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Italy: Constitutional Court Strikes Down Parts of Immunity Law

(Feb. 11, 2011) On January 13, 2011, Italy's Constitutional Court struck down parts of a law supported by Prime Minister Silvio Berlusconi that would have given him and his Ministers temporary immunity from criminal charges while they remain in office. As passed by the country's Senate in March 2010, Law No. 51 of April 7, 2010, on Rules Regarding Lawful Impediment to Attend Hearings Before a Court, permitted Cabinet officials to postpone criminal proceedings against them that were underway or due to be started within 18 months of the Law's date of enactment, if the charges constituted a “'legitimate impediment' [legittimo impedimento] to the performance of their duties.” (Julia Zebley, Italy Court Weakens Law Temporarily Providing Immunity for Public Officials, PAPER CHASE NEWSBURST (Jan. 13, 2011),
; Legge 7 aprile 2010, n.51 (sul “legittimo impedimento”), Corte Costituzionale website,
(last visited Feb. 10, 2011).)

Among other matters, the Court ruled that the Law violated article 3 of the Italian Constitution, which stipulates that “all citizens have equal social status and are equal before the law,” and article 138 (on constitutional laws and amendments) by allowing an “unreasonable disparity between the rights of defense and the needs of jurisdiction.” (Zebley, supra; Constitution of the Italian Republic, Senate of Italy website,
(last visited Feb. 10, 2011).) It also held that it is the court's authority to make the assessment of how severely criminal charges might disrupt state business. (Zebley, supra.) By a large majority of 12-3, the Court held that the law should be amended to permit a postponement of the charges of up to six months, rather than 18.

Under article 420-ter of Italy's Code of Criminal Procedure, referred to in the Law and the Court decision, criminal hearings may be adjourned where there is evidence of a legitimate impediment, and a ministerial office may be considered one. The Law apparently does not affect article 96 of the Constitution, which stipulates that both branches of Parliament must give authorization to institute criminal proceedings against the Prime Minister and other ministers for alleged crimes committed in carrying out their official duties. (Elena Bassan, Italian Developments, 2009/2010, OASIS (2010),

The Constitutional Court's decision marks the third time that it has found similar immunity laws unconstitutional; the previous rulings were issued in January 2004 (Law No. 140/2003, known as the Lodo Schifano) and October 2009 (Law No. 124/2008, known as the Lodo Alfano). (Zebley, supra; Ernesto Gregorio Valenti, The Italian Constitutional Court's Rejection of the Immunity Law: A Comparative Analysis, ANTI-FRAUD NETWORK NEWSLETTER (Nov. 2009),

The latest version of the immunity law had been approved by the Chamber of Deputies in February 2010, a month after hundreds of Italian judges staged a walkout to protest another law that imposed strict time limits on trial and appeal procedures. The two laws have been criticized as “tailored for Berlusconi's benefit.” (Zebley, supra.) Subsequently, in April 2010, prosecutors tried to indict Berlusconi on charges of fraud and embezzlement involving Mediatrade, his media company; trials he faces involving corruption and tax fraud have been postponed. (Id.) In the meantime, there has arisen a new case, dubbed “Rubygate” by the press, involving Berlusconi's alleged payment for sex with an underage nightclub dancer, Karima El Mahroug, known as Ruby, and alleged abuse of authority in attempting to cover up the relationship. A maximum combined term of 15 years in prison could be imposed upon conviction for the two offenses of abuse of office and sex with a prostitute under 18 years of age. (Guy Dinmore, Lawyers to Seek Berlusconi Sex Trial, THE FINANCIAL TIMES (Feb. 8, 2011),