March 20, 2011

III. Legal and Institutional Framework

Italy’s Human Rights Obligations

Italy has clear obligations under human rights law to undertake effective measures to prevent racist and xenophobic violence (the duty to protect), to vigorously investigate and prosecute perpetrators (the duty to provide an effective remedy), and to publicly and unequivocally condemn such violence. The duty to protect and the duty to provide an effective remedy apply whether the perpetrators of the violence were agents of the state or private actors.

The International Covenant on Civil and Political Rights (ICCPR) requires all state parties to ensure to all persons their fundamental rights without distinction of any kind, including race, language, religion, national origin, or other status.[43] The Human Rights Committee, which monitors compliance with the ICCPR, has made clear that states have a positive obligation to prevent and punish human rights abuse by private actors.[44]

The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), obligates states to guarantee everyone, “without distinction as to race, color, or national or ethnic origin … security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual, group or institution.”[45] 

The European Convention on Human Rights (ECHR) provides for the equal enjoyment of all Convention rights without distinctions based on race, color, religion, or national or social origin, among other grounds.[46] The convention also imposes positive obligations on states to protect individuals from attack, assault or injury by private individuals, in particular when combined with protection of the rights to life and bodily integrity.[47]

The European Court of Human Rights has established in its case law the duty of states to investigate whether a criminal offense was motivated by racist motivation. In its 2005 ruling in the case of Nachova and Others v. Bulgaria, the court argued:

When investigating violent incidents … State authorities have the additional duty to take all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice may have helped play a role in the events. Failing to do so and treating racially induced violence and brutality on an equal footing with cases that do not have racist overtones would be to turn a blind eye to the specific nature of acts that are particularly destructive of fundamental rights.[48]

The court has reiterated the positive obligation to investigate possible racist motivations in many successive cases.[49] In relation to lethal attacks the court has emphasized that,

[W]here that attack is racially motivated, it is particularly important that the investigation is pursued with vigour and impartiality, having regard to the need to reassert continuously society's condemnation of racism and to maintain the confidence of minorities in the ability of the authorities to protect them from the threat of racist violence.[50]

The European Union Council Framework Decision on combating certain forms and expressions of racism and xenophobia by means of criminal law, adopted in November 2008, underlines the obligation of EU states to ensure that racism and xenophobia are punishable by “effective, proportionate and dissuasive” criminal penalties.[51] A binding legal instrument, the framework decision establishes an obligation to ensure that racist and xenophobic motivation is established under national law as an aggravating circumstance in the commission of other crimes or subject to penalty enhancement.[52] 

In December 2009, the Organization for Security and Co-operation in Europe (OSCE) Ministerial Council adopted its first decision exclusively devoted to addressing the problem of hate crime. The decision on “Combating Hate Crimes” calls on OSCE States, including Italy, to take measures to address the problem, including collecting reliable data, tailoring appropriate legislation, assisting victims, and raising awareness. [53]

National Laws on Discrimination and Racism

The Italian Constitution, in its article 3, guarantees the “equal dignity” of all citizens and the principle of equality before the law “without distinction based on sex, race, language, religion, political opinion, or personal and social conditions.”[54] Italy’s Constitutional Court has repeatedly interpreted article 3 as applicable to all persons within Italian territory. Most recently, the court declared inadmissible the central government’s challenge to a regional immigration law in Tuscany that guarantees a range of health services to undocumented migrants. The court, in the July 2010 ruling on the Tuscany law, reaffirmed that foreigners are “entitled to all of the fundamental individual rights recognized in the Constitution.”[55] 

Italy has robust anti-discrimination legislation. While specific norms existed before, comprehensive legislation was adopted in 2003 when Italy transposed EU Directives 43 (on equal treatment between persons irrespective of racial or ethnic origin) and 78 (on equal treatment in employment and occupation).[56]

The most important instrument in Italian law for prosecuting racist and other hate violence is the penalty enhancement provision contained in Law no. 205 of 1993, commonly referred to as the “Mancino Law,” after then interior minister Nicola Mancino. Article 3 of the Mancino Law allows judges to increase the sentence to be imposed for a crime, by up to half, if it was committed “with the purpose of discrimination or hatred based on ethnicity, nationality, race, or religion, or in order to facilitate the activity of organizations, associations, movements, or groups that have this purpose among their objectives.”[57] Other grounds for hate crimes, such as sexual orientation and disability, are not included in the law. Lesbian, gay, bisexual and transgendered rights groups have been advocating for several years for a broadening of Italy’s hate crime provisions.[58]

The aggravating circumstance of racist or other hate purpose can be applied to any crime, except those punishable by life in prison (the harshest penalty under Italian criminal law). The Mancino Law provides for ex officio investigations—even when the victim has not filed a formal complaint —of crimes committed within the meaning of article 3 of the statute. Under standard Italian criminal procedure, the seriousness of the personal injury determines the extent of the state’s obligation to investigate and prosecute. [59]

The Mancino Law also makes it a crime to “instigate in any way or commit violence or acts of provocation to violence for racist, ethnic, national or religious motives,” punishable by six months to four years in prison, and to “propagate ideas based on racial superiority or racial or ethnic hatred, or to instigate to commit or commit acts of discrimination for racial, ethnic, national or religious motives,” punishable by up to one year and six months in prison or a €6,000 fine.[60] 

Prosecutions under these provisions have led to several convictions in recent years.Giancarlo Gentilini, the Northern League deputy mayor of Treviso, a town in northern Italy, was convicted in October 2009 of instigating racism under the terms of the Mancino Law for his comments during a speech in September 2008. He was fined €4,000 (U.S.$5,500) and banned from making public speeches for three years. His appeal against the verdict is pending; he is still in office.[61]

He had said:

I want to eliminate the children who go and rob the elderly … I want a revolution against those who want to open up mosques and Islamic centers … Let them go pray in the desert … I want a revolution against phone centers whose clients eat in the middle of the night and then piss on the walls: let them piss in their mosques.[62]

He said in the same speech that he was against “black, brown or gray people teaching our children.”[63]

In another case, an advisor named Flavio Tosi, also of the Northern League, and five other local officials were convicted in a final sentence in July 2009 of propagating racist ideas in relation to a 2001 campaign against unauthorized Roma settlements.[64] Tosi and his codefendants had circulated a petition entitled, “No to the Nomads. Sign up to Send Away the Gypsies.” They received two months’ suspended sentences. Flavio Tosi was elected mayor of Verona in 2007; he is still in office.

Human Rights Watch’s policy on hate speech is based on a strong commitment to freedom of expression and concerns that restrictions on hate speech, no matter how offensive, are open to abuse and may prove counterproductive. We strongly support criminal prosecution where speech constitutes direct and immediate incitement to acts of violence, discrimination, or hostility against an individual or clearly defined group of persons in circumstances in which such violence, discrimination, or hostility is imminent. We believe prosecution is not the most appropriate or effective means to combat reprehensible and hurtful speech where there is no direct incitement. [65]

The Structure of Law Enforcement and the Courts

The two national law enforcement agencies engaged in responding to and investigating violent crime are the National Police (Polizia di Stato), a civilian force under the Ministry of the Interior and the Arma dei Carabinieri, a military force under the Ministry of Defense. [66] Both the police and the Carabinieri can respond to emergency calls (they each have a three-digit emergency number), and both can receive and process victim reports of crimes. Areas and towns with low populations will typically only have one of the forces operating in the territory, while both forces tend to be present in areas with sizeable populations. Police officers and Carabinieri can function as judicial police under the instructions of a public prosecutor for the investigation of a crime. Normally whichever force responds to an emergency call or receives a complaint will conduct the investigation.

The General Investigations and Special Operations Division (Divisione Investigazioni Generali e Operazioni Speciali, DIGOS) of the National Police, with branches across Italy, is responsible for investigating subversive activities, including extreme right-wing activities and crimes committed by organized groups.

Investigations into racially motivated assaults will often be passed to DIGOS where there are indications that the assault was committed by individuals who belong to or are associated with extreme right-wing groups.

Despite repeated recommendations from the European Commission against Racism and Intolerance, no independent commission exists to investigate allegations of human rights abuse by law enforcement personnel.[67] Under the current rules, the prosecutor’s office with jurisdiction in the territory of the alleged abuse has the responsibility to investigate allegations.

Italy has an independent judiciary. There are 165 ordinary tribunals and 29 juvenile courts; each has a public prosecutor’s office, of varying sizes. There are twenty-nine courts of appeal. The Court of Assizes has jurisdiction over the most serious crimes punishable by the longest prison sentences or life in prison (the harshest sentence under Italian criminal law); appeals are heard by the Assize Court of Appeal. Only the Court of Assize and the Assize Court of Appeal hold trials by jury, or “popular judges,” as they are referred to in Italian law, in which six citizens sit on the bench with two professional judges. The Court of Cassation is the third and final level of proceedings for all criminal cases.

Prosecutors conduct the pre-trial investigation with the help of police and Carabinieri assigned to judicial police functions. Once the initial investigation is concluded, the prosecutor asks the Judge for Preliminary Investigations (giudice delle indagini preliminari, GIP) to either dismiss the case for lack of probable cause or charges the defendant and asks the GIP to commit to trial. The GIP can approve or reject the prosecutor’s conclusions, and may order the prosecutor to continue the investigation. Criminal procedure allows for so-called direct trials (giudizio direttissimo), often within 48 hours, where the perpetrator is arrested while committing a crime. Verdicts are not final until all appeals have been examined, and the law provides for the possibility of bail pending a final verdict.

Undocumented migrants who are the victims of a crime can petition for temporary leave to stay in the country for the duration of legal proceedings. The permit is granted for three-month renewable periods, and is revoked upon termination of the proceedings, or the investigation if the case is archived. It does not allow the holder to work, and it cannot be converted into a longer-term residency permit. The availability of the permit does not appear to be widely known among undocumented migrants. Several undocumented migrants with whom Human Rights Watch spoke during the course of this research cited their lack of legal status as one of the reasons they did not wish to report abuse. 

Because racist and other hate violence has not been identified as a priority concern, no systematic specialized training exists either for police or Carabinieri officers or prosecutors.[68]  The National Police and the Arma dei Carabinieri have never launched any outreach initiatives to encourage reporting racist or other hate violence.[69] There are no specialized units within the police or Carabinieri station to tackle such violence.

Some prosecutor’s offices have special units for racist acts committed in connection with sports, particularly football, and the prosecutors in these units may also be assigned other types of cases considered to have a racial motivation. The Rome prosecutor’s office, for example, created a specialized task force in May 2009.[70] The decision to create specialized task forces rests with the head prosecutor in any given office; the Justice Ministry has no authority to instruct or even recommend such a move.[71]

The National Office against Racial Discrimination

The National Office against Racial Discrimination (Ufficio Nazionale Antidiscriminazioni Razziali, UNAR) became operational in 2005 with a mandate to monitor discrimination in both the public and private sectors, provide assistance to victims, and promote campaigns to raise awareness and counter discrimination. UNAR, formally a part of the Ministry of Equal Opportunities, can refer victims to the associations on a formal ministerial list of entities with legal standing to bring suits, but cannot initiate court action.

Under new leadership since July 2009, the Office has undergone restructuring, more vigorously pursued agreements with regional governments, and increased avenues for victims to report discrimination.[72] At the national level, individuals can report complaints to UNAR by phone or email, or on the website, or in person at the Rome offices. The UNAR director Massimiliano Monnani told Human Rights Watch that his goal is to have in place by 2012 a robust national network, in conjunction with regional governments and civil society organizations, for monitoring and registering discrimination.[73]

Up until September 2010, UNAR did not have a specific way to register acts of racist violence in its database. [74] The addition of a dedicated field to its database in September should allow UNAR to generate statistics on reports of racist violence for the first time. Since March 2010, the office has monitored the press for incidents of racist violence with a view to consistently alerting the police or the judiciary to prompt appropriate investigations.

[43]International Covenant on Civil and Political Rights (ICCPR), G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, article 2(1); see also ibid., article 26 (equal protection under the law). Italy ratified the ICCPR on September 15, 1978.

[44] Human Rights Committee, General Comment 31, Nature of the General Legal Obligation on States Parties to the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add.13 (2004): “However the positive obligations on States Parties to ensure Covenant rights will only be fully discharged if individuals are protected by the State, not just against violations of Covenant rights by its agents, but also against acts committed by private persons or entities…. There may be circumstances in which a failure to ensure Covenant rights … would give rise to violations by States Parties of those rights, as a result of States Parties’ permitting or failing to take appropriate measures or to exercise due diligence to prevent, punish, investigate or redress the harm caused by such acts by private persons or entities.” para. 8.

[45]International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), Adopted and opened for signature and ratification by General Assembly resolution 2106 (XX) of 21 December 1965, entered into force January 4, 1969, article 5(b). Emphasis added. Italy ratified ICERD on January 5, 1976.

[46] ECHR Article 14. Italy ratified the ECHR on October 26, 1955.

[47]ECHR Articles 1, 2, 3. See e.g. A. v United Kingdom, judgment September 23, 1998, para 22: “The Court considers that the obligation on the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment or punishment, including such ill-treatment administered by private individuals”; and Osman v. the United Kingdom, judgment of October 28, 1998, Reports of Judgments and Decisions 1998-VIII, p. 3159, para. 115: “The first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction …..The State's obligation extends beyond its primary duty to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offense against the person backed up by law-enforcement machinery for the prevention, suppression and punishment of breaches of such provisions.”

[48]European Court of Human Rights [Grand Chamber], Nachova and Others v. Bulgaria, nos. 43577/98 and 43579/98, Judgment of July 6, 2005, para. 156-159.

[49]See, for example, Bekos and Koutropoulos v Greece, December 13, 2005 paras. 63 – 65; Zelilof v Greece judgment May 24, 2007, paras. 72 – 74; Secic v. Croatia, no. 40116/02, judgment of May 31, 2007, para. 66;  Cobzaru v Romania, judgment July 26, 2007, paras. 88 – 91; Cakir v. Belgium judgment March 10, 2009 paras. 77 – 78; Beganovic v. Croatia judgment of June 25, 2009, para.93 .

[50]See Angelova and Iliev v Bulgaria, Judgment, July 26, 2007 andMenson and Others v. the United Kingdom (dec.), no. 47916/99, ECHR 2003-V.

[51]Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law, Official Journal of the European Union L328, 6 December 2008, http://www.legal-project.org/documents/219.pdf (accessed March 12, 2010), preamble, para (5).

[52]Council Framework Decision 2008/913/JHA, Article 4.

[53]OSCE Ministerial Council, Decision No. 9/09, “Combating Hate Crimes”, Athens, December 2, 2009, MC Dec 9/09, available at http://www.osce.org/item/41853.html.

[54] Constitution of the Italian Republic, article 3. The Constitution is available in English at http://www.senato.it/documenti/repository/istituzioni/costituzioni_inglese.pdf (accessed July 28, 2010).

[55] Constitutional Court ruling no. 269/2010, deposited July 22, 2010, section 4.1. The ruling can be found at http://www.cortecostituzionale.it/actionPronuncia.do.

[56] Legislative Decrees 215 and 216 of July 9, 2003.

[57] Judges in Italy have discretion with respect to sentencing within the parameters established by law. A sentence for a racially-motivated offense can be increased by any amount of time up to one half again the minimum sentence for the offense in question.

[58]Numerous LGBT organizations, including the national umbrella group Arcigay, signed on to an LGBT Platform calling for, among other things, an extension of the Mancino Law to include discrimination on the basis of sexual orientation. Parliamentarians from two political parties—the Democratic Party and the Italy of Values party—have tabled different legislative proposals, which at this writing had yet to be fully examined by parliament.

[59] Victims of personal injuries causing incapacity of less than 20 days and no permanent damage must file a complaint (querela) (article 582, Criminal Code); personal injuries causing permanent damage, even if incapacity is less than 20 days, and injuries causing incapacity over 40 days give rise to an ex officio obligation to investigate and prosecute (article 583, Criminal Code). Incapacity is determined by medical professionals.

[60] Mancino Law, article 1 (B) and article 1(A), as modified by Law 85 of 24 February 2006, article 13. The 2006 law substituted the word “instigate” for the original “incite.” Article 1(B) appears to create a stand-alone offense of commiting violence for racist, ethnic, national or religious motives; however none of the lawyers or prosecutors interviewed in the course of this research were aware of any cases in which an individual was charged with this stand-alone offense. Human Rights Watch interview with  Mirko Mazzali, criminal lawyer, Milan; Human Rights Watch interview with Mario Angelelli, Rome, March 25, 2010; Human Rights Watch interview with Roberto Staffa, public prosecutor, Rome, July 30, 2010; Human Rights Watch telephone interview with Francesco Polino, public prosecutor, Rome, August 4, 2010.

[61] “Treviso, Gentilini ‘Istiga al razzismo’ Comizi vietati per lo ‘sceriffo’ della Lega,” Il Corriere della Sera, October 26, 2009, http://www.corriere.it/politica/09_ottobre_26/gentilini-condannato-istigazione-al-razzismo_852c8f60-c23e-11de-b592-00144fo2aabc.shtml (accessed July 26, 2010).

[62] “La Procura di Venezia indaga su Genitilini,” La Tribuna di Treviso, October 2, 2008, http://tribunatreviso.gelocal.it/dettaglio/articolo/1521850 (accessed November 27, 2009).

[63] “Dal palco instigazione al razzismo, indagato il leghista Gentilini” La Repubblica, October 2, 2008, www.repubblica.it/2007/11/sezioni/cronaca/sindaci-cittadella/gentilini-indagato/gentilini-indagato.html (accessed November 27, 2009).

[64] Laura Tedesco, “Fecero propaganda razziale,” Il Corriere del Veneto, July 11, 2009, available at http://fattideuropa.splinder.com/post/20948121/sentenza-ideologica-della-corte-di-cassazione-flavio-tosi-condannati-per-%25C2%25ABpropaganda-razziale%25C2%25BB (accessed July 26, 2010).

[65] Under the terms of Human Rights Watch’s policy “violence” refers to physical attacks; “discrimination” refers to the actual deprivation of a benefit to which similarly situated people are entitled or the imposition of a penalty or sanction not imposed on other similarly situated people; and “hostility” refers to criminal harassment and criminal intimidation.

[66] Other police corps in Italy include the Financial Guard (Guardia di Finanza), the Penitentiary Police, and the Forestry Corps.

[67] ECRI, Second Report on Italy. Adopted on 21 June 2001. CRI(2002)4, April 23, 2002, para. 52; ECRI, Third Report on Italy. CRI(2006)19, May 16, 2006, para. 81.

[68]Human Rights Watch interview with Fabrizio Gallotti, director, and Eduardo Marcelli, vice-questore, Office for Studies and Programs, Central Directorate for Training Institutes, Rome, July 27, 2010; Email communication with Major Gianluca Trombetti, Office for Training and Regulations, Comando generale dell’Arma dei Carabinieri, December 14, 2010. Both the National Police and the Arma dei Carabinieri include courses on human rights instruments in basic training and advanced coursework for officers. The Consiglio Superiore della Magistratura (CSM) organizes continuing professional education courses for prosecutors and judges every year. According to a list provided by the CSM, eight courses were organized over the past few years addressing human rights concerns, including the jurisprudence of the European Court of Human Rights, the protection of vulnerable groups, and human trafficking. Only one course, conducted in 2008, held a 75-minute session called “The criminal judge in a multicultural society” that covered racially-motivated violence, among other topics. Abbreviated list of CSM courses with a focus on human rights in 2010, 2009 and 2008, provided by email by Francesco Mannino, then-president of the Ninth Commission of the CSM on Internships and Professional Training, email received July 26, 2010. Subsequent email with clarifications received on July 30, 2010.

[69] Ibid.

[70] Human Rights Watch telephone interview with Francesco Polino, public prosecutor, Rome, August 1, 2010.

[71]Human Rights Watch interview with Gabriele Iuzzolino, deputy director, Legislative Office, Justice Ministry, Rome, October 28, 2010.

[72] UNAR has signed agreements with the regions of Emilia-Romagna, Liguria, Piedmont, Sicily, and Puglia, and is in the process of negotiating agreements with other regions to expand access to UNAR nationwide. To date the regional observatory on discrimination and network of information/assistance offices is operational only in Emilia-Romagna.

[73]Human Rights Watch interview with Massimiliano Monnani, director, UNAR, Rome, July 29, 2010.

[74] Ibid.