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Distr.
GENERAL
E/CN.4/2002/72/Add.3
26 March 2002
Original: ENGLISH |
English only
COMMISSION ON HUMAN RIGHTS
Fifty-eighth session
Agenda item 11
CIVIL AND POLITICAL RIGHTS,
INCLUDING THE QUESTIONS OF:
INDEPENDENCE OF THE JUDICIARY, ADMINISTRATION OF
JUSTICE, IMPUNITY
Report of the Special Rapporteur on the independence of judges and
and lawyers, Dato' Param Cumaraswamy, submitted in accordance
with Commission on Human Rights resolution 2001/39
Addendum
Preliminary report on the mission to Italy
1. The present preliminary report concerns a mission to Italy undertaken
from 11-14 March 2002 by the Special Rapporteur on the independence of
judges and lawyers pursuant to his mandate in Commission on Human Rights
resolution 1994/41 as renewed by resolutions 1997/23 and 2000/42. The
mandate calls upon the Special Rapporteur, inter alia, to inquire into any
substantial allegations transmitted to him and report his conclusions and
recommendations thereon.
2. In January 2002 the Special Rapporteur received reports of nationwide
protests by magistrates, including prosecutors,* at the start of the legal
year to express their concerns about the Government's attempts to undermine
their independence. The protests were called by the National Association of
Magistrates of which 95 per cent of the judges and prosecutors of Italy are
members. The Special Rapporteur had been receiving information of growing
tension between the magistrates, including prosecutors, and the Government
which appeared to have culminated in the protest.
3. On 23 January 2002 the Special Rapporteur wrote to the Government
expressing his concerns and seeking an urgent mission to the country in
order to ascertain the cause of the protests and the tension and to assist
in finding a solution. The Government responded promptly and invited the
Special Rapporteur to visit the country.
4. During the course of the mission the Special Rapporteur visited the
cities of Rome and Milan. In Rome he met senior judges, government officials
and members of Parliament, including the President of the Court of
Cassation, the Prosecutor General at the Court of Cassation, the Minister of
Justice, the Presidents of the Commissions of Justice of the Senate and
Chamber of Deputies, the Vice-President of the Higher Council of the
Judiciary, the National Association of Magistrates and the National Bar
Association. In Milan the Special Rapporteur met the Milan Chapter of the
National Association of Magistrates, the Prosecutor General of Milan, Dott.
F. Saverio Borelli, and prosecutors D'Ambrosio and Boccassini.
5. The Special Rapporteur thanks the Government, including its Permanent
Mission in Geneva, for facilitating the mission and providing assistance,
cooperation and hospitality with cordiality.
6. In view of the very short time available between this mission and the
fifty-eighth session of the Commission, the Special Rapporteur can only
express his preliminary observations and recommendations.
I. Preliminary Observations
7. The independence of the judiciary is enshrined in the 1948 Constitution.
Prosecutors enjoy the same independence which is also enshrined in the
Constitution. Appointments of judges and prosecutors, transfers, promotions
and discipline are handled by the Higher Council of the Judiciary, which is
a constitutional institution.
8. No one with whom the Special Rapporteur spoke disputed that there is
tension between the judges and prosecutors, on the one hand, and the
Government on the other. With the Government's majority in Parliament, that
institution too is involved in the increase of the tension.
9. Over the years serious attacks have been levelled at some judges for
their decisions and conduct. This is evident from resolutions of the Higher
Council of the Judiciary dated 15 December 1999 and 2 October 2001. Some
judges and prosecutors have been characterized as leftist, particularly
those in Milan who, about a decade ago, began investigating corruption among
political elites and still continue to do so.
10. A sore point is the cumbersome trial and appellate processes, both in
criminal and civil cases. It was said that the average time needed to
dispose of a criminal case is 9 years, and a civil case 10 years. In his
speech to the Extraordinary Session of the Higher Council of the Judiciary
on 2 October 2001 the Vice-President of the Council described the criminal
trial process as "a perverse game of snakes and ladders". The European Court
of Human Rights has on many occasions severely criticized these delays as
inconsistent with article 6 of the European Convention on Human Rights.
These cumbersome procedures are often taken advantage of by accused persons
and defendants to delay due process, resulting in cases being barred by
statutes of limitation.
11. The public, quite rightly, is disenchanted with a judicial procedure
characterized by such long delays. Judges and prosecutors feel that the
Government in addressing this problem often attributes the ills in the
system to them. Thus public opinion is directed against the magistrates.
12. On this issue the Special Rapporteur finds that the entire system of the
administration of justice and its procedures, both in the first instance and
appellate levels, need urgent attention. All parts of the system need to be
addressed, not just judges and prosecutors. The problem is deeply rooted in
the procedures and the abuse of the procedures by all parties. Ad hoc
piecemeal reforms are perceived as targeting the judges and prosecutors and
further perceived - and quite rightly so - as a threat to their independence
and impartiality.
13. Another aggravating factor is the three pending criminal cases before
the Milan courts involving charges of corruption and false accounting of
prominent politicians. One is the Prime Minister; the other is a prominent
member of Parliament, Mr. Previti. The Special Rapporteur does not wish to
elaborate on these cases or comment on their merits as they are at present
pending before the courts, and one case is pending before the Court of
Cassation on application for transfer from the Milan courts. It is said that
if these cases were transferred out of Milan to another venue then the
entire processes will have to be commenced de novo. It is possible that the
statutes of limitation may come into effect before the trials are completed.
The manner in which procedural points are used to delay these cases is a
matter of concern, including the perceived use of the legislative process to
enact legislation which is then used in the conduct in the cases. One such
piece of legislation is that on rogatory letters ratifying a bilateral
agreement with Switzerland with retroactive effect. Whether it could affect
evidence already admitted in the trial is an issue before the Milan courts
in one of the high-profile cases.
14. Lawyers acting for these personalities are also members of Parliament
and therefore perceived to have influence in Parliament to advance their
clients' causes in Parliament. This results in issues of conflict of
interest.
15. What ultimately sparked the nationwide protests at the opening of the
legal year was the Senate resolution of 4 December 2001 accusing magistrates
of failing to comply with the Constitutional Court ruling that judicial
process does not have precedence over parliamentary business but that both
had equal standing. Although the resolution was targeted at a decision by
the Milan judges involving one of the high-profile criminal cases, this was
seen as a serious provocation and interference with the independence of the
judiciary in general.
16. The situation was the following: Mr. Previti repeatedly asked for the
postponement of his court hearing because of his parliamentary obligations.
The magistrate granted those requests. After the Constitutional Court's
ruling, the magistrate deemed that the repeated postponements had led to
excessive delay and decided that the need to proceed with the trial should
prevail over parliamentary obligations. Parliament felt the decision was
wrong and referred the issue to the Constitutional Court. Thereafter, an
application by Mr. Previti to annul the whole trial and commence afresh was
refused by the magistrate. The lawyers for the accused argued that the
magistrate failed to comply with the ruling of the Constitutional Court. The
magistrate is of the view that it is for the court to interpret the ruling
of the Constitutional Court.
17. The Senate resolution also referred to meetings of magistrates as having
examined ways not to apply a law of the State. This was refuted by the
National Association of Magistrates in their meeting with the Special
Rapporteur. They assert that what had occurred was that, at a seminar held
as part of a training programme for magistrates, the interpretation of the
legislation on rogatory letters was discussed.
18. A group of legal academics issued a public statement expressing concern
over the Senate resolution. The Special Rapporteur studied the resolution
and the events which led to its adoption and shares the concerns of the
judges and prosecutors and the legal academics. What further aggravated the
situation was that prior to the adoption of the resolution the Deputy
Minister of the Interior had called for the arrest of the magistrates
concerned. The Deputy Minister subsequently resigned.
19. Mention must be made of one particular individual in Milan who appears
to have been singled out for attacks as a result of a speech he made in
Milan at the opening of the legal year. He is the Prosecutor General of
Milan, Dott. Francisco Saverio Borelli. The Prosecutor General outlined the
issues confronting the administration of justice and commented on the delays
encountered in some trials and also on the Government's proposed reforms. In
conclusion, he called on the people to "resist, resist, resist" attempts to
erode the system. His concluding remarks were widely reported by the media
and criticized by the Government as being provocative and political. He is
one of those characterized as leftist.
20. The Prosecutor General explained to the Special Rapporteur that his
concluding remarks had been taken out of context: he had never urged the
people to resist the Government; he had called for resistance to the
"degradation of the sense of legality, rule of law and the campaigns to
discredit the judiciary". In the present charged environment his remarks
taken in isolation could be perceived as intemperate for a judicial figure.
However, his speech in its totality certainly did not advocate rebellion or
resistance to the Government.
21. Amidst this tension the Minister of the Interior called for reduction of
the protection given to judges and prosecutors. Among those affected in
Milan is Ms. Ilda Boccassini, who has been involved in the investigation of
one of the high-profile cases. This is perceived as another threat to the
independence of the judiciary. The Prosecutor General of Milan alluded to
this in his speech. The Minister of the Interior has indicated that he would
sue the Prosecutor General. (Since the mission the Special Rapporteur has
received information that the earlier protection extended to Ms. Boccassini
has been reinstated. The Special Rapporteur welcomes this act as Ms.
Boccassini had expressed her fears to him.)
22. During the mission the Council of Ministers approved a law which would
separate the judicial and prosecutorial functions of magistrates. This is
perceived by the magistrates as more interference and another threat to
their independence. On the basis of the explanation of the Minister of
Justice, the Special Rapporteur finds some merit in this legislation for the
separation of functions.
23. A practice of some concern is the taking of leave of absence by judges
and prosecutors, who are appointed for life, to go into politics. Later, if
they so wish, they can return to their work as judges or prosecutors. This
practice could compromise judicial independence.
24. In the light of the events outlined above, the Special Rapporteur is
satisfied that there is reasonable cause for the judges and prosecutors to
feel that their independence is threatened. Though the Government's attacks
have been directed at certain judges and prosecutors, yet it must be
remembered that attacks on a few will be perceived as attacks on the entire
judiciary, even as an attack on the rule of law.
25. On the other hand, judges and prosecutors should not conduct themselves
in a manner which could compromise their independence and impartiality.
26. The cumbersome legal system and its procedures and the high-profile
criminal cases before the Milan courts and the manner in which these
procedures are taken advantage of to delay the trials have contributed to
the present situation. Added to this is the perception that legislative
processes are used to enact legislation which is then used in cases already
before the courts.
27. These developments have led to mutual suspicion and mistrust between the
Government and the judges and prosecutors. Every reform affecting the
administration of justice is perceived with suspicion and to be a threat to
their independence. Judicial decisions, particularly in the high-profile
cases in Milan, are viewed as being partisan and leftist.
28. With regard to the competing importance of the judicial process and
parliamentary business which was the core issue in the Senate resolution of
4 December 2001, what may have been overlooked is the fact that the absence
of a single member of Parliament during parliamentary sessions will not
disrupt or delay parliamentary business. However, without the presence of
the accused in court to answer the charges against him the trial cannot
proceed and his absence therefore will disrupt and delay judicial process.
This is the difference. Following this rationale judicial process must
necessarily be given precedence in given circumstances. Further, article 14
(3) (c) of the International Covenant on Civil and Political Rights and the
corresponding expression in article 6 of the European Convention on Human
Rights provide that criminal cases should be tried without undue delay. It
is the duty of the courts to see that these cases are tried and adjudicated
without delay.
29. The Independence of the judiciary and the independence of prosecutors is
not only well entrenched in the Constitution, but also in the culture and
tradition of Italy. No Government, however powerful, could take away this
basic tenet of Italian society. Milan was the birthplace of the United
Nations Basic Principles on the Independence of the Judiciary. Rome is the
birthplace of the International Criminal Court which will soon be
established. Nevertheless, recent events have shown signs of threat to this
independence, but once the root causes are removed and mutual trust
restored, the tension will ease and judicial independence will triumph and
will be respected by all.
II. Preliminary Recommendations
30. The prominent politicians facing charges before the Milan courts should
respect the principles of due process and should not be seen as delaying
that process. Though they, like any other citizen, are entitled to all the
rights available to the defence, because they are in positions of power
delaying the judicial process in their cases would be perceived with
suspicion and could be detrimental to the integrity of the justice system.
31. The decisions of the courts must be respected by all. Though such
decisions can be commented on and even criticized, the judges who make the
decisions should not be attacked and subjected to any form of calumny by
anyone or any institution. If decisions are perceived as incorrect, then the
proper appellate procedures must be invoked.
32. During the course of the mission, in his discussions with the Minister
of Justice and the Presidents of the Justice Commissions of the Senate and
Chamber of Deputies the Special Rapporteur urged that there be set up a
coordinating committee of representatives of all segments of the
administration of justice, including the Higher Council of the Judiciary,
the National Association of Magistrates, bar associations, legal academia
and the Ministry of Justice,
to address reform of the justice system in a holistic and comprehensive way.
The present ad hoc approach taken by the Ministry of Justice is not
satisfactory and is fraught with suspicion and mistrust. (Since he returned
from his mission the Special Rapporteur has received information that the
Government has accepted this recommendation. The Minister of Justice will
establish such a committee in due course. This is a very positive and
welcome development. The success of this committee will depend largely on
the full cooperation of all actors, who must set aside their individual
interests and adopt the interest of justice for the people as their
collective interest.)
33. The Special Rapporteur will continue to monitor developments and will
make himself available to the Government and the judiciary for any
assistance or advice. He will submit a further report to the fifty-ninth
session of the Commission.
* In Italy both judges and
prosecutors are called "magistrates" and are members of the judiciary.
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