By now most people will know that Italy’s controversial prime minister Silvio Berlusconi is facing charges in connection with prostitution and abuse of office. As you might expect Berlusconi’s case is being managed by two of Italy’s top lawyers.
One is Niccolò Ghedini and the other is Piero Longo, and both are members of Berlusconi’s party and are serving parliamentarians.
With all the pickles which seem to afflict Italy’s premier, these two lawyers must be working overtime, and them some. Berlusconi certainly keeps these esteemed gentlemen rather busy. Both Ghedini and Longo are working on the Rubygate case, the Mills bribery case, and cases concerning the Mediaset and MediaTrade arms of the Berlusconi family’s business empire. Fine, nothing strange there. Or is there?
Both Chamber of Deputies member Ghedini and Senator Longo receive very generous salaries from the Italian state, in other words, they are paid with taxpayers’ money. With all the bother Berlusconi perpetually seems to find himself in, it would be no surprise to learn that Messrs. Ghedini and Longo do not spend an awful lot of time working for the good of their country, unless it can be argued that Berlusconi is Italy.
Additionally, being members of Berlusconi’s PDL party, these two attorneys at law are able to vote through laws and lend their support when, for example, requests to search their client’s premises are made to parliament, as recently happened in Italy. That request was rejected, and one can be fairly certain that Ghedini dutifully voted for his client, er, sorry, Italy’s prime minister. He is hardly likely to vote against him, now is he? After all, it is most likely Berlusconi is paying both Ghedini and Longo large dollops of cash. Or do they work pro bono?
Does this peculiar situation stink a little of ‘conflicts of interest‘? You may well feel so, yet very little seems to be made of this issue in topsy turvy Italy.
Furthermore, Berlusconi’s party members stroke defence team lawyers have access to privileged information – meaning, most probably, that they can defend their master more effectively. How jolly convenient.
One could perhaps be forgiven for thinking that the presence of these two lawyers in parliament and their appearances in court on behalf of Italy’s premier goes against the fundamental concept of Italy’s constitution that all are equal in the eyes of Italy’s law. How can these lawyers be both acting in the interests of Italy and in the interests of Silvio Berlusconi at the same time? Well, they can and they are doing so.
Ghedini’s dual role as both parliamentarian and Berlusconi’s personal lawyer has been criticized by both Italy’s opposition and judiciary, but to date, aside from the criticism, nobody has attempted to take Ghedini to task for what could be viewed as being a conflict of interests between his duty to represent the Italian state in preference to representing the rights of Silvio Berlusconi. Either Ghedini, and Longo, represent Berlusconi or Italy, not both.
It is possible that both these gentlemen contravene the code of ethics for lawyers in Italy.
Breach of Professional Ethics?
Take a look at this section of the code of professional ethics for Italian lawyers:
ARTICLE 10 – Duty of independence
In the exercise of his professional activities, it is a lawyer’s duty to maintain his independence and defend his freedom from external pressures or constraints. A lawyer must not take into account interests relating to his personal sphere. The lawyer shall not engage in business or mediation. […]
Bearing in mind that both Ghedini and Longo are duty bound in parliament – to all intents and purposes – to vote in favour of everything Berlusconi decrees, seeing as they are serving parliamentarians and members of Berlusconi’s party, it could be argued that neither has managed to “maintain his independence and defend his freedom from external pressures or constraints”.
As Berlusconi’s personal lawyers – they have a personal interest – he’s probably paying their fees, at the same time, both are representing Italy (and being paid with taxpayers’ money into the bargain). Further, both Ghedini and Longo are involved in the law making process in Italy, meaning that they cannot really be independent when presenting a case in court.
Just imagine this fun scenario:
Judge: Berlusconi’s actions are in clear contravention of Article 123 of the Italian Penal Code.
Ghedini: Not any more, your honour. Article 123 no longer exists. I helped my client vote through its repeal yesterday.
Moreover, the access both Ghedini and Longo have to privileged, possibly confidential, parliamentary information means their client may not be as equal as others in the eyes of Italy’s law. I’m sure many of us would like to be defended by people who can make laws too!
Then there is the European Convention of Human Rights
Under Article 6 of the European Convention of Human Rights, everyone has a right to a fair trial.
But how can a trial be fair if the lawyers sit on both sides of the fence as both lawmakers and defence lawyers – as Ghedini and Longo are?
It would appear that any trial at which these two lawyers appear and represent Silvio Berlusconi cannot be fair – in that Ghedini and Longo can exploit their positions to ensure that the trial is, how can one put this – too fair. So fair, in fact, it could possibly be argued that it becomes unfair, and leans towards breaching the sense of Article 6. Or, perhaps, setting a precedent.
Future defendants in cases both in Italy and elsewhere in the European Union could claim that their trials are not fair because their lawyers are unable to make laws.
What do you think?
Al says
I don’t know where to begin, so I’ll just say the following:
Tim raises an interesting point here, one that you’ve never really tackled Alex, if I’m not mistaken.
Without venturing into the merits of this latest case – or for that matter of any other trial he’s had to face since he entered into politics in ’94 – have the (judicial) attacks on Berlusconi been (even in the slightest) politically motivated?
What’s your opinion on this specific issue?
Best,
Al
Alex Roe says
Hi Al,
You are right on the cases against Berlusconi being politically motivated front – I’ve never tackled this – even if I’ve given it some thought and even dug up a tiny bit of information which might indicate that this could be the case.
I suppose it is possible, even if I am inclined not to believe Berlusconi’s claims. If he could prove this claim in some way – possibly by mentioning links between judges and politicians, then I might believe it. Surely Berlusconi has the resources to uncover some evidence of political motivation – otherwise it just seems to be a convenient excuse, and is something not everyone is inclined to believe – still, there seems to be no real evidence that the cases are not politically motivated – unless you accept that Italy’s judiciary is, as it claims to be, impartial. However, judges are human, and will have political leanings just like the rest of us.
I imagine that those who would like to remove Berlusconi from power may have been collaborating with prosecutors and judges – but then that would merely be a quasi-political tactic. And such a tactic could be employed by both those on the left and those on the right, in which case, one could argue that almost any case brought against any politician is ‘politically motivated’.
It would be interesting to hear from Berlusconi supporters who can show that Italy’s judges are politically motivated. Equally, it would be good to hear from anti-Berlusconi people who can demonstrate that the cases are not politically motivated.
Then there is the question of the crimes, and the fact that with regard to some of Berlusconi’s cases he’s only escaped prosecution as a result of time barring limits cutting in – even if, appeals would no doubt have been made and this would have settled matters one way or another.
My impression is that the accusations from the Berlusconi camp that the judiciary is out to get him and is politically motivated is not much more than political spin. I’m not 100% sure this is the case though.
Maybe I’ll have a go at speaking to a few people who know more about these things than I.
Best,
Alex
Al says
Hi Alex,
The short reply is:
Alex wrote: “I’m not 100% sure this is the case though”.
Hence there’s still hope … ! 😉
Best,
Al
NIcolò Gumina says
what about bossi?
Alex Roe says
What about Bossi?? Please expand.
Alex
Tim Hedges says
I myself think Berlusconi should resign but I am getting a little tired of the ill-informed nature of some of the criticism. I canot think of a country where lawyers are not allowed to be parliamentarians – Britain (where I come from) has many. Second, there is no doubt that the magisterial system in Italy is political: if you are indicted by a left wing magistrate you get a right wing lawyer and vice versa. There is no reson why Ghedini should not think that the attacks on Berlusconi are not politically motivated – they probably are, althugh that doesn’t make him innocent – and thus from a political perspective want to right the wrong.
You’re barking up the wrong tree here. Ghedini might be wrong in defending Berlusconi but it is not inconsistent with his parliamentary duties to do so – nor would it be in England, America or Germany
Alex Roe says
Hi Tim,
I have no problem with lawyers becoming politicians – indeed, this is perfectly acceptable under the Italian constitution.
What does seem untoward is that lawyers can be politicians and run the defence team of the most senior parliamentarian – which is the point of the article. If Ghedini and Longo were merely politicians, no problem, but the fact they can stand up in court and defend him does not seem right – and the code of ethics seems to indicate that it may not be. And they can vote in his favour too.
I’m barking up a tree – but not the wrong one. All Ghedini and Longo have to do is to resign their seats – then they can defend Berlusconi to their hearts content and not at the expense of Italy’s taxpayers.
Best,
Alex
pgcd says
Very nice article, Alex!
I would just like to point something out, that you maybe have missed: Angelino Alfano, Minister of Justice, has been repeatedly reported as being very busy advising Berlusconi on these issues and suggesting several more or less savoury tactics to deal with the trials.
Stuff like the idea of declaring April 6th the “Memorial Day for Victims of L’Aquila Earthquake” (after the day the trials should take place had been announced, of course) or the plan to retroactively bring down the age of consent to 16… Amazing, eh?
Alex Roe says
I had heard of Alfano’s ‘advice’ but he is not one of Berlusconi’s lawyers – he’s just serving his master, pgcd.
As for more little laws being made – this comes as no surprise – as you may have gathered from part of the article above:
Just imagine this fun scenario:
Judge: Berlusconi’s actions are clear contravention of Article 123 of the Italian Penal Code.
Ghedini: Not any more, your honour. Article 123 no longer exists. My client repealed it yesterday.
Thanks for commenting!
Best,
Alex
pgcd says
Ehm… you know that’s exactly what happened with “false corporate communications” (I’m sorry, I can’t find the right translation for fraud committed by releasing false information regarding the economic & finantial situation of a company)?
It used to be a felony (or something like that), then Berlusconi had the law changed so it retroactively became only an infraction, if the ill-gotten gains remained under a certain threshold – which was exactly the one he was on trial for – so he was aquitted. Nice, huh?
Here’s an article on the subject (in Italian, but certainly more understandable than my judiciary English =)): http://www.repubblica.it/2008/01/sezioni/cronaca/prescrizione-sme/prescrizione-sme/prescrizione-sme.html