by Gaia Hefti
Torture is considered to be the most common human rights violation in today’s modern world, not only in underdeveloped and/or authoritarian countries, but also in long-established democracies with strict laws about the topic (Goodhart 2016).
In 1948, with the prohibition of torture included in the Universal Declaration of Human Rights (UDHR), torture prevention became one of the top priorities for the protection of humankind. As Article 5 of the UDHR states: “No one shall be subjected to torture or to cruel, inhuman, or degrading treatment or punishment.” Later in 1987, in order to avoid any misinterpretations of the term and assure its prevention under a variety of circumstances, the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (UNCAT) entered into force. Its first article gives a specific definition of ‘torture’:
“The term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”
The convention has been ratified by more than 160 countries, which therefore have the obligation to adjust their internal law to the treaty, and is regarded as part of the ´customary international law´. This term means that such a principle is so fundamental and universal that it cannot be disputed and must be applied by all UN states, no matter what their religion, culture, and/or traditions are. Therefore, torturers are regarded as hostis humani generis (enemy of the human kind) (Goodhart 2016) and must be prosecuted in any UN member state.
However, cases of police or military violence against civilians that might amount to torture fill newspaper pages all over the world. A prominent case is the one that occurred during the G8 summit in Genoa, Italy, also known as the “Scuola Diaz e Bolzaneto” (Diaz School and Bolzaneto) scandal. It remains unresolved.
Between 19 and 22 July 2001, the Italian city of Genoa hosted the G8 meeting, in which representatives of the most industrialized countries discussed several issues related to climate change. This event attracted thousands of protesters from all over the world who showed their concern about the future of our planet. Most of them belonged to pacifist and anti-globalist movements who protested by dancing, singing, and giving public speeches in the streets. However, these protests attracted also violent individuals: the “black blocks”, who profited from the general chaos. They destroyed great parts of the city and attacked the pacifists as well as the police. Because of the insecurity caused by this small and violent group, the police answered heavily, however, without distinguishing the violent from the pacific individuals (European Court of Human Rights 2015).
On the night of 21 July, a police unit stormed into the Diaz School – a building provided to peaceful protestors from all over the world in which they could spend the night – with the intention of finding the black blocks who –according to them – were hiding in the school. They only encountered peaceful people, but that did not stop them. The activists were taken by surprise while asleep and were violently and repeatedly beaten by up to 15 policemen at the same time. They were dragged down several staircases by the hair, piercings got torn off, dreadlocks were shaven, and bones were broken. However, this was just the beginning. The arrested people were taken to the police station of Bolzaneto, where they were abused and tortured by the authorities. As Nick Davies explains (Davies 2015), some of the torture consisted in keeping the prisoners standing and awake throughout the night, denying them the right to call a lawyer or a family member, cutting their hair, forcing the prisoners to sign declarations, and urinating on the detainees because they refused to sing fascist hymns.
Although the events sparked great indignation worldwide, the perpetrators were never punished, for two reasons: first, they could not be exactly identified because of the large number of policemen involved in the attack, and second – as absurd as it might sound – because the Italian constitution did not have an explicit prohibition against torture at the time.
When the European Court of Human Rights in 2015 analyzed the human rights situation in Italy, it found a disastrous system. In fact, in 2015, out of the 9944 cases in which the sentences proclaimed by the European Court for Human Rights were not respected by its members, 2219 concerned Italy, which is 22,3% of the total number of accusations of inadequate human rights protection (Hervey 2017). Within this worrying statistics, the case of Genoa reemerged as a topic of heated debate for politicians and the general public: Strasbourg condemned Italy for the torture cases and especially for the impunity the case, declaring the inadequacy of the Italian law in the prevention and punishment of torture cases (Muižnieks 2017). As a matter of fact, having ratified the European Convention on Human Rights 28 years before, the State is responsible for the adaptation of its own constitution and law system in accordance with the treaty (Camilli 2017).
The reemergence of the case accelerated the process for the creation of a new law against torture, which started in 2013. It took four years for the Italian Senate to approve the law, and the result is disappointing. Instead of providing a solid base for the protection against torture, its ambiguities allow for misinterpretations and reduce its effectiveness (Francavilla 2017).
After four years of continuous modifications, Article 631-bis of the Italian Criminal Code reads:
“Whoever inflicts physical suffering or a verifiable psychological trauma through violence or severe threats, by acting cruelly, to a person deprived from his/her personal freedom or given in custody, authority, surveillance, control, care or assistance – that means being in a position of restricted defense – must be punished with four to ten years´ reclusion in case the act has been repeatedly committed (…).”[1]
According to several newspapers (Il Post 2017; Internazionale 2017; La Repubblica 2017; Libero Pensiero 2016) there are four main problems in the final version of the Italian law against torture. Firstly, the violent act must be “repeatedly committed”, which automatically assumes that in case a public official acts violently on a civilian only once, it might not be considered torture. In the UN convention, there is no limitation of the definition related to repeated acts of torture (Il Post 2017). Secondly, the fact that a psychological trauma has to be “verifiable” complicates the prosecution of the accused perpetrators. As a matter of fact, Italy is known to have extremely long and delayed trials – they can last or start 10 years after the crime has been committed – a period after which the psychological consequences of torture cases are difficult to evaluate (Il Post 2017). Thirdly, saying that threats have to be “severe” is misleading, as a measurement of the gravity of the acts does not exist. This is a particularly important point, as without specific guidance on what can be considered a significant threat, the law is subject to potential misinterpretations that might produce impunity of the perpetrators (Libero Pensiero 2016). Finally, in the course of the several modifications of the law, torture shifted from being specifically an offence committed by public officers to a common offence applicable to any civilian. However, the EN Convention against Torture clearly states that the concept of torture aims specifically at punishing the abuse of power committed by authorities, since the criminal code already penalizes violent acts caused by common citizens (Il Post 2017).
As Enrico Zucca, judge in the Scuola Diaz case, explains, many of the acts committed during the G8 in Genova would not be considered torture according to the latest version of the law (Il Post, 2017). Moreover, Amnesty International denounced the Italian tendency to protect its authorities at all costs, even prioritizing it over the international law standards provided by the International Covenant on Political and Civil Rights (Amnesty International Italia 2017).
In conclusion, the law against torture in Italy must be considered a failure. The deficiencies mentioned above tend to make this law ineffective and to support the high levels of impunity in the peninsula. In fact, while there were some efforts to heal the wounds of the victims through monetary reparations, impunity persists: 17 years after the events most of the officials involved in the G8 scandal remain unpunished. The United Nations (CAT 2017) criticized once again the unsuitableness of the Italian law and urges the country to find a long-term solution to punish the perpetrators.
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[1] Translation of the author
