MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1483/H46-18

7 December 2023

1483rd meeting, 5-7 December 2023 (DH) Human rights   H46-18 Cestaro group v. Italy (Application No. 6884/11) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2022)1297, DH-DD(2023)800, DH-DD(2023)1142, CM/Del/Dec(2019)1362/H46-14

 

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) concerns 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 trainings for law enforcement officials.

Status of Execution

A) Last examination by the Committee of Ministers

The Committee of Ministers examined this group of cases most recently at its 1362^nd meeting (December 2019) (DH).

As regard the individual measures, the Committee requested the authorities to clarify whether it is possible to carry out new criminal investigations into the applicants’ allegations of ill-treatment in the cases in which no conclusion can be drawn from the European Court’s judgments and decisions that the statute of limitation precludes opening any new investigation.[1]

It also invited them to provide information on any disciplinary investigations that have been initiated against the law enforcement agents involved in these cases and their outcome.

As regards the general measures, the Committee, noted with satisfaction the reforms which in 2017 introduced the crime of torture into the Italian Criminal Code and strongly invited the authorities to keep it informed of developments showing the effective and Convention-compliant application by prosecutors and courts of the new provisions.

Among other things, the Committee also called on the authorities rapidly to ensure that adequate legal provisions are in place to secure that agents taking part in law enforcement operations can be identified in all situations and that a message at high political level of zero tolerance of ill-treatment is formally delivered to law enforcement agencies.

It invited furthermore the authorities to indicate how they have ensured, or intend to ensure, that law enforcement agents who have been charged with crimes involving ill-treatment are suspended from duty during the investigation or trial and dismissed if they are convicted, in conformity with the established
case-law of the Court on this issue (for more details see CM/Del/Dec(2019)1362/H46-14).

B) Developments since the Committee’s last examination

The authorities submitted an action report on 21 November 2022 followed by additional information on 29 June, 20 September 2023 and 16 November 2023. The Committee also received, on 20 March 2020 and 19 January 2023, two communications from civil society (Associazione Luca Coscioni per la Liberta Di Ricerca Scientifica).

The information provided and that available in the public domain can be summarised as follows:

Individual measures:

In the cases of Cestaro and Bartesaghi Gallo and Others, the Committee has already noted with deep regret that the statute of limitation precludes opening any new investigation into the acts of torture suffered by the applicants.

The authorities indicated that they were unable to pay the just satisfaction to one of the 31 applicants in Azzolina as he has not provided the necessary documents, despite their request.[2]

General measures:

1)     Provisions of the Criminal Code on the crime of torture

The authorities indicated that Parliament is currently considering draft legislation aimed at repealing the provision of the Criminal Code on the crime of torture introduced in 2017 (Article 613bis of the Criminal Code) and introduce instead a new general aggravating factor applicable to other offences in the Criminal Code, such as bodily injury (Article 582) or battery (Article 581)^[3], when they are committed by a public official by inflicting acute physical or psychological pain or suffering on a person with the aim of, inter alia, obtaining information or confessions.[4] These Bills were introduced by Parliamentarians of the majority party in the government.

By a letter of 6 October 2023, the Council of Europe Director of Human Rights shared with the authorities some concerns about the above draft legislation.

In response, the Italian authorities highlighted that, despite of the above-mentioned legislative initiatives, the Government position, as conveyed to the Italian Parliament by the Minister of Justice, is to maintain the provisions of the Criminal Code on torture, which will remain a specific free-standing offence. 

With regards to the application of the relevant provisions, they indicated that in the period 2019-2021, 285 criminal proceedings were initiated against police officers for crimes against the individuals (e.g. duress and bodily injury) none of which involved torture. 237 of these proceedings were discontinued and 48 ended with a conviction. Between 2017 and 2023, 18 criminal proceedings concerning the crime of torture were initiated against agents of penitentiary police accused of acts of violence against prisoners.[5]

As regards the statute of limitation, two legislative reforms were carried out between 2019 and 2022. As a result, the prescription in criminal proceedings is no longer applicable after the first instance judgment.[6] However, criminal proceedings are discontinued if they are not concluded within two years in appeal and one year at the level of the Court of Cassation. A further legislative intervention on the regulation of the prescription in criminal proceedings is currently being considered by Parliament.[7]

The authorities highlighted that the crime of torture is not subject to prescription when the perpetrator wilfully caused the death of the victim as a result of the torture inflicted on her or him. 

2)     Identification of law enforcement agents and message of zero tolerance of ill-treatment

The authorities highlighted that Parliament is currently considering draft legislation to ensure the possibility to identify police agents carrying out law enforcement operations through the display of alphanumeric codes on their uniforms and helmets and the use of body cameras.[8]

In January 2022, the Ministry of Interior assigned 700 body cameras to the State police and 249 to the carabinieri to be used during the monitoring of public events.[9]

With regards to the Committee’s request that a message at high political level of zero tolerance of ill‑treatment is formally delivered to law enforcement agencies, the authorities notably referred to a directive issued by the Chief of Police in 2009 and to Guidelines issued by the Ministry of Interior Affairs in 2019 and updated in 2021 which provide indications to law enforcement agents as to the management of public order during public events including with regards to the limits to the use of force enshrined in the relevant case law of the European Court (for more details see DH-DD(2023)1142).

3)     Disciplinary proceedings

The authorities clarified that disciplinary proceedings against police agents (regulated by Law No. 737 of 1981) are suspended when criminal proceedings against the same agents for the same facts are pending. However, the relevant disciplinary body may decide to adopt disciplinary measures against the agents involved during criminal proceedings (i.e. suspension in case of particularly severe offences) and to dismiss them if they are convicted.

Rule 9 communication by Associazione Luca Coscioni per la Libertà di Ricerca Scientifica

The NGO regretted that, to its knowledge, no disciplinary measures were adopted against the agents responsible for the acts of torture in these cases.^[10] It further reiterated that, in its view, the definition of the crime of torture in the Criminal Code is unsatisfactory and create difficulties in its effective application. It also drew the attention to the persistent absence of any provisions in the domestic legal system allowing the identification of agents during law enforcement operations (for more details see DH-DD(2020)237 and
DH-DD(2023)136).

Analysis of the Secretariat

Individual measures

The authorities should rapidly clarify whether new criminal investigations into the applicants’ allegations of ill-treatment are possible in the cases of Blair and Others, Azzolina and Others, Battista and Others and Alfarano and whether disciplinary investigations were initiated against the agents involved in all the cases of this group and their outcome. The absence of this information can be regretted.

The authorities should complete the payment of the just satisfaction in Azzolina. It may be recalled in this regard that the obligation is for the authorities to place the sums awarded at the applicant’s disposal, therefore solutions may be found even if the applicant has not provided documents enabling a payment to him directly.[11] No further individual measure is required in Bartesaghi Gallo since the just satisfaction was paid and, as previously noted by the Committee with deep regret, no fresh investigation is possible due to the statute of limitation. The Committee could therefore close its supervision of this repetitive case.

General measures

A)    Developments following the introduction of the crime of torture in the Criminal Code

The introduction in 2017 of the crime of torture in the Italian legal system (Article 613bis of the Criminal Code), marked a crucial step in the execution of these judgments. It is therefore deeply concerning that draft legislation is being considered to repeal the provisions incriminating torture as a specific criminal offence.

This course of action, if pursued, would undermine the authorities’ efforts so far to guarantee effective prevention, prosecution and punishment of all forms of treatment prohibited by Article 3 of the Convention and would represent a major setback in the execution of these judgments and decisions. It would further run counter Italy’s unconditional obligation under Article 46 of the Convention to abide by the European Court’s judgments in these cases fully, effectively, and promptly.[12]

In this connection it is reassuring that the Italian authorities, following enhanced bilateral contacts with the Council of Europe Director of Human Rights and the Secretariat, clarified that the government’s position on this issue is to not repeal the current free-standing offence of torture despite the above-mentioned legislative initiatives by parliamentarians of the majority party in the government. The Committee may therefore wish to note with interest this recent development and strongly invite the authorities to ensure that any possible future amendment of the provisions on torture will be compatible with the relevant Convention requirements and case-law of the Court.[13]

As regards the interpretation and application of the relevant provisions on torture in a Convention compliant manner, the information provided by the authorities is incomplete and does not allow for a comprehensive assessment.

 

With regards to the statute of limitation, the reforms carried out since the last examination of this group by the Committee have established a system in which the prescription in criminal proceedings is no longer applicable after the first instance judgment but proceedings are then discontinued when they are not concluded within pre-defined time limits at appeal and cassation level (two years and one year respectively). It is observed, as also noted by the Court,^[14]that the combined effects of this mechanism and the excessive length of criminal proceedings are concerning as they could lead to high numbers of discontinued cases in breach of the procedural requirements of Article 3 of the Convention. It is also noted that this mechanism appears in the process of being further modified.  

Against this backdrop, to enable the Committee to carry out a comprehensive assessment of these issues, the authorities should provide updated information and statistical data, combined with their assessment, on: i) the criminal proceedings against state agents involving torture and other forms of ill-treatment, their outcome, the sentences imposed for each offence; ii) the average length of criminal proceedings concerning torture (including those not involving state agents), the number of such proceedings which have been discontinued, the reason for their discontinuation and any development concerning the regulation of the statute of limitation; iii) the case law of the Court of Cassation on the interpretation and application of the provisions on torture including with regards to the adopted definition (e.g. the requirements of “multiple conducts” and “verifiable psychological trauma”). 

B)    Identification of law enforcement agents and message of zero tolerance of ill-treatment

In the cases of this group, the difficulties in identifying the agents involved, which were caused also by the absence of distinctive signs on their uniforms, represented a major obstacle in the investigations and led to impunity.[15] In the Cestaro judgment, the Court held that 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 (§ 217).

It is observed in this connection, that the draft legislation under Parliament scrutiny, referred to by the authorities, appear to reconcile the need to identify agents in the event of challenges to the way an operation was conducted (i.e. through alphanumerical codes) with that of securing their anonymity and protecting them against unfounded allegations of ill-treatment (i.e. through body cameras).

It is noted that this reform, if adopted, would provide an effective response to the shortcoming highlighted by the Court and the previous call of the Committee. The authorities could therefore be strongly called to finalise it.

With regards to the partial allocation of body cameras to law enforcement agencies in 2022, it is noted that their use, as indicated by the authorities, aim to document public events and, in this context, episodes of violence which may erupt including against the agents. The relevant guidelines envisage their activation only in situations of concrete and real danger for public order.^[16] It follows that, while this is an interesting development, it does not appear to ensure the identification of agents by persons in situations similar to those at issue in these cases where the ill-treatment occurred during a law enforcement operation and when the applicants were in police custody, as required by the case-law of the Court.

The Committee may also wish to reiterate its call to the authorities to deliver to law enforcement agencies a message at high political level of zero tolerance of ill-treatment.[17] The documents relied on by the authorities[18] provide useful operative indications to law enforcement agents as to the management of public order during demonstrations and public events.[19] However, they do not deliver the requested message underlining that the rights of persons in custody (and not only participating in public events) must be respected and that law enforcement agents involved in ill-treatment will be prosecuted and sanctioned adequately and dissuasively.

C)    Disciplinary proceedings

It is highlighted that 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).

The information provided does not indicate, as requested by the Committee, how the authorities secured or intend to secure that the discretion in the imposition of disciplinary measures which characterizes the relevant normative framework is exercised in a Convention compliant manner.

In the absence of a demonstrated, consolidated practice in this sense, the authorities should be called to adopt the necessary measures to align the disciplinary frameworks and practices applicable to law enforcement agencies to the Court’s case law.

Financing assured: YES