Magistrates Vs Politicians in Italy

This is likely to be a hot issue tomorrow. Today, Italy’s highest court of appeals is hearing Berlusconi’s appeal of his conviction for tax evasion and embezzling from his firm. As I wait for their decision, I write about the issue in general.

Things are very different here East of the Channel. There is a very strong tradition of judicial independence. Importantly, prosecutors are magistrates (as are judges) and also independent from elected officials (defence lawyers absolutely hate the fact that prosecutors and judges are part of the same corporate body). Together judges and prosecutors are the “Magistratura”. One becomes a magistrate by scoring high on an exam which is grade anonymously. The magistratura is governed and disciplined by the CSM a committe the majority of whose members are elected by magistrates. Magistrates control promotion and assignment of magistrates. They are really independent.

The magistratura retained some independence during the ventennio (20 years of Fascist rule). The Fascists set up separate special tribunals to persecute their opponents, while the normal magistrates continued semi hemi demi normally. From WWII about until my arrival in Italy in 1989, the legal separation of magistrates and elected officials was one of those things which are important in theory but not in Italy. They were part of an establishement united by anti-communism and corruption. Then a new generation of magistrates became senior enough to be independent and the corruption was prosecuted. Very few powerful people actually went to jail, but the division of power with two independent and hostile parties became explicit.

Aside from criminal prosecution of criminal politicians, there is actually a lot of judicial activism. One judge decided to enforce the provision of the Italian Constitution which guarantees a right to health (not health care health) and ordered doctors to cure cancer (really to provide a quack’s cure). The important and deadly boring part is the TAR di Lazio (regional administrative tribunal of the region which contains Rome). They are constantly ordering ministers to do this or that. They are always ignored.

Huh ? Yes this is another way in which the Channel is very wide. In Italy, judges don’t make the winner of the case own the contested property say. They instruct the loser to instruct some bureaucrats to update an correct the property records. But the loser of the case keeps title until the bureaucrat does something. Failure to obey a judge is not a special crime — contempt of court. It is just failure to do ones job (which is what we Italian public employers do best).

Also civil cases typically take about 10 years. The Supreme Court decided that the rule of law meant it was impossible to force Paula Adams to wait 2 to 6 years to have her absurd case against Clinton thrown out because, according to her version of events, he owed her $0.00 in damages, cause being a jerk isn’t a tort. It is impossible to explain this to Italians. In fact, Italians don’t grasp the idea that sexual harassment is a tort not a crime, because accusations of sexual harassment have effects and, in Italy, torts don’t.

My point, if any, is that I think there is a close connection between the independence of magistrates and the paralysis of the judicial system. Elected officials can’t appoint magistrates, but they do finance the judicial system and write the code of procedure which must be followed. The judicial system is extremely underfunded with unfilled vacancies in support positions, so everything is very slow. The proceudures are extremely complicated and time consuming. Non violent crimes can’t be prosecuted after a statue of limitations expires. This means they are punished only if the time doesn’t expire before all appeals are exhausted. Defence attorneys for crooked politicians basically devote their entire effort to delaying things until their client (who clearly did the deed) gets off because of the time limit (note one for Berlusconi expires tomorrow).

The system is designed to not work, because if it did it would be a threat to the people who make the rules.

Mantenendo fede v mantenendo Fede (keeping faith vs keeping Fede). A very key example is the case of Channel 4, a Berlusconi controlled channel with the amazingly absurd anti journalist Emilio Fede (who I must presume is not a pimp as he hasn’t been tried and convicted). This channel is broadcast illegally for 2 reasons. First the Constitutional court declared the law which allowed Berlusconi to control about half of TV antenae was unconstitutional and had to be changed. Second the consiglio to stato (highest administrative court and place where you appeal TAR di Lazio decisions) declared that the right to broadcast on those frequencies belonged to another firm which broadcasts as LA7.

Nothing happened. The Parliament interpreted the Constitutional Court’s order to deprive Berlusconi of a channel to be an order to say something about digital and let him keep the channels. See the court can’t *do* anything. That court can only order Parliament to do something and they interpret the courts rulign as dishonestly as they interpret the Constitution. I have a cousin who is a full professor of tort-law and he has no idea why the decision of the Consiglio di Stato had no effect.

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