18.07.2013

Berlusconi: Judgement day looms

Toby Abse reports on an unexpected setback for Silvio Berlusconi

The long and complex saga of Silvio Berlusconi’s trials seems to be moving towards a much more rapid conclusion than either he or the entire Italian political class had believed possible. There is now a real chance of a definitive guilty verdict and a five-year ban on the holding of public office by the end of this month.

The Cassazione (supreme court) decided on July 9 that Berlusconi’s final appeal in his tax fraud case (over Italian TV rights for American films bought by his company, Mediaset) should be heard on July 30 rather than some time in the autumn or winter, as had been almost universally expected by those familiar with the long Italian legal summer holidays and the snail’s pace at which most of the Italian judicial system operates - even in cases not disrupted by Berlusconi’s infinite variety of delaying manoeuvres.

The problem in the Mediaset case was that, as a result of a law passed by Berlusconi’s government in December 2005, one part of the tax fraud offence for which he had been convicted would have been ‘timed out’ by the statute of limitations. By mid-September, the earliest date for a normal sitting of the Cassazione, the €4.9 million tax fraud committed in 2002 would no longer attract a criminal conviction. Therefore, only the €2.4 million fraud of 2003 would still stand. Since the appeal court judgement did not make it clear how much of the nominal four-year prison sentence was a punishment for the crime committed in 2003, as opposed to that of 2002, the Cassazione would in all probability have had to send the case back to the appeal court for a recalculation of the sentence. If, as was quite possible, the whole process took around 12 months - and one would have expected Berlusconi’s skilled legal team to do their utmost to ensure this - the remaining penalty, and thus the offence as a whole, would have been timed out. As with a number of previous offences, the former prime minister would have escaped without a legal penalty - not because of an acquittal, but on a purely technical issue concerning the date of the offence.

If any reader feels this scenario is a bit melodramatic, it is worth rehearsing the earlier history of the TV rights case. Berlusconi was originally charged in relation to this tax fraud in April 2005. At that stage the most serious aspect concerned a $368 million fraud in 1995-98. Within a few months, Berlusconi’s own government had passed a law altering the statute of limitations to ensure that a number of offences got timed out more rapidly than had been the case in the past - this piece of legislation is frequently cited as an example of Berlusconi’s ad personam legislation. By the time of his initial conviction in October 2012, the judges in the lower court had to acknowledge that even the €6.6 million fraud committed in 2001 was timed out, so that they could only find Berlusconi guilty in relation to 2002 and 2003 - even though the wording of the judgement emphasised the long-term and continuous nature of this very systematic fraud.

Knowing that the case might effectively collapse because of timing, the Cassazione therefore decided that Berlusconi’s appeal would be held before a tribunal that deals with urgent matters during the summer legal holidays. Whilst Berlusconi and his supporters have expressed outrage, reviving their usual shrill claims about two decades of judicial persecution, there is, as the Corriere della Sera pointed out, a 1969 law which instructs judges to speed up cases that are at risk of lapsing because of the statute of limitations.

Berlusconi’s principal concern in relation to this case is not the nominal jail sentence, which, given his age and lack of any previous convictions (despite his numerous trials for criminal offences), would in practice be transmuted into some form of house arrest. No, it is the five-year ban on public office holding. Although, as the example of Beppe Grillo and his Movimento Cinque Stelle (Five Star Movement - M5S) has recently demonstrated, it is perfectly possible to have almost total control over an Italian political movement without holding a parliamentary seat, exclusion from parliament would weaken Berlusconi’s negotiating position vis-à-vis other political forces and the loss of parliamentary immunity would leave him much more exposed in the ‘Ruby case’, in which he has an appeal pending against a seven-year jail sentence for sex with an underage prostitute.

Berlusconi’s Popolo della Libertà (PdL) has rallied behind him. Internal divisions, whether about the degree of support to give the ‘grand coalition’ (which includes some PdL ministers, but is unpopular with PdL hardliners), the merits of precipitating an early general election or the likely reversion from the failing PdL to the old, more successful brand of Forza Italia in the autumn, have been largely forgotten. As one leading female PdL figure memorably phrased it, “There are no hawks or doves: only hyenas”.

On July 10, the PdL paralysed parliament. Its original plan was to halt all parliamentary business for three days as a protest against the allegedly politically motivated decision of the Cassazione. This was clearly intended as a means of putting pressure on the judges and could indeed be construed as outright intimidation, not just public contempt both for the workings of the judicial process and for notions of the separation of powers enshrined in the Italian constitution. In the event parliament was suspended for three hours, not three days.

However, the most significant aspect of this whole episode was the collusion of most of the ex-‘official communist’-dominated Partito Democratico (PD), whose members voted for a suspension of parliamentary business. This performance by the PD was a total and utter disgrace, and M5S parliamentarians were absolutely justified in shouting “Slaves, serfs, buffoons!” at them. A minority of about 30 PD deputies either registered an abstention or walked out of the chamber before the vote. Whatever their private motivations, their refusal to endorse the parliamentary suspension was the honourable course of action; indeed it would have been even better if they had joined M5S and the soft-left Sinistra Ecologia Libertà in voting against it rather that merely abstaining. It was particularly regrettable that some figures on the PD’s left - the so-called Young Turks - have been so eager to associate themselves with this collusion with Berlusconi.

The ultimate test for the PD will, of course, be how it responds to any future Cassazione decision to deprive Berlusconi of public office. Such a ban would have to be ratified by the Senate, of which Berlusconi is currently a member, and the ballot would be secret. After the episode in which 101 traitors from the PD failed to vote for Romano Prodi in a secret presidential ballot, it is hard to be certain whether the PD senators would maintain party discipline if massive financial incentives were secretly offered to individuals who broke it - although not to do so would be collective suicide for a party whose rank-and-file members and voters would show no mercy if parliament protected Berlusconi from the first serious judicial punishment he has ever received.

Whilst Berlusconi has attempted in various ways to secure a last-minute delay in the hearing, all indications at the moment of writing are that July 30 will indeed be the day of judgement and Franco Coppi, Berlusconi’s lawyer, is urging him to show as much public restraint as he can in the period leading up to the verdict, to avoid antagonising the panel unnecessarily. Since Libero, one of the daily papers under Berlusconi’s effective control, has already branded the judges of Cassazione “state bandits”, as well as irritating president Giorgio Napolitano by raising the possibility of a presidential pardon for Berlusconi on its front page, Coppi’s sage advice seems to have come rather too late in the day.

Nonetheless, as anybody familiar with the Cassazione’s record over the years in cases involving neo-fascist bombers and leading Mafiosi, about whose guilt lower courts had not a scintilla of doubt, knows, it can hand down some very strange verdicts. Unfortunately Berlusconi’s extremely enigmatic statements some months ago about having a friendly judge in Berlin may yet prove to have some foundation.