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Can the effects of an ECtHR’s judgment be extended? The answer of the Italian courts as to the guarantees of criminal trial

Introduction

Under Article 46, paragraph 1, of the European Convention on Human Rights (‘ECHR’), “the High Contracting Parties undertake to abide by the final judgments of the Court in any case to which they are parties”. According to the European Court of Human Rights (‘ECtHR’), this provision implies that “a judgment in which the Court finds a violation imposes on the respondent State a legal obligation (…) to choose (…) the general and/or, if appropriate, individual measures to be adopted in their domestic legal order to put an end to the violation found by the Court and to redress so far as possible the effects”.[1] Thus, judgments issued by the ECtHR may require the interested State to adopt measures which go beyond the scope of the concrete case under review.

This interpretation of the provision is in line with the role of the ECtHR, a court whose task is not limited to solving disputes between parties but extends to the safeguard of general interests.[2] At domestic level it may raise the issue of whether and, in the affirmative, how, the effects of a judgment finding a violation of the Convention should be extended to other cases.

The present post analyses how the Italian system deals with this issue, with specific reference to the ECtHR’s judgments finding violations of the guarantees of criminal trial. First, it recalls the remedies developed by Italian courts to enforce the ECtHR’s judgments; then, it describes how these remedies are applied to extend the effects of an ECtHR’s judgment to other cases. It will be argued that the exceptional review under article 630 CPP is now to be considered as the “ordinary” remedy, both to enforce ECtHR’s judgments and to extend the effects of such judgments to similar cases.

The enforcement of ECtHR’s judgments

The Italian legislator has not yet dealt with the enforcement of ECtHR’s judgments finding violations of the guarantees of criminal trial comprehensively.[3] Thus, the enforcement of these judgments is mostly left to the interpretative efforts of the Italian courts, which, as described in a previous post, have relied on different solutions.

The Italian Court of Cassation has applied analogically two sets of procedural remedies: the “ricorso straordinario per errore materiale o di fatto”, an extraordinary appeal to correct material errors contained in the Court of Cassation’s judgments, under article 625bis Code of Criminal Procedure (‘CPP’);[4] and the “incidente d’esecuzione” procedure, providing remedies to deal with issues arising in the execution of a sentence, under articles 666 and following CPP.[5] In 2011 the Constitutional Court has added a further remedy, by declaring the partial unconstitutionality of article 630 CPP, insofar as it did not include ECtHR judgments finding a violation of criminal guarantees among the exceptional circumstances allowing the review of a final conviction.[6]

Therefore, the Italian system counts three different options to implement the ECtHR’s judgments finding violations of the guarantees of criminal trial and apply them to a case: the “ricorso straordinario per errore materiale o di fatto” under article 625bis CPP; the “incidente d’esecuzione” procedure under articles 666 and following CPP; the exceptional review of a final conviction under article 630 CPP.

The extension of ECtHR’s judgments to other cases

The issue of whether and how an ECtHR’s judgment finding violations of the guarantees of criminal trial may be extended to other cases was first examined by the Italian courts following the case of Scoppola v Italy (n.2).[7] The case originated in some amendments to the provision regulating the reduction of a life sentence, following trial under summary procedure. The ECtHR found a violation of the principle of legality in criminal law (Article 7 ECHR), as Italy failed to apply retroactively the more lenient law to Mr Scoppola.

The decision was implemented in Mr Scoppola’s case through the “ricorso straordinario per errore materiale o di fatto”.[8] With regard to individuals in similar positions, the Italian Government adopted a quite simplistic view, recalling “the possibilities offered by the procedure of incidente d’esecuzione to those in the same situation as the applicant in this case”.[9] However, the Court of Cassation had to intervene, following the refusal by a lower court to extend the effects of the Scoppola judgment through the “incidente d’esecuzione” procedure.

On that occasion, the Court of Cassation stated that the conclusions reached in Scoppola have general nature, and that the effects of a judgment finding a general and objective violation of the Convention should be extended to identical cases, notwithstanding the existence of a final domestic decision which would normally prevent reconsideration of the case.[10] The acknowledgment of limits to the res judicata principle, on the ground of an ECtHR judgment issued in a case other than the one under review, was in itself innovative.[11] Furthermore, the Court of Cassation deferred a question of constitutionality to the Constitutional Court, which took this opportunity to clarify that the “incidente d’esecuzione” procedure can be used when the issue at stake is a mere redetermination of the sentence to be imposed, whereas the exceptional review under article 630 CPP concerns trials that must be reopened.[12]

The distinction between these remedies and the “ricorso straordinario per errore materiale o di fatto” was the object of further examination by the Court of Cassation, following the case of Contrada v Italy (n. 3).[13] The case originated in the introduction, by way of interpretation, of a new crime. The ECtHR found a violation of the principle of legality in the case of Mr Contrada, because he had been tried and found guilty for facts committed before the moment in which the case law introducing the new crime had settled: which is to say, at a time when the crime was not yet clearly foreseeable.

Following this judgment, the Court of Cassation was confronted with appeals by individuals claiming to be in the same situation as Mr Contrada, and asking for an extension of the effects of the judgment to their cases.[14] In the first case, Mr Dell’Utri, an Italian politician, requested the annulment of his final sentence by way of “ricorso straordinario per errore materiale o di fatto” under article 625bis CPP. The Court of Cassation declared the remedy not applicable, underlying that -unlike the two previous cases in which this remedy had been used-[15] Mr Dell’Utri had no ECtHR’s judgment in his favour, nor had he asked for a mere modification of his conviction.[16] Mr Dell’Utri then applied for revocation or non-execution of his sentence, under articles 673 and 670 CPP. Both remedies operate in the executive phase of the judgment, and are thus species of the wider genus “incidente d’esecuzione”. The Court of Cassation recalled the judgment issued by the Constitutional Court in the post-Scoppola cases and clarified that, after 2011, the exceptional review introduced by way of interpretation under article 630 CPP has become the “ordinary” remedy to enforce ECtHR judgments.[17] This remedy may be applied not only to enforce a judgment in the specific case under the ECtHR’s review, but also to extend the effects of such judgments to similar cases; and not only for violations of Article 6 ECHR, but also when violations of Article 7 ECHR are at stake.[18] The “incidente d’esecuzione” procedure, to the contrary, may be used as a “residual” remedy only upon three conditions: that the ECtHR’s judgment has general nature; that the case at stake is identical to the one decided by the ECtHR; that execution does not require a previous declaration of unconstitutionality or any discretional evaluations by the execution judge.[19] Having assessed that in the case of Mr Dell’Utri these conditions were not met, the Court rejected his application.[20]

In the second and most recent case, the Court of Cassation recalled and fully endorsed these conclusions about the ambit of application of the “incidente d’esecuzione” procedure and of the exceptional review under article 630 CPP.[21]

Interestingly enough, in the lapse of time between these two judgments, a different section of the Court of Cassation rejected a request for extraordinary review lodged under article 630 CPP.[22] The refusal was grounded on the fact that the applicant was not directly interested by the ECtHR judgment of which he had asked enforcement, thus contradicting the Court of Cassation’s position developed since 2011 in the post-Scoppola cases, and reaffirmed in the post-Contrada ones.[23] As for now, the judgment remains a unicum in the case law of the Court of Cassation: however, it certainly demonstrates how a jurisprudential solution may be subject to revirements.

Final remarks

In the Italian legal system, the absence of a comprehensive legislative intervention on the enforcement of ECtHR judgments finding violations of the guarantees of criminal trial has led domestic courts to intervene. Procedural remedies are applied analogically (“ricorso straordinario per errore materiale o di fatto” under article 625bis Code of Criminal Procedure; “incidente d’esecuzione” procedure under articles 666 and following CPP), and a general remedy has been introduced (exceptional review of a final conviction under article 630 CPP).

The most recent developments of the Italian case law deal with the issue of how to extend the effects of an ECtHR judgment to cases other than the one under the ECtHR’s review. In the absence of any organic stance by the executive or by the legislative power, cooperation between higher courts seems to have led to a solution. According to a set of judgments by the Court of Cassation and the Constitutional Court, the exceptional review under article 630 CPP is now to be considered as the “ordinary” remedy, both to enforce ECtHR’s judgments and to extend the effects of such judgments to similar cases. The “incidente d’esecuzione” procedure, instead, represents a residual solution which may be used when the effects of the ECtHR’s judgments pertain exclusively to the execution phase and do not require the use of any discretional power by the judge.

Doubts have been cast on this conclusion by a recent conflicting judgment of the Court of Cassation, which, however, remains so far isolated. In any case, it must be pointed out that only a comprehensive legislative intervention could solve, once and for all, the issues of enforcement of the ECtHR’s judgments in the Italian system.

 

 

 

[1] Inter alia: Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000‑VIII; Sejdovic v. Italy [GC], no. 56581/00, § 119, ECHR 2006‑II.

[2] Under Article 19 of the Convention, the Court’s task is to “ensure the observance of the engagements undertaken by the High Contracting Parties in the Convention and its Protocols”. On Article 49 ECHR: S.Bartole, P. DeSena, V. Zagrebelsky, Commentario breve alla convenzione europea per la salvaguardia dei diritti dell’uomo e delle libertà fondamentali, CEDAM Padova 2012, pp. 749 ff.

[3] Currently, the only legislative intervention has been the one allowing the reopening of proceedings celebrated in absentia, introduced by law 67/2014 with the specific aim of bringing the system in compliance with the numerous findings of violation by the ECtHR. On this topic, see: G. Di Paolo, La Rescissione Del Giudicato Ex Art. 625-Ter C.P.P.: Rimedio Effettivo O Meccanismo Virtuale?, Penale Contemporano 2015.

[4] E.g.: Cass sez VI, 12 novembre 2008, Drassich (2009) Cass Pen 1457.

[5] E.g.: Cass sez I, 1 dicembre 2006, Dorigo (2007) Cass Pen 1447. On this remedies in Italian criminal procedure: G. Lattanzi, E. Lupo, Codice di procedura penale: rassegna di giurisprudenza e di dottrina, VII / VIII, Giuffré Milano 2013.

[6] C Cost, sent n 113/2011.

[7] Scoppola v. Italy (no. 2) [GC], no. 10249/03, 17 September 2009.

[8] Cass., sez. V, 11 febbraio 2010, n. 16507, Scoppola.

[9] CM/ResDH(2011)66.

[10] Cass. pen., Sez. Un., ord. 19 aprile 2012 (dep. 10 settembre 2012), n. 34472, Pres. Lupo, Est. Milo, Imp. Ercolano.

[11] A wide number of commentaries is available on this judgment. By way of example, see: F. Viganò, Pena illegittima e giudicato. Riflessioni in margine alla pronuncia delle Sezioni Unite che chiude la saga dei “fratelli minori” di Scoppola, Penale Contemporaneo, 1/2014.

[12] C Cost, sent n. 210/2013.

[13] Contrada v. Italy (no. 3), no. 66655/13, 14 April 2015.

[14] The follow-up cases of the Contrada judgment have encouraged a wide scholarly debate. See, by way of example: F. Viganò, Il caso Contrada e i tormenti dei giudici italiani: sulle prime ricadute interne di una scomoda sentenza della Corte EDU, Penale Contemporaneo, 26.4.2016; A. Manna, La sentenza Contrada e i suoi effetti sull’ordinamento italiano: doppio vulnus alla legalità penale?, Penale Contemporaneo, 4.10.2016.

[15] Cass sez VI, 12 novembre 2008, Drassich (2009) Cass Pen 1457; Cass., sez. V, 11 febbraio 2010, n. 16507, Scoppola.

[16] Cass., sez. V pen., sent. 14 marzo 2016 (dep. 8 luglio 2016), n. 28676/16, Pres. Bruno, Rel. Catena, Ric. Dell’Utri.

[17] Cass., sez. I pen., sent. 11 ottobre 2016 (dep. 18 ottobre 2016), n. 44193/16, Pres. Mazzei, Rel. Magi, Ric. Dell’Utri, p. 29.

[18] Ibid, p. 27.

[19] Ibid, p. 30.

[20] Ibid, pp. 35-40.

[21] Cass., Sez. I, sent. 10 aprile 2017 (dep. 27 novembre 2017), n. 53610, Pres. Mazzei, Rel. Rocchi, Ric. Gorgone.

[22] Cass. pen., sez. II, sentenza 20 giugno 2017 (dep. 7 settembre 2017), n. 40889, Pres. Fiandanese, rel. Recchione, ric. Cariolo.

[23] For a critical commentary of this decision: S. Bernardi, La Suprema Corte torna sui limiti di operabilità dello strumento della “revisione europea”: esclusa l’estensibilità ai “fratelli minori” del ricorrente vittorioso a Strasburgo, Penale Contemporaneo, 26.9.2017

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The UK and the right to life: Some preliminary remarks on the UK Government’s observations on the Draft General Comment no 36

In July 2017 the UN Human Rights Committee finalised the first reading of its Draft General Comment no 36 on article 6 (right to life) of the International Covenant on Civil and Political Rights (ICCPR). All stakeholders, including Member States, other UN and regional human rights mechanisms, National Human Rights Institutions, NGOs, research institutions, and academics were invited to provide their observations by 6 October 2017.  In November 2017, the UN Human rights Committee started the second reading of its Draft General Comment. This post aims to provide some preliminary remarks on the UK Government submissions, which should be interpreted while bearing in mind a significant difference between the UK position and the Draft Comment: according to the former, indeed, there is no hierarchical relationship among rights, and the right to life is not the ‘supreme’ right among all others, as it is, conversely, for the latter.[1] This post will focus on three specific areas of concern for the UK: the desirability of an international treaty banning any Lethal Autonomous Weapons Systems (LAWS), the relationship between the regimes of international human rights and international humanitarian law, the linkage between the right to life and any act of aggression.

 

On the ban of any Lethal Autonomous Weapons Systems (LAWS)

 

Starting from the assumption that in the development of new kind of weapons Sates should always consider the possible implications of such weapons for the right to life, the UN Human Rights Committee, at paragraph 12 of its Draft General Comment, holds that ‘the development for use in military operations of new lethal autonomous robotics lacking in human compassion and judgement, raises difficult legal and ethical questions concerning the right to life, including questions relating to legal responsibility for their use’. The Committee therefore concludes that this kind of weapons should not be developed or put in operation; neither in time of war or peace. The UK Government, on the contrary, considers that since it is unclear whether these weapons would ever be developed, it would be pointless to have an international agreement banning them pre-emptively.[2] Thus, the UK ‘strongly urges’ to delete the part relating to the need to avoid the development and/or ban of any LAWS. Yet, this conclusion seems to lie more on the non-existence of such weapons, which furthermore still lack of a definition, than on their legality under international law. In this respect, the UK aligns its positions to the other EU member states. As Veronique Caruana has pointed out, however, in the future we might witness «the continued development of a “class of systems capable of selecting targets and initiating the use of potentially lethal force without the deliberate and specific consideration of humans”». Considering that the issue has been broadly debated among governments, scholars,[3] and NGOs, the prospect of developing such weapons seems in fact to be a concrete possibility.

 

On the relationship between International Humanitarian Law and Human Rights Law

According to paragraph 67 of the Draft General Comment, the Covenant as a whole continues to apply in time of armed conflict,[4] as the two regimes of Human Rights Law and International Humanitarian Law (IHL) are complementary, rather than mutually exclusive. The UN Human Rights Committee concludes that during an armed conflict States have therefore an obligation to disclose, inter alia, ‘whether non-lethal alternatives for attaining the same military objective were considered. They must also investigate allegations of violations of article 6 in situations of armed conflict in accordance with the relevant international standards.’[5] In respect of both these points the UK Government submits that International Humanitarian Law is lex specialis applicable during an armed conflict,[6] and under this regime there is no rule imposing upon states an obligation to consider whether a non-lethal means was available.[7] Moreover, while it is admitted that States have an obligation to investigate breaches of IHL in accordance to international legal standards, they reject the submission that in time of an armed conflict such obligation to investigate would also apply to any violation of article 6 ICCPR.[8] This would be somehow equal to interpret the two regimes of International Humanitarian Law and Human Rights Law as mutually exclusive, and might have serious implications when it comes to the implementation of the principles of proportionality and necessity, which are much more stringent within the context of the International Human Rights regime.[9] This would also place the UK far from the interpretation given by the European Court of Human Rights (ECtHR) of the positive procedural obligations stemming from article 2 (Right to life) of the European Convention of Human Rights (ECHR).[10] The ECtHR has indeed ‘held that the procedural obligation under Article 2 continues to apply in difficult security conditions, including in a context of armed conflict’.[11] In the opinion of the Strasbourg Court these obligations include a duty to carry out an effective investigation,[12] which might comprise criminal procedures, but also inquiries on state responsibility. [13] This might apply to cases of death of civilians as well as soldiers,[14] and can also require the investigators to ‘establish basic facts about the use of indiscriminate weapons’, when the former were ‘crucial for the assessment of the causal link between their use and the casualties’.[15] The Court has in fact found that the ‘use of explosive and indiscriminate weapons, with the attendant risk for human life, cannot be regarded as absolutely necessary’. [16]

 

 

On the implications for the right to life as a result of acts of aggression

 

The last two paragraphs of the Draft Comment no 36 are dedicated to the implications for the right to life in case of war, and even more specifically, in the event of the commission of any act of aggression contrary to the UN Charter. Paragraph 71, notably provides as follows: ‘States parties engaged in acts of aggression contrary to the United Nations Charter violate ipso facto article 6 of the Covenant. Moreover, States parties that fail to take all reasonable measures to settle their international disputes by peaceful means so as to avoid resort to the use of force do not comply in full with their positive obligation to ensure the right to life.’

The UK, at paragraph 34 of its observations, comments by stating: ‘We are rather surprised at the inclusion of paragraphs 70 and 71; these appear to be better suited to an aspirational document rather than a General Comment. We do not consider that the content is helpful, nor that it is within the Committee’s mandate.’ Thus, in the UK Government’s opinion the loss of lives resulting from the usage of an unlawful means, that is, in this specific case, an illegal war or an act of aggression, would not fall within the jurisdiction of the UN Human Rights Committee. It is however unclear where this limitation should be inferred from. In Europe, the Strasbourg Court has kept holding that article 2 ECHR (right to life) cannot be subject to any derogation, under article 15 ECHR, if not with regard to ‘lawful acts of war’.[17] A contrario, one might argue that all other means should be considered as unlawful and cannot find any justification under the ECHR. Moreover, it rests to be shown how, under which circumstances and towards whom such paragraphs might ever end up being in any way ‘unhelpful’.

 

Conclusion

 

The UN Human Rights Committee is currently at its second reading of the Draft General Comment no 36 on article 6 ICCPR (right to life). Between its first and second reading, the Committee invited all stakeholders to submit their observations. This post focused on the UK position on article 6 ICCPR, which significantly departs from the Draft Comment in many aspects. First, the UK while aligning itself with the position taken by all other EU member states, differs from the UN Committee’s Draft General Comment, when the Government considers it pointless to ban or refrain from developing any LAWS. In the opinion of the UK Government, in fact, these weapons have not been developed yet and a significant amount of uncertainty surrounds their future characteristics, effects and even definition. Second, while the UN Human Rights Committee considers the Covenant to apply during an armed conflict, the UK sees the regime of International Humanitarian Law as lex specialis and deems there exists no positive obligation to investigate any violation of article 6 ICCPR. Nor do they think they have any obligation to disclose whether any non-lethal means was available. This might have huge implications on the implementation of the principles of necessity and proportionality, which refer to different standards, depending on which regime, i.e., Human Rights Law or International Humanitarian Law, is indeed applicable. In this respect, the UK would put itself far from the stance of the ECtHR’s case law. Third, the UK considers the UN Human Rights Committee went beyond its jurisdictions, when it inserted paragraphs 70-71 in the Draft General Comment. These paragraphs concern the casual relation between any unlawful armed conflicts, or more specifically any acts of aggression contrary to the UN Charter, and an automatic violation of article 6 ICCPR. However, when it comes to any possible implications for the right to life, it is unclear where the UK could infer any limitation of the UN Human Rights Committee’s ratione materiae jurisdiction. Moreover, it rests to be shown how, and especially under which circumstances and towards whom, such paragraphs could be in any way ‘unhelpful’. In sum, the UK position on the right to life differs significantly from the UN Committee, and in many occasions this would be equal to a less comprehensive protection of the individuals’ right to life. This might find an explanation in the UK vision of human rights, which according to the Government’s observations relating to the Draft General Comment no 36, would not have any hierarchical relationship, so that the right to life would not be seen as ‘the supreme’ among all other rights any more.

[1] UK Governments, Comments on the UN Human Rights Committee’s Draft General Comment No 36, the right to life (6 October 2017) at 5. Cf Human Rights Committee, ‘General comment No. 36 on article 6 of the International Covenant on Civil and Political Rights, on the right to life’ (Revised draft prepared by the Rapporteur) available at < http://www.ohchr.org/Documents/HRBodies/CCPR/GCArticle6/GCArticle6_EN.pdf> visited on 5 December 2017. Cf Case of TagayevaaAnd Others v. Russia App no 26562/07  (ECHR, 13 April 2017) at 599.

[2] UK Governments, Comments on the UN Human Rights Committee’s Draft General Comment No 36, the right to life (6 October 2017) at 12.

[3] See, e.g., Nehal Bhuta, Claus Kreβ, Autonomous Weapons Systems: Law, Ethics, Policy (CUP 2016).

[4] Cf The relevant ECtHR’s case law. See William Schabas, The European Convention on Human Rights. A Commentary (OUP 2015) 154-55.

[5] UK Governments, ‘Comments on the UN Human Rights Committee’s Draft General Comment No 36, the right to life’ (6 October 2017) at 67. Cf William Schabas, The European Convention on Human Rights. A Commentary (OUP 2015) 156-58.

[6] Cf Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) ICJ Reports (2004) 136, para. 106. See also Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) ICJ Reports (2005) 168, para. 216.

[7] UK Governments, ‘Comments on the UN Human Rights Committee’s Draft General Comment No 36, the right to life’ (6 October 2017) at 33.

[8] Ibid.

[9] As for the ‘absolute necessity’ requirement according to the ECtHR, see Case of McCann and Others v. The United Kingdom App no 18984/91 (ECHR, 27 September 1995) at 149; Case of Andreou v. Turkey App no 45653/99 (ECHR, 27 October 2009) at 55; Case of Putintseva v. Russia App no 33498/04 (ECHR, 10 May 2012) at 69. As for the proportionality requirement as developed by the ECtHR, see Case of Wasilewska and Kałucka v. Poland App nos 28975/04 and 33406/04 (ECHR, 23 February 2010) at 56-57; Case of Finogenov and Others v. Russia App nos 18299/03 and 27311/03 (ECHR, 4 June 2012) at 236. See also Conor Foley, UN Peacekeeping Operations and the Protection of Civilians: Saving Succeeding Generations (CUP 2017) 183.

[10] William Schabas, The European Convention on Human Rights. A Commentary (OUP 2015) 139. Cf Case of the “Mapiripán Massacre” v. Colombia (Inter-American Court of Human Rights, 15 September 2005) at 238.

[11] Case of Al-Skeini and others v. The United Kingdom App no 55721/07 (ECHR, 7 July 2011) at 164;Case of Mocanu and Others v. Romania App nos 10865/09, 45886/07 and 32431/08 (ECHR, 17 September 2014) at 319. See also Case of Benzer and Others v. Turkey App no 23502/06 (ECHR, 12 November 2013) at 184.

[12] See, for instance, See also Case of Benzer and Others v. Turkey App no 23502/06 (ECHR, 12 November 2013) at 198.

[13] Case of Al-Skeini and others v. The United Kingdom App no 55721/07 (ECHR, 7 July 2011) at 174.

[14] Smith v Secretary of State for Defence [2010] UKSC 29, at 70-72.

[15] Case of TagayevaaAnd Others v. Russia App no 26562/07  (ECHR, 13 April 2017) at 527.

[16] ibid at 609.

[17] Case of Al-Skeini and others v. The United Kingdom App no 55721/07 (ECHR, 7 July 2011) at 162.

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Italy and the Crime of Torture: a story of impunity

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

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