May the Rule of Law Be Retroactive? Berlusconi's Case Before the ECtHR

Abstract

On November 22, 2017 the European Court of Human Rights held a hearing on a curious petition: the notorious former Prime Minister of Italy, Silvio Berlusconi, claimed that he suffered an injustice by the application of the new Italian anti-corruption legal framework. Indeed, Berlusconi had lost his seat in Parliament as a consequence of his criminal conviction, as provided by the anti-corruption legislation. Berlusconi alleged that the loss of his Parliament seat was in substance a criminal sanction and thus, according to Article 7(1) of the European Charter of Human Rights, should have been subject to the principle of non-retroactivity. According to the Italian legal system, instead, the measure was considered to be an administrative law measure and thus it could have been applied also to events occurring in the past, such as the criminal acts committed by Berlusconi, which predated the adoption of the law. The questions that the ECtHR have to address, beginning with Berlusconi’s highly visible case whose judgment is expected for Spring 2018, will provide an interesting insight of the relationships between the normative concept of the rule of law and its temporal application, as well as with individual rights and Parliamentary autonomy. A complete and revised version of this paper is published on the Italian Journal of Public Law (no.2/2019) - free access at http://www.ijpl.eu/archive/2019/issue-28/may-the-law-rule-the-past-what-if-the-ecthr-had-decided-berlusconis-case