The judges and political corruption in Italy

Journal of Law and Society

Volumn 23, Issue 1, 1996, Pages 95-112

  Nelken, David ^a,b  

^a CARDIFF UNIVERSITY   (United Kingdom)

^b Macerata University   (Italy)

Author keywords

[No Author keywords available]

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EID: 0030527192     PISSN: 0263323X     EISSN: None     Source Type: Journal    
DOI: 10.2307/1410469     Document Type: Article

References (52)

1. Much of the material used in this paper has also been used in an earlier form in D. Nelken, 'A Legal Revolution: The Judges and Tangentopoly' in The New Italian Republic: From the fall of the Berlin Wall to the rise of Berlusconi, eds. S. Gundle and S. Parker (1996) 199-205.
2. For the first few months Tangentopoli depended on the independent initiative of a few Milan judges (apart from the somewhat ambiguous involvement of the Rome courts). By April 1994 Naples (which only brought to light its first serious case a year later than Milan) just headed the list of arrests with 633; Milan had 623 and Rome 444 cases. (L'Espresso - 3 June 1994).
3. 'The first Republic did not expire in Parliament but in the Milan Court of Justice. It did not fall at the barricades but through the bringing of criminal charges. A revolution guided by judges is without historical precedent.' (Enzo Biagi, preface to M. Andreoli, Processo All' Italia (1994).)
4. A continuing matter of concern was whether the judges were being even-handed with the political parties in choosing when, where and how to investigate. But the main procedural criticisms centred on pre-trial practices. In one way or another, the names of those under investigation promptly found their way to the media so that the so-called right of notification became instead a guarantee of notoriety. Accused individuals were allegedly often kept in prison in order to force them to confess and to compromise others. The judges defended their interpretations of their powers arguing that there was real danger of interfering with evidence and that only a willingness to collaborate showed that the crime would not be repeated (because they would no longer be considered trustworthy accomplices). The way the Cusani trial was staged for television also brought criticism of Di Pietro from the presiding judge (see, for example, G.M. Flick, Lettera a un procurator della Repubblica (1993), and presiding judge Tarantola's sentence in the Cusani trial). In general, the investigations were little hindered by the new controls over prosecution (supposedly characteristic of the accusatorial process) which had been introduced by the new Code of Criminal Procedure.
5. According to Giovanni Flick, a leading Law Professor and criminal lawyer (he was counsel to Raul Gardini), Tangentopoli took place against a background 'of decades of being accustomed to obscurity, compromises, and to the culture of the illegal, where there was general indifference towards improper interconnections between politics, public administration and business, and in a panorama, amongst other things of total disapplication of the penal norms concerning the financing of the parties' (id., p. 112).
6. Andreoli's book (op. cit., n. 3), a reportage of events by a journalist 'insider', is one of the first detailed accounts of Tangentopoli, but it has a tendency to read motives backwards in the light of the Cusani trial.
7. D. Nelken, 'Stopping the Judges' in Politics in Italy, ed. D. Kertzer (1996).
8. By the end of 1993, it was reported that 1,456 businessmen, civil servants, and national and local politicians had been charged, including 251 MPs and four former prime ministers. Ten suspects had killed themselves - or, in some cases perhaps, been killed (S. Sullivan, 'Shame without end' Newsweek, 13 December 1993 , p. 20).
9. Amongst other differences in criminal procedure which are particularly relevant in a comparison with England are the proactive role of the prosecutor (or, more exactly, prosecuting judge) who directly organizes the work of the police.
10. See C. Guarnieri, Magistratura e Politica: pesi senza contrappesi (1993), and C. Guarnieri, 'Justice and Politics in a Comparative perspective' (1994) Indiana International and Comparative Law Rev. 241-57.
11. See C. Guarnieri, Magistratura e Politica: pesi senza contrappesi (1993), and C. Guarnieri, 'Justice and Politics in a Comparative perspective' (1994) Indiana International and Comparative Law Rev. 241-57.
12. There is also the issue of how many or how few resources are provided to the courts - which is one area where the Italian political system has considerable powers of conditioning the work of the judges.
13. The major groupings, from left to right, are Magistratura Democratica, Movimenti Riuniti, Unità per la Costituzione, and Magistratura Independente.
14. Considerable ambiguity was created by the fact that Di Pietro and other leading protagonists of Tangentopoli were widely described as judges even while carrying out the role of prosecutors.
15. It is fiendishly difficult to find or produce neutral descriptions of judicial organization in Italy. Discussions of judicial independence, like most debates in Italy, tend to be highly politicized, with each side concentrating on the weaknesses of their opponents' positions. This is even truer now that Tangentopoli is seen by some as having demonstrated the value of the Italian conception of 'independence' and by others as delaying the much needed attempts to 'modernize' the judicial apparatus in line with its European neighbours. The plausible argument that extreme autonomy from politics only encourages indirect and uncontrollable forms of political co-optation is met by the reply that anything less is unacceptable in a country where the former Prime Minister is now charged with helping the Mafia, the former Interior Minister with assisting the Camorra, and the former Minister of Justice with corruption. Guarnieri (op. cit., n. 10) provides the best discussions of the anomalies of Italian judicial organization but he is not concerned to ask how far it can be justified in terms of the peculiarities of the society in which judges presently have to operate. For an exposition of the (left-wing) view that the debate over the politicization of the judges is itself politically inspired, see, for example, S. Senese, 'Sovranita popolare e potere giudiziario' in G. Azzariti et al., Il Potere dei Giudici (1994) 71.
16. It is fiendishly difficult to find or produce neutral descriptions of judicial organization in Italy. Discussions of judicial independence, like most debates in Italy, tend to be highly politicized, with each side concentrating on the weaknesses of their opponents' positions. This is even truer now that Tangentopoli is seen by some as having demonstrated the value of the Italian conception of 'independence' and by others as delaying the much needed attempts to 'modernize' the judicial apparatus in line with its European neighbours. The plausible argument that extreme autonomy from politics only encourages indirect and uncontrollable forms of political co-optation is met by the reply that anything less is unacceptable in a country where the former Prime Minister is now charged with helping the Mafia, the former Interior Minister with assisting the Camorra, and the former Minister of Justice with corruption. Guarnieri (op. cit., n. 10) provides the best discussions of the anomalies of Italian judicial organization but he is not concerned to ask how far it can be justified in terms of the peculiarities of the society in which judges presently have to operate. For an exposition of the (left-wing) view that the debate over the politicization of the judges is itself politically inspired, see, for example, S. Senese, 'Sovranita popolare e potere giudiziario' in G. Azzariti et al., Il Potere dei Giudici (1994) 71.
17. Giuseppe di Federico ('Obbligatorietà dell'azione penale, coordinamento delle attività del pubblico ministero e loro rispondenza alle aspettative della comunitä (1991) XCVI La Giustizia Penale 147-71) has waged a steady campaign for the law to recognize the need to structure prosecution discretion in the light of the empirical realities of its exercise (since failure to acknowledge discretion may make its exercise all the more uncontrollable). But, as he is the first to admit, he has not managed to separate the reception of his research from the wider controversy over the alleged politicization of the judges and the need to cut back their powers.
18. See E. Halevy-Etzioni, 'Comparing Semi-Corruption among Parliamentarians in Britain and Australia' in Comparative Methodology, ed. E. Oyen (1990) 113-33.
19. Flick, op. cit., n. 4, p. 104 denounces the readiness of Italian politicians 'with one hand to elaborate laws that are known to be inapplicable and with the other to agree . . . the methods to be used to getting round them'.
20. See, further, D. Nelken, 'Whom can you trust? The Future of Comparative Criminology' in The Futures of Criminology, ed. D. Nelken (1994) 220-44.
21. 'There is something unreal about the sudden arrival of the reign of the judges, a little like the history of the conquistadors who brought about the fall of Montezuma's great empire' (G. Bocca, Metropolis, (1993) 156).
22. According to newspaper polls, reports of public protests against fallen politicians and administrators - and the vogue for 'we love Di Pietro' logos printed on the T-shirts worn to fashionable discotheques.
23. Much more could be said about the role of the media. On the one hand, Tangentopoli could not have happened without the collaboration of the newspapers and television - both in reporting the investigations and transmitting the Cusani trial - if only because otherwise (lengthy) 'legal time' and (swift) 'political time' would not have coincided. (La Repubblica, one of the two major selling newspapers, particularly identified itself with the anti-government crusade). Tangentopoli for a time became a media 'event', somehow managing to produce good theatre, as opposed to the 'bad theatre' of the Moro affair (see R.E. Wagner-Pacifici, The Moro Morality Play (1986)). On the other hand it is essential to appreciate that in Italy it tends to be the investigating judges, rather than the media, who first uncover scandals (see D. della Porta, Lo Scambio Occulta: Casi di corruzione politica in Italia (1992)). Italy is a society where newspapers are unafraid to show their colours (even the recently launched Independent soon abandoned its efforts at impartiality). Where multiple truths openly compete it is the judges, if anyone, who are most authorized to establish what is sometimes referred to as 'the true truth'.
24. Much more could be said about the role of the media. On the one hand, Tangentopoli could not have happened without the collaboration of the newspapers and television - both in reporting the investigations and transmitting the Cusani trial - if only because otherwise (lengthy) 'legal time' and (swift) 'political time' would not have coincided. (La Repubblica, one of the two major selling newspapers, particularly identified itself with the anti-government crusade). Tangentopoli for a time became a media 'event', somehow managing to produce good theatre, as opposed to the 'bad theatre' of the Moro affair (see R.E. Wagner-Pacifici, The Moro Morality Play (1986)). On the other hand it is essential to appreciate that in Italy it tends to be the investigating judges, rather than the media, who first uncover scandals (see D. della Porta, Lo Scambio Occulta: Casi di corruzione politica in Italia (1992)). Italy is a society where newspapers are unafraid to show their colours (even the recently launched Independent soon abandoned its efforts at impartiality). Where multiple truths openly compete it is the judges, if anyone, who are most authorized to establish what is sometimes referred to as 'the true truth'.
25. Much more could be said about the role of the media. On the one hand, Tangentopoli could not have happened without the collaboration of the newspapers and television - both in reporting the investigations and transmitting the Cusani trial - if only because otherwise (lengthy) 'legal time' and (swift) 'political time' would not have coincided. (La Repubblica, one of the two major selling newspapers, particularly identified itself with the anti-government crusade). Tangentopoli for a time became a media 'event', somehow managing to produce good theatre, as opposed to the 'bad theatre' of the Moro affair (see R.E. Wagner-Pacifici, The Moro Morality Play (1986)). On the other hand it is essential to appreciate that in Italy it tends to be the investigating judges, rather than the media, who first uncover scandals (see D. della Porta, Lo Scambio Occulta: Casi di corruzione politica in Italia (1992)). Italy is a society where newspapers are unafraid to show their colours (even the recently launched Independent soon abandoned its efforts at impartiality). Where multiple truths openly compete it is the judges, if anyone, who are most authorized to establish what is sometimes referred to as 'the true truth'.
26. Much more could be said about the role of the media. On the one hand, Tangentopoli could not have happened without the collaboration of the newspapers and television - both in reporting the investigations and transmitting the Cusani trial - if only because otherwise (lengthy) 'legal time' and (swift) 'political time' would not have coincided. (La Repubblica, one of the two major selling newspapers, particularly identified itself with the anti-government crusade). Tangentopoli for a time became a media 'event', somehow managing to produce good theatre, as opposed to the 'bad theatre' of the Moro affair (see R.E. Wagner-Pacifici, The Moro Morality Play (1986)). On the other hand it is essential to appreciate that in Italy it tends to be the investigating judges, rather than the media, who first uncover scandals (see D. della Porta, Lo Scambio Occulta: Casi di corruzione politica in Italia (1992)). Italy is a society where newspapers are unafraid to show their colours (even the recently launched Independent soon abandoned its efforts at impartiality). Where multiple truths openly compete it is the judges, if anyone, who are most authorized to establish what is sometimes referred to as 'the true truth'.
27. Much more could be said about the role of the media. On the one hand, Tangentopoli could not have happened without the collaboration of the newspapers and television - both in reporting the investigations and transmitting the Cusani trial - if only because otherwise (lengthy) 'legal time' and (swift) 'political time' would not have coincided. (La Repubblica, one of the two major selling newspapers, particularly identified itself with the anti-government crusade). Tangentopoli for a time became a media 'event', somehow managing to produce good theatre, as opposed to the 'bad theatre' of the Moro affair (see R.E. Wagner-Pacifici, The Moro Morality Play (1986)). On the other hand it is essential to appreciate that in Italy it tends to be the investigating judges, rather than the media, who first uncover scandals (see D. della Porta, Lo Scambio Occulta: Casi di corruzione politica in Italia (1992)). Italy is a society where newspapers are unafraid to show their colours (even the recently launched Independent soon abandoned its efforts at impartiality). Where multiple truths openly compete it is the judges, if anyone, who are most authorized to establish what is sometimes referred to as 'the true truth'.
28. Much more could be said about the role of the media. On the one hand, Tangentopoli could not have happened without the collaboration of the newspapers and television - both in reporting the investigations and transmitting the Cusani trial - if only because otherwise (lengthy) 'legal time' and (swift) 'political time' would not have coincided. (La Repubblica, one of the two major selling newspapers, particularly identified itself with the anti-government crusade). Tangentopoli for a time became a media 'event', somehow managing to produce good theatre, as opposed to the 'bad theatre' of the Moro affair (see R.E. Wagner-Pacifici, The Moro Morality Play (1986)). On the other hand it is essential to appreciate that in Italy it tends to be the investigating judges, rather than the media, who first uncover scandals (see D. della Porta, Lo Scambio Occulta: Casi di corruzione politica in Italia (1992)). Italy is a society where newspapers are unafraid to show their colours (even the recently launched Independent soon abandoned its efforts at impartiality). Where multiple truths openly compete it is the judges, if anyone, who are most authorized to establish what is sometimes referred to as 'the true truth'.
29. Both some judges and PDS spokesmen did make some bad moves at the time of the 1994 general election in attempting to smear Silvio Berlusconi's political campaign with Mafia and Masonic support or to exploit bribery charges being brought against his brother Paulo.
30. F. Cazzola, Della Corruzione (1988); della Porta, op. cit., n. 21.
31. F. Cazzola, Della Corruzione (1988); della Porta, op. cit., n. 21.
32. Recent research by Cazzola and Morisi (F. Cazzola and M. Morisi, 'Magistratura e classe politica. Due punti di osservazione specifici per una ricerca empirica' (1995) XXII Sociologia del Diritto 91-145) has shown that of requests to waive parliamentary immunity, only one in five were allowed. What had changed was the level of allegations concerning crimes against the public purse. Examining the different types of crimes alleged against politicians (political deviance, fraud and administrative crimes, crimes against individuals, and rule breaking more generally), they found that as a percentage of all requests to waive parliamentary immunity, the proportion of crimes against the public administration had gone up from 50 per cent to 80 per cent.
33. M.A. Calabro, Il porto delle nebbie' Micro Mega, May 1993, 89.
34. Andreoli, op. cit., n. 3.
35. As in all historical sequences, there is also 'the play of the contingent and unforeseen' such as the fact of Oscar Scalfaro becoming President after Francesco Cossiga in the wake of the barbaric murder of Judge Falcone. It is not certain that any other President would have taken the firm step of refusing to sign the Amato decree which might otherwise have brought Tangentopoli to an abrupt end.
36. Borrelli announced that by January 1993 his office alone had uncovered evidence of 300 thousand million lire's worth of bribes.
37. The costs of public works, such as building the Milan underground railway, were said to have halved following Tangentopoli. According to Il Resta di Carlino, 10 May 1994, even in areas where public works were largely in the hands of the Communist co-operative construction companies costs went down in the period June-September 1993 by 20 per cent in Bologna, 30 per cent in Ferrara, and 20 per cent in Ravenna.
38. The costs of public works, such as building the Milan underground railway, were said to have halved following Tangentopoli. According to Il Resta di Carlino, 10 May 1994, even in areas where public works were largely in the hands of the Communist co-operative construction companies costs went down in the period June-September 1993 by 20 per cent in Bologna, 30 per cent in Ferrara, and 20 per cent in Ravenna.
39. In Il Carriere della Sera, 17 October 1992, it was estimated that 100,000 people live directly or indirectly off political corruption. This was about one-tenth of the submerged illegal economy as a whole which employs up to a million people.
40. Just over 400 judges had been involved by December 1993 but this was still little more than 5 per cent of the judiciary.
41. G. Colombo, P. Davigo, and A. Di Pietro, 'Noi obbediamo alla legge non alla piazza' Micro Mega, May 1993, 7.
42. From the 1970s on, members of Magistratura Democratica were prone to use Constitutional principles, especially article 3 with its explicit call for equality, as a legal justification for interpreting laws (many of which were left over from the Fascist period) with a left-wing slant. More recent debates amongst influential intellectual figures (see, for example, E. Fassone, 'Essere àsinistra oggi nella giurisdizione' (1987) 4 Questione Giustizia 835-47; L. Grassi, 'Magistratura progressista negli anni '90' (1991) 4 Questione Giustizia 951-9; G. Scarpari, 'Crisi della Sinistra eprospettive della giurisdizione' (1992) 1 Questione Giustizia 177) have begun to erode older certainties that 'the judge of the Left' was characterized by the pursuit of the crimes of the powerful and the defence of the weak, in favour of a new search for legitimation in terms of an ethic of impartial service to the citizenry. Given the mass of crime brought to the attention of judges, the choice of which crimes to proceed against, and when, does have political overtones but the rule of compulsory prosecution has so far made this issue impossible to debate.
43. From the 1970s on, members of Magistratura Democratica were prone to use Constitutional principles, especially article 3 with its explicit call for equality, as a legal justification for interpreting laws (many of which were left over from the Fascist period) with a left-wing slant. More recent debates amongst influential intellectual figures (see, for example, E. Fassone, 'Essere àsinistra oggi nella giurisdizione' (1987) 4 Questione Giustizia 835-47; L. Grassi, 'Magistratura progressista negli anni '90' (1991) 4 Questione Giustizia 951-9; G. Scarpari, 'Crisi della Sinistra eprospettive della giurisdizione' (1992) 1 Questione Giustizia 177) have begun to erode older certainties that 'the judge of the Left' was characterized by the pursuit of the crimes of the powerful and the defence of the weak, in favour of a new search for legitimation in terms of an ethic of impartial service to the citizenry. Given the mass of crime brought to the attention of judges, the choice of which crimes to proceed against, and when, does have political overtones but the rule of compulsory prosecution has so far made this issue impossible to debate.
44. From the 1970s on, members of Magistratura Democratica were prone to use Constitutional principles, especially article 3 with its explicit call for equality, as a legal justification for interpreting laws (many of which were left over from the Fascist period) with a left-wing slant. More recent debates amongst influential intellectual figures (see, for example, E. Fassone, 'Essere àsinistra oggi nella giurisdizione' (1987) 4 Questione Giustizia 835-47; L. Grassi, 'Magistratura progressista negli anni '90' (1991) 4 Questione Giustizia 951-9; G. Scarpari, 'Crisi della Sinistra eprospettive della giurisdizione' (1992) 1 Questione Giustizia 177) have begun to erode older certainties that 'the judge of the Left' was characterized by the pursuit of the crimes of the powerful and the defence of the weak, in favour of a new search for legitimation in terms of an ethic of impartial service to the citizenry. Given the mass of crime brought to the attention of judges, the choice of which crimes to proceed against, and when, does have political overtones but the rule of compulsory prosecution has so far made this issue impossible to debate.
45. Borrelli, the head of the Milan office, was the bourgeois scion of a judicial dynasty. Di Pietro, who was not identified with any of the Judge's Associations, became a judge having first emigrated to Germany and then studied at nights before first working as a policeman. After his resignation he was courted by the parties of the right and was offered (but refused) the post of Minister of the Interior in Berlusconi's line-up for the next election.
46. Andreoli, op. cit., n. 3.
47. The Resto Di Carlino of 10 February 1993 reported that the accused parliamentarians in the previous year included seventy members of the Christian Democrats, fifty members of the Socialist party, ten Republicans, six PDS, six PDSI, four Liberals, and one each of Communism Refounded and the Italian Social Movement.
48. It was not until 14 September 1995, well after the investigations had changed the political scene, that D'Alema, the PDS leader, received his first actual 'avviso di garanzia' regarding alleged involvement in financial illegalities by a Venetian Co-operative.
49. Significantly, instead of finding himself a hero, Luca Magni, the owner of the small cleaning firm whose rebellion against paying a small bribe launched Tangentopoli on its way, found himself excluded from the awards of public cleaning contracts and (still) on the verge of bankruptcy (Panorama, 3 June 1994).
50. Significantly, instead of finding himself a hero, Luca Magni, the owner of the small cleaning firm whose rebellion against paying a small bribe launched Tangentopoli on its way, found himself excluded from the awards of public cleaning contracts and (still) on the verge of bankruptcy (Panorama, 3 June 1994).
51. C. De Ponte, 'Se Di Pietro éun eroe qualcosa non funziona' Micro Mega, May 1993, 63; L. Violante, 'Ideeper una riforme del pianeta giustizia' Micro Mega, May 1993, 52.
52. C. De Ponte, 'Se Di Pietro éun eroe qualcosa non funziona' Micro Mega, May 1993, 63; L. Violante, 'Ideeper una riforme del pianeta giustizia' Micro Mega, May 1993, 52.