STATEMENT OF SPECIAL RAPPORTEUR ON INDEPENDENCE OF JUDGES AND LAWYERS FOLLOWING VISIT TO ITALY

15 November 2002



The following statement was issued today by Dato’ Param Cumaraswamy, Special Rapporteur of the Commission on Human Rights on the independence of judges and lawyers, on a follow-up mission to Italy from 6-8 November 2002:
"I undertook a mission to Italy from Nov. 6-8 2002 to follow up on my previous mission undertaken on March 11-14 2002 and my preliminary report thereon submitted to the 58th session of the Commission on Human Rights (E/CN.4/2002/Add3).
"The earlier mission was prompted by reports I received of nationwide protests by magistrates at the start of the legal year to express their concerns about the Government’s attempt to undermine their independence.
"In my preliminary report I expressed the following, inter alia:
i) that I was satisfied that there was reasonable cause for the magistrates to feel that their independence was threatened.
ii) that magistrates should not conduct themselves in a manner which could compromise their independence and impartiality.
iii) The cumbersome legal system and its procedures and the high profile criminal cases before the Milan courts and the manner 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.
iv) These developments led to a mutual suspicion and mistrust between the Government and the magistrates.
"In my preliminary report I recommended that:
i) the prominent politicians facing charges before the Milan courts should respect the principles of due process and should not be seen delaying the process;
ii) that there be set up a coordinating committee of representatives of all segments of the administration of justice to address reform of the justice system in a holistic and comprehensive way.
During the latest follow up mission I met the Presidents of the Court of Cassation, the Constitutional Court, the National Association of Magistrates and the Higher Council of the Judiciary. I also met the Minister of Justice. I received some documents. I sought a meeting with the Prime Minister, Mr. Silvio Berlusconi, who was then also the Foreign Minister. For reasons still not known such a meeting was not scheduled.
"I thank the office of the Permanent Representative of the Government of Italy in Geneva for assisting and facilitating this follow-up mission.
"A final report containing my conclusions and recommendations will be prepared and submitted at the 59th session of the Commission on Human Rights in March 2003. However, my preliminary observations of the follow up mission are as follows:
i) The trials of the prominent politicians before the Milan courts are still pending. In paragraph 13 of my preliminary report I refrained from elaborating on these cases as one of the case, that of the Prime Minister was pending before the Court of Cassation on an application for transfer from the Milan court to Brescia. Since then the Court of Cassation delivered its decision. In its decision the Court referred the issue of application for transfer of cases from one court to another on grounds of legitimate suspicion for want of impartiality to the Constitutional Court. However, before the Constitutional Court could decide on the reference Parliament jumped the gun and amended the relevant provisions in the Criminal Procedure Code to provide for transfer on such ground. Concerns were expressed that the amendments are retrospective and would apply to current cases before the courts and further when application for transfers are made to the Court of Cassation the trials in question would be suspended. However, application for every transfer is to be decided by the Court of Cassation.
ii) the speed in which Parliamentary process was invoked to amend the Criminal Procedure Code before even the Constitutional Court could decide on the reference is unprecedented and the immediate beneficiary of this amendment is seen as the Prime Minister though it is felt that there is a need for such an amendment to the Criminal Procedure Code.
iii) I also learnrf that recently the Prime Minister failed to appear in two trials – one in Palermo and another in Milan – to give testimony as a witness. When inquired why I was told that there is a provision in the Criminal Procedure Code providing high ranking personalities like the Prime Minister the option to appear and give evidence in court or call upon the court to receive their testimonies at a venue of their choice. I find such a law, particularly in this day and time, untenable. It offends the principle of equality before the law which is provided as one of the fundamental principles in Article 3 of the Italian Constitution. Further, it offends Articles 14(1) and 26 of the International Covenant on Civil and Political Rights.Article 14(1) provides that all persons shall be equal before the courts. The principle of equality before the law is a core value of the rule of law.
The Prime Minister being the head of the executive arm of the government should not be seen as being above the law and violating the very core value of the rule of law. In any event it is not clear whether the Prime Minister expressed a choice and called for the court to hear his testimony at another venue. Such a provision in the law can be open for abuse and delay the due process of law by prominent personalities. In this regard I refer to paragraph 28 of my earlier preliminary report. In such circumstances there is no effective procedure to compel attendance of such personalities in court.
iv) Another source of concern is that one of the lead lawyers for the Prime Minister is a member of the House of Deputies and is also the President of the Justice Commission in the same House. Conflict of interest and ethical issues arising over such representation do not seem to be addressed by Parliament or the competent disciplinary authorities of the legal profession.
v) There has not been much progress made in the reform of the justice system. The Minister of Justice indicated that there are some 42 Bills in Parliament on amendments to various laws one of which is a legislation on judicial order an aspect of which resulted in the magistrates going on strike in July this year. The Minister also indicated that a committee to review the Criminal Procedure Code will soon be formed. There is also a proposal to form a committee to review the Civil Procedure Code.
vi) In this regard I also noted that the Committee of Ministers of the Council of Europe is monitoring the efficiency of criminal justice in Italy. In its press release of July 10, 2002 the Committee expressed its regrets that statistics provided for year 2000-2001 “did not allow to conclude that there had been any significant progress in the efficiency of the criminal justice in Italy.” The Committee has been concerned over the excessive length of judicial proceedings in Italy resulting in the “incessant flow of judgments of the European Court of Human Rights finding Italy in violation of Article 6 of the Convention.”
vii) Mutual suspicion and mistrust resulting in tension between the magistrates and Government continues. The root causes appear to be the cumbersome legal system and its procedures leading to abuses and the high profile trials of prominent politicians who are seen taking advantage of the weaknesses in the system and where necessary using the Parliamentary process."



* *** *