On September 27, 2023, Italy’s Constitutional Court declared unconstitutional a provision of the Italian Criminal Procedure Code concerning the continuation of criminal prosecution of an absent person accused of committing acts of torture. (Decision No. 192 of September 27, 2023 (in Italian).) The decision was published in Italy’s Official Gazette on October 26, 2023.
Underlying Case
The Constitutional Court declared the constitutional illegitimacy of article 420-bis, paragraph 3 of the Criminal Procedure Code (C.P.C.) in a request initiated by the preliminary hearing judge of the Ordinary Tribunal of Rome. The challenged provision provided that in criminal cases where the accused — whether free or detained — is not present at the hearing, the judge may proceed in their absence if, in addition to other situations specified in article 420-bis, the accused has been declared a fugitive or has otherwise voluntarily avoided knowledge of the pending trial, or if the accused’s state of origin or residence refuses to cooperate. (Decision, Considerations of Fact No. 1, para. 1.)
The tribunal indicated that the challenged provision would violate Italy’s constitutional obligations because it would render it impossible to even commence the legal process for ascertaining the facts of the crime committed against Giulio Regeni, an Italian citizen who was found dead in Egypt in 2016. (No. 1, para. 3.)
The requesting tribunal raised the possibility that the challenged provisions were contrary to the following provisions of the Italian Constitution: articles 2 (human rights guarantees), 3 (principle of reasonableness), 24 (right of defense), 111 (due process of law), 112 (exercise of criminal actions by the attorney general), and 117, first paragraph (legislative powers of the state vis-à-vis European and international obligations, in particular the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the convention), which was implemented in Italy through Law No. 498 of November 3, 1988). (No. 1, para. 2.)
In the underlying criminal case, the attorney general for the Tribunal of Rome had requested the indictment of four agents of the Egyptian National Security Agency for their participation in the torture and murder of Regeni. These agents had been declared untraceable in 2020. (No. 2.1, paras. 1 & 2.) Later, in 2021, the requesting tribunal ordered the criminal prosecution to proceed in the absence of the accused. (No. 2.2, para. 1.)
In 2021 the Court of Assizes of Rome declared the nullity of the indictment decree because of the accused’s absence and remanded the case to the preliminary hearing judge of the Ordinary Tribunal of Rome. (No. 2.3, para. 1.) The Court of Assizes of Rome held that there were no sufficient factual indicators to guarantee that the defendants, although aware of the proceedings, had actual knowledge of the case against them and that it was therefore impossible to conclude that they were attempting to escape the trial or had renounced the right to participate in it. Nor was there any evidence that the defendants themselves had played a role in the Egyptian authorities’ proven determination not to cooperate with the Italian judicial authorities. (No. 2.2, para. 2.) At the follow-up hearing held on April 3, 2023, the attorney general for the Tribunal of Rome raised the question of the constitutional legitimacy of article 420-bis of the C.P.C. because it did not provide for the possibility of proceeding in the absence of the accused in cases where the accused’s formal lack of knowledge of the proceedings depends on the lack of judicial assistance from the state to which the accused belongs or in which the accused resides. (No. 2.8, para. 1.) Under the applicable provisions, whenever there is no possibility of tracing the accused, a sentence not to proceed due to lack of knowledge of the pending trial must be issued, which was unacceptable in the view of the attorney general for the Tribunal of Rome. (No. 3, para. 1.)
Reasoning of the Constitutional Court
The court reasoned that Italian criminal law recognizes three hypotheses of the accused’s absence that do not trigger a dismissal of an indictment: (a) when the accused has received the notification of the hearing directly or through a specific delegate, or has expressly refused to appear or assert a legitimate impediment; (b) where the accused before the hearing has appointed a defender, so the judge considers the accused’s knowledge of the pending trial to be proven; and (c) when the accused has remained a fugitive or has in another way voluntarily removed themselves from knowledge of the pending trial, “which evokes the current image of the ‘falsely unaware,’ that is, of the one who does not know because he does not want to know, and therefore, in a certain sense, pretends to ignore.” (Considerations of Law No. 4.4.2, para. 2.)
In addition, the challenged provision states that when there is no possibility of prosecutable absence or a legitimate impediment to appear, if the accused is not present, the judge must pronounce a final ruling not to proceed due to the accused’s lack of knowledge of the pending trial. (No. 4.4.3, para. 1.)
The court also took note that torture is a crime against the person and a crime against humanity (no. 7, para. 1) and constitutes a crime according to Law No. 110 of 2017, which amended the Italian Criminal Code concerning the crime of torture and incitement of a public official to commit torture (no. 7.1.2, para. 1.) Furthermore, to avoid impunity, article 5 of the convention admits double or triple national jurisdiction over torture crimes, which must be prosecuted both by the territorial state of the committed crime and by the state of the alleged perpetrator. (No. 7.1.3, para. 1.) This discretionary option was recognized by Law No. 498, concerning a foreigner who commits abroad to the detriment of an Italian citizen an act constituting a crime qualifying as an act of torture under the convention. (No. 7.1.3, para. 2.)
The court argued that a final sentence of inadmissibility would probably entail giving the accused the equivalent of an absolution sentence or de facto immunity, which the convention and Italian law do not permit for the crimes of kidnapping, torture, and murder. (No. 9.1, para. 2.) As a result, as stated by the court, Italian constitutional law allows that, in exceptional cases, proceedings can be carried out in the absence of an accused, even if their knowledge of the pending trial is not proven, when it is certain that they have knowledge of the proceedings. (Nos. 12.1, para. 1 & 13.2, para. 1.)
Decision of the Constitutional Court
The court declared the constitutional illegitimacy of article 420-bis, paragraph 3 of the Italian Criminal Procedure Code because it did not provide that the judge may proceed with prosecuting the accused in their absence for crimes involving torture (as defined by the convention and ratified and implemented through Law No. 498) when, due to the lack of assistance from the state to which the accused belongs, it is impossible to demonstrate that the accused, although aware of the proceedings, was made aware of the pending trial, without prejudice to the accused’s rights to a new in-person trial to reexamine the merits of the case. (Holding.)
Further Developments in the Case
With this ruling, the Constitutional Court allowed the case to resume before the preliminary hearing judge of the Ordinary Tribunal of Rome. On December 4, at the end of the hearing, the judge granted a rinvio a giudizio for the defendants, meaning the case was considered sound enough to advance to trial and not be discharged in the preliminary phase.
The first hearing of the trial is scheduled for February 20, 2024, before the Court of Assizes in Rome. The defendants will face charges of conspiracy to commit aggravated bodily harm, aggravated murder, and aggravated kidnapping.
Dante Figueroa, Law Library of Congress
December 19, 2023
Sarah Bandini, Law Library Intern, contributed to this report.
Updated December 28, 2023, to provide the date the decision was published in the Official Gazette and to add the “Further Developments in the Case” section at the end of the article.
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