Trial before the court of human rights: berlusconi v. Italy

The former head of government is fighting his ban from office in court. He wants to make a comeback in the next election.

He’s back – but first there’s a little ban from office to get out of the way Photo: dpa

Can Silvio Berlusconi become Italian head of government once again after the elections in the spring? He is still banned from office for tax evasion. But on Wednesday, the European Court of Human Rights (ECHR) heard Berlusconi’s case.

The four-time head of government Berlusconi is now 81 years old, and at times he was considered a political caricature. But after his center-right alliance surprisingly won the regional elections in Sicily, the "Cavaliere" is suddenly once again seen as a central player in Italian politics.

However, as things stand at present, Berlusconi cannot become head of government for a fifth time. This is because at the end of 2013, the Italian Senate (the second regionally elected chamber of parliament) decided to ban Berlusconi from holding office and governing for six years. The decision is based on the Severino Law, named after Paola Severino, then a nonpartisan justice minister. It provides that mandate holders who have been sentenced to more than two years’ imprisonment can be deprived of their mandate and eligibility.

Berlusconi had been sentenced to four years in prison in 2012 in the Mediaset case for tax evasion amounting to 470 million euros. The sentence became final in August 2013. Although Berlusconi ultimately only had to perform community service in a retirement home due to his age, the requirements of the Severino Act were met. In November 2013, the Senate decided to strip Berlusconi of his Senate seat. In addition, he would not be allowed to run for parliament or hold government office until the end of 2019.

Strasbourg is only now negotiating

Berlusconi immediately filed a complaint against this. But only now, four years later, did the ECHR hear the case in Strasbourg. Berlusconi’s lawyer, Edward Fitzgerald, described the ban on the mandate as a punishment with inadmissible retroactive effect. After all, the Severino law had not yet been in force when Berlusconi evaded taxes from 1995 to 1998.

Moreover, he said, the law does not contain clear criteria for revoking a mandate. "Ultimately, Berlusconi’s opponents decide his political fate," Fitzgerald said, "this is politics, not justice." He added that it was also intolerable under the rule of law that the Senate’s decision could not be reviewed by a court.

Government representative Maria Giuliana Civinini said, "The withdrawal of the mandate is not a punishment, but a political decision of the deputies." The prohibition of retroactivity for criminal laws does not apply here, she said. This is because what is at stake is not personal guilt, but the ability to work and the reputation of Parliament.

The ECtHR, he said, has always given member states wide latitude in questions of eligibility. "If the Court rules against Italy, it would be a setback in the fight against corruption and tax evasion," Civinini said.

The judges took Berlusconi’s complaint seriously and asked the Italian government numerous critical questions. "Why is it that in Italy, disqualification from voting for local offices is subject to judicial review, but disqualification at the national level is not?" Portuguese judge Paulo Pinto de Albuquerque, for example, wanted to know.

The ruling will be announced in a few months. If Berlusconi wins, but the ECHR does not rule until shortly after the elections, he could no longer be a member of parliament, but he could still become head of government.

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