"A priori conviction. It all ended up in the hands of a firing squad."; "Immediately a commission of inquiry"; "Justice out of control"; "It is increasingly difficult not to distrust the judiciary."
QThese are just some of the newspaper headlines on July 1, the day after a television broadcast revealed the audio of a telephone call between Silvio Berlusconi and Judge Amedeo Franco, who died a year ago and was a member of the Section of the Court of Cassation that in 2013 rejected Silvio Berlusconi's appeal, upholding his conviction for tax fraud.
On the basis of this "proof" - yet another smoking gun for the use of readers deemed unwary - the ruling of the Supreme Court should be thrown away, we should be certain that it will be denied by the European Court of Human Rights and, above all, the history of the country should be rewritten, altered and upset by a decision that today would be revealed as "a judicial coup".
The architect and instrument of the conspiracy, desired "from above" and supported with a servile spirit by the members of the panel, was the Court of Cassation.
The text of the phone call
The newspapers report the text of the telephone conversation between Silvio Berlusconi and Amedeo Franco in these terms.
Amedeo Franco: «The President of the Republic (ed. Giorgio Napolitano at the time) knows this very well..»
Berlusconi: «But what does the president know…?»
Franco: «You know it was a mess (editor's note: Berlusconi's conviction). I told Lupo (editor's note, president of the Court of Cassation) "Look, they involved me in this damned affair... if I had known... I would have resigned, I would have pretended to be ill, I would have gone to the hospital because I didn't want to be involved in this thing, in this affair". At this point (Lupo) changed the subject, they don't want to hear it... this is what I hear in others, they pretend it didn't happen. It's destiny, Berlusconi must be convicted a priori, he's a scoundrel, this is reality..."
Franco: «Not everyone, but most of them as soon as it is known that Coppi (editor's note: Franco Coppi, Berlusconi's lawyer) defended her... "Ah, look, Coppi was corrupt!", everyone who has anything to do with her is corrupt. In my opinion, he was treated unfairly and suffered a grave injustice... we had the suspicion, several people who shared my opinion, colleagues who are not his supporters, his political admirers, or rather political adversaries who are however honest people, had the impression that the affair was guided..."
Berlusconi: «From above?»
Franco: «…from above! The trial is very strange, many people, even retired people, come to me and say “surely a dirty trick was done there because what’s the point of sending it to the weekday section (editor’s note: the weekday section of the Court of Cassation)? It takes a minimum of open-mindedness to understand such a delicate issue, go to the competent section, not to the section where there are five people and then only one person understands. The weekday section was made with the last arrivals, kids… it was a traumatic decision, it was subject to pressure and so on. I said: “I’m not writing this sentence, if you want I can sign it because I’m only doing the background but here you all sign because I’m the only one otherwise I won’t sign it”…»
Berlusconi: «…and they were very determined, instead…»
Franco: «They are determined…bad faith, perhaps. Bad faith of the president for sure…»
Berlusconi: «The president's bad faith exists! They say he was going…»
Franco: «…from the Milan prosecutor's office because his son is there…The prejudices that were there were bound to be…it could have been avoided that he ended up in the hands of this firing squad, as happened».
Franco: «From the beginning I have always been an admirer of his, all of them, I have always been…not of the last hour, let's say, even if I have to keep quiet because in that environment it is better not to speak. This thing has deeply disappointed me because I have spent my whole life in this environment and it disgusted me, to tell the truth… because at the time I was taking the exam and I continued to be a university professor, I would not become a magistrate if this is the way to do it to…hit people, political opponents…I have different opinions on legal justice, so…go to hell, go».
The reasons, now unfathomable, for the telephone conversation
We do not know what or who prompted Amedeo Franco to make a phone call to a convicted person after having actively participated in a collegial decision to confirm his conviction. Nor how and why this conversation was promptly recorded.
In particular, we ignore the reasons, noble or otherwise, that led the magistrate to commit a crime - the violation of the secrecy of the council chamber - to confess to another illicit conduct, namely having signed a decision that he personally considered contrary to the law and to his conscience.
Nor do we know whether the conversation took place at a time when the magistrate was embittered at having been reached, in March 2017, by an accusation of corruption brought against him by the Rome Prosecutor's Office for having exerted, when he was already retired, undue pressure on a Supreme Court judge who had reported the incident.
The disclosure of a telephone conversation dating back in time, which occurred "after" the death of Judge Franco, seems to preclude any possibility of investigation in this regard, just as it prevents any further revelation, explanation, or response on his part to the many questions that his statements raise.
Anyone who retains, even in the current jungle, a minimal sense of pietas would be tempted to say “Parce sepulto” and draw a veil over such an ambiguous affair.
But the gigantic speculation that has been mounted in recent days since that phone call and the wave of suspicions raised on every aspect of the trial before the Court of Cassation, forces us to reason, this time mercilessly, about the facts and to deal with their traditional "stubbornness".
The judge
The first “fact” directly concerns the judge who issued the sentence: the Summer Section and not the Third Section of the Court of Cassation normally competent for tax crimes.
As statistics confirm, the Court of Cassation has always been strongly committed to preventing the statute of limitations for crimes from maturing within the time frame of the legitimacy judgment.
To this end, careful preventive control of appeals is exercised through the "preliminary examination offices" operating in all Sections which - in assessing the nature and degree of complexity of the appeals - also carry out an initial calculation of the limitation periods of the crimes which are the subject of the legitimacy judgment.
Naturally, the final word on the expiry of the statute of limitations lies with the judging panel, but the notification of the office that first examines the appeal is extremely relevant for the purposes of setting the date of the hearing.
In the tax fraud trial involving Silvio Berlusconi, this practice was followed which, moreover – in the case of uncertainties or particular legal problems concerning the calculation of the statute of limitations – follows a rule of elementary caution: the option for a hearing date that certainly exempts the proceedings from the declaration of statute of limitations.
The Summer Section of the Court of Cassation was therefore not invested with the trial as an ad hoc, improvised or makeshift judge, but as the predetermined and therefore “natural” judge of the trial identified in accordance with the rules of organization and ordinary functioning of the Court.
Only the designation of the Summer Section would have in fact allowed us to certainly avert the risk that the trial would end with the formula "because the crime has expired due to the statute of limitations" and would arrive - as at least in words everyone always hopes - at the natural epilogue of a pronouncement of liberation for the accused or confirmation of the sentence decided by the judges of merit.
The sentence
The second aspect of the story directly concerns the sentence “disavowed” by telephone by one of its authors.
In a legal system such as the Italian one, a judge can – completely legitimately – disagree with the other members of the panel.
This does not affect the validity of the decision taken by the panel for which unanimity is not required, but it does not mean that the dissenter is deprived of the tools to leave a trace of his dissent in the records or even – when he is the rapporteur of the case – to make a signal of his position emerge outside the council chamber.
The law on the civil liability of magistrates allows a judge who disagrees with the collegial decision to draw up a form (kept in a special archive) in which he explains the reasons for his different conviction in order to avoid a future liability action.
Furthermore, a judge cannot be forced to motivate a sentence that he does not agree with and in any case may not be "a good example" of theses in which he does not believe. Therefore, the reporting judge of a case, who is usually also designated to draft the motivation, can legitimately ask to be exempted from this task and to be replaced by one of the judges who contributed to adopting the solution that prevailed in the council chamber.
There is no evidence that Judge Franco drafted any “confidential statement” under the Civil Liability Act, nor that he refused to appear at least as a co-author of the decision adopted in the trial.
Jurisprudence
Certainly less linear because the issue of whether or not the sentence adopted complies with the Court's jurisprudence is more complex, also because the phone call does not go beyond a few truncated and allusive sentences.
On this point, one can only refer to the precedents of the Third Section of the Court of Cassation cited in the ruling and to the arguments developed in the careful indictment of the Attorney General. This latter body is a full participant in the Court's nomophylactic work and - as anyone who knows the Court of Cassation in the slightest knows - has never shown any hesitation in differentiating its position from that of the prosecutor's offices operating in the merit levels of the judgment.
Moreover, the principle of law according to which "it is possible to configure the complicity in the crime referred to in art. 2 of Legislative Decree no. 74 of 2000 of those who - despite being outsiders and not holding positions in the company to which the fraudulent declaration refers - have, in any way, participated in creating the fraudulent mechanism that allowed the company director, signatory of the fraudulent declaration, to avail himself of the fictitious tax documentation" includes numerous precedents (judgments no. 14855 of 2011, no. 48498 of 2011, no. 5642 of 2012, no. 19247 of 2012, no. 23229 of 2012, no. 19025 of 2013).
Rather, one can once again ask why the most experienced and specialized judge in the field of tax crimes, namely Amedeo Franco himself, was unable or unwilling to distance himself from a decision that appeared to him to be unjust and contradictory, sacrificing, as stated in the telephone call, fidelity to his own jurisprudence.
The fact remains that when in a subsequent ruling – no. 52452/2014 of the III section – the author Amedeo Franco wrote that the case examined was similar to that of the trial against Silvio Berlusconi in which however the decision had been different, the President of the Court of Cassation intervened with a statement clarifying that these were different cases and underlining the breadth and validity of the arguments developed in the decision of the Berlusconi trial regarding the so-called carousel frauds.
Still in the field of jurisprudence, the ease reaches its peak when it is stated that a first-instance ruling by the Civil Court in the case brought by Mediaset against Frank Agrama would have "overturned", nullifying it, a definitive ruling by the Criminal Court of Cassation issued at the end of three levels of judgment.
An astonishing way of reasoning capable of astounding readers, whether they are jurists or not, but which does not make the unbridled supporters of the plot, the conspiracy, the rewriting of history starting from a phone call and a sentence deemed to be beneficial to the "cause" (this time understood as the ultimate political goal) retreat one step.
Some notes on costume
In this short article we were only interested in lining up some facts to highlight the contrast between their linearity (always difficult to explain when talking about matters of justice which are notoriously complicated) and the outcry raised on the basis of the posthumous revelation of a telephone call.
From the way in which this episode is today artificially represented, used, exploited, we understand that nothing will be spared from justice and the judiciary.
And we understand that no one is safe from attacks and insinuations, which have now become common language in a part of politics when talking about issues of justice.
This is not the case for the magistrates of the Supreme Court who are members of the judging panel in the Berlusconi trial, who – on the basis of the statements of a judge who, if anything, is revealing “his” seriously incorrect behaviour – are being pointed out to public opinion, without hesitation or distancing, as incompetent and servile executors of orders and soldiers in a firing squad.
The previous President of the Republic Giorgio Napolitano is not, now the victim of systematic allusions and denigrations and above all of the bad habit of evoking at every turn interventions and maneuvers "from above" by mediocre characters in their mediocre affairs. A bad habit so widespread that it sometimes even touches the President in office, albeit in terms that are for the moment more oblique and evasive.
The field is now open to the wildest insinuations, the boldest and most brutal syntheses, the most arbitrary invocations. Like that of establishing a parliamentary commission of inquiry destined to shed “clarity” on the past, present and future, perhaps following in the glorious footsteps and working style of other commissions such as Mitrokhin and Telekom Serbia, whose brilliant results are available to anyone.
It is not yet the time for physical gatherings, precluded by the virus. Has the time come for the judiciary to promote a new ideal gathering in common defense of the first and essential principles of jurisdiction and of correct information on judicial events?
Article published on 2 July 2020 - 13:45
