Towards judicial integration

The countries of the European Union reach an agreement on a pan-European arrest warrant after Italy falls in line.

EVEN as the European Union (E.U.) proceeded with its count-down to the euro circulating as common currency among most of its member-states from January 2002, problems crept up in other spheres of European integration. The issue of Europe-wide justice highlighted the hurdles to integration at a time when economic union was being almost fully realised through the euro.

European Justice and Interior Ministers met in early December to propose arrest warrants that would allow courts in any E.U. country to secure the arrest and extradition of suspects of serious crimes. Under this pact, any E.U. country would be obliged to hand over suspects in cases involving a wide range of 32 defined crimes, to any other member-state without having to resort to lengthy and complex extradition processes. The list of crimes included terrorism, criminal organisation, paedophilia, arms traffic, xenophobia, fraud and money laundering.

Strangely, while economic union becomes a reality, the economic crimes in the list became the stumbling block to an agreement on a European arrest warrant. Italy revealed at the ministerial meeting that it would veto the proposal unless it was limited to six offences, such as terrorism and organised crime, and crimes like fraud and corruption were excluded. The Italians insisted on cutting down the list to include less than a fifth of the 32 crimes mentioned. With the Italian intransigence leaving the talks in Brussels deadlocked on December 7, other E.U. countries considered going ahead with the proposal without Italy. German Interior Minister Otto Schilly declared, "The Italian position is unacceptable. It is impossible not to include corruption, fraud and counterfeiting."

If Italy was thus to be excluded it faced the prospect of becoming a safe haven for criminals, or a kind of "judicial paradise" for accused facing a European arrest warrant. At that point, the only hope of an agreement, slated for the E.U. summit in Laeken on December 12, rested on Belgian Prime Minister Guy Verhofstadt's visit to Rome for a last minute meeting with Italian Prime Minister Silvio Berlusconi.

The meeting produced a dramatic reversal, and on the eve of the Laeken summit, Italy accepted the proposal for an arrest warrant for the full list of 32 crimes. "Italy accepts the European arrest warrant as defined at a meeting of the Justice and Interior Ministers on December 6," Berlusconi stated after his talks with Verhofstadt.

The accord is to be implemented from 2004. The E.U. countries have until then to enact enabling national laws to give effect to the provision for a European arrest warrant. In Italy's case this would require changes to its Constitution, which are otherwise being proposed by the ruling coalition composed of Berlusconi's Forza Italia, the right-wing National Alliance and the Northern League, to effect internal reform of the judicial system. Announcing Italy's acceptance, Berlusconi added that the Italian judicial system would have to be adapted to ensure compatibility with the European arrest warrant. "If we can't change the Constitution, then we will remain outside this agreement," he clarified, citing as example the cases of "Britain and other countries that have remained outside the euro."

BUT enough damage had been done already to the image of a united Europe and more so to the image of Italy within Europe. British historian Paul Ginsborg, a scholar on contemporary Italy, wrote in the daily La Repubblica, "The reputation of Italy in Europe is now entering into a third phase, marked by uncertainties and by the reappearance of ancient doubts. The message that the new government of the centre-right is sending out to European public opinion concerning, above all, justice (the controversial question of the rogatories and the veto on the arrest warrant for fraud and corruption, money laundering and crimes against the environment) is hardly reassuring. They contribute to create the impression of Italy as a possible refuge of criminals, of an European nation in which private interests prevail over public good."

Eugenio Scalfari, founder and former Editor of La Repubblica, described the arrest warrant episode as "a terrible stink", and acknowledged that he had never come across events "so miserable and shameful" in the more than 50 years of his career as a journalist. According to him, these were nothing but attempts to protect a small and privileged group centred on Berlusconi.

The impression that somehow private interests, and that too of a Prime Minister and some of his business associates, were behind Italy's isolated opposition to the arrest warrant proposed was buttressed by the fact that a Spanish Judge, Balthazar Garzon, has been investigating Berlusconi's business activities in Spain, specifically some dealings of his media company. Garzon has been reportedly exploring the possibility of pressing charges involving financial irregularities against Berlusconi, and a European arrest warrant provision would increase the risk for Berlusconi of facing prosecution charges in a foreign court.

Berlusconi's private interests add up to make him Italy's richest man, with holdings in various industries through his holding company, Fininvest. His vast business empire includes the control of important private television stations which, combined with the fact of his party being in power, gives the ruling coalition a virtual monopoly over Italian television. Berlusconi's role as Prime Minister has thus generated much concern, within the country and elsewhere in Europe, about the conflict of interests involved. Berlusconi and Fininvest have been investigated through much of the last decade in Italy, for offences such as false accounting, and bribing tax officers and judges. They have also faced charges of bribery and tax evasion.

Ever since the centre-right coalition led by Berlusconi came to office after elections in May 2001, a series of legislative measures have provoked increasing criticism that the government is compromising on its crime control abilities just in order to protect Berlusconi and his friends from charges of criminal wrongdoing. The first of these laws on letters rogatory, concerning judicial cooperation with Switzerland, had clear implications for the case relating to Berlusconi's alleged bribing of judges. The new law has a direct bearing on cases that depend largely on evidence obtained by Italian prosecutors from Swiss banks. Much of this evidence, however, has been made inadmissible in Italian courts on procedural grounds by the law on letters rogatory, effecting significant changes in Italian criminal law. Naturally, this affects other investigations and trials involving criminal acts such as money laundering, which led Bernard Bertossa, Chief Magistrate of Geneva, to remark: "The Italian government is not committed to fight crimes like money laundering."

A second piece of legislation concerns false accounting, under which Italian magistrates had proceeded against several businessmen, including Berlusconi. The new Bill decriminalises many cases of false accounting in private companies.

These recent bills have been accompanied by a campaign against the judiciary mounted by Berlusconi and members from both the government and the ruling coalition. Berlusconi publicly criticised the judiciary for having handed down sentences on the basis of "false evidence" presented by magistrates. According to him, sections of the judiciary have been "waging a civil war" against politicians with the aim of working "a political revolution using judicial means". The ruling coalition also presented a resolution in Parliament criticising sections of the judiciary on the grounds of misusing their constitutional privileges for political ends, and of interfering in the political arena.

The Opposition describes all this as being part of concerted move to "de-legitimise" the actions of magistrates, going back to the string of investigations and trials launched since 1992, which discredited and carried away virtually the entire post-War political class in Italy. As part of the "clean hands" operations of the 1990s, magistrates proceeded against many businessmen.

A key element of the judicial reforms proposed by the ruling coalition concerns the position of the magistrate, which corresponds to that of the prosecutor elsewhere. In Italy the judiciary, protected constitutionally as an independent organ, functions as one service that includes the magistrate-prosecutor as well as the Judges. The reforms propose a "separation of careers" to install something on the lines of a separate prosecutors' service in countries such as Britain and France that allows a degree of political control. Magistrates and the Public Prosecutor in Italy have the power to initiate criminal action and they also coordinate police investigation.

From another perspective, the Italian system allows a level of independent control over the actions of executive authority. On this difficult question of justice, the consensus required for constitutional change will not be easy to obtain. The compromise agreed upon in Laeken was that Italy would accept the European arrest warrant provision, subject to its own judicial reforms, that require the Constitution to be amended. Berlusconi did mention the possibility of the period up to 2004 not being enough, for what could be a long-drawn process.