All the prime minister’s trials

For the first time in almost 8 years Silvio Berlusconi appeared in a Milan court this morning. It had little to do with the law and a lot to do with political theatre. After years of shunning the courts, he has decided that the best defence is attack and attack on his own terms, not the court’s. Until now, he appeared in the dock as little as possible; now he has said that he will dedicate Mondays to court appearances. Monday (or even Saturday) mattinées were never like the Berlusconi show. The few formalities in court this morning were completely overshadowed by the performances before and after.
The morning began with Mattino Cinque a morning chatshow on Berlusconi’s Mediaset flagship channel Canale 5. It was hosted by Maurizio Belpietro employed by Berlusconi on the television show but also as editor of the strongly pro-Berlusconi paper Libero and previously editor of the Berlusconi family owned Il Giornale. The prime minister gave one of his well-honed speeches, one he has used a dozen times before. It was a peroration for the defence and of course without cross-examination but with a jury of millions listening. He has been “persecuted” and not prosecuted; “thousands” of magistrates have spent years trying to convict him in “25 prosecutions” but he has always been given a full acquittal; all of them, he maintains began after he went into politics. The charges against him are “ridiculous”.
As ever, Berlusconi was being flexible with the truth or just plain lying; he has had clashes with the law since 1979 and above all when he said that he has always been acquitted. On some occasions, charges were dropped because of the statute of limitations; on others, because the law was changed (by Berlusconi). He has been convicted at the court of first instance and then either acquitted or charges were dropped. But as on many other occasions, he swore on the heads of his children and grandchildren that he was innocent and that was the message he has succeeded in getting across to millions of Italians.
Then as he went into court and after the formalities, he was greeted by a claque of fans. On his way out, he stood on his car’s step and waved to them

. No rock star or sportsman could have done it better.
All this razamatazz will not change the prosecutor’s or judges’ minds but it does make a big difference. Ten days ago he introduced his “epochmaking” reform of the justice system – a reform which will go nowhere but last week one of his deputies introduced a tiny amendment to a bill in committee which if it becomes law, will reduce the statute of limitations for 65 year olds with a criminal record. It’s a pensioners’ get out of gaol free card; just what Mr. B needs.
In front of all this spin, the actual charges are almost irrelevant. Today’s trial, due to continue next week on 4 April, accuses Berlusconi of inflating payments for the rights of American television series in order to siphon off part into slush funds. The actions he is accused of allegedly took place up until 2009 so for this at least, the statute of limitations is still a long way off.
His criminal trials actually began again last week after the long hiatus due to his immunity laws. There are another three; three, apart from the Mediatrade case, have been running for some time and involve corruption of one form or another. In the fourth he is accused of having sex with an under age prostitute and for abuse of power – the so-called Ruby case. That will come to court next week on 6 April, the second anniversary of the L’Aquila earthquake and given the subject matter will have far more coverage than the others whether Berlusconi graces the court with his presence or not. In the meantime, there have already been revelations about Ruby and her friends which would make Leporello blush. He said that Don Giovanni had had 640 amours in Italy, but none was subpoenaed unlike Berlusconi’s who might well give flesh to Leporello famous “il catalogo è questo”.
On 11 April, another embezzlement and fraud trial known as Mediaset, comes to court. Berlusconi missed the first hearing in February but has said that he will attend next month.
The prime minister will be busy quite apart from what is happening in Libya.

Italy at 150

There is an essential incongruency seeing prelates celebrating an anti-clerical movement led mainly by Masons. Or of proven republicans celebrating the proclamation of a new kingdom. Or of the left celebrating an elitist movement in which in 1861, only 1.8% of the population were enfranchised. But anniversaries are all about symbols and today’s politics and not very much about real history. In 1989, there were wonderful photographs of that well-known trio of revolutionary sans culottes, Margaret Thatcher, François Mitterand and Helmut Kohl celebrating the 200th anniversary of the fall of the Bastille. And for the handful of French royalists or the people of the Vendée, 14 July is hardly an auspicious day; strictly speaking, for loyalists or slaves, 4 July was not a declaration of independence either. Both, though, are taken as symbols of the nation and national unity.
The difference between them and Italy is of course that in the last 200 plus years, both the US and France have been through enough to make them into single countries. They have their founding myths, half truths and full truths which all but a few diehards can live with and actually buy into.
As today’s anniversary makes clear, Italy is not like that. On 17 March 1861, the new Italian Parliament proclaimed Victor Emmanuel II

of Piedmont Sardinia as king of a newly united kingdom of Italy. It was the culmination of a movement which was far from all-embracing. It was mostly middle and upper middle class with the occasional participation of peasants who saw Garibaldi as some sort of messiah. Some were young romantics who really did believe in freedom and the nation. Many of them had fought for the Roman Republic back in ’49 for a constitution and freedom from foreign rule or influence.
As I write, sitting on the Janiculum, President Napolitano and other national dignitaries are half a mile away celebrating Garibaldi and his defence of the Janiculum and the whole city of Rome against French troops fighting to re-install Pope Pius IX as temporal ruler. Even this produces its contradictions; the Irish ambassador to the Holy See (whose residence round the corner was seriously damaged in the 1849 siege) recently had to politely decline invitations to some of the festivities pointing out that the events of 1848-9 were revolutions against the government to which he is accredited. The Pope today compliments Italy on its anniversary and compliments Roman Catholicism for being the glue which holds the country together; many of his predecessors worked hard and successfully to prevent Italian unification and from 1870 to 1929 the papacy did not recognise the new state.
On the other side, today centre-left politicians appear on television wearing a tricolour rosette; on Saturday there was demonstration with the left defending the constitution against Berlusconi’s justice reforms and many of them literally wrapped themselves in the flag.
There are other reasons beyond the initial contradictions, though, that the foundation of the Italian state is not celebrated like 4 or 14 July. The local identities were strong in the middle ages and are still strong today; they are made up of language, food and art and a very strong sense of belonging. Most of the pre-unification Italian states lasted more than 150 years and many of them demand respect not just for their art and food but their political institutions too.
Then there are the wars which in most countries unite the population either in conquest or defence. Italy has had none which genuinely had the support of most of the population. Indeed the first war that Italy fought was a civil war against the so-called brigands of the south and even today, many Sicilians talk about “the Piedmontese” rather than Italians – for them it was a northern conquest not unification. The Italian colonial wars were expensive in both blood and treasure and yielded little glory and and less income. The first world war was opposed by a majority of the population and cost thousands of lives and the very identity of the country; its result in both the government’s and public mind was “a mutilated victory”. Mussolini’s wars were no better and were strongly opposed by the anti-fascists. Perhaps if he had stopped with the conquest of Ethiopia, not only might he have survived but Italy might have been united around “King and Emperor”. Instead he went into Spain and then, worse, world war two, disasterous and the end not only for him and the kingdom of Italy itself but devastating for the country. The partisan war did indeed unite part of the country and became the elaborate founding myth of the Republic but even that is now considered “a civil war” and not only a war of liberation.
Wars did not unite Italy – but peace has, along with prosperity and social mobility. This and immigration mean that local identity is waning in favour of an Italian identity.
While there are separatist movements in other parts of Europe, paradoxically, the anti-unification rhetoric in Italy seems to underline the national identity. In the past it was the south that put on a show of non-Italian-ness. Sicily had its separatist movement, the heirs of the 1860s “brigands” on the mainland. One of them even wanted Sicily to become the 49th state of the US. Today it is the north with Umberto Bossi’s Northern League posturing rather than shooting like the post-war Sicilian or South Tyrol separatists. Their regional councillors in Lombardy ostentatiously went to the bar when the national anthem was played and their parliamentarians are not attending today’s joint session of Parliament… but their ministers are still in the government. The provincial government of South Tyrol (Alto Adige in Italian) declared they had nothing to celebrate as they were annexed by Italy in 1919 while Sardinian separatists also snubbed the celebrations – this is ironic as the Savoy family title of “king” first applied to Sardinia.
So today’s celebrations are anything but triumphalistic, quite rightly so but it is surprising quite how much interest and support there is for the idea of Italy. There is a surprise and relief that it has lasted 150 years. Despite the rain, thousands have turned out for today’s events and the tricolour is not just flying on public buildings. Most Italians spend their time criticising their country so a celebration once every 50 years or whenever Italy wins the World Cup is surely in order.
And a happy St. Patrick's day too…

For more history on the subject, see my piece, Italian Unification, 150 years on in this week’s issue of Wanted in Rome.
On 8 and 9 April The American University of Rome is hosting an international conference on “Italy at 150”. Scholars from Europe and North America will discuss the consequence of unification for art and music as well as politics and economics. Click on a detailed programme, or call +39 06 5833 0919 ext. 323.

The Libyan mire

Whatever happens in Libya over the next few days and weeks will have more impact on Italy than any other country apart from Libya itself. And yet there is a deafening silence in Italy about what should be done there. In the US there is a furious debate over whether America should intervene or not and if so, how. It cuts across party lines and covers politics, ethics and commercial interests. President Sarkozy weighed in with France’s recognition of the provisional government. This has once again put the Elysée among the world’s foreign policy leaders. David Cameron has supported Sarkozy’s calls for airstrikes if Qaddafi attacks civilians while Chancellor Merkel has said that she is “fundamentally sceptical” about military intervention.
Here in Italy, there is almost nothing. Obviously the papers lead with the Japanese earthquake and tidal wave but not only from the Japanese angle. What has happened there is used for or against Italy renewed commitment to nuclear energy. A good deal of space is devoted to the anniversary of Italian unification on Thursday and then there is still a fair amount of coverage of Berlusconi’s trials and his proposed reform of the administration of justice. Libya is very low on both the media agenda and the government’s.
The foreign minister, Franco Frattini put Italy’s position in a letter to Corriere della Sera on Saturday. He said that “Italy had no uncertainties” and wanted to clear any “doubts and uncertainties”. He did this by saying that if others (the EU, the UN, the Arab League) led, Italy would follow. It was a very firm maybe; reiterated today at the meeting of G8 foreign ministers where he called for “an immediate ceasefire in Libya”; at the moment it is more likely to snow in Benghazi than for Qaddafi’s troops to stop fighting.
The Prime Minister has been even less pro-active. He spoke to Qaddafi on 22 February, then to Obama, Cameron, Ban Ki Moon and finally van Rompuy on 1 March when he also gave an interview to the Roman daily Il Messaggero. Since then, nothing on the prime minister’s site and only occasional remarks to the press.
This sort of low and non-committal profile would be unsurprising for a country far away and with few links and interests in Libya. But Italy is not Costa Rica, say, or Latvia. This is the former colonial power which governed Libya for 30 years fighting a long and bloody war there and establishing cultural and commercial ties. Italy relies, relied on Libya for almost a quarter of its oil and a tenth of its gas. There are huge investments by Libya in Italy from banks to football clubs and vice versa in oil and civil engineering. If there is a major humanitarian crisis in Libya with thousands of refugees, Italy will bear the brunt of it. On top of the national political and economic interests, the Qaddafi’s personal link Berlusconi was stronger than with any other head of state or government. The footage of Berlusconi kissing Qaddafi’s hand has gone

the rounds and was vaunted by Qaddafi himself.
As Franco Venturini pointed out in Corriere della Sera for the former colonial power to keep such a low profile and follow the stream is neither good for Italy’s image or its interests. Italy is a major economic power and has a well-earned reputation for both military, peacekeeping and humanitarian initiatives abroad so should be doing rather more.
In the distant (Fascist) past, Italy’s aggressive foreign policy actions were disastrous and partly as a reaction, during the Cold War, the country kept a low profile sheltering under the American umbrella. But since 1989, Italy has developed a more active foreign policy in keeping with the post-Cold War world and its own status.
Today’s silence is not only unbecoming, it is against Italy’s own interests and a renunciation of responsibility. No one expects Italy to take unilateral action, but to have a position like the French, the British and the Germans is not too much to ask. Or at least to debate the issue.
And it is not only the government that is absent; opposition leader Pierluigi Bersani mentioned Libya a week ago, but only to criticise Berlusconi’s links to Qaddafi. The other centre-left leaders have been similarly reticent. The centrist Pierferdinando Casini has been more forceful suggesting today that the EU should act now. But there is no debate similar to Kerry and McCain advocating intervention against Gates and Rumsfeld wanting to hold back. Nor have the papers been any clearer. Apart from Venturini’s piece there has been very little either in favour or against intervention.
My own position is that Italy and the rest of the EU should be prepared to act militarily – aggressively if necessary; the “no fly zone” is a fictional “non-aggression” policy. But only if and when there is imminent danger of a humanitarian disaster.
There should be four conditions met for justifiable intervention: it should be legal; it should be legitimate; it should be in the intervenors’ interest and it should be practical. Action in Libya will never be sanctioned by the UN but it could become legitimate if, or rather when, Qaddafi starts his reprisals. The Arab League’s demand for intervention also creates legitimacy which could be made even more visible by Arab military cooperation as in the 1991 Gulf War. Material interests are already present for Europe and neighbouring Arab countries. Finally, most defence analysts reckon that Qaddafi’s armed forces could be dealt with relatively easily by well-trained and equipped troops. It is clear that unlike Iraq or Afghanistan, the vast majority of the population would support intervention.
The nearest parallel is Kosovo in 1999 when all conditions were fulfilled except a UN resolution. Such an action would require the painstaking diplomacy that George H. W. Bush and other carried out in the lead-up to the Gulf War. In 1999, there was some ambiguity in Italy, but there was a debate. Today, the silence is deafening.

“Epochmaking reform”; Berlusconi against the judiciary

No one denies that the administration of justice in Italy is in a mess; the length of trials is measured against eternity with civil cases being handed down lovingly from parent to child like some sort of heirloom even though criminal liability is thankfully extinguished at death so that the sins of the fathers are not visited on the sons, at least not legally. The adage “justice delayed is justice denied” has no currency in Italian.
Over the last few decades there have been some reforms in procedure moving Italy a small way towards the English accusatorial system away from the continental inquisitorial form. But the hybrid has actually slowed down the trials.
So any reform that brought Italian justice up to scratch would indeed be “epochmaking”. And that is just what Berlusconi promised before he unveiled his new bill yesterday.
Berlusconi and his supporters have never made any secret for what they call the toghe rosse or “red robes”, red for the political colour, robes for the judges. And they have frequently called for them to be reined in. If the reform passes, it would create a massive shift in the balance of powers in Italy. Alessandro Sallusti, the editor of one of the Berlusconi family papers, Il Giornale, said the reform “would free the country from the magistrates’ dictatorship” calling the magistrates “untouchable” without a reform. Berlusconi himself proclaimed disturbingly that if this law had been in force 20 years ago there would have been no “clean hands” investigations. These were the Milan corruption trials of the early Nineties which in practice destroyed the parties which had been in government for the previous 45 years. What he wanted to say was that the judiciary overstepped its powers then and moved into the executive and legislature; instead, the message seemed to be that he wanted to cover up the corruption and that politicians should be above the law.
If we look at the bill, some of the proposals do not sound unreasonable to anyone used to common law systems. At the moment magistrates in Italy are a single group which includes judges and prosecutors. They enter a career path after a degree in law and competitive exams and normally have security until retirement. This means that a magistrate may be both judge on the bench and prosecutor at different moments in his or her career, a combination which would seem to contravene some of the principles of natural justice.
Other proposals which do not seem so scandalous to an English or American observer are the need to prioritise the types of crime which are prosecuted and the impossibility for the prosecution to appeal an not guilty verdict. Few Anglo-Saxon lawyers would argue that all alleged crimes have to be pursued; there simply are not enough resources. And no one who works in the common law system is surprised that the defence can appeal while the prosecution usually cannot. After all, the prosecution has to prove guilt “beyond reasonable doubt”.
In a more tranquil Italy, these points could be debated and the possibility of the separation of prosecution and the bench was included in a constitutional reform package in the ‘90s headed by Massimo D’Alema.
But Italy is not tranquil today and the Berlusconi proposals are clearly in bad faith.
The separation of bench and prosecution is meant not to create two separate but equal careers as the Minister of Justice Angelino Alfano maintains but to weaken the prosecution. Berlusconi made this clear when he said yesterday that “prosecutors should go the judges cap in hand”.
Berlusconi argues that his reform would level the playing field between defence and prosecution (and even presented a simplified diagram

so that we stupid people would understand). Instead, by removing the prosecution’s right to appeal a verdict, he would weight the scales heavily in favour of the defence. In the Italian system, the judge’s duty is establish the truth (inquisitorial) and not to act as impartial umpire as in the common law accusatorial system, so the two sides are actually equal.
Deciding which cases to prosecute would not be scandalous either – the Crown Prosecution Service does it in England except that the reform would give this prioritisation to Parliament, i.e. the majority. Should prosecutors investigate political corruption, vote buying, mafia and politics… or should they concentrate on street crime, burglaries, riots? Once again, the measure would move the centre of power closer to the executive.
Another punitive measure meant to clip the wings of overzealous prosecutors is to introduce personal civil liability for judges and prosecutors. Any professional mistakes that they might make would be actionable and the single magistrate would have to pay out his or her pocket (at the moment if a magistrate makes a mistake it is the state which pays).
Finally, the biggest giveaway is that the reform does nothing to change the dire state of civil cases. Delays in civil case are not only an injustice for the injured party but are one of the many brakes on economic development in Italy.
If the reform passed in more or less its present form, it would not save Berlusconi from his four prosecutions (today the Mills case had its first hearing since the Constitutional Court changed Berlusconi’s immunity) but would greatly reduce the power of the judiciary and the constitution’s separation of power. Even if it does not pass, it is a warning barrage against the magistrature and a very good diversionary tactic to take public awareness off the other problems that the government is not facing.
As a constitutional amendment, it will have to go through both houses of Parliament twice with at least three months between votes. With a maximum of two years before the next elections (and a high probability of early elections before then), the chances of the reform passing are very slim.
Instead, Berlusconi could offer to withdraw the overall Justice Reform in exchange for the re-introduction of parliamentary immunity from prosecution and/or the so-called processo breve or short trial in which every trial has a best by date stamped on it and if the verdict is not reached by that date it prosecution fails. This would let Berlusconi off all of his cases except his indictment for underage prostitution.
Tomorrow there will be demonstrations in 104 cities to “save the constitution”; their success will be a measure of how much Italians actually care about this reform. The magistrates have already expressed their opposition so once again there will be a major clash of institutions.