THE AUSTRALIAN SULLA CONDIZIONE DEI MAGISTRATI ITALIANI

Pubblico questo articolo apparso su The Australian del 25 novembre 2002

L’attenzione che un giornale che si pubblica in un paese così lontano dal nostro da ogni punto di vista la dice lunga sui rapporti tra potere politico e potere giudiziario nel nostro paese.

Da sempre la stampa italiana “snobba” il gruppo di Magistratura Indipendente per cui non può che far piacere vedere che un giornale straniero gli dedica nella persona di un suo esponente. Nemo propheta in patria?

Judgment day for Italian judiciary
By Natasha Bita, Florence
November 25, 2002

THE death threat arrived within hours of the verdict. Magistrate Gabriele Verrina had just declared Italy's seven-time prime minister guilty of murder when he received the message: "We'll finish you off, just like Giovanni Falcone!"

Ten years after the mafia blew up a stretch of highway to assassinate Falcone, Italy's chief anti-mafia prosecutor, Italian judges are still working in fear.

Verrina, the chief magistrate of the Appeals Court of Perugia, said his conscience was clear in sentencing Giulio Andreotti, Italy's most influential post-war politician, to 24 years' jail this week for ordering a Mafia hit on a journalist in 1979. "I've done my duty in the name of the Italian people," he declared from the refuge of his villa. Military police guarded his door.

But mobsters are not the only torment for Italy's 9000 magistrates. The centre-right Government of Silvio Berlusconi has accused judges and prosecutors of plotting against politicians. To the dismay of the fiercely autonomous judiciary, it is planning to shake up the legal system.

The dispute is so serious the UN Commission on Human Rights has sent its justice investigator to Italy twice this year to try to broker a truce. In the type of scolding generally reserved for tinpot dictatorships, rapporteur Param Cumaraswamy issued a public report last week decrying the "tension" between the Government and magistrates.

"The root causes appear to be the cumbersome legal system and its procedures, leading to abuses, and the high-profile trials of prominent politicians who are seen taking advantage of the weaknesses in the system and, where necessary, using the parliamentary process," he concluded.

The UN report criticised Prime Minister Berlusconi, the billionaire media tycoon, for failing to appear as a witness in two trials. Italy's criminal code exempts senior politicians from attending court if they are busy conducting affairs of state. Noting this provision as "untenable in this day and age", Cumaraswamy said the Prime Minister "should not be seen as being above the law".

Much of the uproar over Italy's judicial system originates from Berlusconi's personal legal woes. He faced criminal charges of false accounting, before his Government changed the law to make it a civil offence. He was cleared of charges of corruption, illegal financing of a political party and tax fraud after the cases overran the statute of limitations. In his one outstanding trial, on allegations of bribing judges, he has applied for the hearings to be transferred to another court on the grounds of bias.

Another Forza Italia MP, Cesare Previti, is on trial with Berlusconi. Their lead lawyer is Gaetano Pecorella, a fellow Forza Italia MP, who happens to chair the parliamentary justice commission in the lower house.

In the name of reforming the legal system, Berlusconi's Government has rushed contentious legislation through the parliament this year. The new laws partly decriminalise false accounting, shorten the time limit on some trials, and give defendants the right to have their case transferred if they have "legitimate suspicion" that a court is biased.

The last initiative, (passed when a dextrous group of government MPs, dubbed the "pianists", used both hands to push the electronic buzzers of absent colleagues during the vote) has provided plenty of fodder for Italian satirists. "Why should I be judged by someone I don't like?" novelist Umberto Eco wrote cheekily in the current affairs magazine L'Espresso last week.

"The accused must feel relaxed. Better still, every citizen must be guaranteed a judge they trust, just as they have the right to a doctor of their choice and their own lawyer." Italy's 1948 constitution separates Italy's legislative, administrative and judicial powers. Magistrates have their own governing body, the High Council of the Magistracy (CSM). Italy's 9000 magistrates elect 14 representatives to the CSM and the parliament appoints seven academics and lawyers. The president of the CSM is also the president of the republic.

Once recruited, on the basis of a public examination, magistrates have a job for life. They can work either as a judge or a public prosecutor, and the CSM can transfer them between the bench and the prosecutor's office.

Controversially, Italian magistrates can also run for political office. If they are elected to parliament they must take leave but the judicial job is held open for them if they decide to quit politics or lose an election.

This ability to switch between the judiciary and the parliament is ammunition for politicians' claims of a left-wing plot against conservative MPs and senators fighting corruption charges.

When Berlusconi heard of the guilty verdict for Andreotti, whose Christian Democrats party was toppled in the "Clean Hands" corruption trials of the 1990s, he railed that justice had "gone mad". "Andreotti is a victim of a justice system that has abandoned every scruple and denies to its roots the right of a person to a fair trial," he thundered, vowing that Italy's system of justice would be "reformed".

Government attacks on the magistracy have endured for months. The leader of the right-wing Northern League and Minister for Reform, Umberto Bossi, went so far in April as to describe the judiciary as "homogenised left-wingers" who wanted to "substitute themselves for politicians – a dangerous mechanism for democracy".

Judges howled in protest when the Government, in a supposed cost-cutting measure, downgraded the armed escort service provided to magistrates in Milan and Palermo.

Milan's chief magistrate, Francesco Borrelli (who retired in April) gave a notorious speech urging his colleagues to "Resist! Resist! Resist!" Then a junior government minister, who later resigned, called for the arrest of judges involved in the criminal trial of a fellow MP. Magistrates traded their red ceremonial robes for black ones in protest, and called a one-day strike.

The resulting ruckus grabbed the attention of Cumaraswamy. He made two trips to Italy to interview senior judges, government officials and MPs, including the Minister for Justice.

"There is a mutual distrust and suspicion," he told The Australian in an interview from his office in Malaysia. "Prominent personalities are using the weaknesses in the legal system to their own advantage. When this is seen as happening in a developed country such as Italy, it could send bad signals to smaller countries that are expected to emulate respected institutions and democratic processes." Cumaraswamy laments there is "no co-operation" between the judiciary and the Government in Italy, even though both sides agree the legal system needs fixing.

The average criminal trial in Italy, he notes, drags on for a decade.

"Any decision (brought down by the courts) is seen as a political one, and every law that is brought in (by the parliament) to improve the system is seen as interfering with (the judges') independence," he said. "If nothing's done it will just degenerate."

Cumaraswamy says Italy's magistrates "cherish" their right to run for parliament as a "freedom of association and expression". "But I personally feel that's taking it a bit too far," he said.

"I told them, 'How can you explain you are independent when you are seen to be involved in partisan politics?' They fail to understand that they must subscribe to international standards, that while holding office they cannot do anything, say anything or associate with anyone that would undermine the office of the judiciary."

Italian judges, Cumaraswamy says, must get the public on side. "The independence of the judiciary is not a right or a privilege of the judges," he says. "It is ultimately for the benefit and protection of individual liberties."

Italy's National Association of Magistrates says its members are "extremely preoccupied" that politicians attack the judges, rather than the judgments.

"Sentences certainly can be criticised," NAM's representative on the International Association of Judges, Fausto Zuccarelli, told The Australian. "But you can't accuse judges of making political decisions. Judges, by nature, are impartial."

Zuccarelli estimates that only "20 or 30" of Italy's 9000 career magistrates have stood for parliament, and "a dozen or so" have returned to the bench afterwards.

"My personal opinion – which is not shared by all Italian magistrates – is that magistrates have the right to participate in a political campaign," he says. "But it would be opportune that, once elected, they give up their position as a magistrate."

The most dangerous reform proposed by the Government, according to Zuccarelli, is the plan to introduce an Australian-style legal system that separates judges from prosecutors.

"Under Commonwealth law, prosecutors have discretion whether to go ahead with a case in court," he says. "But in Italy, a prosecutor who receives a complaint has to investigate it – it's not a matter of, 'Oh, this case is of little interest so we won't proceed'. A prosecutor has to be truly independent. Many foreign magistrates look at the Italian model as one to copy."

A decade ago, Italy's magistrates and prosecutors brought down the ruling political class with their Clean Hands corruption trials. They investigated 3200 suspects, brought 2575 before the courts as defendants and witnesses, and secured 577 guilty verdicts. But the newspaper La Repubblica reports that more than half the suspects charged walked free – not on the strength of their defence, but simply because the appeals process outran the time limit in the statute of limitations.

Zuccarelli, who works as a prosecutor in the Justice Ministry's National Anti-Mafia Board, is perturbed.

"The magistrates are frustrated," he says. "We do a great amount of work and often it all comes to nothing."

James Walston, a political scientist at the American University of Rome, says the Government's claim of a left-wing vendetta is unfounded because Italian prosecutors and judges have acted against politicians "of all colours".

"Any legal system will have fools or crooks in it, and produce the wrong verdict on occasions," he said. "But if you go on saying the courts are not capable of producing a fair verdict, that is a serious attack on the (judicial) institution.

"Berlusconi has worked very hard, and succeeded, in delegitimising the system in the eyes of ordinary Italians, and that is dangerous."

Andreotti's case is fanning the smouldering resentment between Italy's judicial and political classes into an outright conflict. Yet, the 83-year-old senator-for-life is keeping his cool. He will be free, and considered innocent, until his final appeal is heard – a process that could take years.

Ironically, the young Andreotti had toyed with the idea of becoming a magistrate. "Thank God I chose something else," he said, "because it's a difficult job and one could make some terrible blunders."