A TWO-PART SERIES
The 20th anniversary of the acts of torture perpetrated during the Genoa G8 summit, in July 2001, has sparked debate in Italy concerning what happened and whether the country has righted its wrongs. This two-part series by the Fundación Valsaín will provide for a legal analysis of the most significant issues. In the first article (below), Francesco Cannone will answer the question of whether the Italian definition of torture complies with the requirements of the European Convention on Human Rights and those of the Convention against Torture. In the second article (forthcoming), Francesca Bellisario will complete the analysis by dissecting the law of the statutes of limitations.
FIRST PART
by Francesco Cannone*
I.1) Introduction
In this article, I will answer the question of whether the Italian definition of torture complies with the requirements of the Convention for the Protection of Human Rights and Fundamental Freedoms (‘European Convention on Human Rights’ or ‘ECHR’) and those of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (‘Convention against Torture’). Firstly, I will set out Italy’s international obligations in this regard and consider how the Italian legal order has evolved in the face of international pressure (§ I.2). Subsequently, I will provide the reader with a doctrinal legal analysis of the Italian definition of torture from the perspective of international human rights law (§ I.3).
I.2) Background Information
Italy has ratified all nine core United Nations (UN) human rights treaties apart from the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. In addition to the latter, four expressly prohibit torture or cruel, inhuman or degrading treatment or punishment (hereinafter ‘torture and ill-treatment’). However, only the Convention against Torture provides for a definition of torture. As for the Council of Europe (CoE), Italy has ratified the majority of its treaties, including those which directly concern torture and ill-treatment. These are the ECHR and the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, which set up the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT). The CPT is a non-judicial, preventive mechanism that organises visits to places of detention, complementing the work of the European Court of Human Rights (ECtHR) on Article 3 ECHR (‘prohibition of torture [and ill-treatment]’). When it comes to the definition of the crime of torture in national law, the CPT refers to the case-law of the ECtHR and to the Convention against Torture, rather than setting new standards. The analysis will thus be limited to Article 3 ECHR, as interpreted by the ECtHR, and to the corresponding provisions of the Convention against Torture, as interpreted by its monitoring body: the Committee against Torture (CAT).
The prohibition of torture and ill-treatment is a peremptory norm of general international law, and therefore prevails over any contradicting international obligations. The prohibition is absolute, and thus can never be limited or derogated from. States have the obligation to prevent acts of torture and ill-treatment, firstly through legislative measures which make torture punishable as an offence under their criminal law. The crime of torture must be defined in national law as distinct from other crimes, and its definition must be in accordance, at a minimum, with Articles 1 and 4 of the Convention against Torture.
Despite ratifying the ECHR in 1955 and the Convention against Torture in 1989, Italy did not introduce the crime of torture in its domestic legal order until 2017, which paved the way for decades of impunity. The main reason for impunity was that acts constituting torture and ill-treatment had to be prosecuted as different crimes, for which slight penalties, and thus short statutes of limitations, are provided. By enacting Law 848/1955, the Italian Parliament allowed for the ratification of the ECHR and provided for its reception in the domestic legal system by cross-reference to its provisions. By enacting Law 498/1988, the Italian Parliament did the same with the Convention against Torture. However, Article 3 ECHR does not contain a definition of torture and ill-treatment. Conversely, the Convention against Torture defines torture, but this remains a non-self-executing norm in light of the nulla poena sine lege principle.
In the face of massive international pressure to remedy this lack of legislation, the Italian Government initially resisted by arguing that freedom from torture and ill-treatment was nonetheless guaranteed through a variety of other offences set forth in the Penal Code. Pressure came from the experts of the CAT, the Human Rights Committee (CCPR), and the CPT, as well as from peers during the first and second cycles of the Universal Periodic Review (UPR). Most importantly, pressure came from the ECtHR, whose judgments carry the highest political weight, and are also legally binding under Article 46(1) ECHR.
The Cestaro judgment, in 2015, was the main reason for the Italian Parliament legislating to introduce the crime of torture in the Penal Code, in 2017, according to Guido Raimondi, former ECtHR national judge of Italy. Cestaro v Italy was the first of four judgments regarding the shocking torturous actions of security forces against peaceful protesters occurred during the G8 summit which took place in Genoa, in July 2001. Amnesty International is reported to have described these actions as ‘the most serious breach of democratic rights in a Western country since the Second World War’. In Cestaro, the Court found violations of both the substantive and procedural aspects of Article 3 ECHR. On the one hand, the applicant was found to have been subject to torture within the meaning of Article 3 ECHR. On the other hand, those responsible for torturing the applicant remained unpunished as they could not be identified. Those prosecuted and tried for connected offences also remained unpunished thanks to the statute-barring of the offences, or were inadequately punished thanks to the partial remission of sentence that the Italian Parliament granted by enacting Law 241/2006.
The ECtHR highlighted the structural nature of the problem, identifying its roots in Italian criminal legislation which ‘proved both inadequate in terms of [its capacity] to punish the acts of torture in issue and [thus] devoid of any deterrent effect capable of preventing similar future violations’. As for the measures required to remedy this structural problem, the ECtHR clarified that states parties’ positive obligations under Article 3 ECHR may include the duty to establish an appropriate legal framework, with particular regard to effective criminal law provisions (consistently with Article 4 of the Convention against Torture). This involves, at a minimum, ‘imposing appropriate penalties on those responsible for acts of torture and other types of ill-treatment under Article 3 [ECHR]’ and ‘preventing [them] from benefiting from measures incompatible with the case-law of the Court’. Penalties that are manifestly disproportionate to the gravity of the act are not appropriate, and measures incompatible with the case-law of the Court include amnesties, pardons, statutes of limitations, suspended sentences, and remission of sentence, as well as disciplinary measures which do not ensure that law enforcement agents charged with torture and ill-treatment are suspended from duty during the investigation or trial and are dismissed if convicted.
I.3) Legal Analysis of the Italian Definition of Torture
Following the judgments Cestaro and Bartesaghi Gallo and Others, the Italian Parliament enacted Law 110/2017, introducing two new articles in the Penal Code (PC), namely Article 613-bis (‘torture’) and Article 613-ter (‘instigation of the public official to commit torture’). The question hereby analysed is whether the Italian definition of torture complies with the requirements of the Convention against Torture (the Convention) and those of Article 3 ECHR set out in Cestaro, which were later confirmed in Bartesaghi Gallo and Others, Blair and Others, and Azzolina and Others, on the facts of Genoa (§ I.2), and Cirino and Renne on acts of torture against prisoners.
Article 613-bis(1) PC states that ‘anyone who, with serious acts of violence or threats, or acting with cruelty, causes acute physical suffering or a verifiable psychic trauma to a person who is deprived of their liberty, or who is entrusted to their custody, authority, supervision, control, care or assistance, or who is in circumstances of minorata difesa, is punished with four to ten years of imprisonment if the offence is committed through multiple acts or involves inhuman and degrading treatment for the person’s dignity.’ Article 613-bis(2) PC adds that, when the facts covered by Article 613-bis(1) PC are committed ‘by a public official or by someone in charge of a public service, with abuse of power or in violation of the duties inherent to their function or service, the penalty is five to twelve years of imprisonment.’
The differences between the Italian definition of torture and that of the Convention against Torture are striking. Firstly, the Convention distinguishes between torture (Article 1) and ‘other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture’ (Article 16). Conversely, Article 613-bis(1) PC identifies ‘inhuman and degrading treatment’ as one of the two alternative constitutive elements of the offence of torture, the other being acting through multiple acts, jointly with one of the two further alternative constitutive elements of the offence of torture, namely acting with cruelty, or with serious acts of violence or threats. Secondly, under Article 1 of the Convention, torture is ‘any act’, one act being enough, whilst, under Article 613-bis(1) PC, ‘multiple acts’ are needed for torture to occur, unless a single act constitutes ‘inhuman and degrading treatment’. Thirdly, any person can be subject to torture under Article 1 of the Convention, but Article 613-bis PC restricts this.
Fourthly, under Article 1 of the Convention, torture involves ‘severe pain or suffering, whether physical or mental’, whereas Article 613-bis(1) PC requires ‘acute physical suffering or a verifiable psychic trauma’. Fifthly, under Article 1 of the Convention, such pain or suffering must be inflicted intentionally for a purpose such as obtaining information or a confession from the victim or a third person, punishing the victim for an act they have committed or are suspected of having committed, intimidating or coercing the victim or other persons, or for any reason based on discrimination of any kind. In the Italian definition, this requirement is absent. Sixthly, under Article 1 of the Convention, torture can only occur ‘at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity’. Under the Italian PC, anyone can commit torture (Article 613-bis(1)), even though a more severe penalty is provided for when torture is committed ‘by a public official or by someone in charge of a public service’ (Article 613-bis(2)).
The CAT considers the Italian definition of torture to be incomplete in light of the fifth and sixth points above, ie the absence of the purposive element and the fact that the perpetrator is not specified to be a public official or a person acting in an official capacity. The CAT also holds that the Italian definition of torture adds new elements to that of the Convention, which makes the first significantly narrower than the latter. The CAT has therefore recommended that Italy brings Article 613-bis in line with Article 1 of the Convention ‘by eliminating all superfluous elements and identifying the perpetrator and the motivating factors or reasons for the use of torture’.
Regarding the presence of a statute of limitations, the CAT has expressed its concern and recommended Italy ‘ensure that the offence of torture is not subject to any statute of limitations, in order to preclude any risk of impunity in relation to the investigation of acts of torture and the prosecution and punishment of perpetrators’. The case-law of the ECtHR is consistent with this recommendation. In Cestaro, the Court referenced Alikaj and Others v Italy, where, mutatis mutandis, it had stated that ‘time-barring is indubitably one of the ‘measures’ that are unacceptable under the Court’s case-law regarding the procedural aspect of Article 2 of the Convention because it has the effect of blocking conviction’. In supervising the execution of the Cestaro group of cases, the CoE Committee of Ministers (CM) has guarded the principle that torture should not be subject to any statute of limitation.
The CM has also called on the Italian authorities to rapidly ensure through adequate legal provisions that agents taking part in law enforcement operations can be identified in all situations. This mirrors the reiterations made by the ECtHR in Cestaro regarding both the principle that ‘any inability to determine the identity of members of the security forces, when they are alleged to have committed acts that are incompatible with the Convention, breaches [Article 3 ECHR]’, and the suggestion of remedial measures that, ‘where the competent national authorities deploy masked police officers ... those police officers should be required to visibly display some distinctive insignia – for example a warrant number – thus, while ensuring their anonymity, enabling their identification and questioning in the event of challenges to the manner in which the operation was conducted’. The CM has further requested Italy deliver a message at high political level to law enforcement agencies of a zero tolerance policy towards ill-treatment, and ensure that law enforcement agents charged with torture and ill-treatment are suspended from duty during the investigation or trial and are dismissed if convicted, as is consistent with ECtHR case-law. Moreover, the CM has encouraged the authorities to ensure that law enforcement agents undertake systematic and comprehensive human rights training. Sociological findings on Law 110/2017 indirectly confirm that these points made by the CM are essential for the prohibition of torture to be effective.
Whilst Italian legislation does not comply with all the requirements under Article 3 ECHR, focusing strictly on the definition of torture, differently than the CAT, the CM has expressed its confidence that ‘the law enforcement authorities, prosecutors and courts will be guided in their interpretation and application of these provisions by the requirements of the Convention and the European Court’s case-law in this area’. But is there really room for interpreting and applying the Italian definition of torture in a manner that ensures compliance with the ECHR? And is there room for compliance with the Convention against Torture? To answer this question, one should turn again to the text of the Italian definition of torture, consider how the Italian Supreme Court has begun to interpret it, and analyse the requirements of the ECHR and the Convention against Torture.
Starting with the Convention against Torture, the CAT has stated that ‘serious discrepancies between the Convention’s definition and that incorporated into domestic law create actual or potential loopholes for impunity’. Whilst the Italian definition clearly presents such discrepancies, one needs to understand whether this leads to loopholes for impunity. The problem is not what torture excludes. Under Article 1(1) of the Convention, torture ‘does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions’. Despite the different wording, this is mirrored by the provision of Article 613-bis(3) PC. The problem is what torture includes. Under Article 1(2) of the Convention, there shall be no prejudice to any international instrument or national legislation which contains provisions of wider application, so the question becomes whether the Italian definition is broader or narrower than that of the Convention. The CAT considers it is narrower, but is this correct?
The