|
There follows
a non-exhaustive summary of a series of legislative actions implemented by
the 3 Berlusconi governments (1994; 2001-2006; 2008-2011). It should be made
clear that numerous ministers, undersecretaries, members of parliament and
local administrators were for many years or are at present employees of
companies owned by Silvio Berlusconi, his lawyers, assistants, personal
doctors, dentists, health advisors and image specialists, advertising
experts, showgirls, presenters and singers from firms involved in TV
productions. And this over and above the enormous degree of control
exercised by the same person over new reporting and the moulding of public
opinion, through commercial television (ownership of 3 national networks),
publicly-owned television (at least 2 RAI channels) which in Italy comes
inevitably under governmental control and through the press (at least 3
national daily papers and several magazines - generally "popular"
and scandal-seeking, weekly or otherwise).
To give complete inventory of all the legislative measures (covering many
fields) which contribute to an understanding the political phenomenon of
"Berlusconismo" would be unfeasible in a short article. For
further details the reader is referred to the work of the few Italian
journalists who retain a spirit of independence (for example Marco
Travaglio, Peter Gomez and Giorgio Bocca) together with various foreign
observers sensitive to the significance of these events.
Here our intention is merely to outline the great variety of means and
measures that have been employed solely in pursuit of the private interests
of an individual (Silvio Berlusconi) or of small groups of powerful people
who have chosen to subject themselves to him. It should be remembered that
amongst these there are many influential self-professed politicians of the
centre-left who - for reasons of servile compliance or Machiavellian
perversion - have often promoted legislative proposals or taken up positions
which clearly served the rise and maintenance of Berlusconi's power.
It should also be noted that Silvio Berlusconi's ascent also drew strength
from a particular Italian cultural conflict, which happens to provide
fertile ground for the growth of a corrupt populist regime; this cultural
seed-bed has been untiringly manured and cultivated for the purpose of
creating a collection of deformed and private fantasies (individualism,
egocentricity and a love of mass-media protagonism, the spectacularization
of the private, the omnipresence of football as a surrogate for communal
existence, a lack of political principles, anti-rationalism and a dislike of
reasoning, esoteric and personality-dominated television, occultism,
machismo, opposition to the State, the idolizing of deviousness, the "necessity"
of favouring and promoting allies and associates, sexual obsessions,
generalized indifference, the use of bad language, uncritical nationalism
…) which have held in check many ideals of community and public life.
Exploiting historical vices which are widespread in the "Italian
mentality", and in fact making a point of amplifying, reinforcing and
publicly parading them through use of the mass media, Silvio Berlusconi has
given a progressively larger role to sentiments that twenty years ago no one
would have dared express. Beside the gradual erosion of the critical
faculties of those already inclined (through indolence, selfishness, lack of
knowledge of our historical and cultural inheritance) to neglect civic
duties, with the willing assistance of ministers of justice, the economy,
culture and education, this jack-of-all-trades president has undertaken the
demolition of the constitutional architecture of the Italian Republic.
Repeated attacks have been unleashed in particular against the judiciary (notwithstanding
the traditional separation of powers); the schools, seen as dens of
communist sedition against the government (and of layabouts) and feared as
the very breeding-ground of critical thought; Europe, portrayed as a
dead-weight or a useless bureaucratic obstacle to the natural expression of
the people's will (as well as a cove of Masons and homosexuals); the rest of
the world, always ready to fall for the trickery of the Italian opposition
press; and lastly history itself, subject to an onslaught in the search for
murky nostalgic lessons, opaque demagogic expedients or indeed overtly
anti-libertarian suggestions.
Who is Silvio Berlusconi? Whilst respecting in their entirely the rights
guaranteed to each citizen by the Italian Constitution, we believe it is
only correct that it should be known that Silvio Berlusconi has been
suspected of…
1. Drug traffickingIn 1983, during a drug-trafficking investigation, the
Guardia di Finanza recorded Berlusconi's telephone. Their report states,
"We received information that the renowned Silvio Berlusconi financed
an intense trade in drugs from Sicily to other regions of Italy and France.
The suspect is involved in large building projects on the Emerald Coast and
is alleged to use some of his companies as fronts". The inquiry
uncovered no criminal activity and was closed in 1991.
2. Lying under
oath with respect to the secret P2 lodge Silvio Berlusconi was first found
guilty by a law court in 1990: the Venice Court of Appeal found him guilty
of lying under oath to judges with regard to his membership of the P2. In
1989, though, there had been an amnesty which pardoned the offence.
3. Bribing tax
inspectorsBerlusconi was accused of paying bribes to Guardia di Finanza tax
inspectors, so as to reduce tax controls on four of his companies
(Mondadori, Videotime, Telepiù...). In the initial trial he was given 2
years 9 months imprisonment for all four bribes and no mitigating
circumstances were recognized. In appeal the latter were accepted and the
statute of limitations applied to three of the bribes. For the fourth (Telepiù),
he was acquitted on the basis of the "Formula of doubt"
("formula dubitativa", comma 2 art. 530 cpp).
4. Illegal
payments to Craxi (All Iberian 1) At the initial trial for illegal payments
to Bettino Craxi totalling 21 billion lire, paid through a company
registered abroad (All Iberian), he was sentenced to 2 years and 4 months
imprisonment. In appeal, the slowness of the trial led to prescription
according to the statute of limitations. This was upheld by the highest
court.
5. Fraudulent
accounting (All Iberian 2) Berlusconi has been charged with fraudulent
accounting at Fininvest. After many delays and skirmishes, debate is still
under way in the Milan court.
6. Fininvest
group, financial malpractice (All Iberian 3) The Milan prosecutors' office
has investigated the network of foreign companies of the Fininvest group (Fininvest
Group B), finding fraudulent accounting and practices which have generated
about a thousand billion lire of undeclared funds. Formal charges are
expected soon.
7. All Iberian
(2 & 3) Silvio Berlusconi and three ex-directors of Fininvest were
acquitted at the end of the All Iberian case which started in 1995. They had
been accused of accountancy fraud and false declarations, but according to
the new regulations regarding company law. It should be noted that this new
law was made by a government of which the Prime Minister was Silvio
Berlusconi himself. Source.
8. The Lentini
caseBerlusconi was charged with having made the decision to pay 6 billion
lire of undeclared funds from the accounts of the Milan football club to
those of the Torino football club, to be used for buying player Gianfranco
Lentini. The case is still being heard in the Milan court.
9. Medusa
cinematografica Berlusconi was accused of illegal operations during the
purchase of the company Medusa cinematografica, for not having declared the
sum of 10 billion lire. The initial verdict gave him a 1 year 4 months
sentence for fraudulent accounting. In appeal the court recognized
mitigating circumstances and the statute of limitations thus became
applicable.
10. Land in
Macherio Berlusconi is accused of various tax irregularities during the
purchase of land around his villa in Macherio. In the first trial he was
acquitted of some charges; others were removed by the statute of limitations.
The sentence was upheld in appeal.
11. Mondadori
RulingBerlusconi was charged with having bribed judges in Rome so as to
obtain a judgement in his favour in the Mondadori case, which had to
establish the ownership of the publishing house. At the preliminary hearing,
the judge declared the case closed, on the basis of the "formula
dubitativa". The prosecutors' office made recourse to the court of
Appeal, which will soon have to decide whether to confirm the suspension or
charge Berlusconi, Cesare Previti and Judge Renato Squillante.
12. Corrupt
judges-SME Berlusconi is accused of having bribed judges during operations
for his takeover of the firm SME; Cesare Previti and Renato Squillante are
also in the dock. The first trial is under way in the Milan court.
13. Division
of advertising between RAI and Fininvest Berlusconi, at the time Prime
Minister, is accused of having persuaded RAI to reach an agreement with
Fininvest over advertising levels, so as to reduce competition. The Rome
prosecutors' office possessed insufficient evidence regarding conspiracy
charges and asked for proceedings to be terminated at the preliminary
hearing.
14. Pay-TV tax
bribesBerlusconi was accused of having bribed directors and officials of the
finance ministry to reduce VAT from 19% to 4% for Pay-TV and to receive
favourable refunds. The Rome prosecutors' office asked for the case to be
closed at the preliminary hearing.
15. Mafia
killings 1992-1993 For many years Palermo, Caltanissetta and Florence
prosecutors have been conducting investigations into the obscure figures who
commissioned the killings of 1992 (judges Falcone and Borsellino) and 1993
(in Florence, Rome and Milan). Preliminary enquiries into the possible
involvement of Berlusconi and Dell'Utri in these affairs were formally wound
up and charges dropped. Murder investigations regarding unknown suspects
continue.
16. Telecinco
in Spain Berlusconi, Dell'Utri and other Fininvest managers who were
responsible for the Spanish broadcaster Telecinco stand accused of tax fraud
for 100 billion lire and violation of the Spanish antitrust laws. They were
charged by the Madrid anti-corruption investigating judge, Baltasar Garzon
Real. After the trial was suspended several times the judge decided to drop
all charges.
17. SME
tradingThe Berlusconi trial time-limit expired. In 1991 500 million lire
were transferred from a Fininvest bank account to that of Judge Squillante,
passing via an account belonging to Cesare Previti. A verdict was reached in
2004: an act of corruption occurred involving Silvio Berlusconi and Judge
Squillante. With regard to other charges the evidence was ruled
contradictory, insufficient or inexistent; acquittal was granted in one
case.
18. The David
Mills caseIn 1997 Berlusconi instructed Carlo Bernasconi, a Fininvest
manager, to pay "not less than 600 thousand dollars" into the
Swiss accounts of the English lawyer David Mills "so that he would bear
false witness in the Fininvest Finanza bribery and All Iberian trials
"? David Mills was found guilty in first instance and in appeal for
perjury to protect Silvio Berlusconi; he was then released on the grounds of
expiry of the maximum trial time. The corruptor (Silvio Berlusconi) may not
stand trial thanks to the Alfano Ruling passed by the Berlusconi government.
19. Tax fraud
chargesBerlusconi is accused of tax fraud. The charges mainly regard Fedele
Confalonieri , for evading €13.3 million that were used to create a slush
fund for Mediaset TV rights; the offence is alleged to have been committed
together with other persons, one of whom is Silvio Berlusconi.
IN POLITICS…
1994
The "BIONDI DECREE", passed on 13th July 1994 by the Berlusconi I
government, forbade the preventative detention (allowing at most house
arrest) of those suspected of crimes against the State or financial offences,
including bribery and conspiracy to corrupt. At the time several officers of
the Guardia di Finanza had just confessed to having been bribed by four
companies of the Fininvest Group (Mediolanum, Videotime, Mondadori and
Telepiù) and the managers who had paid the bribes were about to be arrested.
The decree blocked these arrests and led to the immediate release of 2764
detainees, of whom 350 were white-collar workers involved in the
"Tangentopoli" anti-corruption sweep (including Sig.ra Poggiolini,
the ex-minister Francesco De Lorenzo and Antonino Cinà, Mafia boss Totò
Riina's doctor).
The Milan "pool" of investigating judges decided to close down.
Popular protests against the "Thief-saving" regulation induced the
Northern League and AN to withdraw their support and Berlusconi was
compelled to let the clearly unconstitutional measure drop.
The immediate arrest followed of Paolo Berlusconi, boss of Fininvest's tax
affairs Salvatore Sciascia and the group's consultant Massimo Maria Berruti,
accused of having impeded enquiries just after a meeting with Berlusconi.
Decree
n.357/1994, the "TREMONTI LAW": reduced by 50% taxes on profits
reinvested by companies, as long as they were used for "new capital
goods".
The recently created Mediaset (which contained the Fininvest television
channels, separated from the rest of the group (which was about to be
floated on the stock market), made use of the law to save 243 billion lire
in taxes on the purchase of rights for vintage films: which are not capital
goods, but immaterial ones, and not new, but old. This illegality was washed
away by an "interpretative" note of Tremonti dated 27th October
1994 which explained that the Tremonti Law meant the opposite of what it
actually said, extending the definition of capital goods to immaterial ones
and the concept of new goods to old ones which had been used abroad.
1995, 1996,
1997: government by the centre-left
NO MEASURES
WERE TAKEN TO RESOLVE THE ENORMOUS CONFLICT OF INTEREST WHICH CONCERNED THE
LEADER OF THE OPPOSITION, SILVIO BERLUSCONI: THE JUSTIFICATION OFFERED (UP
UNTIL THE PRESENT DAY) BY THE CENTRE-LEFT IS THAT ANY STEP TAKEN TO LIMIT
THE MEDIA OR ECONOMIC POWER OF SILVIO BERLUSCONI THE POLITICIAN WOULD HAVE
BEEN INTERPRETED AS AN ATTEMPT TO USE LEGAL MEANS TO ELIMINATE SOMEONE WHOM
IT WAS UNABLE TO DEFEAT IN ELECTIONS; SUCH AN ACT WOULD HAVE SERVED ONLY TO
INCREASE HIS APPEAL WITH THE ELECTORATE.
The "MACCANICO
LAW". On the basis of a Constitutional Court sentence in date 7th
December 1994, the Mammì Law which allowed Fininvest to possess three
analogical terrestrial TV channels was declared unconstitutional; the third,
presumably Rete4, should have been turned off and transferred to satellite
by the 28th August 1996.
But the Post and Telecommunications minister of the Prodi I government,
Antonio Maccanico, conceded an extension until 31st December 1996 while a
"systematic" law was prepared.
At the year's end, no reform was in sight and a further six-month extension
given. The Maccanico Law finally appeared on the 24th July 1997: TV
broadcasters, as established by the Constitutional Court, were not allowed
to possess more than 20% of the available national frequencies, so one of
the Mediaset channels was in excess. But the new limit was to be enforced by
a new communications authority (AGCOM), which could become effective only
when in Italy there existed "an appropriate growth in the consumption
of television programmes broadcast by satellite and cable". No one knew
the meaning of "appropriate growth", so Rete4 continued to
transmit indefinitely despite contrary legal judgement.
1998, 1999:
government by the centre-left
D'ALEMA SAVES RETE4. The newly-arrived AGCOM began to function only in 1998
and presented a new plan for TV frequencies, calling a public tender for the
assignment of the 8 national TV concessions. Rete4, being "in excess"
in the terms of the Maccanico Law, lost its concession of broadcasting
frequencies; its place was won by Francesco Di Stefano's Europa7. But in
1999 the D'Alema government granted to Rete4 a "provisory permit"
to continue transmitting without a concession, and thus for a decade Europa7
was denied the frequency to which it had legal right.
The "GIP-GUP
RULE". Berlusconi and Previti, charged with corruption of Rome judges
(Mondadori, SME-Ariosto and IMI-SIR cases), wished to be rid of the Milan
investigating magistrate Alessandro Rossato, who issued warrants for the
arrest of corrupt judges and Fininvest lawyers Pacifico and Acampora, not to
mention Previti himself (blocked by the lower house, with its centre-left
Olive Tree alliance majority). Rossato, as the prosecuting magistrate, was
due to conduct the preliminary hearings of the three trials and decide on
the requests for indictment made by the Milan prosecutors' office; these
were to begin in 1999. Following a suggestion made by Guido Calvi, lawyer of
Massimo D'Alema, the centre-left approved a law making it impossible to be
both investigating and prosecuting magistrate: the judge who carried out the
preliminary investigation (GIP) had then to pass it to a colleague (GUP) who
would conduct the preliminary hearing (and who, not knowing the details,
would take much longer).
The IMI-SIR and SME preliminary hearings, already under way before Rossato's
arrival, continued until his guidance and closed at the year's end with
indictments. The Mondadori hearing, not yet under way, passed to another
judge, Rosario Lupo, who released all of the accused for lack of evidence
(the prosecutors' office subsequently appealed and the appeal confirmed the
accusations against all but one: charges were dropped against Silvio
Berlusconi due to mitigating circumstances).
2000, 2001
5th April 2001 - Silvio Berlusconi declared: "I will rewrite the
law-books. Napoleon and Justinian did so...we do not have their stature, but
we will try".
The "EUROPEAN
ARREST WARRANT". Alone among European Union countries, the Berlusconi
II government refused to ratify the "European Arrest Warrant",
although only with respect to financial crimes and those against the Public
Administration. According to Newsweek, Berlusconi "was afraid of being
arrested by Spanish judges in connection with the Telecinco enquiry".
Italy was allowed to postpone acceptance of this EC regulation until 2004.
Law n.
367/2001 "INTERNATIONAL ROGATORIES": limited the use in Italian
trials of evidence acquired in other countries.
It became necessary to cover up the illegal transactions regarding Swiss
bank accounts performed by Cesare Previti (Silvio Berlusconi's lawyer) and
Renato Squillante in the trial for perversion of the course of justice (in
which Silvio Berlusconi himself was also indirectly involved).
Law n.61/2001
"REFORM OF COMPANY LAW": decriminalization of fraudulent
declarations in the management of company balance sheets.
This permitted Silvio Berlusconi's acquittal in two cases ("All Iberian
2" and "SME-Ariosto") because the action was no longer
considered by law to be a criminal offence.
Law n.383/2001
"TREMONTI TWO" (Art.13): abolished duty on inheritances and
donations with regard to large estates; this had previously been abolished
by the centre-left for assets of up to 350 million lire.
"JUDICIAL
TRANSFER". On 31st December (while the rest of the country celebrated
New Years Eve) the justice minister Roberto Castelli, in response to a
request by barristers defending Previti, refused (contrary to usual practice)
a trial extension to Judge Guido Brambilla, member of the group conducting
the SME-Ariosto trial, and ordered his "immediate commencement of
activity" in the court of Surveillance (to which he had been
transferred several months before) without allowing the completion of
ongoing debates. The SME trial would thus have had to restart from scratch
with a new group of judges. But then the president of the appeal court
intervened with a new "request" from Brambilla to continue until
the end of 2001.
2002
Law n.248/2002, the "CIRAMI LAW ON LEGITIMATE SUSPICION":
sanctioned the refusal to partake in a trial, and the request for its
transferral, when the defendant suspected that the judge might not be
impartial with regard to him. This regulation has been repeatedly invoked by
Silvio Berlusconi's lawyers in trials in which he is among the accused.
Law n.282/2002, the "FOOTBALL-SAVING DECREE": allowed sports
companies (including Milan football cub, owned by Silvio Berlusconi) to
spread out the decrease in their players' value over 10 years' accounts,
which resulted in considerable tax advantages.
Law
n.289/2002, a "TAX AMNESTY": allowed tax evasion (including that
of Silvio Berlusconi's Mediaset companies) to be waived in response to the (delayed)
payment of fines much lower than the sums owed.
2003
Decree n.143 in date 24/6/2003, the "CO-DEFENDANTS' AMNESTY": the
government clarified the "authentic interpretation" of the tax
amnesty, inserting also those who had "conspired to commit offences",
even if they had not signed any fraudulent tax returns. In this way the
Berlusconi government got off the hook nine of the Prime Minister's
co-defendants, who were accused in the Mediaset trial (for tax evasion) of
having assisted in the evasion by issuing false or over-inflated invoices.
Law
n.140/2003, the "SCHIFANI RULING": this was the first attempt to
procure immunity for Silvio Berlusconi; it introduced a ban on putting on
trial those occupying the Italian State's five highest offices, even for
offences not committed during the performance of their duties. The
Constitutional Court declared the law unconstitutional in sentence
n.13/2004.
Law n.269/2003, a "CONSTRUCTION AMNESTY": pardoned past illegal
buildings, abusive construction and unlawful modifications in return for
payment of sums inferior to the "urbanization" costs that should
have been paid.
Legal decree n.352/2003 the"RETE4-SAVING DECREE": an ad hoc
regulation allowing one of the private television networks (RETE4) belonging
to Silvio Berlusconi to continue broadcasting despite its illegal occupation
of the transmission frequencies.
Law n.350/2003, a "FINANCE BILL", introduced a State-financed
incentive for members of the public buying decoders for receiving digital
television signals. The company that benefited most from this governmental
incentive (Solari.com) was controlled (51%) by Paolo and Alessia Berlusconi.
2004
Minister of the Interior's Decree of 6th May 2004 (prot. n. 1004/100 -
1158): the area named as "Villa La Certosa", Punta della Volpe
(Olbia. Sardinia) was declared to be covered by State secrecy norms: this
definition of Berlusconi's villa as a "State secret" impeded
inspections ordered by the Tempio Pausania Court with regard to an enquiry
into criminal violation of building and environmental protection regulations.
Law
n.311/2004, a "FINANCE BILL", confirmed the State-financed
incentive for the sale of decoders for reception of digital television
signals. The company that benefited most from this governmental incentive (Solari.com)
was controlled (51%) by Paolo and Alessia Berlusconi.
Law
n.112/2004, the "GASPARRI LAW": reorganization of radio and
television regulations. With regard to which the President of Italy, Carlo
Azeglio Ciampi, wrote explicitly of the risks posed by "dominant
positions", refused to sign the law and sent it back to parliament -
whence, after insignificant modifications, it returned once more before the
President of the Republic who (having no other choice) signed it.
Law n.308/2004
"AMNESTY FOR CONSTRUCTION IN PROTECTED AREAS": carried the
preceding construction amnesties to a logical conclusion, extending their
application to protected areas (including that on which stands Villa
Certosa, home of Silvio Berlusconi which he had enlarged).
2005
Law n.251/2005 "EX CIRIELLI": reduced the amount of time for
expiry of the statute of limits (which leads to the cancellation of a trial
when it continues for too long). This law resulted in the annulment of the
case for perversion of the course of justice against Previti (Silvio
Berlusconi's lawyer) and the trials for fraudulent accounting known as the
"Mondadori Ruling", "Lentini" and "Mediaset TV
rights" (all tied to Silvio Berlusconi). It also caused the abandonment
of numerous other trials awaiting sentence.
Legal Decree
n.252/2005 "CONSOLIDATION OF ADDITIONAL SECURITY": encouraged
through tax relief the adoption of private pensions on behalf of citizens.
It had clear benefits for the insurance companies belonging to the
Berlusconi family.
The Law on the
Judiciary (not signed by Ciampi because of its evident unconstitutionality
and sent back to parliament on 16th December 2004) was approved by the
Senate on 29th June. It included:
1) Division of
magistrates' roles. It became more difficult to pass from being involved in
investigations to sitting in judgement and vice versa.
2) The highest court was accorded a role at the apex of the judicial system,
and the function of the CSM (governing body) was reduced. This change ran
counter to the spirit of the Constitution, which reserves for the uppermost
court the task of controlling sentences and the activity of the judges who
pass them.
3) An increased role was given to Judicial Councils, decentralized bodies
which would now also represent barristers and local authorities concerned in
the running of the organs of judicial administration. Thus lay members (i.e.
non-magistrates) would participate in decisions regarding magistrates'
status, in contradiction to the Constitution that guarantees the
independence of the judiciary, which is subject only to the law.
Reduced
funding for judicial activities: the Minister of Justice reduced funding
available to the appeal courts for their ordinary activities. This made work
in Italian courts of law more difficult. The CSM, which argued thus to the
Minister Roberto Castelli, received the reply that cuts in court spending
were necessary so that the majority could maintain its election pledges and
to reduce fiscal pressure, as Berlusconi had promised in his "pact with
the voters".
The Pittelli
Law: 45 Articles presented by the Hon. Giancarlo Pittelli of Forza Italia,
drawing together and organizing the proposals of twenty or so members
belonging to various parties (amongst whom Anedda, Pecorella, Mormino, Cola,
Soda and Fragalà), proposed a weighty series of changes to the code of
criminal procedure and penal code, "so as to put into practice the
principles of a fair trial". The following were the most important
changes.
1) The notification of investigation must be made to a suspect immediately
when an enquiry is initiated. One who is on the list of suspects must not
just be immediately told of this, but also informed of the motives, with an
"indication of the laws thought to have been broken". A Mafia
member or paedophile, for example, must be immediately warned that an
investigation is being opened into his activities, in order that he may
suspend all contacts and activities and thus render pointless the inquiry.
2) Cases in which the incompatibility, refusal of or abstention of a judge
may be invoked become more numerous and wide-ranging. For example, he might
be rejected if "he has manifested his personal conviction regarding
matters with which the trial is concerned". Thus a magistrate who has
spoken at an anti-Mafia conference might be compelled to leave a
Mafia-connected trial in which he is one of the appointed judges.
3) There is a reduction in the number of cases in which preventative
detention is permitted. It becomes more difficult to put even Mafia members
behind bars.
4) It becomes more difficult for the prosecution to obtain permission for
wiretaps or scientific analyses, which may only be granted in cases of
"serious evidence of criminality" and must be "absolutely
essential for the conduction of the investigation".
5) The defence has the possibility of contesting in the highest court any
court orders - those regarding preliminary matters, the relevance of
evidence, possible motives for nullifying the indictment, requests for
evidence - with the result that that the Court of Cassation would become
clogged up and that continual interruptions (each one lasting perhaps 6
months) would lengthen trials and make then unworkable.
6) It would become practically impossible to find someone guilty;
prosecutors have the duty to "prove the defendant's guilt beyond all
reasonable doubt"; the judge, "in evaluating the evidence",
must ascertain that the defendant's guilt is demonstrated "beyond all
reasonable doubt" and must explain why this is so in his statement of
judgement.
7) The judge may not use previous sentences in his judgements. Thus in cases
concerning organized crime, for example, it becomes necessary to demonstrate
every time that Cosa Nostra exists, that it is a Mafia-style organization,
that it has a centralized structure and that it is governed by a Commission.
This could mean the end of trials against criminal organizations.
8) It becomes obligatory for a judge to grant a reduction of third when
sentencing a defendant with no previous record. Thus a rapist, because he
had previously been above all suspicion, would benefit from a reduced
sentence. All those without criminal records may hope for expiry due to the
statute of limitations, the terms of which are reduced in proportion to the
reduction in the sentence.
2006
Law n.46/2006, the "PECORELLA LAW": made it impossible for the
prosecution to appeal against a sentence of acquittal. The Constitutional
Court declared this law to be partially unconstitutional in sentence
n.26/2007.
Bankruptcy: in
a proposed law presented to the house by Niccolò Ghedini, Berlusconi's
lawyer, the crime of fraudulent bankruptcy, at present severely punished
with prison terms from 3 to 10 years and prescription only after 22 years,
would become a non-serious offence punishable by a maximum term of 3 years (therefore
without actually going to jail). In the terms of Ghedini's law, a bankrupt
would not be liable for any punishment whatsoever if he were to reimburse a
part of his debt. To steal would thus become a matter of legality, as long
as it were done on a large scale and using white-collar methods: one who,
for example, went bankrupt owing 100 billion lire, reimbursed 70 and salted
away 30 abroad would not be punished. The law was to be retroactive. This
project was hidden away inside a mega-amendment on competitivity passed in
May 2005. It stipulated a reduction in sentence from 10 to 6 years for
fraudulent bankruptcy but this was restored to 10 years by a further
amendment.
2007, 2008
Law n.124/2008, the "ALFANO RULING": this took up again the
contents of the "Schifani Ruling", the suspension of criminal
proceedings against those holding the State's highest offices. The law was
passed shortly before the last hearings of the corruption trial of the
English lawyer David Mills (for perjury) in which Silvio Berlusconi (who
paid the bribe) was co-defendant. Mills was sentenced in first instance and
in appeal to 4 years 6 months in prison. The Constitutional Court, in
sentence n.262/2009, found this law to be inconstitutional.
Legal decree n.185/2008: increased from 10% to 20% the main tax imposed on
the principal competitor of Silvio Berlusconi's Mediaset television group.
2009
Law n. 33/2009, Art. 7 (commi 3-quater & 3-sexies), "PURCHASE OF
ONE'S OWN SHARES": the limit on capital that shareholders holding more
than 30% may purchase without the obligation to put all shares up for public
sale was increased (from 3% to 5%). In addition the maximum limit set by
"Art. 2357 cc" for public limited companies with regard to
purchase of their own shares with the intention of defending themselves in
anticipation of possible speculatory manoeuvres (OPA) was increased (from
10% to 20%).
Law n.
102/2009, Art. 13-bis, the "TAX SHIELD": allowed, upon payment of
a flat rate tax of 5%, to bring back into the country, or regularize the
legal position of, financial or other assets resulting from tax evasion and
held abroad. This was a creative form of amnesty and a way for the treasury
to raise some cash - but also an unprecedented form of money-laundering on
behalf of the State, of institutionalized reception of stolen goods.
2010
Law n.73/2010
"IMPENDING REVENUE LAWSUITS": Mondadori made use of this
regulation to settle an argument with the tax authorities dating from 1991
by paying € 8,653,000 instead of the 173 million sought.
Law n.51/2010,
"LEGITIMATE IMPEDIMENT": it became the duty of judges to take
account of Silvio Berlusconi's work commitments, which make it impossible
for him to be present at trials.
The following
measures are being prepared for the purpose of protecting Silvio Berlusconi
from legal proceedings - and to batter and force into submission the
judiciary:
Brief trial expiry time for those with no previous convictions and for those
over 65 with no previous convictions
a law has been passed which modifies Article 161 of the penal code with
regard to an interruption of the prescriptive period established for an
offence. When such an interruption occurs, in accordance with Article 160 of
the penal code, the period already passed is ignored and the count restarted
from zero on the day of the interruption. In the new PDL law limits are
placed on prescription times for those without criminal records: in Article
161 of the penal code in force the statute of limitations runs out when a
period corresponding to the maximum possible sentence for the crime, plus a
quarter of that sentence, has passed. In the new Article 161 the additional
fraction is reduced to a sixth. The change does not apply to crimes of grave
social consequence (Art.51, commi 3-bis and 3-quarter of the Code of
Criminal Procedure).
Fast-track
trials
The proposed law produced by the Justice Commission of the Lower House has
profoundly modified that passed by the Senate, in particular cancelling a
temporary rule regarding the maximum time allowed for each phase of a trial,
which affects trials in course and applies to offences punishable by
sentences of less than 10 years incarceration committed before 2nd May
2006).
The Commission, presided over by Giulia Bongiorno (a supporter of Fini) also
confirmed the "phase rules" regarding each level of a trial, which
differ according to the seriousness of the crime. Offences with less than 10
years maximum sentence: a maximum of three years for the first instance, two
for the appeal and a year and a half for the highest court, plus a year for
every further trial level in the case of annulment and the repeat of levels
ordered by the Court of Cassation. For offences with higher sentences, these
periods are respectively four years, two years, a year and a half and one
year. For crimes with grave social consequences, such as Mafia and terrorism:
five years, three years, two years and one-and-a-half years. The law
approved in parliament does not specify that a trial stops after these time
periods have expired, but rather that the head of the trial judge's judicial
office informs the Ministry of Justice and the Prosecutor General at the
Court of Cassation.
Long trials
According to some opposition senators, if this proposal should become law
all trials would risk becoming extremely lengthy, including Mafia trials.
A judge would not be able to reject evidence on grounds of "irrelevance",
which would allow (for example) thousands of people to be called as
witnesses. Furthermore, there is a modification of what is known as the
"Falcone Rule", (238-bis of the Penal Procedure Code): a sentence
passed could no longer be used as established fact in another trial. This
would mean starting again from the beginning each time.
In the Mills trial, for example - as Senator Li Gotti emphasized - the
sentenced passed on the English lawyer for attempting to pervert the course
of justice could not be used as evidence in the related trial concerning the
Prime Minister. All witnesses heard during the trial of David Mills would
have to be called again in the case that will be held against Berlusconi.
Anti-wiretapping
regulations
A new law proposed by justice minister Alfano contains the following changes.
Evidence of law-breaking
Calls may be tapped if there is "strong evidence of crime" (as
laid down in the current law), but only on lines belonging to the suspect or
others who may be aware of the offences under investigation. Interception of
conversations must be "absolutely necessary" to the enquiry under
way.
Mafia and terrorism
In the case of organized crime and terrorism, it is enough to have "sufficient
evidence of crime". The request must be authorized by a group of judges
in court. In its evaluation, the court cannot take account of statements
made by co-defendants in connected cases or reports made by those unable to
indicate direct sources of information.
Judges must not speak out
It is prohibited for magistrates to make "public declarations"
regarding proceedings they are involved in; a magistrate will be substituted
if he is suspected of revealing confidential information. The publication of
magistrates' names and photographs in newspapers is forbidden.
Publication
The publication of confidential documents regarding legal proceedings is
punishable by up to two months' imprisonment or a fine of from two to ten
thousand euro. In the case of telephone interceptions the maximum penalty is
six years in jail.
Imprisonment for journalists
In addition to up to two months' arrest, journalists risk up to 4 years in
prison if they record conversations without informing the participants and
up to 6 years if they are "accomplices". Changes are made to the
rules regarding the use of concealed videocameras; such filming will only be
punished when "used for illegal purposes".
Crimes for which wiretapping is allowed
The list of offences for which calls may be intercepted remains unchanged:
those punishable by more than 5 years imprisonment, including crimes against
the public administration; defamation; intimidation; usury; harassment;
trafficking in and sale of drugs and weapons; insider trading; share
manipulation; contraband; handling pornography, including that regarding
minors.
Time limits
Interception may continue for more time: the previous limit was 60 days (30,
which could be extended twice for a further 15). This may now become 75 days
(30 plus three possible extensions of 15). For terrorism, Mafia or threats
made by telephone, the limit may be 40 days, plus a possible further 20.
Transition rule
Were the proposed law on wiretapping to be passed by parliament in its
present form, it would not apply to current proceedings for which
interception authorization requests have already been made. For this
category, though, it is forbidden to publish parts or summaries of these
conversations.
A temporary
halt to nuclear power
The government has decided to defer the nuclear power programme and has
inserted in the moratorium contained in the proposed umbrella regulation,
presently under debate in the Senate, the repeal of all regulations
regarding the construction of nuclear power stations in the country.
Una scelta che avrà con ogni evidenza l'effetto di far decadere il quesito
del referendum per l'abrogazione della legge con cui si apriva la strada al
ritorno dell'energia atomica in Italia.
There follow
further legal monstrosities designed specifically to assist the Prime
Minister in his difficulties with the law:
Conflict of
jurisdiction to block the Mediaset trial
Conflict of jurisdiction to block the Ruby trial
Immediate suspension of Ruby trial
Impossibility of trying the Prime Minister
Punitive justice reform
Parliamentary immunity
The constitutional Alfano ruling
Magistrates' civil responsibility
Temporary halt to the privatization of water
Reduced penalties for conspiracy with organized crime.
We will now
pass briefly to cultural matters, with a list of (some of) the ideas of
Silvio Berlusconi and his allies, which have been expressed in various
circumstances for various reasons, but which have received the attention
they deserve from but a minimal proportion of Italian journalists:
- "I wipe my backside with the Italian flag", threats of
"100,000 rifles to make the North independent", symbols of the
"Padania" Party in Italian State schools (on behalf of the party
of Umberto Bossi, Berlusconi's principle political ally).
- Italian roads named after Fascist historical figures (on the part of local
administrators of Berlusconi's party).
- Verbal attacks against the judiciary ("subversives", "should
be put in a psychiatric hospital", etc.).
- Repeated insults against the opposition ("brainless", "subversives",
"Soviet communists" etc.).
- One of Berlusconi's senators (Rocco Buttiglione) has spoken against gay
rights in the European Parliament.
- Exhortations to not pay taxes.
- Nobel Prize winner Rita Levi Montalcini, a 100-year-old Life Senator, was
subjected to prolonged shouts of "nappy/diaper" on the part of
senators of Berlusconi's party when she went to use the toilets.
- Inevitable complicity with Putin.
- Behaviour towards Gaddafi: plenty of assistance, praise and declarations
of friendship, an agreement to receive Libyan sovereign funds in order to
"torpedo" Profumo, anti-Berlusconian president of Unicredit, the
largest private Italian bank.
- The notable concentration of media and economic power owned by Berlusconi
and his family.
- "I am immortal, I am the greatest Italian statesman of the last 150
years" (i.e. including the Count of Cavour!).
- Lies regarding rubbish in Naples: Berlusconi declared to have resolved the
problem, but in fact the amount of rubbish in the streets has increased,
although - thanks to his television monopoly - the public do not get to see
it.
- Lies concerning the reconstruction of L'Aquila after the earthquake.
- Cuts in State schooling: less hours work for teachers and more pupils per
class.
- Cuts in scientific research.
- Darwin boycotted in the Middle School and in cultural conferences; the
appointment of an anti-Darwinian fundamentalist as president of the National
Research Council.
- Widespread corruption amongst members of the government, members of
parliament and local administrators belonging to Berlusconi's party.
- The Alitalia affair: in an attempt to favour Italian businessmen with whom
he has ties, Berlusconi refused an agreement with Aire France and dealt a
death-blow to the national airline.
- "i furbetti del quartierino"
- Payments to the Vatican.
- A disproportionate amount of time on high-visibility RAI broadcasts is
devoted to Berlusconi.
- Opposition newspapers and journalists are subjected to attacks.
- High levels of youth unemployment.
- A halt to liberalization; dismantling of the Bersani Decree.
- Threats to the interests of the president to the industry confederation
president (Emma Marcegaglia).
- Scandalous appointments, such as that of Mara Carfagna, ex-showgirl
equal-opportunities minister.
- A high level of emigration among graduates.
- Attacks by the parliamentary majority against the European Union.
- The worsening of the ratio between public debt and GDP.
- Italy's descent in the ranking of industrialized countries.
- The increase in Mediaset's profits.
- Italy's poor rating with regard to freedom of expression and association (see
the site of Freedom House).
- Italy's poor rating with regard to human rights (see the site of Amnesty
International).
- The "baronial" structure of universities and poor international
rating of Italian universities (the first is at 176th place).
- Attacks on Nobel Prize winners such as Dario Fo and Carlo Rubbia.
- Political and journalistic attacks, together with the administrative
harassment of those from outside the EC, the Northern League "auxiliary
policemen", the immigrants' reception centres?"...
- Defamatory attacks on union (references to the Red Brigades)...
And here are
some comments and witticisms of Silvio Berlusconi himself:
1. "It's not true that I make jokes; in fact I have a poor opinion of
those who do"
2. "La sapete quella del negro che cerca una stanza a Rimini?" E
quella del bambino che chiede al papà: "Lo sai perché le uova di
gallina quando cadono si rompono? Perché sono fatte col sedere"
3. Mia moglie mi ha annunciato che avrebbe fatto le valigie. Io le ho
chiesto se tornava da sua madre e lei mi ha risposto: "Le valigie sono
le tue"
4. "Mussolini never killed anyone; Mussolini sent people on holiday…
to the frontier"
5. At the Rome FAO conference on world hunger: "The speeches should be
shortened, because even though it's not a tragedy in our case, we're hungry
too and it's time for lunch"
6. "I've always been charitable, but with discretion, without saying
anything to anyone. I'm ashamed of having spoken publicly of the 10 billion
[lir] that I gave to Don Gelmini and the billion I paid to the Salesian
monks".
7. "We won't even move a pot plant at the RAI"
8. "The RAI is a veritable military machine used against me. And even
my television channels criticize me"
9. By the end of December the operational project for the bridge over the
Strait of Messina will be ready; "Naples will be free of rubbish in
three days"; "We'll beat cancer in three years"
10. (Addressing workmen on a construction site in the city of L'Aquila,
recently destroyed by an earthquake) "Where are the showgirls then? Are
you all gay?"
11. (Addressing a female opposition member of parliament) "Bindi is
prettier than she is intelligent"
12. (Addressing a group of American businessmen) "I advise you to come
and invest in Italy because we have beautiful secretaries"
13. (Addressing Euro-MP Schultz, in reply to his voiced disagreement)
"In Italy we're working on a film about a concentration camp. I'll
propose you for the part of kapo"
14. (Speaking of B. Obama) "A nice and well-tanned president"
15. (Addressing Romano Prodi during a television debate) "…I know
what you communists have in mind, I know that you want to make it so that a
lawyer's son and a workman's son have the same prospects"
And furthermore…
"I'll never again sit down at the same table as Mr Bossi. I'll never
again lead a government which relies on the support of Bossi. He's a
completely unreliable person. I'm amazed that the media, with no sense of
judgement, give space to all his utterances, that have neither head nor tail"
[ "ANSA", 2nd February 1995 17:01 ]
"I swear by my children: this decree has not been designed for any of
my brood"
[ "La Stampa", 20th July 1994]
"My secretary tells me that every day during the last week I worked 17
hours, made 32 telephone calls and had 23 meetings. The Press should have
more respect for one who sacrifices himself as I do in everyone's interests
- without any personal interests of his own"
[ "La Repubblica", 4th December 2002 ]
"I've given instructions to the Fininvest Board of Directors to sell
the TV channels. What else could I do?"
[ "La Repubblica", 22nd March 1995 ]
Emilio Fede?
"Before I had my doubts, but now I've begun to appreciate him. He a
bulwark of democracy and of public information"
[ "La Repubblica", 4th January 1995 ]
"To say that I use my position as a political leader to further my
personal interests is to deny my natural even-handedness and generosity"
[ "La Stampa", 15th December 1995 ]
When a journalist asked: "Were you a member of the P2 [Lodge] of Craxi
and C.A.F. [Craxi, Andreotti and Forlani]?", he replied "That's
enough! I can't stand it any more! I joined because I was exhausted by the
insistence of my friend Roberto Gervaso. When I received a membership card
as "apprentice bricklayer", I told them to send it back. Either
Grand Master or nothing"
[ "La Repubblica", 27th November 1993 ]
"My ability is beyond question; others dream of possessing my human
qualities and achievements. It is they who must show me what they can do…""
[ "ANSA", 7th March 2001 15:48 ]
The judiciary…
"You must be deranged to do that job, you must be mentally disturbed.
If they do that job they must be anthropologically different from the rest
of the human race"
[ "La Repubblica", 5th September 2003 ]
"They did tests on me too, on my cerebral and physical functions, and
decided that I am a walking miracle"
[ "ANSA", 5th October 2002 19:33 ]
· "I
don't accept disagreement any more."
· "That's enough! There are too many profiteers in politics."
· "Applying the lessons I learnt from my Aunt Marina I can tell you
that I'm far and away the best Prime Minister that Italy could have had in
its 150 years of history."
· "I'm the most persecuted man in history"
Not to mention:
· Prime Minister Silvio Berlusconi told journalists that he would request a
parliamentary commission of inquiry into the behaviour of Milan prosecutors,
to determine whether there had been "criminal conspiracy".
· "I see down there in the front row some MPs of elevated aesthetic
qualities. I am in love with my wife, but have not lost my aesthetic
sensibilities, and I've noticed some exceptional legs around. And don't spy
on me, President Fisichella".
· "I love France and continue to love her", Berlusconi once
declared, "You only have to count all the French girlfriends I've had".
· "Competitivity - you need to have it towards girls"
· In 2002, during a press conference held on the occasion of a meeting with
the Danish Prime Minister Anders Fogh Rasmussen, a young and attractive man,
Berlusconi commented: "Rasmussen is the best-looking Prime Minister in
Europe. I'm thinking of introducing him to my wife, because he's also more
handsome than Cacciari. With all the fish there are in the sea …poor woman…"
And to Rasmussen, who smiled glassy-eyed, he explained in English with a
wink, "You don't know this story. I'll tell you afterwards…"
"I don't what he meant. It seems totally stupid", replied Cacciari
soon afterwards when he was questioned by journalists.
· At Brescia during administrative elections in 2003 he declared that
"Viviana Beccalossi is more able than pretty. The opposite of Rosi
Bindi". Then, though, caught up in his own enthusiasm, he shouted:
"Come on Viviana, give us a look!". "At the time I didn't
even notice", commented an embarrassed Beccalossi.
· During an official visit in Hungary he suggested that journalists should
ask the Hungarian premier for "some good advice".
· Of the property developer Stefano Ricucci he said: "What do you mean,
poor Ricucci? He has something we're all jealous of!", alluding to his
wife Anna Falchi.
· At the FAO meeting he gave a particular welcome to "pretty female
delegates". He explained that he had "dusted off his expertise as
a playboy" with the Finnish president Tarja Halonen in order to obtain
agreement that the meeting be held in Parma.
· At Moscow in 2004 during an official visit he embarrassed Putin by
insisting on kissing a female Merloni worker who had done her best to avoid
his attentions.
And finally…
A small
unplanned addition to a joint press conference held by Vladimir Putin and
Silvio Berlusconi occurred when the Russian journalist Natalia Melikova (of
the Nezavsinaya Gazeta), asked the Russian leader with a certain insistence
about rumours that he had a sentimental relationship with an Olympic
champion of artistic gymnastics, as well as other details concerning his
private and family life. Before Putin could reply, a smiling Silvio
Berlusconi imitated firing a machine gun in the direction of the journalist.
Putin noticed and nodded. Natalia Melikova was certainly well aware of the
story of Anna Politovskaja, Ivan and the other Russian journalists who met
with a tragic end and whose murderers were never identified (let alone
punished). It is not surprising, then, that at the end of the press
conference she burst into tears, attracting the attention of many colleagues.
When asked how she felt, (ANSA reported) she replied: "I saw
Berlusconi's gesture, but I know that your president often makes jokes.
There will be no consequences".
|