The truth about the rehabilitation of former Prime Minister Silvio Berlusconi

17/05/18

From the virtual pages of this newspaper we have always fought to defend some key principles of our legal system that, if we want, are the basis of democracy in which we live, believing that even the rules that regulate our daily life deserve the right "defense" as it should be in a country where every self-respecting citizen, at the cost of his life, and even more so if he is a military, is called to conform to them and, if necessary, to die.

In particular, we have done this by repeatedly reiterating the principle of presumption of not guilty until the final sentence when, to rise on the bench of the accused, were excellent military (the admiral De Giorgi, or the general Of Seven) or less (the two carabinieri of Florence or the one investigated for having exposed, in their room, a flag of the Prussian navy). I think, then, that it must be done even now, concerning the much vituperated Silvio Berlusconi, in the aftermath of his rehabilitation obtained by the Court of Surveillance of Milan, which again makes him, in fact, a candidate for the Chamber of Deputies and the Senate of the Republic.

Defending some principles can not be valid only in alternating phases, depending on convenience.

The former prime minister in question may have worked well or badly - not within the merits - but read fierce criticism, by some, according to whom, having received a conviction, would now be devoid of any dignity for centuries to come, it really appears too much.

As well as, on the other hand, I think it is necessary to correct some others, who aim to confuse people, perhaps because they are confused - and excuse the repetition of words - wanting to make believe that rehabilitation wants to imply some absolution on the merits of the story so, in the 2013, the Cavaliere came to be condemned in the context of the Mediaset rights process.

All this, net of the considerations, even legitimate, on the current post-electoral political moment, with the delicate phase of formation of a Lega-Cinque Stelle government, and the timing, certainly casual but certainly curious, with which all this happens.

What is rehabilitation actually

The institute of the rehabilitation, foreseen by the art. 178 of the penal code, allows the person who has suffered a conviction, and who has shown signs of repentance, to obtain the extinction of accessory penalties (for example, precisely the interdiction from public office) and of any other penal effect of the sentence itself.

The deadline for obtaining rehabilitation is, except in special cases (for example, in case of recurrence), of three years from from the day on which the principal penalty was executed or otherwise terminated (deadline that, for Berlusconi coincided with the 8 March 2015).

During this time, the instant must have held one good behaviour according to certain jurisprudence, in a behavior "devoid of any transgressive attitude and having undertaken a lifestyle that respects the fundamental principles of civil coexistence" (Cassette 22 July 2011 number 29490), and which was not marked by mere abstention from the fulfillment of facts constituting a crime, but, on the contrary, based on a "style of life marked by the observance of the rules of behavior commonly observed by the members and placed at the base of every profitable and orderly social coexistence, even where the same have no relevance criminal law and are therefore not criminally sanctioned "(Court of Cassation No. 196 / 02), and have fulfilled civil bonds deriving from the crime, unless it proves that it is impossible to do so.

In the case herein concerned, the magistrates of the Court of Surveillance of Milan, with the ordinance n. 4208 / 2018, have just statuted, among the main points, that:

  1. as regards the assessment of the good conduct requirement, it must be ascertained with the exclusion of behaviors prior to the aforesaid term, even if of "clear negative value"; that in any case the petitioner has not been subject to further criminal convictions than that for which rehabilitation is requested; that the Police and Carabinieri reports attesting to behavior conforming to the requirements of the law have been attached to the deeds; that the other pending proceedings (Ruby-ter, for example) do not in themselves exclude the existence of the regularity of the conduct and that on the contrary the mere inclination of a criminal proceeding for facts subsequent to those for which the sentence referred to in 'instance,' does not in itself constitute an obstacle to the acceptance of the request for rehabilitation, due to the presumption of not guilty ', which is the constitutional principle at the basis of our legal system;

  2. the civil obligations deriving from the offense have been fulfilled, having the moment provided for the payment of the amount of Euro 10.569.661,28 in favor of the Inland Revenue (in reality, this requirement is placed on top of all the others, in the text of the order in question, almost as if to mean primary importance).

So, in this way, the granting of this institute, so much criticized in the present case by some, can not be considered so absurd.

In any case, it must be clarified that rehabilitation, without prejudice to the hypothesis of opposition by the General Prosecutor's Office (a hypothesis that seems to have been excluded at this time), can still be revoked, in the mind of the art. 180 of the penal code, in cases where the rehabilitation commits, in the term of seven years, a non-culpable crime for which the penalty of imprisonment is imposed for a period of no less than two years or another more serious sentence.

So, for AC right-thinking parties, the hope that everything can go according to theirs desired it is not yet definitively dead.

Avv. Marco Valerio Verni

(photo: Quirinale)