“Questionable conjectures” and “illogical reasoning” produced a decision which “does not correspond to the reality or the nature of the crime.” That is how Italian legal scholar Nello Rossi explains the conviction of prosecutors Fabio de Pasquale and Sergio Spadaro for their failure to disclose information to Shell and ENI during the trial of the two for paying massive bribes to secure the rights to Nigerian oil tract OPL-245.

Writing in the January issue of a leading Italian law journal (original; translation), the former judge, Deputy Chief Prosecutor, and High Council of the Judiciary member excoriates the November 11 judgement by a trial court sitting in Brescia (here), showing it to be the result of an unprecedented, unrealistic reading of the governing law together with misstatements if not down-right misrepresentations of the facts.

In finding the prosecutors guilty of failing to perform an official act, the court ruled the law requires prosecutors to automatically turn over to defendants all material received from any third-party before or during trial no matter its credibility or relevance. That the two decided to secretly withhold the material, the court said, showed they knew withholding it was a crime. To buttress its decision, the court added that the material’s disclosure would have affected how the judges in the bribery case assessed the evidence.

Rossi’s meticulous analysis of the court’s decision eviscerates each of these contentions.

A courageous Italian judge has affirmed that the evidence showing oil giant ENI paid massive bribes for rights to Nigerian oil block OPL-245 is reliable. Judge Francesca Giacomini ruled in December that ENIgate, a book reporting the bribery scheme, was based on “multiple reliable sources.”

In her opinion she not only dismissed ENI’s lawsuit that author Claudio Gatti and publisher Il Fatto (“the Fact”) had defamed the company by claiming it had paid bribes but ordered it to pay defendants’ legal fees as well.

Saying OPL-245 was secured through bribery isn’t what makes Judge Giacomini courageous. The bribery has been a matter of public record for over a decade (here).

The judge merits the accolade for having the fortitude to say so in the face of the fecklessness and likely downright corruption of her judicial colleagues (here). On even more evidence than she had before her, three of them exonerated ENI, its executives, and accomplices of all bribery charges with the flimsiest of reasoning (here). Even more scandalous, in a separate case a fourth found the prosecutors guilty of a crime for how they chose to present the case.

That case rests on an imagined set of facts and an unprecedented interpretation of Italian law (here). Is it too much to hope that the court hearing the appeal show the same courage as Judge Giacomini?

Time for English translation?

Key excerpts of Judge Giacomini’s ruling in English, courtesy of Google and Microsoft office translation programs, below.  Full text of decision here.

That’s how former French magistrate and renowned corruption fighter Eva Joly sees current developments in Italy. Two prosecutors there face prison for actions taken during the bribery trial of Italy’s largest company.  Writing in the Argentine opinion journal Clarín, Mme. Joly explains that the charges have nothing to do with their conduct and everything to do with a justice system where score-settling and the protection of Italian companies has supplanted the goal of truth and justice (Spanish original here; English translation here).

The saga begins with prosecutors Fabio de Pasquale and Sergio Spadaro opening an investigation into allegations oil giants Shell and Eni paid a $1.1 billion bribe for rights to Nigerian oil field OPL 245. With overwhelming evidence of wrongdoing on the public record (here, here), the two expected they would be trying a cut-and-dried case of foreign bribery.

Even before the trial began, however, it was clear that that was not to be. The first signs: revelations of ties between the chief trial judge and a lawyer close to ENI together with a surprising lack of interest by the Italian press in the largest bribery scandal on record. During the trial, a string of rulings highly favorable to the defense heightened suspicions the fix was in. But the acquittal still came as a surprise given the massive evidence presented coupled with the flimsy reasoning the court advanced to justify its verdict (here).

Adding to the surprise was the Italian media’s new-found interest in the case. Stories claiming the trial had been a waste of public money and questioning what Italian prosecutors were doing prosecuting Italian companies for bribing foreign officials began appearing in several outlets, the same ones where ENI was a major ad buyer.

Not to risk an appellate court would undo their handy work, those behind the trial’s outcome saw to it that the state counsel appointed to appeal the acquittal was one whose public comments on the case tracked the criticisms in the press (here). She then took the extraordinary step of refusing to pursue an appeal, meaning the trial court’s acquittal remains the final word.

Those responsible for quashing one case against ENI apparently feared there was always a risk some other pesky prosecutor didn’t get the message. Hence the orchestration of the conviction of de Pasquale and Spadaro for failing to disclose exculpatory information to the defense, a case with no precedent in Italian law based on a factual claim belied by the trial record.

If the convictions are not overturned on appeal, it’s not only the future of two talented magistrates that will suffer. As Mme. Joly says, the credibility of the Italian judicial system and the future of the fight against corruption, in Italy and far beyond, will suffer as well.