In decades past, major prominence has been given to the protection of human rights and the concept of human dignity. This is a long-term process, dating back to ratification of the European Convention of Human Rights in 1953. Pragmatically, the importance of human rights in the international culture developed relevance with the establishment of the International Covenant on Civil and Political Rights in 1976, and in a more concrete way with placement of a permanent court of the ECHR in Strasbourg in 1998. This solid background prompted and fostered the debate on human rights and standards of protection.
In Europe, much of the work of jurisprudence and protection is made by the Court of Strasbourg by means of case-law, legislative enforcement and interpretation. Generally, the work of the ECHR is solidly respected by signatory countries to the Convention, particularly as they still have a margin of discretion in enforcing the law. In the last two weeks, however, two distinct events in Italy recalled the importance of human rights and their protection, and also of human dignity. The two events are: the arrest of two American tourists in Rome who were accused (and guilty) of having killed the Maresciallo Carabiniere Mario Cerciello Rega; and the approval by the legislature of the so-called “Decreto Sicurezza bis” legislation.
The first event concerns the killing of an Italian policeman, stabbed by one of the two American tourists who were then arrested by the Italian police. It is not our interest here to investigate the facts surrounding the already blurry case of the homicide of Cerciello Rega. Rather we wish to speak to the fact that during the arrest, there was a photograph taken of the guilty American man being handcuffed, sitting on a chair and blindfolded. The photograph, leaked from the same police headquarters, shocked many Italian authorities and politicians — but not everyone. The “disturbing situation,” evidenced by CNN and other national news outlets in Italy, was seen differently by the Minister of the Interior, Matteo Salvini. The Minister, when asked by journalists about his concerns over the wrongful treatment of the American man during the arrest, fired back that “The only victim is the policeman.” This may be true with respect to the killing of a man — an act that can not be compared to a (mere) wrongful arrest procedure.
But Gabriel Christian Natale-Hjorth, the man under arrest by wrongful procedure, is also a victim. The condition of “victim” was brought about by the violations committed by the policemen responsible for the suspect in the police headquarters.
From a legal point of view, these people are not the only offenders. Violations also happened at the national and international level. Therefore, according to the European Convention of Human Rights, Italy as a country is an offender, as it has not been able to enforce the international obligations deriving from the Convention.
Starting from the point of view offered by domestic legislation, this wrongful act infringes Article 13 and Article 27 of the Italian Constitution.
Accordingly, Article 13 dictates that no form of detention, perquisition or restriction of personal freedom is permitted, unless differently foreseen by means of justification by the judicial authority, according to the means accepted by law. Moreover, it says that any form of moral or physical violence conducted on people under restricted liberty will be punished and is prosecutable by law.
Article 27, on the other hand, foresees the situation of the suspect, who, even if a confessed criminal, must be considered innocent until the final verdict of the judge. Any confession coming from a procedure of arrest in which the suspect is not treated as innocent may be considered misleading or fake, stemming from a situation of potential emotional confusion. With regard to domestic legislation, such procedures are recognized as an infringement of law 345/1975 of the Italian penitentiary legislation that condemns the use of moral or physical violence, recognizing it as a deprivation of personal freedom.
From the point of view of Italian Private Law, a violation can also be found with respect to Article 610, which concerns private violence. According to this provision, any person who, by means of threat or use of violence, forces others to act, say or omit in a certain way or of certain details can be punished with up to 4 years in jail.
Finally, from the point of view offered by the Italian Code of Criminal Procedure, it is possible to identify three violations, one for each article. Article 608 condemns the abuse of office by an authority toward a suspect or a detained person when the authority uses strict measures not admitted by law — such as blindfolding. Less probable, but still possible, is to consider the wrongful act as a violation of Article 613 bis: the provision concerns the crime of torture, condemning anyone who, by acting in a cruel manner, inflicts suffering of a moral or physical nature on another. From a procedural point of view, the infringement of Article 188 of the same Code (concerning the autonomy and independence in the reporting of the facts by the suspect), implies that confessions and evidence received during the procedure of arrest and evaluation would no longer be valid and usable before the courts.
With respect to Italian domestic law, these are the violations that occurred during the arrest. According to the ECHR, the same opinion is held at the international level, where Italy is recognizable as the offender of Gabriel Christian Natale-Hjorth. Please note that this is not the only violation at the international level, according to international law, but the one with respect to the ECHR which is the most blatant and significant.
The wrongful act committed on the 25th of July violates Article 3 and Article 5 of the Convention. The former prohibits torture and degrading treatment, without the admittance of any kind of derogation. There are grounds for upholding this violation, as the suspect was blindfolded and in a state of apparent confusion and suffering that could be manipulated to cause his disorientation. On the other hand, Article 5 defines the rights that an imprisoned person must be given under his status. Again here, it is stressed that any detained person must not be under conditions of torture nor suffering due to degrading and inhuman treatment. Also, this provision is clearly infringed by Italy.
These violations are real and exist a priori of the verdict of the ECHR, if interpolated. Indeed, it will be up to Gabriel and his lawyers to present before the Court the most solid hypothesis, but not until the start of the domestic proceeding.
Given all the violations listed above, it is fair to say that Gabriel Christian Natale-Hjorth is a victim, as well as a confessed criminal.
It will be interesting to see whether there will be a change of approach by the Minister of the Interior, Matteo Salvini, toward the violations coming from the domestic legislation and those deriving from international treaties. It is a matter of great interest to analyze the behavior of the Minister, who already has a troubled relationship with Europe, its institutions and obligations. Among these obligations, of course, are those regarding the importance of the protection of human rights.
Their safeguard is threatened by the second element of our analysis: the “Decreto Sicurezza bis”. This concerns standards of national safety and security, which were strongly advocated by the same Minister, and were one of the ramparts of his never-ending political campaign. The legislation has been received with complaints and relative shock, as was the case of Gabriel, the American tourist.
The decree law was approved by the Senate on the 6th of August and will now become a proper law. Until this date, it was simply a decree awaiting approval by the legislature. During the time for preparation toward approval, the proposed decree law was fiercely condemned by the political opposition, the Catholic Church and NGOs, as well as part of the citizenry in Italy. The reasons for their concern can be found in two main elements: the lack of any kind of consideration toward human rights and the treaties and courts that enforce them; and the nature of the legislation itself.
Briefly, the second criticism of the decree law lies in the conditions under which any decree law can be admitted, given its extraordinariness in the Italian legal system. In the present case, there is no evidence of urgency, nor is there a matter of security. Most interesting is that with this proposed update, the “bis” signals the importance of setting new standards of safety and security in Italy — a country that in the last year had already registered a remarkable diminishment in both migrant arrivals (which decreased by 84,3% according to the data offered by the Ministry of the Interior), and also in the number of crimes committed in the country.
The former criticism, the lack of consideration towards human rights, will be clearer as we go deeper into the “Decreto Sicurezza bis”. The legislation brings to the table 18 articles that focus mainly on the procedures of sea rescue, the acceptance of migrants, and reform of the Code of Criminal Procedure in the management of public order. The most striking articles are Article 1 and the rest of the body concerning the standards of safety and security.
In Article 1, the legislation expands the power of the Minister of the Interior, who can now decide to ban, limit or temporarily stop the entrance and transit of those ships in the territorial seas. This solution finds its justification by appealing to reasons of safety and security with which the legislation aims at stopping clandestine immigration, a situation that had already dramatically improved before this legislation. Linked to Article 1, it is also important to mention Article 2, which foresees the enforcement of fines from 150,000 to 1 million euros for captains who do not respect the dictates of the Minister of the Interior and ignore the ban on entrance and transit. This sanction foresees also the arrest of the captain if he resists, and temporary seizure of the ship that can become permanent. If it becomes permanent, the ship will become property of the State that will decide whether to use it or sell it.
On the other hand, the legislation aims at tightening the procedures of security and safety during demonstrations, making it a criminal offense for anyone to use beating objects during public demonstrations. This was a necessary measure. But the law punishes in a stricter way any act of offense against public authority. As stated by Amnesty International, what is of concern here is the power with which the public officer has been endowed when confronting people simply marching for their rights, their freedoms, etc.
In essence, Article 1 limits the possibility of sea rescues and threatens those willing to undertake them with notable economic fines. Pragmatically speaking, this limitation makes the operation of rescue, conducted primarily by NGOs, almost impossible; in other words, it has been imposed to avoid the rescue of people in life threatening conditions. Embracing this approach, Italy will, sooner or later, violate multiple treaties and conventions to which the country is a signatory. It will also violate the text of its own constitution. The restriction on the rescue of migrants violates Article 33 of the Convention of Genève, which prohibits the expulsion of a refugee (not a simple migrant) from a country, or its forced rerouting to places that can threaten the refugee’s life. (This ban does not apply if the refugee commits severe crimes or represents a threat to the community.) Moreover, Article 1 infringes Article 4, Protocol 4 of the ECHR that foresees the ban on the practice of the collective expulsion of strangers. Finally, it is worth mentioning that these violations result in a violation of the Italian constitution at Article 10, which prescribes respect for international treaties and pacts deriving from them.
This is the situation in outline. We should also discuss the management of human rights in Italy. It is quite clear that standards of the protection of human rights so common in Europe have slipped backwards in Italy.
How has that happened? Is it the fault of the supranational entities that had too weak an approach in securing the enforcement of these obligations? Not really. The cooperation between these supranational entities and their member states works well, especially in the protection of human rights. This protection is a matter of interest for the entities entrusted with the protection of those rights, which act as law-making guardians on signatory countries.
Are the two cases a consequence of the clash between nationalism and global governance? Once again, not really, despite sharing the characteristic traits in which national authorities, in an effort to confirm their supremacy over domestic matters, try to enforce their own legislation instead of the one entrusted in an international agreement. Here, it would be really too much to infer such a thing. It can be the proof of a process of change, or resistance depending on the point of view. But the reason is much more pragmatic.
Especially in the case of the American tourist, it is difficult to find the reasons behind the failure of the lack of protection for human rights and dignity, in favor of the spirit of summary justice. Please note that the same spirit feeds the willingness to expel any immigrant, or to let them die in the sea. The spirit of summary justice is a notion that does not embrace a democratic approach. It’s often accompanied by a feeling of hatred, which hides one of fear. To this, we have to add the distrust of institutions — in this case, those that regulate the standards of the protection of human rights — and also a distrust of the judiciary.
The distrust of these institutions is a feeling that rises from the bottom of civil society, which feels distant from those bodies — which are wrongly felt as unable to protect the proper national interest because, well, they are after all, supranational entities. The feeling of detachment and of exclusion fosters the sentiment of summary justice, because “if no one will intervene on that, I’ll do their job in my own way.” The same applies to distrust of the judiciary branch. In addition, in Italy the judiciary is seen as a caste, a position for which only professors, academics and specialists of the law and topic are allowed, excluding most citizens from the conversation. Judges in Italy are seen as people who manipulate law and judge on the basis of their own interests, most of the time in opposition to the appointed government.
At the moment, most Italian citizens have put their faith in the executive branch of the country, more specifically in the very charismatic Minister of the Interior. As we recognize its merits, it is worth analyzing briefly the last controversy. It is difficult to believe in the evangelical message delivered by the Minister, a la Trump, when we consider that the legislation for which he insisted vigorously prohibits in most cases the rescue or any form of aid for migrants and refugees in life threatening conditions in the open sea. As the decree law was approved, he cheered by praising the Holy Mary. He has been strategic in accompanying his efforts with the symbols of the Catholic Church (the crucifix or the rosary), which he does not hesitate to present and glorify in public events and speeches. Nothing against that, but it is hardly proof of Catholic piety to let people die in the open sea. So it should be noted the disjuncture between what has been said and what has been done.
The situation is one of profound insecurity and uncertainty — the perfect scene for mass manipulation with the promise of better times, with a better nation, made of Italians. This formulation may sound familiar to some of you.
As we hope for a quick intervention on both matters by supranational entities, the Italian condition described is a bitter acknowledgement. Not only because the resistance and the whims of the country alter and weaken the networks and the growth of the standards of protection, but more specifically because Italy is a peculiar country with an atypical historical tradition. It may be time for citizens to remember Italian history and tradition — recalling that we were the “migrants” in North and South America some decades ago, and that certain behaviors should never ever exist in Italy again.
Italy is called to clean up its house, and to leave behind historical relics that no longer belong to the times in which we live.