Implementing the UN Convention Definition of Torture in Criminal Law:the Case of Italy

The UN Committee against Torture considers the introduction of a distinct offenceof torture in domestic law to be the most effective way of implementing Article 4 ofthe Convention against Torture. States parties which have introduced or are in theprocess of introducing a separately defined offence of torture have nonetheless frequentlyadopted definitions which are not entirely adequate in the light of theConvention. Problematic areas include ‘mental’ torture, torture for the purpose ofdiscrimination, the role of state agents in the practice of torture and exceptionswhich are different from the ‘lawful sanctions’ exception provided for in theConvention itself. The case of Italy is a good illustration of the kind of obstacleswhich frequently arise when states are invited to introduce an ad hoc offence oftorture. While maintaining that enacting a specific prohibition is not required bythe Convention, the Italian Government has apparently accepted the idea that itsintroduction in Italian law would represent an improvement ç without, in fact,doing much to achieve this result. As for the definitions of torture, the debate on thenumerous bills providing for a specific offence of torture which have been tabled inthe Italian Parliament during the last three parliamentary terms has focused on twomain aspects. First, according to the majority of the members of Parliament (MP), inorder to comply with the Constitutional principle of determinacy, the offence mustbe defined with reference to the conduct amounting to torture, i.e. to the type of actby which pain or suffering is inflicted on the victim. Some of the bills which definethe act of torture do so in restrictive terms and are clearly not in conformity withArticle 1 of the Convention. Second, opinions are divided with respect to the role ofpublic officials (or other persons acting in an official capacity) in committing thecrime 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 commoncrime of torture. This, however, may be too similar to certain generic offences underItalian law that do not catch the essence of torture or insufficiently take into accountits grave nature.[...]