[legal-professionals] Special Rapporteur on Independence of Judges and Lawyers visits Italy

UNITED NATIONS
Press Release
15 November 2002

xxxxxxxxxxSTATEMENT OF SPECIAL RAPPORTEUR ON INDEPENDENCE OF JUDGES AND 
LAWYERS FOLLOWING VISIT TO ITALYxxxxxxxxxx

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."
* *** *