Yesterday Cesare Previti was convicted of bribing judges and sentenced to 11 years in prison. Oh what great joy it was to be alive on that good day but to be middle aged was very limbo. I am extremely happy about this. Non Italian readers might be surprised that I celebrate a prison sentence, since locking people up is always very sad even if it is sometimes necessary. My joy is unmixed with concern over the suffering of the honorable Cesare Previti in prison, since there is no doubt in my mind that he will never actually enter a prison.
I should clarify that my use of the adjective honorable above is not an expression of a personal opinion. It is the standard title for a deputy in the camera dei deputati (lower house of parliament) corresponding to "congressman" in the US or "member of parliament" in the UK. This status, re-conferred by the voters in an election with the investigation of the case at an advanced stage, explains why Previti has not been held in preventive detention (very common in Italy). To hold a deputy in preventive detention requires the permission of the camera which was not, in this case, given.
I am amazed and delighted by the verdict. I am not surprised that Previti wasn't acquited. There is a good bit of evidence that he did bribe judges including the record from a Swiss bank of a very large sum of money transfered from an account controlled by Previti to an account controlled by Renato Squillante who was at the time the chief GIP (see below) in Rome. I am surprised that there was a verdict, since his defence team managed to delay the conclusion of the trial through the most amazing series of manouvers.
Previti's explanation of this record was that the Swiss bank incorrectly recorded the financial transaction. I am not making this up. This explanation was provided years ago. In recent years the honorable Previti has not addressed the evidence that he bribed judges at all. Instead he has claimed that the prosecutors and judges in his case are persecuting him for political reasons. The day before yesterday he asked (demanded really) that parliament change the law (for the third time) not only to protect him but also to punish the prosecutors and judges in his case. I am not making this up either.
Since Gaetano Pecorella, the chairman of the judiciary committee of the Camera dei deputati, is part of the defence team for a large set of prominent defendants in two separate trials and, more importantly, Silvio Berlusconi was the benificiary of one of the allegedly purchased sentences, Previti's request (really richiesta that is demand) will not fall on deaf ears. See my Italian language blog fantapolitica for a discussion of this issue using only words begining with p. The law has already been changed in ways which might have been expected to help the honorable Previti twice in the course of the investiageion and trial. I translate Curzio Maltese writing in La Repubblica Monday "there may be a verdict and sentence tomorrow. Then there will be the punishment -- of the judges". Still it was a famous victory.
OK now background. This will be very long. I am not checking anything so much might be incorrect (especially speling of Italian names where I put single and double consonants more or less at random). I am not even going to try paragraphs I will put headings and explanations.
Cesare Previti: A member of the Camera in the past two legislatures and Senator in the one before them. Minister of defence in the first Berlusconi government. Formerly national co-ordinator of forza italia (yaay Italy) the largest party in the current government which belongs to Silvion Berlusconi roughly to the same degree that Silvio Berlusconi's shoes belong to Silvio Berlusconi. At the beginning of the electoral campaign in 1996, Stefania Ariosto girlfriend of a then prominent forza italia deputy Vittorio Doti, accused Cesare Previti of bribing magistrates in Rome. Doti ceased to be a prominent member of forza italia when he failed to publically denounce her as a liar. As a result of this accusation prosecutors in Milan (why Milan ??? see below) asked for information from Swiss banks in a rogatoria (how do you say that in English it just means asking foreigners for information also see below). Much of this information showed a very complex pattern of transfers of funds ending up either transferred to magistrates of as cash in Italy and beginning with the beneficiaries of surprising decisions in the IMI-SIR judgement and the Lodo Mondadori judgement (see below). One showed a very simple transfer of money from Previti to Squillante. On that topic, I think Previti really believes the bank made a mistake. He claimed that the transfer was not direct but was Previti to X to Squillante. My personal guess is that he asked the bank to do that so there would be no record of a transfer from him directly to a magistrate. I very much like the idea of a Swiss banker deciding to save on paperwork since it amounts to the same thing in the end and failing (for once) to generate a tangled paper trail. In any case, none of Previti's many and prominent defenders seems inclined to address the issue of Swiss banking records at all. Previti is, among other things, still attaching Ariosto even though her testimony is relevant to the case only because she claims Previti gave money to Squillante as clearly confirmed by the banking records. I think it is fair to say that everyone knows that Previti is guilty and that anyone who claims otherwise from the Prime minister on down is a liar. Also everyone knows that one of Previti's co-conspirators in one of the cases is the prime minister who is clearly a criminal.
Calunnia: I would like to stress that I write this in Italy where calunnia (slander) is a crime and false and damaging statements made without reckless disregard for the truth concerning public figures can be slander. Silvio please denounce me or at least sue me. Pretty please. No need to fear, the prime minister is not eager to appear in court as a plaintiff or witness. He is not Bill Clinton and is not going to let anyone else's lawyer ask him questions when he is under oath. He recalls that once when he sued the judges found for the defendants (respondents in UK English) on some counts declaring as an official judgement and established fact that the claim that Silvio Berlusconi was in business with the "white collar mafia" (my translation) was not slanderous because it was true. They also convicted Silvion Berlusconi of making materially false statements under oath. He was not sentenced to prison because of an amnesty.
IMI-SIR I don't remember clearly. SIR was a privately owned chemical company controlled by someone named Rovelli. IMI was a publically owned bank. At some point IMI took control of SIR (I think it might have been bankrupt). Rovelli sued IMI claiming that they had mismanaged his assets.
Surprisingly he won. In the course of the trial a key document in which IMI authorised their lawyers to do something disappeared then reappeared one day too late. After Rovelli senior's death his sons received damages (with interest) of roughly Lire 500,000,000,000 (even in Lire that's a lot of money)
As he was about to undergo the operation which he did not survive, Rovelli told his sons that they should pay one of their lawyers exactly 10% of the judgment (without interest). They did. Yesterday Felice Rovelli was convicted and sentenced to 6 years in prison. The very large sum of money (roughly Lire 30,000,000,000 about $15,000,000 but worth more then) passed through a Swiss bank account controlled (as he admits) by Previti.
Previti has explained this a very large fee he earned for legitimate legal services whcih he prefers not to describe and as money which he legally transferred for legitimate reasons to a third pary who he prefers not to name and most recently (Monday) as a very large fee he earned. It is important to note that the Swiss banking secrecy law forbids the use of Swiss banking records to prosecute tax evasion. Thus the huge fee explanation does not imply the risk of going to jail for tax evasion. The money then followed a complicated path ending up as cash and, perhaps, the mysterious ability to buy large houses on a judges salary. Some was transferred directly to Renato Squillante. This is admitedly odd because he was the head GIP of Rome involved in criminal investigations not the civil case. The prosecutor's theory is that he was paid for information and for acting as an intermediary in contacting other judges.
Lodo Mondadori. This is a very interesting case concerning who owned the Mondadori publishing company which, among other things, owned La Repubblica -- the Italian newspaper with the widest circulation. Roughly speaking Berlusconi and Carlo De Benedetti (remember him ? He was famous once) were trying to buy it. Roughly because I identify them with companies they run (Fininvest for Berlusconi CIR for De Benedetti) . In the end the judges said Berlusconi owned it except for La Repubblica and the weekly Espresso (aaaaaa the phrase weekly Espresso terrifies me) which are still owned by CIR controlled by De Benedetti. The people who edit La Repubblica and Espresso are sure Berlusconi's main aim was to fire them. This does tend to create a certain threat to their ability to report the cases impartially. In a heroic effort the La Repubblica finance pages applauded the successful effort by English speaking institutional investors to remove De Benedetti from Olivetti and, more or less, shut down Italian production of PCs. Now no French newspaper would applaud such a thing no matter who owned it.
It is alleged that the judges in this case were bribed by, among others, Cesare Previti. In the verdict of yesterday the judges ordered 3 defendants to pay Euro 380,000,000 in damages to CIR. Now this raises a very odd question. If something illegal was allegedly done to help Berlusconi why wasn't he personally on trial ? Well for him the statute of limitations has already run out. He was accused of providing the money (an event at the beginning of the bribing process). His alleged involvement was brief. During that brief period, the penalty for bribing a judge was short. Actually the law did not specifically mention the crime of bribing a judge during a brief period covering Berlusconi's alleged crimes (in this particular case). Thus he could only be accused of bribing a public official. That's not such a severe crime so the statue of limitations has already run out for him. In deciding the possible sentence and hence the appropriate statue of limitations, the fact that he is gainfully employed (as prime minister) was considered relevant.
Parte civile. Another odd question is what is a criminal court doing awarding damages ? In Italy the criminal and civil aspects of a case are tried together. This means that in addition to the prosecutors and defence attornies there are lawyers for the parte civile roughly plaintiffs. In addition to the ciminal verdict and sentence to prison or fines the judges also award damages. In this case the lawyer who just won his client Euro 380,000,000 in damages (subject to appeal) is the honorable deputy Pisapia mentioned above. No Italian finds this shocking except when the activities as member of parliament of the practicing lawyer get too close to the activities as lawyer. Actually roughly speaking Pecorella is one of two who have gone too far since I got here.
GIP and Renato Squillante: giudice per le indagine preliminari. This does not correspond exactly to any specific role in English speaking countries. These are judges who follow investigations by prosecutors. Furthermore at some point they become GUPs (giudice per l'udienza preliminaria) in the same case. In this role they have to decide whether to indict suspects. Thus they very roughly correspond to grand juries except that they know the law and don't always do what they are asked. They also have roles like the judge for arraignments and judges who issue warrants. A difference is that prosecutors can issue search warrants themselves in Italy. A key power of GIPs is to decide if a suspect is to be held in pretrial detention while still theoretically presumed innocent. Their decision can be appealed to a tribunale della libertà but is rarely reversed. This is very very important because trials take a very long time in Italy and defendants are presumed innocent until they have exhausted all appeals (see below the word exhausted fortuitous). About half of people in Italian prisons are presumed innocent (it must be noted that the immense sentences in the US help the ratio of convicts/prisoners but do not help people held without bail or who can't make bail). The maximum term of pretrial detention depends on the severity of the crime. For white collar crimes, it is a few months (I think 60 days maybe 90 for bribery). A GIP asked to put Previti in pretrial detention but was denied authorisation by the chamber of deputies (which then had a center left majority). Despite the fact that he had spent much of his adult life deciding on pretrial detention (and often deciding in favor) Squillante was not at all pleased when he was (briefly) locked up without trial. He went on a hunger strike.
Sostituto procuratore: this is what I mean when I say prosecutor. This is an role which definitely absolutely does not exist in the US or (especially) the UK. In Italy as in most continental countries, prosecutors supervise the investigation from a very early stage. Often the police are, effectively, factotums for the prosecutors (read Simenon for Maigret's complaints). It is very important that prosecutors are not subordinates of elected officials. They are all independent. They are promoted, transferred and disciplined by a body of magistrates, the CSM, the majority of whose members are elected by magistrates. The word magistrate refers to prosecutors, GIPs, trial judges, appeals court judges, constitutional court judges and judges in the highes court of appeal (cassazione). This is a largely self governing body which admits new members based on an annonymous exam on the law (which appears not to be fixed believe it or not). This means that to understand investigation of politicians in Italy Americans should think of special prosecutors(independent councils). It is not at all like the case of, say, George W Bush investigated at the SEC where the chief counsel was his former lawyer appointed by his father or the cases of George W. Bush (Harken) and Richard Cheney (Halliburton) who are to be investigated by the legislature controlled by their party or the Justice department controlled by Bush's appointee or etc. The amazing potential for drama of independent magistrates and corrupt politicians was strangely unfulfilled until 1992 and then was very much fulfilled. Needless to say "reform" of these institutions is a top priority of the current majority. I personally do not like the confusion of roles of judges and prosecutors (this is a very very key issue in Italy in which I just sided with Berlusconi). Also I would not be thrilled about such a powerful institution being out of democratic control if I forgot what democratic control has generally turned out to be.
Prescrizione: roughly combines the US concepts of statute of limitations and right to a speedy trial. The point is that if an amount of time has passed since the alleged crime, the defendant is declared innocent because the crime is "prescritto". The amount of time is a function of the sentence and is very brief for white collar crimes such as bribery at least given the glacial standards of Italian justice. Thus, it seems to me, that one of the main activities of defence attornies in such cases is to delay the final verdict until the crime is prescritto. The penalty for frivolous dilatory efforts is a small fine.
Delay: The reason the verdict is so exciting is that it finally arrived. Even by the standards of Italians suspected of white collar crimes his efforts to delay are truly amazing. For example the udienze preliminaria mentioned above is typically very brief. The GUP decides mainly based on documents filed in the udienza. However, the suspect has to be present. Oddly Previti was busy in parliament every time his GIP tried to have an UP. He stressed that it is illegal to schedule one on Sunday when parliament was closed. Notably the too busy to show up issue only arises when their is a vote of the deputato wants to give a speach. Previti developed a desire to speak about issues whose interest to him was unclear (well actually it is very very clear what his interest was). In the actual trial Previti recused his judges 8 times. Each effort was rejected. Most recently he recused them because they declared the trial over before he gave his final speach (defendants can make closing arguments themselves in Italy). Now this is not before they gave him a chance to speak. They did but he had just suddenly left the courtroom. They scheduled another chance the next day but he didn't show up. The presiding judge declared the trial over. Previti declares he must be punished for this.
Why Milan ?: This is actually a very very key issue. Previti's main arguments have been that he should be tried in Perugia which handles cases in which Roman magistrates are suspects or victims. He also argued for a change of venue to Brescia (handles cases removed from Milan) because he could not receive a fair trial in Milan. Gaetano Pecorella as a lawyer defending his client argued to the highest court of appeal (cassazione) that the existing directives written by the justice department were unconstitutional as they did not correspond to the instructions of parliament (they refered the issue to the constitutional court a separate body). Parliament including the judiciary committe of the Camera dei deputati chaired by Gaetano Pecorella as deputy serving the public interest then changed the law so that it explicitely said what Gatanto Pecorella as lawyer claimed it had already said. After a truly furious parliamentary battle, the new law was signed by the president of the republic just before the constitutional court decided on the argument made by Gaetano Pecorella as lawyer. It said that the cassazione can change the venue if it finds that there is a "legittimo sospetto" that it is impossible to have a fair trial in the current location. Legitimate suspicion is the closest I can come to a translation of a very abstract phrase legittimo sospetto. I would say the law means that the cassazione should feel free to move trials as they please. In the event the cassazione declared that there was not a "legittimo sospetto" that it was impossible to have a fair trial in Milan. Pecorella complained that they had asked for the new law more or less saying that they had promised him that if the majority managed to change the law they would move the case.
The astounding practice of members of parliament sworn to serve the public interest practicing law where they are obliged to serve their cliients interest is quite common in Italy. Previti is one of three lawyer deputies whose name begins with P involved in the complex of cases (the third is Giuliano Pisapia).
Rogatoria: How do you say that in English. It is asking foreigners for information in a case. One key issue is that the Swiss banking law requires a huge amount of due process before releasing banking records. The fact that few prosecutors are willing to devote the huge effort to dealing with Swiss law and well paid Swiss lawyers had lead to the illusion that Swiss banking records are secret. The prosecutors in this case -- Ilda Boccasini and Gherardo Colombo -- are very very determined people with an amazing record of contributions to the fight against crime. Recently they both look very very tired. One issue related to Swiss banking records, as mentioned above, is that they can not be used to prosecute tax evasion. It is, more or less, official Swiss policy that it is OK to use Swiss banks to evade taxes. Another key issue is that the copies of banking records are not notarised. The Swiss state does not formally declare them to be authentic. This is very key because one of the first laws passed by the current majority declared such documents obtained by rogatorie and not declared authentic by the foreign state to be in admissible in court. The word Previti was used very often by the opposition in the discussion. Oddly, Italy is not quite sovereign. There are European agreements which are binding so Italian laws can be either cancelled (as if they were unconstitutional) or "interpreted" so that they are consistent with the European agreement. In this case, Italian judges have all agreed that the new law is to be interpreted in a way that makes it irrelevant. Yesterdays verdict would not have been possible without this "interpretation".
verdict and sentence: This is my translation of sentenza di primo grado (literally first degree sentence). It is actually a fairly preliminary stage. The defendant is still presumed innocent. The first trial for most crimes (including bribing judges) does not involve a jury. A panel of three judges conducts the trial then decides on the verdict and sentence. It is very important that all defendants have the right to appeal on the merits of the case.
Even if there is no procedural error in the first trial, the defendant has a right to a second trial where (s)he is judged by a committee mostly made up of laypeople (omigod I forgot the proportions I think 6 laypeople and 3 judges). Needless to say Previti has appealed his conviction. I have not been able to detect any purpose of the first degree trial. Prosecutors can appeal the verdict as well. Again just as they choose. It is possible to be acquitted in the first trial and convicted in the second even if there is no new evidence. Silvio Berlusconi has been convicted 3 times in primo grado and, not only has he not spent a day in jail, but he is prime minister. I might add that one of the convictions was overturned because the statute of limitations had run out (prescrizione del reato) and Silvio Berlusconi did not challenge the finding of fact that he is an un punishable criminal even though he could have (this case is not at all related to the one decided in primo grado yesterday). My claim above that he is a criminal is basically not contested by Berlusconi.