Michael Day: Berlusconi isn't just paranoid

It is now well past the stage when anyone outside Italy regards attacks by Silvio Berlusconi on his "enemies" in the judiciary as anything other than the deluded rants of an old despot – Europe's answer to Gaddafi. And if the courts finally nail him – he is soon to go on trial on a charge of having sex with an under-age prostitute – it will, for most of the Teflon-tycoon's subjects, seem like the dream gift, as the country celebrates its 150th birthday next month.

But in an important sense Berlusconi is right. His most dedicated adversaries, in a country where the opposition is not fit for purpose are the judiciary, and they are scenting blood. If there is evidence that Berlusconi is guilty of a crime, then of course it is right to seek to convict him. But the impression that Italy's judges are acting out their part in a political grudge-match grows stronger all the time, and in a modern European democracy, the judiciary should not be deciding who governs.

The judges' sense of their own power is a legacy of the early 1990s, when they stepped in to fill the vacuum left when Italy's ruling political class collapsed under the monumental Tangentopoli corruption scandal. Now public prosecutors continue to eavesdrop on the Prime Minister's private life, passing every embarrassing detail or claim to emerge from their "confidential" investigations to newspapers.

In the absence of contempt-of-court laws, potentially damaging claims are leaked without the slightest compunction. Suspicion surrounds the justification for the "Rubygate" investigations, for example. Magistrates can make a case for using wiretaps after the incident last May in which the 17 year old Moroccan bellydancer Karima "Ruby" el-Mahroug was held for suspected theft and then released following the alleged intervention of the Prime Minister.

But it is not clear if surveillance began before this. If it did, it would add to the impression that Milan's judges were indeed "out to get" Berlusconi. Concerns that magistrates have overstepped the mark were spelt out by the respected Corriere Della Sera columnist, Piero Ostellino. "To monitor whoever goes to dinner at Arcore [the premier's mansion near Milan], transforming him or her automatically into an accomplice of 'the dirty old man' is not seeking justice, but making justice," he wrote. Prosecutors' leaks have allowed the press to name and brand women as prostitutes before any investigation had even concluded, let alone seen the inside of a court room, he noted.

If judicial antipathy towards Berlusconi finds your sympathy glands unresponsive, consider the Meredith Kercher murder case. The gung-ho chief prosecutor, Giuliano Mignini, after gaining Amanda Knox's conviction in 2009, was back in court to prosecute the American for slander last June, allowed to resume hostilities against Knox despite a conviction for abuse of office.

There is no clear division between the careers of judges and prosecuting magistrates. As such they can flit from one role to the other – and sometimes appear to confuse the jobs. Ordinary Italians pay the price for judicial arrogance every day. The state pays out about €400m a year to victims of judicial errors.

Then there's the staggering length of time it takes them to do anything. Magistrates are appalled by Berlusconi's latest scam to stay out of jail – capping trial lengths to "just" two years. The judges correctly warn a cap would see thousands of important cases (including some of Berlusconi's) killed off. But two years should be plenty of time for most trials. By digging their heels in over reform, the judiciary is playing right into Berlusconi's hands, as he seeks to concentrate power in the hands of the executive.

Few in Italy, apart from the mogul's cronies and the foreign correspondents who chronicle his misdemeanours, would mourn Berlusconi's toppling by the judges. If it comes at any cost, though, Italy's more thoughtful citizens might be asking what – or who – will be next.