I. The Legal Contours of the Crime of Torture |
Implementing the UN Convention Definition of Torture in National Criminal Law (with Reference to the Special Case of Italy)
* Professor of International Organization, University of Teramo. [a.marchesi{at}mclink.it]
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Abstract |
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The UN Committee against Torture considers the introduction of a distinct offence of torture in domestic law to be the most effective way of implementing Article 4 of the Convention against Torture. States parties which have introduced or are in the process of introducing a separately defined offence of torture have nonetheless frequently adopted definitions which are not entirely adequate in the light of the Convention. Problematic areas include ‘mental’ torture, torture for the purpose of discrimination, the role of state agents in the practice of torture and exceptions which are different from the ‘lawful sanctions’ exception provided for in the Convention itself. The case of Italy is a good illustration of the kind of obstacles which frequently arise when states are invited to introduce an ad hoc offence of torture. While maintaining that enacting a specific prohibition is not required by the Convention, the Italian Government has apparently accepted the idea that its introduction in Italian law would represent an improvement — without, in fact, doing much to achieve this result. As for the definitions of torture, the debate on the numerous bills providing for a specific offence of torture which have been tabled in the Italian Parliament during the last three parliamentary terms has focused on two main aspects. First, according to the majority of the members of Parliament (MP), in order to comply with the Constitutional principle of determinacy, the offence must be defined with reference to the conduct amounting to torture, i.e. to the type of act by which pain or suffering is inflicted on the victim. Some of the bills which define the act of torture do so in restrictive terms and are clearly not in conformity with Article 1 of the Convention. Second, opinions are divided with respect to the role of public officials (or other persons acting in an official capacity) in committing the crime of torture: while some MPs are in favour of introducing a reato proprio, i.e. a crime that only a public official can commit, others have proposed a common crime of torture. This, however, may be too similar to certain generic offences under Italian law that do not catch the essence of torture or insufficiently take into account its grave nature.