On 7 April 2015 the Fourth Chamber of the European Court of Human Rights (ECtHR) issued its decision in Cestaro v. Italy, which condemned Italy for violating article 3 of the European Convention of Human Rights (ECHR), both in its procedural and substantial aspects. In particular, the Court found that the ill treatment perpetrated by the Italian police in the night between 21 and 22 July 2001 within the School ‘Diaz-Pertini’ (Genoa, Italy) are to be considered as acts of torture.[1] This post focuses on the main reasons that brought the Court to this conclusion and aims to provide some preliminary remarks on the draft law, which is currently under the examination of the Italian Parliament. It is argued that such a draft law might not adequately comply with the procedural obligations deriving from article 3 ECHR.

The judgment at issue stems from the disorder that took place in Genoa during the no-global summit organised by the Genoa Social Forum (GSF), which aimed to discuss the issues on the agenda at the G8 summit. Subsequent to the tragic events which had culminated, a few days before, with the death of Carlo Giuliani, and following the closure of the works of the G8 summit, around 500 officers were involved in a police operation on the night of 21 July. On that occasion, 93 people, who had come to Genoa for the Social Forum and were legitimately using the School as sleeping space, were attacked and arrested.[2] Significantly, 78 out the 93 people arrested were injured to the point of needing hospital care.[3] Moreover, any ex post facto attempt to justify these events turned out to be fallacious and intentionally misleading.[4]

The European Court’s findings

The Court concluded that a procedural and substantial violation of Article 3 ECHR had thus arisen. On the substantive violation, the Court declared that les tensions qui, comme le prétend le Gouvernement, auraient présidé à l’irruption de la police dans l’école Diaz- Pertini peuvent s’expliquer moins par des raisons objectives que par la décision de procéder à des arrestations médiatisées et par l’adoption de modalités opérationnelles non conformes aux exigences de la protection des valeurs qui découlent de l’article 3 de la Convention ainsi que du droit international pertinent.[5]

As for the procedural violation, the conclusions reached by the Court are particularly interesting. The main reason for the Court to conclude in favour of a procedural violation of article 3 ECHR is that, in spite of its ratification of both the ECHR (in 1955) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) (in 1988), Italy still needs to adjust its legal order by introducing a crime (delitto) of torture in its Penal Code. On the one hand, most of the conduct relevant for the case at issue might have, at least in theory, been punished by being ascribed within other categories of crimes. On the other hand, the international crime of torture constitutes an unicum, especially in terms of its authors, the applicability of a statute of limitations, and the possibility to grant measures such as amnesties and pardons when torture is concerned.

It is worth noting that none of the accused for the conduct discussed in the present case has been condemned by the Italian Courts for the crimes they were accused of in the absence of a crime of torture, namely, the crimes of simple and aggravated assault.[6] All the accused, in fact, benefitted from the expiration of the time limit for prescription, whereas those accused of perjury, calumny, and abuse of authority could also enjoy the benefits deriving from the 2006 statute (i.e., legge n. 241 del 29 luglio 2006), which provided for a general reduction of 3 years of the period of imprisonment (or pardon). In this regard, the Court has recalled as follows.

[E]n matière de torture ou de mauvais traitements infligés par des agents de l’Etat, l’action pénale ne devrait pas s’éteindre par l’effet de la prescription, de même que l’amnistie et la grâce ne devraient pas être tolérées dans ce domaine. Au demeurant, l’application de la prescription devrait être compatible avec les exigences de la Convention. Il est dès lors difficile d’accepter des délais de prescriptions inflexibles ne souffrant aucune exception (…). Il en va de meme du sursis à l’exécution de la peine (…) et d’une remise de peine.[7]   Therefore, [l]a Cour considère dès lors que c’est la législation pénale italienne appliquée en l’espèce (…) qui s’est révélée à la fois inadéquate par rapport à l’exigence de sanction des actes de torture en question et dépourvue de l’effet dissuasif nécessaire pour prévenir d’autres violations similaires de l’article 3 à l’avenir.[8]

The Italian draft law introducing the crime of torture in the Italian Penal Code

The Strasbourg Court has noted that on 5 March 2014 the Italian Senate has finally approved a draft law (i.e., disegno di legge N. 10), aiming at ‘introducing the crime of torture’, which, since 14 April 2015, has been officially registered on the agenda of the Italian Camera dei Deputati. Needless to say, this might be an important and positive step towards the end of impunity when it comes to torture. However, in order to see whether or not this provision would substantially allow Italy to comply with its international obligations, an analysis of the draft law seems here necessary.

First, according to some of the Senators who originally submitted this draft law, ‘il reato qui configurato è di natura comune in quanto il reato può essere commesso da chiunque’. Hence, the Senators claimed they aimed at providing an ‘even broader definition’ of the crime of torture than the correspondent international crime, as the draft law does not incorporate the element of the participation of a state agent. As Antonio Cassese pointed out, however, [l]a necessaria partecipazione di un organo (rappresentante) – de jure o de facto – dello Stato alla realizzazione della condotta tipica, discende dal fatto che in questo caso la tortura è considerata punibile, dalle norme di diritto internazionale, anche quando essa costituisce un episodio singolo o sporadico.[9]

Therefore, according to Cassese, for determining the international crime of torture, one single episode might be deemed sufficient, and this because a state agent commits or permits, or even tolerates such a conduct. On the contrary, the draft law currently under the examination of the Italian Parliament makes reference to ‘violenze o minacce gravi, ovvero (…) trattamenti inumani o degradanti la dignità umana’, that is, to several episodes. In other words, what had been conceived to be ‘an even broader’ crime with respect to the international one, might in fact turn out to be a narrower one.

Moreover, it is exactly the (active or passive) role of the State throughout its agent(s) that determines, inter alia, the gravity of such a crime. On the contrary, the draft law approved by the Senate regrettably considers as a mere aggravating factor the fact that the crime is committed by a de iure state agent, and it punishes the incitement to commit torture, even if an inchoate one, only when this comes from such a state officer. All cases concerning acts of torture committed by any de facto agent, or with the state officer(s) omitting to act to prevent or punish the commission of such an act by his subordinates, are therefore not included within the meaning of the provision under consideration. In this respect, the doctrine of the command responsibility[10] might not find an adequate recognition.Having regard to the circumstances that led to the condemnation of Italy in Cestaro v. Italy, this is particularly unfortunate.

Also, this draft law does not provide for any differences with regard to the statute of limitations. As a consequence, the ‘ordinary’ statute of limitations will apply to torture, with the only exception, pursuant to article 157 of the Italian Penal Code, of the case in which torture results in the death of the victim(s), an event which is in fact punished with the so-called ‘ergastolo’, namely, an imprisonment lasting for 30 years. Finally, according to what the Court ‘recalled’ in the present case,[11] a provision incorporating the international crime of torture should provide for the inapplicability of measures such as a general reduction of punishment (indulto).

It follows that despite the efforts of the Italian Parliament aimed at putting an end to such an embarrassing condition of impunity when it comes to torture,[12] Italy might still incur in international responsibility, as the draft law currently under examination of the Italian Parliament presents significant flaws and departs from the relevant international obligations.

[1] Cestaro v. Italy App no 6884/11 (ECtHR, 7 April 2015) at 190.

[2] Corte di Cassazione, Judgment no 38085 of 5 July 2012.

[3] ibid.

[4] The Italian Corte di Cassazione called it ‘una complessa opera di mistificazione’. See Corte di Cassazione, supra note 2 as cited in Cestaro v. Italy, supra note 1, at 184.

[5] Cestaro v. Italy, supra note 1, at 189.

[6] ibid., at 221.

[7] ibid., at 208.

[8] ibid., at 225.

[9] Antonio Cassese, Lineamenti di diritto internazionale penale. I Diritto sostanziale (2005) 159.

[10] William Schabas, An Introduction to the International Criminal Court (2009) 233-235.

[11] Cestaro v. Italy, supra note 7.

[12] ibid., at 73.Palazzo madama