US embassy cable - 03ROME3029

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