Italy: Making It Easier to Skirt the Law

Lawyers for the Prime Minister have asked a Milan court to toss out Swiss evidence against his company

Lawyers for Italian Prime Minister Silvio Berlusconi wasted no time applying a favorable new law to a corruption lawsuit against their client. On Nov. 13, they requested that a Milan court toss out evidence gathered from Swiss authorities of false accounting by Berlusconi and associates in his Fininvest holding. Their argument: Evidence sent across the border by Swiss officials lacks authentication and is not valid in Italian courts under a law passed in October by Berlusconi's center-right majority in parliament.

That's just the latest move in an escalating battle between Italian magistrates and the government. Many judges and prosecutors adamantly oppose the law restricting the use of cross-border evidence, saying it violates international agreements signed by Italy. That's why a Milan tribunal on Nov. 12 refused to nullify such evidence retroactively in a case involving oil giant ENI. The government warned that judges must apply the law, "or else pay the price."

DEFANGED? The conflict has thrown Europe's most ambitious anticorruption campaign into reverse. Foreign justice officials and international experts on corruption have joined the magistrates in warning that the Italian government is making it harder to gather evidence and prosecute crimes--including international terrorism and money laundering. Suspected bin Laden-linked terrorists arrested in Milan recently asked that cross-border evidence in their case be annulled. "Italy's anticorruption efforts have collapsed in a welter of political attacks on the judiciary," says Jeremy Pope, executive director in London of Transparency International.

It's hardly surprising that Berlusconi wants to restrain Italy's magistrates. The businessman-turned-Prime Minister claims that Communist magistrates have plotted to destroy him since 1994. That's when they opened investigations that led to indictments against him for bribery, false accounting, and tax fraud. He has been found guilty by lower courts--but acquitted on appeal in several cases and absolved when the statute of limitations ran out in others. On Oct. 19, the country's highest court affirmed convictions against Fininvest managers for bribing tax officials. They acquitted Berlusconi, stating there was no evidence he knew what his associates were doing.

The battle is the legacy of the explosive discovery in 1992 of widespread institutionalized corruption in Italian politics and business. Magistrates launched an unprecedented legal battle against corruption, implicating an entire caste of politicians on the right and left and demolishing Italy's main political parties. Some 500 politicians and businesspeople were convicted.

Now, the Berlusconi government is pushing for an overhaul of the judicial system. It wants to curb the power of magistrates and make them more accountable. Justice officials say the magistrates have become super-investigators--a role better handled by the police--and contend that left-leaning judges have interpreted laws too liberally. "In Italy, judges have gone beyond the law," says Iole Santelli, undersecretary in Rome's Justice Ministry. Magistrates say the government is seeking to limit their independence. "What I see is a growing intolerance of [the legitimate exercise of] judicial power," says Giuseppe Gennaro, head of the national magistrates' association. "Corruption has not diminished."

Berlusconi's critics warn that Italy is sliding backwards in the war against corruption. In October, Berlusconi's government announced it would slash the number of bodyguards available for Mafia-fighting magistrates, many of whom risk murder at the hands of the Cosa Nostra. Santelli says the bodyguards have become "a status symbol" and that the manpower is needed to fight the new threat of terrorism. On Oct. 30, Tano Grasso, Italy's widely admired anti-racketeering commissioner, resigned, saying government interference had made it impossible for him to do his job. The battle is far from over. And when it comes to the debate about cross-border evidence, the country's highest court may have the final word. But the magistrates are clearly on the defensive.

By Gail Edmondson, with Kate Carlisle, in Rome

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