The Italians (41 page)

What infuriates the
garantisti
more than anything is that the transcripts of wiretapped conversations routinely find their way into the media, doubly violating the right to privacy of those whose conversations have been recorded. Sometimes they are people who have not committed any wrongdoing but who just happened to have spoken on the telephone to a suspect. On occasions, the publication takes place quite legally: if, for example, the transcript of a wiretap has been annexed to a prosecutor’s request for a search, arrest or other warrant or to the report that prosecutors must submit at the end of an inquiry in support of their application for an indictment. But quite often wiretaps are leaked while the investigation is still in progress, and in some cases titillating or embarrassing extracts are published that have nothing to do with the substance of the case. Leaks can come from defense lawyers, court administrators, police officers and others. But, though it is impossible to prove, it is widely assumed that many of the juiciest morsels thrown to reporters come from PMs.

Technically, the leaking of evidence is an offense, as is its publication. But it is almost unheard of for a reporter or an editor to be prosecuted, because of the difficulty of proving what happened: journalists are protected in Italy from being forced to reveal their sources, so the identity of the person who leaked the information is well-nigh impossible to establish. The concept of sub judice
exists in Italy, but it is violated almost daily. This too is an example of how the 1989 reform got uncomfortably stuck halfway. In the days when the verdict depended entirely on professional judges who had access to the entire investigative dossier, it was a reasonable assumption that the selective leaking of evidence could do nothing to influence the outcome of a trial. But under the new system, as mentioned earlier, many cases are heard before lay as well as professional judges and the former are clearly susceptible to media influence. Feeding a stream of tidbits to reporters, a wily prosecutor can build up a presumption of guilt that can be hard for the defense to demolish in court.

Another hangover from the old, purely inquisitorial system is the liberal use of pretrial custody. Suspects—and during investigations they are still only that—are sometimes confined for good reason. There can be a real danger that they could flee abroad, tamper with the evidence or intimidate witnesses. But suspects in Italy are sometimes thrown into jail on pretty flimsy grounds, and from the speed with which they are often released after they begin to collaborate with the investigators it seems more than possible that they were jailed to loosen their tongues. The alleged misuse of pretrial custody first became an issue of public debate during
Tangentopoli,
as hundreds of men more accustomed to sitting on plush boardroom chairs than hard prison benches were consigned to Milan’s San Vittorio jail. Yet very few, as has been seen, were ultimately given custodial sentences. In fact, it can often seem that Italians accused of wrongdoing are far more likely to go to jail
before
they are convicted than after. According to the Council of Europe’s annual penal statistics for 2012, more than 40 percent of prisoners were still awaiting a final sentence—the second-highest proportion in the EU.
⁵

Prosecutors cannot, of course, simply order people to jail. That has to be done by a judge. But then the relationship between judges and prosecutors in Italy is one of the most controversial issues of all. The 1989 reform separated their functions, but they remained part of the same institutional body, as indeed was required by the constitution. Together, the judges and prosecutors form what is termed the
magistratura
. Whereas defense lawyers are self-employed, the
magistrati
are employees of the state. They take the same exam to enter the profession and, as they progress through their careers, they can switch from one role to the other: a young prosecutor working in, say, Ferrara can apply to become a judge in Bari and then move on from there to be a prosecutor in Rome. In 2005, the Berlusconi government introduced a law that held them to separate career paths for five years after they entered the profession. But before the law came into force, it was largely reversed by another introduced by the center-left.

Ordinary Italians continue to regard judges and prosecutors as having similar functions. It is not unusual, in fact, for prosecutors to be referred to, even in the media, not just as
magistrati
but as
giudici
.
Garantisti
complain that the two branches of the
magistratura
share a common esprit de corps and that judges are all too ready to grant prosecutors’ requests for, among other things, the imprisonment of suspects. Indeed, it would be unnatural if a judge who had spent several years of his or her life as a prosecutor did not intuitively see things from the prosecution’s standpoint.

But what of Berlusconi’s assertion that the
magistratura
was infested with left-wingers? Some of his followers even talked about a
partito della magistratura
. A subtler version of the same contention is that Italy’s judges and prosecutors are like the Turkish military—a body of men and women with a broadly similar political outlook who do not need to belong to a party or group in order to act in concert.

It is probably true to say that the number of left-wingers among Italy’s
magistrati
is higher than among their counterparts in other countries. Lawyers in general, and judges in particular, tend to be conservative. For many years, the same was true in Italy. The judiciary bequeathed by Mussolini stood well to the right. Partly as a way of loosening the conservatives’ grip on the institutions, the Italian Communist Party during the Cold War adopted what it termed “a war of position.” The idea was that the proletariat—or rather its allies in the intelligentsia—would infiltrate key areas of power and influence. After 1968, the idea was taken up in a modified form by followers of the New Left, a movement that had gathered strength from the student revolts. There is little doubt that in the years that followed a number of radical idealists did indeed enter the
magistratura
.

But to imply, as Silvio Berlusconi has done, that the judiciary is saturated with Marxists is nonsense. If that were the case, he would not have got off as many times as he has. And Adriano Sofri would never have been convicted. The overwhelming majority of judges and prosecutors belong to the Associazione Nazionale Magistrati (ANM), which is simply a professional association. Within the ANM there are two so-called
correnti
(currents): Magistratura Democratica, which aligns with the left, and Magistratura Indipendente, which leans to the right. But judges and prosecutors alike deeply resent the implication that their political views play any role in the decisions that they make in a professional capacity. Most of the defense lawyers I have spoken to have been more critical of the minority of prosecutors who have one eye on a career in politics and who take up cases they know will give them a high profile in the media.

“But if I thought that when I went into court to argue a case I needed to worry about the political affiliations of the judge, then frankly I’d give up this job and go off and do something else,” said one
avvocato
.

At the time of writing, Magistratura Indipendente is the stronger of the two factions, its candidates having had more success than those of Magistratura Democratica in the most recent elections to the profession’s self-governing body, the Consiglio Superiore della Magistratura. The prosecutor in the Court of Cassation who in 2013 successfully argued for the rejection of Berlusconi’s final appeal against his conviction for tax fraud belonged to Magistratura Indipendente.
⁶

CHAPTER 19

Questions of Identity

Italia significa Verdi, Puccini, Tiziano, Antonello da Messina . . . Io non penso che Tiziano sia nato lassù e Antonello da Messina sia nato laggiù: per me sono due italiani.

Italy means Verdi, Puccini, Titian and Antonello da Messina . . . I don’t think of Titian as being born up there and Antonello da Messina as being born down there; for me, they are two Italians.

Riccardo Muti

I
n 2011, Italy had its hundred fiftieth birthday. On March 17, the day in 1861 that King Vittorio Emanuele proclaimed the foundation of the Kingdom of Italy, there was a ceremony in Rome and the air force aerobatics team used vapor trails in the national colors to trace what was claimed to be the world’s biggest
Tricolore
.

Elsewhere, though, the celebrations were mostly limited to exhibitions recalling this or that local aspect of the Risorgimento. By the standards of a relatively young country, it was all fairly muted. To some extent, this was because the governing coalition at the time included the Northern League, which regards unification as an unmitigated disaster. And by then Italy was immersed in the deep economic crisis that had begun to swamp the eurozone two years earlier. Its modest anniversary celebrations were nevertheless taken by many, inside and outside the country, as further evidence that the work of nation building that started in the 1860s was far from complete.

Italians tend to reinforce that notion. Most seem more eager to tell foreigners about the differences between them than their similarities. So, unsurprisingly, it is an idea that runs through much of the foreign writing on Italy: entire books are still being written around the view that Italy today is little more than a “geographical expression.”
^*

As a geographical term, in fact, the word
Italia
is not all that useful, since it has been understood in different ways at different times. For the Romans, it meant only the peninsula. The Po Valley was regarded as part of Gaul. The idea that the entire area south of the Alps comprised a natural geographical territory seems to have taken shape only after the collapse of the Roman Empire and may have had something to do with the fact that the roads that the Romans had built through the mountains gradually fell into disrepair, limiting contact between Italy in the modern sense of the term and the rest of Europe.

As outlined earlier, geography and history combined to divide the inhabitants of the territory that stretched down from the Alps to Sicily.
^*
But there is plenty of evidence to suggest that they regarded the people who invaded them from beyond the Alps or across the Mediterranean as being more foreign than other Italians. There were even moments when they felt a certain amount of mutual solidarity. When, for example, in the fourteenth century one Cola di Rienzo seized power in Rome and declared a republic, he convoked an assembly of representatives from all over “Italia.” Quite a few of the communes of the day sent delegates to speak on their behalf.

Occasionally, moreover, the states that coexisted uneasily in what we now call Italy were able to see a common interest in banding together to overcome a foreign invader. Most of the city-states of northern Italy combined their forces to defeat Emperor Frederick I at the Battle of Legnano in 1176,
^*
and just over three centuries later, in 1495, the Republic of Venice allied with the Duchies of Milan and Mantua to drive out the French king Charles VIII at the Battle of Fornovo. By then, an idea of Italy had taken shape in the minds of several Renaissance intellectuals. Machiavelli ended his greatest work,
The Prince,
with an appeal for a leader who could unite the Italians and liberate Italy “from the barbarians.”

It was not, however, until the late eighteenth century that anything resembling an Italian nationalist ideology began to take shape. Even then, the idea of a united country seemed like an unrealizable dream until well into the nineteenth century. The great Piedmontese statesman Camillo Benso, the Count of Cavour, who was instrumental in bringing about Italian unification, never really believed in the idea and tried to undermine Garibaldi’s audacious expedition to Sicily, which brought the Mezzogiorno into the new state. Not that ordinary Italians were themselves much convinced: more than half the population abstained from Italy’s first general election in 1870.