Impact of Statues of Limitations in Corruption Cases

Fininvest Consolidated financial statements. Berlusconi was indicted for false accounting, for

having used 65 off-shore companies to transfer and shelve out of the statements 1.550 billion

Lira. In 2002 the Berlusconi government approved a law to decriminalize the crime of false ac-

counting: this law reduced the maximum term of imprisonment and thus the SOL. In Italy SOL

are considered a substantial element of the trial, not a procedural one; therefore, a subsequent,

more favourable law is applicable to pending cases. In October 2004, the case became statute

barred.

Fininvest Balance Sheets 1988-1992. Berlusconi was indicted for false accounting and embezzle-

ment in the acquisition of TV licences and their overvaluation to create black funds. In October

2004, the case became statute barred.

Lentini Case. Berlusconi, then President of AC Milan football club, was indicted for false accoun-

ting in relation to the acquisition of the football player Gianluigi Lentini. He was also charged

for having falsified balance sheets between 1991 and 1997. After the reform of 2002 and the

decriminalisation of this crime, the case became statute barred in November 2002.

David Mills Case. Berlusconi was indicted for corruption in judicial acts for having paid 600,000

dollars to the lawyer David Mills to obtain his perjury in some trials. The case became statute

barred in February 2012 when the trial against Mills became statute barred. What is peculiar

is that the trial was suspended for over one year because, in August 2008, Italy enacted a law

that suspended trials against people holding the four most important State offices

: the trial

was then suspended for over a year until October 2009, when the Italian Constitutional Court

decided that this law, also known as “Lodo Alfano”, was against the Italian Constitution.

Unipol Case. Berlusconi was indicted for revealing and using confidential information concer-

ning the revelation of information related to the acquisition of a national bank. Convicted to 1

year of imprisonment in the first instance case in March 2013, the case became statute barred

during the appeal case in March 2014.

Berlusconi benefited from the expiry of limitation periods in other three cases (with a fourth

coming shortly). Most of the cases became statute barred after the 2005 SOL reform enacted

under his mandate as Prime Minister. The most important “merits” of the reform were to stron-

gly reduce SOL, particularly for corruption-related crimes, and to cancel the SOL regime for

continuous crimes, which are now considered as individual offences for the calculation of SOL.

1.2

STATUTES OF LIMITATION AND

REASONABLE LENGTH OF CRIMINAL

PROCEEDINGS

One of the pillars of the European Convention

on Human Rights is the right to a fair trial

, with

the necessary requirement for judicial proce-

edings to be completed within a reasonable

time. Member States implement this principle

but not all of them are able to effectively tran-

slate it into practice and have been frequently

sanctioned for violations by the European Court

of Human Rights.

SOL are related to “time” and, although some

experts do not envisage a direct relationship, it

is reasonable to try to relate SOL to the reaso-

nable length of proceedings.

Short statutes of limitation represent a big lever

for defence attorneys and the expiry of limita-

tion periods is often seen as a viable strategy to

be pursued more easily than an acquittal based

on the merits. The existence of this favourable

option creates a judicial system where attorneys

strive for delays and bring appeals against all

first instance decisions to have the case decla-

red statute barred during the appeal (Italy).