Silvio Berlusconi, the audio of the dead judge available to the European Court for Human Rights and already known to magistrates since 2015

The audio of the Cassation judge, Amadeo Franco, extender of the reasons for Silvio Berlusconi’s conviction for tax fraud, in which he says that the verdict for the affair of the inflated Mediaset rights approved by him “sucked”, are available to the European Court of Human Rights since last May. As reported by Ansa, which cites legal sources, the judges of Strasbourg had already been informed in 2015 of the existence of these recordings collected without the knowledge of the ermine who died last year. The new documents, sent over a month ago, are part of one new defensive memory which supplemented the appeal that had been submitted to the Court about six years ago. The appeal, which no one seems to remember, had been filed at the request of the former prime minister.

From a technical point of view, European magistrates could communicate to the Italian government the existence of the appeal and ask for any assessments. The Court could, therefore, set a public hearing or incardinate the matter in a mere exchange of cards but still reach a final decision. “The judges – reiterate the defenders – could not annul the sentence but identify any injury to the right of defense or offer elements for a possible review of the process “. On 27 July 2018 Silvio Berlusconi, precisely through the defensive college, asked to stop the process considering himself satisfied for having obtained the rehabilitation that allowed him to stand and be elected to the European Parliament. Four months later, the ECHR closed the case by informing that there were no “special circumstances relative al respect for human rights requiring continue the exam “ and therefore the appeal of the leader of Forza Italia had been canceled from his list.

Well the magistrates of Strasbourg – who had decided to majority and not unanimously as often happens – they had referred to article 37.1 of the Convention which states that “at any time during the procedure, the Court may decide to cancel an appeal from the role when circumstances allow to conclude: that the applicant no longer intends to keep it; or that the dispute has been resolved; or that for any other reason of which the Court ascertains the existence, the continuation of the examination of the appeal is no longer justified. However, the Court – it was read – continues the examination of the appeal if compliance with human rights guaranteed by the Convention and its Protocols requires it ”. Therefore, they would have been able to continue examining the appeal anyway however, they had archived it despite having been informed of the existence of these records. They could continue the process if they had identified – beyond the opinion of the applicant – the injury of his human rights.

A surprise move, that of Berlusconi who despite having found attention from the college of the Grand Chamber and in front of over 500 people including journalists, students and lawyers. For example, magistrates had asked the representatives of the Italian government for an account on “discrepancies” between the case of Berlusconi and that of Augusto Minzolini, saved from a bipartisan deployment from the decay inflicted instead on the former Knight. Icelandic judge Robert Spano, for example, asked if the rules could explain “if a discretion can be exercised in a particular case” by the Senate. The Portuguese magistrate Paulo Pinto de Albuquerque asked for another point underlined by Berlusconi’s lawyers: “The choice to proceed to the Senate with one public ballot despite the regulation providing for a secret vote in all cases “. In short, the court was interested in the topic. Government lawyers reiterated that the Convention had been respected.

But the point is another. Berlusconi filed the first appeal in Strasbourg shortly after his lapse (27 November 2013) and had to wait five years to be heard. And the renunciation of having a sentence where for once he was not the accused seemed strange. However, the defensive college said it was certain that the verdict would be favorable. “The president Berlusconi following an unjust sentencing sentence he had been deprived, with undue retroactive application of the so-called Severino law, of his political rights with consequent forfeiture of the Senate. In April this year, the rehabilitation intervention canceled the effects of the aforementioned law in advance. There was therefore no interest in obtaining a decision that we believe would have been favorable – the note from the time of the lawyers Franco Coppi, Niccolò Ghedini, Andrea Saccucci and Bruno Nascimbene -. The ECtHR after almost 5 years from the filing of the appeal, at that date, had not yet done so. Obviously, as recognized today by the Court itself, there was no longer any need to pursue the appeal as President Berlusconi returned in the fullness of his political rights. There was therefore no interest after more than 5 years of obtaining a decision that we believe would have been favorable to the reasons of President Berlusconi but that would not have had any concrete or useful effect, since the previous legislature had already ended. A condemnation of Italy would also have led to further tensions in the already more than complex life of the country, a circumstance which President Berlusconi intended to avoid absolutely “. So the question is this. Why if there was no more interest then – when the audios were already in the possession of Berlusconi and the existence known to the European magistrates – should there be today? And why if the intent was not to create tensions this intent – in a very delicate moment with the devastating effects on the economy due to the pandemic – does it not persist?