01.11.2012
Berlusconi: Another guilty verdict
If past form is anything to go by, Silvio Berlusconi will not serve a day of his latest jail sentence, writes Toby Abse
Whilst the assessment of the Italian weekly Famiglia Cristiana - “Berlusconi: game over”1 - is hardly justified, especially in the light of his subsequent threats about bringing down the Monti government, presumably over the 2013 budget,2 the October 26 verdict sentencing Silvio Berlusconi to four years imprisonment for tax fraud is a serious blow to the 76-year-old former premier’s political prospects.
It should be emphasised that it is more than 14 years since he was last given a guilty verdict carrying a potential prison sentence; even in his recent trial over the massive bribe he was alleged to have given to David Mills for bearing false witness in an earlier case, Berlusconi escaped the only logical verdict (since Mills had already been convicted of receiving a bribe from Berlusconi, all the evidence suggested that Berlusconi had paid such a bribe) because of a particular, arguably slightly bizarre, calculation about precisely when the statute of limitations kicked in.3
The three earlier verdicts carrying a prison sentence all date back to 1997 and 1998, a period when the centre-left was in government and a weakened Berlusconi, whose first seven-month premiership in 1994 had ended in disaster, could probably have been finished off politically, if not judicially, had it not been for the ludicrous antics of what was then the ex-‘official communist’ Partito della Sinistra Democratica and its leader, Massimo D’Alema. Keen to involve Berlusconi in projects for constitutional reform, the PSD blocked every attempt to bring in legislation about a conflict of interests between large-scale media ownership (Berlusconi is estimated to be Italy’s sixth richest man, largely as a result of his media empire) and high political office. Needless to say, once Berlusconi realised that he could not push through parliament changes in Italy’s criminal justice system that would have been to his direct personal advantage, he pulled the plug on D’Alema’s pet schemes. The verdicts of the lower courts in the Medusa case, the Guardia di Finanza corruption case and the ‘All Iberian’ case (the one that involved the payment of 23 billion lire to the Socialist Party leader and former prime minister Bettino Craxi in return for favourable laws about commercial television ownership) were all reversed on appeal and Berlusconi will undoubtedly be hoping for a similar outcome on this occasion.
It is a testament to the persistence of the Milanese magistrates involved in the latest Mediaset case that the October 26 verdict was ever reached. The investigations that led to the case being brought started in June 2001. Berlusconi was first charged in July 2006 on three counts relating to Mediaset’s purchase of TV rights for American films: false accounting, embezzlement and tax fraud. In September 2008 the trial was suspended because of the lodo Alfano - a law which gave legal immunity to the prime minister and other leading state officials. That suspension lasted until the lodo Alfano was declared unconstitutional in November 2009. There was a second suspension between April 2010 and February 2011 because of the law on the ‘legitimate impediment’ - another of Berlusconi’s made-to-measure laws, which allowed the prime minister to claim that official duties prevented him from making court appearances. That law was subsequently declared by the constitutional court to be largely unconstitutional, even if premiers were deemed to be entitled to some limited protection.
Nor were the premier’s acts of sabotage in relation to his own trial confined to devising ever more ingenious means of avoiding court appearances. They also included ways of decriminalising the alleged offences. Thus, in January 2007, the magistrates had to abandon two out of the three original charges in the Mediaset case because Berlusconi had in the meantime got parliament to pass two laws that affected the trial, one decriminalising false accounting and another shortening the period before the statute of limitations kicked in (the so-called prescrizione breve). Moreover, the revised version of the statute of limitations meant that, although an enormous $368 million tax fraud had been discovered, Berlusconi is only criminally liable for $7.3 million at the tail end of the scam: the far more massive frauds of the 1990s can no longer be pursued by the courts.
Whilst judge Edoardo D’Avossa’s assessment in his verdict that Berlusconi possessed a “natural capacity to commit crime, as shown by his pursuit of the criminal plan” obviously refers to the precise mechanisms by which Berlusconi and the American-Egyptian Frank Agrama inflated the prices of the TV rights of American films sold to Mediaset, the systematic way in which Berlusconi sought to obstruct the trial lends no credence to his predictable claim that “This is a political, intolerable sentence”: no defendant believing that the case against him was genuinely weak would have devoted such enormous energy to trying to ensure that no verdict was ever reached, as opposed to refuting the accusations in the courtroom.
Last week’s nominal four-year sentence will also be reduced to one year under a 2006 measure that stripped three years off sentences for crimes committed before that date. Although this law was justified by reference to the overcrowding in Italy’s prisons, it is extremely hard to believe that Berlusconi’s motives in supporting it had anything to do with a generalised humanitarian concern for the fate of Italy’s petty criminals. However, as Berlusconi is doubtless only too aware at the moment, there is one catch in this useful piece of legislation. If Berlusconi were to be found guilty in the ongoing trial in what is popularly known as the caso Ruby (Ruby case), in which he is accused of paying for the services of an under-age prostitute, and were given a sentence of more than two years which is not revoked or reduced on appeal, the original four-year sentence in the Mediaset case would be restored, assuming that it too had not been revoked on appeal.
Nonetheless, given Berlusconi’s previous record of time-consuming appeals to both the second-rank appeal courts and the Cassazione (supreme court), it seems highly improbable that he will ever be put behind bars on the Mediaset charges. As far as this tax fraud charge is concerned, the statute of limitations will start to apply in July 2013 and in Italian law the Mediaset sentence does not become definitive until all appeals to both the ordinary appeal court and then the Cassazione have been exhausted.
Berlusconi has been a defendant in 17 criminal trials since 1989.4 It is worth noting that, contrary to his protestations of innocence and frequently repeated claims about judicial persecution, only on four occasions has he actually been (rightly or wrongly) acquitted - far more often he has benefited from the decriminalisation of the offence, amnesties or changes in the statute of limitations. Massimo Giannini in La Repubblica has calculated that Berlusconi has passed “at least 18 ad personam laws” over the 18-year period of his political career.5
Arguably the one trial that could seal Berlusconi’s public disgrace is not the Mediaset. The precise details of Berlusconi’s Mediaset tax fraud are incomprehensible to the bulk of the Italian population - a large group of whom, such as shopkeepers, small businessmen and the self-employed, frequently defraud the tax authorities themselves, albeit on a much lesser scale. No, it is the Ruby case which has received far more publicity both in Italy and abroad than the Mediaset ever did.
A verdict in the caso Ruby is expected before Christmas and the vast majority of commentators believe that things are looking bad for Berlusconi, despite his enormous and continuing financial ‘generosity’ towards many of the women called upon to give evidence. Much of their courtroom testimony in Berlusconi’s favour is completely contradicted by wiretaps involving the very same witnesses and in addition a significant minority of those who attended Berlusconi’s ‘bunga bunga’ parties were prepared to swear on oath that these parties were not the “elegant dinners” with some innocuous singing and dancing that the former premier claims them to have been.
So far Berlusconi’s followers in his Popolo della Libertà party (PdL) have shown great loyalty to their embattled leader, who is now lashing out in all directions - not just at the magistrates, but also at prime minister Mario Monti and the European Union leaders, particularly Angela Merkel.6 Arguably this is because they have no credible alternative; when Lega Nord leader Umberto Bossi was swept up in a corruption scandal earlier this year, the Lega Nord could turn to former interior minister Roberto Maroni to attempt a fresh start, but the PdL possesses no comparable figure.
The one PdL politician who seemed for a long time to have some credibility and a power base of his own, Roberto Formigoni - the president of Lombardy since 1995 and the best known representative of the hard-line Catholic movement, Comunione e Liberazione (CL) - has fallen into disgrace in a massive corruption scandal centring on kickbacks for the award of regional health contracts to private hospitals and foundations linked to CL. In Lombardy the vast majority of the regional councillors, quite a number of whom were facing a variety of criminal proceedings, have very recently tendered their resignations after a further scandal that saw one of them closely linked to the Calabrian mafia, the ’Ndrangheta. Unsurprisingly Formigoni is a lame-duck president, whose political career is now measured in weeks.
For his part, Angelino Alfano, the PdL secretary since November 2011, is totally dependent on Berlusconi, despite his quite understandable annoyance at his patron’s tendency to hold him personally responsible for every disaster that is currently befalling the PdL. Moreover, Alfano’s position as a Sicilian lieutenant of Berlusconi’s - already undermined by the PdL’s defeat in the Palermo mayoral contest in May - was further weakened following the party’s disastrous performance in the October 28 Sicilian regional election.
Nationally the PdL is badly split between pro-Berlusconi hawks and pro-Monti doves. The latter consists of the likes of Franco Frattini, who is less than keen on Berlusconi’s populist, anti-EU, anti-austerity line. This wing could not be depended upon to vote against Monti over the forthcoming budget, so if Berlusconi goes beyond verbal threats, he is likely to split the PdL parliamentarians rather than bring the government down.
Notes
1. www.famigliacristiana.it/informazione/news_2/articolo/berlusconi_40201.aspx.
2. See Corriere della Sera October 28.
3.The statute of limitations means that a sentence cannot be enforced if the case has ‘timed out’: ie, if the sentence is handed down beyond a certain time after the offence was committed.
4. Berlusconi himself often cites much higher figures, plucked out of thin air, in a bid to paint himself as a victim of a campaign of judicial persecution.
6. Berlusconi’s attack on the Monti government’s austerity policies coincided with No Monti Day (October 27), a series of events organised by the far left, the biggest of which took the form of a demonstration in Rome (150,000-strong according to its organisers and 20,000-strong according to the police). However, the emphasis of his polemic is much more nationalistic and he is clearly competing for electoral space with the far-right Lega Nord and Beppe Grillo’s populist Movimento Cinque Stelle, not with the left and Rifondazione Comunista. One of the interesting aspects of No Monti Day was the reappearance of Fausto Bertinotti, the former Rifondazione leader. He participated in the march, saying he welcomed the Rome demonstration and hoped for a European general strike - an apparent repudiation of his longstanding associates in Sinistra Ecologia Libertà, who opposed the demonstration and seem ever closer to fusion, or at least a joint electoral list, with the ex-‘official communist’-dominated Democratic Party.