when the Government took what they described as a cost-cutting measure and downgraded the armed escort service provided to magistrates in Milan and Palermo, a measure which has since been withdrawn. There should be no doubt that further reform is required to the Italian criminal and civil law systems, in particular, to improve its efficiency, and also in discrete areas to ensure that the judiciary is, and is seen to be, independent.

However, constructive reform is threatened by political friction between the judiciary and the Government, as well as cynical and hurried legislative measures. Regrettably, it is difficult to see that this position is likely to change significantly in the near future, in particular whilst the Prime Minister continues to face legal proceedings. The Council of Ministers in its last communication stated that reform had "slowed down" and even "regressed" in certain areas. 

The continued close attention of the Special Rapporteur is therefore likely to be required.