by de Gondi
Thu Jun 11th, 2009 at 04:10:09 AM EST
Immediately following the elections, Berlusconi saw fit that the first act of his rubber stamp parliament would be a vote of confidence on his wiretap bill. The bill's amendment, 1415-A, passed the House this evening by 325 votes against 246. It will now go to the Senate for final approval.
The National Association of Magistrates issued a harsh note declaring that the law spells "the death of criminal justice in Italy." The law drastically limits the possibility for investigative judges to resort to wiretaps. Whereas wiretaps could be authorized on the basis of "compelling evidence of a crime" it may now only be requested on "compelling evidence of guilt" and only if "absolutely indispensable." A request for wiretaps must be approved by three judges rather than one. This has prompted the wry comment that to condemn a person to life imprisonment one judge is enough while to listen to a mafia boss three are needed.
Promoted by afew
The law further creates a series of vexing obstacles, many irrelevant to the scope of investigations, that can be used against the court and investigators by the defence, several of these involving the publication of news concerning investigations. Investigative judges are now charged with unwarranted responsibilities for events which they cannot entirely control.
As is, it will be impossible to pursue long-term investigations of corruption and conspiracy that involve complex criminal networks. While there are ostensible concessions to combat mafias and terrorism, it will no longer be possible to interconnect criminal activities, a stark reversal of the highly efficacious strategy inaugurated by Falcone and Borsellino. Wiretaps may only be used within the specific case for which they were requested. If the wiretaps reveal another crime they cannot be used as evidence in a subsequent or separate investigation. Wiretaps may only be used for crimes that carry a minimum sentence of five years, and wiretap warrants may not exceed sixty days in total, regardless the gravity or the complexity of the criminal activity- and regardless the statutory six month (!) limit on investigations.
The law is in contrast with international guidelines set down to harmonize intra-state cooperation and combat organized crime. It is also in contrast with European Court rulings against Italy precisely in cases of free speech and freedom of the press.
An important aspect of the law is to drastically curtail the public's right to know. Investigations will become in effect totally secret until the end of preliminary hearings even if investigative acts are no longer covered by investigative secrecy. In effect the media can no longer do their job of court reporting under penalty of imprisonment for reporters from 6 months to one year and onerous fines for editors on the order of hundreds of thousands of Euros.
The amendment calling for the imprisonment of reporters had been previously quashed after general outrage and has been reintroduced at the last moment, now for "malicious intent" to publicize interceptions that had been ordered to be destroyed or concerning persons extraneous to the criminal charges. The original amendment had been proposed by Deborah Bergamini, once upon a time, Queen Cartimandua (also here.)
It is further forbidden to publish the name or the image of investigative judges or judges in relation to the cases they handle. Judges may not release public statements under penalty of being removed from the case. In effect, a defendant will have a further possibility to refuse a judge.
A large number of reporters have announced well over a year ago that they intend to violate the law. Today, Beppe Grillo declared in the Senate that he hoped to be the first one to do so. The law has been unanimously condemned by press associations. This does pose a problem with editors and blogging. Will blogs be blacked out and charged of criminal offense as several recent cases? A recent proposal in parliament goes in that direction.
Many may note that the urgency to pass yet another ad personam and contra personam law falls during the widely reported sex scandals involving Mr. Berlusconi. Passed the election campaign, it's his first concern. However, the law only touched marginally the scandal since there are effectively no criminal charges in the making- save for the investigation into the abuse of state aircraft travel, a scandal that alone would have toppled many a government elsewhere without the added relish of aspiring Sofonisbas paying hard cash to sit on Berlusconi's face.
Wiretap laws have been an obsession of recent governments whether run by Berlusconi or Prodi. Prodi's attempt had at least the honour of producing a parliamentary commission report on wiretap laws, also in comparison with other nations. From the report it is plain that Italy's wiretap laws are commendable in comparison with any other advanced democracy. There has never been an impelling need to overhaul the law.
The only concern returns to the political caste and its need to occult the criminal activity of their major electors, whether in corrupt industry or organized crime. On one hand it will be extremely difficult to prove collusion between the ruling classes and organized crime while simple crime can continued to be fought- without wiretaps. On the other hand the elite may no longer be concerned with the publicity of investigations concerning their alleged criminal activity until years after the fact.
Any rationalization for this law is utter bullshit. Mister Angelino Alfano, acting Minister of Justice with a gift for the gab- he's a wunderkind when he plays at attacking the mafia, all basedowoid baby blues- alleges that wiretaps cost too much when one major confiscation of mafia properties suffices to pay more than a year's costs. He glosses over the absurd situation that the Ministry of Justice pays a private company that benefits from a government concession. Simply change the contract, as in Germany. Alfano alleges that there are hundreds of thousands of people being wiretapped, yet fails to note that they are practically all redundant... or simply the same persons who astutely uses multiple telephones. Kissy-kiss Cuffaro had at least 31 cell phones- and made several hundred calls a day. Yet Alfano insists in riding the waves with outright falsehoods. Poor Italy, entrusted to diligent saviours for our own good.
There are foreboding aspects and comical, nay contemptuous, aspects. In the latter case, if a Catholic prelate of the intermediate kind, say a bishop, is put under investigation, our earnest investigator is obliged to inform a foreign state, the Vatican. No more embarrassing cases of horny or corrupt bishops to trouble the public- pardon- the audience.
The more foreboding aspect is a lapsus by the real Minister of Justice, Niccolò Ghedini, once described as a "two-bit" lawyer in a famous article. Go to page 15. September 20, 2008. Everybody has read it. Even in Kamchatka. Criminal Code, article 226. Ghedini prospects the generalization of what is called "preventive wiretapping," used by the police and the secret services, exclusively at the behest of the Minister of the Interior or in his stead, for suspected crimes of terrorism or mafia. Preventive wiretapping has no juridical value (yet costs just as much.) Ghedini has no objections. Preventive wiretaps have never been published (sic). "No one has ever complained about them." The fact is that nobody believes that Ghedini or Berlusconi would go that far: while wiretaps requested by judges that may be used as evidence in a trial are being gravely curtailed, the police will see their power to wiretap expand without solid countermeasures. The elite may wiretap but not be wiretapped.
One needn't waste too much time wondering what Berlusconi is seeking to hide- or to protect. When Thebes was struck by famine and drought, King Oedipus set up a commission of enquiry with himself as investigator- only to discover himself guilty of hubris and incest. He meted out the sentence- judge, jury and criminal all as one man- blindness for blindness. In tomorrow's Italy, trials will only be celebrated in the name of a paranoid truth trumpeted on every corner, in every house by a grievously sick man, wildly applauded by his rabble and his thugs.