Analysis: Berlusconi's fate highlights problems in Italy's judicial system

Reuters News
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Posted: Aug 08, 2013 8:04 PM
Analysis: Berlusconi's fate highlights problems in Italy's judicial system

By Barry Moody

ROME (Reuters) - Silvio Berlusconi says he is the victim of politicized judges, his enemies that he has finally been nailed after two decades evading the law. Either way, the fate of Italy's dominant politician highlights deep problems with the country's judicial system.

Ever since he entered politics in 1994, the four-time prime minister has railed against the judges, and he rounded on them again last week after the supreme court confirmed a one-year jail term for tax fraud, his first definitive conviction in dozens of trials.

Much of the center-right leader's emotional video address after the sentence was a bitter attack on "uncontrollable" magistrates who had hounded him for 20 years for political ends.

On Sunday, as the 76-year-old billionaire wept at a rally of his supporters in Rome, he returned to the theme. "We must together wage this battle for democracy and freedom, to make Italy a country where people are not afraid of finding themselves in jail for no reason."

Lawyers and judges give his accusations short shrift.

"You only have to think how many different magistrates judged him in so many different situations to say that from a statistical point of view it is impossible that they are all from the left," said senior Milan judge Fabio Roia, member of a politically centrist magistrates' association.

The five supreme court judges were politically conservative, and public prosecutor Antonello Mura has led the most right-wing magistrates' association.

Defense lawyer Markus Wiget said that while Berlusconi's prominence might have made him a more tempting target, political bias could not explain all his legal difficulties. Berlusconi himself listed in 2008 a toll of 577 visits by police, 2,500 court hearings and 174 million euros he had paid in laywers' bills.

"Berlusconi has been judged by so many magistrates and more recently the supreme court that it is difficult to believe that all of them were biased in analyzing these crimes," he said.

COLD WAR CHORD

Nevertheless, the media mogul's accusations strike a chord with many voters in a country where politics is still colored by beliefs dating back to the Cold War, when for 50 years the Christian Democrat party ruled, and the most powerful communist party in the West was in permanent opposition.

The 1992-1994 "Bribesville" investigation into massive political graft swept away that old order, including the Christian Democrats.

In his address last week, Berlusconi called that probe the "abnormal action" of magistrates who had destroyed a political bulwark against communism to hand power to the left.

Ironically, he owes his rise to Bribesville, because he filled the vacuum left by the Christian Democrats. He still paints himself as an anti-communist warrior, more than 20 years after the Italian Communist Party was dissolved.

This has strong resonance for rightist voters who still bitterly remember Bribesville, especially the dozens of suicides of suspects and the way prosecutors threw people into jail to elicit a confession, which many judges now concede was an abuse.

Whether or not you buy Berlusconi's line, there is widespread agreement that Italy's judicial system is a mess.

The system is notoriously Byzantine and subject to huge delays for both criminal and civil cases, the latter seen as a significant disincentive to foreign investment.

There is a backlog of about 9 million cases. A civil case takes on average more than seven years to settle and a criminal case five. Even minor offences like falsifying a bus ticket or driving without a license are eligible for two appeals.

Lawyers say Berlusconi has contributed to the problem by passing laws for his own protection, including drastically shortening the statute of limitations for white-collar crimes, which gives defense lawyers an incentive to drag out cases.

"The judges are fine for Berlusconi when they do what he wants," said Roia, adding that his control of a media empire enables him to turn the public against his judicial enemies.

The greatest disagreement on reform is over demands to change the way magistrates are regulated, supervised and appointed. They currently govern themselves.

"We are extremely favorable to reforms. But when they speak of the reform of justice, they mean reforming the magistrates, and these are two different things," Roia said.

DISCREDITED POLITICS

Judges were "extremely opposed and skeptical" to giving up their constitutionally protected independence, because this could subordinate them to political power, he said.

"With our political class, unfortunately, there would be the risk that only poor people would be prosecuted and not white-collar criminals," he said. "In a different constitutional situation we would never have convicted Berlusconi."

Respected political analyst Angelo Panebianco said in a commentary in Corriere della Sera daily this week that at the heart of Italy's problems is an imbalance between a powerful judiciary and weak, discredited politicians.

The solution is to reinforce politics by restoring its legitimacy, but he supported one of the main reforms demanded by Berlusconi, the separation of the careers of prosecutors and judges.

Critics of the current system say the fact that judges and prosecutors have the same training, work in the same buildings and can transfer between the two professions, means that there is collusion that disadvantages the defense.

They also want to curb the powers of prosecutors, who run the police investigation of a crime, but Roia and others say the independence of prosecutors from political control is a strength.

Roia also said only around 2 percent of prosecutors and judges swapped careers because, among other things, they were required to move to a different region if they did so.

Wiget, an expert on white-collar crime, supports separating judges and prosecutors, but believes judicial reform would never be successful until politicians restore their credibility.

"They need to convince judges they are not motivated by reducing their powers or avoiding investigations against politicians," he said.

"The magistrates consider themselves as watchdogs of democracy, which is true to a certain extent, but there must always be a balance of powers."

While the debate rages on, Berlusconi vows to remain in play as Italy's most successful politician, despite the prospect of being expelled from parliament and locked up for a year under house arrest or doing community service. Only his age keeps him from going to jail.

Regardless of legal reform, that looks like an uphill struggle, even for the Harry Houdini of Italian politics.

(Additional reporting by Emilio Parodi; Editing by Will Waterman)