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“All citizens have equal social dignity and are equal before the law”. At least, this is what Article 3 of the Constitution of the Italian Republic states. However, issues of accountability under Italian law still exist. In particular, inappropriate measures of accountability in relation to crimes of excessive use of force and torture are of particular concern. Italy lacks adequate legislation to punish such crimes, leading to impunity of those responsible.
A landmark example of this impunity is the case of Stefano Cucchi, which dates back to 2009 when he was arrested for possession of a few grams of marijuana. Only a few days after his detainment in the Regina Coeli prison in Rome, he was hospitalized for serious injuries, such as spinal injury and concussion, which consequently led to PTSD complications and ultimately to his death. Upon arrest, Stefano was confined and prevented from consulting his lawyer and even from seeing his family. In October 2018, after nine agonising years, it became clear that this was a ‘combined action’ of a number of police officers, now accused of involuntary manslaughter and abuse of power.
At the time of Stefano’s death, there was no Italian domestic provision prohibiting torture. Although Italy had ratified both the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (CAT) in 1989 and the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) in 1955, the State party has failed to comply with these provisions. In any case, this is not sufficient action to support criminalization of torture, inhuman or degrading treatment. The increasing number of cases brought before the Strasbourg Court in relation to violations of Article 3 of the ECHR clearly shows the unwillingness of the Italian courts to adhere to its international law obligations.
Stefano Cucchi’s case is not an isolated one. The recent Asti case highlights the critical issue of prison overcrowding. The two applicants claimed unacceptable conditions of their cells during their period of solitary confinement. No mattress or bed covers, inappropriate hygienic conditions, and only small amounts of water and food were provided. However, the criticality of this situation is not confined to deplorable imprisonment conditions. In Cestaro v Italy, the Strasbourg Court found Italy liable on both substantive and procedural grounds for the police officers’ excessive and unauthorised use of force at the Genoa G8 summit. According to Amnesty International, the Strasbourg Court also found that the treatment of 59 people at the hands of police officers and medical staff following protests against the G8 summit amounted to torture.
The lack of appropriate domestic provision to punish torture, coupled with the failure to identify those responsible, leads to the “immunity” that the highly-politicised Italian courts seem to guarantee to aggressive modus operandi of State authorities. Yet again, as the jurist Patrizio Gonnella suggested, Italy has been unable to provide justice for itself.
The increasing reiteration of Italy’s failure to comply with its positive obligations to criminalise torture domestically and to enable punishment of those responsible led to the implementation of the new law on torture under Article 613-Bis of the Penal Code in July 2017. Although the new law fills some lacunae, it has been highly criticised.
According to the Country Co-Rapporteur for Italy, Italy fails to meet the international standards set by the UN. The Council of Europe’s Commissioner for Human Rights, Nils Muižnieks, also expressed his concern as to the generic definition of torture. He found that only the sum of multiple acts of violence, verifiable psychological trauma, and inhuman “and” degrading treatment – as opposed to inhuman “or” degrading treatment – would amount to a violation of this fundamental right.
Why is Italy so reluctant to accept the non-derogable jus cogens nature of the prohibition of torture? The increasing involvement of the judiciary in extra-judicial and political activities, the inefficiency of prosecutors to consider cases within the reasonable time under Article 6 of the ECHR, and the reluctance on the part of the State to make accountable the actions of state agents are only some of the reasons to blame.
The new legislation makes the situation even more problematic, as Italy has finally – and only apparently – washed its hands of the accountability for these crimes. Italy continues to be in violation of international legal standards, as suggested by the Recommendations drafted by Amnesty International. These include the compliance with the CAT and the allocation of adequate resources for the implementation of its obligations.
Stefano Cucchi’s case is the story of David against Goliath. But, did this story actually put an end to the impunities of which Italy is the actor? Or did it maintain the status of Italy as a sanctuary for torturers?