Strasbourg Court Finds Italy's Top Court Was Impartial in Silvio Berlusconi's Tax Fraud Case

The European Court of Human Rights ruled unanimously on 22 October that Italy's Court of Cassation did not lack impartiality when it upheld Silvio Berlusconi's tax fraud conviction in 2013. The Chamber found no violation of Article 6, the right to a fair trial, in the case of Berlusconi v. Italy (application no. 8683/14).

The application was lodged in December 2013, almost thirteen years ago. Berlusconi died on 12 June 2023, and his heirs chose to pursue the case in Strasbourg. Here is what the court decided and how it reasoned, based on the press release issued by its Registrar.

The case behind the complaint

On 26 October 2012 the Milan District Court convicted Berlusconi of complicity in tax evasion for 2002 and 2003, linked to a scheme run through Mediaset S.p.A. and related companies in the purchase of television rights. He was sentenced to four years in prison, later reduced to one year, along with a ban on holding public office.

The Milan Court of Appeal upheld the judgment. With the limitation period due to expire on 1 August 2013, the case was declared very urgent and sent to the Court of Cassation's summer division, presided over by Judge Esposito. That court upheld the conviction on 1 August 2013 and sent the question of the public office ban back to Milan, where it was later reduced from five years to two. Berlusconi forfeited his Senate seat on 27 November 2013.

The four arguments the court rejected

Berlusconi's complaint rested on four points, and the court addressed each in turn.

The newspaper interview. Judge Esposito spoke to the daily Il Mattino on 5 August 2013, after the verdict was announced but before the written reasoning was filed. The court said a judge giving such an interview could raise questions about the duty of discretion, but found nothing in the article showing a preconceived view of guilt.

Remarks reported by others. Articles in Il Giornale, a paper owned by a member of Berlusconi's family, reported hostile remarks attributed to Judge Esposito. The court found insufficient evidence that the remarks had been made.

A recording of another judge. Berlusconi's lawyers submitted a recording of private remarks by the reporting judge, A.F., who alleged bias and called the conviction a miscarriage of justice. The court found those remarks general and inconsistent with his conduct during and after the proceedings.

Alleged anomalies. The court said speedy proceedings are not a sign of partiality, that the case was allocated using predetermined criteria for the summer period, and that a claim an outsider entered the deliberations room had no supporting evidence.

The other complaints

The court found the remaining fair trial complaints manifestly ill founded, including the refusal to transfer the proceedings to another jurisdiction. It reached the same view on complaints under Article 7, no punishment without law, and under Article 4 of Protocol No. 7, the right not to be tried twice.

Several further complaints were rejected as out of time, including the one about allocating the case to the summer division and the claim that there was no remedy for the alleged lack of impartiality.

What happens next

This is a Chamber judgment of seven judges, presided over by Ivana Jelić, and it is not yet final. For three months, either party may ask for the case to be referred to the Grand Chamber, and a panel of five judges would decide whether to accept. The full judgment is available only in French.

The ruling does not reexamine whether the tax fraud conviction was right on the facts. Its question was narrower: whether the judges who decided the final appeal were impartial under the European Convention. On the evidence before it, the court said they were.

For readers following judicial ethics more broadly, the judgment is also a reminder of how Strasbourg treats judges' public comments. An interview about a fresh ruling can be inappropriate without proving bias, and the court drew that line carefully here.