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Showdown in Italy

by de Gondi Sat Jul 5th, 2008 at 08:01:45 PM EST

The Italian National Association of Magistrates has declared a state of permanent agitation by a large majority against a series of government decrees that would gravely compromise the judiciary's capacity to fulfil its constitutional role. The ANM (Associazione nazionale magistrati) is considered the parliament of the judiciary branch. Their decision closely follows the heavy criticism launched by the National Council of Magistrates - the governing body of the Judiciary Branch - and a petition by eminent constitutionalists against those same decrees last week.


The decrees and bills in question could be the finishing blow against the Italian judiciary system, already gravely crippled by the so-called Castelli reform and various laws, expressly contrived to block trials and investigations involving the then prime minister, passed during Berlusconi's previous five-year tenure. The two-year Prodi interlude under the guidance of Clemente Mastella as Minister of Justice did nothing to correct the situation, thus sanctioning  the rift between a totally incompetent political class, bent on self-preservation, and the judiciary branch.

The decrees and prospected bills would arbitrarily block all trials for facts precedent to June 2002 for one year; further reduce resources by blocking up to 40% of finances earmarked for the judiciary; grant temporary immunity to several of the highest offices in the nation; render the authorization of wiretaps all but impossible for crime of any nature.

By blocking trials for one year, the judiciary system will be forced to waste scarce resources to put the law into effect only to be swamped by those same trials, calculated at over 100,000, once the year has ended.

It is notoriously well known that the law would block the Berlusconi-Mills trial which is nearing conclusion after only two years. David Mills is accused of having taken payment for making false testimony during the previous Berlusconi SME trial involving judiciary corruption. Mills signed a statement acknowledging the fact but then adopted the defensive line that he had been "bullied" into signing by investigative magistrates. Similar defensive lines have invariably proved disastrous for defendants. Berlusconi has asked that the judge be recused for having signed a petition against a law passed by the Berlusconi parliament in 2004.

Funds for justice have always been reduced beyond the minimum. Such basic essentials as gas, electricity, heating, computer hardware or even paper are often lacking. A mafia boss in Puglia once beat the rap because Castelli's ministry had not provided government paper for the trial's transcript despite repeated requests. A court ruling established that trial transcripts cannot be done on plain paper. The facile accusation that justice is slow and inefficient in Italy rarely takes into account routine sabotage by a hostile ministry and parliament.

The incumbent prime minister is well known for his loose attitude towards law. The temporary suspension of his trials or indictments through immunity is unique. Contrary to his over-publicized contentions, no other nation grants blanket immunity to its prime minister. Temporary immunity is only granted by the constitutions of Greece, Portugal, Israel, and France for the sole office of the Presidency.

The bill that would all but outlaw legal wiretapping is marketed as a sign of civilization against the intolerable invasion of a citizen's privacy. The bill ignores illegal wiretapping, a hallmark of Berlusconi's previous government, that involved the Italian secret services (SISMI), Telecom and a galaxy of  private "security" agencies. The present laws on legal wiretapping in Italy are regarded highly by international standards.

The new law in its present form would establish prison terms and heavy fines for any reporter, director or editor that publishes transcripts, synopses or information derived from wiretapping even after they are in the public domain. In theory a person could be under investigation, indicted or even on trial, yet it could not be reported. The law would be a grave assault on freedom of the press and the public's right to know.

At present there is a highly publicized scandal based on wiretaps between Berlusconi and the head of RAI fiction, Augustino Saccà. The nature of the conversations has led to speculation and gossip over Berlusconi's sexual philandering and chemically assisted prowess.

Apart the well-grounded argument that public figures have no right to privacy, the press campaign is misleading.

The bill despite its over-publicized pretention to combat organized crime is designed to facilitate organized crime. The vexing formalities and ridiculous time limits set on wiretap authorizations practically allow complex criminal organizations to use telephones or convene in hideouts without serious concern of being eavesdropped. Wiretaps may only be granted for grave crimes such as "terrorism" or "organized criminality," charges that are rarely pressed for the manifest difficulty in proving them let alone arguing them at the outset as an investigative premise. Bernardo Provenzano would never had been caught were this law in effect at the time. The present head of the mafia, Matteo Messina Denaro, the fifth most wanted man in the world according to Forbes, can take it easy once Berlusconi's parliament shoves this bill through.

Berlusconi's present attitude characterized by his obsessive slandering of the Italian magistracy is leading to an unprecedented institutional confrontation. He was elected on sugary promises to get Italy back on its feet. As of now he has done nothing but seek to resolve his own problems. And those of his backers.

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The Italian National Association of Magistrates has declared a state of permanent agitation by a large majority against a series of government decrees that would gravely compromise the judiciary's capacity to fulfil its constitutional role.

What is a state of permanent agitation, and what can the judiciary do about this? Civil disobedience?

When the capital development of a country becomes a by-product of the activities of a casino, the job is likely to be ill-done. — John M. Keynes

by Carrie (migeru at eurotrib dot com) on Sun Jul 6th, 2008 at 03:08:32 AM EST
The document (in Italian) illustrates the situation created by the government, convokes a permanent reunion of the Central Directive Committee to monitor the situation and deliberates to adopt any measure of protest.

A likely consequence will be the paralysis of the judiciary apparatus by simply refusing to do work which should be done by specialized personnel such as court clerks. In fact, the continuous cuts and prevention of hiring personnel has created a situation in which judges are forced to do routine work which is not of their competence.

The very grave dysfunctional situation within the judiciary offices and the duress judges undergo at work imposes an incisive commitment to protest and denunciation: to this end ANM has deliberated to adopt initiatives with the scope of informing public opinion of the grave situation in which the judiciary finds itself and emphasis proposals capable of providing answers to the needs of justice.
by de Gondi (publiobestia aaaatttthotmaildaughtusual) on Sun Jul 6th, 2008 at 02:07:59 PM EST
[ Parent ]
isn't this sort of acrimony between judiciary and government quite unusual?

pakistan, yeah, but anywhere else?

the sense of surreality in italian politics grows apace.

will the police arrest the magistrates and then send them to other 'government friendly' magistrates for trial?

short-circuit?

oh, i guess bush's success at demonising 'activist' judges qualifies too.

it's a pity di pietro is not more of a vote-getter, integrity does not automatically impart charisma, or soundbite mastery.

'The history of public debt is full of irony. It rarely follows our ideas of order and justice.' Thomas Piketty

by melo (melometa4(at)gmail.com) on Sun Jul 6th, 2008 at 07:59:43 AM EST
isn't this sort of acrimony between judiciary and government quite unusual?

There are historical reasons. The Italian Constitution of 1947 granted the judiciary unprecedented autonomy after the Fascist dictatorship. It is a self-governing branch of the state subject only to the law, with the obligation to pursue all crime. In theory it has no discretionary power. Togliatti as the first Minister of Justice decreed an amnesty and re-instated all the judges that had been formed under Fascism. As the natural cycle of life reduced the fascist presence in the judiciary, by the early 70's, the full force of the Constitution began to be felt. The new generations of judges effectively pursued crime of any nature including the widespread corruption of the political class. Therein lies the acrimony of the political class towards the judiciary.

oh, i guess bush's success at demonising 'activist' judges qualifies too.

Bush and Berlusconi used the same advisors, in particular those at the CSIS.

it's a pity di pietro is not more of a vote-getter, integrity does not automatically impart charisma, or soundbite mastery.

Di Pietro is very much a vote-getter- alas not enough- but then Di Pietro doesn't control seven national channels. B has identified him as the major menace to his power. It is probably for that reason that B chose Di Pietro's region as his own in the last elections.

You need a son-of-a-bitch to contrast B. Di Pietro has the guts, Veltroni no.

by de Gondi (publiobestia aaaatttthotmaildaughtusual) on Sun Jul 6th, 2008 at 02:49:10 PM EST
[ Parent ]
Does the judiciary in Italy have it's own investigative and enforcement arms?

The problem we see in the US is that the chief prosecutor, law enforcement and investigative officer, the attorney general, works for the Executive Branch. The courts can issue an order, but it must be acted upon by the executive branch. Of course it looks fishy when the executive outright refuses to enforce an order/ruling, so there is usually political obfuscation and delaying tactics accompanied by claims that cooperation is not the issue. The problem becomes most acute when the congress, which is supposed to act as a balance in these cases, is really a rubber stamp for the executive.  This, of course, presupposes that the judges do not owe their allegiance to the same executive.

I can swear there ain't no heaven but I pray there ain't no hell. _ Blood Sweat & Tears

by Gringo (stargazing camel at aoldotcom) on Sun Jul 6th, 2008 at 10:22:29 PM EST
[ Parent ]
The Italian Justice system has both investigative and judiciary functions. The actual gathering of evidence by an investigative judge can be carried out by any number of law enforcement branches such as the police, the carabinieri, the treasury police, the postal police, penitentiary police or city police, at the judge's discretion. Usually a judge prefers to work with law enforcement authorities specialized in that particular crime but also whom he/she can trust. For high profile crime there is always the problem of infiltration.

Once a crime has been discovered the judiciary is immediately informed and whoever happens to be on his turn of duty handles the case at the outset. There is a strong component of chance since a criminal investigation is rarely transfered to another investigative judge.

There is further the constitutional obligation to investigate all events of a possible crime without distinction. An investigative judge cannot choose a crime to pursue. Chance and obligations play a strong role as checks and balances.

The only external control over an investigation can be exercised by the Minister of Justice who can send inspectors. It is a standard ploy in all trials with a strong political component. Parliament can put checks on the judiciary by passing vexing laws designed to create chaos in the judiciary or cut funding. These laws are generally struck down by subsequent "Supreme Court" rulings as anti-constitutional but have already done their damage by then.

by de Gondi (publiobestia aaaatttthotmaildaughtusual) on Mon Jul 7th, 2008 at 05:05:36 AM EST
[ Parent ]
Appears both our systems could stand a little tweaking. I like the idea of a judiciary with investigative powers, but there should be a way to eliminate undue executive and legislative meddling.

I can swear there ain't no heaven but I pray there ain't no hell. _ Blood Sweat & Tears
by Gringo (stargazing camel at aoldotcom) on Mon Jul 7th, 2008 at 10:24:37 PM EST
[ Parent ]
OTOH, we wouldn't want to create a "unitary judiciary" either. Just because they are - presently - the only reasonably non-insane branch of our respective governments (and even that I'm getting a bit unsure about with the recent Vaxholm and Viking Line rulings from the European Court) does not imply that they will stay that way. Especially not if they are given unchecked power.

However, how about giving the judiciary its own independent investigative arms and a rather vigorous constitutional mandate, but limiting the jurisdiction of their investigative branches to the behaviour of the legislative and executive branches? So that when a judiciary investigator uncovers a "civilian" crime, they are to hand it over to the "civilian" police, and conversely, when the "civilian" police uncovers evidence of abuses of power, corruption or unconstitutional behaviour, they are to hand it over to the judiciary enforcement agency.

I could see several advantages to this: First, it would establish a much-needed formal split between the police and politicians and the people investigating the police and politicians of criminal activity. Second, because its jurisdiction is limited to investigating crimes committed by the police, politicians (past or present) and a select few other branches of society carefully stipulated in the constitution, it could be given real powers and a tight insulation from political pressure without risking jackboots in the streets.

Another thing that might be worth considering would be to separate the investigation of crimes from the use of force. I.e. when an investigator has prepared a case, he hands it over to a judge who can authorise search or seizure against the suspect. The judge then hands the case to the "enforcement" branch - which is wholly separate from the investigating and judiciary authorities - for execution. I've read somewhere that the German Verfassungsschutz operates along these lines. The way I heard it, it works that way because the BRD - for obvious historical reasons - didn't want to have a secret police that had the power to break into people's homes and drag them off to a basement somewhere.

- Jake

Friends come and go. Enemies accumulate.

by JakeS (JangoSierra 'at' gmail 'dot' com) on Wed Jul 9th, 2008 at 03:15:51 AM EST
[ Parent ]
There are many safeguards within the Italian judiciary. An investigative judge must argue his case before a preliminary judge to have authorizations, such as wiretaps, to pursue the case. Investigations have time limits set that may be extended only through a ruling of justifiable cause.

There are of course political accusations that the preliminary judge and the investigative judge may collude as a team, but that hardly holds water.

We all welcome checks and balance in our respective systems and the Italian system definitely has bettered the past fifteen years in respect to a defendant's rights. This however is no where perfect since a chimera has been created by introducing instruments and forms typical of the accusatory system while the Italian system remains inquisitorial. The introduction of "plea bargaining" in the nineties undermines the philosophy of inquisitorial law and has caused unresovable paradoxes.

But it's one thing to actually reform the judiciary in collaboration with all forces rather than seek to destroy the judiciary by creating a two-tiered system in which the elite are more equal than we before the law.  

by de Gondi (publiobestia aaaatttthotmaildaughtusual) on Wed Jul 9th, 2008 at 04:49:57 AM EST
[ Parent ]
Your solution seems to have merit.

I once worked for a federal investigative agency with limited jurisdiction/responsibilities, but it also  had powers of enforcement.  There was, however, strong sentiment within the agency leadership for many years against using any of the enforcement powers other than purely investigative ones such as those involving search and seizure (which rarely involved physical force BTW. The power to arrest was available but that usually necessitated the need to carry a firearm, so the leadership stayed away from both.  This approach worked fine given the environment of the day and the availability of other law enforcement organizations that were willing to exercise the "muscle" when more forceful actions were required.  In truth, the lack of "muscle" never cost us a conviction.  As a youngster, I failed to appreciate the wisdom of agency policy, but as I matured it became evident.  In later years when the older, wiser leaders had departed and everyone strapped on guns and began making arrests, I came to loath the job with its different approach toward fact finding.

I can swear there ain't no heaven but I pray there ain't no hell. _ Blood Sweat & Tears

by Gringo (stargazing camel at aoldotcom) on Wed Jul 9th, 2008 at 03:36:30 PM EST
[ Parent ]
What the Italian right wing is attempting to do with their bills is to give the police discretionary power in investigations- which is a clear breach of the constitution. It would be the police that determine what crimes to pursue and exercise an anti-constitutional "right" to inform the judiciary according to "their" criteria- or whoever determines that "scale of crime values" for them. At present the police forces of any arm are obliged to immediately call in an investigative judge who directs the investigation.

You can imagine what sort of abuse the Berlusconi scheme will cause.

by de Gondi (publiobestia aaaatttthotmaildaughtusual) on Wed Jul 9th, 2008 at 05:10:41 PM EST
[ Parent ]
Republican virtue can be considered in relation to the people and in relation to the government; it is necessary in both. When only the government lacks virtue, there remains a resource in the people's virtue; but when the people itself is corrupted, liberty is already lost. - Robespierre

Friends come and go. Enemies accumulate.
by JakeS (JangoSierra 'at' gmail 'dot' com) on Wed Jul 9th, 2008 at 03:19:25 AM EST
[ Parent ]
i do find it strange, how di pietro looks so much like tony soprano!

'The history of public debt is full of irony. It rarely follows our ideas of order and justice.' Thomas Piketty
by melo (melometa4(at)gmail.com) on Mon Jul 7th, 2008 at 12:16:20 AM EST
[ Parent ]
probably the other way around. Antonio was around before Tony.
by de Gondi (publiobestia aaaatttthotmaildaughtusual) on Mon Jul 7th, 2008 at 08:47:54 AM EST
[ Parent ]
Di Pietro looked a little different when he came to prominence in the early 90's.

When the capital development of a country becomes a by-product of the activities of a casino, the job is likely to be ill-done. — John M. Keynes
by Carrie (migeru at eurotrib dot com) on Wed Jul 9th, 2008 at 05:27:24 AM EST
[ Parent ]
well, james gandolfini looked a lot better at the start of the series, lol!

talking of which, it's the last 2 episodes of the last series here on sky, sat'dy night. i'm ready for it to end, the last series had been grimmer and grimmer, the colours of the sets darker and darker.

age, time and karma are catching up with our lovable suburban family.

what do you expect from one of the best morality plays ever on TV?

'The history of public debt is full of irony. It rarely follows our ideas of order and justice.' Thomas Piketty

by melo (melometa4(at)gmail.com) on Wed Jul 9th, 2008 at 09:07:01 AM EST
[ Parent ]

He was elected on sugary promises to get Italy back on its feet. As of now he has done nothing but seek to resolve his own problems.

The latter was obvious from his previous stint as PM. Which begs the question of why the Italians could still believe his promises - and presumably that of his control of so much TV.

In the long run, we're all dead. John Maynard Keynes

by Jerome a Paris (etg@eurotrib.com) on Sun Jul 6th, 2008 at 08:08:29 AM EST
As Nanni Moretti put it, There have been five national elections since 1994 and the same guy is running who owns [or runs] all of the national television.

In the last elections the real winners were the Lega Nord and Di Pietro. The PM's personal political entity lost ground. He has to deal with his grand electeur Umberto Bossi who must answer to his base. It appears that B's real base is in Sicily for reasons I needn't repeat- but it's not enough.

Veltroni predicted last night that this legislature would not last five years. Not surprisingly, Bossi agreed. Further, Bossi is willing to open talks with the magistracy. After all, he has no major trials pending.

by de Gondi (publiobestia aaaatttthotmaildaughtusual) on Sun Jul 6th, 2008 at 02:18:48 PM EST
[ Parent ]
short answer: criminals breathe easier when the boss they know is in power.

berlusconi was fifth richest man in the world when he took office the first time, and tripled his fortune while there.

many 'pezzi grossi' (important people) saw similarly dynamic adjustments to their offshore bank balances under his aegis.

that messina bridge has got to be the biggest gift to crooked contractors ever devised.

it's really too bad beppe started foaming at piazza navona, his blog is great, but he succumbs too easily to the national disease of hysteria, losing credibility in the process.

caffeine is more a state of mind here than a drink even sometimes!

i have never seen a nastier infestation of trolls as have invaded his english language blog. i'm guess it's orchestrated, stinks like a dead fish in the sun.

most of the comments up to then had been pretty lame, with never a response from the man, however it had just turned some kind of corner, with some pithy input, now it's blown clear to hell.

i found the 'blow-job' girl at p. navona rap appropriate for a late night raunchy comedy gig, but completely over the top for one under the auspices of die pietro, not that he can't use a little help lightening up, lol.

the only difference i see these days since tangentopoli is he's jowlier, less the magister, many more lasagnas under his belt. he still has gravitas though, and some fire in his belly.

sigh, the honest ones don't do cunning, and vice-versa.

 ...e vince il furbo

'The history of public debt is full of irony. It rarely follows our ideas of order and justice.' Thomas Piketty

by melo (melometa4(at)gmail.com) on Wed Jul 9th, 2008 at 09:25:13 AM EST
[ Parent ]
As expected Sabina and Grillo's exhibitions have caused an uproar both on the left and right. The church and Berlusconi ride the moral high horse and deplore the vulgarity of the two. Veltroni says that after last night things have changed. I suppose it means that the PD will break with Di Pietro.

In the end what carries the day are ad personam attacks on all who were present with no attention to content.

It no longer amazes me that B can attend Nazi-Fascist rallies with idiots chanting "Duce!" and "Heil Hitler!" and no one even writes about it. Charming fascist chic quirks of a merry old man. But let a comedian attack him and the whole political scene quivers with postured indignation. Poor Italy.

by de Gondi (publiobestia aaaatttthotmaildaughtusual) on Wed Jul 9th, 2008 at 12:57:05 PM EST
[ Parent ]
i'm becoming convinced italians need their pols to be buffoons. anything else wouldn't be dramatic enough.

nothing is despised more than plodding, careful good judgement, booooring...

the cosy combination between politics and the media here should be dismantled by the EU right away, like yesterday, serving as cautionary tale for the other democracies.

it's as bad a combo as politics and religion...

viva beppe, tho' his english language site is being invaded by troll posts, sad to say.


'The history of public debt is full of irony. It rarely follows our ideas of order and justice.' Thomas Piketty

by melo (melometa4(at)gmail.com) on Sun Jul 6th, 2008 at 12:46:58 PM EST
This is off the theme here but I thought you'd like to know. Concerning your recent diary on Rifkin and energy in Southern Italy and your comment, news breaks today on the mafia penetration into aeolian energy projects in Puglia. Enourmous opportunities!

La mafia punta sugli impianti eolici

by de Gondi (publiobestia aaaatttthotmaildaughtusual) on Sun Jul 6th, 2008 at 03:06:57 PM EST
[ Parent ]
till the 'greening' of the mafia.

at least they have the capital to launder invest, lol!

'The history of public debt is full of irony. It rarely follows our ideas of order and justice.' Thomas Piketty

by melo (melometa4(at)gmail.com) on Mon Jul 7th, 2008 at 12:13:17 AM EST
[ Parent ]


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