Identifier
Created
Classification
Origin
03ROME3029
2003-07-03 10:30:00
CONFIDENTIAL
Embassy Rome
Cable title:  

BERLUSCONI, THE ITALIAN JUDICIARY AND EUROPEAN

Tags:  PGOV PHUM EU IT EUN 
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C O N F I D E N T I A L ROME 003029 

SIPDIS


DEPARTMENT FOR P, E, EUR, EB AND INR

E.O. 12958: DECL: 07/02/2013
TAGS: PGOV PHUM EU IT EUN
SUBJECT: BERLUSCONI, THE ITALIAN JUDICIARY AND EUROPEAN
OPINION

Classified By: POL M/C Tom Countryman, Reasons 1.5 (b) and (d)

C O N F I D E N T I A L ROME 003029

SIPDIS


DEPARTMENT FOR P, E, EUR, EB AND INR

E.O. 12958: DECL: 07/02/2013
TAGS: PGOV PHUM EU IT EUN
SUBJECT: BERLUSCONI, THE ITALIAN JUDICIARY AND EUROPEAN
OPINION

Classified By: POL M/C Tom Countryman, Reasons 1.5 (b) and (d)


1. (C) Summary: On the cusp of Italy's EU presidency, the
Berlusconi government's agenda has been eclipsed publicly by
the Prime Minister's renewed rhetorical assaults on the
Italian judiciary (septel addresses the furor caused by
Berlusconi's offensive outburst in the European Parliament
July 2). Judged strictly by media coverage, it would appear
to be anything but a fair fight. The reality is much more
complex: Italy's judiciary is a politicized, corporatist
institution concerned first and foremost with
self-preservation and only secondarily with improved
administration of justice. It also includes a collection of
left-leaning magistrates who are exploiting their
independence to pursue overtly political objectives,
including taking down the prime minister. In Berlusconi,
the judiciary has cultivated its most tenacious adversary.
Overheated commentary belies a murkier truth: the Italian
judiciary is determined to defend its enormous, largely
hidden power from a prime minister whose rhetorical assaults
tap popular frustration with an inefficient judicial system
largely removed from public life. End Summary.


2. (U) Pick up any European newspaper these days, and one is
likely to see at least one article lamenting Italian PM
Berlusconi's turn at the helm of the European Union.
Berlusconi the media magnate injects an unpredictable element
into august EU deliberations and diplomacy, we are cautioned.
His disrespect for established institutions and conventions
is dangerous. As evidence, commentators cite the sheaf of
legal proceedings against Berlusconi on bribery and other
charges, his rhetorical assaults on Italy's judiciary and new
legislation affording Italy's highest public officials
limited immunity while in office (which restores protections
some of these officials enjoyed prior to the early-90's
corruption scandals and is similar to the immunity enjoyed by
leaders of most EU members).


3. (C) Much of the commentary strikes us as intra-EU
one-upmanship, given the number of Berlusconi's EU colleagues
who would join him in the dock on similar charges absent

their national immunity provisions. But we find the
depiction of a Berlusconi bent on blowing up an established
institution surprisingly unsophisticated in its analysis of
Italian politics. Casual observers might conclude that
Berlusconi's outright control of, or influence over, much of
Italy's media make this battle of wills with the magistrates
something less than a fair fight. But the Italian judiciary
wields some powerful weapons of its own in defending its
position and power:

-- constitutional protection mandating its independence and
self-administration;

-- a constitutional provision directing the judiciary to
investigate all crimes or reports of offenses that in
practice provides prosecuting magistrates the latitude and
flexibility to set their own priorities -- to investigate
whomever they wish, for however long they wish. The
judiciary, not the government, decides which cases to
prosecute and, largely, to investigate.

-- an appellate process that allows either prosecution or
defense to appeal verdicts and sentences, leading to frequent
retrial of cases, often with additional evidence.

4. (C) While we certainly don't agree with all of
Berlusconi's domestic commentary, he's objectively right on
two points: that Italy's judiciary is a closed system
shielded from oversight by either government or voters; and
that some of its members are exploiting their
constitutionally protected position to pursue a political
agenda.


5. (C) Italy's judiciary is an insular, self-regulated and
self-governing entity. It is a career service where
advancement comes largely through longevity and patronage of
more senior colleagues. The judiciary takes funding from the
national government via annual budget allocations, but not
much else. Certainly not advice. But this insular,
corporatist mindset has not replaced political orientations;
far from it. Most magistrates have strong political views,
gravitating toward either left or right, even if they eschew
conventional politics. And some see it as their business
(their constitutional duty, even) to steer the course of
Italian democracy through judicial activism: through their
choices about which case they will investigate and try. The
largest bloc on the judiciary's self-governing board
(positions for which magistrates run on virtual party
tickets) hails from the philosophical grouping in which this


vision of judicial activism finds currency.


6. (C) What does all this add up to? A judicial system that
is insular, inflexible, inured to criticism and unchecked by
government or public oversight. Does Berlusconi's criticism
of the judiciary ring true? Many observers think at least
some of his charges do, notably the European Court of Human
Rights. Italy accounted for over half the ECHR's rulings
overturning verdicts in 2001, mostly for exceeding statutes
of limitations for ponderously slow trials. So do an
increasing number of Italians, according to recent polling in
which only a third of respondents said they trusted the
judiciary.


7. (C) Berlusconi's overwrought attacks on the judiciary, as
well as some of the government's legislative proposals, are
self-serving and politically-motivated -- but so are the
actions and decisions of many magistrates. Some left-leaning
magistrates openly characterize the judiciary as an overtly
political institution, one whose responsibilities include
restraining those in power. Berlusconi's criticism taps into
a wider disaffection among many average Italians over the
judicial system's inadequacies. Many Italians believe
magistrates pursue high-profile cases to the exclusion of the
sorts of bread-and-butter prosecutions that affect people's
daily lives. Former PM Andreotti, considered a "good
Catholic" and good man by most Italians, was convicted last
November, at age 83, of conspiring to commit murder to
protect alleged kickback arrangements; the alleged murderers
were acquitted for lack of evidence. Andreotti had
previously been both convicted and acquitted of the charges
in investigations and trials stretching back to 1993.


8. (U) Last year, the government proposed a reform package to
improve judicial performance and efficiency, notably by
restricting the revolving door between prosecuting and
judging cases, requiring more in-service training, tying
advancement more directly to performance and giving
parliament a role in prioritizing cases to be pursued. The
magistrates' reply was to label the package -- or any
reforms proposed by government or parliament -- as an
intolerable assault on judicial independence and, by
extension, an attack on the constitution itself. Then they
staged a one-day strike.


9. (C) Berlusconi attracts criticism, both within and outside
Italy, as much for what he is -- an outsider -- as for what
he says and does. It strikes us that it's Berlusconi's
penchant for criticizing establishment institutions, whether
Italian courts or European councils, that so annoys and
angers European commentators. Scratch the surface of angry
reaction to any of his critiques, and one usually finds a
smugness justified largely by Berlusconi's endless legal
scuffles. The critics may have a point -- Berlusconi
ultimately may be ill-suited to the patient
consensus-building required in the Presidency, as his
offensive remarks in the European parliament suggest. But
basing such an assessment on his legal marathon misses the
context and skews the analysis. There's a big difference
between a set of magistrates in Milan and the other leaders
of EU member-states.
Sembler
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2003ROME03029 - Classification: CONFIDENTIAL