Report 62a sessione CAT, Italia

Pubblichiamo di seguito il resoconto finale (a cura di FIACAT, in inglese) della revisione periodica condotta dal Comitato ONU contro la tortura nei confronti dell’Italia. In allegato le osservazioni conclusive dello stesso Comitato ONU contro la tortura.
 
Review of Italy by CAT Summary
 
The review of Italy by CAT commenced with the opening statement by the Italian delegation, on the progresses and changes Italy has made to address the human rights situation in the country. According to the delegation, the Italian government has made profound changes to address any inhuman and degrading treatment of persons and violations of human rights. A new law has been adopted and put into force recently to criminalize torture. However, the delegation recognized there was room for improvement. According to the Italian delegation the prison population in September 2017 (57 551 detainees), while it is still over the capacity of Italian prisons, is now far from the high number of detainees in 2013 and the use of alternative measures has greatly increased. The delegation also indicated that all judicial psychiatric hospitals (OPG) had been closed by the beginning of 2017 and were replaced by REMS which are administered by regional authorities through local health care departments. Regarding the immigration issue, Italy mentioned the agreement signed with Libya to build up cooperation to tackle irregular migration and the new law decree No. 13/2017 to speed up proceedings related to international protection, which includes among other things the setting up of small repatriation centres and hotpots and the recruitment of 250 experts. Concerning the non-refoulement principle and unaccompanied minors, the delegate made it clear that the forced return of minors below 18 is strictly forbidden. Along with the initiatives to increase public awareness and to protect victims globally and domestically, Italy firmly believes that the demand for greater security does not imply restraining people’s liberty.
 
While recognising the great efforts made by the State to host an exceptional number of migrants and asylum seekers and to introduce several policy measures to fight against torture including the establishment of the National Preventive Mechanism (NPM), the Committee raised several concerns. Mr. Heller, the first rapporteur for this review, raised concerns regarding article 163 bis of Italian Criminal Code criminalising torture. It contains criteria that is not in UNCAT that set a much higher threshold for criminalization. He also brought attention to the fact that it was only a generic offence (involvement of a public official solely an aggravated circumstance) and that there should not be any statute of limitations contrarily to the current provision. Mr. Heller also stressed the lack of a national human rights institution in Italy and called upon the government to create one for the advancement of human rights issues. He also pointed out the existence of irregular migrants who are subjected to criminal sanctions when coming back to their country of origin after their expulsion. He also expressed concerns regarding the practice of collective expulsions, the excessive use of force by police forces for the identification of migrants and the situation of unaccompanied minors. Mr. Heller raised questions concerning the actual practice of the Italian Libyan agreement that, to some extent, allows Italy to ignore the human rights violations happening on the Libyan side and demanded whether the cooperation can be suspended in case of human rights violations. Finally, he mentioned the Minniti Orlando Law of 2017 diminishing the protection of the rights of asylum seekers.
 
The second rapporteur for this review, Mr. Touzé, required for more information on the actual number of detainees under the 41 bis detention regime and what kind of judicial safeguards, especially regarding renewal, appeal and control, exist for them. Then, he addressed the issue of prison overcrowding (expressing concerns about the 16% of detainees living in cells smaller than 4m2) and asked for explanations regarding the high number of pre-trial and foreign detainees. Still on the issue of detention, he also raised some points regarding the excessive use of force, the situation of vulnerable people, healthcare, the rate of suicide and isolation. He also addressed the issue of police violence and asked for more information regarding the proceeding of cases of torture, ill treatment and excessive use of force by police forces. Finally, Mr. Touzé discussed the judicial safeguards of the person placed in custody, this issue was also raised by another expert, Ms Gaer. 
Ms Belmir asked several questions regarding the possibility for detainees to lodge a complaint, the situation of vulnerable people in detention and unaccompanied minors.
 
Mr Hani asked about the legal status and whether there is a judicial control to monitor the practice of hotspots and requested Italy to provide information on the average length of stay of migrants in these centres. He also denounced the fact that the agreement with Libya was just shifting the issue of migration.
The members of the Italian delegation addressed several questions raised by the Committee in the second part of the review. With regard to the statute of limitations and the higher threshold imposed by the article criminalizing torture, they explained that the article actually expanded the range of acts that can be condemned since it wasn’t necessary to have multiple acts to be qualified as torture and that the maximum statute of limitations for the crime of torture is of 15 years which could be increased to 18 years. Nevertheless, according to the Committee against torture, acts of torture shouldn't be subjected to statute of limitations. 
 
Regarding the Italian Libyan Agreement, he stressed that it is not an international agreement. Rather, it is a declaration of intent without any specific obligation. It is difficult for Italy to require the Libyan part to follow specific instructions or procedures. However, the initiatives that the EU took to support Libya made 2/3 of the financial allocation to Libya focus on strengthening the human rights situation. The project will also be implemented hand in hand with UNHCR and IOM and the political situation in Libya will be reassessed at each step with a possibility to suspend the project if needed. The reception centres that the European Court of Human Rights ruled against have been replaced by hotspots (with a capacity of over 2300 places) and there are no more floating hotspot. Hotspots are first reception centres in which roughly 25% of identification took place. Mr. Pisani underscored that migrants are only photo identified and registered in the hotspot, which is an open facility. Regarding the expulsion and return of migrants and the respect of the principle of non-refoulement, the delegation recognised that the various rulings on this topic have had positive effects on the Italian legislation. The Italian delegation explained that, first of all, migrants and asylums seekers do not stay long in the hotspots and these are not detention centres since they are free to leave these facilities. Secondly, according to the Italian delegation, they respect the non-refoulement principle, no migrants are returned to countries seen to be at risk contrarily to the practice of other European countries.

They investigate the migrants on a case by case basis and the collective aspect of this procedure only regards the use of a charter plane for the repatriation. Regarding the administrative detention before repatriation, they explained that is was only used against dangerous individuals and as a last resort measure. It only applied to 7% of foreigners who had an expulsion order against them in 2016 and 9% in 2017. Italy claims that the reduction in the number of arrivals by sea is due not only to its agreement with Libya, but can be mainly attributed to the “stability in the country, and the possibility for migrants to find a job in Libya” even though reports contradict this thesis. Still on the issue of migration, the delegation mentioned the situation of unaccompanied minors, 8486 in 2017, explaining that they are accommodated in facilities specifically meant for them and that the age assessment was done using a multidisciplinary approach. If the minor wish to apply for asylum an appointed guardian would launch the application on his/her behalf. 
 
The Italian delegation, regarding the 41bis regime, stated that this specific regime was only for the purpose of keeping these individuals separated from other detainees and people outside and that the new regulation of October 2017 now governs the application of this regime and that its renewal is not automatic but that the application is regularly reassessed. The delegation also recognises that the penitentiary situation is still worrisome:12000 detainees are living in space between 3 and 4 m2 and the current occupancy rate of prison is of 120% taking into account the actual number of places available. Regarding, the rate of pre-trail detainees, the delegation explained that only 17% of detainees have not been convicted at all, other have already been convicted in 1st or 2nd instance. The delegation explained that there must be at least 5 days between isolation measures. On the issue of police violence, the delegation provided information on the prosecution and conviction on the case of Cucchi and the events in Florence. With regard to human trafficking, if there is any concern about their physical safety for migrants who were trafficked to Italy, the foreigner is granted a residence permit on grounds of security. Victims of trafficking are helped in terms of education, integration and legal assistance. The National plan to combat against trafficking was adopted and an anti-trafficking coordination unit was created in 2016.
 
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