Constitutionalists call on the Parliament against privileges

Today, according to the newspaper "La Repubblica", around 100 Constitutional Lawyers have signed the following petition. I provided here with the English translation (done by me). The original text and reference is to be found in the website of "La Repubblica".

“The below-mentioned Professors of Constitutional Law and of equivalent disciplines, seriously worried about the recent legislative initiatives meant to: 1) block for a year the criminal proceedings in act for facts committed before 30 June 2002, with the exclusion of crimes punished with detention of more than 10 years; 2) to reintroduce in our legal system the temporary immunity for common crimes committed by the President of the Republic, the President of the Council of Ministers and the Presidents of the House of Representatives and the Senate even before the moment of enter into office, as it was provided by article 1 (2) of Law 140/2003, that was declared unconstitutional by the Constitutional Court with sentence 24/2004. We anticipate that article 1(2) of the Constitution, by declaring that “Sovereignty belongs to the people, that exercises it in the forms and within the limits of the Constitution”, excludes that the people could, with his vote, makes judicially immune the persons entitled to a public elective office and that these, only for the fact of vesting institutional offices, be exempted by the imperative respect of the Constitutional Charter. We acknowledge that, with reference to the conversion law of Law Decree 92/2008, that articles 2-bis and 2-ter there introduced by amendment give rise to unsolvable constitutional questions: 1) by being all alien to the logic of the Security Decree, they lack the requirement of necessity and urgency according to article 77(2) of the Constitution (see, sentences 171/2007 and 128/2008, Constitutional Court); b) violate the principle of the reasonable length of the trial (article 111(1), Constitution, and article 6, European Convention on Human Rights); c) breach the principle of mandatory nature of criminal proceedings’ initiation (article 112 Constitution), according to which the legislator does not have the power to suspend the trials, but only, and at maximum, to provide with – flexible - criteria that the judicial offices must inspire to in the formation of the trials’ schedules; d) the date of 30 June 2002 does not present any objective and rational ground; e) there is no reasonable justification for a so generalised suspension that, at his elapse, would produce further devastating effects of judicial disfunctions that will arise in the meantime. We register that, in reference to the so-called “Lodo Alfano”, that the temporary suspension there provided for, by affecting generally the common crimes committed by the people in charge of the abovementioned four high charges, is in violation not only of the reasonable length of trials and the principle of mandatory nature of criminal proceedings’ initiation, but also and mainly of article 3(1) of the Constitution, according to which all citizens “are equal before the law”.

We observe, on this issue, that the present derogations to this principles in favour of people in charge of high institutional offices – all provided for by constitutional norms or grounded on precise constitutional obligations – concern always and exclusively acts and facts done in the exercise of their functions. Nevertheless, in the so-called “Lodo Alfano” the fact of being in charge of a high institutional office is deemed not only as a ground and limit of the “functional” immunity, but as a mere pretext in order to suspend the ordinary work of justice with reference to “common” crimes.

For what concerns the analogous article 1(2) of Law 140/2003, we recognise that, while declaring its unconstitutionality with sentence no. 24/2004, the Constitutional Court limited itself at assessing that the questioned legislative provision lacked many requirements and conditions (among which the mandatory indication of the requirement – i.e. of the crimes to which immunity would apply – and the also mandatory equal treatment of ministers and members of the parliament in the hypothesis of immunity, respectively of the Premier and of the President of the Two Chambers), at a level that made it inevitably in breach of the principles of Rule of Law.

Nevertheless, the Court did this without facing the basic issue, here treated, of the necessity that any kind of prerogatives that requires derogations to the principles of equality in criminal jurisdiction must be introduced necessarily and exclusively by Constitutional Law.

Finally, given the inexact news spread around on the issue, we deem useful to remind that the temporary immunity for common crimes is provided for only in the Greek, Portuguese, Israeli and French Constitutions, in reference only to the President of the Republic, while analogous immunity is not provided for the President of the Council and for the Ministers in any legal systems of parliamentary democracy similar to ours, neither in the Spanish system, often recalled but always inexactly.”

Signatures

Alessandro Pace, Valerio Onida, Leopoldo Elia, Gustavo Zagrebelsky, Enzo Cheli, Gianni Ferrara, Alessandro Pizzorusso, Sergio Bartole, Michele Scudiero, Federico Sorrentino, Franco Bassanini, Franco Modugno, Lorenza Carlassare, Umberto Allegretti, Adele Anzon Demmig, Michela Manetti, Roberto Romboli, Stefano Sicardi, Lorenzo Chieffi, Giuseppe Morbidelli, Cesare Pinelli, Gaetano Azzariti, Mario Dogliani, Enzo Balboni, Alfonso Di Giovine, Mauro Volpi, Stefano Maria Cicconetti, Antonio Ruggeri, Augusto Cerri, Francesco Bilancia, Antonio D'Andrea, Andrea Giorgis, Marco Ruotolo, Andrea Pugiotto, Giuditta Brunelli, Pasquale Costanzo, Alessandro Torre, Silvio Gambino, Marina Calamo Specchia, Ernesto Bettinelli, Gladio Gemma, Roberto Pinardi, Giovanni Di Cosimo, Maria Cristina Grisolia, Antonino Spadaro, Gianmario Demuro, Enrico Grosso, Anna Marzanati, Paolo Carrozza, Giovanni Cocco, Massimo Carli, Renato Balduzzi, Paolo Carnevale, Elisabetta Palici di Suni, Maurizio Pedrazza Gorlero, Guerino D'Ignazio, Vittorio Angiolini, Roberto Toniatti, Alfonso Celotto, Antonio Zorzi Giustiniani, Roberto Borrello, Tania Groppi, Marcello Cecchetti, Antonio Saitta, Marco Olivetti, Carmela Salazar, Elena Malfatti, Ferdinando Pinto, Massimo Siclari, Francesco Rigano, Francesco Rimoli, Mario Fiorillo, Aldo Bardusco, Eduardo Gianfrancesco, Maria Agostina Cabiddu, Gian Candido De Martin, Nicoletta Marzona, Carlo Colapietro, Vincenzo Atripaldi, Margherita Raveraira, Massimo Villone, Riccardo Guastini, Emanuele Rossi, Sergio Lariccia, Angela Musumeci, Giuseppe Volpe, Omar Chessa, Barbara Pezzini, Pietro Ciarlo, Sandro Staiano, Jörg Luther, Agatino Cariola, Nicola Occhiocupo, Carlo Casanato, Maria Paola Viviani Schlein, Carmine Pepe, Filippo Donati, Stefano Merlini, Paolo Caretti, Giovanni Tarli Barbieri, Vincenzo Cocozza, Annamaria Poggi.