24 Nov Italy’s Difficult Relationship with the Domestic Crime of Torture
[Victoria Priori is a PhD Candidate in International Law at the Geneva Graduate Institute and a Teaching Assistant at the Geneva Academy of International Humanitarian Law and Human Rights]
The prohibition of torture is nowadays universally recognised and agreed upon in international law. Since the adoption of the Universal Declaration of Human Rights in 1948, torture has been proscribed in most international and regional human rights’ treaties (e.g. the European Convention on Human Rights, the American Convention on Human Rights, the International Covenant on Civil and Political Rights). As “the cherry on top”, the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereafter the Convention or UN Convention) provided for the first time a comprehensive definition of what States qualified as torture at the international treaty level.
Article 1 of the Convention provides the following definition of torture:
“For the purposes of this Convention, 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 […]”.
Besides the definition of torture, Article 4 of the Convention requires States to make torture a criminal offence punishable under their national criminal laws. Precisely in light of this obligation, the UN Committee against Torture has been requesting States to implement Article 1 as the domestic definition for the crime of torture. Italy, as many other States, received these instructions and only in 2017 finally adopted a separate crime of torture in its Penal Code with Article 613-bis and Article 613-ter (in Italian).
Nevertheless, despite its recent introduction, a proposal by the leading party (Fratelli d’Italia) has been put before the Parliament’s Justice Committee (Commissione di Giustizia della Camera) to abrogate the law introducing Article 613-bis, Article 613-ter and the related crime of torture. Since passing a law criminalising torture as a separate offence has been a difficult and long project started in 2013, it is worth analysing why the crime of torture might be so short-lived in the Italian legal system.
Italy’s Definition of Torture
Starting from the definition of the offence of torture, Article 613-bis paragraph 1 of the Italian Penal Code provides the following (unofficial translation):
“Whoever, by violence or serious threats, or by acting with cruelty, causes acute physical suffering or verifiable psychic trauma to a person deprived of personal freedom or entrusted to his or her custody, power, supervision, control, care or assistance, or who is in a condition of diminished self-defence, shall be punished by imprisonment of four to ten years if the act is committed by means of more than one conduct or if it involves treatment inhuman and degrading to the dignity of the person”.
There are multiple differences between the UN Convention and the Italian offence of torture. First, compared to Article 1 contained in the Convention, the Italian definition omits the lists of possible purposes which must be present for the conduct to amount to torture. This is interesting because according to Nowak and McArthur, the purposive element of the crime of torture is considered the requirement setting apart torture from cruel, inhuman or degrading treatment. Consequently, by not mentioning any specific purpose for which the acts shall be committed to qualify as torture, the Italian definition blurs the line with cruel, inhuman or degrading treatment.
Under Article 613-bis, once the level of violence (i.e. acute physical suffering or verifiable trauma psychic trauma) and the condition of “deprivation of liberty, custody, power, supervision, control, care, assistance or diminished self-defence” are satisfied, a conduct may categorise as torture if it involves some form of inhuman or degrading treatment or if otherwise multiple acts are committed. Thus, the distinction between torture and cruel, inhuman or degrading treatment is further obfuscated.
Alternatively, Article 613-bis requires the commission of multiple acts. Without clarifying what would reach the threshold of “multiple acts” (e.g. how many repetitions in space and time), the assumption is that this requirement presupposes a certain level of repetition of violence. In essence, a single act of torture might fall outside the scope of the Italian Article, but could conversely qualify as torture under the Convention. As a result, one could question whether the Italian domestic crime of torture is narrower in scope compared to that under the UN Convention.
Further, the Italian definition of torture does not limit the scope of application of the offence to conducts committed “by or with the instigation, consent or acquiescence of a public official or other individual acting in an official capacity”. The involvement of public officials or those charged with public services is only retained in paragraph 2 of Article 613-bis as an aggravating circumstance. Consequently, on this matter the Italian definition of torture could appear broader compared to the one detailed in the Convention. In fact, by removing the element requiring the involvement of a public official or another person acting in an official capacity, one may suggest that in Italy, any private individual could be convicted for torture.
At this point, it is worth mentioning Article 613-ter also adopted in 2017. Article 613-ter criminalises the instigation to commit torture by public officials or those charged with public services. At first, one could consider that Article 613-ter partially remedies to the absence in Article 613-bis of the expression “by or with the instigation, consent or acquiescence of a public official or other individual acting in an official capacity”. On a closer look though, Article 613-ter only refers to instigation and completely omits any reference to consent or acquiescence. As a result, the degree of involvement required on the side of public officials or others charged with public services is notably higher compared to that provided under the Convention. Acquiescence and consent by public officials are not criminalised in the Italian legislation, marking a substantial difference compared to Article 1 of the Convention.
All in all, it is rather complex to establish the difference in scope between the Italian crime of torture and the definition contained in the 1984 Convention, as it will depend to a large extent on the interpretation given to the former. However, it is evident that the Italian definition of the crime of torture significantly departs from the definition agreed upon by States in 1984.
The Need to Criminalise Public or State Torture
As already mentioned, even if Article 613-bis and 613-ter do not fully align with Article 1 of the Convention, the involvement of public officials or individuals acting in some sort of official capacity was maintained in the second paragraph of Article 613-bis as an aggravating circumstance. This is valuable since historically, torture has been an instrument of the State to suppress political opponents, spread terror among the population as well as to secure confessions in domestic criminal trials.
The historical “baggage” that torture carried as a tool in the hands of States partially shaped the negotiations of the UN Convention. Ultimately, the link with the State apparatus was preserved thanks to the need for the involvement of public officials in order for conducts to constitute torture under Article 1. Yet, throughout negotiations the idea that torture was only an instrument at the disposal of state apparatus was diluted and partially set aside thanks to the adoption of the words “other person in an official capacity”. Whilst the latter expression was never explained, it is plausible to assume that it goes beyond agents of the state, broadening the scope of the provision.
Overall, the ultimate objective for the drafters of the Convention was not to criminalise violence in all its forms but to focus on the criminalisation of violence when committed by or with the involvement of a specific set of perpetrators, thus justifying the special label of torture. Eventually, this resulted in the adoption of the words “by or with the instigation, consent or acquiescence of a public official or other individual acting in an official capacity”.
Limiting now the analysis to torture acts committed by agents of the state and public officials, the reasons to regulate internationally the criminalisation of such practices are plenty. For instance, public officials are those entrusted individuals that should protect citizens from violence and abuses, meaning that when they engage in torture, they are committing the most egregious violation of human dignity and physical/mental integrity. Therefore, on a more symbolic level, a specific serious stigma attaches to public torture since it represents the most egregious infringement on human dignity and humanity.
Additionally, precisely because of their role as public officials, these individuals might end up never being prosecuted or convicted. The link between the state apparatus and public officials committing torture entails that the national penal system might be unwilling or unable to function properly. Ultimately, impunity for acts qualifying as torture would be the result.
The Reasons and Risks of the Proposal to Eliminate the Crime of Torture
In light of the above, Italy’s introduction of a specific provision on torture and including a specific category of perpetrators even if only as an aggravating circumstance, can be welcomed. Nonetheless, as previously mentioned, a proposal has been presented to the Parliament’s Judicial Committee to repeal torture as a separate crime from the Italian Penal Code. According to this parliamentary initiative, there was no need to introduce a separate crime of torture in domestic legislation because cases of torture could be covered by previously existing domestic offences (battery, assault, injury and threat). In addition, as stated in the proposal, the removal of torture from the Italian penal system would be necessary to allow public officials and police officers to carry out their job properly, without risking that behaviours such as the use of physical force during arrests or law-enforcement operations could be considered as torture. Similarly, police officers and public officials would not risk being responsible for placing individuals in overcrowded cells or for the terrible conditions of prisons.
Looking at the justification for repealing Article 613-bis and Article 613-ter put forward by Fratelli d’Italia, a series of controversial questions arises. Does this proposal assume that in order to carry out their functions properly torture needs to be part of the toolset given to police officers and agents of the state? This attempt to remove the specific offence of torture is terribly worrisome, since it would legitimise the use of torture by the hands of State agents. Also, why was this battle against a rule protecting fundamental and basic human rights even started in the first place?
A short reply is that public officials do not want to risk being defined as torturers and face harsher penalties compared to what they would incur if convicted for ordinary domestic offences such as assault or battery. Thanks to Article 613-bis and Article 613-ter, the possible application and resulting conviction for torture have become a concrete reality that scares many. For example, could the actions of public officials and politicians in relation to the treatment of migrants and the poor conditions imposed on them before and after disembarking in Italy categorise as torture?
Precisely due to the possible applications of the crime of torture (conditions imposed on migrants, detainees), and the impunity that can specifically arise when faced with public or state torture, retaining a separate provision on torture is of outmost importance. Moreover, the uneasiness caused by the Italian torture provision is a clear indication of the strong stigma attached to public torture as an offence. It is exactly because politicians and public officials fear such law and the label associated to it that it should retain its place in the Italian Penal Code.
To conclude, initiatives to remove torture as a separate offence shall not be welcomed. Ultimately, as a State that ratified the UN Convention and committed to introduce a separate offence of torture in its national legislation, revocation of this law would result in direct violation of Italy’s international obligations. As Amnesty International correctly stated: “Il reato di tortura non si tocca!”