The Italian Law on legitimate suspicion
2 April 2004
Committee on Legal Affairs and Human Rights
Rapporteur: Mrs Sabine Leutheusser-Schnarrenberger, Germany, Liberal, Democratic and Reformers' Group
The Italian Law on legitimate suspicion and the circumstances in which it was enacted have led the Assembly to consider its effects on the functioning of the justice system and the separation of powers in Italy.
The Rapporteur believes that the law unduly slows down the course of justice in certain cases, undermines trust in judges as a whole and is inimical to the principle of equality before the law.
The Italian authorities are therefore asked to repeal the law and enact legislation consistent with the principles of independence of the judiciary and of its members and the separation of powers.
The draft recommendation calls on the Committee of Ministers to commission a comparative study of any laws concerning legitimate suspicion in other member states.
I. Draft resolution [Link to the adoptd text]
1. The Parliamentary Assembly recalls the importance of the proper administration of justice, in accordance with the case-law of the European Court of Human Rights, in a reasonable time and by independent, impartial judges. It attaches the same importance to the separation of powers, which is a guarantee of democracy.
2. It is with close attention, therefore, that it follows changes made to the organisation of the judiciary in Council of Europe member states. The enactment in November 2002 of the Italian Law on legitimate suspicion, known as the Cirami law after its author, was examined in this perspective.
3. The Cirami law introduced into the Code of Criminal Procedure the notion of legitimate suspicion as a ground for requesting the transfer of a case from one court to another. The legitimate suspicion is founded on serious local circumstances likely to disturb the course of the proceedings. There is no limit to the number of requests for transfer on grounds of legitimate suspicion. It is sufficient to raise further grounds which may relate to facts already known that have not yet been relied upon.
4. Simply pleading legitimate suspicion brings about a stay of proceedings, pending the decision of the Court of Cassation on the merits. If the Court of Cassation finds that the legitimate suspicion is founded, it must refer the case to another court, which must reopen the proceedings ab initio. Even if the Court of Cassation finds that the legitimate suspicion is unfounded, if one of the judges is replaced in the course of the trial, the proceedings must be started again ab initio.
5. The consequences of the application of this law are the following:
i. it slows down the course of justice, whereas Italy has been condemned on several occasions by the European Court of Human Rights because of the excessive length of proceedings;
ii. it takes the case out of the hands of the rightful judge and virtually leaves the choice of judge to the defendant;
iii. it undermines trust in judges as a body, for unlike when the impartiality of an individual judge is challenged, legitimate suspicion tarnishes the good repute of the whole court;
iv. it is inimical to the principle of equality before the law, as only those defendants able to afford the cost of lengthy legal proceedings can avail themselves of it.
6. Therefore, with a view to avoiding the consequences of the Cirami law, the Assembly invites the Government of Italy:
i. to bring, as soon as possible, the domestic law in question into line with such guidelines and principles on securing the rule of law and the independence of judiciary as have been elaborated and approved by the institutions of the Council of Europe, including recommendations of the Committee of Ministers, resolutions of the Parliamentary Assembly and the case-law of the European Court of Human Rights;
ii. to repeal the Cirami law;
iii. to implement the recommendations of the special rapporteur of the United Nations contained in document E/CN.4/2003/65/Add.4, concerning, inter alia, judicial reform, the proceedings involving the Prime Minister and his associate, the judgments handed down by the courts and the political activities of judges.
II. Draft recommendation
The Parliamentary Assembly, having regard to Resolution (2004) on the Italian law on legitimate suspicion, recommends that the Committee of Ministers instruct the European Commission for the Efficiency of Justice (CEPEJ) to make a comparative study of any laws concerning legitimate suspicion in other member states.
III. Explanatory memorandum
by Mrs Leutheusser-Schnarrenberger, Rapporteur
1. The Committee on Legal Affairs and Human Rights appointed me on 29 April 2003 as rapporteur on the Italian legitimate suspicion law, known as the Cirami law, passed by the Chamber of Deputies on 5 November 2002.
2. The motion for a resolution forming the basis for the referral to the Committee on Legal Affairs and Human Rights asks that the rapporteur make a study of the consequences of this law for functioning of justice and the separation of powers.
3. I visited Rome on 28 and 29 October 2003 in order to collect the requisite information for the preparation of my report. The programme of meetings is appended hereto. I wish to express my gratitude to the Italian authorities and especially to the Italian parliamentary delegation for their helpfulness and hospitality.
4. I had at my disposal, to flesh out my information, the report drawn up by the Special Rapporteur on Independence of Judges and Lawyers of the United Nations Committee on Human Rights (E/CN.4/2002/72/Add.3) arising from a mission carried out in March 2002 before the adoption of the Cirami law, and the one arising from a further mission in November 2002 (E/CN.4/2003/65/Add.4) at the time of its adoption.
5. I propose to describe the circumstances in which the law was enacted, its content and its effects. I shall consider its effects on the functioning of the actual justice system, and lastly its consequences for the separation of powers.
B. The circumstances of enactment
6. In January 2002 the President of the Council of Ministers, Mr Berlusconi, facing trial with Mr Previti, an MP, before the Milan District Court on charges of corruption of magistrates in Rome, presented the Court of Cassation with a request for transfer of the proceedings to another court, in which the judges in Milan were accused of bias. The Court of Cassation asked the Constitutional Court to rule on the interpretation of Article 45 of the Code of Criminal Procedure, as it did not embody the concept of legitimate suspicion. Even before the Constitutional Court delivered its ruling, Senator Cirami tabled a bill proposing the addition of legitimate suspicion to the grounds for transfer set out in Article 45. The bill was approved by the Chamber of Deputies in November 2002.
7. Senator Cirami justified his bill by invoking the need to fill a vacuum found by the Court of Cassation which is evidenced by the referral to the Constitutional Court and by the fact that the concept of legitimate suspicion was known in Italian law and had existed in the past. He added, however, that trials over the last ten years had not been fair, suggesting that there were other motives.
8. True, the concept of legitimate suspicion is not new in Italian law. It was present in the 1930 Code of Criminal Procedure. It had the effect of suspending not the proceedings but the delivery of judgment. Legitimate suspicion was employed in the Matteoti case, and above all in many Mafia trials, to transfer proceedings from Sicily to the mainland. It has been pointed out by the opposition that legitimate suspicion has always served as an instrument at the command of the executive or of judicial conservatism. In 1988 when the Code of Criminal Procedure was revised, legitimate suspicion was not accepted for inclusion; it was replaced by another formula viz. local circumstances imperilling the judges independence.
9. A distinctly paradoxical situation arises from the fact that the law on the judiciary foreseen in the Constitution of 1948 has still not been adopted. The Penal Code has been supplemented or amended by pieces of ad hoc legislation.
10. Articles 45 and 46 to 49 of the Code of Criminal Procedure as amended by the Cirami law read as follows:
"Article 45. - (Transfer of proceedings)
1. At any stage or instance of proceedings on the merits, where serious local circumstances likely to disturb the course of the proceedings and not eliminable by other means adversely affect the freedom of determination of persons participating in the proceedings or public security or safety or constitute grounds for legitimate suspicion, the Court of Cassation shall, at the reasoned request of the Principal Public Prosecutor at the Court of Appeal, the public prosecutor at the court hearing the case or the defendant, transfer the proceedings to another court, appointed in accordance with Article 11."
"Article 47. - (Effects of the request)
1. Following submission of a transfer request, the court may order a stay of proceedings for as long as no decision finding the request inadmissible or refusing it has been given. The Court of Cassation may always order a stay of proceedings.
2. The court shall in any case stay the proceedings before the parties' pleadings and the oral procedure, and no committal for trial or judgment may be pronounced where the Court of Cassation has notified that the transfer request has been referred to the combined divisions or a division different from the appropriate division provided for in Article 610, paragraph 1. The court shall not stay the proceedings where the grounds for the request are not new in comparison with those of another request already refused or found inadmissible.
3.The stay of proceedings shall take effect for as long as no decision refusing the request or finding it inadmissible has been given and shall not prevent the implementation of urgent measures.
4. In the event of a stay of proceedings, Article 159 of the Criminal Code shall apply, and, where the request was lodged by the defendant, the time-limits laid down in Article 303, paragraph 1 shall be suspended. The limitation period and the time-limits on preventive custody shall begin to run again from the date on which the Court of Cassation refuses the request or finds it inadmissible or, if the request is granted, from the date on which the proceedings before the appointed court reach the same stage as the original proceedings were at when they were stayed. Where compatible, the provisions of Article 304 shall be observed."
"Article 48. - (Decisions)
1.The Court of Cassation shall take a decision in closed session in accordance with Article 127, if necessary after making appropriate inquiries.
2. On noting a ground for finding the request inadmissible, the President of the Court of Cassation shall order that the procedure under Article 610, paragraph 1, be followed.
3. Referral of the transfer request to the combined divisions or a division different from the appropriate division provided for in Article 610, paragraph 1, shall immediately be notified to the court hearing the case.
4. An order granting the request shall be notified without delay to the court hearing the case and to the appointed court. The court hearing the case shall immediately transfer the case-file to the appointed court and shall ensure that an extract from the Court of Cassation's order is communicated to the public prosecutor and notified to the other parties to the proceedings.
5. Without prejudice to the provisions of Article 190-bis, the court appointed by the Court of Cassation shall repeat measures taken before the transfer request was granted where one of the parties asks it to do so and where it is not a matter of measures which have become impossible to repeat. In the proceedings before that court the parties shall have the same rights and possibilities as they would have enjoyed before the court originally competent.
6. If the Court [of Cassation] rejects or finds inadmissible a request lodged by parties other than the public prosecutor it may in the same decision order those parties to pay a fine of between 1,000 and 5,000."
"Article 49. - (New requests for transfer of proceedings)
1. Even where a request has been granted, the public prosecutor or the defendant may request a new order revoking the previous one or appointing another court.
2. A decision refusing a transfer request or finding it inadmissible on the ground that it is clearly unfounded shall not prevent a new transfer request being made on new grounds.
3. A transfer request shall also be inadmissible on the ground that it is clearly unfounded where it is not based on new grounds in comparison with those already assessed in a decision refusing or finding inadmissible a request submitted by a co-defendant in the same proceedings or another defendant in separate proceedings.
4. A request found inadmissible on grounds other than manifest unfoundedness may always be resubmitted."
11. The list of the courts to which transfer may be ordered is settled by the law.
12. The law stipulates that it shall be applicable forthwith, inclusive of proceedings already in hand.
C. Effects of the law
13. The Cirami law provides for an automatic stay of proceedings where a request for transfer on the ground of legitimate suspicion is presented to the Court of Cassation, whereas previously only the delivery of judgment was stayed.
14. The transfer request may be made by the accused or by the prosecution. Since its entry into force, the prosecution has on no occasion made use of it.
15. The phrasing of the law is very imprecise and leaves a broad margin of discretion. In addition, the opposition has stressed that invoking local circumstances when that all the facts are now simultaneously known in all parts is somewhat outdated.
16. Challenging of one judge is still possible, but the legitimate suspicion device besmirches the good repute of the entire court, in other words the magistracy. It has the effect of taking matters out of the hands of the rightful judge.
17. There is no limit to the number of requests for transfer on the ground of legitimate suspicion; it suffices to raise further grounds. These may relate to facts that were already known earlier but had not yet been relied upon.
18. Automatic stay of proceedings may be attended by the annulment of certain acts.
19. Furthermore, it must be realised that when the composition of a court changes, all the stayed proceedings before it must be begun over again. At the time of writing of the present report, this was about to occur in the case of the Milan proceedings which have gone on for several years (three and a half years to be exact), and in which one of the judges was known to be due for transfer on 9 January 2004. The law, if used to dilatory ends, makes it possible to stay the proceedings indefinitely and even to reach the point where they become time-barred, as we have seen, which can happen even in the event that the Court of Cassation does not order a transfer. The Court of Cassation has received 147 requests from January to 20 October 2003 and has declared 137 of them manifestly inadmissible.
20. On 27 October 2003, the day before my visit, having before it Mr Previtis umpteenth request for transfer on the ground of legitimate suspicion, it did not declare the request manifestly inadmissible.
21. It should be noted that a new law passed on 18 June 2003 amended the Constitution by prescribing immunity for the five highest State offices, one being the President of the Council of Ministers. As a result, the proceedings against Mr Berlusconi were stayed for the duration of his term of office. However, in a decision of 13 January 2004, the Italian Constitutional Court declared this law unconstitutional as being contrary to the principle of all citizens being equal before the law.
D. Effects of the law on the functioning of justice
22. The law has various implications for the functioning of justice, the first being that procedures are protracted indefinitely, even to the point where a decision is eventually precluded by time-barring as indicated above.
23. The second effect is to overload the Court of Cassation whose seventh chamber is responsible for dealing with legitimate suspicion requests. If the request is not declared inadmissible, a decision on the merits is taken by the combined chambers. Given that the Court of Cassation has some 50 000 criminal cases referred to it per year, and that there have been repeated judgments against Italy for undue length of proceedings, it is plain that the law in question helps aggravate this state of affairs further.
24. It is also instrumental in casting suspicion about their rectitude upon judges as a body and in causing distrust among the public and all persons amenable to justice. This is exacerbated by Mr Berlusconis statements, repeated on numerous occasions, notably after the request for transfer of the Milan proceedings against him in January 2003, which request was declared manifestly inadmissible by the Court of Cassation. He called the judges crazy and uttered threats regarding their careers.
25. It has the further effect of compelling the court which lawfully exercises jurisdiction to relinquish it, contrary to the Constitution which stipulates that none may be exempt from trial by the rightful judge.
26. While the Cirami law, like any law, applies to everyone as the members of the governing party have pointed out, the opposition has made the observation that it was principally designed for defendants who possess the means to pay lawyers year after year, which is not so where most ordinary citizens are concerned. The law is thus regarded as introducing discrimination in favour of certain persons and in fact, we were told, those availing themselves of it are chiefly political figures and members of the Mafia.
27. The consequences are therefore extremely grave in relation to a number of general principles of law such as the equality of all persons before the law, especially if the process can go as far as impunity by reason of time-barring, not to mention the incidental effects on the good repute of the judiciary and on procedural delays.
28. The issue of the laws retroactivity is also problematic, although many of my contacts argue that this is consistent with Italian practice. I myself have doubts on that score and would expect a convincing demonstration that this is not in contradiction with the generally recognised principles of non-retroactivity of the law.
E. Effects of the law on the separation of powers
29. The bill was introduced by a senator close to Mr Berlusconi and supported by his lawyers who are members of parliament. It in effect hardened an existing antagonism between the executive and the judiciary, whom some majority parliamentarians would even disqualify from being a State power in the belief that they are merely an administrative body and therefore subject to the executives authority.
30. The opposition has stressed that the legislature was used as a tool to arrive at a situation favourable to the executive. It notes that the lawyers of MM Berlusconi and Previti are also members of the Senate in which one of them chairs the Justice Commission, or of the Chamber of Deputies. The parliamentarians in question also make pejorative remarks on occasion about the magistrates (judges and prosecutors).
31. The magistracy is accused of being politicised, although any political activity is prohibited for magistrates, and judges impartiality is prescribed by law.
32. An element which has been mentioned and which also throws light on the motives underlying the law is that in 1993 parliamentary immunity from prosecution was lifted and this was felt to cause an imbalance in the magistrates favour. Other laws passed subsequent to the Cirami Law confirm the strengthening of the powers of the Prime Minister.
F. Preliminary conclusions
33. The Cirami law is an illustration of a more general situation, namely absence of a law governing the judiciary as a whole, provided for in the 1948 Constitution but not adopted hitherto, with the result that the 1941 Penal Code is the instrument that continues to be applicable, with amendments or additions made by pieces of ad hoc legislation. The Cirami law is one of these.
34. The effect of the law is automatic stay of proceedings upon submission to the Court of Cassation of a request for transfer of a case on grounds of legitimate suspicion.
35. Transfer requests are not subject to limitation; it suffices to raise further grounds, including facts known earlier but not yet relied upon.
36. The outcome is that the court procedure is protracted indefinitely, possibly to the point where a decision is precluded by time-barring.
37. It also has the effect of further slowing down the course of proceedings, when in fact Italy has received frequent censure in European Court of Human Rights judgments precisely because of the duration of proceedings.
38. If the Court of Cassation concedes legitimate suspicion, the effect is to disable the court normally exercising jurisdiction, and this is at variance with the Constitution. One may even take the view that in a way the persons charged are able to choose their judges.
39. It undermines the credibility of judges generally because, unlike challenge which involves only one judge, it applies to the entire court.
40. It is inimical to the principle of the equality of all citizens before the law, because only defendants able to pay lawyers year after year can avail themselves of it.
41. It reflects a certain antagonism between the executive and the legislature on one side and the judiciary on the other. This situation is aggravated by the statements that political figures make, accusing the magistrates of grave misconduct. The fact that the lawyers of the accused are at the same time members of parliament is not conducive to the dispassionate conduct of parliamentary proceedings.
42. Recommendations which can be made:
Italy should at last provide itself with a law on the judiciary as prescribed by the Constitution, and the law should be consistent with the two principles of independence of the judiciary and of its members, and separation of powers.
The Cirami law should thus be repealed.
The recommendations made by the Special Rapporteur of the United Nations should also be implemented as they appear in the two documents mentioned in paragraph 4 above, concerning, inter alia, judicial reform, the proceedings involving the Prime Minister and his associate, the judgments handed down by the courts and the political activities of judges.
The Committee of Ministers should instruct the European Commission for the Efficiency of Justice (CEPEJ) to make a make a comparative study of any laws concerning legitimate suspicion in other member states.
Programme of the visit
of Mrs Sabine Leutheusser-Schnarrenberger, Rapporteur
Rome, 28-29 October 2003
Tuesday 28 October 2003
8 h 45 Meeting with representatives of the Association of Magistrates
9 h 30 Meeting with the First President of the Supreme Court of Cassation,
Mr Nicola Marvulli
11 h Meeting with the Legal Committee of the Chamber of Deputies
12 h Meeting with the Italian Delegation to the Parliamentary Assembly of the Council of Europe
(Palazzo Madama, opposite the Press Room)
13 h Lunch at the Senate Restaurant
14 h 45 Meeting with the Bureau of the Legal Committee, including also group representatives of the Legal Committee of the Senate
(Legal Committee's Room)
16 h Meeting with the Deputy Speaker of the Chamber of Deputies,
M. Alfredo Biondi
17 h Meeting with Senator Melchiorre Cirami
(Palazzo Madama, opposite the Press Room)
Wednesday 29 October 2003
9 h 30 Meeting with Senator Andrea Manzella
(Palazzo Madama, opposite the Press Room)
Reporting committee: Committee on Legal Affairs and Human Rights
Reference to committee: Doc 9644, Reference No 2791 of 27 January 2003
Draft resolution adopted with 11 votes in favour, 2 votes against and 3 abstentions and draft recommendation adopted with 13 votes in favour, one vote against and one abstention by the Committee on 15 March 2004
Members of the Committee: Mr Lintner (Chairperson), Mr Marty, Mr Jaskiernia, Mr Jurgens (Vice-Chairpersons), Mrs Ahlqvist, Mr Akçam, Mr Alibeyli, Mr Arabadjiev, Mrs Arifi, Mr Ates, Mrs Azevedo, Mr Barquero Vázquez, Mr Bartumeu Cassany, Mrs Bemelmans-Videc, Mr Berisha, Mr Bindig, Mr Bruce, Mrs Christmas-Møller, Mr Cilevics, Mr Coifan (alternate: Mr Chiliman), Mr Contestabile, Mr Davis, Mr Dimas, Mr Engeset, Mrs Err, Mr Fedorov, Mr Fico, Mr Frunda, Mr Galchenko, Mr Gedei (alternate: Mr Tabajdi), Mr Goris, Mr Guardans, Mr Gündüz, Mrs Hajiyeva, Mrs Hakl, Mr Holovaty, Mr Ionnadis, Mr Ivanov, Mr Jurica (alternate: Mr Letica), Mr Kalezic (alternate: Mr Micunovic), Mr Kaufmann, Mr Kelber, Mr Kelemen, Mr Kroll, Mr Kroupa, Mr Kucheida, Mrs Leutheusser-Schnarrenberger, Mr Manzella, Mr Martins, Mr Masi, Mr Masson, Mr McNamara, Mr Monfils, Mr Nachbar, Mr Olteanu, Mrs Ormonde, Mrs Pasternak, Mr Pehrson, Mr Pellicini, Mr Pentchev, Mrs Pétursdóttir, Mr Piscitello, Mr Poroshenko, Mrs Postoica, Mr Pourgourides, Mr Prica, Mr Pullicino Orlando, Mr Raguz, Mr Ransdorf, Mr Rochebloine, Mr Rustamyan, Mr Solé Tura, Mr Spindelegger, Mr Stankevic, Mr Symonenko, Mr Takkula, Mrs Tevdoradze, Mr Wilkinson (alternate: Mr Malins), Mrs Wohlwend, Mr Zavgayev
N.B. The names of those members who were present at the meeting are printed in italics.
Secretaries to the Committee: Ms Coin, Mr Schirmer, Mr Cupina, Mr Milner