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Saturday, December 11, 2004

Berlusconi prosciolto

In the New York Times Ian Fisher has a very good story on this event A key point of the verdict and the article is "One crucial charge of paying off a judge was dropped essentially on procedural grounds, because the statute of limitations had run out." This is an improvement over the already good instant story whose timing was noted with awed admiration at La Repubblica. In the instant story Fisher rushed past the statute of limitations a bit quickly. I put it in the headline. If Berlusconi had been judged innocent on the merits on all charges, he would be assolto.

The case was complex. On one charge the verdict refers to the statute of limitations. On one to the absence of proof of guilt. On one the 3 judge panel appears to have concluded that the cash handed by the deputy the honorable Cesare Previtti (already convicted in two earlier trials) to the judge his honor Renato Squillante (already convicted in the same two trials) was on behalf of other clients (presumably the very rich Rovelli's who don't have fancy titles but have a ton of money due to being relatives of an extraordinarily incompetent and corrupt businessman).

One charge was dropped because of the statute of limitations. It was transferring money to the judge Renato Squillante via his lawyer the deputy and former defence minister Cesare Previtti via the Swiss Bank account "polifemo" Polyphemus the ironically named.

English speaking people might imagine that the statute of limitations is simple enough that prosecutors and judges would not disagree about the application of the statute of limitations. How naive, the Italian "prescrizione" is very complicated and often binding. Crucially any factor which can affect the sentence can affect the statue of limitations. For the second time, the concession of the "attenuanti generici"(non discript attenuating factors) implies that Berlusconi can not be punished. The announcement by the 3 judge panel begins

"Visto l'articolo 531 CPP dichiara non doversi procedere nei confronti di Berlusconi Silvio in ordine al reato di corruzione ascrittogli al capo A) limitatamente al bonifico in data 06-07 marzo 1991 perché, qualificato il fatto per l'imputato come violazione degli articoli 319 e 321 C.P. e riconosciute le circostanze attenuanti generiche, lo stesso è estinto per intervenuta prescrizione; visto l'articolo 530 CO.2 C.P.P."

"Based on article 531 of the Penal procedures Code [statue of limitations] the court declares that is must not act on the accusation of bribery made in Part A of the accusation with regard only to the bank to bank transfer on the 6th and 7th of March 1991 one because it describes the act [for] the accused as a violation of articles 319 and 321 of the criminal code [corruption of a public official not corruption of a judicial action which is a more serious crime] and recogniseing the non descript attenating factors, the accusation has expired. "

Notice it is quite explicit that other charges are not "prescritto" because it was not proven that Berlusconi did the dead. This makes it very clear that the judges concluded that Berlusconi gave money to Squillante and that this was an act of corruption. Less clear to me is the translation of
" il fatto per l'imputato" il= the, Fatto = act or deed, l'imputato = Silvio Berlusconi. "per" would generally be translated "for". This is important because if the judges had declared "the deed of the defendent" they would have said he done it. As it is, the preposition "per" means we will have to wait 90 days for the explanation of the verdict to be absolutely sure.

The claim that the transfer of money to Squillante was criminal was already made in an earlier trial when Squillante and Previtti were convicted. The claim that Berlusconi must have known about it is based, in part, on the fact that his lawyers have explicitely claimed that the money in "polifemo" belonged to him and not to his firm (Fininvest). This is a subtle distinction in Italy expecially in the case of paragons of disinterested devotion to the shareholders' interests such as Berlusconi, but it was key at the time it was made because the account (also used to send a huge sum to Bettino Craxi) was not on the Fininvest books and the statute of limitations for false accounting ran longer than that for illegal contributions to a politician (Berlusconi was convicted then appealed and was prosciolto when the statue of limitatiosn ran out). Thus Berlusconi's problem is that at the Swiss money laundry he was using something was singular when it should have been double, just like the single eye of Polyphemus. This should be the basis of a joke, but after a week of trying, I hereby give up.

By the way, I learned this the from La Repubblica and the other such case was bribing judges in an attempt to gain control of La Repubblica and the presumably fire its then current staff. Previtti and Squillante were convicted in that case too, while Berlusconi was not even tried, because the court, which indicted other defendents, declared that he was covered by the statute of limitations. So La Repubblica is biased. That's life. In Italy journalists either work for Berlusconi or hate him because he tried to get them fired.

The key issue therefore is the concession of the attenuante generici. I am proud to note that I knew the was the key issue before the verdict. As the name suggests, judges have more or less complete discretion in granting attenuanti generici. In the case of trying to take over the firm that owned La Repubblica, the court explicitely said they were conceded because Berlusconi has a prominent public role. It is worse stressing that "attenuating circumstances" is not a correct translation, since the concession may depend entirely on events separate from the illegal act.
Previous verdicts based on the statue of limitations (1 conviction 1 indictment) amnesties (2) or recent changes in the law by his parliamentary majority (2) are sufficient to conclude that Berlusconi is not an ex con.

The presiding judge Francesco Castellano has publically declared that he thinks prosecuters are persecuting Berlusconi's firm and that there should be a moratorium on trials of Berlusconi. The prosecuters obviously asked him to recuse himself, the asked the President of the tribunal of Milan to recuse him. Both refused demonstrated a depraved determination to betray their office and their hostility to law and truth. As much as Renato Squillante, these vile beings illustrate what a judge should not be. While blatently partisan, they used the public trust which they betrayed, to impose their wishes. The panel includes two other judges. The depraved presiding judge clearly agreed to declare, along with his colleagues, that it has been proven yet again that Berlusconi committed a crime. However, in addition to declaring that Berlusconi should not be subject to crime, he used his office, and the inevitable discretion which must not be combined with blatant partisanship, to declare him unpunishable in this case.

I note that I am writing this in Italy where slander is a crime colunnia and there is no special standard for slander of a public figure.

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