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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.


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