May 12, 2016 by AK
In the previous post, I was talking about the “clean hands” operation launched by Milan prosecutors in 1992, which destroyed the old political order and unexpectedly brought a rightwing coalition headed by Berlusconi to power in 1994. Two things stood out in the conduct of that campaign: its reliance on the excessive powers the judges and prosecutors and the relative powerlessness of the suspects, and its symbiotic relationship with the media, which amplified and simplified the cleansing rhetoric of the Milanese giudici. Keeping these two in mind two helps to understand Berlusconi’s later behavior.
Perry Anderson, the British historian and political theorist (the brother of the late Benedict Anderson, whose Imagined Communities, as I have read somewhere, is required reading for some members of Putin’s presidential administration), wrote in 2002:
Far more pressing, in reality, was the need for reform of Italian justice, with its mixture of a Fascist-derived legal code, arbitrary emergency powers, and chaotic procedural and carceral conditions. Here, indeed, has long been a panorama without equivalent elsewhere in Western Europe. There is no habeas corpus in Italy, where anyone can be clapped into jail without charges for over three years, under the system of custodia cautelare – ‘preventive detention’ – that is responsible for locking up more than half the prison population in the country. Not only can witnesses be guaranteed immunity from prosecution under the rules of ‘repentance’ orpentitismo: they can be paid for suitable testimony by the state without even having to appear in court, or any record being visible of what they receive for their evidence… In the magistracy, there is no separation of careers, and little of functions, between prosecutors and judges… The trial system has three stages, the average length is ten years, and the backlog of cases in the courts is now some three million. In this jungle, inefficiency alone rivals brutality, in part mitigating, in part compounding it.
Also see my translation of Luttwak’s 2013 interview.
Such was the system suddenly mobilised by crusading magistrates against political corruption in the North and the Mafia in the South… Custodia cautelare was deliberately used as an instrument of intimidation. Illegal leaks of impending notices of investigation were regularly employed to bring down targeted office-holders. Tainted evidence was mustered without qualms: in the case against Andreotti, a key witness for the state was a thug who, embarrassingly, committed another murder while on the payroll of the authorities for his deposition. Any idea of separating the careers of prosecutor and judge was attacked with ferocity. The rationalisation of these practices was always the same. Italy was in a state of emergency; justice could not afford to be over-nice about individual rights.
Sounds familiar. Berlusconi’s self-serving counterattacks did little to reform this system. But the EU and the ECHR seem to be putting some salutary pressure on it.