The Laws of Rule


Law, Politics, Podcasts


Injudicious Politics in France, Italy, Spain

Feb 28, 2011

Italian Prime Minister Berlusconi is facing trial for allegedly buying sex from an under-aged
prostitute, French judges went on strike, and Spanish Judge Garzon is in temporary exile. Mads Frese of Denmark’s Information daily newspaper reports on the politics of judicial accountability in France, Italy and Spain.

In southern Europe, the judiciary plays an active role in public debates and is often in conflict with political elites. So-called investigative judges in Spain, France and Italy have in recent decades repeatedly put a question mark over the legitimacy of those in power in those countries.

“Younger lawyers have been influenced by the political reform movement that has its origins in student uprisings in 1968.” says Jørgen Dalberg-Larsen, professor emeritus of jurisprudence and legal sociology at Aarhus University, “They have not passively accepted their role, but have actively fought for the rule of law and social principles. When politicians do not live up to their responsibilities under constitutional rule, there is inevitable conflict”. Dalberg-Larsen adds, “I would argue that the problem stems from the political system and has spread to the judiciary and other parts of state power. ”

In a historic move early this year, French judges went on strike. President Nicolas Sarkozy had recently criticized judges for leniency when a previously convicted violent felon murdered a young girl immediately after his release.

“When the president says there is complicity, it means that the judges have committed a crime. It is a terrible accusation to make against judges whose task is precisely to prosecute criminals” said the former socialist Justice Minister Robert Badinter to Libération.

“The political powers are using this tragedy to consolidate their dominant position to the detriment of the balance of power in our democracy” wrote Matthieu Bonduelle, president of the Syndicat de la Magistrature in a netchat with Le Monde readers.

French Obscenity

Sarkozy has criticized judges for being out of touch with the people by doggedly pursuing cases of economic crime, but being more cautious in cases of violence.

“Sarkozy has repeatedly criticized the judiciary, but this time he stepped over the line by comments on the judiciary’s decision in a particular case. At the same time judges charge that he has not made sufficient resources available to meet the government’s populist justice policy” says Henry Prebensen, associate professor of French at the University of Copenhagen.

In 2009 the president proposed an abolition of the institution of independent investigative judges. “In Denmark, the state prosecutor is under the authority of the Ministry of Justice, but in France one has a more inquisitorial tradition in which the judge actively investigate the truth” explains Henrik Prebensen, adding “It is clear that if the prosecutor within the Ministry of Justice has sole authority to initiate cases then decision-makers can more easily prevent their political friends from being investigated and indicted. From our perspective there is much of French politics that is obscene. The political system finances itself through various forms of lobbying or corruption.”

According to Prebensen, Sarkozy represents, “a lawyerly culture” and has been remarkable for his close attention to legislative work. The Norwegian-born Eva Joly, however, has been a representative of the activist judiciary when, as an investigating judge in the 1990s, she exposed systematic bribery of politicians at home and abroad by the French oil company Elf. Eva Joly is standing as the Green candidate in the presidential elections in 2012.

Italian Courtroom Showdown

In Italy, the conflict between power and justice has been the dominant theme, since Silvio Berlusconi in 1994 “went on the pitch” as a politician.

In the early 1990s prosecutor Antonio Di Pietro dragged the whole political system in Italy through the courts and demonstrated that the parties were financed through kickbacks on public works. This paved the way for Berlusconi’s party, but Di Pietro later formed Italia dei Valori (Italy of values) to confront Berlusconi.

After the recent accusations against the Italian Prime Minister, the conflict between the legislative and judicial powers has sharpened further. Berlusconi is accused of buying sex from underage prostitutes and abuse of power in attempting to cover up the allegations, but prosecutors are accused of having a political agenda. Before the Milan court’s decision to proceed with the case, Berlusconi threatened to sue the state if the case went ahead. According to Morten Heiberg, professor of legal history at Copenhagen University, the case demonstrates that the Italian judiciary has so far managed to resist political pressure.

“It is not very healthy for the political system if the government is brought to court by a lawsuit. This kind of case helped lay the foundation for Berlusconi’s populism, and he will certainly exploit the role of victim.”

Spanish Activism

A leaked report from the U.S. Embassy in Madrid on organized crime, released by Wikileaks, claims that the Spanish judiciary is corrupt. The report quotes Fernando Bermejo, a prosecutor in Barcelona, saying “Bermejo agreed with the notion that money talks, and added this is especially true when the amounts being offered as bribes are so large”, wrote the Ambassador.

Spain established independent investigative magistrate institution with the democratic constitution in 1978. Since then, investigating magistrates such as Baltasar Garzon have made a name for themselves by bringing high profile cases concerning human rights violations. Garzon was responsible for the international arrest warrant issued against the former dictator of Chile, Augusto Pinochet, and he has tried to bring a case against six members of the Bush administration.

But a year ago, Garzon was suspended on grounds that he had exceeded his powers in investigating a domestic corruption case. Other reports from Wikileaks indicate that American officials were concerned about Garzón investigation of U.S. prisoner transports and conditions at Guantanamo: ” Having started, it is hard for us to see why the publicity-loving Garzon would shut off his headline-generating machine unless forced to do so. And forcing him to do so could take months. We also fear Garzon – far from being deterred by threats of disciplinary action – may welcome the chance for martyrdom, knowing the case will attract worldwide attention.” says the leaked report.

Morten Heiberg describes Garzon as “an activist judge”, saying “by opening the mass graves from the Spanish Civil War and investigating the Franco regime’s crimes, Garzon tried to lift the so-called ‘pact of forgetting’. The transition from fascism to a democratic constitution was characterized by fear of a recurrence of civil war atrocities and the writers of the Constitution chose oblivion as a reconciliation strategy. Spain is not just marked by ideological opposites, but also by regional conflicts that could flare up over a legal showdown.”

Photo: Rob Brewer
Tanslation: Mark Taylor