Why Berlusconi might wish he was president of France

Date: 22/01/04

JUST weeks after the Italian presidency reached its tumultuous end, following the collapse of the Brussels summit on the EU constitution, Silvio Berlusconi is back in the headlines.

On 13 January, Italy's highest court overturned a law passed by the country's parliament last June granting immunity from trial, while they are in office, to the state's five most senior officials, including the prime minister.

The court found that the law, which had halted a Milan trial in which Berlusconi was accused of attempting to bribe a judge during a business takeover deal, violated two articles of the constitution: one that Italians are equal before the law, and another that guarantees them the right to defend their interests in court.

The prime minister's supporters claim that the immunity law is in line with the European tradition of protecting government leaders. But are they right about that?

In fact, it emerges that EU heads of state and government are protected in different ways across the Union.

While it is true that the "save Berlusconi law", as it has been dubbed by the opposition in Rome, would bring Italy into line with France, it would not, for example, follow the UK model.

There, prime ministers enjoy no immunity. All offences committed by a serving premier are considered and dealt with following the ordinary judicial procedure. In Denmark too, leaders have no special status before the law. The prime minister and the cabinet members can go to jail if they fail to honour their professional obligations, intentionally or by negligence. The provisions ruling their work are covered by a law on ministerial responsibility.

In Ireland, the Taoiseach, or prime minister, enjoys no immunity. The president, a largely ceremonial post, is however protected while carrying out his or her duties.

In Belgium, the Netherlands and Spain, for offences committed in the exercise of their duty, prime ministers can enjoy derogation from the ordinary procedure. For other offences, the prime ministers of Spain and the Netherlands are submitted to the ordinary procedure. However, in Belgium, the Chamber of Deputies must vote to authorize the prosecutor to launch investigations against the premier.

In France, the head of state enjoys broad immunity from prosecution. Jacques Chirac is protected, during his mandate, against investigations for all types of offences, except high treason. That is why the retrospective investigation over possible misuse of public funds during his time as mayor of Paris was halted.

In Greece, the country's president can be brought to the high court for offences of treason and for breach of the constitution.

Germany, Portugal and Austria have a larger scope of offences for which the leader of the government can be prosecuted. In Germany, Gerhard Schröder could be brought to court for any offence, if the Bundestag decides to lift his immunity.

In Poland, both the president and the prime minister enjoy wide-ranging protection. However, the president can be brought before the court if he commits a crime or is acting against the country's constitution or laws. The approval of two-thirds of the members of parliament is needed to do this.

The premier and the cabinet's ministers can also face trial, but their responsibility is limited to their professional duties, or breaking the constitution and law. Their immunity can be lifted after the approval of three-fifths of the total members of the joint chambers, the Sejm and Senate.

Author examines the immunity rules protecting the EU leaders in the wake of the constitutional court ruling in Italy which will put Silvio Berlusconi back in the dock.