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May the Rule of Law be Retroactive? Berlusconi’s Case Before the European Court of Human Rights

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.

In this case, a new law deprives citizens who have been sentenced for some particular offences of an otherwise strong legal entitlement, the political right to be elected for a public office. Whom should this law affect? Everyone sentenced, only those sentenced when the law was already in force – such as Berlusconi – or only those who committed the relevant acts amounting to a criminal offence after the law had been enacted? Strict allegiance to the prohibition of retroactivity demands that we consider only the third option, since the other two categories of individual were deprived of the chance to rely on the new law to orient their behavior. According to the principle of tempus regit actum, instead, the law would surely apply to the last two categories and, through a more complex process, to the first one too.

At first glance, the choice would mainly depend on the legal category into which the ruling law falls. If the deprivation of political rights due to a criminal conviction were considered a criminal sanction, the argument for the prohibition of retroactivity would gain strength: it would be almost impossible to deny that applying a law to persons convicted when that law was not in force when they committed the relevant facts would mean violating the prohibition of retroactive criminal law. If, instead, the same law were classified as an administrative law measure, its application to convicted persons would not be hampered by these temporal questions. Clearly, the matter becomes more complicated if we do not simply rely on the division between what is criminal and what is administrative according to the national legal framework of reference, but according to international law principles or even to a general theory of the rule of law.

Berlusconi’s claim before the European Court of Human Rights relies exactly on the point that what was considered in the Italian legal system as an administrative measure – the ban from sitting in Parliament due to his conviction – was in substance a criminal sanction.

Nonetheless, Berlusconi’s argument faces difficult challenges. Under the well-known three-part Engel test which the ECtHR has developed for assessing the criminal nature of a sanction, the qualification of the offence operated by the national legal system matters, and here it is undisputed that the Italian legal system considers the measure to be one of an administrative nature. Actually, it could be argued that is not even a sanction at all, but simply a condition for access to public office.

The other two criteria, namely the punitive-deterrent function of the sanction and its gravity, seem to point in the same direction. The very concept of punishment involves a certain degree of evaluation of the circumstances of the wrongful act and a proportioned ratio between the behavior targeted and the punishment inflicted. None of these elements is present in Berlusconi’s ejection from Parliament. With regard to deterrence, it is hard to claim that people refrain from criminal offences because they are afraid that they will lose the possibility to run for public office – quite a remote possibility for anyone – rather than that they would risk prison. The negative consequence on the right to be elected is not a major deterrent; imprisonment is. It is the latter that causes widespread deterrence and which is of common knowledge among the population.

Last, the parameter of the gravity of the sanction, which is often utilized as an integrative criterion to the former two, should be evaluated according to the right actually affected by the law. Political rights are considered functional rights, aimed also at satisfying a goal for the public interest – the formation of the Parliament in this case – and relative rights that should be balanced with other compelling factors in the realization of that goal. The collective right, established by the law, of having Parliament members who do not have certain kinds of criminal convictions on their record, is an aim relevant enough to limit the individual right to be elected, and a reasonable ground to constrain the popular will in choosing representatives, as much as traditional criteria for electability such as age, nationality and literacy.

The legal provision challenged before the ECtHR is therefore an administrative law provision, not a criminal one, and its application has correctly followed the principle of tempus regit actum. By consequence, it can operate retrospectively and the ECtHR should not regard it as subject to Art. 7 ECHR. This is simply a case where the law regulates an area from the time the law has been passed, but necessarily effects situations that have arisen in the past, since the rule of law never operates on a tabula rasa. The questions that the ECtHR will address in this decision should provide an interesting insight into the relationship between the normative concept of the rule of law and its temporal application.

Suggested citation: Franco Peirone, May the Rule of Law be Retroactive? Berlusconi’s Case Before the European Court of Human Rights, Int’l J. Const. L. Blog, Nov. 17, 2017, at: http://www.iconnectblog.com/2017/11/may-the-rule-of-law-be-retroactive-berlusconis-case-before-the-european-court-of-human-rights/

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Published on November 17, 2017
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