Much of the debate over torture in the past few years has implied, either implicitly or explicitly, that Italy is a Country “torture-free”. In general, these commentaries have failed to include any references to past cases of torture happened in Italy. With the sentences of the European Court of Human Rights Italy has been condemned for G8 events in Genoa and the Italian public opinion found that the state has practised torture. After years of delay, under the pressure of the European Court of Human Rights, the crime of torture was introduced in ordinary Italian criminal law in 2017. This article reexamines some of the basic assumptions about Italian law against the torture and discusses the implications for the bystander. When it is clear that the harm violates human rights, national and international law, as is the case with tor­ture, we might expect that citizen-bystander don’t a justification of the use of torture. And when this happens, support for reparative actions that lead to justice for victims is likely to be observed.

This essay focuses on the recent debate on re-legalizing torture in the context of the so-called “war on terrorism”. The A. tries to show the political incoherence and the theoretical impossibility of such an aim. The paper moves from an articulate defini­tion of torture, which considers it as the cruel and extreme expression of the «inten­tion of harming» in a structured system. It takes into account the different moral and political arguments supporting torture inside democratic States today. Through this argumentation method, it stresses their incompatibility with fundamental principles of constitutional democracy and, with regard to both the victims and the principle of justice, it defends the basic need of its adequate condemnation expressed by demo­cratic societies and public opinion.

The approval by the Italian parliament of a law on torture occurred at the end of a very suffered debate, more than thirty years after the signing of the UN Convention against Torture. The difficult search for an agreement in parliament is reflected in the text approved in July 2017, which differs in many respects from the definition provided by the Convention. From the beginning the parliament sought a “weak­ened” formulation of the offence of torture, due to the influence exerted by the heads of police forces, traditionally averse to the introduction of a specific offence in the Penal Code, and so critiques and institutional suggestions, of a high national and international level, didn’t reached the parliament during the discussion.

On July 18, 2017 Italy’s new legislation making torture a crime entered into effect, long time after the ratification of CAT. This essay deals with articles 613-bis and 613-ter introduced into the Italian criminal code, pointing out the weakness and the risk of failure of the new legal instruments against torture. Criticism mostly focuses on being torture an offence committed by any civilian and not necessarily by public officers, on the lack of reference to the purpose of the violent or threatening acts, on the complication of criminal prosecution of the accused perpetrators due to the use of ambiguous words such as “verifiable” psychological trauma, “repeatedly commit­ted” violent acts, “severe” threats. This law should be an important step forwards, but its failings show how blunt a weapon it risks to be.

Italian legislation making torture a specific crime has departed from the UN Con­vention definition and seems to be more in tune with the arbitrary interpretation by the ‘torture lawyers’ of the Bush administration. This law is not a reaction to the erosion of the absolute ban pursued after 9/11, even though western democracies have incessantly indulged in stealth torture, but yet another attempt to call torture by any other name. Furthermore, the law failed to comply with the ECHR bind­ing principles that the crime be no longer subjected to the statute of limitations or the sanctions be otherwise rendered ineffective. Defenders of the new legislation consider it a step forward yet they have conveniently forgotten many forms of tor­ture practiced even in Italian history (including those committed at the Genoa G8 summit in the view of the ECHR) may fall outside the law and go unpunished. This is especially true of institutional torture. However, it would appear that the law is aimed at private perpetrators and likely to overlap with other crimes that already carry adequate sanctions. Evoking judicial interpretation to fix these flaws is both naïve and mystifying, criminal statutes being subject to strict interpretation accord­ing to the principle of legality. Constitutional review, albeit constrained by narrow limits, should be attempted.

The recent introduction of a specific offence of torture in ordinary Italian criminal law includes the requirement of “verifiable psychic trauma” as evidence, certified by experts, of the torture suffered. Since there is no “torture trauma” or “torture syn­drome” in the literature, this article addresses this topic by comparing the require­ments of the law and the data of clinical and research-based studies about torture suffering, with particular attention to psychological torture. The state of the art of scientific research shows that the trauma (the psychological harm caused by a trau­matic event) is not a universal outcome. Different methods of torture produce dif­ferent effects depending on individual factors (emotional development, cognitions, values, religious beliefs, gender, etc.) and social factors (culture, political system, economy, etc.), so different people can suffer from different consequences. People can react to potentially traumatic events, such as torture, with a wide range of pos­sible ways. On the basis of this empirical evidence, we highlight the need not to fix an equivalence between “suffering” and “mental harm”, and to avoid using “mental harm” as an indicator of “suffering” caused by torture. As the Italian law disregards these indications, in conclusion, the possible consequences of the certification of a “verifiable psychic trauma” on the victim and the dangers of a re-victimization pro­cess are discussed.

Prison is a setting where violence occurs. It is necessary therefore to investigate “prison in the facts” to understand how the total and separate institution foster the genesis and the concealment of violent actions. This contribution aims to analyze the relationship between prison and torture on the basis of the ongoing talks between knowledge of the positive jurist and the sociological point of view. From this ap­proach can be moved to assess the real effectiveness of the new Italian legislation that made torture a crime as well as the correspondence of the latter to the indica­tions of the Convention Against Torture, of the European Convention of Human Rights, of the Italian Constitution. It is believed that the new legislation does not affect effectively the prevention and repression of torture, as it does not confront itself with the structural characteristics of prison system: asymmetrical interpersonal relations between custodians and guardians, isolation, removal from legal controls. This food of thought starts from the analysis of judicial cases to highlight the areas and relationships of the penitentiary penalty most exposed to the danger of inhuman and degrading treatment and torture. Our idea is to bring out from this analysis the fundamental characteristics of the crime of torture that can be profitably used in the judicial response. Along with significant elements that highlight the particular need (imprescriptibility of the crime) it is deemed necessary to complement the legislation with procedural elements (identifying agents and public officials, suspending them from the functions during the trial) crucial from a probative and procedural point of view.

Italy ratified the European Convention on Human Rights, the New York Conven­tion against Torture, the Charter of Fundamental Rights of the EU, the Lisbon Tre­aty and, last but not least, Italy adopted a Law on Torture in July 2017. But Italy has geopolitical interests that affect legislation, political agenda and rescue operations, and, especially, relations with entities that interact with our country and the EU. Fur­thermore, there are also the agreements aimed at affecting third countries’ migration flows, such as, for, instance, the bilateral agreements between Italy and Libya, the memorandum of understanding between Italy and Sudan and those between the po­lice heads of Italy and of African countries. And yet, incontrovertible facts exist such as mass returns to countries that punish illegal emigration with life imprisonment (like Eritrea), failure to rescue people at sea and murders by the Libyan coastguards, as well as prison camps in countries that signed those agreements, or places where people are still murdered, illegally detained, kidnapped and regularly tortured or where refugees are sold on slave markets. For these reasons, we must investigate the post-truth narrative of the link between the Italian and European legal systems, which prohibit those horrors, and the above-said mass returns, accompanied by fi­nancing, training and assistance to countries committing crimes. In fact, Italy was condemned by the European Court of Human Rights and criminal proceedings have been brought by the preliminary judge of Rome against those responsible in the Ita­lian Coast Guard operation room, for failure to rescue people at sea resulting in the death of many refugees. All this occurred and still occurs although Italy adopted law against torture. And, on the other hand, this means that Italy has delegated torture beyond its borders.