Corruption and anti-corruption: The political defeat of ‘Clean Hands’ in Italy

Abstract

The apparent triumph of the ‘revolution of the judges’ (which in the early 1990s led to talk of a ‘Second Republic’ in Italy) proved to be of short duration. Between the mid-1990s and the early 2000s the question of political corruption was intentionally demoted as a political priority by means of a ‘bi-partisan’ agreement. The ‘Clean Hands’ investigations do not seem to have led to the moral regeneration of Italian politics: available indicators on the diffusion of corruption instead signal high and constant levels. ‘Clean Hands’ opened a window of opportunity for overcoming the various ‘anomalies’ of Italian politics, but the political class was unable or unwilling to seize the moment. Not only is the balance sheet of actions against corruption rather meagre, but profound divisions have emerged in the relationship between the judiciary and the ‘new’ political class.

Notes

1. As Pizzorno (1998: 90–1) observes: ‘The establishment of the Bicameral Commission came to be seen by many politicians as a chance to confront the judges and to re-establish the frequently cited “primacy of politics” … by the primacy of “politics” they intended the primacy of “politicians”.’

2. For a detailed analysis of the results achieved by the political class in the struggle against corruption between 1992 and 1998, as well as its limits and the consequences for the political system, see Della Porta and Vannucci (1999b).

3. Research conducted on a sample of several hundred entrepreneurs revealed that in order to compensate the corruptor for the ‘legal risk’ of being prosecuted, there was an increase in the size of the bribe to be paid: ‘The percentage of the bribe before “Bribesville” varied between 5 and 10 per cent of the value of the construction. Now corrupting costs more and officials use more sophisticated techniques to avoid detection’ (Benassi and Sganga 1994: 48). Judge Davigo confirmed that corruption in certain sectors continued, ‘even if today there are greater risks, and so it costs more’ (Corriere della Sera, 26 May 1998: 19).

4. Pizzorno (1998: 3) notes that the problem of conflictual relationships between politicians and judges ‘had been just beneath the surface since the 1970s’, when judges began (with varying levels of success) to inquire into politicians they believed to be corrupt: ‘Since then, before public opinion was even aware, the political class began to see the judiciary, or certain parts of it, as a possible political actor, a potential ally for some and a dangerous enemy for others.’

5. In another two proceedings for judicial corruption (Mondadori and SME-Ariosto) Silvio Berlusconi was acquitted due to a change in the Statute of Limitations through a law enacted by Parliament. Legislative ‘amnesties’ meant that the crimes of false witness in the case of the P2 Masonic lodge, and false accounting for the land of Macherio, could no longer be prosecuted. Three judicial proceedings against Berlusconi are still ongoing: 1) false accounting, fiscal evasion and illegal appropriation of television rights; 2) judicial corruption and bribes paid to his English legal adviser David Mills; 3) fiscal evasion and violation of Spanish anti-trust law.

6. This new norm has been largely unapplied, since the tribunals have asserted that international law already foresees the validity of evidence obtained abroad, as long as this is accompanied by a declaration of authenticity signed by the judicial authorities from which it emanates.

7. All advisory commissions that have studied the issue of corruption have advised against this type of control mechanism, as they consider it to be useless (as evident from its application overseas) if not dangerous given its multiplication of the instances of formal control (already many in the Italian case), thus potentially creating a pyramid of corruptible procedures.

8. In the 281 pages of the weighty electoral programme of the centre-left coalition (Unione), the theme of corruption emerged only in a generic affirmation of the need for ‘greater attention’ to the subject. It was then linked to the costs of politics and the need for an ‘ethical code of conduct’ for companies (Unione 2006: 22, 78, 210).

9. The role of the judiciary as a whole in the struggle against corruption has not been wholly positive. In many instances there emerged strong evidence of collusion between judges (especially in the upper echelons) and corrupt politicians. This collusion helped to slow legal actions against corrupt politicians, through pressures or sanctions (e.g. isolation, transferral) of judges that were investigating corruption by their superiors who were more sensitive to the interests of politicians (Della Porta 1992: 238; Del Gaudio 1992; Colombo 1996; Nelken 1995: 198).

10. Only 40 per cent of Italians trust the parliament, while 34 per cent trust the government and only 26 per cent trust political parties (Eurobarometer 2006).

11. At the end of 1999 the centre-left majority had in any case modified Article 111 of the Constitution introducing the principle of ‘due process’, adopted from the European Convention on Human Rights: this included equality of both sides, impartiality of the judge, reasonable duration of trials, and rights of the accused, who cannot be condemned on the basis of evidence obtained under torture.