MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1362/H46-14

5 December 2019

1362nd meeting, 3-5 December 2019 (DH) Human rights   H46-14 Cestaro group v. Italy (Application No. 6884/11) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2016)481, CM/Del/Dec(2017)1280/H46-16

 

Application	Case	Judgment of	Final on	Indicator for the classification
6884/11	CESTARO	07/04/2015	07/07/2015	Structural problem
12131/13+	BARTESAGHI GALLO AND OTHERS	22/06/2017	22/09/2017
28923/09	AZZOLINA AND OTHERS	26/10/2017	26/01/2018
1442/14+	BLAIR AND OTHERS	26/10/2017	26/01/2018
22045/14	Alessandra BATTISTA AND OTHERS	14/03/2017	Decision with undertakings
75895/13	Mauro ALFARANO	14/03/2017

Case description

This group of four judgments and two decisions (friendly settlements with undertakings) concern the ill-treatment suffered by the applicants at the hands of State agents and the lack of effective investigations and court proceedings into these events, which occurred at the G8 summit held in Genoa in July 2001 (substantive and procedural violations of Article 3).

In the judgments, the Court concluded that the applicants had been subjected to torture during an operation by the security forces and while held in police custody.

The Court principally found that the Italian criminal legislation at the material time, which did not specifically incriminate torture and other types of treatment contrary to Article 3, had proven both inadequate with respect to the requirement to punish acts of torture and devoid of the necessary deterrent effect to prevent similar violations. It noted the structural character of the problem (Cestaro) and indicated – under Article 46 of the Convention – that legal mechanisms should be introduced in the Italian legal system capable of imposing appropriate penalties on those responsible for such acts and preventing them from benefiting from measures incompatible with the case law of the Court (§ 246).

In respect of the criminal investigations and court proceedings, the Court found that they had been ineffective due to (a) the failure to identify all the perpetrators of the acts of torture; (b) the statute-barring of the offences for which some State agents had been indicted and (c) the partial remission of sentence granted by law to those convicted. The Court stressed, however, that these shortcomings could not be attributed to delays or negligence on the part of the prosecution or the domestic courts (Cestaro, § 223).

The Court also criticised the fact that the State agents responsible for the ill-treatment or other connected offences had not been suspended from duty during the criminal proceedings and the absence of information on any disciplinary measure imposed on them. 

As regards the friendly settlements, the government acknowledged cases of ill-treatment similar to those suffered by the applicants and undertook, inter alia, to implement specific human rights training for law enforcement officials.

Status of execution

A) Previous examination by the Committee of Ministers

The Committee’s previous examination of the case then under its supervision (Cestaro) took place in March 2017. As concerns individual measures, the Committee noted with deep regret that due to the statute of limitation, it was no longer possible to open a fresh investigation into the acts of torture suffered by the applicant and accepted that no individual measure was possible in the case. As concerns general measures, the Committee urged the Italian authorities to finalise without further delay the legislative process that was ongoing at that time, aimed at introducing the crime of torture under domestic law, so as to ensure that the national legal system punishes all forms of treatment prohibited by Article 3 and that the perpetrators of such acts can no longer benefit from measures incompatible with the case law of the Court. The Committee also invited the authorities to provide information on the provisions governing the disciplinary responsibility of law enforcement agents, and on the arrangements for the subsequent identification of agents taking part in operations similar to that carried out in this case.

B) Developments since the Committee’s last examination

The authorities submitted updated information on 13 July 2017 (DH-DD(2017)844) and 21 October 2019 (DH-DD(2019)1208). The Committee also received a communication from a group of NGOs (Italian Coalition for Civil Liberties and Rights (“CILD”)) on 21 October 2019 (DH-DD(2019)1233). This information and that available in the public domain can be summarised as follows.

Individual measures:

The authorities have paid the just satisfaction awarded by the Court in the judgments Cestaro, Bartesaghi and Gallo and Others and Blair and Others and the sums agreed under the friendly settlements in the cases Alfarano and Battista and Others. The procedure for the payment of the just satisfaction concerning four applicants^[1] in the case Azzolina and Others is ongoing.

General measures: 

1) The Act introducing the crime of torture in Italian law

On 18 July 2017 the crime of torture was introduced and defined in the Criminal Code.[2] Article 613bis of the Criminal Code now provides that anyone who with serious violence or threats or acting with cruelty, causes acute physical suffering or verifiable psychological trauma to a person deprived of personal liberty or entrusted to the perpetrator’s custody, authority, surveillance, control, care or assistance, or who is in a state of vulnerability, shall be punished with imprisonment from four to ten years, if the offense is committed through multiple acts or if it entails inhuman and degrading.

If the perpetrator is a public official, the penalty is imprisonment from five to 12 years. Aggravating circumstances are envisaged, depending on the consequences of the acts on the victim.

The law also makes it an offence for a public official to incite another official to commit torture (Article
613-ter). The Code of Criminal Procedure has been amended accordingly to prevent the authorities from using statements or information obtained under torture, except against those accused of this crime and for the sole purpose of proving their criminal responsibility.

As regards the statute of limitation, the authorities indicate that the ordinary prescription period for torture is 12 years and the maximum is 15 years which can be further increased when the defendant has a prior conviction for torture.

They consider this adequate to ensure that criminal proceedings do not become time-barred,[3]even more so since under recent reforms,[4] the prescription is suspended for up to 18 months after conviction at first instance and again after conviction on appeal.

Furthermore, as of 1 January 2020 the prescription will be suspended after the first-instance judgment for the remaining duration of the proceedings.[5]

Concerning remission of sentences, the authorities, while stressing that laws to this effect are rare, undertake, with due consideration to the principle of separation of powers, to make every effort to ensure that if a bill granting remission of sentences is examined by Parliament the crime of torture would be excluded. They also stressed that the sentences imposed on public officials for torture (from five to 12 years) may not be suspended.[6]

The authorities consider that the professionalism of the judges and prosecutors in the fight against impunity, which was commended by the European Court in these judgments, will ensure a Convention-compliant interpretation and application of the new provisions on torture. In this connection they highlight the current high level of awareness of the Convention standards and Court’s case-law under Article 3 amongst judges and prosecutors combined with the enhanced training provided to them.

2) Identification of agents involved in law enforcement interventions

According to the authorities, in practice, as from July 2014, police officers carrying out law enforcement interventions are equipped with micro cameras installed on their uniform. Parliament is currently considering three bills with provisions introducing means of identification of law enforcement agents involved in such interventions (e.g. alphanumeric code on the helmets) (for more details see DH-DD(2019)1208).

3) Disciplinary investigations

The authorities indicated that disciplinary investigations against police officers and carabinieri are initiated, conducted and concluded independently from criminal proceedings concerning the same facts and can be put on hold pending the outcome of the latter.[7] Various disciplinary sanctions, including suspension and removal from office, are envisaged depending on the gravity of the acts committed. The relevant regulations generally leave it to the competent disciplinary body to suspend State agents charged with crimes involving ill-treatment and to dismiss them if they are convicted.

4) Professional training for law enforcement agents

The authorities provided detailed information about numerous theorical and practical training sessions and awareness-raising activities organised for law enforcement officers during recent years. Initial professional training for police officers and carabinieri includes human rights courses, and their in-service training features courses on ethics and values of the Police, criminal law and operational techniques.

Rule 9 communication by the Italian Coalition for Civil Liberties and Rights

This group of NGOs regretted that torture was introduced into the criminal code as an ordinary crime, rather than a specific crime concerning only the conduct of public officials, and criticised as inadequate the statute of limitation in view of the gravity of this crime. They raised further concerns about some specific elements and requirements in the definition of torture (e.g. verifiable mental trauma), which may restrict the application of the new provisions. They noted that in these conditions, much will depend on the courts’ interpretation and indicated that the law on torture is currently being applied (in pre-trial phase) for the first time in respect of two episodes of alleged ill-treatment at the hands of penitentiary police. They also highlighted the absence of legal provisions allowing law enforcement agents to be identified through identification numbers or codes (for more details see DH-DD(2019)1233).

Analysis by the Secretariat

Individual measures:

In Bartesaghi Gallo and Others, the domestic criminal proceedings concerning the violence suffered by the applicants are the same as in Cestaro and therefore regrettably also in this case the statute of limitation precludes opening any new investigation into the acts of torture suffered by these applicants.

In the remaining cases, which concern different investigations, no conclusion can be drawn from the European Court’s judgments and decisions on this point. In line with the practice of the Committee in similar cases, the competent authorities should assess whether it is possible to carry out any new investigation into the ill-treatment suffered by the applicants and inform the Committee of their conclusions and of any action taken and planned. The Committee may also wish to invite the authorities to inform it about any disciplinary investigations that have been carried out against the law enforcement agents involved in the impugned acts of torture and other forms of ill-treatment and their outcome.

General measures:

1)     Italian criminal legislation and measures indicated by the Court

The adoption in 2017 of the law that introduced torture into the Criminal Code is a welcome development which responds to the European Court’s indications and the Committee of Ministers’ call. In this connection it is worth recalling that the establishment of such a legislative framework in Italy has been outstanding for more than 20 years, with several bills discussed by Parliament without any concrete result before.[8]

It is recalled that some concerns were raised by the Secretariat in the analysis presented to the Committee in March 2017 with regard to the relevant bill pending at that time before Parliament. More specifically, it was noted that the bill did not contain provisions aimed at punishing all forms of treatment prohibited by Article 3 and that it lacked provisions capable of ensuring that the rules on the statute of limitation for these acts comply with the case law of the Court and that the perpetrators of such acts would not benefit from measures of clemency incompatible with the case law. Similar concerns were raised by civil society in relation to the provisions that have been since enacted.

With regards to the definition of the crime of torture, it is noted that it could benefit from a higher degree of clarity notably as regards the requirements for ill-treatment to be qualified as torture. However, these shortcomings do not seem to be such as to prevent prosecutors and courts from construing the relevant provisions in the light of the requirements of Article 3 and from effectively applying them. In this context, significant importance is attached to the undisputed professionalism of the Italian prosecutors and courts and their determination in the fight against impunity, recognised by the Court in these judgments. Moreover, while torture has been conceived as an ordinary crime, the fact that the Criminal Code provides for heavier sentences when it is committed by public officials seems able to sanction adequately and prevent the recurrence of such conduct. Given the importance of these provisions for the fight against torture, the Committee may wish to invite the authorities to keep it informed of any cases where the 2017 provisions of the Criminal Code have been applied by prosecutors and courts and their outcome.

With regards to the statute of limitation and measures of clemency, the European Court highlighted the importance of ensuring that criminal proceedings concerning torture or other forms of ill-treatment inflicted by State agents are not hindered by such measures, which are incompatible with Article 3.

In this connection, it is highly regrettable that the Italian authorities have not taken the opportunity presented by the above reform to disapply the statute of limitation to the new crime of torture in line with the good practice established by other Council of Europe member States. However, the applicable prescription period for torture of minimum 12 years together with the reform of the rules on its suspension appear capable of minimising the risk of such investigations and court proceedings becoming time-barred. In this connection it is worth highlighting that from 1 January 2020 the prescription period should stop running altogether after the first-instance judgment. The authorities could be encouraged to ensure the entry into force of these provisions in accordance with the above timeframe.

As regards other measures to eradicate impunity for serious human rights violations, the authorities’ undertaking to make all possible efforts to ensure that torture will be henceforth be excluded from any future draft legislation on general remission of sentences and the fact that those convicted of torture are by law excluded from the benefit of suspended sentences appear to provide adequate responses to the European Court’s findings in these judgments.

In conclusion, it seems possible at this stage to express confidence that despite certain shortcomings, the law on torture will be interpreted and applied by prosecutors and courts in conformity with the requirements of the Convention without being affected by measures incompatible with the case law of the European Court.

However, in view of the European Court’s findings that the criminal investigations and proceedings in these cases had also been hindered by the lack of cooperation of Police management, it appears moreover crucial to accompany this fundamental change in the domestic legal system with a clear formal statement of the Italian authorities at the highest political level to law enforcement officials, expressing zero tolerance to ill-treatment by law enforcement agents and reminding them that the rights of persons in their custody must be respected while ill-treatment of such persons will be prosecuted and sanctioned adequately and dissuasively.[9]

2)     Identification of perpetrators of ill-treatment

In Cestaro, the Court held that any inability to determine the identity of members of the security forces, when they are alleged to have committed acts contrary to Article 3 of the Convention, is contrary to that provision. Where masked police officers are deployed to maintain law and order or to make an arrest, those officers should be required to display some distinctive insignia – for example a warrant number – thus, while ensuring their anonymity, enabling their identification and questioning in the event of challenges to the manner in which the operation was conducted (§ 217).

In these cases, such difficulties in identifying the police officers who had assaulted the applicants have led to impunity. It is therefore positive that Parliament is considering legislative measures to address this shortcoming. The authorities should be encouraged rapidly to finalise this process, while ensuring that the solutions found are compatible with the relevant Convention requirements and case-law of the Court.

3)     Disciplinary investigations

In these cases, the Court recalled that where State agents have been charged with crimes involving ill-treatment, they must be suspended from duty during the investigation or trial and dismissed if they are convicted (Cestaro, § 210).

Since the relevant regulations generally leave such measures to the discretion of the disciplinary body, it is important to know how the authorities have ensured or will ensure that this discretion is exercised in a manner compatible with the above Convention requirements.

4)     Systematic training of law enforcement agents

Theorical and practical initial and continuing training of law enforcement agents on the protection of human rights is key in preventing ill-treatment, by fostering their commitment to respect the fundamental rights of persons placed under their responsibility.

The available information reflects the significant efforts made by the Italian authorities to provide agents of all grades and in all stages of their career with a wide range of training activities including on human rights and operational techniques. In view of their undertakings in theAlfarano and Battista and Others friendly settlements, the authorities should be encouraged to pursue their efforts to provide systematic and comprehensive training to law enforcement agents to ensure effective prevention of ill-treatment. To this end the authorities may usefully draw on the Council of Europe’s expertise and training courses such as the HELP course on the prohibition of ill-treatment.

Financing assured: YES