The Italians (40 page)

Part of the reason for all this pardon and leniency is straightforward softheartedness. Italians may tend to cynicism, but they are also—for the most part—kindly people. In addition, though, there are at least two other factors at work that may well be connected.

One is upbringing. Disciplinarian parents exist in Italy just as they do in every country (a teacher who once worked at a school in rural Piedmont told me that so-called
padri padroni
^*
were the norm there). But modern Italian parents, and particularly mothers, are generally extremely indulgent. Every foreigner who has lived in Italy has a favorite story of a child allowed to run amok. My own stems from a dinner with friends at a restaurant in Umbria. The restaurant had a piano and a little girl of about five decided to play it. Unfortunately, she had no idea how to do so. Throughout the meal, I and about thirty other customers had to listen to intermittent bursts of noise as she returned to the piano to slam her fists up and down on the keyboard. Neither of her parents made a move to stop her. But then nor did any of the restaurant staff. Unsurprisingly, people grow up feeling it is their right to enjoy the maximum possible freedom. And, for the most part, they are prepared to concede the same right to others.

A second factor is obviously Catholicism, with its strong emphasis on the mutually dependent concepts of confession, penitence and absolution. One of the many proverbs about forgiveness in Italian has it that
peccato confessato, mezzo perdonato
(“A sin confessed is a sin half forgiven”). And it is telling that when the authorities made it possible for terrorists, and later mobsters, to earn favorable treatment in return for collaborating with investigators, the beneficiaries of the scheme came to be known as
pentiti
. A recurrent feature of the reporting of crimes in the media
^*
is the journalists’ insistence on knowing whether the victims—or the late victims’ relatives—forgive the alleged perpetrator. Their responses—whether they do or do not feel ready to offer pardon—often provide the headlines for stories written in the aftermath of grisly crimes like murder, negligent homicide or violent robbery.

The positive side of this is that Italians are generally far more ready to allow for human frailty than is the case among Britons or Americans. The driver who accidentally turns into a one-way street is more likely to be reprimanded than fined, as is the pensioner found traveling without a ticket on a bus or train. The negative side is a widespread resistance in Italian culture to the notion of accepting responsibility for one’s actions. Breaking the rules or the law and then dodging the consequences are quintessential components of
furbizia.
Avoiding responsibility can even be regarded as, if not a virtue, then a merit—something to be applauded. It is an important reason why so many Italians admired Silvio Berlusconi and continued to vote for him: though repeatedly indicted, he managed time and again to wriggle free of conviction, sometimes because of changes to the law introduced by his own governments.

Perhaps the most extraordinary judicial saga of recent years, though, was that of a very different political figure, Adriano Sofri. Following the student revolts that swept through Europe in 1968, Sofri shot to prominence as the leader of a radical left-wing group, Lotta Continua
(“Continuous Struggle”). After it became clear that the masses were not going to heed its call to revolution, Lotta Continua fell apart in 1976 and Sofri became a teacher and journalist. Twelve years later, he and two other former members of the group were arrested and charged with the murder of a man who has a place in Italy’s literature as well as its history: Luigi Calabresi, a senior police officer. It was from the window of Calabresi’s office at police headquarters in Milan that a young anarchist, Pino Pinelli, had fallen—or jumped, or been thrown—while being interrogated in 1969. His death inspired Dario Fo, who later won the Nobel Prize for literature, to write his play
Morte accidentale di un anarchico
(
Accidental Death of an Anarchist
). Calabresi was suspected—perhaps understandably, but without any evidence—of having murdered Pinelli. He became a left-wing hate target. A few months later, he was shot dead as he left his home in Milan.

Lotta Continua’s newspaper unquestionably bore much of the blame for whipping up the lynch mob atmosphere that engulfed Calabresi. But the case against Sofri was based solely on the evidence of a fourth ex–Lotta Continua militant, who confessed to being the getaway driver for the killing and was given a drastically reduced sentence in return for his collaboration with the police. His account was full of details at odds with the known facts and in 1992 the Court of Cassation ordered a rehearing of the appeal. The defendants were again acquitted, but fell victim to one of the most pernicious devices in the Italian judicial system. Their fourth trial was held in a court with a bench that included not only professional judges, but lay ones. Lay judges are the nearest thing in Italy to jurors. They sit at either side of the professional
magistrati
decked out in sashes in the red, green and white of the Italian flag, usually looking a bit self-conscious. They can outvote the career judges six to two. But once a verdict has been reached, it is left to one of the professionals to write up the reasons for the decision. And this provides the opportunity for what is known as a
sentenza suicida:
a judge who disagrees with a verdict can explain it in his written judgment in such a blatantly absurd way that it is bound to be overruled on appeal to the Court of Cassation.

Because of the
sentenza suicida
sent to the Court of Cassation in the Sofri cases, the judges of the Supreme Court had no option but to overturn the acquittal and order yet another hearing, at which the trio were found guilty. Finally, in 1997, at the seventh hearing of the case, the Court of Cassation—the very court that five years earlier had challenged their conviction—handed down a new verdict, this time of guilty.

Sofri spent the next ten years in jail. After he almost died of a ruptured esophagus, he was transferred to house arrest for convalescence. But it was not until 2012 that he was finally deemed to have served his time.

The
sentenza suicida
was not the only surreal aspect of the Sofri affair. Once he had been definitively convicted, his case became entangled in a logical short circuit that clearly arises from Catholic doctrine. His supporters, including some on the political right, made impassioned appeals for the president to grant him a pardon. But just as in Catholicism absolution can be granted only after confession, in Italy a pardon can be granted only if the person who has been convicted asks for one. In doing so, though, he or she makes an implicit admission of guilt. Sofri obstinately insisted that he was innocent. And so he had to go on being punished.

His case illustrates a fundamental point about Italy’s endlessly controversial legal system: that for all its benevolence, it can also be frighteningly cruel. And at the root of much of the cruelty is the slowness with which justice is administered. Judges in Italy not only mete out justice; they also manage the judicial machine, an activity for which they have no proper training. No party left or right has ever wanted to discuss this problem, but it is a central reason for the gross inefficiency to be found in the courts.

For a start, trials are not held on consecutive days but at leisurely intervals over a period of months or even years. At the first hearing in, say, November, the judge will discuss with the lawyers for the prosecution, the defense and other parties who may have joined themselves to the case the dates on which they can all be present. Since the lawyers are all engaged in other cases that are being held simultaneously, it is more than likely that the first convenient date will be sometime in December and that no more than a couple of hearings will be possible before the courts break for Christmas. Come the new year, the trial will resume, usually at the rate of a hearing a week or even less. One of the effects of holding trials in this way is that it becomes progressively harder for all concerned—and particularly the lay judges—to keep a mental grip on the intricacies of the evidence. Another is that defendants who are sent to jail to await trial and who are subsequently found to be innocent of the crime of which they have been accused are deprived of their freedom for far longer than necessary.

There are even worse delays in civil justice. And they are an important reason why foreign investors are so reluctant to put money into Italy: they discover that, if they are defrauded, for example, or just not paid for the goods or services they have provided, they may have to wait for a decade or more to get their money. A particularly grotesque example came to light in 2010 when a ninety-four-year-old woman living in a village near Rome died after waiting for forty years for the settlement of a dispute over her mother’s will. Exasperated by the slowness of the courts, she had brought a case against the state. She won and was awarded €8,000 in compensation. But despite numerous attempts on her behalf, she never succeeded in obtaining more than a fraction of the award in her favor. Some of the cash that she did get came from the sale of photocopiers seized by debt collectors from public buildings.

In 2012 there was a backlog of 3.4 million criminal cases and 5.5 million civil ones.

One of the underlying problems of the Italian legal system is that, insofar as criminal justice is concerned, it has become an uneasy mix of two largely incompatible systems. For most of its history, it was what jurists define as inquisitorial. By far the most important stage in the proceedings was the investigative one, known as
istruzione:
an investigating judge, known as a
giudice istruttore,
helped by the police, would try to establish who was responsible for a crime. Until the 1970s, when changes were introduced, the defendant and his or her lawyers had no right to challenge or contradict the information the judge gathered, let alone present evidence of their own. The
dibattimento,
the trial in open court, was thus little more than a formality and the role of defense lawyers—the
avvocati—
was pretty much confined to making pleas in mitigation. The trial judge could base his decision on evidence recorded during the investigation, even if it was not confirmed by witnesses called to testify in open court. He—or, very exceptionally in those days, she—seldom reached a decision that was at variance with the conclusions of the
giudice istruttore
.

A reform in 1989 was meant to bring about a revolution: the conversion of Italy’s inquisitorial system, based on the Napoleonic Code, into an adversarial one such as those in the United States and Britain. But, as so often happens in Italy, compromise—the tendency always to search for the middle ground, even at the cost of a half-measure—won the day. Within a few years, the Constitutional Court was chipping away at the edifice that had been constructed and among other things was restoring to the trial judge the right to base a verdict on evidence not produced in court.
⁴
Unable to contest decisions of the Constitutional Court, parliament decided to change the constitution on which they were based. In 2001, the changes were incorporated into a modified code of criminal procedure. But the system remains an awkward hybrid.

Crucial to an understanding of the controversies that have surrounded the courts—and indeed the entire political history of Italy since the early 1990s—is the role of the prosecutor, known as the
pubblico ministero
(PM) or
procuratore
. In the opinion of many Italians, the powers they have inherited from the
giudici istruttori
continue to stack the odds against the defense. What is more, they will argue, individual prosecutors have abused the powers at their disposal so as to win notoriety, particularly when they are hoping one day to leave behind the law and embark on a career in politics. As in so many other fields, Italians divide into two camps on this issue. Critics of the PMs describe themselves as
garantisti
and brand those on the other side of the argument as
giustizialisti
.

Silvio Berlusconi’s arrival on the political stage in 1994 gave a vivid political coloring to a debate that had previously cut across party lines. The property and media tycoon claimed he had entered politics to save his country from Communism, or rather the heirs of the old PCI.
^*
His critics have always believed he went into parliament to save himself from possible bankruptcy and jail.
Tangentopoli
had yet to run its course. Many another senior figure from the business world was in prison and Berlusconi’s political sponsor, Bettino Craxi, had already fled the country to escape incarceration. The new leader of the Italian right had good reason to fear that he himself could soon be brought to trial: the Milan prosecutors were already looking into claims that he had bribed members of the revenue guard sent to inspect his companies’ books and that he had used offshore companies and bogus accounting to illegally fund Craxi’s Italian Socialist Party.
^*

Berlusconi argued that this only proved his claim to be the victim of a witch hunt mounted by left-wing prosecutors and justified his contention that the entire judicial system needed reforming in such a way as to curb the powers of the PMs. All of a sudden, the cause of the
garantisti
became that of his party, and by extension that of the right. Ever since, many left-wingers have dismissed out of hand criticisms of the Italian judicial system to which they might otherwise have given a fair hearing.

Take, for example, the alleged misuse of wiretapping. That had been a
garantista
cause since the early 1990s, but became ever more important to Berlusconi’s supporters as wiretapped conversations were used to indict—or merely embarrass—their leader. The prosecutors and their supporters protest that in the land of the mafia wiretapping is an essential weapon in the investigators’ armory. But that argument is hard to sustain in the face of the Max Planck Institute’s finding
^*
that the number of warrants issued in Italy is proportionately more than a hundred times the number granted in the United States, which is not exactly free of organized crime. Official figures giving a city-by-city breakdown of the spending on wiretapping in Italy punched another hole in the arguments of the
giustizialisti.
They showed only a limited correlation between the volume of wiretapping and the presence of the mafia. Predictably enough, Palermo was top of the list. But Milan and Varese, just to the north of Italy’s business capital, came next. Trento, one of the most tranquil cities in the country, was eleventh—four places above Catanzaro, the capital of the ’Ndrangheta’s homeland of Calabria. It is hard to avoid the suspicion that prosecutors and police alike have become addicted to wiretaps as a substitute for more demanding but less invasive methods of investigation.