Month: June 2023

What protection for victims of violence from law enforcement?

International Day in Support of Victims of Torture: an opportunity for reflection

June 26 marks the United Nations International Day in Support of Victims of Torture, proclaimed by the UN General Assembly to mark the 50th Anniversary of the Universal Declaration of Human Rights. Indeed, in its Article 5, the Declaration states that “no person shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” Established by Resolution 52/149, the day was created as an opportunity to call on the international community, and UN member states in particular, to strengthen their action to protect victims of torture. This, in particular, in light of the provisions of the Convention against Torture, Cruel, Inhuman and Degrading Treatment and Punishment adopted by the UN in 1984 and ratified to date by 173 states – including Italy.

And it is precisely for our country that this day represents an opportune opportunity for reflection, especially in light of the recent episodes of violence by law enforcement officers in Milan and Verona. In fact, despite the adoption of the convention by the government-as well as its Optional Protocol dedicated to the prevention of torture-the issue of the establishment and condemnation of the crime of torture in Italy constitutes a rather complex matter.

Although the treaty was ratified back in 1989, in fact, the crime of torture is only established in Italy in 2017. This, following a complex parliamentary process where the inadequacy of the Italian system was highlighted in the face of the international order regarding the prohibition of torture (provided for, among other things, by the Geneva Conventions, the Charter of Fundamental Rights of the European Union, the Covenant on Civil and Political Rights and the Statute of the International Criminal Court, all ratified by the Italian government), as well as the condemnation of Italy issued in 2015 by the European Court of Human Rights regarding the Cestaro case, an Italian activist beaten in Genoa during the police raid on the Diaz school in 2001. Under these auspices, this led to the adoption of Law No. 110 of 2017, which introduces into the Criminal Code the crimes of torture and incitement to torture in Articles 613-bis and 613-ter of the Criminal Code, respectively. In particular, Article 613-bis of the Criminal Code provides that “Whoever, by means of violence or serious threats, or by acting with cruelty, causes acute physical suffering or verifiable mental trauma to a person deprived of personal freedom or entrusted to his or her custody, power, supervision, control, care or assistance, or who is in a condition of diminished defense, shall be punished by imprisonment of four to ten years if the act is committed by means of several conducts or if it involves inhuman and degrading treatment to the dignity of the person.”

Approved after lengthy negotiations and numerous modifications to the legislative text, the provisions were deemed insufficient by many individuals, although an improvement compared to the previous situation upon their adoption. Indeed, following their adoption, these articles were referred to by politicians as a “compromise downgrading” and considered inadequate for their intended purpose by many human rights organizations. In particular, it was highlighted that Article 613-bis of the Italian Penal Code would be difficult to apply by Italian courts, as it restricts the crime of torture to the presence of a series of specific circumstances that do not, in themselves, provide a comprehensive representation of the phenomenon as it is understood globally.

The limitations of Article 613-bis of the Italian Penal Code and the inadequacy of the Italian criminal justice system regarding torture in light of international law.

Ratified by the Italian Government through Law No. 498 of 1988, the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment serves as a tool to combat acts of violence and torture committed against individuals deprived of personal liberty by those holding public office. This is stated in Article 1 of the Convention, which defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or her information or a confession, punishing him or her for an act he or she has committed or is suspected of having committed, or intimidating or coercing him or her.” In particular, Article 1 specifies that such pain or suffering must be inflicted by a public official or by any other person acting in an official capacity, at their instigation, or with their consent, express or implied. Accordingly, according to the Convention, torture constitutes a crime committed by a public official, characterized by an abuse of power, namely, the arbitrary and unlawful exercise of legitimate force. To combat this phenomenon, Articles 2 and subsequent articles of the treaty establish a series of obligations for its State Parties, who undertake to take appropriate measures to prevent such acts of torture from being committed within their territory. Specifically, the Convention obliges states to adopt legislative, administrative, and judicial measures to protect and ensure respect for the human dignity of individuals deprived of personal liberty. It establishes that the order of a superior or a public authority cannot in any way be invoked as justification for torture (Article 2). Likewise, states are required to provide adequate training to public officials regarding the prohibition of torture (Article 10) and to exercise systematic supervision over regulations, instructions, interrogation methods and practices, as well as provisions regarding the custody and protection of persons arrested, detained, or imprisoned (Article 11).

As for compensation for victims of such acts, Article 14 stipulates that every state must guarantee in its legal system the right to obtain redress and to be compensated fairly and adequately, “including the means necessary for his or her fullest possible rehabilitation.”

Precisely in order to oversee the fulfillment of these obligations (recall, in fact, that the treaty constitutes a binding source for our legal system), the convention establishes, in Article 17 et seq. a special Committee against Torture (Committee against Torture, “CAT”), to which States Parties are required to submit periodic reports on the measures they have taken to combat torture in their territory. In light of these reports, the Committee assesses the proper implementation of the treaty by member states and takes any specific measures.

And it is precisely in the CAT/C/ITA/CO/5-6 (“CAT Report”) issued in 2017 by the Committee to evaluate the reports submitted by Italy that the CAT highlights how the Italian criminal justice system, despite the formal adherence of our country to all international instruments adopted by the United Nations for the protection of human rights, is essentially inadequate in ensuring effective and adequate protection for victims of torture within its territory.

As stated in paragraph 10 of the CAT Report, this inadequacy arises from the incorrect definition and criminalization of the crime of torture in our country. According to the Committee, the wording of Article 613-bis of the Italian Penal Code is incomplete. In addition to confining the offense to the presence of specific circumstances not provided for in the Convention (the crime must have been committed with cruelty, through multiple acts, and must cause verifiable psychological trauma), it defines the crime of torture as a common offense, applicable to anyone, rather than solely to public officials or persons acting in an official capacity, as established by the United Nations. For these reasons, the CAT strongly criticizes Italian legislation, describing it as “significantly narrower than the definition contained in the Convention” (CAT Report, para. 10, emphasis added) and urging Italy to promptly amend its criminal code to ensure adequate recognition and protection for victims of torture. In addition, the CAT Report highlights a series of other limitations found in the Italian legal system regarding the prevention and combating of the crime of torture, stemming from the ambiguous definition of the offenses under Articles 613-bis and 613-ter of the Italian Penal Code. Specifically, the Committee points out the lack of transparency from the Italian government regarding compliance with measures issued by the Italian Authority for the Protection of Detainees (para. 14), the ongoing violation by the state of certain fundamental freedoms concerning due process (para. 18), the inadequacy of detention conditions in Italian prisons (para. 32), as well as the excessive use of force by law enforcement authorities (para. 38). The Committee particularly focuses on this last aspect. The CAT calls on the Italian government to ensure adequate mechanisms for condemning those responsible for such acts. Specifically, this can be achieved by implementing measures that allow for the identification of law enforcement personnel in the performance of their public duties, thus ensuring effective and impartial investigations into their conduct.

An even more critical approach towards our legal system has been taken more recently by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), a body of the Council of Europe. Following its periodic visit to our country in March/April 2022, the CPT published Report CPT/Inf (2023) 5 dedicated to assessing the Italian system in terms of the prevention and combating of the crime of torture, also considering the impact of the Covid-19 pandemic. Once again, Italy was severely criticized by the Committee, which expressed great concern regarding the abuses suffered by individuals deprived of personal liberty at the hands of our law enforcement agencies. In section A.2 of the document, it is stated that during its visit, the CPT received numerous reports of violence inflicted on detainees by public officials, particularly by officers of the State Police and the Carabinieri. The Report specifically focuses, in paragraphs 12.i/.ii and 16, on the cases in Milan and Turin, where a long series of violations (particularly abuse of authority and bodily harm under Articles 608 and 582 of the Italian Penal Code) were committed against arrested and detained individuals by the police and the Carabinieri between 2021 and 2022. According to the Committee, these violations did not find justice in Italian courtrooms. Therefore, the CPT insists that Italy ensures adequate training for its public officials, instructing them to use force only when strictly necessary and never in an excessive manner. Furthermore, the CPT reminds the Italian government of the urgent need to establish effective mechanisms for the identification of law enforcement personnel, such as visible alphanumeric identification codes on their uniforms and the use of body cameras, which would protect both the officers and the victims. Lastly, the CPT calls on Italy to respect the provisions of Article 6 of the European Convention on Human Rights (ECHR), which enshrines a series of fundamental freedoms related to the “human right to a fair trial.”

Indeed, the report emphasizes how, to this day, there are too many situations in Italy where individuals deprived of personal liberty are subjected to abuse and violence by law enforcement authorities. The behavior of these authorities is described as “unlawful” and “unprofessional” (para. 14), constituting a clear violation of the prohibition of torture enshrined in international law. It is essential to prevent and condemn such actions using appropriate means.

The unresolved issue raised is:

What protection is available for victims of abuse by law enforcement authorities in Italy?

In light of all this, it becomes clear why the issue of protecting individuals who are victims of violence and abuse by law enforcement authorities in Italy remains a highly delicate matter to this day. It has often been at the center of political debate and has revealed its complexity following the dramatic events of the Diaz school in 2001. These events drew international attention to the Italian case and continue to be one of the most critical aspects of our legal system.

Apart from raising constitutional legitimacy issues, the inadequacy of protection provided by the Italian state to victims of abuse by public officials represents a clear violation of international law, including the extensive array of instruments dedicated to safeguarding fundamental rights and human dignity adopted by the United Nations and the Council of Europe, all of which have been ratified by our country.

Hence, it is important that days like today exist, as symbolic as they may be, as they provide significant opportunities for reflection. June 26 reminds us of the urgent need to protect and, indeed, strengthen the crime of torture in our country. This is particularly crucial in light of recent tragic events in Milan and Verona, as well as the current government’s proposal not to integrate but to repeal Articles 613-bis and 613-ter of the Penal Code. If this measure were to be approved, the crime of torture in our criminal law, instead of aligning with international law, would effectively disappear from our legal system, leaving the judiciary with only the option to apply the general aggravating factors under Article 61 of the Penal Code in cases of abuse by public officials. Regarding the reasons invoked by the representatives of the Fratelli d’Italia party who proposed this, such provisions would supposedly “deprive law enforcement officers of the necessary impetus to carry out their work effectively, resulting in a setback in the prevention and repression of crimes and a general discouragement of law enforcement initiatives” (source: ANSA).

It is with this statement, which seems rather disconcerting in light of the international framework outlined in the preceding paragraphs, that we conclude.

Costanza Rizzetto to StraLi

[1] “1. For the purposes of this Convention, the term ‘torture’ refers to any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.” Article 1, paragraph 1, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[2] “The following circumstances aggravate the offense when they are not constitutive elements or specific aggravating circumstances: […] 9) having committed the offense by abusing powers or by violating duties inherent in a public function or public service […]” Article 61, Penal Code.

StraLi requests the Italian government to implement the Sy v. Italy decision.

1. INTRODUCTION

The waiting lists for Residential Units for the Execution of Security Measures (“REMS”) are a very serious issue (we have already discussed it here). Italy knows this all too well: in January 2022, it was condemned by the European Court of Human Rights (“Court”) in the case of Sy v. Italy (Application No. 11971/20-Judgement of 24 January 2022). The reason for the condemnation? Violation of Mr. Sy’s rights, a detainee with a severe psychiatric condition, who was held in custody awaiting availability of a place in a REMS.

The European Court found the following violations of the European Convention on Human Rights (“ECHR”): prohibition of inhuman or degrading treatment (Article 3), right to liberty and security (Article 5, paragraphs 1 and 5, including the right to redress for unjust detention), right to a fair trial (Article 6, paragraph 1), and right to individual recourse (Article 34).

In this context, StraLi has submitted a Communication to the Department for the Execution of Judgments of the Court, pursuant to Article 46 of the ECHR and Article 9.2 of the Regulations of the Committee of Ministers.

2. INTERVENTION PURSUANT TO ARTICLE 9.2

Following a final judgment of condemnation by the Court, member states have a dual obligation:

1) Individual level: to restore, as far as possible, the situation that existed before the violation, providing redress for the harm suffered by the injured parties (known as restitutio in integrum). Typically, the remedy ordered by the Court is monetary compensation, although the Court has other tools at its disposal (such as the release of a detained person).

2) General level: to prevent similar violations in the future. This can be achieved through the amendment of applicable legislation, for example.

What does a state do to fulfill these obligations ?

Within six months of the judgment, the state must explain to the Committee of Ministers – composed formally of the Foreign Affairs Ministers of the 46 member states – how it intends to provide justice to the victims of the violation and, at the same time, ensure that the same problem does not recur. This is typically done by submitting an “Action Plan.”

3.1. THE GOVERNMENT’S ACTION PLAN AND STRALI’S RESPONSES:

(1) INCREASING REMS CAPACITY

Italy, therefore, has submitted its own Action Plan (actually, two) in relation to the Sy case (jointly with the Citraro and Molino v. Italy cases, which we will not discuss today). And here comes StraLi’s role: we have intervened to challenge the Italian government’s Action Plans regarding the Sy case. And we did it not once, but twice (first communication, March 9, 2023; second communication, May 9, 2023).

Note: this is not the first time StraLi has taken such initiatives: we also took a position in the Di Sarno and others v. Italy case and the ILVA case.

In the first Action Plan of January 26, 2023, the Italian government stated that it paid “great attention” to the issue “in order to prevent similar events” and that “important steps had been taken in this direction” (Action Plan 1, p. 2).

These “steps” led to extraordinary funding for the Liguria Region for the period 2022-2024 (Decree Law 17/2022) and the opening of a new REMS facility in Grifalco (Calabria) with 20 available beds.

As highlighted in our first communication on March 9, 2023, the creation of new REMS facilities in a single location and solely to “patch up” the lack of available places has serious consequences on the effectiveness of therapeutic treatments and the prospects of individuals’ reintegration into society. Allocating funds for a fixed period of three years exclusively to one region, where additional beds are created and patients from other regions are admitted (only to provide them temporary accommodation), contradicts the principle of territoriality of care. The purpose of care, indeed, necessarily relies on the idea of reintegrating the individual into the social fabric that has been “broken” by their antisocial behavior. Individuals in care, uprooted from their context, are unable to establish real contact with local mental health centers, which should be responsible for their care and develop a therapeutic program. They cannot be visited by the psychiatric staff who have been handling their case until then, nor by their loved ones.

For this reason, we have asked the government to create new places in REMS facilities while respecting the principle of territoriality, and to allocate resources to ensure the principle of individualized treatment. Furthermore, we have requested sufficient resources to be allocated to regional mental health departments responsible for developing Individual Therapeutic Rehabilitation Plans and other psychiatric services in the community. This is to reduce the number of people who will need a place in REMS in the future and, consequently, the risk of similar violations recurring.

Le ATSM vivono in assenza di un regolamento unitario che definisca come questi reparti debbano essere organizzati spazialmente (arredi, letti, bagni) o che stabilisca i livelli essenziali di assistenza a cui devono attenersi (si veda la ricerca della Società della Ragione qui, p. 18). In un caso particolare (il reparto “Sestante” del carcere di Torino) il reparto ATSM è stato addirittura chiuso a causa delle sue condizioni disumane ed è in corso un’indagine penale in merito (cfr. il rapporto di Antigone del 2022). In una dichiarazione del 6 febbraio 2023, un rappresentante dei sindacati della Polizia Penitenziaria ha definito l’ATSM del carcere di Marino del Tronto come “un reparto palesemente non a norma sia dal punto di vista strutturale che sanitario”. Da ultimo, il Comitato Anti-Tortura del Consiglio d’Europa nel rapporto del marzo 2023 sull’Italia ha rilevato la totale inadeguatezza delle celle delle ATSM nelle carceri di San Vittore, Torino Lorusso e Cutugno e Regina Coeli.

Ne consegue che le ATSM rappresentano di fatto la peggiore assistenza disponibile per un individuo che, in carcere, non dovrebbe nemmeno passarci un secondo.

3.2. THE ITALIAN GOVERNMENT’S PLAN AND STRALI’S RESPONSE:

(2) THE DAP AND MENTAL HEALTH UNITS

Within its Action Plans, the Government has emphasized multiple times that the Department of Penitentiary Administration (DAP) “continues to pay the utmost attention to ensure that detainees receive the best available assistance” (Action Plan 1, p. 7).

However, the budget law approved in December 2022 included a drastic reduction in the DAP’s expenditure budget of approximately 36 million euros for the period 2023-2025 (Art. 1, para. 878, Law no. 197, December 29, 2022). This element, in itself, appears to be in clear conflict with the government’s statement.

The situation “in the field” also contradicts the government’s commitment. Prisons reveal their inadequacy in managing the psychological and psychiatric distress of inmates. Continuous complaints from correctional officers denounce an intolerable situation that can no longer be addressed.

Recently, the President of the Penitentiary Police Union stated:

In this chaos, correctional officers are not only tasked with surveillance but also with acting as “nurses” to the sick (despite lacking the necessary expertise) and actively saving the lives of individuals who attempt self-harm or harm others.

Not to mention the countless times officers are physically assaulted by problematic individuals. It is evident that this cannot continue.

Furthermore, in the second Action Plan dated April 3, 2023, the Government presents the departments dedicated to mental health within detention centers (known as “Articolazioni per la tutela della salute mentale” – ATSM) as an example of the “best available assistance” for detainees awaiting transfer to a REMS (Action Plan 2, p. 15).

However, this approach is highly problematic because only a few prisons have these psychiatric units, and when they do exist, they have a poor reputation.

ATSM units operate without a unified regulation defining their spatial organization (furniture, beds, bathrooms) or establishing essential levels of care they should adhere to (see Società della Ragione’s research here, p. 18).

In a specific case (the “Sestante” unit at Torino prison), the ATSM unit was even closed due to its inhumane conditions, and a criminal investigation is ongoing (see Antigone’s report from 2022).

In a statement on February 6, 2023, a representative of the Penitentiary Police Union described the ATSM unit at Marino del Tronto prison as “a unit clearly non-compliant both structurally and in terms of health standards.”

Lastly, the Council of Europe’s Anti-Torture Committee in it’s March 2023 report on Italy highlighted the complete inadequacy of ATSM cells in San Vittore, Torino Lorusso e Cutugno, and Regina Coeli prisons.

Therefore, the ATSM units effectively represent the worst available assistance for an individual who, in prison, should not spend even a second.

3.3. THE ITALIAN GOVERNMENT’S PLAN AND STRALI’S RESPONSE:

(3) THE ABSENCE OF A SPECIFIC REMEDY

Silence reigns.

The Government has not addressed the Court’s observation regarding the finding that the civil action for compensation for the damages suffered due to the violation of personal liberty, provided for by Italian law (former Article 2043 of the Civil Code), does not constitute an effective remedy for obtaining redress for violations of paragraphs 1 and 4 of Article 5 of the ECHR.

During the proceedings before the Court, the Italian Government did not provide any examples demonstrating that, in cases similar to Sy’s, such action had been initiated. Moreover, the Government did not address the issue in its Action Plans.

We have requested the Committee of Ministers to instruct the Italian authorities to legislate a specific compensatory remedy aimed at obtaining compensation for periods of detention endured while awaiting transfer to a REMS.

As we will see shortly, the Committee has heard our plea.

4.1. THE DECISION OF THE COMMITTEE OF MINISTERS:

(1) INDIVIDUAL MEASURES

The Committee of Ministers convened from 5th to 7th June 2023. Firstly, it did not declare the case closed, indicating that there is still a need for the Court’s supervision over Italy.

In the meantime, Mr. Sy has been returned to prison since July 2022 (see communication from the Italian Government on 3rd May 2023). Regarding Mr. Sy’s individual situation, the Committee has requested (para. 2):

1) a reassessment of the compatibility of his health condition with his detention status;

2) regular repetition of this assessment; and

3) informing the Committee about the outcomes of points (1) and (2).

4.2. THE DECISION OF THE COMMITTEE OF MINISTERS:

(2) GENERAL MEASURES

As highlighted in our second communication on 9th May 2023, we identified the increase in the number of beds in REMS facilities as the only concrete measure indicated by the Government in the Action Plan. Specifically, we requested the Committee to ensure that the Italian State guarantees:

– Sufficient resources are allocated to regional mental health departments responsible for developing Individual Therapeutic Rehabilitation Plans and other psychiatric services throughout Italy, in order to reduce the overall number of individuals in need of REMS beds (thus reducing the risk of similar violations); and

– An increase in the capacity and quality of treatment in REMS facilities.

StraLi’s requests in this regard have been accepted by the Committee of Ministers.

In the agenda notes, they observed that although the number of individuals detained awaiting transfer to REMS facilities had decreased from 90 in April 2020 to 49 in February 2023:

– The REMS network has not significantly expanded since that time (29 in 2020 and 30 in 2023).

– The average waiting time for placement in these facilities following a judicial decision remained extremely high (around ten months) as of July 2021.

– While noting the establishment of a new REMS facility in the Calabria region, it is unclear whether this has been sufficient to ensure the prompt execution of corresponding judicial decisions in this region and whether similar measures have been adopted or planned for the other four regions (Lazio, Campania, Sicily, and Puglia) which, together with Calabria, account for over two-thirds of the total number of individuals detained awaiting admission to REMS facilities.

Consequently, the Committee has requested the following from the Italian State:

1) To commit to ensuring an adequate capacity of REMS facilities, including by providing sufficient human and financial resources, particularly in regions where the situation appears most critical (para. 4).

Unfortunately, nothing is mentioned regarding the reality of ATSM facilities and their inadequacy in accommodating individuals detained awaiting transfer to a REMS facility.

Furthermore, the Committee has instructed the Government to:

2) Provide an assessment of the need for additional measures to ensure that when the Court orders the transfer of an individual to a REMS facility (pursuant to Article 39 of the Court’s Rules), it occurs without delay (para. 5).

3) Provide information on the measures taken to ensure that an individual is effectively entitled to a remedy under Article 5.5 of the ECHR (para. 6).

5. CONCLUSION

The Italian authorities must adopt adequate and sufficient measures to ensure that the capacity of REMS facilities meets the demand for access, thereby enabling the timely implementation of judicial decisions ordering the transfer of detainees to such facilities.

Such decision by the Committee of Ministers does not come as a surprise to us.

Last year, the Italian Constitutional Court established that the practical application of existing legislation on REMS to individuals who have committed crimes and have mental disorders is in conflict with the Italian Constitution. The Court declared the questions of legality raised as inadmissible, since accepting them, which would involve overturning a substantial part of the legal framework of REMS, would create intolerable gaps. The Court thus issued a strong warning to the Italian legislative authorities to undertake a comprehensive reform of the system.

Unfortunately, over a year has passed without any sign of legislative activity in this regard.

The execution of the Sy case remains under the supervision of the Court, which will review the measures adopted by the Italian government in one of its upcoming sessions.

In the meantime, we remain vigilant. Because the mental health of those inside is a concern for those outside. And we will not fail to remind everyone of this.

Edited by Alice Giannininnini

What future for endangered species ?

The JJ4 case: the legal story

On May 26, the Administrative Court of Trento, with order N. 00068/2023 REG RIC, granted the precautionary request filed by several animal rights associations (including LAV, ENPA, and OIPA) to temporarily suspend the decision to cull the bears JJ4 and MJ5 until June 27. By that date, the Court has determined that the involved associations and the Ministry of the Environment must present a relocation project as an alternative to culling. Currently, the most likely options involve moving the animals to a sanctuary in Germany, Romania, or Jordan. The facts are now well known to everyone: on April 5, the 26-year-old runner Andrea Papi was fatally attacked by the bear JJ4 in the woods above Caldes, a municipality in the Val di Sole (province of Trento). Confirming the bear’s aggression through the autopsy, the President of the autonomous province of Trento ordered the culling of the implicated animal, along with another bear, MJ5, also deemed “problematic.” This decision was based on the implementation of measures provided by PACOBACE (a document adopted by all territorial administrations in the Central Eastern Alps, the Ministry of the Environment, and ISPRA, representing the formal policy of the Italian state regarding the conservation and management of bears in the Alps), concerning the culling of animals considered “dangerous.” Granting the appeal of LAV, ENPA, LEIDA, and OIPA, the Administrative Court of Trento suspends the culling measures, thus initiating a legal process that will conclude, as determined by the Court in order No. 00068/2023 REG RIC, with a hearing scheduled for December 14.

Among the criticisms raised by the Administrative Court regarding the culling decision are the local administration’s failure to adopt a series of measures necessary for the conservation and management of the endangered alpine fauna, which are also provided for in the PACOBACE plan. These measures should be implemented preventively to ensure adequate and safe coexistence between humans and animals, thus avoiding the risk of incidents and subsequent culling measures, which are exceptional measures to be taken as a last resort.

In particular, the Court points out the inadequacy of the current conditions of the Casteller wildlife center, as well as the malfunctioning of the telemetric monitoring (radio collaring), which is necessary for effective control of the areas involved in the conservation of endangered fauna. This is the case, in fact, in the province of Trento, which has been hosting a brown bear repopulation project in the Brenta area called “Life Ursus” since 1996. The project was financed by the European Union in 1999 and aims to restore a vital population of bears in the Central Alps.

The JJ4 case: an international perspective

For weeks, at the center of the news and political debate, it seems that this issue lends itself to a series of reflections of much broader scope, particularly regarding the implications of the matter from an international law standpoint.

Included on the United Nations’ agenda for environmental protection since the 1990s, the need to establish harmonious coexistence between humans and nature while safeguarding biodiversity lies at the heart of the Convention on Biological Diversity signed in 1992 and ratified to date by 196 states, including Italy through Law No. 124 of 1994.

Reaffirming the need to protect biological diversity in light of its importance for evolution and the maintenance of life in the biosphere, the treaty emphasizes the responsibility of the Parties to conserve ecosystems and natural habitats within their own territories. This includes the “restoration of populations of species of living organisms in their natural habitats” and preventing their depletion caused by human activities.

To achieve this goal, the Convention on Biological Diversity sets out a series of measures that must be implemented on the territories of the states. Parties are required to develop strategies, plans, or national programs for biodiversity conservation. In particular, the treaty calls for the establishment of protected areas or areas with special measures to conserve biological diversity (Article 8, letter a). It promotes the protection of ecosystems, natural habitats, and the species that inhabit them (Article 8, letter d), making “every effort to create the necessary conditions to ensure compatibility” between human activities and biodiversity, which should not be sacrificed in any way due to its importance for all of humanity.

By constituting binding obligations of international nature, the provisions of the treaty gain even more significance when placed in the context of the action plan established by the United Nations for the protection of sustainable development and the rights of future generations. This has been a concern of the organization since the late 1980s and was officially “enshrined” in 2015 with the adoption of the 2030 Agenda for Sustainable Development (“Agenda 2030“) by the General Assembly.

Reaffirming the shared goal of “a world in which humanity lives in harmony with nature and wildlife and other living species are protected” (preamble, para. 8), and recognizing the need for economic and social development that ensures the conservation of biodiversity, ecosystems, and wildlife (preamble, para. 33), the Agenda 2030 emphasizes the importance of protecting marine and terrestrial species, particularly through Goals 14 and 15, dedicated to the conservation of marine and terrestrial ecosystems, respectively. Similarly, the importance of ensuring adequate living conditions for animals is highlighted in Goal 3 (focused on collective well-being), Goal 11 (for sustainable cities and human settlements), and Goal 12 (for responsible consumption and production).

It is in light of such evidence that the international community has witnessed the progressive emergence of a new “animal consciousness” in recent years, emphasizing the importance of strengthening the protection of endangered animals or those subject to degrading treatment within the territories of states. This is evidenced by the recent rejection by UNESCO of Spain’s candidacy to include bullfighting on the Representative List of the Intangible Cultural Heritage of Humanity established by the UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage, as well as the petition promoted by various international organizations to include endangered animal species on the World Heritage List under the UNESCO Convention concerning the Protection of the World Cultural and Natural Heritage of 1972.

Indeed, it is precisely regarding the need to preserve endangered wildlife that the international legal framework, particularly the United Nations, has drawn the attention of states.

Through the 2019 report prepared for the organization by the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES), the United Nations reiterates that biodiversity has never been as threatened as it is today, with approximately one million animal and plant species at risk of extinction.

This data has further worsened in recent years. As seen in the Red List of endangered species curated by the International Union for the Conservation of Nature (IUCN), the number of animals in danger has significantly increased in the years 2021/2022, and the numbers do not promise to improve in 2023. It is precisely in light of these evidence that, supported by an increasing number of voices in international law advocating for a new approach to animal rights, considering them on par with humans and the environment in the pursuit of collective welfare, several countries that have coexisted with endangered species for centuries have implemented active policies aimed at the conservation of these animals and peaceful coexistence between humans and nature, even in the case of species considered “dangerous.” For example, the Australian government adopted the Environment Protection and Biodiversity Conservation Act in 1999, which obligates the state to adopt specific measures to ensure the adequate conservation of sharks and other dangerous species, minimizing the risks of human contact and imposing severe penalties for those who violate these provisions.

Similarly, Canada has developed a stringent policy aimed at protecting wildlife, drawing on decades of experience in conserving species inhabiting the forests of its territory, often in close proximity to communities and urban areas. In particular, Canadian legislation in this regard, under the Canada Wildlife Act, focuses on the need to conserve ecosystems populated by these animals, including wolves and bears, precisely by regulating human access to these geographical areas to mitigate the risk of potential attacks. By implementing this policy, Canadian authorities have achieved a good balance between the conservation of endangered species and the need to ensure public safety. According to environmental protection organizations, the probability of being attacked by a bear in Canada is close to zero each year, paradoxically making it much more likely to die from a dog attack, even in urban settings. This is despite the large number of bears present in Canadian territory, with government estimates counting approximately 600,000 bears spread across the country’s numerous wildlife parks.

What future lies ahead for endangered species in Italy?

Returning to the topic at hand, these data make one reflect on the approach taken by the authorities in Trentino regarding the case of JJ4. In addition to condemning JJ4 and other “problematic” bears to death, the President of the Autonomous Province of Trento has expressed a firm intention to reduce the number of bears in the territory, even halving it. Currently, there are approximately 100 bears in Trentino, which represents about half of the estimated total bear population in Italy. All this is done without questioning the effectiveness of the measures provided by the PACOBACE plan or their actual implementation in the Trentino region. It’s worth noting that JJ4 and the other “problematic” bears were supposed to be monitored with non-functioning radio collars, and the Casteller Alpine Wildlife Recovery Center was deemed inadequate for its purpose by the judicial authorities. It is precisely in light of these facts that on May 29th, the LAV (Anti-Vivisection League) announced that it had filed two new appeals with the Administrative Court of Trento to “challenge the provincial guidelines for the management and killing of bears and the Ispra-MUSE document on labeled problematic bears.” These appeals add to the one already filed by the organization to request the annulment of the guidelines elaborated by the Province of Trento within the framework of the PACOBACE plan for the culling of dangerous animals, as they lack any reference to the planning of preventive measures. According to the LAV, it is within the normative framework adopted by the Trentino authorities that the causes of JJ4’s case can be found. Indeed, these measures, which are rather generic, do not appear capable of preventing incidents like this, but rather create the basis for new similar occurrences, leading to the identification of new “problematic” bears and subsequent kill orders. In line with this perspective, since 2021, the LAV has been promoting the implementation of a “Pact for Coexistence between Humans and Bears” in Italy, working together with other animal rights organizations and receiving support from Canadian experts.

As we await June 27th, all we can do is hope that, in light of the global evolution towards a sustainable society that considers animal welfare in welfare policies, the judicial authorities will show sensitivity to the environmental issue at the heart of JJ4’s case, restoring the proper balance in the coexistence between humans and nature.

Unfortunately, this balance seems to be too often neglected by Italian authorities when it comes to environmental issues or species conservation. One can think, for example, of the lax regulations concerning hunting in our country or the recent statements made by some political representatives who, in the aftermath of the disaster in Emilia Romagna, suggested that porcupines and coypus were to blame for damaging the territory with their burrows. There is still a long way to go.

Edited by Costanza Rizzetto