By: Carolyn A. Dubay, Associate Editor, International Judicial Monitor

Italian Prime Minister Silvio Berlusconi is both charismatic and controversial.  His legal troubles make headlines nearly as much as his policies.  But his pattern of defending criminal charges by attacking Italy’s judicial system typifies a practice of executive interference in judicial affairs common throughout the world.   An October 2009 article in The Economist described Berlusconi’s legal reform efforts as “an unprecedented assault on Italy’s post-war legal order.”  Another news article quoted Berlusconi as comparing Italian judges to “a subversive gang of Taliban members” who are “different from the rest of the human race, anthropologically speaking.”   Still another report indicated that Italy’s Supreme Council of Magistrates is working on a statement warning that “Italian democracy is in danger.” 

Berlusconi’s legal troubles are notorious.  One news report indicates that Berlusconi has been prosecuted 31 times over the last 17 years, with 24 of those cases ending in dismissal or acquittal.  The latest round of battles with the Italian judiciary involves charges that he paid for sex with a minor, while he also faces corruption and fraud trials relating to his Mediaset television company.  In one of the more notable cases, he is accused of bribing his lawyer to perjure himself on Berlusconi’s behalf.  

To combat his legal woes, Berlusconi has gone on the offensive against the judiciary to prevent further prosecution while he remains in office (his current term is set to expire in 2013).  The most newsworthy of these efforts has been his repeated attempts to secure complete parliamentary immunity from criminal prosecution for himself and several other top officials.  This particular initiative has been volleyed back and forth between the Berlusconi administration and the Italian Constitutional Court for years.  Each time, the Constitutional Court has struck down the immunity legislation as unconstitutional under the provision of the Italian Constitution requiring “[a]ll are equal before the law.”  In the latest attempt to secure immunity, Berlusconi’s Minister of Justice introduced a narrower immunity law that would allow criminal hearings to be postponed three times for up to six months each.  In January 2011, however, the Constitutional Court partially lifted Berlusconi’s immunity, which reinstituted three other trials against him.  Berlusconi then tried to bypass this decision through parliamentary maneuvers, but in June 2011, voters overturned the new immunity law after it was put to public referendum. 

Beyond the immunity legislation, Berlusconi has taken a number of other “judicial reform” initiatives, purportedly to improve the rule of law in Italy.  Rule of law data supports a disturbing downward trend in Italy with respect to a number of rule of law indicators.  Overall, the World Bank Worldwide Governance Indicators for Italy show declining scores for rule of law performance in the years between 1996 and 2009.  The ABA World Justice Project Rule of Law Index for 2011 ranked Italy at the bottom in seven out of eight rule of law factors among the 12 countries in the North America and Western Europe region.  Within the group of 23 high income countries considered in the Rule of Law Index, Italy again ranked at or near the bottom in virtually every indicator.  Despite giving Italy praise for relatively strong judicial independence, the World Justice Project report noted in particular that corruption within the judiciary and impunity of government officials both constitute significant institutional weaknesses.  Lack of government accountability and delays in judicial decisions were also noted as sources of concern. 

The problem with Berlusconi’s reforms, however, is that most can be viewed as attempts to shield him from the judicial process despite whatever benefits they may provide for long-term rule of law improvements.  For example, his reform proposal includes limiting the use of wiretaps in criminal investigations.   Wiretap evidence has been central to the criminal cases against Berlusconi, so his attempt to curtail the availability of such evidence is obviously suspect.  Even so, news reports indicate that there are legitimate concerns with the extensive use of wiretap evidence, especially as such evidence is easily obtained and can be made public against the wishes of innocent third parties.  Berlusconi’s reform would purportedly make it harder to obtain judicial authorization, requiring consent of three judges after an initial proffer of evidence of guilt.  Open-ended wiretaps would also be eliminated through duration limits on the authorization.  

Similarly suspect are Berlusconi’s calls to separate the careers of prosecutors and judges and place prosecutors under the authority of the Ministry of Justice, an arm of the executive.  Again, this structural change is not, standing alone, problematic.  In the United States, prosecutorial functions fall under executive authority and are completely separate from the judicial branch.  But, in light of Berlusconi’s legal troubles, greater executive influence over prosecutorial decisions creates the appearance of interference.

Other proposed changes include cutting the slow pace of trials by imposing new statutory limitations periods.  Like the other proposals, this change alone is not objectionable, especially when viewed through the lens of the American constitutional guarantee of a speedy trial in criminal cases.  Delays in civil cases are also a problem worldwide, and initiatives to address overloaded courts are common.  The problem for Berlusconi is again the obvious conflict of interest in pursuing a reform that would exculpate him from further prosecution.  As some of his cases have been pending for several years, the new law would annul the proceedings.  One news report indicated that the changes would also result in the dismissal of anywhere from 7,000 to 15,000 trials across Italy, including at least one of Berlusconi's.  If passed, the bill would retroactively place a cap on the total duration of a trial (including all appeals).  The statutory period would depend on the crime charged.

As these examples show, the task for judicial reform watchers in Italy is to discern the legitimate efforts to address needed changes in Italy’s justice sector from unacceptable executive meddling in independent judicial affairs.   Berlusconi has done a good job obfuscating the issues by his brash words and open disdain for the judiciary.  As a result, his lack of statesmanship may be the demise of needed justice sector reforms, despite some worthwhile proposals that might improve the efficiency of trial proceedings in Italy and remove any inappropriate co-mingling between prosecutorial and judicial authority. Whether Italian democracy is “in danger,” as critics charge, may be another matter.  As voters demonstrated in their refusal to approve Berlusconi’s immunity legislation, the power of the people remains intact.

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