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Italy: New Law Making Torture a Crime

(Sept. 20, 2017) On July 18, 2017, new legislation creating the crime of torture entered into effect in Italy. (Law No. 110 of July 14, 2017, Introduction of the Crime of Torture in the Italian Legal System (Law No. 110), GAZZETTA UFFICIALE  (July 18, 2017) (in Italian).) To effect this change, the new legislation introduces articles 613-bis and 613-ter in the Italian Criminal Code. (Id. art. 1(1); THE ITALIAN PENAL CODE (Edward M. Wise & Allen Maitlin trans. 1978), Library of Congress bibliographic information); Codice Penale [Criminal Code] (updated to Aug. 2017), ALTALEX.)

The Crime of Torture in General 

The new law punishes anyone who, using serious violence or threats, or acting with cruelty, causes acute physical suffering or a verifiable psychological trauma to a person who is deprived of his freedom or is entrusted to the person’s custody, parental authority, supervision, control, care, or assistance, or who is in a situation of diminished defense. (Law No. 110, art. 1(1) ¶ 1, introducing art. 613-bis in the Criminal Code.) The law punishes such conduct with four to ten years of imprisonment upon conviction if the offense is committed by more than one action or if the action or actions involve treatment that is inhuman and degrading to the dignity of a human being. (Id.) If the punishable actions cause a serious personal injury, the penalty will increase by one-third; if a very serious (gravissima) personal injury is caused, the penalty will increase by half. (Id. art. 1(1) ¶ 4.) When death results as an unintended consequence of the actions, a penalty of 30 years of imprisonment applies, but if the convicted felon intentionally caused the death of the victim, the sentence is life imprisonment. (Id. art. 1(1) ¶ 5.)

Torture Committed by a Public Official 

When the actions of torture are committed by a public officer or an officer in charge of a public service, through abuse of power or in violation of the duties inherent in his functions or service, a penalty of imprisonment of five to twelve years will be imposed upon conviction. (Id. art. 1(1) ¶ 2.) This provision does not apply in the case of suffering resulting solely from the execution of legitimate measures that deprive or limit the rights of a person. (Id. art. 1(1) ¶ 3.) The law also punishes the public officer or the officer who is in charge of a public service and who, in the exercise of his functions, encourages another public officer or officer in charge of a public service to commit the offense of torture, if the action of encouragement is not accepted by the second officer or if it is accepted but the crime is not committed. (Law No. 110, art. 1(1) ¶ 1, introducing new art. 613-ter in the Criminal Code.) Imprisonment for a period of from six months to three years applies upon conviction in these cases. (Id.)

Inadmissibility of Evidence Acquired Through Torture

The new legislation also amends a provision of the Italian Criminal Procedure Code concerning the admissibility of evidence in criminal proceedings to establish that declarations or information obtained through the crime of torture are not admissible as evidence in criminal procedures, except against the persons accused of the crime of torture and for the sole purpose of proving their criminal responsibility. (Law No. 110, art. 2(1); Codice di Procedura Penale [Criminal Procedure Code] (updated to July 18, 2017), art. 191, ALTALEX.)

Exclusion of Extradition to States Where Torture Is Practiced

The new legislation rejects the expulsion or extradition of a person from Italy to another state when there are reasonable grounds to believe that that person is at risk of being subjected to torture. (Law No. 110, art. 3(1).) The assessment of reasonable grounds must take into consideration the existence, in that state, of systematic and serious human rights violations. (Id.)

Exclusion of Immunity

The law denies all types of immunity in Italy to foreigners subjected to criminal procedures or convicted of the crime of torture in another state or by an international tribunal. (Id. art. 4(1).) In these situations, the foreigner must be extradited to the requesting state where the criminal proceedings are pending, the sentence of conviction for the crime of torture has been issued, or, in the case of proceedings before an international court, to the court itself or to the state identified,as provided in the statutes of the same international court. (Id. art. 4(2).)

Criticism

Italy’s new law has been criticized as falling short of European and international standards for measures to combat torture. (Claudio Francavilla, Italy’s New Law on Torture Fails to Meet International Standards, HUMAN RIGHTS WATCH (July 11, 2017).)