CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE
19 OF THE CONVENTION
Second periodic reports of States parties due in 1994
[20 July 1994]
* The initial report submitted by the Government of Italy is contained
in document CAT/C/9/Add.9; for its consideration by the Committee,
see documents CAT/C/SR.109 and 110/Add.1 and the Official Records
of the General Assembly, forty-seventh session, supplement No. 44
(A/47/44), paragraphs 310-338.
1. The present
report covers the years 1991 to 1993.
2. The report
has been elaborated in cooperation with the ministries most closely
concerned with the subject dealt with by the Convention, within the
framework of the institutional activities carried out by the Inter-Ministerial
Committee on Human Rights, which was set up within the Ministry for
Foreign Affairs in 1978.
3. The first
report illustrated the main principles underpinning the Italian legal
system in respect of the subject dealt with by the Convention. Therefore,
as a result of the fact that no changes have been introduced since,
there are no references in the present report to some articles, namely
articles 5 to 10 and 12 to 16.
4. It should
be noted that in the more general context of international rules and
regulations on torture and other cruel, inhuman or degrading treatment
or punishment, Italy is also a party to the European Convention of
26 November 1987. With a view to underlining the importance attached,
in the Italian legal system, to the respect of the rules and principles
relating to the subject under consideration, it should be mentioned
that a most important and significant event took place from 15 to
27 March 1992, namely the visit to Italy of the European Committee
on the Prevention of Torture. Although this is a monitoring system
provided under article 7 of the European Convention, one should bear
in mind that the European rules and regulations fully correspond with
those contained in the United Nations Convention. The report on the
visit of the Committee, dated 25 February 1993, widely recognizes
the adherence of the Italian legislation and the conditions of prisons
and of police and carabinieri stations to the existing international
provisions. The Committee has made a series of recommendations and
requested information on some specific aspects.
5. The first
report by the Italian Government widely explained the reasons why
the Government and the Parliament have so far decided not to refer
to "torture" as an ad hoc offence in the Italian legislation.
As specified in articles 1 and 4 of the previous report, the Italian
legal system provides that such acts as beating (Penal Code, art.
581), bodily harm (Penal Code arts. 582-583), criminal coercion (Penal
Code, art. 610), threatening (Penal Code, art. 612) and kidnapping
(Penal Code, art. 605) are criminal offences; in this way "all
acts of torture" are considered as infringements of the Italian
and detention for questioning
6. As a supplement
to the information already provided in the previous report, it seems
appropriate to refer to the principles contained in article 386 of
the Code of Criminal Procedure pertaining to the duties of the judicial
police in case of arrest or detention. These duties, which must be
fulfilled by all persons performing judicial police functions, consist
prompt notice of the arrest or detention to the Public Prosecutor
of the place where this measure occurred;
the Public Prosecutor to appoint ex officio a legal defence
counsel should the person under arrest or being detained, although
aware of his/her rights, fail to appoint one of his/her choice;
this legal defence counsel prompt notice of arrest or detention;
the person that is under arrest or is detained at the disposal of
the Public Prosecutor as soon as possible, and in any case within
24 hours of the arrest or detention, by submitting the relevant report
unless "immediate release" has not taken place meanwhile;
as soon as possible, and in any case within 24 hours, the person under
arrest or detention to the prison or district prison of the place
where he/she has been arrested, and giving the Public Prosecutor the
authority to prescribe confinement of the said person in his/her own
residence or in a hospital, in case of health problems. The above-mentioned
24-hour deadline starts from the moment the person is stopped by the
police. The exact time and modalities of arrest will be indicated
in the relevant report which the competent official is required to
7. It should
be pointed out that under article 566, paragraph II, of the Code of
Criminal Procedure, only persons stopped by the police or under arrest
for committing an offence falling under the competence of a magistrate
may be temporarily detained - in any case not beyond 48 hours - in
the police or carabinieri station lock-up, until the judge has fixed
the date of the hearing.
8. As for
persons arrested or detained for committing an offence falling under
the competence of tribunals or assize courts, they have to be promptly
put at the disposal of the Public Prosecutor and transferred to the
prison or district prison of the place where they had been arrested
or are detained.
of a person under investigation
64 of the Code of Criminal Procedure provides that, during the interrogation,
the person under investigation, whether detained or under provisional
arrest, should not be subjected to any kind of physical constraint.
No means whatsoever may be used which affect the person's freedom
of self-determination or the person's ability to remember or assess
the interrogation begins, the person must be informed of his/her right
not to answer questions and, if applicable, of the fact that despite
his/her not answering, proceedings shall be initiated all the same.
information from a person under investigation
article 350 of the Code of Criminal Procedure, the judicial police
may, with the assistance of the legal defence counsel, obtain summary
information from a person under investigation, provided he/she is
not under arrest or detained, if this is believed to help carry out
the inquiry. Before the questioning, the judicial police will ask
the person under investigation to appoint his/her own legal defence
counsel and should he/she be unable to do so, will then inform a legal
defence counsel proposed by the Bar Council.
12. The judicial
police shall give prompt notice to the legal defence counsel of the
time and place of the questioning, which shall take place with the
assistance of the same counsel who has the obligation to attend.
13. The information
obtained through the questioning may be used during the trial and
in the prosecution and defence statements. Reliable information is
guaranteed by the suspect's right to make spontaneous statements,
right to silence and right to legal aid. The general rules provided
for in article 64, relating to the interrogation of the accused, shall
apply to the procedure concerning summary information.
14. In case
of flagrant délit, the judicial police, even if the legal defence
counsel is absent, is allowed to question a person under investigation,
even if arrested or detained, in order to allow for the immediate
continuation of the inquiry. The information thus obtained shall not
be put on record or used or given to other parties.
15. The judicial
police may collect spontaneous statements from the person under investigation,
which cannot be used for the purposes of the trial. The use of this
kind of information by the Public Prosecutor or the legal defence
counsel was previously allowed in order to contest, whether partly
or completely, such statement. This was declared to be an unlawful
action by the Constitutional Court, by sentence No. 259 of 12 June
16. The judicial
police is entitled, without recourse to any special procedure, to
hear a person likely to provide useful information for the purposes
of the inquiry, with the obligation to report subsequently to the
judge. Should that person make any statement implying his/her involvement
in an illegal act, the judicial police will not ignore it nor will
they omit mentioning it in their report.
17. The main
difference between the previous system and the present one is that,
in the past, both interrogation by the Criminal Investigation Department
and spontaneous statements by the person under interrogation (put
on record and included in the police report) would be considered as
supporting material for the judge in his decision. This possibility
is now precluded.
crime and changes introduced to the modalities of carrying out inquiries
18. In the
last few years the need has arisen in Italy to fight organized crime
by more effective means and procedures. In other words, it has been
felt necessary to make the legal mechanisms actually operative in
the face of crime, without in any way failing to meet constitutional
obligations, in terms of response from the competent judicial institutions,
according to the principles of democracy. As a result, by law No.
356 of 7 August 1992, urgent changes were introduced in the new Code
of Criminal Procedure and specific measures taken to oppose the activities
of organized crime.
taking into account the need to adapt both the length of the judicial
process and the relevant investigative procedure to the difficulties
experienced with the criminal investigation - which often paralyse
the work of the judicial police and that of the examining magistrates
- and the need to promote new forms of cooperation as well as to strengthen
serious crime prevention measures and interventions, the new law,
originates from the need to revise certain aspects of the criminal
justice procedure in terms of obtaining and examining evidence, following
recent decisions by the Constitutional Court.
Court has declared the following articles to be constitutionally unlawful:
500, paragraph 3, of the Code of Criminal Procedure, relating to the
validity of statements for the prosecution (sentence No. 255 of 18
May-3 June 1992);
500, paragraph 4, namely the part relating to the non-insertion in
the files of the proceedings of the statement made by a witness, which
is contained in the Public Prosecutor's file, if it has been contested
on the basis of paragraphs 1 and 2 of the same article (sentence No.
255 of 18 May-3 June 1992);
513, paragraph 2, namely the part relating to the fact that, after
hearing the parties concerned, the judge could allow the reading of
statements made by persons accused in separate but connected trials,
on the grounds that they might decide to make use of their right to
silence (sentence No. 254 of 18 May-3 June 1992).
21. The decisions
made by the Constitutional Court touch upon important stages of the
trial, as referred to in the 1988 Code, and play an essential role,
in terms of obtaining and examining evidence, in several aspects of
the legal system. Therefore, these decisions require essential adjustment
of other legal provisions for the purpose of maintaining the homogeneity
of the legal structure. More specifically, they entitle the judge
to have access, before sentencing, to the Public Prosecutor's and
judicial police files concerning the inquiry, which allows, de facto,
for the "reclaiming" of the preliminary investigation, avoiding
any possible retraction of statement by "intimidated" witnesses.
22. The new
law has brought about fundamental changes in the rules provided for
by the Code of Criminal Procedure. The main changes are briefly illustrated
23. In the
course of a particular trial, it is now possible to question a defendant
accused in a separate but connected trial. In this instance, the
is bound to appear before the judge, who may adopt coercive measures
to compel him to appear in court, and the same rules are observed
as apply to the summons of witnesses.
24. The judge's
authority is extended to allow him to intercept telephone conversations
or other communications between the persons cited, with a view to
facilitating the pursuit of a fugitive or whenever criminal activities
are believed to be carried out.
25. The Public
Prosecutor is also entitled to the assistance of the Criminal Investigation
Department when a free person who is under investigation by the police
has to be interrogated or confronted with other witnesses, provided
he/she is assisted by his/her defender.
article 9 of the law No. 8 of 15 March 1991, measures could already
be taken aimed at protecting and guaranteeing the safety of persons
exposed to real and serious danger owing to their statements or to
statements made in the course of an inquiry relating to major crimes.
According to the new law, the judge, or, in case of urgency, the president
of the court, may, also ex officio, prescribe that the hearing
take place after making sure that all necessary precautions have been
taken to ensure protection of the persons under interrogation. In
case special devices are available to allow for audio-visual connection
for the purpose of the hearing, the interrogation may also take place
elsewhere than at the trial.
27. At the
request of one of the parties concerned and taking into account other
evidence obtained, the judge may prescribe the reading of the minutes
containing the statement made by a foreign citizen resident abroad,
who has not been summoned or, though summoned, has not appeared before
28. In addition,
according to law 356/1992, prisoners will not be allowed to take any
leave as a reward for good conduct or to benefit from any alternative
measures to conventional detention if, while they are undergoing their
term of punishment, they commit an offence in connection with organized
criminal activities or terrorism; members of the organized criminal
organizations will not be entitled to any such benefits.
29. The Anti-Mafia
Investigation Department staff and the judicial police officers appointed
by the Department have the authority to visit prisons and meet prisoners
with a view to obtaining useful information for the prevention and
the repression of organized crime.
30. For serious
reasons of public order or of security, the Minister of Justice, also
at the request of the Minister of the Interior, is entitled to suspend,
whether fully or partly, the application of the rules concerning the
treatment of prisoners, with respect to those who are detained for
offences connected with organized crime or kidnapping.
31. In relation
to persons accused of belonging to organized crime networks, the Director
of Anti-Mafia Public Prosecution, the District Attorney or the local
head of Police Administration may request the competent tribunal,
for purposes of protection and safety of the persons concerned, to
take specific preventive measures such as police supervision and mandatory
residence. Any breach of the obligations inherent in the said preventive
measures will entail a three-month to five-year term of imprisonment.
Moreover, in relation to organized crime activities, law 356/1992
provides that other preventive measures may be applied relating to
property, house search, communications interception and preventive
custody, if they are connected with organized crime.
with regard to the subject considered by the Convention
of the latest decisions by the Constitutional Court have reasserted
the full applicability in Italy of the principles embodied in the
treatment banned during the term of punishment
33. By decision
No. 349 of 24 June 1993, the Constitutional Court has reaffirmed a
deep-rooted tenet of the Italian legal system, namely that no form
of detention "will imply treatment contrary to the sense of humanity".
In addition, the Court mentions that "another principle of civilization
stems from this tenet, which involves recognizing that, even though
sentenced to imprisonment, a person is entitled to fundamental freedoms
and the maintenance of human dignity that is compatible to the status
34. The Court
confirms therefore that it is possible for the administration in charge
of a prison to take measures relating to the forms of execution of
the judicial sentence. These measures - the Court adds - should in
no way go beyond "the sacrifice of one's own liberty already
imposed on the prisoner by the sentence of imprisonment" and
their adoption shall always be subject to the limits and guarantees
provided by the Constitution with regard to the forbidding of any
act of physical or moral violence (art. 13, para. 4) or of any inhuman
treatment (art. 27, para. 3).
it is asserted in the above-mentioned decision that imprisonment shall
not imply a total and absolute loss of liberty; this means that, despite
being deprived of most of it, the prisoner will none the less be entitled
to preserve what is left of his liberty, which is "all the more
precious in so far as it constitutes the last space in which one's
own personality may still be exerted".
is more, the Constitutional Court provides by its decision that "inviolable
human rights, such as one's liberty, constitute fundamental principles
having general application"; the restriction or abolition of
these rights shall be considered as derogating from a general rule
and, as such, as exceptional measures.
37. It is
worth mentioning that in decision No. 410 of 5 November 1993, the
Constitutional Court, referring to the same principles illustrated
in its decision No. 349, mentioned above, stipulates that the administration
in charge of a prison may take measures "relating to the forms
of execution of the judicial sentence, which should in no way go beyond
the limitation of one's own liberty already imposed on the prisoner
by the sentence to imprisonment".
38. The aforesaid
decision is essential, also in so far as it provides that "although
the modalities of the treatment of prisoners, not having direct implication
on their personal liberty, could be taken at the discretion of the
administration in charge of a prison, this could not exclude the possibility
for prisoners undergoing their term of punishment to exercise their
right of defence with respect to those decisions which, having as
object the execution of the sentence, have a direct impact on the
enjoyment of inviolable human rights that are explicitly guaranteed
by constitutional provisions".
violations of the principles of the Convention
public opinion, the Italian Government and the judiciary attach special
attention to all reported cases of ill-treatment of persons whilst
under arrest or detained for questioning. Amnesty International has
also denounced a few incidents on which information will be provided
at a later stage, during the discussion of the present report, in
accordance with the practice adopted so far. Considering the great
importance attached to the case of Mr. Marino, we wish to indicate
that the Court of Appeal of Caltanissetta has decided that the new
trial should take place on 21 April 1994.
40. As referred
to in the first report, the new Code of Criminal Procedure, which
came into force on 24 October 1989, contains specific provisions on
extradition, in accordance with the principles embodied in the Convention,
laying stress on the defence of fundamental human rights.
treaty between Italy and Argentina
41. A practical
example of the application of the principles pertaining to both the
Convention and Italian legislation (specifically art. 698 of the Code
of Criminal Procedure) with regard to extradition is constituted by
the recent ratification and enforcement of the extradition treaty
between the Italian Republic and the Republic of Argentina, signed
in Rome on 9 December 1987.
42. In particular,
the treaty stipulates that:
will not be allowed in case the offence for which it is requested
is considered as a political crime by the party receiving the request
for extradition (art. 5.1);
(b) In addition,
extradition will not be allowed if in the view of the requested party
there are grounds for believing that such request, based on a non-political
crime, has been submitted for the purpose of prosecuting or punishing
a person because of his race, religion, nationality or political opinions
(art. 5.2); or, in any case, that one of these elements could constitute
the ground for unfair treatment of any such person;
also will not be allowed if the offence for which it has been requested
is an offence under military law and is not an offence according to
the common law (art. 6);
will not be allowed if the person concerned is a minor according to
the law of the country requested while the law of the requesting State
does not consider the person as a minor or does not provide for specific
procedural and substantial treatment for minors in line with the fundamental
principles of the requested State (art. 7 (d));
in case of a request for extradition for an offence liable to capital
punishment in accordance with the law of the requesting country, a
decision to extradite shall not be passed or, if passed, shall not
be executed (art. 9).
against police officers
43. It is
worth pointing out that, in the past 5 years, 148 cases have been
filed involving legal proceedings instituted against police officers
for offences based upon acts of bodily harm.
disciplinary measures have been used to punish offences, formal reprimands
or fines have been administered.
45. In 1992,
in particular, 79 police officers, up to the rank of Chief Superintendent,
were involved in criminal suits for acts of bodily harm. In the same
year two persons were issued with formal reprimands and one was fined.
provisions on the treatment of prisoners
46. Law No.
296 of 12 August 1993 (confirming decree No. 187 of 14 June 1993)
contains new provisions pertaining to the treatment of prisoners and
the expulsion of foreign citizens.
47. The 1993
law provides, inter alia, that prisoners and internees should
be allowed to work and to participate in professional training courses.
For this purpose specific professional activities or professional
training courses may be organized by State-owned companies or by private
companies which have made a special agreement with the relevant regional
to the new law the criteria used for the selection of prisoners suitable
for work should depend on how long they have not worked since their
imprisonment or internment, on their family responsibilities, on their
professionalism and on the kind of work they have already done or
are likely to do after their release; persons detained or interned
requiring special supervision are excluded from such benefits.
in prisons is one of the main reasons why acts of violence occurred
in places of detention in the past. The ad hoc Committee of the Council
of Europe has confirmed this opinion. As a result, new and more liberal
provisions have been introduced by the 1993 law, with regard to alternative
measures to detention.
legal provisions complement the deeply rooted Italian legal system
principle of the rehabilitating function of punishment, and stress
the aspect of crime deterrence.
51. In order
to achieve its aims, the law has revised the procedure relating to
alternative measures of detention which also apply to persons convicted
of serious crimes, with the exception of those committed in connection
with organized crime or subversive conspiracy. In this respect, the
application of such a measure as house arrest has been increased in
scope, thus entitling specific categories of persons convicted to
serve a sentence, provided it does not exceed a term of three years,
in their own residence, even in the case of a sentence coming to the
end of its term.
52. The provisions
pertaining to house arrest have been modified as follows. A prison
sentence not exceeding three years, whether coming to the end of its
term or not,
as well as detention prior to arrest, may, unless a probation order
has been issued, be served in one's own residence or in a public nursing
home or in a welfare centre in the case of:
(a) A pregnant
woman or a woman breast-feeding her child(ren) or a woman with children
under five years of age living with her;
(b) A person
having serious health problems which require regular contacts with
(c) A person
over 60 years of age, even if only partially disabled;
(d) A person
under 21 years of age, provided there is evidence of health, school,
work or family problems.
53. The law
provides that all prisoners not convicted of offences in connection
with the Mafia's criminal activities can be granted either full or
partial release before the end of the term of their prison sentence.
In addition, pursuant to law 296/1993, the concession of alternative
measures is subject to the prisoners' good conduct, in this way contributing
to the general improvement of prison life.
of non-E.U. country citizens
54. The said
law of 12 August 1993 provides, under article 8, that foreign citizens
under preventive detention for offences not considered as serious
crimes and who have been sentenced, beyond recall, to up to three
years' imprisonment shall be immediately expelled (at their own request
or at the legal defence counsel's request) and sent back to their
country of origin or to the country they came from. Expulsion shall
not be allowed in case of serious procedural requirements for such
expulsion, or if the individual has serious health problems or finds
himself in danger because of security problems owing to the outbreak
of war or epidemics.
55. The scope
of the new law is to avoid overcrowding in prisons and at the same
time to introduce an innovative judicial procedure in the case of
offences being committed by foreign citizens. This procedure, though
respectful of the rights of the defence and of the correct exercise
of judicial power, should still allow effective use of such a measure
as the expulsion of a foreign citizen.
on the transfer of prisoners
56. By law
No. 492 of 12 December 1992, which has brought about changes in law
No. 354 of 26 July 1975, the rules on the transfer of persons whose
liberty has been restrained have been modified. The new rules relating
to the transfer of persons imprisoned, interned, detained for questioning
or under arrest aim at granting each individual, in a more effective
fashion, the right to the respect of their dignity and the right to
article 2 of law No. 492, it is, inter alia, provided that:
prisoners and interned persons should be transferred without delay
and women should be entitled to the assistance of female staff while
they are being transferred;
the transfer, all necessary precautions are taken with a view to protecting
the persons being transferred from the curiosity of the public and
from every kind of publicity, and to spare them unnecessary discomforts;
(c) In the
case of an individual prisoner being transferred, the use of handcuffs
or of every other form of physical compulsion shall be forbidden,
unless their use is made necessary by the fact that he/she is a dangerous
criminal, by the risk of a possible flight, or by special considerations
of a local nature;
being transferred are allowed to wear plain clothes.
58. The main
purpose of the rules referred to above is that greater importance
should be attached to the respect of human rights in the case of the
transfer of prisoners.
59. The scope
of the new provisions is that the transfer of prisoners shall in no
way imply any degrading treatment or any other treatment likely to
be detrimental to human dignity. The authorities responsible for the
supervision of prisoners shall be called upon to comply scrupulously
with paragraph 4 of article 42 bis of law 354/1975, in order
to avoid incurring liability for wrongful conduct, and to take all
necessary precautions to protect prisoners being transferred from
the curiosity of the public and from any kind of publicity.
60. The need
to spare persons to be transferred unnecessary discomfort is related
to the general principle, granted by the Constitution, according to
which the use of unjustified or unnecessary means of coercion towards
persons whose liberty is restrained shall be prohibited.
61. The judicial
authority prescribing the transfer of prisoners will make sure that
the procedure agreed upon with the officers in charge is such so as
to avoid that during the transfer to the courtroom incidents may occur
which are likely to be prejudicial to the dignity of the person being
transferred or to bias the judgement of the court (see Memorandum
of the Ministry of Justice, dated 8 April 1993).
of acquitted defendants
62. The above-mentioned
law of 12 December 1992 contains a provision of particular relevance
with regard to the release of acquitted defendants. By modifying the
rules of application of the Code of Criminal Procedure, article 4
provides that immediately after the reading in court of the verdict
of acquittal, the defendant shall be released, unless also detained
for another reason.