Saturday, February 17, 2018

Italian lessons

In the recent Section 34 controversy, it's surprising that no one has drawn a parallel between the T&T of Kamla Persad-Bissessar and the Italy of Silvio Berlusconi. Both the similarities and the differences are striking and instructive.

Both cases involve legislation widely perceived as having for its sole purpose the protection of prominent persons against conviction for white-collar crime. In both cases the Minister of Justice was heavily involved.

There are differences, however. In the T&T case the persons allegedly being protected were private citizens, said to be financiers of the ruling party (though some are former ministers). The fate against which the law was thought to be protecting them was conviction on charges that included some for which the T&T courts had ruled against extradition to another country, where if convicted they would face punishment more rapid, severe and unpleasant than they would have faced at home. The grounds for denial of extradition were that the local courts were competent to try them, but the legislation in question would have prevented even that.

In Italy, on the other hand, the beneficiary of the protection was none other than the Prime Minister himself, and he was already under indictment for a number of offences, ranging from bribery of police and judges through false accounting to association with organised crime to paying for sex with a minor.

In Italy, the legislation was rammed through Parliament by a majority commanded by the coalition led by Berlusconi, whose members voted cynically for it in the full knowledge of its purpose and effects.

In T&T, the legislation was slipped past a House of Representatives apparently afflicted with reading difficulties, after the Minister of Justice conned its members into thinking that its guillotine provisions stipulated a period of ten years from date of indictment, only to surreptitiously alter it to the date of commission of the alleged offence, and then con an equally clueless president into signing it into law without any of the clauses that would have exempted ongoing cases from its effects.

In fact, the Italian legislation I'm referring to is not one but several pieces of legislation. Together they constitute a variety of statutes of limitations, which, refined over the years by Berlusconi's last government and presumably previous ones (including an earlier Berlusconi mandate) squarely place the start of the limitation period at the date of commission of the alleged offence. More precisely, this means that if a case is not, or cannot be, concluded (not initiated) within a stated period from the date of commission of the alleged offence, it is "timed out". Such a provision, as Dana Seetahal SC pointed out in relation to our Section 34, is greatly reinforced in its effects by the fact that many offences, especially white-collar ones, are only discovered years after they were committed.

The rules governing the limitation periods are themselves complicated, and have been serially manipulated by Berlusconi parliaments in his favour. Basically, the statute of limitations stipulates, for felonies, a period equal to the maximum penalty for the offence, but not more than six years, while the maximum for misdemeanours is four years. But there is also a law which applies a limit on enforcement of a penalty to twice the length of the time to be served, or ten years when the penalty is a fine: for misdemeanours this limit is five years.

Further, in 2006 the parliament passed a law stripping three years from sentences for crimes committed before that date.

On top of that, the Italian Constitution itself requires that all trials must go through three phases, first in the lower court, then in the appeal court and then in the Court of Cassation, before they are concluded. This, combined with the slowness of the Italian system, means that any trial may take ten years.

In addition to all this, Berlusconi forced through parliament in his last mandate a law exempting the president, the prime minister, and the presidents of both houses of parliament from prosecution while in office. This did not lengthen the limitation period, though it did prevent other charges from being laid. It has in any case been recently overturned by the constitutional court. But Berlusconi also tried, while still in office, to stretch out the cases in which he was already indicted, by getting the courts to agree that his official duties exempted him from having to attend court hearings. He has already been able to avoid conviction on several of the many charges against him. In some of the worst the cases had to be dropped because Berlusconi had also forced through parliament a law turning false accounting from a felony into a misdemeanour, which in addition could only be prosecuted if a specific individual laid a complaint.

False accounting, it will be remembered, is a crime for which Bernard Madoff is serving a sentence of one hundred and fifty years in the United States.

Concludes tomorrow