Executive Immunity Suffers Another Setback

by Scott Horton

Is an Italian law that grants senior officials of the government immunity from criminal prosecution during the time they serve in office consistent with the Italian Constitution’s guarantee that all citizens are equal before the law? The Italian Constitutional Court answered that question yesterday with a decisive “no.” It concluded that senior officials of the government had to be accountable through the same mechanisms of criminal justice as all other citizens. Anything short of this, the Court reasoned, would violate the Constitution’s promise of equal protection. The ruling deals another serious blow to the idea of head-of-state immunity, a doctrine which has been under siege since roughly the end of World War II. According to Prosecuting Heads of State, a study recently published by Cambridge University Press, more than 90 heads of state have been prosecuted for serious crimes committed while in office in the last twenty years, in many cases involving war crimes and crimes against humanity. The Berlusconi ruling, like the recent successfully concluded prosecution of former Peruvian President Alberto Fujimori, therefore fits into a clear emerging trend in democratic states against the notion of immunity for heads of government and in favor of their accountability under the domestic criminal justice system.

For the Italian center and left, the ruling was greeted with jubilation. “If it is still permissible to say it, in the midst of the din, democracy showed its force of freedom yesterday,” wrote the editors of La Repubblica. “In the Italy of 2009 not everything can be intimidated by the violence of power and its apparatus, not everything is up for blackmail, not everything is up for sale.” Mr. Berlusconi, for his part, saw a conspiracy among left-wing activist judges in the ruling, and vowed to fight on.

Berlusconi, who has been the subject of repeated criminal prosecutions in the past, will now have to defend two open criminal matters that had up to this point been stayed by the immunity law. His past and pending problems with criminal investigators are surveyed here.

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