—Franco Peirone, Jean Monnet Center, NYU School of Law
On November 22, 2017, the Grand Chamber of the European Court of Human Rights (ECtHR) will have to decide on a curious petition: the former Prime Minister of Italy, Silvio Berlusconi, claims to have suffered an injustice by a retroactive application of Italian anti-corruption legislation. Indeed, on November 27, 2013, Berlusconi lost his seat in the Italian Parliament as a consequence of being convicted of tax fraud and sentenced to four years on August 1, 2013. This occurred because the combined anti-corruption legal framework (Law 190 of November 2, 2012 and Legislative Decree 235 of December 31, 2012) provides for loss of public office for those who have been sentenced to prison for a period longer than two years for crimes whose provision of incarceration is at least four years.
Berlusconi alleged that the loss of his parliamentary seat was in substance a criminal sanction and thus, according to Article 7(1) of the European Convention on Human Rights (ECHR), should have been subject to the principle of non-retroactivity. The Italian administrative tribunal of Council of State (in Decision 5222 of October 29, 2013) and Constitutional Court (in Decision 118 of June 5, 2013), instead considered it to be an administrative law measure that could properly be applied to events occurring in the past, such as the criminal acts committed by Berlusconi, which predated the adoption of the law.
The question now pending before the ECtHR is in effect to what extent and in which fields may the law rule the past. In principle, the rule of law ideal itself seems to clash with the possibility that the law can govern retroactively. The normative concept of the rule of law has been interpreted, inter alia, as a tool of orientation for human behavior; from this perspective, how could the law rule past events without offending the very basic principle of dignity that an individual’s behavior should be judged according to the legal framework operating at the time? The idea that someone could be punished for a rule that came into existence only after he had acted often repulses us. The traditional criminal law prohibition of retroactivity – nullum crimen, nulla poena sine praevia lege poenali – refers of course to this general idea.
Nonetheless, the rule of law would fail in its goal of governing human behavior if it were prevented from ruling on events that have already taken place. In truth, any legal adjudication necessarily operates on past events, and the prohibition of retroactivity only aims to set aside certain types of legal entitlements from the general and a-temporal projection of the ruling of the law. This other constitutive feature of the rule of law is expressed by the principle tempus regit actum, according to which a judgment should be formulated having due regard to the law currently in force when the judgment itself is taken. And when this is applied to acts committed under a past legal framework, the law is said to that extent to rule retrospectively.