"Good day to you all, my name is Vincenzo Marinelli and I am Honorary Assistant Attorney General with the Court of Cassation. Above all, however, I am also a private citizen and one specific right that cannot be denied to any private citizen is the right to freedom of opinion and thought. This is subject to only one limitation, namely the issue of any potential incompatibility with cases being dealing with at that time. As for the rest, I have always been very outspoken as a public citizen and it is in this guise that I was invited to appear here on Beppe Grillo’s Blog today to address the issue of legality, with particular reference to the so-called anti-corruption law that was recently finally approved by Parliament.
It is basically a "display-law", in other words a proclamation of good intentions or let’s just say a “calling-card law”, one that Monti needs in order to make him look good in Europe, like saying: “Look there, we have even managed to introduce the anti-corruption law that Europe has been asking us to introduce for so long”.
Ok, so how did this miracle happen in a Parliament that includes more than a hundred convicted or alleged offenders, most of them for crimes relating to bribery and corruption, and that by a Government that is currently still being supported by a composite minority whose main component remains Berlusconi’s party? The only reason that this apparent miracle has occurred is because all it is, in fact, is a false promise.
There are some very disturbing things about this law and some very careful attention must be paid to them.
There is no shortage of positive points, however, the negative points that I want to spend some time on here are very serious indeed, more specifically the fact that the crime of fraudulent accounting has not been reinstated. Fraudulent accounting is a very important crime in that it invariably leads to the discovery of other crimes, so much so in fact that it is often referred to as an “intermediary” or “telltale crime” precisely because it helps to uncover other crimes. This crime is normally committed because, for example, the perpetrator wants to conceal money that was used for the purpose of corruption, so the failure to reinstate this as a punishable offence is tantamount to giving the Magistrates blunt weapons with which to fight crime.
Let’s briefly remember that the crime of fraudulent accounting was essentially decriminalised by Berlusconi back in 1995 and was effectively cancelled in one of the many shameful bits of legislation that were passed at that time! The applicable penalty was already reduced to the point of being ridiculous and then made even more ridiculous by the inclusion of a provision which established that the penalty would be even less enforceable if - to use the precise wording - “the veracity of the accounts has not been materially affected”.
Let me make so bold as to state outright that this law is truly a “smoke and mirrors” concept. Can you just imagine the legal arguments in court? The defence attorney will simply say: “No, my Client never falsified anything and even if he were to admit to having doctored the accounts, said falsification was not significant, nor did it materially alter the actual state of affairs”.
This certainly isn’t the way to go about putting together a serious law, all it is is a way to make laws of convenience!
The failure to reinstate fraudulent accounting as the serious crime that it is, is certainly an extremely serious oversight.
What we really want to see is genuine criminal prosecutions
Let’s take another example, namely that of bribery and extortion, which is actually the most serious of the crimes that are generally grouped together under the heading of corruption offences.
We managed perfectly well for decades using the description of “compelled or persuaded”, in other words, where the public servant or the public service manager was punished for compelling or persuading some other person to give him money or something in kind.
Now this crime has been split in two, a kind of divide and conquer policy, in other words on the one hand there is the issue of compulsion, which is strictly speaking the act of extortion, while on the other hand there is the issue of persuasion, which is a new offence that will be very primly referred to as “undue persuasion”.
But why do we need this differentiation anyway? What's this distinction between “gentle” persuasion and “genuine” persuasion? Genteel, gentlemanly persuasion as opposed to sanguine, rough and ready persuasion, but extortion nonetheless. Why the distinction? Extortion “Puttanesca-style” versus “Oil, tomato and basil-style“ extortion? We’re not dealing with mere words here, they are actual facts! What will happen here is exactly the same as I said in the case of fraudulent accounting and will result in a quantum increase in the number of borderline cases like the following: “Your Honour, my client never asked for anything but merely exchanged some friendly banter with Mr. Tom, Dick or Harry, who obviously misunderstood my Client’s intentions. There was never any request made for cash or anything in kind in fact, let’s say that it was merely some friendly banter!" Is this really the kind of court case that we want to witness or do we really want to see genuine criminal prosecutions? When are we going to realise that, more often than not, those subtle, indirect, oblique requests are the most dangerous of all? I find this unbundling of the crime of extortion extremely disturbing indeed.
The lesser offence of extortion, which is no longer even called extortion as such, carries a very modest penalty which more often than not remains little more than a sentence on paper and virtually figurative if you will because they seldom manage to finalise the trial before the expiry of the statute barring deadline. This brings us to my third point, namely the issue of statute barring with a very short deadline, a deadline that is totally out of kilter with the reality of legal action in our Country where trials go on for years since we have three different levels of justice and therefore the penalty is so often sacrificed. The countdown to statute barring does not begin from the date on which the crime was discovered but from the date on which it was actually committed so, if it is only uncovered years after the event, then those years are totally lost for the purposes of the statute barring deadline. Furthermore, it is precisely the most dangerous criminals who are able to keep their crimes concealed for a long. Long time indeed, perhaps aided and abetted even more by the decriminalisation of the crime of fraudulent accounting.
This concept needs to be explained to the public in a very clear and concise manner because the public needs to know that what is being passed off as an anti-corruption law is in fact largely inadequate.
We don’t need legalese talk because that means nothing to us. What we do need is trials with a successful outcome, trials that run effectively and result in either a “guilty” or a “not guilty” verdict and, in the event of a “guilty” verdict, an appropriate penalty that is genuinely handed down and effectively served.
But unfortunately this is where the fun and games begin and we don’t have the time here to talk about them all, but we can at least mention some. One of the most common tricks is to drag out the court case for as long as possible, which is surprisingly easy to do thanks to long lead times and waiting times due to the very heavy workloads in the Courts, something that has gotten progressively worse over time. So it’s very easy indeed to drag out a trial until the statute barring deadline expires. Another little trick as regards communications is to deliberately blur the distinction between statute barring and a not guilty verdict. We all heard Berlusconi bragging about the fact that he has never been convicted of any crime, which is certainly not true in many ways, but specifically because what he was doing was blurring the distinction between statute barring and a not-guilty verdict in the minds of many members of the public.
Yet another little trick is to say: “But anyone can stand for election because even those people who have already been found guilty, perhaps even in the Appeal Court, are not deemed to be finally convicted unless the earlier conviction is confirmed in the Superior Court”. Oh no you don’t! The legal process is one thing but the individual’s rights are a totally different matter. The country’s citizens are entitled to know that they are voting for someone whose hands are clean, so they are entitled to be able to go online and peruse the candidates’ criminal records and to make up their own minds, irrespective of what verdict may be handed down by the Courts, which have their own set of rules and, unfortunately, also the fatal bottlenecks that we have seen and that make the courts unable to complete trials within the set deadlines, perhaps between one “legitimate impediment” and the next. And it is precisely to these public rights that I wish to refer. Legality, transparency, protection of rights, that’s what we’re interested in, not the official legal process. What we’re interested in is substantive justice, the kind that is based on constitutional principles. That’s what we want and that we should want so that we don’t lose our own right to hope and that of our children.
Spread the word."
Posted by Beppe Grillo at 05:22 PM in Information
(1) | Comments in Italian (translated)
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