‘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

A multiexistential ‘par condicio’ for a social and dynamic pan-bourgeoisie

Luigi Trisolino, ALDE International Member from Italy writes about the need to increase -economic system in a new open capitalism, and the need to build federal models 

Public actions on national and local economies cannot go beyond what is necessary. If the ‘invisible hand’ is absent in markets, states cannot alter the complex balance in the markets’ questions and offers.

When markets are composed of some fragile actors, the public hand has to search for the instruments to rebalance the economy. Social inequalities and human/geographical adversities are elements of aprioristic imbalance and economic distortions. The great and old Italian Republican Giorgio La Malfa is remembering Keynes’ lessons about the state’s economic policy.

Contemporaneity needs to stay free from  scientific consciousness about social limits and risks. Socioeconomic considerations cannot remain on the margins during political decision-making processes. This particular consideration must become the heart of economic and political structures. Various new liquid necessities among subjects are the consequence of the super-structural actions, but public rules can create a situation where citizens-customers have the legal power to influence the necessities of production and trade. Only an open liberal democracy can dissolve rust on the capitalistic mechanisms. Subjective and objective elements to change the socioeconomic system are not on the horizon, and the realistic plan for socioeconomic development is according to the real people’s life. Therefore contemporaneous skills can be improved by the way of an effective open capitalism. After Locke’s combination of liberty and property, the new values in combination are liberty and new-personology. Each social personological conception of life that wants to interpret and solve today’s needs cannot renounce freedom. Political, civil and economic freedoms are into the DNA of the new social and pluralistic individualism.

We need to overcome ancient capitalism for a new open and liquid capitalism of socio-personological needs. The capitalism that can flow from the new humanities is the capitalism of shared and equal opportunities. The new, open capitalism of the contemporaneous and liberal rebirth is the system able to go beyond the chains of birth socioeconomic condition. The par condicio system can share human capitals through the cultures, enhancing the differences of ethnic, sexual, religious and philosophical free lifestyles, based on a liquid, new-personological freedom for a holistic-queer-social-class, and for a free social choice building a dynamic and trans-national pan-bourgeoisie.

Federal and trans-continental united states systems are the auspicious international horizons of a new balanced-libertarian and liberal peace. These economic harmonies are the realistic means to commute needs into progressive and general opportunities. Women and men can bring children into the world, if they want, giving to them the perspective to be free and to be different from their socio-economic conditions of origin. Towards a new and different model of a holistic and trans-national pan-bourgeoisie composed of free persons-citizens, people have the social power though liberal and legal opportunities with dynamic lifestyles. In this direction, states and public powers have the rule of new-constitutional guarantors. They can control and maintain the vertical and horizontal subsidiarity of their positive actions in society.

The neutrality of a methodological secularism is the space in which law and humanities can become socialized for all ethnicities, genders and social classes, overcoming the modern concept of social class for a smart wellness society with free, holistic and heterogeneous corpora hominum. This evolutionary perspective needs to be against the tired models of the Soviet communism and to be against Khomeinism too.

Luigi Trisolino

“You can’t say no to Emma”: The radical challenge of making the United States of Europe

 Claudia Basta describes in this article the meeting which took place in Rome, which brought together some pro-European political figures and activists, headed by Guy Verhofstadt, to discuss the prospect of possible United States of Europe

Every country has its own liberal icon: one outstanding political figure that more generations associate with the most epochal liberal accomplishments of the 20th century. What makes the figure of Emma Bonino unparalleled is that those generations are nearly four; that her political influence stretched unchallenged into the current century; and that the unconditioned respect she earned along fifty years of tireless political activity crossed not only the Italian borders, but the European ones.

Born in 1948 in northwestern Italy, Emma is one of the historical leaders of the Italian Radical Party. A thin, discrete, energetic woman who commands European major languages as well as Arabic, at first sight I wouldn’t be able to guess her origins.

Something of her reminds me of the portraits of Dutch writer Etty Hillesum: the inevitable cigarette, the eyes straight into the eyes of the observer, and the attitude of inquiring and challenging her interlocutors at the same time. Her style of argumentation resembles that mix of intellectual rigor, firmness, and yet uncomplicatedness of an experienced scientist; her bearing, that distinct dignity of the Israeli and Palestinian women who walked me through the many gates and walls of their existence with a perpetual smile. In a congress room packed with hundreds of participants, media staff and security, I have never seen her, once, denying a moment of genuine attention to every single person – including myself – who approached her. These traits combined confer to Emma that sort of authoritativeness that one accords to another, somehow, instinctively; without, which is perhaps what impressed me the most, experiencing that distance and subjection so typically emanated by Italian leaders.

Guy Verhofstadt, Emma Bonino

At the beginning of his speech, Guy Verhofstadt summarized all of this very effectively: “You can’t say no to Emma”. Invited to participate in the convention Stati Uniti d’Europa: Una sfida Radicale (United States of Europe: A Radical challenge), held in Rome on October 28th and 29th, Guy showed to having experienced Emma’s invitation as a ‘call to arms’ from the side of the commander-in-chief of a battle that he, too, wishes to win: constructing the European Federation of States that founding fathers like Altiero Spinelli had envisioned at the dawn of the European Union.

Emma’s Radical Party – evolved into the movement of Italian Radicals, which hosted the convention in the framework of the yearly congress led by secretary Riccardo Magi and president Antonella Soldo – endorsed this vision since those early days.

Roberto Saviano

In an Italian political landscape infected by more and more viral anti-Europe narratives – according to which the Italian economic decline is due to the Euro, to ‘Brussels’ bureaucrats’, and to the imposition of so-called austerity – this convention stands out as a stronghold against the populistic drift to which Italian voters, approaching the political elections of 2018, seem so vulnerable to. Once again, Emma and her companions are combating a battle for the common good that few understand, many misrepresent, and many more European Liberals should join.

With the sole exception of writer Roberto Saviano (who stressed his mutual inability of “saying no to Emma” despite the strict security requirements of his movements), the convention opened and closed with the speeches of prominent politicians. Whilst all of them shared the vision of a federation of European States in which regulatory and decisional processes, European citizenship, market and borders, and the latter’s international positioning could be more consistently, cohesively and concretely empowered, each speaker emphasized specific aspects of the relevant challenges. These – from the challenge of implementing one European fiscal policy to the creation of a joint defense system – were discussed in five parallel sessions. Relevant outcomes were reported to the audience on the second day of the congress, before the final speeches and Emma’s conclusions.

Benedetto Della Vedova, Enrico Letta

In the limited space of this article, what I would linger on is the red thread that connected the contributions of Guy Verhofstadt, Benedetto Della Vedova (founder, in 2016, of the liberal movement Forza Europa) and former Italian Prime Minister Enrico Letta: that is, the motivation and pre-condition for the making of the United States of Europe. The former consists of the inevitable transition of the European Union toward a smaller, older, and ‘slower’ geopolitical entity squeezed among the American, African and Asian giants; the latter, consists of fighting the anti-Europe narratives that, by feeding nationalistic and populistic movements from Italy and France up to The Netherlands and Great Britain, contribute to weaken that entity further by persuading European voters to leave the Union with the false expectation of “taking the control back”.

What the convention United States of Europe: A Radical challenge conveyed with force is that changing that narrative and establishing a transnational political culture orientated toward reforming rather than leaving the Union, demands to all European Liberals – regardless of our individual positioning on the liberal spectrum – of becoming ‘masters of the European future’. This requires us to respond to irrational fears and ideological preconceptions with facts and figures; to embody progressive optimism against conservative pessimism; simply, to remember to our fellow citizens what it means being able to move, without crossing neither physical nor psychological barriers, from one country to another, from this to that European University, and from one to a better job; and what this will mean for future European generations. In the end, changing the narrative according to which the European Union is our problem rather than our solution calls us to embody the same forward-looking attitude of Altiero Spinelli, whose famous statement was recalled by Emma Bonino in her conclusive remarks: “a European federation is not something that will occur by destiny. It is something that only the will and effort of the European people will achieve.”

We can’t say no to Emma, remember.

Claudia Basta

Fighting for a federal Europe of the Regions, not for Regions in Europe

In this contribution from Sebastien Martin, reflecting on the current Catalonian crisis, he discusses the importance of granting more powers to regions and their role within the European Union to reinforce and defend the EU itself”.

As liberals, we cherish two values more than anything else: freedom and the rule of law – but not necessarily equally. As the Catalonian crisis unfolds, our community becomes deeply divided: some of us put freedom above the rule of law (arguing that the rule of law might become, in some cases, a constraint placed on the expression of the will of the people) while others put the rule of law above freedom (convinced that any freedom must derive from the law, and that any system developing outside the rule of law is inherently dangerous). The present article is an attempt at reconciling our community by refocusing on a common objective which respects both values equally, allowing the freedom of the people to flourish on clear legal grounds.

In the absence of a true European constitution, the law which continues to govern the distribution of power within a given Member State is its constitution. Under the Spanish and French constitutions, to take two examples, no administrative entity can legally secede from its Member State. Doing so would mean acting illegally, and raise complex issues as to the recognition of any independence declaration at both European and global levels. In the case of Catalonia, it is doubtful that France or Italy, for example, would recognize it as an independent State – simply because so doing would likely reinvigorate regional aspirations which have been rampant within their own territories. More pragmatically, if a region unilaterally decides to leave a legal agreement – in this case, a constitution – which it has originally adopted with a large majority, then what credit will it get when negotiating new treaties?

Overall, such a scenario would increase the risk of a dissolution of the European Union, as Europe is not solid enough in its current state to absorb further shocks and uncertainty. Furthermore, forcing Member States to concede to the independence aspirations of (some of) their regions – or, more correctly, putting Member States in front of the fait accompli – will simply not work, and probably end up in strong internal divisions, if not outright violence.

The solution to this dilemma is to go for what is, and has always been, our main objective:  a federal Europe. Transferring additional powers to the European Union as a first step, before redistributing part to regions, which would clearly have higher chances of success. The concept of Nation State would have been, by then, weakened enough –not by force – but with the implicit consent of the States themselves and, through them, by the collective will of all the European peoples.

Both parts could not be dealt with at the same time: it is highly unlikely that Member States would accept to ratify a European constitution which would immediately transfer part of their sovereignty to regions. But continuing to gradually transfer more power to Europe – in the way of making it progressively more federal – is clearly a step in the right direction.

We could go further and imagine a European constitution explicitly granting regions (however defined) the right to organize as they see fit; or even, a constitution which would recognize regions as official political entities of the Union. Such a solution would kill two birds with one stone: making Europe federal, making it a Europe of the regions. In such a scenario, there will be no need for regions to painfully renegotiate their accession to the Union – they will de facto be part of it. The political part could be led by the Assembly of European Regions, which has already successfully pushed for a more formal recognition of regions at the European level in the latest project of constitution, which wasfinally rejected in 2005. As for the institutional framework, it already exists: the abandoned constitution of 1953, as laid down by the founding fathers of the European Union.

In any case, we should have our priorities right. We should firmly abide by our values and not bend any of them to specific situations, however difficult or pressing they might be. Fighting for regional independence today will probably backfire tomorrow, and make our ultimate goal of a federal Europe more remote. We should go the other way around: we should make Europe the catalyst of this devolution, as the solution can only come from a higher political entity. I believe that refocusing on such a proposition would enable us to reconcile our views on an issue which is very divisive not only for Catalonia and Spain, but also for liberals.

Sebastien Martin

The Treadmill

The treadmill: a simple exercise machine?

The author of the following blog post, Chris Pyak, uses the treadmill as a metaphor to describe how the world is running while governments are walking and discussing how crucial technology and connections are to daily life, and daily politics.              

Make Europe Safe Again!

According to Wolf Achim Wiegand, the author of this blog post, the formation of a European Army is on the agenda again.