‘Ministers’ criminal liability: Italian political justice and United States of Europe

Luigi Trisolino, Italian jurist and writer, European liberal activist, writes about the Italian political justice question and in particular on the ministerial crimes procedure and institutions during the monarchical statutory age; during the first times of the Republican age; and after the important Italian constitutional reform in 1989. Trisolino suggests uniform or coordinated disciplines on this matter, hoping for a European federalist future.

The ministers’ crimes issue is current and important for all. It has a constitutional significance in civil and common law systems. The juridical rules around ministerial crimes represent a public space where the state powers and functions realize their institutional relationships, and so the ministerial crimes represent an important aspect of the form of government. 

The ministerial crimes are the crimes committed by ministers or the President of the Ministers’ Council.

The time is ripe for all EU Member States to realise a frame of EU juridical discipline on political justice and on the criminal liability of those holding governmental positions. We can imagine a federal United States of Europe with an efficient ministerial liability system. In the face of requests for reform of the Italian political justice, we need to know the historical root of ministerial crimes. 

During the Italian age from the second half of the 19th century to the beginning of the Republican age in the half of the 20th century, the Senate also had jurisdictional functions. Article 36 of the Albertine Statute stipulated that the Senate was constituted a High Court of Justice by a King’s decree to judge the crimes of high treason and attacks against state security, and to judge the ministers accused from the Chamber of Deputies. The same article stipulated that in these cases the Senate was an apolitical body.

In the Historical Archive of the Senate in Rome, I researched historical sources about the trials of the Albertine High Court of Justice, and I studied documents about the trial of the Minister of Finance Lazzaro Gagliardo with the judgment of the 1898, and the trial of the Minister of Public Instruction Nunzio Nasi, condemned by a sentence of the 1908.

From the beginning of the Italian Republican age in 1948 to the first Constitutional Act of 1989, Article 96 of the Republican Constitution stipulated the ministerial crimes procedure: sanctioning an accusation by Parliament gathered in a common session, and after a judgment in front of the Constitutional Court. 

After the Lockheed scandal of 1977, in which political personalities from Italy, West Germany, Japan and Netherlands were involved and in which there was the sentence of the Constitutional Court against Defense Minister Mario Tanassi for corruption, the times were ripe for a constitutional reform of the political justice and ministerial crimes procedure.

The first Constitutional Act of 1989 rewrote Article 96 of the Republican constitution in the current version and in the same year there was Act number 219 too regarding the ministerial crimes procedure. Article 96 sanctions that, even after they leave the office of President of the Council of Ministers or as a Minister, they are subjected to ordinary jurisdiction for crimes committed during the exercise of their functions, after the authorization by the Senate or the Chamber of Deputies according to the Constitutional law. 

The cases concerning ministers’ crimes in the performance of their institutional functions are heard by an ordinary judge, which in these circumstances has a particular composition. This particular college of judges is called the Tribunal of Ministers. This expression is not present in the normative texts, but it is used for this particular composition. The Tribunal is not a special court, but it qualifies as a specialized section of the ordinary court. It is established at the court of the capital of the district of the Appeal Court competent for the territory, by reason of the place of commission of the ministerial crime.

Now I can speculate about a pragmatic evolution of the European and Italian political justice question, but with a great prudence for the particular delicacy of the borderline between the political system and the judicial system, on this matter.

On the one hand, there is the need to avoid politicization in the strict sense of the judiciary. On the other hand, there is the need to guarantee to all citizens respect for the fundamental principles of the Italian constitution and the inalienable rights of persons without inopportune distinction. There is the need to guarantee a specialised solution about the political justice question and, in particular, about ministerial crimes procedure. There is the need to combine the constitutional respect for the separation of powers with the value of equality between citizens in the criminal trials.

The future for the political justice procedure and in particular for ministerial criminal liability lives in the courage to build and implement a Euro-federal legal discipline in these sensitive matters. This courage is the courage of the liberal and democratic United States of Europe values.

To those who want to deepen some profiles inherent to the Italian political justice question, first of all in the historical perspectives, I suggest reading my two academic essays. The first is titled ‘The High Court of Justice. About the jurisdictional function of the Senate during the statutory age’ and was published in paper 7 of the number 18/2020 of the academic review Historia et ius, and also on www.historiaetius.eu. The second academic essay, titled ‘Perspectives historiques sur la ‘justice politique’: la responsabilité pénale des ministres en Italie’ and was published by Roma Tre Press in a collective work, and is also on the website www.romatrepress.uniroma3.it. This second essay is the result of my academic intervention in France on 26 September 2019 at the Law and Social Sciences Faculty in the University of Poitiers, during a scientific twinning among the jurists from the Roma Tre University and the University of Poitiers.

Luigi Trisolino

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