An Italian story

Apr 26th 2001
From The Economist print edition

After next month’s election, Silvio Berlusconi, Italy’s richest businessman, is expected to become prime minister again. Yet he is still locked in a string of legal battles. His companies have used money from untraceable sources—and he even faces allegations of links to the Mafia

APHoping for leniency

ON APRIL 20th, in a drab courtroom in Milan, three judges met to hear evidence in a big trial. The case involved the alleged bribery of judges. Taped to the door was a handwritten list of the accused. At the top was Silvio Berlusconi’s name.

This case illustrates vividly that Mr Berlusconi has not put his legal problems behind him. Shortly before he first became Italy’s prime minister, in May 1994, his business empire, Fininvest, became a subject of the mani pulite (clean hands) investigations. This operation, launched by magistrates in Milan in 1992, had exposed deep-rooted corruption in Italian politics, the bureaucracy and business.

When Mr Berlusconi founded his political party, Forza Italia, in 1993, little was known about his business methods. He portrayed himself to Italians as a self-made man who had built up a powerful television empire by breaking the monopoly of Italy’s state-owned broadcaster, RAI. He told them that he represented a clean break with Italy’s corrupt past.

Since 1994, however, magistrates have investigated many allegations against Mr Berlusconi, including money-laundering, association with the Mafia, tax evasion, complicity in murder and bribery of politicians, judges and the finance ministry’s police, the Guardia di Finanza. Mr Berlusconi, who strongly denies all the allegations, maintains that left-wing magistrates dominate the judiciary, and that the mani pulite investigations were politically motivated. Not surprisingly, his closest associates echo these assertions. “Mr Berlusconi has been persecuted since 1993. There is something rotten in the judicial system,” says Fedele Confalonieri, an old friend and chairman of Mediaset, Fininvest’s television group.

A senior British judge, Lord Justice Simon Brown, took a rather different view in 1996. The case involved an unsuccessful attempt by Mr Berlusconi to stop Italian magistrates getting their hands on some documents seized by the Serious Fraud Office in Britain. The magistrates needed these documents as evidence in a case of illegal party financing, whereas Mr Berlusconi claimed the alleged offence was political. It was a misuse of language, Lord Justice Brown said,

But Mr Berlusconi has a second line of defence. “Italy is not a normal country. Even an anomaly like Mr Berlusconi must be understood in the context of the country. He has done nothing worse than any businessman in Italy,” pleads Mr Confalonieri.

Indeed, many Italians, by no means all of them on the right, echo this defence. Mr Berlusconi, they say, did only what all businessmen had to do to get ahead: pay off anybody, politicians and judges included, who was in a position to help. Mr Berlusconi’s fault, they say, is simply that he was cleverer, and became richer, than his rivals. Besides, they add, what were the magistrates themselves up to, before the mani pulite campaign, when they were notably inactive in pursuing bigwigs?

Others disagree. “He went beyond the acceptable way of doing business in Italy,” comments a top Italian banker.

Wheels of justice

Three things are important if the full background to Mr Berlusconi’s legal entanglements is to be understood. First, once an allegation of a crime is made in Italy, magistrates have a legal duty to investigate. They can investigate the allegation for a maximum of two years without bringing charges. Second, once charges are brought, the justice system moves slowly: a trial can last for years, as can the appeal process. Third, in Italy, the accused are not considered guilty before definitive conviction in the final appeals court.

Click to enlarge

Mr Berlusconi has had no definitive convictions so far, but only three of nine criminal proceedings against him have reached the final appeals court (click to see the charge sheet). In the one case where the result is known, concerning illegal political donations, this court did not find him innocent. It upheld the verdict of the first appeals court which, because of the lapse of time since the offence, had applied the statute of limitations. Under the Italian penal code, this extinguishes the crime.

Mr Berlusconi’s legal problems all stem from his business career, which started in the 1960s. When he entered politics, he gave up the directorships of all his Fininvest companies, except AC Milan, a football club. However, he remains the controlling shareholder, and one or both of his grown-up children sit on the board of each of the main companies in the empire.

The structure of that empire is not straightforward even now, and has been far more convoluted in the past. Twenty-two holding companies, each of them beneficially owned by the Berlusconi family, control around 96% of the main private holding company, Fininvest.

Fininvest’s biggest asset by far is a controlling stake, worth 13.1 trillion lire ($6.0 billion), in Mediaset. Terrestrial television in Italy is dominated by two groups: Mediaset, and the state-owned RAI. Between them, Mr Berlusconi’s three TV networks (Canale 5, Italia 1 and Retequattro) have a 43% share of the national audience and over 60% of total TV advertising sales.

Television is only one part of Mr Berlusconi’s media empire. He has a controlling stake in another quoted company, Mondadori, which is Italy’s largest publishing group. Mondadori’s books division has almost 30% of the domestic market; its magazine division, with around 50 titles, 38%. The Berlusconi family also owns one of Italy’s leading national newspapers, il Giornale.

Fininvest also has a 36% stake in Mediolanum, a fast-growing financial-services group that Ennio Doris founded in 1982 with Mr Berlusconi’s financial backing. Mediolanum was floated on the stockmarket in 1996. And Fininvest has a clutch of loss-making businesses (see table below), such as its Internet portal, Jumpy, launched just as the dotcom party was finishing, and Pagine Utili, a struggling telephone-directories firm.

The money trail

Mr Berlusconi cut his business teeth on property development in and around Milan. In the late 1960s, he had the idea of developing Milano 2, a garden city of around 3,500 flats. It was built on the eastern outskirts of Milan beneath the flight path of aircraft taking off from nearby Linate airport. The appeal of the development was enhanced after the aircraft were mysteriously diverted over other residential areas.

This was not the only mystery. Companies in Switzerland, where beneficial ownership is impenetrable, injected 4.1 billion lire (33.5 billion lire in today’s money) in equity into the Italian companies responsible for Milano 2. So, on paper, this project belonged not to Mr Berlusconi, but to anonymous third parties.

Officials at the Bank of Italy suspected that Mr Berlusconi was behind the Swiss companies. At the time, holding capital abroad without telling the authorities was a criminal offence. A team from the Guardia di Finanza, led by Massimo Berruti, investigated in 1979, but concluded, despite evidence that Mr Berlusconi had personally guaranteed bank loans to the Italian companies, that he was not the beneficial owner of the Swiss companies. Mr Berruti’s boss signed the official report. Like Mr Berlusconi, he belonged to the infamous P2 masonic lodge. Immediately after his investigation, Mr Berruti left the Guardia di Finanza and worked as a lawyer for Mr Berlusconi. He is now a Forza Italia member of parliament.

Milano 2 gave birth to Mr Berlusconi’s television empire. In 1978, he launched a local cable-television station for Milano 2, called Telemilano. This scheme became far grander. Mr Berlusconi’s ambition was to challenge RAI’s monopoly on national television advertising, for which there was huge pent-up demand. Telemilano became Canale 5 in 1980.

There was one major snag: only RAI was permitted by law to broadcast nationally. Although private commercial television was unregulated in most respects, a court ruling in 1980 allowed private television stations to broadcast only on a local basis.

But Mr Berlusconi soon found a way round this ruling. He bought programmes, especially American films and soaps, and offered them at very low prices to small, regional television stations. Mr Berlusconi collected the revenue from pre-recorded advertising slots that he inserted. Each station in the Canale 5 circuit agreed to broadcast the same programmes at the same time. In this way, he secured his national audience.

How did Mr Berlusconi finance his budding television empire? Part of the answer is with bank debt. He had a large helping hand from public-sector banks, which provided bigger loans than Fininvest’s creditworthiness seemed to merit. But the rest of the answer is not clear at all. In 1978, at the birth of his television group, Mr Berlusconi set up the 22 holding companies that control Fininvest. From 1978 to 1985, 93.9 billion lire (387 billion lire in today’s money) flowed into the 22 companies, ostensibly from Mr Berlusconi.

In 1997, a financier with links to the Mafia alleged to magistrates in Sicily that Mr Berlusconi had used 20 billion lire of Mafia money to build up his television interests. The magistrates asked the Bank of Italy to help the anti-Mafia division investigate. Two officials spent 18 months combing the shareholder, banking and accounting records of the 22 companies. The Economist has a copy of their reports, which run to over 700 pages. The two main findings are startling.

The first is Mr Berlusconi’s lack of openness with the two trust companies that he instructed to be the registered holder of his shares in the 22 companies. The trust companies were subsidiaries of Banca Nazionale del Lavoro (BNL), a large bank. Mr Berlusconi put money into the holding companies through two little-known Italian banks, rather than through BNL itself. Thus, BNL’s trust companies had no clear picture of the ultimate source of these funds. In 1994, BNL’s managers were so concerned about this that they carried out two inspections of BNL’s relations with the 22 companies.

These inspections revealed other anomalies, such as share sales that were registered solely on Mr Berlusconi’s word, and with no documentary evidence. For instance, when he sold shares in one of the holding companies to a Fininvest subsidiary for 165 billion lire, the funds bypassed the trust companies altogether. So they had no idea how, or even whether, the buyer had paid for the shares.

The second finding is that the ultimate source of the money put into the 22 companies cannot be traced. There were three reasons for this. First, 29.7 billion lire had been paid in cash, or cash equivalents. Second, the investigators had found no extant supporting documents in the records of the trust companies, banks or holding companies for 20.6 billion lire. Third, Mr Berlusconi had been adept at sending funds round in circles.

Why did Mr Berlusconi want to do this? The investigators were baffled. One company, Palina, ostensibly a third party, had sent 27.7 billion lire to the trust companies, which had then transferred this sum to the holding companies. From there, the funds went to Fininvest, and then, through a Fininvest subsidiary, back to Palina. All these transactions took place on the same day and at the same bank. The investigators found that hidden behind Palina was Mr Berlusconi. He had used a 75-year-old stroke-victim to front for him. Soon after the transactions took place, Palina was liquidated. Its books had been kept blank.

So the true source of the 93.9 billion lire that flowed into the 22 companies in 1978-85 remains a mystery that only Mr Berlusconi can solve. We have sent him questions about this, in writing, but he has declined to answer. A close reading of the reports suggests that the possibility of money-laundering in the 22 companies cannot be ruled out. Banca Rasini, one of the little-known banks used by Mr Berlusconi and once his father’s employer, cropped up in trials of several money-launderers in the 1980s. But the anti-Mafia investigators found no evidence to support the allegation that had triggered their work. They clearly hoped to produce a second report, but the time limit for the investigation had by then expired.

A friend in need

After he bought his two largest private competitors, Italia 1, in 1983, and Retequattro, in 1984, Mr Berlusconi had secured a virtual monopoly in private television. To skirt round the law and broadcast nationwide, he needed help from political friends. None helped more than Bettino Craxi, who became leader of the Socialist Party in 1976 and prime minister in 1983. Mr Berlusconi, through his two main networks, had a powerful political weapon to offer.

In October 1984, officials in several Italian cities shut down his television stations for broadcasting illegally. This spelled potential disaster for the heavily indebted Fininvest group. Within days, Craxi, who died in Tunisia last year after being sentenced in absentia to prison for corruption, signed a decree that allowed Mr Berlusconi’s stations to stay on air. After some parliamentary tussles, this decree became law.

Craxi’s decree did nothing to prevent concentration of ownership. But neither did the Mammi law (named after Oscar Mammi, the telecoms minister), passed in 1990. Tailor-made to suit Mr Berlusconi with his three national networks, it said that no single group could own more than three out of the 12 networks that would be licensed. The coalition government of the day, which depended heavily on Craxi’s Socialist Party, pushed through this controversial measure despite the resignation of five ministers in protest. In effect, this law entrenched the duopoly between Mediaset and RAI. In 1991 and 1992, Mr Berlusconi paid a total of 23 billion lire into Craxi’s offshore bank accounts from a clandestine part of his Fininvest empire, known as All Iberian.

Following leads from their investigation of Craxi’s bank accounts, prosecutors discovered a secret and substantial network of Fininvest companies, incorporated in such jurisdictions as the British Virgin Islands and the Channel Islands. These companies were not disclosed as subsidiaries in Fininvest’s accounts. According to prosecutors, in 1993 Mr Berlusconi signed a letter to his auditors falsely stating that these companies were not part of the Fininvest group.

The prosecutors claim to have found a wide-ranging international fraud, perpetrated under the direction of Mr Berlusconi, to siphon off huge amounts from Fininvest into the secret offshore companies. According to them, Fininvest used various fraudulent financial techniques. The offshore companies, the prosecutors claim, used these funds for all sorts of illegal activities, such as the offshore companies purchasing:

A genuine buyer of bearer shares in a quoted company would hardly have left them in the safe keeping of the same person used by the seller.

Offshore interests

Another leg of the prosecutors’ case is that the offshore companies were used to warehouse secret stakes in television companies in Italy and Spain. The prosecutors say they have strong documentary evidence of this. The Mammi law required Mr Berlusconi to sell 90% of his interest in Telepiu, a pay-TV network that he set up in 1990. However, according to the prosecutors, Mr Berlusconi kept control of this stake until 1994 through his offshore companies. He arranged contracts with associates who agreed to act as fronts for him. Under these contracts, while legal ownership of the shares passed to the investors, beneficial ownership remained with Mr Berlusconi’s offshore companies.

The magistrates also uncovered a similar alleged warehousing operation for a 52% stake in Telecinco, a Spanish television station. At the time, Spanish antitrust legislation did not allow anyone to own more than 25% of such companies. Baltasar Garzon, an anti-corruption magistrate in Spain, wants Mr Berlusconi’s immunity as a member of the European Parliament lifted. He is likely to have to wait. For eight months, Spain’s foreign and justice ministries have been locked in a strange wrangle about which is the competent authority to submit a request to the European Parliament.

Mr Berlusconi is currently on trial for falsifying the accounts of the Fininvest holding company. The effect of the alleged falsification of the accounts was to hide all the alleged illegalities. False accounting is a serious offence in Italy, punishable by up to five years in jail. Magistrates have recently applied for a case to be brought on equally serious charges of false accounting relating to the group accounts of Fininvest.

However, Mr Berlusconi may be planning an escape. On March 17th he told a meeting of Italian businessmen that, if elected, his government would decriminalise most cases of false accounting. So the magistrates’ work may have been in vain. Yet although they have been unable to trace the ultimate destination of the tens of billions of lire paid out by various parts of Mr Berlusconi’s secret offshore empire, they have discovered where some payments went.

Mr Berlusconi gained control of Mondadori, the publishing group, in 1991 after a bitter battle with Carlo De Benedetti, a wealthy Italian businessman who was himself briefly imprisoned in the mani pulite period. Mr Berlusconi is alleged to have bribed an appeal-court judge, Vittorio Metta, with 400m lire to rule in his favour in a case that decided the battle with Mr De Benedetti.

When magistrates started investigating the case, they discovered that Mr Metta had paid 400m lire in cash in 1992 towards the cost of a flat. In February 1991, the month after Mr Metta’s ruling, one of Fininvest’s secret offshore companies paid 3 billion lire into a Swiss bank account of Mr Berlusconi’s close associate and lawyer, Cesare Previti, who was defence minister in his government in 1994. From Mr Previti’s account, magistrates traced a payment of 425m lire to a Swiss bank account of another lawyer, Attilio Pacifico, who withdrew this amount in cash in October 1991. Mr Pacifico allegedly handed over the bribe to Mr Metta.

Although the magistrates found no direct proof of the payment in cash to Mr Metta, they believed they had a strong case based on indirect proof. Scrutiny of Mr Metta’s bank accounts revealed no cash withdrawals amounting to 400m lire in the relevant period. Neither did investigation of the Italian and Swiss bank accounts of a retired Italian judge who, according to Mr Metta, had given him the 400m lire in wodges of cash—though the accounts did contain several million dollars.

So the magistrates believed they had established that Mr Metta had received 400m lire in cash from the money that Mr Berlusconi paid to Mr Previti in February 1991. Last June, a judge at a preliminary hearing took a different view. He believed Mr Metta and ruled, therefore, that Mr Berlusconi and the other defendants, who included Mr Previti and Mr Metta, had no case to answer. The magistrates have appealed.

Dealings with judges

Mr Berlusconi is also on trial for alleged bribery of judges. His co-defendants, who all deny the charges, include Mr Previti and Mr Pacifico, and, again, the case involves Mr De Benedetti as the offended party. In 1985, Mr De Benedetti signed a contract to buy SME, a food and catering conglomerate, from IRI, a large state-owned group. Mr Berlusconi and another businessman formed a company to mount a higher bid for SME. After a court ruling in 1986 that his contract was not valid, Mr De Benedetti’s deal with IRI fell through. He then took the case to the highest appeals court, where he also lost.

One charge against Mr Berlusconi, which he denies, is that he induced judges to find in his favour by promising them money. Whether this is true or not, there is a clear trail of money from Mr Berlusconi to Renato Squillante, a judge, via Mr Previti. The Economist has documents that show a transfer, on March 6th 1991, of $434,404 from one of Mr Berlusconi’s Swiss bank accounts to one of Mr Previti’s, and on March 7th, a transfer of the same amount from Mr Previti’s account to the Swiss bank account of Rowena Finance, a Panamanian company. Court evidence shows that Rowena Finance’s account is Mr Squillante’s. Mr Berlusconi had wanted to appoint his chum, Mr Previti, as justice minister in 1994, but the president of Italy refused to approve this.

Mr Berlusconi has been absent from the 26 hearings scheduled to date in this trial—some recently postponed, as his lawyers are standing in the election. He has applied for the judges to be replaced, as he claims they are prejudiced.

If he is eventually found guilty of the crime in the final appeals court, he could receive a prison sentence; the statute of limitations will not kick in until 2008. Unlike the crime of false accounting, it will be very difficult for his government, if he wins the election, to decriminalise the offence of bribing judges. This trial could also be unique in Italian judicial history. No serving prime minister of Italy since the war has yet been a defendant in a criminal trial.

Cosy with Cosa Nostra?

Mr Berlusconi’s problems with the magistracy have not been confined to Milan. In Sicily, Mafia pentiti (supergrasses who have “repented”), especially Salvatore Cancemi, whose evidence has helped prosecutors secure several convictions against Mafia bosses, have made very grave allegations against Mr Berlusconi and his close friend, Marcello Dell’Utri. Mr Cancemi alleged in 1996 that both were in direct contact with the Mafia boss who ordered the bombing which killed an anti-Mafia magistrate, Paolo Borsellino, in 1992.

After a two-year investigation, magistrates applied last year for the inquiry to be closed without charges. They did not find evidence to corroborate Mr Cancemi’s allegations. Similarly, a two-year investigation, also launched on evidence from Mr Cancemi, into Mr Berlusconi’s alleged association with the Mafia was closed in 1996.

A parallel investigation resulted in charges against Mr Dell’Utri of aiding and abetting the Mafia, which he denies. With the exception of Mr Berlusconi, nearly all the prosecution witnesses in the trial, which started in 1997, have been heard. According to Ennio Tinaglia, the lawyer for the province of Palermo, a civil party in the case, the prosecution has “presented strong evidence of Mr Dell’Utri’s very close links with the Mafia.” Mere mention of the Mafia makes Fininvest’s managers twitch. “Mafia is second only to paedophilia as a crime. It is a terrible, shameful thing,” says Mr Confalonieri, one of Mr Dell’Utri’s former colleagues.

So who is Mr Dell’Utri? Apart from a short spell in the late 1970s, Mr Dell’Utri, a Sicilian, worked with Mr Berlusconi in Fininvest from 1974 to 1994. As chief executive of Publitalia, Mediaset’s advertising wing, he was responsible for the cash generator of the Fininvest group. Mr Dell’Utri, a member of the Italian parliament, was a co-founder of Forza Italia, and acted as Mr Berlusconi’s campaign manager in the 1994 election.

Magistrates have also applied for Mr Dell’Utri to be brought to trial on charges of conspiracy to slander their colleagues. And he is currently under investigation for allegedly attempting to bribe a prosecution witness at his trial. A court case in 1996 revealed that Mr Dell’Utri received donazioni (gifts), often in cash, of 4 billion lire from Mr Berlusconi between 1989 and 1993.

While Mr Berlusconi is not obliged to testify in his own trials, even as prime minister, he cannot escape giving evidence in Mr Dell’Utri’s. Prosecutors will probe him about his long-standing friendship with Mr Dell’Utri. And he will have to answer other questions that he has hitherto avoided. These include how and why he employed Vittorio Mangano, a convicted mafioso from a powerful clan in Palermo, on his country estate near Milan for two years in the 1970s.

High on the prosecutors’ list will be questions on the anti-Mafia investigators’ reports about the 22 holding companies. Not least, they will ask him where the 22 companies got their funds. There will also be questions about a Sicilian television company that he owned with a Mafia-related figure.

Despite his claims that he is the shining archetype of a self-made man, Mr Berlusconi has needed a lot of help from insalubrious quarters. Though he says he wants to replace the old corrupt system, his own business empire is largely a product of it. His election as prime minister would similarly perpetuate, not change, Italy’s bad old ways.

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