Silvio Berlusconi: felon

Italy: Heading for jail?

Can it really be true that ‘the law is equal for all’? Silvio Berlusconi may yet have more tricks up his sleeve, writes Toby Abse

On Thursday August 1, five judges sitting in a special summer panel of the Cassazione (supreme court) made a momentous contribution to Italian history, which Beppe Grillo, the leader of Movimento 5 Stelle (5 Star Movement - M5S), has compared to “the fall of the Berlin Wall in 1989”. They turned the 76-year-old Popolo della Libertà (PdL) leader and three-times former prime minister, Silvio Berlusconi, into a convicted criminal in the eyes of the Italian legal system - which, in contrast to Anglo-American jurisprudence, presumes the innocence of all defendants until they have exhausted all possible appeals.

As many both in Italy and abroad have remarked, it was particularly fitting that Berlusconi, like the leading American Mafioso, Al Capone, before him, was finally convicted for tax evasion. By Berlusconi’s standards it was a relatively minor tax fraud of €7.3 million - although the elaborate system he devised, under which the price of the rights to the numerous American films shown on his Italian TV stations was artificially inflated, had deprived the Italian exchequer of hundreds of millions of dollars over a very long period: the other charges were ruled to be ‘out of time’ under the statute of limitations.

Whilst it is almost universally accepted that Berlusconi’s age and lack of previous criminal convictions mean that he will not have to serve any of the nominal four-year jail sentence, which will in practice be commuted to a year of either house arrest or community service, this definitive conviction came as a massive shock to Berlusconi. Never before in his extremely murky business and political career, spanning over half a century - starting with enormous Milanese property developments financed by what was widely presumed to be the money-laundering of Sicilian Mafia fortunes gained from heroin trafficking - has he had to face the full force of the law. Berlusconi has, of course, become very familiar with the Italian criminal justice system in more recent decades, having been a defendant in 18 criminal cases over the last 24 years.

Contrary to Berlusconi’s transparently mendacious claims, this has not been an instance of judicial persecution of an innocent man. He has only been genuinely acquitted in terms of Italian law on four occasions - on the somewhat debatable basis that he was too wrapped up in his prime ministerial or political responsibilities to be personally aware of criminal actions committed by subordinates in his business empire. However, he has usually escaped a definitive conviction not by the force of legal argument, but by a variety of very dodgy expedients, including amnesties, statutes of limitations and, most farcically of all, in the case of two charges of false accounting, by passing a law turning a serious criminal offence into a civil misdemeanour now treated with roughly the same degree of severity as a minor motoring offence in the UK.

The view - most notably associated with the former magistrate, Antonio Di Pietro - that Berlusconi entered politics in 1993-94, immediately after the downfall of his principal political patron, former socialist prime minister Bettino Craxi, to avoid bankruptcy and imprisonment is more than plausible. And two decades of being Italy’s dominant political figure - leader of the main centre-right force when not prime minister and, according to many calculations, Italy’s richest man - gave Berlusconi a false sense of security. He came to hold a belief that those judges or witnesses could be bribed. That or they could be threatened: economically with the loss of employment, an end to any hope of career advancement in the state sector or the media and show-business worlds. Failing that, given Berlusconi’s links since university days to Palermo-born Marcello Dell’Utri, currently appealing against a Mafia conviction, there could be even more dire consequences.

Two showmen

In the latest case, he assumed that by hiring Franco Coppi, a veteran defence lawyer with a very high professional reputation for wit, intelligence and astonishing mastery of legal technicalities, who had kept Giulio Andreotti out of prison on rather graver charges than the one Berlusconi was facing, he had overcome any possible disadvantages of relying on Niccolò Ghedini, whose 16 years of acting as Berlusconi’s in-house defence counsel may perhaps have left many of the judiciary very weary of his rather predictable courtroom manoeuvres and excessive emotional identification with his main client. Whilst Berlusconi was undoubtedly disappointed when Coppi patiently explained to him that there was no way of postponing the day of judgement until the point in the autumn when the five judges on the summer panel would be replaced by their Cassazione colleagues who usually handle tax fraud cases (a set of judges who had proved far more amenable to Berlusconi’s claims that he was too busy running a political party or a government to notice his subordinates’ underhand dealings), he still assumed that the ingenious Coppi would manage to find some flaw in the lower court’s verdict sufficient to secure a retrial that would ‘time out’ at least his 2002 tax fraud offence, and with any luck the 2003 one as well.

Coppi’s confident attitude during the first two days of the Cassazione trial - nonchalantly eating a substantial restaurant meal during the lunch break, in marked contrast to the nervous Ghedini, who despite his years of experience in handling Berlusconi’s court cases found himself acting as Coppi’s junior, and was far too busy regularly reporting to Berlusconi on his mobile phone, or rushing frantically round to the tycoon’s Roman residence to give more detailed explanations, to even eat a sandwich - led Berlusconi to assume he had little to fear. Perhaps this was the case of one showman being misled by another.

Whilst the legal star, Coppi, undoubtedly put up a superior courtroom performance to the servile hack, Ghedini, ultimately this was for him a professional contest like any other and, although Coppi was playing to win, the possibility of defeat was not psychologically devastating, and one suspects any subsequent references to possible appeals to the European Court of Human Rights were just a ploy to humour a disappointed and extremely irritable client, rather than a considered legal judgement on the part of a man lacking Ghedini’s partisan blinkers.

It needs to be underlined that, despite Berlusconi’s subsequent rhetoric, the verdict was by no means a foregone conclusion. The judges retired to their chambers at midday on August 1, and only emerged with a verdict more than seven and a half hours later, by which time not only the defendant and the international media, but also Italy’s president and prime minister were getting somewhat impatient. The timing would suggest that the discussion was long and animated, with some initial differences of opinion amongst a panel with a wide variety of legal backgrounds, who, far from working together as a team on a regular basis on previous occasions, had been thrown together more or less at random on the basis of their availability during this year’s holiday season.

In the run-up to the hearing, Coppi had managed, insofar as it was humanly possible with such a wilful character as Berlusconi, to persuade his client to refrain from his habitual tirades of abuse against each and every member of the judiciary, as such outbursts would have a negative impact on any waverers on the panel. Once he was found guilty, however, Berlusconi reverted to type. A few hours after the sentence, he issued a nine-minute video that was shown on all Italian television channels, in which, far from accepting the verdict, he asserted his total innocence, and ranted and raved against the vast judicial conspiracy against him. Although the television journalists may have been genuinely disappointed by Berlusconi’s refusal to hold a press conference - at which he might have had to answer questions - or to grant any interviews in the wake of the verdict, their willingness to allow a convicted criminal to make such an unchallenged and unedited broadcast to the nation, shown not just on his own three notoriously subservient channels, but on state television too, is more an indication of his continued hegemony over Italy’s media, and indeed over the coalition government, than of the journalists’ professional hunger for a topical story.

Berlusconi has shown no real sign of calming down in the days since the video. By the following evening, Berlusconi had instructed his parliamentarians to demand a presidential pardon for him within the next few days. His approach to this matter appears to most observers to be completely counterproductive. According to Italian convention, requests for a pardon are normally expected to come from convicted criminals, their close relatives, their lawyers or their guardians. Not from the heads of parliamentary groups in the Chamber and Senate. Moreover, some signs of at least apparent repentance are usually expected, and the criminal is usually expected to have served at least some part of their sentence. In addition, it is highly unusual to grant a pardon to a criminal with other trials pending, including convictions in the lower courts, against which an appeal is being made - such as the seven-year sentence against Berlusconi for having sex with an under-age prostitute in the Ruby case.

Civil war

What amounts to very public blackmail of the head of state will make it very difficult indeed for president Giorgio Napolitano to grant such a pardon without creating a major scandal. No doubt the president himself may have been disappointed with the judges’ intransigent defence of legality and the much violated principle that “The law is equal for all”, displayed in every Italian courtroom.

After all, what about the effect of the verdict on the stability of Enrico Letta’s ‘grand coalition’ government? This is a government born of Napolitano’s personal desire to replicate the ‘strange majority’ led by Mario Monti that governed Italy in 2011-13, and to sabotage any possible deal between the centre-left Partito Democratico (PD) and M5S, of the kind that former PD leader Pierluigi Bersani had sought between February and April this year. When PdL coordinator Sandro Bondi - a former minister of culture in one of Berlusconi’s governments - threatened the president with “civil war” on August 3 if no pardon was granted to Berlusconi, any leniency in the near future became even more improbable.

It is hard to see how Berlusconi’s address to a national demonstration in Rome on August 4, directed against the magistrature as a whole, can really be seen as a sign of any increased moderation on the convict’s part. Yes, the fraudster called for the continuance of Letta’s coalition government and refrained from explicitly attacking Napolitano by name, but Berlusconi also denied that the PdL was being “irresponsible” - the adjective used by Napolitano in rebuking Bondi for his “civil war” proclamation.

At this point, we also need to differentiate between, on the one hand, Giorgio Napolitano and Enrico Letta, and, on the other, the PD in general in terms of their reaction to Berlusconi’s antics since his conviction. Napolitano has always acted as Berlusconi’s protector, which is why PdL parliamentarians were such enthusiasts for his re-election in April. Enrico Letta probably places excessive hope in the capacity of his uncle, Gianni Letta, one of Berlusconi’s most prudent, rational and courteous courtiers, to restrain his master’s limitless rage at the practical consequences of being treated as a common criminal.

(These consequences may well include his loss of the title of ‘cavaliere’ or ‘knight’, and his expulsion from the Italian Senate when the length of the ban on his public office holding is resolved after a further hearing at the Milanese appeal court, which in the Cassazione’s opinion miscalculated in setting it at five years. But Berlusconi’s passport has already been confiscated, rendering any possibility of future convivial weekends with his friend, Vladimir Putin, let alone fleeing the country in the manner of his hero, Craxi, utterly impossible, unless he resorts to expedients more usually associated with Nazi war criminals or Balkan warlords.)

However, the attitude of PD parliamentarians is rather different from that of Napolitano. Whilst most of them have a thoroughly obsequious attitude to the first former ‘official communist’ president of the republic, and take some pride in the fact that the current prime minister, and a large proportion of his cabinet, came from their own party, there is a limit to how much blatant provocation from Berlusconi, or his minions in the PdL such as Bondi, they can be expected to stomach. They know only too well that most of their rank-and-file members detest the old delinquent with far more fervour than the PD’s cynical professional politicians, many of whom have spent the last 20 years compromising with him - especially the 101 traitors who failed to vote for Romani Prodi in April’s presidential contest.

Therefore, while it is more than likely that the coalition will survive until the autumn, as parliament is due to close for a three-week summer holiday on August 9, it is increasingly improbable that the Letta government will last for the 18 months that the premier and Napolitano have often claimed would be necessary to carry out the allegedly essential reforms, including controversial modifications to the constitution - vigorously opposed by M5S and the soft-left Sinistra Ecologia Libertà - that they have in mind.

Although there can be no doubt about Letta’s intelligence or his capacity to make the very most of an extremely poor hand in negotiating with his European counterparts, particularly Angela Merkel, his first hundred days as premier have been most notable for repeated postponements of crucial economic and financial decisions on urgent matters such as a projected increase in VAT, or the collection of further instalments of IMU (a property tax on all freeholders), at a time when Italy’s public debt and budget deficit appear to be rising rapidly, and youth unemployment has reached nearly 40%.