Lodo Alfano

from Wikipedia, the free encyclopedia

The Lodo Alfano was an Italian law (No. 124/2008) with the official name Disposizioni in materia di sospensione del processo penale nei confronti delle old cariche dello Stato , translated rules for the suspension of criminal proceedings due to a high state office . The law was declared unconstitutional in October 2009. The draft law was presented by Justice Minister Angelino Alfano and approved by the Council of Ministers on June 26, 2008 "with the aim of protecting the absolute necessity of continuity and regularity in the exercise of other public functions". On July 22, 2008, the law was passed by the chambers in the second reading with 171 votes in favor, 128 against and 6 abstentions.Giorgio Napolitano , the President of Italy, also explained his reasons with the promulgation of the law, which led him to sign the law immediately, although the law caused a lot of disputes and the constitutional court had already declared a similar law, the Lodo Schifani , to be unconstitutional.

Emergence

After the similar Lodo Schifani was abolished, a new law had to be developed to grant immunity to the highest offices in Italy. This time, however, only the first four offices were protected: the President of the State, the President of the Senate , the President of the Italian Chamber of Deputies and the Prime Minister . The law was named after Justice Minister Angelino Alfano, who also proposed the law. The Lodo Alfano differs from the previous law in several minor points, for example the immunity was limited to the duration of the legislature and it is possible (despite immunity) to bring civil claims for damages.

Legal text

The law consists of eight paragraphs.

  • Suspension of criminal proceedings in the four highest offices in the country :
Except in the cases of Articles 90 and 96 of the Constitution, criminal proceedings against persons exercising the offices of President of the State, President of the Senate, President of the Chamber of Deputies or Prime Minister are suspended from the date of taking office until the end of their office or function . The suspension is also applied to trials of offenses committed prior to taking office.
  • Waiver of suspension :
2. The accused or his defense counsel (with a special power of attorney) can waive the suspension at any time.
  • Acceptance of Non-Movable Evidence : Even if the trial is suspended, the judge may proceed in circumstances where it cannot be moved. This article is intended to ensure that the law has no general influence on the process.
3. The interruption does not prevent the judge, if the conditions are met, from arranging for the acceptance of non-postponable evidence in accordance with Articles 392 and 467 of the Code of Criminal Procedure.
  • Statute of limitations : In accordance with the suspension of the proceedings, the statute of limitations will be extended equally.
4. The provisions of Article 159 of the Criminal Code apply.
  • Duration of suspension : The suspension lasts for the entire duration of the term of office and is not renewable. The only exception is if you are re-elected in the same legislative period. According to the declaration report on the regulation, this special regulation was created because the four offices have different terms of office.
5. The suspension lasts for the entire duration of the task or function and cannot be extended, except in the case of a new nomination in the course of the same legislative period or in the event of immediate appointment to one of the other offices or functions.
  • Transfer to civil proceedings : In the event of suspension, there is the option for the joint plaintiff to conduct the proceedings civilly.
6. In the event of suspension, the provisions of Article 73 (3) of the Code of Criminal Procedure do not apply. If the joint plaintiff continues the proceedings as civil proceedings, the time limits of Article 163 of the Code of Criminal Procedure are reduced by half, the judge sets the order for the process and gives priority to the process, depending on the gravity of the offense.
  • Transitional regulation :
7. The provisions of this law also apply to ongoing criminal proceedings, regardless of the phase, status or instance, from the day on which this law comes into force.
  • Validity :
8. This law is effective from the day following the day on which it is announced in the Gazzetta Ufficiale .

Reactions

Immediately after this bill was passed, the trial of the English lawyer David Mills (sentenced to 4.5 years in prison in the first instance) was suspended. The Prime Minister, Silvio Berlusconi , was co-defendant for allegedly making payments to David Mills to keep him quiet about various offshore activities. This coincidence of events increased the opposition protests. Before the final vote, Senator Stefano Ceccanti of the PD party pointed out that the law conflicts with Articles 1 and 3 (equality of all citizens before the law) of the constitution. The Italia dei Valori party, on the other hand, has emphasized that the law also covers offenses that were committed outside of the office, including before taking office.

The law was welcomed by the majority of center-right parties, especially Prime Minister Berlusconi. He defined the Lodo Alfano as follows: “The law at issue [...] is the minimum that a democracy can do to protect its own freedom” and “[...] necessary in a legal system like ours , in which some judges work who, instead of simply applying the law, also imagine an ethical mandate for their actual role ”.

In July 2008, a document called "For the Defense of the Constitution" was signed by more than 100 constitutional law students.

Referendum

On January 7, 2009, according to the organizers, a million signatures were submitted to the appellate court calling for a referendum to abolish the law. The signature collection began on July 30, 2008, one week after the law was passed, and was carried out by the Italia dei Valori party, with the support of Rifondazione Comunista and Sinistra Democratica .

Similar regulations in other countries

The Lodo Alfano, in which the suspension of criminal proceedings is provided for the duration of the entire term of office, is unique in Europe. Normally only parliamentarians are granted political immunity , limited to the exercise of their functions and not for the private sphere - the executive organs, however, enjoy no relief in this sense. In some countries ( Greece , Portugal , France ) the head of state or the royal families enjoy full immunity, but never the heads of government (exception: France).

Judgment on Constitutionality

On September 26 and 27, 2008, Milan Prosecutor Fabio De Pasquale raised doubts about the constitutionality, both for use in the trial of Mediaset's television rights and for the trial of David Mills, in which Silvio Berlusconi was also accused. The judges of both trials submitted a request to the Constitutional Court for an opinion on the constitutionality of the Lodo Alfano.

In June 2009, two constitutional judges, Luigi Mazzella and Paolo Maria Napolitano, were at the center of quarrels because they had attended a dinner with Silvio Berlusconi and Angelino Alfano, even though they knew they would have to decide on the law in the autumn. Mazzella was also Minister of Public Service in Berlusconi's second term and called him an "old friend".

In view of the impending verdict, the state bar association had once again published a 21-page statement explaining why the Lodo Alfano was necessary. The state feared that the highest politicians would no longer be able to govern with the necessary commitment if they had to be in court too often, or that the politicians would have to resign, which would damage continuity in parliament. In addition, trials against politicians would be so effective in the media that the accused could no longer concentrate on governing.

On October 7, 2009, the Constitutional Court found the law unconstitutional (9 to 6 votes) because it violated Articles 3 and 138 of the Italian Constitution. The ruling was received by the center / right parties like an attack on the prime minister and democracy. Umberto Bossi immediately wanted to organize a popular uprising and threatened to "march with arms". Silvio Berlusconi called the dish “left”. The left-wing parties were delighted with the verdict and were shocked by the prime minister's aggressive tone. President Giorgio Napolitano, however, sided with the court and accepted the judgment without comment.

Cases where the Lodo Alfano has been used

  • Silvio Berlusconi (Prime Minister)
    • Bribery lawyer David Mills' trial
    • Trial for particularly serious defamation (on television against the so-called Cooperative Rosse and the Camorra )
    • Lawsuit for buying and selling television rights (possibly tax evasion)
  • Gianfranco Fini (President of the Chamber of Deputies)
    • In October 2009 Fini renounced the protection of the Lodo Alfano. He had publicly attacked ex-Potenza prosecutor Henry John Woodcook on the television program Porta a Porta . Out of respect for this decision, Woodcook has withdrawn the lawsuit.

Web links

Individual evidence

  1. ^ Minister of Justice: "Lodo" Alfano not propose again. ( Memento from September 12, 2012 in the web archive archive.today ) on: suedtirolnews.it , October 10, 2009.
  2. ^ Constitutional judges decide on Berlusconi's immunity. on: pnn.de , October 6, 2009.