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Prosecuting High-Level Political Corruption. Mapping Judicial Investigations in Three Italian Cabinets (2008-2013)

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Prosecuting High-Level Political Corruption. Mapping Judicial Investigations in Three Italian Cabinets (2008-2013) Prosecuting high-level political corruption. Mapping judicial investigations in three Italian cabinets (2008-2013). Cristina Dallara (Irsig-CNR/ Università di Bologna)1 Very first draft, please do not cite or circulate Introduction While a growing body of research examines the causes and consequences of corruption, using sociological, economic, political and anthropological approaches (Mungiu-Pippidi, 2006; Holmes 2006; Vachudova, 2009; De Ridder, 2009; Kostadinova, 2012) less has been written about the institutions and the judicial procedures applied to tackle high-level political corruption. For this reason, we propose to shift the attention from the causes and effects of corruption to the state’s action to curb it, through criminal prosecution. Until now, no systematic studies have been specifically developed on high-level corruption prosecution and very few and reliable information are available on the amount investigations involving high-level politicians, on the timing of such investigations and on the number of indictments for political corruption crimes. We believe that shedding light specifically on the prosecution side could offer relevant information for studying corruption as a whole. As an example, a pilot study focusing on the prosecution of cabinet ministers in Eastern and Southern Europe (Popova and Post 2013) has generated some hypotheses about those factors that could be associated with a higher probability of investigation for corruption charges. With this paper, we propose a pilot study mapping judicial investigations in Italy, using primarily media sources, for corruption related charges against cabinet ministers, deputy ministers and undersecretaries form 2008 to 2013. Our goal is to map out the entire corruption prosecution process, from the appearance of the first allegations to the opening of a formal investigation, to the filing of an indictment by the public prosecution, and finally to the court proceedings during a trial. The aim of the paper is to assess in the Italian case some hypotheses developed in the literature on political corruption, concerning factors that could be associated with a higher probability of indictment on corruption charges, such as: type of ministerial portfolios, affiliation to a strong/weak party and timing of investigative action (before/during/after tenure). To this end, we will proceed as follow: the first section offers a brief introduction about corruption in Italy and its relevance of this topic for the whole relation between justice and politics (§1); then, some reflections on how to deal with data and sources for measuring corruption will be presented (§2); finally, the last section presents and focuses on the mapping exercise we have conducted on the Italian 1 This paper has been written with the collaboration of Luigi Rullo (internship student of the University of Bologna). He specifically accomplished the analysis of the judicial investigations in relation to deputy-ministers and under-secretaries of the IV Berlusconi government and the Monti executive. He also has co-written the paragraph 1. 1 case, following the study of Popova and Post (2013) and analyzing, using media sources, all the corruption-related investigations involving cabinet-ministers, deputy-ministers and undersecretaries or of three executives: the center-left II Prodi government (2006-2008), the center-right IV Berlusconi government (2008- 2011) and the technocratic government led by Monti (2011-2013). The information drawn from this mapping exercise, such as timing of the investigations, portfolio of the minister or vice-minister investigated and party of the minister or vice-minister investigate, will allow us to test some relevant hypothesis developed by the study of Popova and Post (2013). 1. Political corruption in Italy and the M-factor2 Italy enjoys the reputation of having one of the biggest and hugest problems of corruption among Western Democracies. Nevertheless, the corruption issue did not have a strong impact on politics until the Tangentopoli scandal in the early nineties. In fact, the media coverage of Tangentopoli's scandal and the investigative action called Clean Hands' “pushed the issues of corruption and public ethics to prominence” (Hine 2015, 608). However, as Heywood (1997, 418) points out “the fact that corruption should have generated such public concern cannot be divorced from the wider political context within which it was uncovered”. In fact, the crisis of Italian parties is strictly connected with the weakening of their social and ideological bases caused by the end of the cold-war order (Vannucci 2009). The latter assured political actors with ideological reference points providing the Italian political system an high degree of stability, with the monopoly of Christian Democrats in government. Yet, the fall of the Berlin wall and the dissolution of the Soviet Union undermined the ideological bases of citizens' support that characterized the Italian party sistem in the post-war world (Di Virgilio 2006). In such a scenario, the Tangentopoli scandal acted as detonators of the crisis, bringing out an unprecedented corruptive system (della Porta 2001). It is quite telling that in the summer of 1993, 205 out of 630 deputies and 81 out of 326 senators were under judicial investigation, and “at the end of 1994 the number of individuals involved had already reached more than 7000, including 338 ex- deputies, 100 ex-senators, 331 regional, 122 provincial and 1525 municipal administrators, and 1373 public functionaries” (della Porta and Vannucci 1997, 516), with over 4000 preventive custody orders. Yet, the crisis of the party system paved the way to Berlusconi’s decision “to enter into politics” in 1994 and to the establishment of the so-called Second Republic. The media certainly played an essential role in this transition (Campus 2010). In fact the mediatization of politics (Mazzoleni and Schulz 1999; Esser et al. 2014) transformed the media into amplifiers and brokers of ideas. Indeed, it displayed a centralization, professionalisation, and personalization of the political messages, with a greater emphasis on the leaders. In such a scenario, Berlusconi encouraged 2 This section has been written with the collaboration of Luigi Rullo. 2 “the establishment of a trust relationship between the leader and the voters that bypass the traditional intermediary role of parties” (Campus 2010, 227). Substantially, the personalization of politics led to a more and more direct and immediate relationship between the institutional apices and the citizens, enabling the path towards the predominance of “personal leaders” (Musella 2015). Another result of the transition from the First to the Second Republic has been an increasing judicialization of politics (Guarnieri 2001, Della Porta 2001, Tate and Vallinder 1995), complemented by an already lasting expansion of the judicial function's (Guarnieri and Pederzoli 2002; Newell 2011). The judicialization of politics is often confused with, or used as a synonym for, the concept of judicial activism. The latter is a term coined to refer to the behavioural patterns followed by American judges appointed to the U.S. Supreme Court in the area of constitutional interpretation. It initially referred to the tendency of these judges to go beyond the literal meaning of constitutional provisions and expand the meaning of the rights that they offer. In spite of this generalization, it is worth mentioning that the concept of judicial activism refers more to the single actor side of the phenomenon, whereas that of the judicialization of politics refers principally to its systemic side (Dallara 2015). The empowerment of judicial institutions is explained as the result or a consequence of the expansion of judicial power “at the expense of the politicians and/or administrators” (Tate and Vallinder, 1995, p.13). judges are increasingly making decisions that have significant political implications, and they are assuming a progressively more central role in political controversies. This growing demand for justice entrusts judges for resolving problems that other institutions are unable or unwilling to deal with effectively (Guarnieri and Pederzoli 2002). According to Guarnieri and Pederzoli (1997), there are a number of factors that have contributed to a significant increase in the role of the judiciary in Italy. These factors are rooted in the constitutional arrangements that establish the institutional power of the judiciary. The features of the 1948 Constitution that most contributed to strengthening the judiciary in Italy are the principle of compulsory criminal prosecution, 3 powerful guarantees of external and internal institutional independence, and the establishment of the High Judicial Council (CSM – the Consiglio Superiore della Magistratura), 4 and the rules on its composition. Della Porta (2001) added that the growing legitimation of the magistracy was favoured by the action she had fought against mafia and terrorism, and by a “weakening complicity of some judges with those political forces which had partly hindered the activities of the magistracy” (della Porta 2001, 5). This trend was further supported by the increasing role of the media, during the 1990s, in shaping public opinion in the area of justice and the relations between judicial and political actors. judges and prosecutors saw the media as a new channel to gain legitimacy and visibility during a period (the 1990s) in which the power of the judicial hierarchy decreased rapidly (Catino
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