Dear Minister Frattini,
We are writing in relation to Italy's election to the United Nations Human Rights Council. Human Rights Watch looks forward to working with Italy at the council to further the human rights of people around the world.
In keeping with the UN General Assembly resolution 60/251, which established the Human Rights Council, council members are to "uphold the highest standards in the promotion and protection of human rights," and "fully cooperate with the Council."
We are writing to urge your government to take several important steps to live up to these standards and the pledges Italy made following its Universal Periodic Review in February 2010 and in advance of the Human Rights Council elections.
Racism, Xenophobia and Violence against Migrants, Roma and Sinti
We welcome Italy's attention to racism, racial discrimination, xenophobia and related forms of intolerance in its voluntary commitments to the Human Rights Council. In February 2011, your government reiterated its pledge, made last year during Italy's universal periodic review, to update its national plan of action against racism. We urge you to ensure swift progress in meeting that important commitment.
Racism and xenophobia towards migrants, Roma and Sinti (many of whom are Italian citizens), characterized by violence as well as offensive political discourse, are a serious problem in Italy.
Recent incidents have included mob violence against African seasonal migrant workers in Calabria in January 2010 and against Roma in Naples in May 2008, and mob attacks on Romanians in Rome in November 2007 and February 2009.
Migrants and Italians of foreign descent are vulnerable to individual attacks inspired wholly or in part by racist animus. An Italian of Burkina Faso descent was bludgeoned to death after a petty theft in Milan in September 2008, an Italian of Eritrean descent was assaulted in Naples in March 2009 to racist shouts, a Senegalese long-time resident in Italy was insulted and accosted in a market in Rome in February 2009, a young pregnant Roma was kicked in a market in Turin in June 2010.
In a country that has seen a dramatic increase in immigration, particularly over the past ten years, political discourse and policies that link immigrants and Roma and Sinti to crime have helped to create and perpetuate an environment of intolerance. Since 2008, Italy has adopted "emergency" decrees to facilitate strong-handed measures against undocumented migrants and Roma and Sinti; passed legislation to make undocumented stay and entry in Italy crimes; and attempted to impose harsher penalties for crimes committed by undocumented migrants.
Italy is not living up to its international obligations with respect to preventing and prosecuting racist and xenophobic violence. In part this reflects a failure to identify racist and xenophobic violence as a serious issue. Public authorities tend to minimize the extent of racist violence in Italy, and the racist or xenophobic dimension of attacks is often minimized or excluded.
The most important instrument in Italian criminal law to combat hate crimes-the 1993 penalty enhancement scheme for perpetrators of crimes aggravated by racism-has not lived up to its promise. The restrictive wording of the statute, contained in the Legge Mancino, which speaks of racist or hate "purpose" rather than "motivation," and its failure to acknowledge explicitly the possibility of mixed motives, have given rise to narrow interpretations by the courts and limited applicability in practice. Crimes that may have had a bias motivation are frequently not registered, investigated or prosecuted as such.
Systematic collection of data on racist and xenophobic violence, and hate crimes generally, is critical to analysing trends and ensuring an appropriate response. Yet data collection in this area is partial and lacks transparency. Authorities point to low numbers of official complaints and prosecutions for racially-aggravated violence to argue that such violence is rare, without factoring in underreporting and failure by law enforcement and the judiciary to correctly identify such violence. Because racist and xenophobic violence is not considered a pressing issue, there is no systematic specialized training for law enforcement personnel and prosecutors.
We acknowledge and welcome the creation in September 2010 of the Observatory for Protection Against Discrimination (Osservatorio per la Sicurezza contro gli atti discriminatori, OSCAD) with a mandate to compile and monitor progress on reports of bias crimes. But in our assessment, further steps should also be taken to improve the centralized data base for processing crime reports as well as the statistical unit of the Ministry of Justice.
We urge the Italian government to:
- Forcefully and consistently challenge all racist and xenophobic statements, especially by public and elected officials, and make clear that racist discourse has no place in Italian society;
- Ensure that attacks on migrants, Roma and other ethnic minorities are promptly investigated by the police and those responsible are brought to justice;
- Repeal the provision of Law 94 of 2009 that criminalizes irregular entry and stay in Italy;
- Reform criminal law to allow for mixed motives and the application of the aggravating circumstance of racist or xenophobic sentiment in cases where the violence was committed "in whole or in part" due to bias;
- Ensure that the centralized data collection system for law enforcement agencies is organized to record all suspected hate crimes, disaggregated by crime and victim group, and periodically publish such data;
- Improve data collection on preliminary investigations, pending trials, verdicts, and sentences for crimes aggravated by bias, disaggregated by crime and victim group, and periodically publish such data, and;
- Ensure obligatory training for law enforcement personnel and public prosecutors on detecting, responding to and investigating crimes motivated wholly or in part by racial, ethnic or xenophobic bias.
Discrimination based on sexual orientation and gender identity
Italy's omission of any voluntary commitment to the Human Rights Council to tackle discrimination in Italy against gay, lesbian, bisexual and transgender people (LGBT) is unfortunate. Discrimination and violence on grounds of sexual orientation and gender identity remain serious problems in Italy, and there are gaps in national anti-discrimination legislation and criminal law. The National Office against Racial Discrimination does significant work to address discrimination against LGBT people in Italy, despite lacking a specific mandate to do so.
National anti-discrimination legislation adheres to a hierarchy of grounds by which sexual orientation and gender identity are afforded less protection than other protected categories. While LGB persons are protected against discrimination in employment, national law does not explicitly protect them from discrimination in other spheres, such as access to goods and services, including housing.
Italy does not grant same-sex couples equal access to marriage, nor does it recognize same-sex civil unions. In the European Union, five member states (the Netherlands, Belgium, Spain, Portugal and Sweden) recognize same-sex marriages, while 11 member states allow same-sex couples to register their relationships (Austria, the Czech Republic, Denmark, Finland, France, Germany, Hungary, Ireland, Luxembourg, Slovenia and the United Kingdom). In November 2010, the European Court of Human Rights affirmed that the stable relationship of a cohabitating same-sex couple falls within the notion of "family life," as protected in article 8 of the European Convention of Human Rights.
Incitement to hatred, violence or discrimination on the grounds of sexual orientation and gender identity are not specific criminal offenses under Italian law. The statute providing for enhanced penalties for crimes motivated by bias does not include sexual orientation and gender identity as protected characteristics. A bill to reform the statute was defeated in October 2009, and a new bill presented in May was strongly contested by members of the majority in Parliament, with further debate postponed pending an opinion about its conformity with the Italian constitution. Italian LGBT rights groups have reported numerous episodes of violence against LGBT people over the past several years.
We urge the Italian government to support legislative efforts to provide explicit protection against discrimination based on sexual orientation and gender identity. Protection should be extended to all spheres, and same-sex couples should be accorded equal access to marriage. Criminal law providing for enhanced penalties for hate crimes should be reformed to include crimes motivated wholly or in part by hostility based on sexual orientation and/or gender identity.
Returns to Risk of Torture and Use of Diplomatic Assurances
We welcome Italy's voluntary commitment to the Human Rights Council ensure that the fight against terrorism is grounded in the respect for human rights and the rule of law. To live up to this pledge, Italy must end counterterrorism policies that undermine the international prohibition on torture and refoulement.
In recent years, Italy has pursued a policy of national security expulsions without regard for its international human rights obligations. The government has indicated that it considers expulsion to be a flexible and effective preventive tool in cases where an individual identified as a security risk cannot be prosecuted.
A 2005 law, adopted following the terrorist attacks in London in July of that year, explicitly denies the right to a suspensive appeal to those subjected to expulsion on national security grounds. Law 155 of 31 July 2005 (known as the "Pisanu Law" for then-Interior Minister Giuseppe Pisanu) gives the Interior Minister and, upon delegation, prefects (the chief administrative representative of the central government at the provincial level) the authority to order an immediate expulsion when there are "valid reasons to believe that [the individual's] stay on national territory could in some way facilitate terrorist organizations or activities, including international ones." The appeal against an expulsion order under the Pisanu Law does not have suspensive effect even where fears of torture or other abuse on return are raised.
In May 2007, the UN Committee against Torture expressed its concerns "at the immediate enforcement of these expulsion orders, without any judicial review, and...that this expulsion procedure lacks effective protection against refoulement." Council of Europe Commissioner for Human Rights Thomas Hammarberg also expressed his concerns over such expulsions in 2008 and again in 2009.
The lack of an effective domestic remedy has led to numerous complaints against Italy to the European Court of Human Rights. The Court has made binding orders for interim measures in over 29 instances against Italy to suspend forced returns in the period between 2003 and 2008. Italy has shown contempt for the European system of human rights protection by ignoring on three occasions binding requests from the European Court of Human Rights to stay expulsions. Tunisians Essid Sami Ben Khemais and Mourad Trabelsi were expelled to their country of origin in June and December 2008, respectively, and Ali Ben Sassi Toumi was expelled in August 2009. The European Court ruled in all three cases that Italy had violated both article 3 (protection against torture) and article 34 (ensuring the effective right of application to the Court for remedy).
Italy's repeated attempts to return individuals to Tunisia demonstrate a disturbing willingness to undermine the global ban on torture. In at least eleven cases the Italian government has sought and obtained diplomatic assurances against torture and ill-treatment from Tunisian authorities. In the seminal case of Saadi v. Italy at the European Court of Human Rights, the Italian government argued that in national security cases, the risk that a person will be subject to cruel, inhuman or degrading treatment or punishment should be balanced against the risk to national security that the person is alleged to pose. The Grand Chamber of the Court rejected this argument and reaffirmed in its February 2008 decision the absolute prohibition on returns to risk of torture and ill-treatment. The Court has consistently rejected diplomatic assurances from Tunisia as insufficient to obviate the risk to returnees.
Italy has also yet to ratify the Optional Protocol to the Convention against Torture despite repeated pledges to do so. Similarly, no steps have been taken to incorporate into national law, as recommended by the Committee against Torture, the crime of torture corresponding to the definition of torture in article 1 of the Convention against Torture.
We urge the Italian government to:
- Amend Law 155 of 2005 to provide an automatic in-country appeal against expulsion orders where the individual alleges a risk of torture or ill-treatment;
- Respect all binding interim measures issued by the European Court of Human Rights;
- Repudiate the use of diplomatic assurances against torture and ill-treatment as a means of removing foreign terrorism suspects at risk of such treatment on return;
- Ratify the Optional Protocol to the Convention against Torture; and
- Incorporate into national law the crime of torture in full conformity with the Convention against Torture.
Immigration and Asylum Policy
We were disappointed to see no specific voluntary pledges to the Human Rights Council in relation to improving Italy's record on respect for migrants' rights and access to a fair asylum procedure.
Italy has aided in the rescue at sea of numerous boats of migrants and asylum seekers in the Mediterranean in recent months, and over 42,000 people reached Italian shores by boat from North Africa in the first five months of the year.
But its 2009 policy of interdicting at sea and summary return of boat migrants (known as "push-backs") to Libya violated human rights and refugee law. As far as we are aware, Italy has not resumed such push-backs at sea since 2009, but it has yet to repudiate this approach.
Italy issued temporary protection visas to many Tunisians fleeing their country who arrived in Italy between January and early April 2011. Under a new agreement with Tunisia, all Tunisians arriving in Italy after April 6 are subject to detention and deportation. Civil society organizations have expressed concerns about conditions of detention in some migrant detention centers in Italy. It remains unclear whether Tunisians being sent back are given individual risk assessments, a requirement under human rights law, which prohibits collective expulsions.
We urge the Italian government to:
- Ensure continued access to procedures for applying for asylum and subsidiary protection in Italy;
- Intensify rescue operations in the Mediterranean Sea, including by treating all boats containing migrants as presumptively in need of assistance;
- Publicly pledge to refrain from any resumption of pushbacks at sea, and honor that pledge; and
- Ensure that conditions for migrants in detention conform to human rights standards, and that those deported to their countries of origin or third countries are given an individual risk assessment and have the right to challenge their removal on human rights grounds before removal.
Independent National Human Rights Institution
We urge you to act swiftly to create an independent national human rights institution in accordance with the Paris Principles. Italy has repeatedly pledged to do so, most recently in its voluntary commitments to the Human Rights Council. We understand that the government tabled draft legislation in the Senate in May 2011, and that this proposal is currently under examination in the Constitutional Affairs Commission.
We urge the Italian government to ensure the final text of the legislation establishing an independent national human rights institution conforms to the Paris Principles and takes into account the views of civil society organizations.
Cooperation with Special Procedures of the Human Rights Council
While Italy has extended a standing invitation to all UN special procedures, it currently has a pending request from the special rapporteur on freedom of expression for a country visit (submitted nearly two years ago, in September 2009), and has yet to agree on dates for country visits by the international expert on human rights and extreme poverty and the special rapporteur on contemporary forms of slavery. According to GA resolution 60/251, members of the UN Human Rights Council "shall fully cooperate with the Council."
On that basis, we call on the Italian government to respond without delay to the request for a country visit by the special rapporteur on freedom of expression, and arrange as soon as possible the other pending visits.
We look forward to Italy's timely fulfillment of the voluntary commitments the government articulated ahead of the council election. We welcome the opportunity to continue a constructive dialogue with your government on ensuring respect for human rights in Italy.
Europe and Central Asia Division
Julie de Rivero
H.E. Cesare Maria Ragaglini, Permanent Representative of Italy to the United Nations
H.E. Laura Mirachian, Permanent Representative of Italy to the United Nations and Other Organizations in Geneva