MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1514/H46-21

5 December 2024

1514th meeting, 3-5 December 2024 (DH) Human rights   H46-21 Cestaro group v. Italy (Application No. 6884/11) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2024)823, CM/Del/Dec(2023)1483/H46-18

 

Application	Case	Judgment of	Final on	Indicator for the classification
6884/11	CESTARO	07/04/2015	07/07/2015	Structural problem
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	Friendly settlement decisions with undertakings
75895/13	Mauro ALFARANO	14/03/2017

Case description

This group of cases 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 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 (Cestaro judgment, § 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 1483^rd meeting
(December 2023) (DH).

As regard the individual measures, the Committee noted with regret that the authorities had not addressed the issues outlined in its previous decision of December 2019 concerning the possibility to carry out new criminal investigations in several cases^[1] and the conduction of disciplinary proceedings and urged them to rapidly provide the requested information. It also invited the authorities to complete the payment of the just satisfaction in the Azzolina case.

As concerns the general measures, the Committee noted with concern the legislative initiatives aimed at repealing the provision of the Criminal Code on the crime of torture introduced in 2017. In this connection, it noted with interest the clarification provided by the Italian Government to have no intention to repeal the current free-standing offence of torture and strongly invited the authorities to ensure that any possible amendment of the relevant provision will be compliant with the relevant Convention requirements and case-law of the Court.

The Committee also strongly called on the authorities to rapidly finalise the draft legislation under consideration in Parliament aimed at securing the identification of law enforcement agents and reiterated its call for a clear message at high political level to be sent to law enforcement agencies as to the policy of zero tolerance of ill-treatment. 

It finally called on the authorities to ensure that law enforcement agents 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 and to submit information on this issue.

B) Developments since the Committee’s last examination

The authorities submitted an action report on 17 July 2024 (DH-DD(2024)823). The information provided and that available in the public domain can be summarised as follows:

Individual measures

In Azzolina, additional contacts have been initiated by the authorities with the counsel of the only applicant who has yet to provide the necessary documents for the payment of the just satisfaction.[2] The authorities indicated that the payment will be made as soon as the necessary documents are received.[3]

 

The action report outlines the disciplinary measures adopted prior to the Court’s judgments with regard to 14 agents involved in the events central to the cases of Blair and Others, Azzolina and Others, Alessandra Battista and Others and Mauro Alfarano. The sanctions imposed ranged from a fine of 330 EUR to a suspension from service for two months.  

General measures

The statistical data provided indicates that in the period 2017-2022, 130 criminal proceedings involving the crime of torture were initiated, including against agents of the penitentiary police, and 98 were concluded either at pre-trial stage (93) or at first-instance level (5). 44 of the concluded proceedings were discontinued before trial, none of which due to the prescription of the crime of torture.

Draft legislation to repeal the provision incriminating torture as a specific criminal offence to which the Committee referred during its last examination of this group of cases is still pending (for more details see CM/Notes/1483/H46-18 and CM/Del/Dec(2023)1483/H46-18).

Publicly available information indicates that a legislative reform envisaging the possibility to equip State police agents with body cameras during operations aimed at the maintenance of public order was adopted by the Chamber of Deputies in September 2024 and is currently pending before the Senate.[4]

Analysis of the Secretariat

Individual measures

Despite the Committee’s reiterated calls, it should be noted with deep regret that the authorities have not clarified whether new criminal investigations or reopening of the investigations into the applicants’ allegations of ill-treatment were possible in the cases of Blair and Others, Azzolina and Others, Alessandra Battista and Others and Mauro Alfarano.

As concerns the disciplinary proceedings against the agents involved, the authorities should provide their assessment of the adequacy of the disciplinary sanctions imposed at the end of the proceedings they referred to in their action report.

In Azzolina, the Committee may wish to note the information and assurances provided by the authorities and invite them to rapidly complete the payment of the just satisfaction.

General measures

A)    The provision of the Criminal Code on the crime of torture and its application

It should be recalled that the long-awaited introduction of the crime of torture as a free-standing offence in the Italian legal system in 2017 was a major achievement in the execution of these judgments. In this connection, it is noted that even though legislative initiatives are still pending to repeal the relevant provision (Article 613bis of the Criminal Code), the Government’ assurances that this course of action will not be pursued are reassuring.

Considering the importance to preserve the progress accomplished on this issue, the Committee may wish to strongly invite again the authorities to ensure that any possible modification of this provision^[5] would be in conformity with the relevant Convention requirements and case-law of the Court, thus guaranteeing effective prevention, prosecution, and punishment of all forms of treatment prohibited by Article 3 and would not hinder ongoing relevant criminal proceedings.

As regards the interpretation and application of this provision by domestic courts, the information provided does not allow to carry out a comprehensive assessment of the application of the relevant framework and, in this context, of the impact of the current regulation of the statute of limitation it covers only proceedings at pre-trial and first-instance level and does not indicate which of these proceedings concerned state agents nor their average length. Moreover, no relevant examples of judicial decisions were provided on the interpretation and application of the provision on torture including with regard to the adopted definition[6], even though information has been provided on ongoing trials concerning the crime of torture.

Against this backdrop, it remains essential that the authorities provide the updated information and statistical data previously requested by the Committee, combined with their assessment.[7]

As concerns training, it is recalled that in 2019 the Committee had noted with interest the information provided on the theoretical and practical training offered to law enforcement agents and had encouraged them to pursue their efforts. The authorities have provided information on the establishment of working groups and operational protocols, at the initiative of the Naples Public Prosecutor's Office.

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

The absence of progress on the issues of the adoption of legislation ensuring the identification of law enforcement agents and the delivery of a message at high political level of zero tolerance of ill‑treatment to law enforcement agencies despite the repeated calls of the Committee is a matter of great concern. The authorities may be urged to rapidly adopt the required measures and encouraged to draw inspiration from the positive experience of other Member States which addressed similar issues.^[8]

It is recalled that the ineffectiveness of the investigations and the ensuing impunity in these cases stem notably from the objective difficulty in securing the identification of the agents involved, which was caused also by the absence of distinctive signs on their uniforms and the lack of cooperation by the police concerning the identification.

As concerns the identification of State agents, 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 incompatible with that provision. It further 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 – 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).

As regards the ongoing legislative reform to introduce the possibility (as opposed to the obligation) for State agents to wear body cameras, it is noted that this measure represents an additional safeguard against abuse by police officers, as well as a protection against unfounded allegations of ill-treatment.

However, it should be  reiterated that the use of audiovisual recording alone does not guarantee a complete or reliable solution for the identification of agents by persons in situations like those in the cases at issue.^[9] This tool should therefore be integrated into a broader framework for preventing ill-treatment alongside measures to ensure clear identification of officers as also emphasised by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment(CPT).^[10]

In this connection it is noted that the draft legislation, previously referred to by the authorities,[11] envisaging both the display of alphanumeric codes on the uniforms and helmets of police agents and the use of body cameras is still pending in Parliament. The Committee may wish to reiterate its call to the authorities to finalise this reform which provides a sensible solution to accommodate the legitimate interests at stake (i.e. need to identify agents in the event of challenges to the way an operation was conducted while securing their anonymity and protecting them against unfounded allegations of ill-treatment).

C)    Disciplinary proceedings

The authorities have not provided the information on how they intend to ensure that the relevant normative framework, which is based on the discretion in the imposition of disciplinary measures (i.e. suspension and dismissal), is applied in a Convention compliant manner.

It is to be underlined in this context that, unless the authorities demonstrate the establishment of a consolidated Convention-compliant practice in the application of the current relevant provisions, they are required to align the disciplinary frameworks applicable to law enforcement agencies to the Court’s case-law which require that State agents charged with crimes involving ill-treatment are suspended from duty during the investigation or trial and dismissed, if convicted (Cestaro, § 210).

-       Conclusion

In the light of the above, it is essential that the authorities intensify their efforts to rapidly adopt the required measures to tackle the remaining issues while preserving the progress achieved in these cases. To this end, they could be invited to work in close contact with the Secretariat and benefit from the Council of Europe relevant work for technical assistance and support in their execution action. Bearing in mind the Committee’s repeated calls in respect of some of the outstanding questions outlined above, the Deputies might consider taking new action at the next examination of this group of cases in the absence of tangible progress on these issues.

Financing assured: YES