27.06.2013
Italy: Berlusconi will never serve time
Toby Abse reports on the Ruby case verdict
Silvio Berlusconi’s international reputation is now lower than it has ever been following his conviction on June 24 for paying for sex with an under-age prostitute.1 Three female judges found him guilty not only of having sex with Karima El Mahroug - popularly known by her stage name of ‘Ruby, the Heart Stealer’ (Ruby Rubacuore) - but also of abusing his prime ministerial office by making telephone calls to a Milan police station in May 2010 to have her released from custody on a theft charge. He claimed she was the niece of the Egyptian president, Hosni Mubarak, and her immediate release was called for in the national interest in order to avert a major diplomatic incident.2
The second charge was in legal terms the more serious one, accounting for the greater part of the combined seven-year jail sentence imposed for the two offences, along with a lifetime ban from public office. It should be stressed that the prosecution had only asked for a sentence of six years, so that the additional year was a very clear indication of the judges’ severe disapproval of Berlusconi’s conduct. Although we do not as yet have the judges’ motivating statement, the fact that the brief sentence read out in court named 32 defence witnesses to be investigated for perjury suggested that the judges felt that Berlusconi had aggravated his original crimes by systematically bribing witnesses.
The Ruby verdict came a few days after the constitutional court (the Consulta) rejected Berlusconi’s attempt to overturn a four-year prison sentence imposed upon him for a tax fraud connected with the film rights for his television channels. He had claimed that the lower courts had not taken account of the “legitimate impediment” of a cabinet meeting that prevented him from attending a hearing. The Consulta’s judgement had contemptuously pointed out that the cabinet meeting in question was not urgent and had only been called on that particular day after Berlusconi had already agreed to the date of the contentious hearing. Berlusconi’s final appeal in the fraud case to the Supreme Court (Cassazione) is scheduled for some time in the autumn - it is worth noting that he already faces a five-year ban on holding public office if the Cassazione upholds the verdict of the two lower courts.
Any government linked to such a discredited figure is bound to have little credibility in the event of any further general crisis of the euro zone of the kind experienced in summer/autumn 2011 or indeed any dispute between Italy and the rest of the European Union, especially Germany over fiscal compacts or budget deficits. Elsewhere in the EU, such a verdict would signal the end of a political career - the cases of Dominique Strauss-Kahn and the more recently disgraced Czech prime minister, Petr Ne?as, are an indication that one can no longer talk of Anglo-American exceptionalism in this regard.
Intransigence
However, Berlusconi has absolutely no intention of leaving the political stage. He responded to the verdict by saying: “An incredible sentence has been issued of a violence never seen or heard of before, to try and eliminate me from the political life of the country … Yet again I intend to resist against this persecution because I don’t want in any way to abandon my battle to make Italy a country that is truly free and just.”3
The explanation for this intransigence is partly technical. Italy’s legal system allows a defendant an automatic right to two appeals - the first to a court in the relevant geographical district, and the second to the supreme court (Cassazione). This process can go on for years, during which defendants retain their liberty, with imprisonment only following a definitive judgement in favour of the prosecution by the Cassazione. It is the complete opposite of the British system, in which those convicted of a serious criminal offence appeal against the conviction from jail. Obviously this lengthy appeal process is extremely expensive and most of those convicted do not have the resources to follow it - the average defendant accepts the outcome of the initial trial, even if a miscarriage of justice has taken place. In short, what may have originally been devised as a safeguard for the innocent against arbitrary power in the hands of state officials is, in practice, a guarantee of virtual impunity for the rich, who are as likely to be Mafia chiefs as superficially respectable businessmen. This makes a complete nonsense of the declaration prominently displayed in every Italian court room: “The law is equal for all”.
Berlusconi is one of the wealthiest men in Italy - indeed at certain points over the last two decades he may, according to some calculations, have been the wealthiest of all - and he has had an exceptional opportunity to play the system, but his impunity cannot be attributed to purely economic factors. It is generally believed that his decision to enter politics in the immediate aftermath of the ‘Tangentopoli’ (‘Bribesville’) scandal of 1992-93 was designed as a means of escaping jail, at a time when numerous corrupt businessmen with similar close connections to politicians such as Berlusconi’s own patron, former Socialist prime minister Bettino Craxi, found themselves being incarcerated.
Certainly, once Berlusconi became prime minister he was in a position both to devise laws in his own favour (such as the Lodo Schifani and the Lodo Alfano - the decriminalisation of false accounting and the reduction of the time required for the statute of limitations to take effect) and to have plausible excuses for avoiding court appearances on account of cabinet meetings or parliamentary sessions, etc. Thus. he was able to drag out cases for years until the statute of limitations allowed him to escape a definitive conviction, even if he was not always actually acquitted, as The Economist’s journalists have rightly brought to international attention in a number of famous special issues largely devoted to Berlusconi. This then was the additional impunity offered to Berlusconi as prime minister in 1994, 2001-06 and 2008-11, as the main pillar of Mario Monti’s ‘strange majority’ in 2011-13 and, to a lesser extent, as prime minister in waiting during his periods in opposition.
Implications
Although Berlusconi did much better than forecast in the February 2013 general election, he did not win it, and from then on the protection of the Partito Democratico (PD) became an urgent necessity for him in the light of his rapidly escalating judicial problems. Berlusconi undoubtedly saw the possible election of Romano Prodi as president as fatal to his chances of escaping judicial punishment - something to be stopped at all costs - and he regarded a grand coalition between the ex-‘official communist’-dominated PD and his own Popolo della Libertà as a good insurance policy.
The election of Prodi, a former prime minister and European Commission president, was perfectly possible and it seems reasonable to suppose that Berlusconi, who has form in terms of buying judges, witnesses and parliamentarians, played a substantial role behind the scenes, resulting in the re-election of Giorgio Napolitano as president of the republic and the formation of the grand coalition government of Enrico Letta, in which the PD and the PdL are the principal partners. Whether this involved direct financial inducements, promises of future political office or some combination of the two will probably never be known.
In recent weeks, as Beppe Grillo’s Movimento Cinque Stelle (M5S) has started to fragment,4 former PD secretary Pierluigi Bersani has tried to revive the notion of an ‘alternative majority’ - presumably made up primarily of the PD, the soft-left Sinistra Ecologia e Libertà (SEL) and M5S dissidents, with perhaps some centrists or moderate defectors from the PdL to make up the numbers. However, it is very unlikely that the PD will have sufficient political courage to pull the plug on the new government of Enrico Letta - if the grand coalition falls, it is far more likely to do so because of Berlusconi and the PdL leaving it.
If Berlusconi manages to maintain some measure of psychological equilibrium, he would break up the coalition over an economic issue such as the IMU (a property tax levied on every house), the projected increase in VAT or a more general economic and financial dispute between Italy and Germany over public spending and the planned size of the budget deficit - all questions over which he could make a plausible populist, anti-austerity appeal. This is more likely to happen than the collapse of the coalition over the Ruby verdict or any issue directly or indirectly related to Berlusconi’s own judicial travails, such as the alleged weaknesses of the Italian justice system.
However, to bring down the government and attempt to precipitate a general election, in the hope of being returned as prime minister once again and challenging the judges to do their very worst, is a very high-risk option. Firstly Napolitano might allow an ‘alternative majority’ to form rather than authorise an early general election - there is a clear precedent in Napolitano’s backing of the Monti government in 2011. Secondly, Berlusconi might lose the election itself after alienating the PD and further polarising the electorate to an extent that might make further compromise politically impossible in its aftermath.
To return to the immediate situation, Berlusconi’s main concern is to avoid an eventual ban on holding public office - whether it is for five years if the Cassazione upholds the fraud case verdict in the autumn; or for life if higher courts uphold the Ruby verdict. Holding some position in parliament not only increases his overall influence, but also serves as a barrier against rapid imprisonment, since to imprison a deputy or senator requires a vote by their peers authorising an arrest and, more often than not, parliamentarians have rallied around their own, however corrupt or criminal they might be.
Furthermore, Berlusconi’s chances of being imprisoned at some stage have been reduced by a law brought in by one of his governments, which greatly increased the possibility of alternative non-custodial punishment for elderly defendants - Berlusconi is already 76 and may well be a couple of years older by the time he has exhausted the two-stage appeal process in the Ruby case. A definitive conviction in the fraud case in the autumn would complicate things to some extent, since the non-custodial option was primarily designed for elderly defendants with no previous convictions.5 However, it is hard to imagine Berlusconi suffering a fate comparable to Stuart Hall and being jailed for a sexual offence in his old age.
The only extremely remote circumstance in which one might envisage Berlusconi’s incarceration is if any of the allegations by Mafia pentiti (supergrasses) about his supposed role in the Mafia killings of judges in Sicily in 1992 or the deadly Mafia bombing campaign in Florence, Milan and Rome in 1993 were ever independently substantiated. Even here it is hard to imagine Berlusconi’s former right-hand man and co-founder of the original Forza Italia, Marcello Dell’Utri, seeking to incriminate his old and extremely generous friend. Dell’Utri, whose twin brother has served time resulting from his Mafia connections, was also convicted of Mafia-related crimes by lower courts - verdicts against which he is appealing. However, Dell’Utri is far too hardened to make any panic-stricken confession l
Notes
1. At this stage Ruby was 17 and Berlusconi 73. Prostitution by a woman under 18 is a crime under Italian law.
2. Ruby is in fact of Moroccan, not Egyptian, origin and it is hard to imagine that Berlusconi ever believed this story, even if it may have been a self- aggrandising fantasy of the teenager’s own invention rather than his own concoction. What was even more absurd was that the Italian parliament elected in 2008 voted by a majority to affirm that Berlusconi sincerely held such a belief at the time of his phone calls to the police station.
3. Translation taken from L Davies, ‘Seven years for Berlusconi - but two to argue about it’ The Guardian June 25.
4. Nonetheless, it still has occasional triumphs, easily taking Ragusa’s mayoralty this week in the second, run-off, ballot against the centre-left candidate. This may have been part of a general anti-establishment mood in Sicily, where the major parties, including the PD - some of whose leaders came from a Christian Democratic rather than communist background - are frequently seen as corrupt and linked to the Mafia. In Messina a campaigner against the planned bridge to the mainland with an environmentalist and pacifist stance beat the centre-left candidate, reversing the outcome of the first round, when the centre-left candidate failed by a whisker to be elected, gaining 49.9%. The leadership of the Messina PD had been implicated in a recent local corruption scandal.
5. Although Berlusconi undoubtedly had his own circumstances very much in mind when the law was devised, its principal political beneficiary so far has been Cesare Previti, defence minister in Berlusconi’s first government in 1994 and his main legal advisor before their entry into politics in 1994. Previti was convicted for giving massive bribes to judges in a case centred around a dispute over the ownership of the Mondadori publishing empire. This dispute gave rise to the interminable and extremely bitter feud between Berlusconi and Carlo De Benedetti, the owner of La Repubblica and the influential news weekly L’Espresso, who lost out as a result of Previti’s bribery - bribery almost universally presumed to have been carried out on Berlusconi’s behalf, although the tycoon has never been convicted of authorising it in a court of law.