Europe’s rights court rejects bias claims over former Italian premier’s tax fraud conviction

A judge’s newspaper interview came after guilt was settled, and a colleague’s recorded complaints failed to establish improper pressure, the court found.(CN) — A judge’s newspaper interview gave Silvio Berlusconi’s heirs ammunition, but Europe’s human rights court found it did not prove the former Italian leader’s tax fraud trial unfair.The European Court of Human Rights rejected on Thursday the challenge continued by his five children after he died in 2023. The billionaire broadcaster and former prime minister sought a finding that his trial was unfair and his conviction unlawful, arguing that Italy’s highest criminal court was biased.Berlusconi turned television fame and a business fortune into repeated election victories, promising to bring a businessman’s touch to government. He left formal corporate roles in 1994 but retained his business interests, fueling accusations that he used public office to protect his private empire. The conviction cost him his Senate seat in 2013; voters sent him back in 2022.Italian courts found intermediaries sold television rights to his Mediaset broadcasting group at inflated prices, creating fictitious costs that lowered its taxes. They found Berlusconi devised the scheme and remained involved after leaving his corporate posts. He had his four-year prison sentence reduced to one under a remission, and he performed community service.The European judges found no violation of his right to an impartial court and declared his other complaints inadmissible. Antonio Esposito, who presided over the Italian panel, spoke to Il Mattino after the verdict was announced on Aug. 1, 2013, but before its written reasons appeared. He explained a defendant’s knowledge of an offense had to be proved, not assumed.The court acknowledged concerns about the interview but found nothing suggesting Esposito had prejudged guilt. Some details could still be worked out during drafting, but the findings necessary to convict Berlusconi had already been settled.“In this case, the article makes no specific reference to the facts of the case or to the evidence on which the conviction was based,” the court wrote in its French-language judgment.Gaia Caneschi, associate professor of criminal procedure at the University of Milan, saw a restrictive approach that separated a judge’s breach of professional restraint from proof of an unfair trial. In her reading, the interview’s timing and lack of case-specific disclosures prevented otherwise questionable conduct from undermining the conviction.She said that distinction gave greater protection to national supreme courts’ authority while narrowing defendants’ ability to challenge the appearance of bias. The Strasbourg judges, she added, required stronger evidence of the judge’s personal hostility.The judges also found insufficient corroboration for hostile remarks attributed to Esposito. A recording of another panel member, identified as A.F., describing pressure to sign a verdict he considered unjust failed to establish bias. He never complained officially, and the court viewed a warning about political attacks as a prediction of reactions rather than a threat. Berlusconi withheld the recording itself for six years, until after A.F.’s death prevented questioning him.Lorenzo Roccatagliata, a criminal defense lawyer at Studio Alleva & Associati and deputy director of Giurisprudenza Penale, stressed the need to identify every complaint promptly, seek recusal early and disclose evidence without delay. Case law of the European Court subsequent to Berlusconi’s application specified, in a more restrictive manner, the time limits and procedures for submitting the violations.He also emphasized political dislike alone did not prove a judge was predisposed to convict and urged clearer, enforceable limits on judges’ comments before written reasons appeared. “The court’s ultimate finding — no violation — should not be read as a general endorsement of the conduct in question,” he said.Simone Lonati, associate professor of criminal procedure at Bocconi University, noted that the court found no violation concerning the impartiality of the Italian Court of Cassation panel that heard the case, while declaring the remaining complaints inadmissible.On the protection against being tried or punished twice for the same offense, he said the judges rejected Berlusconi’s complaint as clearly lacking merit without setting out a separate, detailed comparison of the facts underlying the different proceedings. “In my view, a fuller explanation would have provided further guidance for future cases,” he said.Representatives of both sides did not respond to requests for comment.The conviction remained intact. Either side may seek reconsideration of the impartiality complaint by the court’s Grand Chamber within three months, but acceptance is exceptional. Complaints declared inadmissible cannot be revived through that route. The judgment becomes final when that deadline passes without a request, or if a request is refused.Courthouse News reporter Eunseo Hong is based in the Netherlands.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads