US embassy cable - 05ROME684

UNCLAS  ROME 000684 
 
SIPDIS 
 
 
E.O. 12958: N/A 
TAGS: PHUM, ELAB, PGOV, IT 
SUBJECT:  ITALIAN JUSTICE: SLOW AND INCREASINGLY 
DYSFUNCTIONAL 
 
REF: MILAN 34 
 
1.  Summary.  The uproar over a Milan justice's decision to 
free accused terrorists because they allegedly fit the 
definition of guerrilla war-fighters (reftel) is only one 
indicator of ongoing problems in the Italian judicial 
system.  At the inauguration of the judicial year, the Chief 
Prosecutor of the Cassation Court announced that an 
astonishing 81% of reported crimes went unpunished. 
Extensive trial delays forced plaintiffs and defendants to 
increasingly use alternative out-of-court settlements based 
on mediation and arbitration.  Citing constitutional 
concerns, President Ciampi returned to Parliament for 
revision the 2004 judicial reforms proposed by the 
Government.  Magistrates have gone on strike twice to oppose 
these reforms, arguing they will politicize a fiercely 
independent judiciary.  Meanwhile, PM Berlusconi has long 
alleged that the judicial system is politically biased 
towards the left.  Biased or not, the system is increasingly 
dysfunctional and undermines efforts to combat crime, 
1retain citizens' trust and attract foreign investment.  A 
structural overhaul of the judiciary system would require 
amending the Constitution, a huge undertaking that so far 
does not rank as a priority for the Berlusconi Government. 
End Summary. 
 
2.  At the beginning of the judicial year in January, the 
Chief Prosecutor of the Cassation Court, Francesco Favara, 
issued a warning about growing problems in the judiciary. 
He stated that in 2004 almost three million crimes were 
reported to authorities, and an astonishing 81% of these 
crimes went unpunished.  This includes about half of all 
murders.  When justice is delivered, it takes a long time. 
The European Court of Human Rights has repeatedly issued 
judgments against Italy for excessively long trials.  Favara 
reported that the long duration of proceedings - 
investigation, trial and appeal phases last an average total 
of five years for criminal cases and eight years for civil 
cases - spawned in 2004 an 11 percent increase in out-of- 
court settlements via arbitration and mediation by 
frustrated citizens and businesses. 
 
3.  Critics of the justice system cite several reasons for 
the problems: the large number of minor offenses in the 
penal code; unclear and contradictory legal provisions; 
excessively long pre-trail detention, each prosecutor's 
complete freedom to set prosecutorial priorities; and 
insufficient resources, including an inadequate number of 
judges.  The fact that every single crime that comes before 
a prosecutor, from allegations in the media to formal 
charges in legal channels, must be investigated creates a 
heavy workload that impedes speedy prosecution of serious 
crimes. 
 
4.  In his January remarks, Favara pointed out that the slow 
pace of justice also often leads to either the expiration of 
the statute of limitations, where the criminal goes free, or 
a late punishment, which appears as delayed vengeance. 
Foreign businesses complain that long judicial proceedings 
over labor, intellectual property rights and commercial 
litigation discourage foreign investment. 
 
5.  In December 2004, the Parliament approved a judicial 
reform package pushed by the Berlusconi Government to 
"depoliticize" the judiciary and make it more efficient. 
The measure alters the current structure of magistrate's 
careers into separate tracks for prosecutors and judges and 
gives chief prosecutors the responsibility to prioritize 
cases. Magistrates fought the reforms and went on strike 
twice to oppose them.  Citing Constitutional concerns, 
President Ciampi sent the measure back to the Parliament for 
revision; the Government is preparing an amended bill and is 
confident it can address these concerns without altering the 
substance of the reforms.   Critics suggested the measure 
was an assault on the independence of the judiciary by 
Berlusconi because he himself has been the subject of 
several judicial inquiries.  (Comment: In fact, Italy's 
Constitution grants the judiciary significant independence 
from political interference; however, some influential 
magistrates are the product of a 1970's program by the 
Communist Party to place their members in the judiciary.) 
 
6.  In controversial moves, the Government succeeded in 
winning Parliamentary approval in 2003 for legislation 
granting immunity from prosecution for the country's five 
highest officials (later abrogated by the Constitutional 
Court) and in 2004 from the Chamber of Deputies for a 
measure to limit the statute of limitations for crimes other 
than terrorism, kidnapping and Mafia-related activity. 
Some critics suggested the first bill was to give Berlusconi 
immunity, and the second to help former Berlusconi advisors 
 
 
facing corruption charges. Without citing specifics, Favara 
suggested that limiting the statute of limitations might 
create an amnesty for several criminals facing current 
charges.   Anna Finocchiaro, an MP from the center-left DS 
Party, suggested that reducing the statute of limitations 
would undermine the credibility of institutions and the 
security of citizens.  This week, Berlusconi and Ciampi 
sparred publicly over the proposal to shorten the statute of 
limitations, with Berlusconi accusing Ciampi of listening to 
the concerns of the left.  The debate has practical and 
occasional high-level implications.  In November 2003, 
Berlusconi's former lawyer and one-time defense minister was 
sentenced to five years' imprisonment for bribing a judge in 
1991; the case is pending in the appeals courts.  In 2004, 
Berlusconi was acquitted of a bribery charge dating back to 
2000; another charge was dropped after judges ruled the 
statute of limitations had run out. 
 
7.  Favara did not express a public view on the judicial 
reform bill itself but commented that, in order to improve 
the entire judicial system, it has to be accompanied by a 
deep revision of the criminal code and judicial procedures. 
Minister of Justice Roberto Castelli agreed, arguing that 
the total number of crimes has to be reduced to allow 
magistrates to focus on the most important cases.  The 
leader of the Daisy Party (the second largest party of the 
center-left), Francesco Rutelli, warned that the 
government's reform would establish a hierarchical structure 
in prosecutors' offices, and the resulting bureaucracy would 
undermine citizens' rights. Luciano Violante, currently an 
MP for the Democrats of the Left Party (and formerly sponsor 
of  the program to recruit Communist magistrates), suggested 
that the measure would force magistrates to spend 40 percent 
of their time preparing for exams needed to advance their 
careers. In his view, the government's bill focused on 
modifying checks and balances between politics and judiciary 
instead of improving citizen services.  There has been 
little substantive discussion about the need to streamline 
judicial procedures. 
 
8.  Comment:  The slow, ineffective pace of justice and 
allegations of political interference by both the right and 
the left undermine citizen trust in government, with 
consequences affecting everything from lax parking 
enforcement to the growth of the underground economy, 
continued mafia activity, and Italy's inability to attract 
significant foreign investment.  Critics of the recent Milan 
justice's ruling to free accused Islamic terrorists argue 
that judicial reform is now also important for the war on 
terrorism.  The Government is taking steps to limit the 
impact of the Milan decision and is reviewing whether anti- 
terrorism laws should be clarified and/or strengthened. 
Meanwhile, we expect a revised version of Berlusconi's 
judicial reform will be finalized this year but will provide 
only a partial solution.  A structural overhaul of the 
judiciary system would require amending the Constitution, a 
huge undertaking that so far does not rank as a priority for 
the Berlusconi Government. 
 
Sembler 
 
 
NNNN 
 2005ROME00684 - Classification: UNCLASSIFIED