On 22 November 2017 the Grand Chamber of the European Court of Human Rights will hear oral argument in the matter of Berlusconi v Italy (application no. 58248/13).
In February 2013 Mr Berlusconi was elected as a Senator. He took his seat in Parliament as a representative of Forza Italia and leader of a coalition with around 30% of the vote. In November 2013 he was stripped of his Senatorial position because of his conviction of tax offences allegedly committed some 15 years earlier. The basis for stripping him of his democratic mandate was the Severino Decree, a law passed by the Government in December 2012. It imposed further penalties for offences committed long before the law was passed.
It is anticipated that Italy’s next general election will take place in March 2018. Notwithstanding the considerable support Mr Berlusconi enjoys amongst the Italian electorate, the Severino Decree prohibits him from standing in that election.
It will be argued before the Grand Chamber on Mr Berlusconi’s behalf that the Severino Decree is a retroactive penalty in violation of Article 7 of the European Convention of Human Rights (‘the Convention’).
It will further be argued that Mr Berlusconi is the victim of a violation of Article 3 of Protocol 1 of the Convention which protects against the disproportionate limitation of electoral rights and arbitrary interference with the tenure of a duly elected candidate. This complaint arises from the fact that the Severino Decree imposes a mandatory ban from public offices for at least six years, regardless of the gravity of offence. In addition, the Decree contains no express provision to authorize the stripping of office of a Parliamentarian following conviction. Moreover, the decision to strip Mr Berlusconi was taken by Parliament. The process was governed by no accessible criteria and as a result was open to political manipulation and abuse. In Mr Berlusconi’s case it seems clear that such political manipulation dictated the result.
Finally, it will be argued that the absence of any possible judicial review or scrutiny of these complaints in Italy amounts to a violation of Article 13 of the Convention. This guarantees the right to an effective domestic remedy.
A separate application to the European Court, which is still pending, complains that Mr Berlusconi was the victim of an unfair trial in violation of Articles 6 and 7 of the Convention.
Three members of Doughty Street International act for Mr Berlusconi: Edward Fitzgerald QC, Steven Powles and Professor Andrea Saccucci.