Italian court rules Berlusconi's immunity law unconstitutional

Judges reject prime minister's act which would exempt him from facing a series of trials for fraud, tax evasion and bribery
Silvio Berlusconi
Silvio Berlusconi. Photograph: Tony Gentile/Reuters

Italy was cast back into political turmoil tonight when the country's constitutional court threw out a law passed by Silvio Berlusconi's government that gave him immunity from prosecution for as long as he remained prime minister.

The majority decision represented a severe blow for Berlusconi, who was already struggling to contain the damage from a lurid sex and drugs scandal in which he is accused of using the services of prostitutes.

With some of Berlusconi's associates claiming that the judges of the country's top court had joined a plot to remove him, there was also a clear risk that Italy could be plunged into a constitutional crisis.

In a statement, the prime minister dampened speculation of an early election. He said the decision had not in any way altered his "will to carry on" in government.

He said: "I cannot but respect the response from the constitutional court." But he appeared to foreshadow an attempt to bring the court under tighter political control when he said that "this system, and above all the way in which the members of the court are chosen, risks upsetting over time the correct balance between the powers of the state".

Fabrizio Cicchitto, the leader of Berlusconi's party in the lower house of parliament, blamed the outcome on a "process of politicisation of the court which is joining the line of attack against prime minister Berlusconi".

As the judges were deliberating, Berlusconi's leading ally, the Northern League leader Umberto Bossi, warned them not to "defy the anger of the peoples [of Italy]" and vowed that, if the law were rejected, "we will enter into action, bringing out the people".

For years Berlusconi has claimed that he is the victim of a plot by leftwing judges and prosecutors, and his followers had argued that the immunity bill was needed to protect him.


A statement issued by the court said that the judges had ruled the law "constitutionally illegitimate". Initial indications were that the court had decided a constitutional reform was needed to create immunity, whereas the government had tried to use the short cut of a routine bill.

One of Berlusconi's lawyers, Niccolò Ghedini, appeared to acknowledge in his pleading to the court on Tuesday that the immunity act put a question mark over the constitutional principle that all Italians are equal before the law. He said: "The law is equal for everyone, but not always in its application."


Among the decisions that the government will now have to take is whether to try again to furnish its leader with immunity by reforming the constitution. But that requires either the staging of a popular referendum or a two-thirds majority in both houses of parliament.

A trial in Milan in which Berlusconi is charged with tax evasion, which was suspended last year after parliament approved the immunity law, can now resume. Having passed the age of 70, however, the prime minister can no longer be jailed even if found guilty.

But his resumed prosecution will nevertheless be an embarrassment. It comes at a time when his government is leading a high-profile campaign against tax dodgers and offering an amnesty to Italians who have salted money abroad to avoid tax.


The prime minister was scratched from the trial because of the immunity law, but the court ruled in May that he had given the bribe. Since the case against him would have to be started again, however, it is highly likely to be "timed out" by a statute of limitations before the judges have a chance to reach a verdict.

A more important consequence of yesterday's decision will be to give a new relevance to two investigations in which Berlusconi is a suspect. In one, where charges are thought unlikely to be laid, allegations are being investigated that he "bought" two MPs with the aim of bringing down Italy's last centre-left government. In the second investigation, he is accused of embezzlement and tax evasion in both Italy and the United States, and that case is thought likely to proceed.

Dario Franceschini, the leader of Italy's biggest opposition group, the Democratic party, said: "The constitutional court has re-established the principle of the equality of citizens before the law." He added: "Everyone is equal before the law, even the powerful."


The controversy over the role of the judiciary had reached fever pitch in recent days following an announcement by a judge in Milan on Saturday that he had awarded damages of €750m against Berlusconi's Fininvest group.



Clean Hands put pressure on prime minister

Nowhere have judges and prosecutors had such an impact on politics as in contemporary Italy. In the early 1990s, the country's entire political order was overthrown by a vast inquiry into party corruption known as the Clean Hands investigation. By the time the inquiry had run its course, the then Socialists' leader, Bettino Craxi, was a fugitive from justice and the Christian Democrat party, which had dominated government for almost 50 years, was in ruins. The Clean Hands inquiry also marked the start of Silvio Berlusconi's legal problems. He has since been repeatedly charged with, but never finally convicted of, a string of alleged offences. Today's judgment will reignite a debate at the centre of Italian politics: whether, as Italy's prime minister claims, the judiciary's prominent role is a consequence of its infiltration by leftwingers after 1968, or as his critics insist, a reflection of its much-needed independence in a society riddled with cronyism.