Judicial 'independence' threatened
01 August 2002
Repeated clashes between the Italian government and sections of the judiciary over planned reform of the judicial system and long-running court cases involving Silvio Berlusconi and some of his associates, led the UN Special Rapporteur on the independence of judges and magistrates to undertake an urgent mission to Italy on 11-14 March 2002. He explained that "a confrontation of this nature can easily degenerate and become a threat to the rule of law". Hundreds of magistrates demonstrated in January to express their concerns about "government attempts to undermine the independence of the judiciary", political interference in current trials, planned reform of the justice system seeking to put prosecutors under control of the executive and a reduction of police escorts for magistrates and prosecutors.
The preliminary report and statement by Mr Param Cumaraswamy to the UN Commission on Human Rights indicated that there was "reasonable cause for judges and prosecutors to feel that their independence is threatened". He also called on "prominent political figures" involved in criminal cases "to respect the principles of due process and not to use their positions to delay the proceedings unduly", and to respect decisions made by courts.
After Cumaraswamy's recommendations, criticism of judicial decisions by members of the government have continued, with Berlusconi repeatedly claiming that the 1990s Tangentopoli trials, that uncovered endemic corruption and led to the collapse of the main governing parties, was politically motivated by the "toghe rosse" (red gowns, that is, communist magistrates), who he claims are persecuting him. Magistrates were also being criticised in connection to decisions to investigate and charge police officers and officials for the use of violence against demonstrators in Naples in March 2001 and in Genoa in July 2001.
A number of legislative initiatives by the centre-right government have been widely viewed as being aimed at obstructing magistrates in specific cases. They include a law passed to introduce stricter guarantees of authenticity for material obtained from foreign magistrates. This is seen as a ploy to invalidate material received by Italian investigators regarding banks accounts held in Switzerland in the framework of Italian-Swiss judicial cooperation, and a planned law on "legitimate suspicion" to allow a change of venue if suspicion arises that a judge may be partial (widely viewed as an attempt to have Berlusconi´s trials moved from Milan).
Even the government's rejection of the early implementation of the European arrest warrant has been viewed as an exercise by Berlusconi to escape prosecution for fraud instigated against him by judge Baltasar Garzón in Spain. In this context, it is interesting to note that a law to decriminalise company fraud in the form of false accounting prevented the Prime Minister's brother Paolo and his close associate Dell'Utri from being convicted in separate trials. The two were acquitted on 8 and 9 October 2002 because, following the decriminalisation of false accounting, "the facts do not constitute a crime", or "are not included in the criminal code".