Waiting for the Verdict. Berlusconi contra Legem.

For the last month, the Berlusconi family paper Il Giornale has put a countdown on its front page (yesterday's left), a countdown to the hearing for the appeal to the Supreme Court in which Silvio Berlusconi's “Mediaset” conviction will be reconsidered. Berlusconi was convicted on tax evasion and accounting fraud charges first at the court of first instance, then confirmed on appeal. The Supreme Court cannot re-examine matters of fact so whatever verdict they give, it will be based on law alone. If they confirm the conviction then Berlusconi will have a four year gaol sentence, three years of which have already been amnestied and he would never serve the remaining year in gaol because of his age. More important is the five year bar on holding public office. This would not take immediate effect as his Senate seat would have to be considered by the Senate itself and voted on in order for him to lose it.

The hearing starts today and if there is a verdict, it will probably be handed down tomorrow or Thursday. The alternative is a postponement or some form of retrial.

The number just below Il Giornale’s masthead is not the only dramatisation of the case. Their headline yesterday made it very clear that the Court’s verdict is a national question and not one that concerns Senator Berlusconi. “Così le toghe della Cassazione 
giocano col futuro del Paese" (This is how the Supreme Court judges are playing with the country’s future). Pro- or anti-Berlusconi, no one is in any doubt that the verdict if the conviction is upheld will be a watershed.
There are immediate political repercussions and more longterm judicial and institutional consequences.

Politically a confirmation would through the two biggest government parties into confusion. Berlusconi’s own People of Freedom (PdL) is divided between hawks and doves playing good cop/bad cop. The hawks say that a conviction would be “an attack on democracy” on the curious ground that the votes of 10 million people somehow trump the rule of law. One of them even suggested that if the Supreme Court upheld the conviction, it would be the same as the Egyptian army removing president Morsi. They would like to bring the government down and go to immediate elections. The doves also maintain that Berlusconi has been persecuted but they, and Berlusconi himself present a “responsible” calm and “for the good of the country” will continue to support the government. If the conviction is maintained, there will no doubt be demonstrations and violent language but the PdL will not bring down the government.

On the other side, the Democratic Party (PD) risks bringing the government down because of its own internal divisions. A large portion of the party has been very unhappy in bed with the PdL. They fought a tough election campaign entirely against the PdL and Berlusconi and then found themselves in a coalition with "the enemy". Now if the conviction is upheld, "the enemy" will also be a convicted criminal and that could be too much for some to stomach especially as it is combined with other divisions in the party. But for the same reasons that the PdL hawks are unlikely to pull the plug, the PD dissidents are also likely to go on supporting what is after all “their” government “for the good of the country” and because the risks of snap elections are too great.

Then on the judicial and institutional side, there is the conflict between “politics” and the “the law”, a rift which opened up more than 30 years ago and which Berlusconi increased enormously. Not very deeply buried in the subtext of Berlusconi’s conviction last month in the so-called Ruby case (7 years in gaol and a life ban on holding public office) is a strong statement from the judiciary that they are an independent organ of the state and that their authority is not to be trifled with. Today’s Mediaset case is not only about whether Silvio Berlusconi was directly responsible for his company’s tax evasion and fraud, it is also about whether a politician and man of power and wealth is subject to the law.

As for the result, there are three alternatives.

The first is the confirmation of the conviction – the Supreme Court accepts the Court of Appeal’s verdict.

The second is an acquittal because of some flaw in the legal argument.

And the third is some form of postponement or retrial. If Berlusconi’s lawyers give up the statute of limitations (this hearing was brought forward from the autumn because by one calculation, the statute of limitations would have invalidated any action after 2 August meaning that Berlusconi would have been not guilty because there could be no verdict), then the court could allow a postponement. Or a different calculation of the statute of limitations deadline might allow both sides more time. There is also the possibility that the court might order a retrial because of procedural flaws. That would almost certainly mean that the statute of limitations would prevent a verdict being reached.

Nanni Moretti’s “Il Caimano” a thinly disguised account of the rise of Silvio Berlusconi and his hypothetical fall, ends with an apocalypse, riots and flames in front of the Palace of Justice. He got a lot right including the exact sentence for the Ruby case and the assault on the Court by the Berlusconi figure’s supporters but for the moment, whatever happens in Rome today, tomorrow or the next day is unlikely to start a civil war, thankfully; but the consequences will be farreaching nonetheless.