“The ‘systemic threats to the rule of law’ and of democracy may not be where one would think”, and “it will have escaped no one's notice that such power left in the hands of the European institutions can be turned against any Member State at the whim of political movements, either within the States or within the institutions themselves”, guest author Jérôme Soibinet wrote in a recent article published by the European Centre for Law and Justice, under the title “Article 7 of the Treaty on European Union and the protection of the ‘values of the Union’: legal tool or political weapon?”. “Looking at the targeted countries and those that are never targeted, one may wonder about the real motives behind these concerns and even more so about the legitimacy of these institutions to impose their own interpretation of vaguely defined values”, Soibinet also wrote. And indeed, while Hungary and above all Poland have been repeatedly targeted by EU institutions over their reforms of their judicial systems, and accused of weakening the independence of the judiciary and thus the principles of democracy and the rule of law, other countries with proven threats to the separation of powers and to respect for democracy and the rule of law do not seem to attract such scrutiny from the European Commission and the European Parliament. This is the case, for example, with Italy and France, where recent scandals have raised serious concerns about democracy and the rule of law without triggering any reaction from EU institutions. This is all the more worrying since, for the first time in the history of European integration, the last meeting of the European Council which ended on July 21 established a link between the EU multiannual financial framework (and also the new recovery fund) and the Commission’s assessment of how each member state abides by the rule of law and the general values mentioned in Article 2 of the Treaty on European Union. However vague and prone to diverging interpretations the July 21 conclusions may be in this matter (see points 22 and 23 of the European Council conclusions), they could very well make it possible to suspend the payment of EU funds to a given country through a qualified majority vote in the Council of the European Union, instead of sanctions having to be imposed by a unanimous vote in the European Council as per Article 7 of the Treaty. This is at least how the European Commission seems to understand those conclusions, and given the record of the European Court of Justice (ECJ), one can assume that it will follow the Commission’s interpretation on this issue rather than that of premiers Morawiecki and Orbán.
In the eyes of EU institutions, the separation of powers seems to matter only for the judiciary
But then, why should European institutions only address such issues in former Eastern Bloc countries run by right-wing conservative governments? One reason for this seems to be the general push for judicial activism at EU level, as a way to make the EU more like a federal state without having to go through the difficult process of adopting new treaties, and also out of distrust for the democratic expression of popular will, which is often seen by EU elites as being too “populist” and potentially dangerous. This may explain the lack of reaction from the European Commission after it was revealed in Italy that a group of high-level magistrates had orchestrated coordinated and politically motivated judicial action against the then Minister of the Interior and Deputy Prime Minister Matteo Salvini. An even more blatant double standard when considering attacks on the separation of powers was the refusal by the European Parliament Committee on Civil Liberties, Justice and Home Affairs (LIBE) to open a debate on this issue, as expressed on June 1 by all political groups except for Identity and Democracy (ID) and the European Conservatives and Reformists (ECR). Two MEPs of the ID group – France’s Nicolas Bay (RN) and Italy’s Annalisa Tardino (Lega) – had submitted a demand for such a debate to the chairman of LIBE, Spanish socialist Juan Fernando López Aguilar, on May 27, just a few days after the presentation by Aguilar of a very critical report on Poland and two weeks after a new debate (the ninth in a decade!) on the rule of law in Hungary in plenary session of the European Parliament.
Thus, for EU institutions, everything seems to be in order when unelected independent judges and prosecutors abuse their powers against political opponents, and a threat to the rule of law only exists when an elected parliamentary majority decides by a majority vote to put some democratic checks on the judiciary, as was the case with Poland’s 2017 reforms of the judiciary, and also with Hungary’s new constitution and reforms at the beginning of the last decade.
Two recent scandals raise serious doubts about democracy and the rule of law in Italy
Meanwhile, in Italy, the breach of the principle of separation of powers, of the rule of law and of democracy is an obvious fact. In two separate scandals, prosecutors and judges have abused their powers or have been used by left-wing politicians to see off their main political opponents: Silvio Berlusconi in one case and Matteo Salvini in the other. In the case of Berlusconi, a flawed judgment by the Supreme Court of Cassation even made the leader of the main centre-right party ineligible for political office for several years. The scandal broke in the last days of June with the publication of an audio recording featuring a conversation between Berlusconi and Judge Amadeo Franco, who died last year. Franco had asked to meet Berlusconi to express his regrets concerning his conviction, pronounced in 2013 by a panel of Supreme Court of Cassation judges to which Franco belonged. Despite many procedures launched by prosecutors and judges against the former prime minister and leader of the centre-right, the 2013 conviction concerning accusations of tax fraud by Mediaset, a company owned by Berlusconi but not controlled by him at the time of the alleged fraud – as Berlusconi was then prime minister – was the one and only conviction of the Cavaliere. The audio recording is part of the evidence submitted to the European Court of Human Rights by Berlusconi’s lawyers. One can hear on it how the former judge of the Supreme Court of Cassation confesses to Berlusconi that he had been convicted beforehand and was in fact the victim of a “dirty” trial that was a “big plot”, “led from above”. Judge Franco also talks of the bad faith of the president of the convicting court Antonio Esposito, which he explains by pressures exerted on him because of his son’s having been caught by police in possession of drugs. The president of the Italian Republic was then Giorgio Napolitano, a long-time member of the Italian Communist Party, who is believed to have actively contributed to the fall of the Berlusconi-led centre-right government in late 2011, in an allegedly concerted action by other European heads of states, rating agencies and the Deutsche Bank, who exerted pressure on the interest rates of Italian sovereign debt titles on financial markets. The prime minister was Enrico Letta, of the left-wing Democratic Party, who led a grand coalition government. Among many reactions to this scandal, Antonio Tajani, who is a member of Berlusconi’s Forza Italia and was the president of the European Parliament until early July 2019, talked – after the publication of the audio recording by the daily newspaper Il Riformista at the end of June – of a judicial putsch against democracy. It is worth noting that the same Tajani, when refusing to vote in favour of a resolution against Hungary in January 2020, accused the European Parliament of applying double standards when it comes to the rule of law in member countries.
More recently, it was the League’s leader Matteo Salvini who was targeted by a group of prominent pro-immigration members of the High Council of the Judiciary. This scandal broke in the second half of May this year, with the publication by the daily newspaper La Veritá of the contents of conversations conducted by prosecutor Luca Palamara, whose phone had been wiretapped as part of an inquiry concerning allegations of corruption against him. It is this second affair which triggered the failed attempt by the ID group in the European Parliament to hold a debate at LIBE on the rule of law in Italy. In 2018, at the time of the aforesaid conversations – conducted by text message and via WhatsApp – Palamara was a magistrate member of the High Council of the Judiciary and a former chairman of the main magistrates’ association in Italy, the Associazione nazionale magistrati (ANM). The Italian High Council of the Judiciary (Consigliore superiore della magistratura, CSM) has 27 members, of whom 16 are magistrates (in the Italian sense, that is, judges or prosecutors). The CSM is chaired by the President of Italy, currently Sergio Mattarella from the left-wing Democratic Party (PD). Eight members of the CSM are appointed by parliament. The dominance of magistrates appointed by their peers, as was the case in Poland before the 2017 reform of the KRS, is supposed to guarantee the independence of the judicial system. However, this does not seem to guarantee great respect for the principles of democracy and the rule of law, since Palamara’s conversations with other members of the CSM, other prosecutors and judges have shed light on the political motives behind judicial processes against the then Minister of the Interior and Deputy Prime Minister Matteo Salvini. In some of the wiretapped conversations, prosecutor Palamara talked with CSM deputy chairman Giovanni Legnini, a former member of the Italian Communist Party who was appointed to the CSM by parliament in 2014 while serving as a secretary-of-state in the left-wing government of Matteo Renzi. It appears now that in 2018, CSM members Palamara and Legnini encouraged like-minded prosecutors and judges to have Salvini prosecuted for his decision to block the landing in an Italian port of illegal immigrants aboard the Diciotti, a boat of the Italian Coast Guard. It also appears that both Palamara and Legnini were very well aware at the time that such judicial action had no solid legal grounds and that they were acting for political motives, together with prosecutors and judges who shared their pro-immigration views. Although in the Diciotti affair judges did not get the green light from the Senate to lift Salvini’s immunity (Salvini then being a member of the government, and still being a Senator today), they did get such a decision in another identical affair concerning the Gregoretti. Indeed, the Italian Senate voted in favour of allowing the trial of Matteo Salvini, today’s main opposition leader, in February of this year, and Salvini will have to stand trial for having blocked for a few days (until he obtained promises of relocations from other EU governments) the landing of illegal immigrants on board the Gregoretti in July 2019. The Five Star Movement (M5S), which had voted against lifting Salvini’s immunity when it formed part of the coalition government with the League in March 2019, decided to vote differently in an identical case in February 2020 while in coalition with the left-wing Democratic Party (PD). After Palamara’s conversations were revealed, President Mattarella himself said that there exists in Italy an “unacceptable confusion between politicians and magistrates”, and that this is in part due to the “degeneration” of the system of politically tinted branches within the national magistrates association, and hence among judges and prosecutors appointed to the High Council of the Judiciary. Salvini himself wrote to Mattarella after May 21 to express his deep concerns about such a breach of the principle of separation of powers, and to ask him to intervene to ensure that his own trial, originally planned for July but now postponed to October, would be fair and impartial.
While such violation of basic principles of the rule of law by “independent” but politically and ideologically motivated judges and prosecutors does not seem to be a cause for scrutiny on the part of the European Commission and the European Parliament, one would expect that what emerged last June in neighbouring France would be. In the French case, we are in fact talking about a clear violation of the independence and impartiality of the judicial system by the executive in order to eliminate a political opponent in a presidential election.
How the French left used the judiciary to enable Macron’s victory in the 2017 presidential election
Last June 10, Éliane Houlette, who was the first chief prosecutor of the financial prosecution office created by the Socialist government in 2013, and was still in charge in 2017 (she is now retired), declared under oath in front of a committee of the French National Assembly inquiring into obstacles to the independence of the judiciary in France that, when the case of the centre-right presidential candidate François Fillon was taken over by her services in January 2020, she became subject to “very numerous” and “continuous” demands by the general prosecution office in Paris. These demands were made, according to Chief Prosecutor Houlette, with a “stupefying degree of precision”, and with very strong pressure to open an official inquiry as fast as possible. “I felt this as an enormous pressure”, she told MPs. The sheer fact that the case had been handed to the financial prosecution office, whose members had all been appointed by the Socialist government and whose jurisdiction extended to the whole country (which exempted it from having to turn to regional prosecution offices, like the one competent for the Fillons’ place of residence in the Sarthe department), stunned many commentators. The financial prosecution office was supposedly created to deal with complex financial crimes for which expert knowledge was required on the part of prosecutors, while the Fillon case concerned allegations of fictitious employment of his wife as his parliamentary assistant, a matter which did not require advanced financial expertise. However, the choice of a prosecution office which has powers of inquiry throughout the whole country and which reports directly to the general prosecution office attached to the Appeal Court of Paris had the advantage of speeding up the whole process. It also had the advantage of placing the whole prosecution under the auspices of people who had been appointed by the Socialists under the presidency of François Hollande or were close to them (this also goes for the head of the general prosecution office in Paris and the first president of the Paris Court, both being former close collaborators of Ségolène Royale, a leading member of the French Socialist Party and also Hollande’s ex-partner and mother of his children, who appointed the investigating judge in the Fillon case – the same judge who had brought about the indictment of former centre-right president Nicolas Sarkozy in spite of the dissenting opinion of the two other investigating judges on the case). As a result, Fillon was indicted at appalling speed, only two months after the matter concerning the employment of his own wife as a parliamentary assistant in 1988–1990 and 1998–2007 (which was legal in itself, as long as her work was real and not fictitious) had been exposed by the weekly newspaper Canard Enchaîné in January 2017, and only three days before the final deadline to declare candidates who would stand in the presidential election. Throughout the presidential campaign, the media, and in particular those outlets close to the Socialists (Le Canard Enchaîné, Le Monde, and Médiapart) were fed illegal leaks from the prosecution office and the police, enabling the efficient sabotaging of Fillon’s campaign, thus seeing off the man who had been the absolute favourite to be elected president until the first half of January 2017. Emmanuel Macron, the former Minister of the Economy and Industry (2014–16) and former deputy secretary general of President Hollande’s cabinet (2012–14), the candidate supported by Hollande, thus had his way cleared to win through to the second round of the election against National Front leader Marine Le Pen. With the support of all French mainstream media, Macron then won the election on May 7, 2017, with 66% of the vote against 34% for Le Pen.
The accusations of election rigging using the powers of a specially created financial prosecution office, which was seen by many commentators as a political tool in the hands of the Socialists from the time of its creation, are thus not new, as they date back to the presidential campaign of 2017. Houlette’s declaration before a parliamentary committee was therefore seen as a confirmation of what many already suspected. Brice Hortefeux, who was interior minister in the Fillon government under the presidency of Nicolas Sarkozy, talked of an election result which had “probably been distorted”. Hugo Bernalicis, the left-wing opposition chairman of the parliamentary committee inquiring into obstacles to judicial independence in France, said that it remained to be established up to what level of executive power and for what purpose the information demanded from the head of the financial prosecution office was used, since “this raises questions about the role and the functioning of the judicial system during an electoral campaign.” Damien Abad, head of the centre-right LR group in the National Assembly, recalled that this affair had led to the elimination of his party’s candidate, and that it was of an “extremely serious” nature. Lawyer Régis de Castelnau, who operates a popular legal news website (“Vu du droit”) and often writes opinions in leading newspapers Le Figaro and Causeur, considers that the “judicial operation” against François Fillon in 2017 was a “coup” conducted under the disguise of legality. President Hollande and the then deeply unpopular Socialists were thus able to avoid their nightmare scenario of a run-off between François Fillon and Marine Le Pen, and many joined the ranks of Macron’s new majority, together with those on the left of LR who had opposed Fillon’s liberal-conservative, right-wing programme in their party’s primaries in the autumn of 2016.
The rule of law is just an excuse used with ideological motives
In the light of the lack of reaction to such breaches of the rule of law and democratic principles in two major countries of the European Union, and in the context of Brussels’ obsession with the rule of law and democracy in Hungary and Poland, one cannot but come to the conclusion that Article 7 of the Treaty on European Union and the need for protection of the ‘values of the Union’ are being used by EU institutions not as a legal tool, but as a political weapon. Whether it be for their refusal to accept mass immigration, as Hungarian leaders often say, or for other reasons, such as their refusal of a federal Europe and of the progressive revolution nurtured in Brussels, and also because of their leading role in Central Europe, the issue of the rule of law and so-called “European values” (whatever that means) serve as no more than an excuse to try and blackmail Hungary and Poland into submission. That this is the case is further illustrated by the lack of reaction at EU level to the extension until October 15 of the Italian state of emergency, which has been in force since January. Such an extension was voted through by Italy’s left-wing coalition in the last days of July, with the parliamentary right-wing opposition expressing real concerns about the authoritarian shift such a move represented. In the meantime, the Hungarian state of emergency caused hysterical reactions in the European Commission and the European Parliament, even though it lasted only three months.