A Explanatory memorandum
by Sir Roger Gale, rapporteur
1 Introduction
1. Italy is located in southern
Europe and its peninsula and islands extend into the heart of the Mediterranean
Sea. With a total area of around 300 000 km², the country has land
borders with Austria, France, the Holy See, San Marino, Slovenia
and Switzerland. Italy has around 60.7 million inhabitants, about
80% of which are Catholic Christians.
2. Inheriting the legacy of the Roman Empire and Renaissance,
Italy became a unified nation-State in 1861 under King Victor Emmanuel
II, when the Kingdom of Italy was founded.
Note In
1922, the parliamentary government was replaced by a fascist dictatorship
under Benito Mussolini, which lasted for two decades until Italy's
defeat in the Second World War after a two-year civil war. Following
liberation, the Italian Republic was established in 1946 by a popular
referendum that abolished the monarchy and reinstated democracy.
3. The country plays a prominent role in regional and global
politics. Italy is a founding member of the Council of Europe and
of the European Economic Community, later transformed into the European
Union; it joined the Schengen Area in 1997 and the Eurozone in 1999.
Italy adhered to the United Nations in 1955 and is a founding member
of the North Atlantic Treaty Organization (NATO), the Organisation
for Economic Co-operation and Development (OECD), the Organization
for Security and Co-operation in Europe (OSCE), the World Trade
Organization (WTO) and the Union for the Mediterranean.
4. Italy is the third largest economy in the Eurozone, the eighth
largest in the world and among the leaders in world trade and exports.
Note The
economic and sovereign debt crisis did not spare the country and
the Italian economy entered into a major recession in 2008, and
again in 2011. Between 2007 and 2013, gross domestic product (GDP)
declined by around 9%.
Note Unemployment reached 13% in 2014,
with youth unemployment reaching over 43.5%.
Note Italy's sovereign debt increased to
become the third largest in the world
Note and
the public debt–GDP ratio increased from 100% in 2007 to 131.8%
(i.e. more than 2.2 trillion euros) in 2018.
Note In 2011, debt interest rates surged
and Italy faced a government bond declassification by financial
rating agencies; the European Central Bank (ECB) had to intervene
to avoid a major crisis of the Eurozone.
Note Banking
system problems amplified the economic contraction. The crisis also
highlighted the country's underlying structural weaknesses
Note and increased regional
disparities and the characteristic North-South divide of the Italian economy.
Note Deep cuts in social spending
led to great inequalities and increased poverty and triggered a number
of anti-austerity protests between 2012 and 2014. In 2017, almost
15.6% of Italians lived in relative poverty and 8.4% in absolute
poverty.
Note In 2017, one in three children in
Italy was considered at risk of poverty or social exclusion.
Note
5. Under pressure from the financial markets, the European Union
and the International Monetary Fund, the Italian Parliament adopted
in 2011 two austerity packages worth more than 90 billion euros
in savings
Note and
introduced the principle of balanced budget in the Constitution.
Note Italy also adopted
a number of structural economic reforms.
Note According to
the OECD, Italy's economy is slowly recovering, with a projected
growth of GDP by 1% in 2017 and 0.8% in 2018.
Note Unemployment has dropped but remains
high and the economy is still running well below its potential,
due to the structural weaknesses and the legacy of the crisis. In
September 2018, a coalition government was formed after the 2018
elections (see below) and proposed a draft budget reflecting (partially)
the two coalition parties’ election campaign promises, including
tax cuts, a universal basic income and pension changes. The draft
budget submitted by the Italian authorities to the European Commission
included a deficit of 2.4% of GDP in 2019 (instead of the 0,8% previously
foreseen), which the authorities presented as an anticyclical economic
boost to tackle the public debt of 130% GDP, twice above the limit
fixed by the European Commission (60%). As a consequence, the European
Commission rejected this proposal on 23 October 2018 and asked the
Italian authorities to present a new document within three weeks. Following
the agreement reached by the Italian Government and the European
Commission, including the limitation of the budgetary deficit to
2.04% of the PIB, the 2019 budget was adopted on 29 December 2018
by the Italian Parliament.
6. At the same time, Italy remains heavily affected by the ongoing
refugee and migration crisis in Europe. Due to the country's geographical
location and to the gradual closure of other migratory routes to
the European Union, the central Mediterranean route has again become
the main entry point for refugees and migrants to Europe.
Note
7. Italy has a special relation with the Holy See,
Note which is sovereign
over Vatican City. Bilateral relations, which were complex and even
hostile in the past, were normalised with the ratification of the
Lateran Pacts in 1929.
Note In
1947, they were incorporated into the Italian Constitution, which
stipulates that “[t]he [Italian] State and the Catholic Church are
independent and sovereign, each within its own sphere” (Article
7). In 1984, an agreement was signed between Italy and the Holy
See, revising the Lateran Concordat. This agreement removed the
status of Roman Catholicism as the sole State religion in Italy
and ended direct State financing of the Church.
Note In 2012, following an investigation
by the European Commission into alleged illegal State aid, Italy
amended its legislation to remove some of the Church's historic
property tax exemptions in order to comply with EU law.
Note Although the power
of the Church has decreased, Catholicism remains the predominant
religion in Italy and the Church and the Pope still enjoy considerable
societal and political influence.
Note
8. Since its accession to the Council of Europe, Italy has ratified
131 Council of Europe treaties and signed 48 additional treaties
without ratification.
Note In
February 2017, Italy ratified the Council of Europe Convention on the
Prevention of Terrorism (CETS No. 196), its additional protocol
(CETS No. 217) and the Council of Europe Convention on Money Laundering,
Search, Seizure and Confiscation of the Proceeds from Crime and
on the Financing of Terrorism (CETS No. 198). On 1 August
2018, it ratified the Protocol amending the European Landscape Convention
(CETS No. 219).
9. A number of important treaties still await ratification by
Italy:
- in Resolution 1953 (2013), the AssemblyNote called
on Italy to ratify the European Charter for Regional or Minority
Languages (ETS No. 148) and Protocol No. 12 to the European Convention
on Human Rights (ETS No. 177). The authorities explained that shortly
before signing the European Charter for Regional or Minority Languages,
Italy had drafted in 1999 Law No. 482 to transpose the Charter’s
principles into the Italian legal system. Additionally, Italy has
joined the Council of Europe’s Framework Convention for the Protection
of National Minorities (ETS No. 157), signed in 1995 and ratified
in 1997.Note The Framework
Convention and the 1999 Law are currently the main national legislative
yardsticks for the protection of linguistic minorities, also in
terms of implementation;Note
- at the time of writing, no additional information is available
on a possible ratification of the European Convention on Nationality
(ETS No. 166);
- concerning the ratification of Protocols Nos. 15 and 16
to the European Convention on Human Rights (CETS Nos. 213 and 214),
a bill was recently submitted to the parliament for ratification.
10. This periodic report was drafted in line with
Resolution 2018 (2014) on the progress of the Assembly's monitoring procedure
(October 2013-September 2014) and the explanatory memorandum approved
by the committee on 17 March 2015. It is based on the most recent
findings of the Council of Europe monitoring mechanisms, the reports
of the Assembly and the Council of Europe Commissioner for Human
Rights and, when relevant, reports prepared by other international
and civil society organisations. I would like to thank the authorities
and the members of the Italian delegation to the Parliamentary Assembly
who provided, in November 2018, extensive comments on my preliminary
draft report.
Note
11. This report is not intended to be an exhaustive review but
aims to provide an analysis of the main developments in the country
with regard to Council of Europe standards and obligations. The
rapporteur has focussed on major challenges faced by Italy in the
field of the functioning of its democratic institutions and administration
of justice as well as human rights issues related to the migration
crisis.
2 Democracy
2.1 Constitutional and electoral system
12. Italy is a parliamentary Republic
with power divided among the executive, the legislative and judicial branches.
The current Italian Constitution was drafted in the aftermath of
the Second World War with the aim of preventing any resurgence of
dictatorship.
Note To
that extent, it established a constitutional system with a weak executive
that is politically accountable to a strong bicameral parliament.
13. The President of the Republic is the Head of State. He is
elected jointly by the two houses of the parliament and serves for
a seven-year term of office. The President represents national unity
and is the guarantor of the Constitution. Separate from all branches,
he ensures the balancing of powers, and has himself the power to
dissolve the parliament.
Note He
appoints the ministers proposed by the Prime Minister, nominates for
lifetime a limited number of non-elected Senators and presides over
the High Council of the Judiciary and, as Commander-in-Chief of
the armed forces, over the Supreme Council of Defence. The President
has also other formal and ceremonial duties. The current President
is Sergio Mattarella, who succeeded Giorgio Napolitano in January
2015.
Note
14. Executive power is exercised collectively by the Council of
Ministers. The government is led by the Prime Minister, whose official
title is President of the Council of Ministers. The Prime Minister
and, on his proposal, the other ministers are appointed by the President
of the Republic but they must be endorsed by, and have the confidence
of, both Houses of Parliament.
Note Either house can
independently oust the government through a vote of no-confidence.
The Prime Minister conducts and holds responsibility for the general
government policy. Paolo Gentiloni was appointed in December 2016
Prime Minister in a caretaker capacity following the defeat of the
ruling coalition in the general elections on 4 March 2018; Giuseppe
Conte was then designated as Prime minister and took the oath of
office in June 2018.
15. Legislative power is vested in the parliament, which consists
of the Chamber of Deputies, with 630 nationally elected members,
and the Senate of the Republic, with 315 regionally elected members.
The two houses are elected simultaneously for five-year terms by
direct and universal suffrage. The parliament guides the action
of the government and exercises parliamentary control over it.
Note
16. The Italian Parliament is characterised by a system of “perfect
bicameralism”: the two houses have equal powers and perform identical
functions. The choice for a strong Senate was made to guarantee
an adequate representation of conflicting regional interests, while
reducing the risk of a too powerful executive or Chamber of Deputies.
A peculiarity of the Senate is that some Senators (currently five)
serve for life, either appointed or
ex
officio.
Note
17. This duplication of the functions of the two houses has drawn
considerable criticism, however, as it caused delays with both houses
having the right to veto bills and thereby hindering the implementation
of a number of much needed and wide-ranging reforms. In addition,
successive governments have frequently made use of their power to
adopt decrees to avoid overly lengthy debates in the two houses,
which can last for up to several years,
Note distorting
the parliamentary law-making competence.
Note The authorities however pointed
out that, in the 16th Parliament, 70 % of the bills initiated by
the parliament, 85% of the bills initiated by the government, and
88% of Decree-Laws (adopted in case of necessity and urgency) have
been approved after a single reading in each House. Since 2015,
the number of Decree-Laws issued under conditions of urgency has
diminished (from 25 in 2013, to 13 from 1 January 2017 to 22 March
2018). For the authorities, this trend reversal may result from
Constitutional Court judgment No. 32 of 2014,
Note and from
statements made by Presidents of the Republic Mr Napolitano and
Mr Mattarella in 2013 and 2015 respectively on this matter.
18. Following the Second World War, Italy established a proportional
electoral system. This was replaced in the early 1990s by a mixed
system with different electoral arrangements for the two houses.
A subsequent reform in 2005 introduced a complex system that favoured
small parties and encouraged larger ones to form coalitions.
Note However, it also led to different
majorities in the two houses and thus hung parliaments. To guarantee
a government majority in the Chamber of Deputies, a majority bonus
was granted to the party or coalition that received the most votes
in the national proportional elections.
Note In October 2017, the
Parliament adopted a new electoral law which introduced a mixed
system of first-past-the-post and proportional representation in
a single ballot (see below).
19. On 28 December 2017, President Mattarella dissolved the parliament
and called for general elections on 4 March 2018. The centre-right
coalition of Forza Italia of former Prime Minister Silvio Berlusconi,
Note Lega
Note and radical
right party Fratelli d’Italia narrowly won the elections, with the
Five Star movement led by Luigi Di Maio, which ran alone in these
elections, coming in second. However, the Five Star Movement emerged
as the largest single political force in Italy. Within the centre-right
coalition, Lega overtook Forza Italia as the largest party, which
many commentators saw as a clear defeat for former Prime Minister
Berlusconi.
Note The main loser of this election was
the centre-left coalition led by former Prime Minister Matteo Renzi
which lost two thirds of its seats in the Chamber of Deputies and
half its mandates in the Senate. However, none of the parties won an
outright majority, creating another hung parliament.
20. Following negotiations between the partners of the coalition,
Giuseppe Conte, an academic and novice in politics, was proposed
as Prime Minister on 21 May 2018. The President of the Republic
Sergio Mattarella however blocked the formation of a cabinet that
included Paolo Savona as Finance Minister because of Mr Savona’s
Eurosceptic position. The President argued that this nomination
could create uncertainty in the Italian economy and could eventually
provoke Italy’s exit from the Eurozone. On 31 May 2018, an agreement was
reached by the coalition partners to appoint Giovanni Tria as Minister
of Economy, which led, on 1 June 2018,
to the formation of the government led by Prime minister Giuseppe
Conte and the appointment of the leader of the Lega, Matteo Salvini,
appointed as Minister of the Interior, and the leader of the Five
Star Movement, Luigi Di Maio, appointed Minister for Labour and
Economic Development, as Deputy Prime Ministers.
Note
21. During the June 2018 local elections, the Lega, then in coalition
with Forza Italia and Fratelli d’Italia, confirmed its popularity
and won the municipal elections in strongholds of the centre-left
Democratic Party in Tuscany (Siena, Pisa and Massa).
Note The Five Star Movement won in Imola
(Emilia-Romagna) and Avellino (Campania).
2.2 Instability of the political system
22. The consequence of the design
of the Italian Republic's constitutional and electoral systems described above
is the notorious instability of the political system and its institutions,
which has haunted Italian politics for decades. In the 71 years
since the adoption of the new Constitution, there have been 42 consecutive premierships
and 64 different governments, each one lasting for a little more
than a year on average. Since the general elections in 2013, there
have been three different Prime Ministers.
Note The country has
often been portrayed as being “ungovernable”.
Note
23. As a side effect of Italian bicameralism, governments often
resort to confidence votes to cut short lengthy debates and to avoid
parliamentary vetoes on important reforms.
Note Conversely, governments
have been regularly forced to resign after losing no-confidence
votes in either one of the two Houses.
Note While
it is common that the lower House has the right to introduce no-confidence
motions, only in Italy can both Houses do so. This is widely considered
as a flaw of the Italian parliamentary system as it increases the
risk of government instability.
Note The authorities
pointed out, however, that, in the history of the Republican parliaments,
only two governments have resigned as a result of a parliamentary
debate that began with a communication of the Prime Minister and
ended with a vote of no confidence: the first Prodi government (1998)
and the second Prodi government (2008).
Note Moreover,
Italy has a fragmented party system with regularly alternating majorities, which
increases the potential for government instability.
Note
24. The political system has been weakened by a number of political
crises. The Italian Republic's political landscape, long dominated
by Christian Democracy,
Note underwent
a seismic shift in the early 1990s, when the
mani
pulite (“clean hands”) operation exposed endemic corruption
at the highest levels of politics and business, known as the so-called
tangentopoli scandals. These corruption
scandals implicated all the main political parties in illegal party
financing and prompted a major political crisis which led to the
breakdown of the system of
partitocrazia.
Note Subsequently,
a bipolar party system between alternating centre-right and centre-left coalitions
emerged. The new political system was dominated by media tycoon
Berlusconi, who became mired in countless scandals, corruption allegations
and a tax fraud conviction,
Note which further
eroded the public trust in the political elites. The authorities
objected to this analysis, explaining that despite frequent changes
in government, the Italian political system has proved itself to
be stable: during the so-called “First Republic”, despite frequent
government reshuffles or changes, the political class itself maintained
a high degree of continuity, since all governments had a Christian
Democratic majority. During the so-called “Second Republic”, with
the exception of the 11th and 12th parliaments,
Note all
other governments were headed by the coalition that won the elections,
usually alternating between the two main blocs.
Note
2.3 Constitutional and electoral reform
25. An attempt to radically reform
the Constitution, by increasing the role of the Prime Minister and
reducing the powers of the Senate and the President, had been blocked
in a referendum in 2006.
Note Several previous initiatives
to reform the Italian political system had equally failed.
Note In
2012, an amendment to the Italian Constitution requiring balanced
budgets entered into force, to comply with the Fiscal Compact chapter
of the EU Treaty on Stability, Coordination and Governance in the
Economic and Monetary Union.
26. Matteo Renzi, who in February 2014 became the youngest Prime
Minister in Italian history, proposed several far-reaching changes
to the political system. These included a major constitutional and
electoral reform with the aim of ensuring greater institutional
stability of the Italian political system. The Italian Constitutional Court,
in December 2013, ruled the 2005 electoral law to be partly unconstitutional.
Note Subsequently,
in 2015, a new electoral law for the Chamber of Deputies only, was
adopted by the Italian Parliament.
Note The
law provided for an electoral system with substantial majoritarian
elements, and consisted of a first round of vote based on the proportional
representation of open party lists − corrected by a majority bonus
and a 3% election threshold − and a conditional second runoff vote.
Note However, in January
2017, the Constitutional Court found several elements of the 2015
electoral law for the Chambers of Deputies to be unconstitutional.
Note Subsequently,
in October 2017, the two houses of parliament adopted a new electoral
law,
Note which
introduced a mixed system of first-past-the-post and proportional
representation in a single ballot,
Note with a 3% threshold for
single parties and a 10% threshold for coalitions to enter the Chamber
of Deputies; a similar system was provided for the Senate. These
changes to the electoral system favour the creation of large coalition governments
through political bargaining but increase the risks of a hung parliament
or an unstable majority. It is therefore uncertain that these changes
will resolve Italy’s perennial government instability.
Note
27. The main elements of the planned constitutional reform aimed
to significantly curtail the powers of the Senate, to reduce its
membership from 315 to 100 and to change the election of senators
from a direct election system to an indirect election by representatives
of the regions. Crucially, under the proposed reforms, the government
would no longer have been required to obtain the confidence of the
Senate, the Senate would no longer have had the power to introduce
a motion of no confidence against the government and the Senate's ability
to veto legislation would have been considerably reduced.
Note In combination
with the new electoral law, the constitutional reform would have
completely transformed the nature of the Italian political system.
Note Although both houses
voted in favour of the constitutional reform in 2016, it did not
obtain the required two-thirds majority needed to bypass a constitutional
referendum.
28. On 4 December 2016, after a long and highly personalised campaign,
which turned the referendum into a protest vote against the government,
the proposed constitutional reform was rejected by 59% of the popular vote.
Prime Minister Renzi resigned on 7 December and was replaced by
his Foreign Minister, Paolo Gentiloni.
2.4 Media freedom
29. Freedom of expression and of
the media are constitutionally guaranteed and generally respected. Nevertheless,
in spite of a number of steps taken, Freedom House classified Italy
as only partly free with a total score of 31 out of 100 with regard
to press freedom in 2017.
Note It is clear that
several long standing issues that hamper media freedom still have
to be adequately addressed.
30. Following liberalisation of the media sector in the 1990s,
media ownership became highly concentrated and remains so today.
Broadcast media is dominated by the two media giants: publicly owned
Radiotelevisione Italiana (RAI)
and the privately owned
Mediaset of
Silvio Berlusconi. Together they operate nearly all major public
and private television stations in the country. Given that up to
80% of the population is said to rely on television for its daily
news
Note – which is the highest rate in the
European Union – this concentration of ownership is problematic,
especially in the Italian context, where broadcasters, including
public broadcasters, traditionally have close ties with political
forces and personalities and where conflict of interest regulations
are lacking.
Note The Italian authorities stressed
that, in their view, these issues were tackled in the 2005 Consolidated Law
on Media, Audiovisual and Radio Services (TUSMAR), which established
the Integrated Communications System, set specific limitations to
prevent the emergence of dominant positions in the Integrated Communications
System and regulated the appointment of the members of the Communications
Authority (AGCOM), who are now all university professors or senior
State officials with experience in the fields of communications
or competition. Law No. 215 of 20 July 2004 – also known as the
“Frattini Law” – contains provisions on conflicts of interest, establishes
the rules for resolving such conflicts, and ensures that all government
office holders, in the exercise of their functions, have as their
sole objective the upholding and protection of public interests.
The Competition and Market Authority and AGCOM evaluate the presence
of conflicts of interest.
Note
31. Concerns about the autonomy of the RAI were raised after the
appointment of Marcello Foa
Note as president of the RAI in September
2018 in spite of concerns expressed by the journalists’ union. This appointment
was made possible with the support of the leader of Forza Italia,
Silvio Berlusconi, who dropped his opposition in the parliamentary
body responsible for the oversight of the State broadcaster after
an agreement was reached by the centre-right forces to run together
in a number of upcoming regional elections.
32. Following a 2012 judgment of the European Court of Human Rights,
Note Italy introduced a legislative and regulatory
framework for the allocation of broadcasting licenses as well as
the transfer and cessation of ownership of television broadcasting
companies in order to guarantee effective media pluralism.
Note However, these new
rules have not substantively reduced ownership concentration since
the members on the new authority are in effect political appointments
based on party affiliation.
Note Further efforts
to reform the public broadcaster and to improve its independence,
efficiency and sustainability have been introduced recently, including
the changing the governance structure of the public broadcaster
and by introducing a new system for collecting television licence
fees. The Italian delegation pointed out that in the previous parliament,
the Chamber of Deputies approved on first reading a measure introducing
new rules on conflicts of interest, but the debate ran aground in
the Senate. Currently, a new overhaul of this topic is included
in the government contract signed by the League and the 5-Star-Movement
following the 2018 elections.
Note
33. Defamation remains a criminal offence in Italy, punishable
by a fine or prison sentence of up to six years.
Note The European Court of
Human Rights has regularly ruled against Italy for imposing disproportionate criminal
sanctions for defamation, including prison sentences for journalists
and editors.
Note In
2013, following a request by the Assembly,
Note the European Commission for Democracy through
Law (Venice Commission) adopted an Opinion on the Italian defamation
legislation, which urged the authorities to amend the criminal law in
order to ensure the principle of proportionality of sanctions and
to avoid a chilling effect on media freedom.
Note
34. Various drafts aimed at amending the defamation legislation
are currently being discussed in the Italian Parliament. In 2015,
the Chamber of Deputies proposed to remove prison sanctions for
journalists in defamation cases,
Note but in 2016
the Senate proposed to increase the maximum sentence from six to
nine years imprisonment for defamation cases concerning politicians,
judges and public servants. Following strong international criticism,
including by the Commissioner for Human Rights, this proposal was
later removed.
Note The draft bill is
currently stuck in the Senate. As a result, at the time of writing,
the Italian legislation concerning defamation is not in line with
European standards.
Note
35. As a result, Italian Courts continue to issue prison sentences
for defamation. According to the organisation
Ossigeno
per l'Informazione, 475 journalists were convicted for
defamation in 2015, with 155 prison sentences issued.
Note In practice, prison
sentences are usually suspended or not applied. However, as pointed
out by the Commissioner for Human Rights, the continuing criminalisation
of defamation and the willingness of public figures to use this
to stifle criticism hampers media freedom in Italy.
Note
36. Italian journalists regularly face intimidation, threats (including
death threats) and physical attacks from organised crime networks.
Reportedly, in 2016, 62 journalists received verbal or written threats,
57 were physically attacked and four had their equipment damaged.
As a consequence, 20 journalists currently live under continuous
police protection.
Note In a welcome
development, in 2016 the Italian Parliament approved a proposal
by the parliamentary Anti-Mafia Commission to introduce new aggravating
circumstances in the Criminal Code for Mafia offences against journalists.
Note
2.5 Local self-government
37. Italy is a unitary country
with territorial decentralisation. The country is subdivided into
20 regions. The regions are divided into 96 provinces and 14 metropolitan
cities, which in turn are subdivided into over 8 000 municipalities.
Local autonomy is firmly established. The Italian Constitution recognises
the principle of local self-government and requires the establishment
of a statute for every region, which determines its organisation
and functioning. Fifteen regions with “ordinary” status have only
very limited autonomy, while the five regions with special “autonomous”
status have greater legislative, administrative and financial competences.
Note There
have been accusations that regions with special “autonomous” status
have been more vulnerable to corruption and infiltration by organised
crime. In the 2001 constitutional reforms, regions with ordinary
status acquired increased competences in tax and education policies
and in a set of areas expressly set out in the Constitution, but
two major reform attempts were rejected by the 2006 and 2016 constitutional referendums.
Note
38. The historic economic and cultural divisions between Italy's
regions run deep, as is evident from the existence of numerous regionalist
and regional political parties. While secessionist claims seem no
longer to be on the political agenda, regional identities remain
strong
Note and
regular demands in favour of more regional autonomy are frequently
voiced by regional leaders and political parties.
Note As a result of
these tendencies, national consensus on future reforms of the system
of local and regional democracy is lacking.
39. In its third monitoring report on Italy of October 2017, the
Congress of Local and Regional Authorities of the Council of Europe
welcomed the reforms to foster decentralisation and to enhance the
political and financial efficiency of local governance.
Note It also expressed a number of concerns,
including with regard to the budget cuts and reduced State support
as a result of austerity policies which have had a disproportionate
impact on local authorities. The Congress urged the Italian authorities
to reconsider budget cuts and lift financial constraints imposed
on local authorities in order to ensure that they have sufficient
financial and human resources to carry out their legal duties. It
recommended greater fiscal autonomy of the regions with ordinary status
to reduce the gap between them and regions with special autonomous
status, and invited the Italian authorities to sign and ratify the
Additional Protocol to the European Charter of Local Self-Government
on the right to participate in the affairs of a local authority
(CETS No. 207).
Note
3 Human Rights
3.1 General human rights issues
40. Italy is strongly committed
to protecting and promoting human rights around the world through
bilateral and multilateral initiatives, both at the global and at
the regional level.
Note The country has a strong legislative framework
for the protection of human rights and has established several bodies
for the protection of human rights
Note to
which it has provided considerable financial and human resources
Note That said, Italy is
one of the few Council of Europe member States that still have no
independent national human rights institution despite the repeated
pledges to establish one issued by the Italian authorities.
Note I
was therefore pleased to learn that the Chamber of Deputies was
about to begin, in November 2018, the examination of several bills
aimed at establishing a National Commission for the Promotion and
Protection of Fundamental Human Rights, which should be in line
with the Paris Principles. Italy also does not have a national Ombudsperson
institution.
Note While it has adopted a number
of specific thematic Strategies and Action Plans it has not yet
adopted a global and comprehensive human rights action plan.
41. In 2017, the European Court of Human Rights has dealt with
2 106 applications concerning Italy, of which 1 973 applications
were declared inadmissible or were struck out.
Note It delivered 31 judgments (concerning
133 applications), 28 of which found at least one violation of the
European Convention on Human Rights. Most violations concerned the
right to respect for private and family life (seven judgments),
the lack of effective investigation (six judgments), the right to
a fair trial (six judgments), and the protection of property (six judgments).
Note Noteworthy judgments
in recent years concerned the issues of right to life; torture and
inhuman or degrading treatment by State officials (including one
pilot judgment related to prison overcrowding); impunity for extraordinary
renditions; lawfulness of detention; fair trial rights (including
one pilot judgment); private and family life (including protection
of embryos and children born from a gestational surrogacy arrangement,
and legal recognition of same-sex relationships) and lack of access
to the asylum procedure and collective expulsion of aliens.
42. As at 31 December 2017, a total of 4 665 applications concerning
Italy (8.3%) were pending before the European Court of Human Rights;
the country thus remains within the “top five”, despite the very
positive trend in recent years.
Note According to the Court,
around 4 400 cases concern delays in payment of the “Pinto” compensation
for lengthy proceedings (see also below); other cases relate to
the special high-security prison regime, imprisonment for defamation,
and detention of unaccompanied minors.
Note
43. Italy has made significant progress in terms of judgments
pending execution before the Committee of Ministers. Having long
been the country with the highest number of cases pending execution
(i.e. 2 350 cases or more than one fifth of the total number of
pending cases at the end of 2016), over 1 700 cases concerning excessive
length of civil and bankruptcy proceedings were closed by final
resolution in December 2017.
Note By the
end of December 2017, only 380 cases were pending execution, 250
of which were imposed under the enhanced procedure, highlighting
the continued existence of structural deficiencies that remain to
be addressed by the authorities.
Note The amount of compensation
paid by Italy topped the 15 million euro mark in 2016, making the
country the third Council of Europe member State in this category;
payments are, however, often delayed.
Note
3.2 Prevention of torture and other forms
of ill-treatment
44. In 2015, the Court highlighted
the inadequate criminal legislation to prevent and punish torture
and other ill-treatment as well as the application of a statute
of limitations for such crimes, which had resulted in a
de facto climate of impunity.
Note In
July 2017, after considerable delay, Italy introduced the crime
of torture into the Italian Criminal Code, filling an important
gap in its human rights protection system.
Note Despite this positive development,
the European Committee for the Prevention of Torture and Inhuman
or Degrading Treatment or Punishment (CPT), in its 2016 visit report,
heavily criticised the draft bill, which was similar to the finally
adopted text, for its overly narrow definition of torture, as a
result of which many acts of serious ill-treatment may fall outside
the scope of the law. Moreover, the law does not consider an act
of torture inflicted by a public official as an autonomous offence
but rather as an aggravating factor and the offence is subject to
a statute of limitations.
Note The
CPT therefore considered that the law does not adequately address
the issues raised by the Court.
Note This
is all the more important, as ill-treatment by law-enforcement and
prison staff remains a persistent problem in Italy
Note for
which it has been repeatedly condemned by the Court.
Note
45. The CPT also examined the impact of the prison reform
Note undertaken
by the Italian authorities to reduce prison overcrowding, as required
by the 2013 pilot judgment by the Court in
Torregiani
v. Italy.
Note Significant progress
was noted with a decrease of the prison population of 11 000 inmates
by 2016, while the prison capacity was increased by 2 500 places.
This progress allowed the Committee of Ministers to close this group of
cases. However, it should be noted that the prison population has
again increased since 2016 and prison overcrowding continues to
be a problem.
Note
46. In its 2016 visit report the CPT also expressed concern about
the deficient material conditions at a number of State police and
Carabinieri establishments. Regarding
prisons, the CPT denounced a poor regime, extensive restrictions
imposed on inmates subjected to the “41-bis” regime,
Note prolonged
isolation and solitary confinement, and detention conditions of
mothers with children.
47. In a welcome development, following Italy's ratification of
the Optional Protocol to the United Nations Convention against Torture
(OPCAT) in 2013, the authorities created a new institution to perform
the task of National Preventive Mechanism (NPM) under OPCAT. This
National Guarantor of the rights of persons deprived of their liberty
(
Garante nazionale),
Note which had started operating in early
2016, is a mechanism to monitor the situation of persons deprived
of their liberty.
Note
3.3 Rights of refugees and migrants
48. Sea crossings from North Africa
(mostly from Libya) to Italy via the central Mediterranean route
surged from 56 000 in 2011, to an unprecedented level of more than
181 000 new arrivals in 2016. Refugees and migrants often used unseaworthy
vessels, without life vests and sufficient fuel and food, making
this route the deadliest in the world with over 4 500 deaths at
sea in 2016.
Note According to data published by the
International Organization for Migration (IOM), there were 2 172
victims in 2017. Almost one thousand migrants and refugees died
in the Mediterranean in the first semester 2018; 653 of them died
along the central Mediterranean route between north Africa and Italy.
Note
49. The Italian authorities reacted by increasing their search
and rescue capacities and by establishing a National Plan for the
reception of refugees and migrants.
Note As a result
of current EU asylum rules and pressure from other EU member States
to stop onward movements, Italy was required to absorb an ever increasing
number of arrivals. The Assembly has repeatedly stressed that all
Council of Europe member States and the European Union should show
more solidarity
Note with Italy and
other European front-line countries faced with large-scale migratory
arrivals underscoring that only a common European response can address the
present refugee and migratory inflow.
Note
50. While arrivals remained high in the first seven months of
2017 (about 100 000 people), they have significantly decreased since.
In 2017, the number of new arrivals fell significantly with a total
of 119 000 sea arrivals recorded in 2017.
Note This is the result of Italy significantly
downsizing search and rescue operations undertaken by non-governmental
organisations
Note and stepping up bilateral
co-operation on migration control with its former colony Libya,
measures which were endorsed by EU member States,
Note despite public
outcry on and claims of European complicity in exposing migrants
to systematic human rights abuses in Libya.
Note The Commissioner
for Human Rights urged Italy to clarify its maritime operations
in Libyan territorial waters aimed at managing migration flows.
Note The Italian delegation
indicated that migrants’ rescue operations at sea on the part of
NGOs were subsequently regulated by a Code of Conduct issued by
the Italian Ministry of the Interior in agreement with the European
Union, and signed by all NGOs, except
Médecins
Sans Frontières and the German network
Jugend Rettet. The code introduces
several principles aiming to improve security, loosening the ban
on transfers to other vessels and calling for NGOs not to enter
Libyan territorial waters “except in situations of grave and imminent
danger requiring immediate assistance” and provided they do not
obstruct “Search and Rescue on the part of the Libyan Coast Guard”.
Note
51. In recent months, the Minister of the interior has toughened
his migration policy. The authorities have banned rescue vessels
from disembarking in Italian ports unless deals can be reached with
other European countries. In July 2018, only the intervention of
the Italian President Sergio Mattarella enabled the Italian coastguard
ship Diciotti to disembark 67 migrants in Trapani.
Note On 25 August 2018, however, the Diciotti
was prevented from disembarking 177 rescued migrants for several
days until an agreement was reached with Ireland, Albania and the
Italian Catholic Church to accept migrants.
Note Following
this event, the prosecutors opened an investigation against the
Minister of the Interior Matteo Salvini and his chief of staff Matteo Piantedosi
for illegal detention, abuse of office and “kidnapping in order
to coerce”. All charges were subsequently dropped.
Note The authorities have also hampered,
if not rendered impossible, the work of NGOs rescuing migrants:
Note the
registration of the Aquarius vessel – operated by SOS Mediterranée
and Médecins Sans Frontières and which reportedly rescued 30 000
people
Note – was revoked on 24 September 2018
by Panama following pressure brought to bear by the Italian Government.
A number of Italian municipalities, including the City of Riace
in Calabria, have launched integration policy to accommodate newly
arrived migrants and refugees. In October 2018, however, the Mayor
of Riace, Domenico Lucano, was prosecuted for allegedly encouraging
illegal immigration “through unlawful acts punishable under criminal
law, including the organisation of fake weddings”
Note and
placed under house arrest. Hundreds of refugees were also ordered
by the Ministry of the Interior to be moved out of Riace to other
reception facilities. These are extremely worrying developments.
Note
52. Despite Italy's efforts and goodwill in addressing the immense
challenges, large-scale arrivals of refugees and migrants have overwhelmed
the country's reception system. While the hotspot approach
Note has allowed for the proper
registration and identification of most arrivals, the number of
places to host them is insufficient compared to the needs.
Note The lack of harmonised standards
and rules, combined with the inadequate monitoring of private operators
and fuelled by incentives for corruption in the context of procurement,
Note have
resulted in substantially diverging living conditions from one place
to another, in some cases creating living conditions at variance
with Articles 3 and 5 of the European Convention on Human Rights.
Note
53. The situation was further exacerbated by delays in accessing
the asylum procedure and the slow pace of these proceedings, particularly
at the level of appeals.
Note The authorities informed the committee that
the Decree-Law No. 113 adopted in 2018 (see below) aimed to speed
up the processing times for international protection applications
by introducing a series of changes to existing legislation and increase
the number of commissions in charge of examining applications.
Note In
early 2017, a substantial reform of the asylum procedure considerably
reduced the processing times of asylum applications but at the cost
of reducing procedural safeguards for asylum seekers.
Note In respect of these
procedures, the Group of Experts on Action against Trafficking in
Human Beings (GRETA) noted that they did not guarantee the effective
identification of vulnerable persons, such as trafficking or torture
victims.
Note There
are similar gaps in the protection of unaccompanied migrant children.
Their high number has led to the partial breakdown of the reception
and guardianship system.
Note GRETA
urged the Italian authorities to increase efforts to identify child
victims of trafficking and address the problem of disappearance
of unaccompanied children by providing enhanced safeguards and by
swiftly assigning a legal guardian.
Note The
authorities also indicated that a new legislation passed in 2017
aimed to strengthen protection measures for unaccompanied children,
assure their uniform application nationwide, increase the resources
allocated to reception facilities specifically for minors and give access
for all unaccompanied minors to services funded via the National
Fund for Asylum Policies and Services.
Note That being said, further efforts
are still required, in particular increasing the number of places
in specialised shelters.
54. As regards possible forced returns, summary identification
procedures and gaps in providing adequate information on rights
entail a certain risk of
refoulement of
persons in need of international protection, especially as returns
of persons to countries with which Italy has concluded readmission
agreements can be carried out swiftly.
Note Concerns have been
expressed, including by the Commissioner for Human Rights, that
persons crossing from Egypt, Tunisia or Greece are routinely sent
back under these agreements without proper screening and procedural
safeguards, despite indications that some came with the intention
to seek asylum.
Note Following
the Court’s landmark judgment in the case
Hirsi
Jamaa in 2012,
Note Italy
declared that the so-called “push-back” policy
Note of refugees and migrants
intercepted in international waters is no longer being pursued.
Note Recent changes in the migrant reception
system and the asylum procedure (including during rescue at sea)
as well as in the domestic jurisprudence are positive developments.
Note
55. The system of forced return of irregular migrants and failed
asylum seekers to countries with which Italy has not concluded readmission
agreements has been pointed out as being “a total failure”,
Note notably due to the lack of co-operation on
behalf of these countries. Irregular migrants generally lack support
and reception services, which are provided only to asylum seekers
and refugees who are enrolled in the reception system. The authorities
however stressed that upon their irregular entry into Italy, migrants
receive first aid assistance in so-called hotspots, have access
to emergency hospital and outpatient care in public accredited facilities,
and have access to preventive medicine programmes to safeguard individual
and collective health. Finally, the judgments issued by the Constitutional
Court have highlighted that public interventions concerning foreign citizens
cannot be limited to mere controls over their entry and stay on
Italian soil, but must necessarily include other aspects – such
as social assistance, education, health care and housing – that
involve multiple legislative spheres.
Note While
the criminal offence of irregular stay was abolished in 2014,
Note increasing numbers of migrants find
themselves in transit living in informal settlements and in inadequate
conditions, or even being homeless.
Note Both the European
Commission against Racism and Intolerance (ECRI) and the Commissioner for
Human Rights regretted the lack of integration policies for this
group, and called on the authorities to remedy this situation.
Note The launch in
September 2017 of the first National Integration Plan, which includes
objectives with regard to language learning, housing, employment
and health care, is a positive step in this respect.
Note
56. Migrants and refugees are particularly vulnerable to forced
labour, exploitation and abusive working conditions, due to their
precarious situation and discrimination in the labour market
Note and the legal framework to protect
them from this is inadequate. Undeclared work among migrants continues
to be a common feature of the Italian labour market, especially
in the south and in the agricultural sector. In this respect, GRETA
urged the Italian authorities to strengthen their action to combat
trafficking in human beings for the purpose of labour exploitation,
including by reinforcing labour inspections.
Note The
adoption of the 2016 Law 199 containing provisions to “counter the
phenomena of undeclared employment, of exploitative labour in agriculture
and the realignment of wages in the agricultural sector”, which
stiffens penalties for those who commit such offences, is to be
welcomed.
Note
57. New legislation was recently adopted concerning migrants and
refugees. Decree-Law No. 113 on “security and migration” was signed
by President Mattarella on 4 October 2018
Note and adopted by parliament on 28 November
2018. This decree-law introduces restrictions to the Italian asylum
system and abolishes the status of humanitarian protection.
Note The authorities explained that residence
permits issued for humanitarian reasons will be replaced with “special”
residence permits issued only in cases of exceptionally serious
health conditions, temporary situations of disaster in the country
of origin, or acts of high civil value. It also includes a series
of measures aimed at speeding up the processing of asylum applications,
such as fast-track procedures for asylum seekers being subject to
criminal proceedings or convicted of a serious crime, and the possibility
of drafting a list of safe countries of origin. Some measures have
been adopted in order to fight illegal immigration, including lengthening
the maximum period of detention for foreign citizens housed in Repatriation
Centres and extending the ban on re-entry for foreigners who have
been expelled to the entire Schengen area. The decree also includes
revocation of citizenship (acquired through marriage or naturalisation
or else granted to foreign citizens born in Italy and residing there
until 18 years of age) in case of definitive conviction for crimes
of terrorism or subversion. Civil society organisations and NGOs
have expressed their serious concerns about this new decree-law
and claimed that it is incompatible with constitutional principles
and international law.
Note The rapporteur expects the Italian
authorities to ensure that this new legislation and its implementation complies
with international standards.
3.4 Fight against racism, intolerance
and discrimination
58. The Italian Constitution guarantees
the equality of all citizens (Article 3). As regards the institutional framework
for combating racism and intolerance, both the Advisory Committee
on the Framework Convention for the Protection of National Minorities
(FCPNM) and ECRI are of the view that the mandate and status of
the National Office against Racial Discrimination (UNAR), which
was established in 2013 and which is responsible for the protection
against all forms of discrimination, do not guarantee its independence
and should be reviewed. Moreover, they consider that the necessary
resources needed for it to operate effectively are lacking and must
be made available.
Note In
a positive development, an Observatory for Protection against Discriminatory
Acts (OSCAD) has been created and Italy adopted in 2015 an Action
Plan against racism, xenophobia and intolerance, which was developed
by UNAR after a broad consultation process.
59. Italian society has seen an increase in racist attitudes,
xenophobia and anti-Gypsyism in public discourse, notably in the
media and on the internet. Between September 2010 and November 2014,
OSCAD received almost 1 200 reports of hate speech and hate-related
offences, half of which constituted criminal offences.
Note The
economic crisis and austerity, and, as the Italian delegation pointed
out, the overwhelming number of asylum seekers Italy had to face
and provide for, have further fuelled discontent; certain political parties
have capitalised on anti-immigrant sentiments. The Commissioner
for Human Rights, ECRI and the Advisory Committee on the Framework
Convention have voiced concerns with regard to hate speech by politicians,
which targeted migrants, Roma, Muslims, and lesbian, gay, bisexual,
transgender and intersex (LGBTI) people.
Note The
European Committee of Social Rights found that the use of xenophobic
political rhetoric or discourse against Roma and Sinti amounted
to a violation of the provisions of the European Social Charter
(revised) (ETS No. 163).
Note Moreover, despite
ECRI's recommendation to make Holocaust denial a separate criminal
offence, legislation adopted in July 2016 made this offence only
an aggravating circumstance.
Note
60. According to the OSCE/ODIHR, a total of 803 hate crime offences
were recorded by the police in 2016, comprising 286 racist and xenophobic
offences, 204 against people with disabilities, 52 against Roma
and Sinti, and 38 based on the victim's sexual orientation or gender
identity. A number of verbal and violent physical attacks against
centres for asylum seekers have been recorded. There are still no
official statistics on prosecutions and convictions of authors of
hate crimes, but their number is reported to be small compared to the
high number of hate crimes and violence reported.
Note The
2015 Action Plan proposed concrete measures to combat hate speech
and racist, homophobic and transphobic violence, in line with ECRI's
recommendations, but these measures now need to be implemented in
practice. The Advisory Committee on the Framework Convention strongly
urged the Italian authorities to effectively combat all manifestations
of racism, intolerance and xenophobia, particularly by preventing,
investigating and prosecuting all racially motivated offences.
Note The
newly elected United Nations Commissioner for Human Rights, Michelle
Bachelet, announced on 10 September 2018 that her office would assess
the “reported sharp increase in acts of violence and racism against
migrants, persons of African descent and Roma”.
NoteNote
61. The situation of the Roma population, which includes Roma,
Sinti and Travellers (
Caminanti),
remains topical. Until 2011, the Italian authorities declared a
“state of emergency in relation to nomad settlements”
Note in several regions,
which allowed for the systematic forced eviction and resettlement
of Roma in large-scale “authorised” and segregated camps. This policy
and all related administrative acts were subsequently declared unlawful
and discriminatory by the Council of State.
Note Prejudice
and stigmatisation against Roma remain deep-rooted and widespread;
85% of the Italian population hold unfavourable views on Roma.
Note Roma continue to face
marginalisation and social exclusion as well as poverty and extreme
hardship. Discrimination in access to education, health care, housing
and employment still constitute structural barriers preventing their full
participation in society. According to a 2014 survey, 97% of Roma
households lived below the poverty threshold, 69% of young Roma
were excluded from employment and education, and 66% felt discriminated against
when looking for employment.
Note It is also
estimated that the average life expectancy of Roma is ten years
below that of the general population and the infant mortality rate
for Roma children is at least twice as high as the national average.
Note
62. Since 2012, Italy has undertaken a noteworthy policy shift
aimed at the social inclusion of Roma,
Note which
was formalised by the National Roma Integration Strategy (2012-2020)
with focus on four priorities: work, housing, health and education.
Note Regrettably, this
strategy has still not achieved any significant progress towards
its stated goals, notably due to delays in its implementation and
the lack of quantifiable targets and dedicated funding.
63. A complex and unresolved issue is the legal status of an estimated
15 000 Roma from the countries of the former Yugoslavia and their
children born in Italy. Due to the lack of personal identity documents,
they face problems in accessing employment, housing, education or
health care, and are not allowed to register the birth of their
children, thus becoming
de facto stateless.
Note Draft legislation,
which would allow migrant children born in Italy to acquire Italian
citizenship, under certain conditions, remains stalled before the
Senate.
Note
64. Parts of public opinion are still hostile towards LGBTI people.
LGTBI people face discrimination, including in access to employment,
as well as being subjected to violence. The Italian Government adopted
a National LGBT Strategy in 2013. Following a 2015 judgment of the
European Court of Human Rights, in which the Court found that Italy
was breaching the Convention because it was impossible for same-sex
couples to have their relationship acknowledged by law,
Note the Italian authorities adopted, in
May 2016, a specific legislative framework allowing for the recognition
and protection, in the form of a civil union, of same-sex partnerships.
Note This
development should be welcomed. It should also be noted that, despite
the lack of specific legislation, the possibility of adopting the
child of one’s partner, including same-sex partners (so-called “stepchild
adoption”), has been recognised on numerous occasions by courts,
and most recently by the Court of Cassation.
Note
4 Rule of law
4.1 Independence of the judiciary and
administration of justice
65. Italy spends 1.3% of total
public expenditure on its judicial system.
Note While
this may seem low, the budget for the judicial system per inhabitant
is higher than the Council of Europe average. Between 2012 and 2014,
the budget for the judicial system decreased by 3.4%, mostly due
to budget cuts related to the courts
Note resulting
from a structural re-organisation and concentration of its judicial
system. In this re-organisation, 31 first instance courts and 667
offices of justice of the peace
Note were
abolished, in an effort to enhance efficiency.
Note This
change did not entail a reduction in the number of judges and staff
but their concentration into a restricted number of large courts.
This concentration was accompanied by a stronger specialisation
of the court system.
66. The Italian judiciary is governed by a solid legislative framework
and enjoys special constitutional protection, which guarantees its
autonomy and independence from all other branches of power.
Note The judiciary is headed by the High Council
of the Judiciary, a self-governing body composed predominantly of magistrates
elected by their colleagues.
Note Together
with the local judicial councils, it plays a central role in governing
the judiciary and protects it from outside influence.
Note
67. The Minister of Justice, who is formally responsible for the
organisation and functioning of the judiciary, in practice only
plays a limited role in decisions concerning the status of prosecutors
and judges, who both belong to the same professional order of magistrates.
Note While he can initiate disciplinary
action, the High Council of the Judiciary is the only body competent
to decide on appointments, transfers, promotions, salaries and discipline.
Note Once
appointed, on the basis of a competitive examination, magistrates
have security of tenure and serve for life. Magistrates receive
attractive salaries (particularly at the end of their career), and pensions
and retirement bonuses that are by far the highest in Italy's public
service.
Note Any
influence or instructions from outside bodies on judges, while performing
their duties, is prohibited.
68. In Italy, salaries and promotions of magistrates depend on
seniority of service, which includes the performance of non-judicial
functions in the public sector. This has greatly facilitated the
temporary employment of magistrates in extra-judicial and political
activities.
Note Magistrates
regularly stand for national, local and European elections or assume
positions of responsibility in a national or local administration
or government. Due to the lack of clear conflict of interest policies
for extra-judicial activities, a number of magistrates temporarily
serve within the executive or legislative branches, cultivating
relations with political parties or party leaders, before returning
to their judicial functions at the end of their political careers.
Note Legal loopholes
also allow, for example, a magistrate to perform political activities
at the local level while continuing to carry out judicial functions,
with the only limit being that of territorial ineligibility.
Note This undermines the public perception
of, and ultimately their trust in, the judiciary, and as a result
the very independence and impartiality of the judiciary is at stake.
GRECO therefore recommended that the simultaneous exercise of judicial
and local government functions be restricted in law and that the
issue of political activity of magistrates be reviewed by the legislator.
Note
The High Council of the Judiciary has adopted criteria to prevent
members of the judiciary who have previously stood for election,
even if unelected, from returning to exercise their functions in
the district where they ran for office, which is welcome, as is
the call made by the Minister of Justice to the Justice Committee
of the Chamber of Deputies on 11 July 2018 to “move past the revolving-door
mechanism between politics and the judiciary, between Parliament
and the halls of justice”.
Note
69. One of Italy's main challenges remains the structural problem
of delayed (and therefore often denied) justice. This problem is
compounded by the excessive use and length of pretrial detention.
The Italian judicial system has persistently been criticised, including
by the Commissioner for Human Rights, for its slow-paced judicial
processes and inefficient performance of its courts and prosecutors'
offices.
Note Although
the Italian Constitution guarantees the principle of reasonable
length of proceedings (Article 111), the significant workload of
the courts of all instances has resulted in excessively long proceedings
and procedural delays. Italy is among the Council of Europe member
States with the highest number of condemnations by the European
Court of Human Rights in cases regarding delayed justice. Since
2001, national law provides for a legal remedy to enforce the right
to a speedy trial, by claiming fair compensation from the State
(the so-called “Pinto” Law).
Note
70. The Italian delegation provided additional information on
the efforts undertaken to achieve speedier and more effective trials,
such as the recruitment of over 5 000 staff members over three years
and digitalisation of civil and criminal proceedings, which led
to the reduction of the duration of first instance trials, as highlighted by
European Commission for the Efficiency of Justice (CEPEJ).
Note Appeal procedures remain
problematic, even though the Court of Cassation, in spite of a significant
backlog of civil cases, has managed, to reduce the length of procedures
for criminal proceedings. Within a few years, the number of pending
appeals against Italy has fallen from over 17 000 in October 2014
to 4 665 as at 31 December 2017. The implementation of major action
plans involving hundreds of cases is also expected to have an additional
positive impact on reducing backlog, according to the authorities.
Note
71. That notwithstanding, and despite a slight decrease in incoming
cases in recent years, the country has difficulty in coping with
its excessive backlog of cases. In 2016, a total of more than 3.8 million
civil and over 1.5 million criminal cases were pending before the
Italian courts.
Note In 2015, the
average duration of proceedings before a first instance court was
427 days in civil cases and 389 days in criminal cases. Before second
instance courts, the average length of proceedings was 819 days
and before the Court of Cassation 1 427 days.
Note In
60% of all Italian courts, one in five cases has been pending for
more than three years, thus exceeding the “reasonable time” envisaged
by the “Pinto” Law.
Note The Italian authorities stressed
that the number of proceedings “at risk based on the Pinto Law”
diminished between 2013 and 2018.
Note
72. A serious consequence of the substantive delays is that, over
the past ten years, an estimated 1.5 million cases, including corruption
cases, were terminated before the trials could be concluded, as
a result of the time limits specified in the statutes of limitation.
Over 132 000 criminal proceedings became time-barred in 2014 alone.
Note From 2015 to 2017, the number of
time-barred criminal proceedings was respectively 130 208, 136 888
and 125 624, and amounted to 63 177 in the first semester of 2018.
Note This has contributed to
a further increase in public mistrust of the judiciary and the administration
of justice. In addition, the excessive length of proceedings and
judicial uncertainty affect the business environment. According
to the President of the European Central Bank, Mario Draghi, the
cost of Italy's slow judicial system accounts for over 1% of its GDP.
Note
73. The underlying reasons for this problem are diverse and include
the excessive case-load of courts, complex procedures, problems
relating to court management and organisation, judicial culture,
and the shortage of material and human resources.
Note In
particular, Italy has one of the lowest numbers of judges
per capita in Europe and in 2016
there were almost 1 100 vacancies for posts of magistrates to be
filled. Two decades of inertia in terms of human resources have
led to an increased reliance on lay judges and a significant decrease
in the number of clerical staff. It is of critical importance for
the independence and efficiency of the judiciary that sufficient
financial and human resources be allocated.
Note The
Italian delegation explained that, in recent years, efforts have
been undertaken to ensure the recruitment of new magistrates in
annual budget laws.
Note
74. In recent years, Italy has adopted a number of legislative
reforms, including a major civil procedure reform in 2014 and a
reform of the Criminal and the Criminal Procedure Codes in June
2017, aimed at rationalising and decreasing the length of civil
and criminal proceedings. These reforms provided for the introduction
of mandatory mediation and a “filter” system for appeals in civil
cases, the increased use of summary proceedings and alternative,
non-judicial dispute resolution mechanisms. The reorganisation of
the Italian judicial system, accompanied by further specialisation,
as well as the appointment of auxiliary judges and the recruitment
of over 3 000 administrative positions in courts has led to increased
efficiency. Recent criminal justice reforms have,
inter alia, extended the statute
of limitations
Note and amended the
appeals system before courts of appeal and the Court of Cassation.
Note With respect to the
fight against corruption, GRECO welcomed the efforts made by the
authorities to address the problem of the statute of limitations
– seen as the “Achilles’ heel of justice in Italy” – with key changes
made in relation to corruption offences, notably by increasing limitation
periods and by providing for additional grounds for suspension of
the statute of limitations.
Note
75. As mentioned, excessive length of detention on remand in the
context of trial delays are of concern. Italy is among the European
countries with the highest number of people in pretrial detention.
Note Although pretrial detention
cannot be applied for crimes that can be punished with a maximum
sentence of less than five years, the maximum length of pretrial
detention allowed by law is two to six years, depending on the severity
of the alleged crime.
Note The
European Court of Human Rights has issued numerous judgments against
Italy finding violations with regard to the excessive length of
pretrial detention and insufficient safeguards of the defendant's fair
trial rights, but also for arbitrary imprisonment in pretrial detention.
Note The Italian
authorities have adopted legislative amendments that limit the offences
for which pretrial detention can be requested and introduced alternative
measures, but this has not yet led to a marked reduction in the
use of pretrial detention.
Note In particular, alternative measures
are underused and Italian law does also not require a regular review
of pretrial detention.
Note The news
that recourse to pretrial detention is diminishing is welcome.
Note Meanwhile,
alternative measures were also used more often by judges; in September
2018, the number of these measures had increased by 4 000 compared
to 2017.
Note The
authorities are urged to further address these points.
4.2 Fight against corruption, money laundering
and organised crime
76. Regrettably, corruption in
Italy remains a pervasive phenomenon that is deeply rooted and that
affects society as a whole, including public administration and
the private sector.
Note In 2015, 3 000 cases of
corruption were reported, 177 persons were arrested for corruption
charges and another 700 investigated. Police have reported irregularities
with respect to almost 30% of audited public contracts.
Note According to a 2017 Eurobarometer
survey, 89% of Italians consider corruption to be widespread and
87% believe that public institutions are infiltrated by corruption.
Note Italy
ranks 8th out of 27 European countries in terms of “direct or indirect
experience of episodes of corruption in the last twelve months”.
Note Corruption,
patronage and nepotism were also identified, in 2017, as a very
serious obstacle when engaging in business in Italy.
Note In
2018, Transparency International noted some progress following the
recent adoption of four relevant laws on whistle-blowing, transparency,
undue influence and anti-money laundering, and ranked Italy 54th
(compared to 60th in 2017) out of 176 countries in perceived levels
of public corruption.
Note As mentioned in
the 2018 Eurobarometer on corruption, political parties (66%) and
local, regional and national elected representatives (60%) were
perceived by the public as being the most corrupt groups (compared
to, respectively, 89% and 77% in 2013).
Note The
cost of corruption in Italy has been estimated by the Court of Auditors
at around 60 billion euros annually or 4% of the country's GDP.
Note
77. In recent years, Italy has introduced a number of anti-corruption
measures and, in 2013, it ratified the relevant Council of Europe
conventions on corruption. The adoption of an anti-corruption package
in 2012, updated in 2015, marked a shift from a punitive to a preventive
approach. In particular, a new National Anti-Corruption Authority
(ANAC) was created and a national Anti-Corruption Plan adopted.
Note In addition,
major anti-corruption legislative reforms were enacted.
Note The so-called “Whistle-blowing Law”
(Law No. 179) adopted in 2017 introduces wide-ranging measures to
protect public or private employees who report to the relevant authorities
unlawful conduct or abuses which they have witnessed on the basis
of their employment relationship.
Note
78. In 2013, GRECO concluded that Italy had implemented satisfactorily
or dealt in a satisfactory manner with 17 of the 22 recommendations
contained in the joint first and second round evaluation report.
Note However, the
country has still to satisfactorily implement eight of the 16 recommendations
made in the third round evaluation report. GRECO noted that criminal
penalties for corruption by officials are adequate and usually effectively
implemented in practice. The authorities were invited to adopt the
legislation required for the country to withdraw – or not renew
– its reservations to the Criminal Law Convention on Corruption
(ETS No. 173).
Note As regards political
party financing, GRECO noted the significant progress achieved,
Note including with regard to transparency
of donations, but underscored that more efforts are required concerning
the monitoring of party and campaign financing.
Note In
June 2018, GRECO confirmed that the new legal framework – that abolished, in
2017, direct public funding in favour of a voluntary system of private
funding – presented several positive features, concluded that Italy
had partially implemented another seven recommendations and invited
the authorities to make more efforts to enhance transparency and
oversight (such as the publication of campaign finances) to further
prevent corruption.
Note
79. In its fourth round evaluation report on Italy, which deals
with the prevention of corruption in respect of members of parliament,
judges and prosecutors, GRECO commended the decisive steps taken
to tackle corruption and acknowledged the proactive role of the
Anti-Corruption Authority. In respect of members of parliament,
it recommended strengthening the integrity framework and urged the
country to overhaul the current system on conflicts of interest,
including by consolidating the regulatory framework and by establishing more
efficient mechanisms of control and accountability.
Note While
welcoming the recent adoption of a Code of Conduct and Rules on
Lobbying by the Chamber of Deputies, GRECO recommended that these
rules be further developed in order to ensure full compliance with
GRECO provisions. A similar development is still outstanding in
the Senate. As underscored repeatedly by GRECO in its reports on
Italy, “combating corruption must become a matter of culture and
not only rules”, requiring a long-term approach, continuing education throughout
all sectors of society, as well as a sustained political commitment
and a zero-tolerance approach to corrupt behaviours.
Note In
a recent report, GRECO regretted the lack of progress regarding
the criminalisation of active and passive bribery of foreign arbitrators
and jurors and the “outstanding legislative gaps in the criminalisation
of trading in influence”. Regrettably, there was no tangible progress
regarding the process of ratification of the Additional Protocol
to the Criminal Law Convention on Corruption (ETS No. 191).
Note
80. A new bill (also known as the “sweep corruption away” bill
sponsored by the Five Star Movement) was approved by the Council
of Ministers on 6 September 2018 and submitted to the parliament.
According to this bill, anyone convicted of corruption and sentenced
to more than two years in prison would never be able to hold public
office or seek a State contract again. It would also allow, for
the first time, undercover agents to work on corruption investigations
and require full transparency on private and corporate contributions
to political parties and foundations. The strengthening of anti-corruption
measures and policies is to be welcomed, and will have to be in
line with the case law of the European Court of Human Rights on
these issues.
81. Italy is not a member of the Committee of Experts on the Evaluation
of Anti-Money Laundering Measures and the Financing of Terrorism
(MONEYVAL), but it joined the Financial Action Task Force (FATF)
in 1990. The latest mutual evaluation report, adopted in February
2016, noted Italy’s well developed legal and institutional framework
to fight money laundering and terrorist financing. At the same time,
it noted a number of areas where improvements are required, such
as with regard to investigation and prosecution of standalone money-laundering
cases and the misuse of legal persons.
Note
82. A particular feature of the Italian situation is the intertwinement
of corruption, money laundering and mafia-type organised crime.
Organised crime and criminal organisations have been present in
Italy for more than two centuries. They are heavily concentrated
in four regions of southern Italy, namely Sicily, Calabria, Campania
and Apulia, where they have infiltrated politics, the economy and
society. The Mafia is primarily involved in drug trafficking − which
remains the principal transnational activity and the main source
of income − but has expanded into assassinations, and trafficking
of weapons, and waste/toxic waste and in human beings, cigarette
smuggling, counterfeiting, racketeering and extortions, falsifying
public tenders and loan sharking.
Note To
conceal their criminal activities, Italian organised crime groups
have set up well developed money-laundering and high-level corruption
networks. According to the Minister of Justice, annual Mafia proceeds
account for between 18 and 34 billion euros or at least 1.7% of
the GDP.
Note
83. Organised crime has a tight grip on Italian politics, particularly
at the local level, influencing the allocation of public resources
and tax collection. These groups control large amounts of votes
in their areas of influence, which could determine the outcome of
local elections. As a result, many law-enforcement officials, judges
and prosecutors reportedly have collaborated with Mafia-type organisations.
Note
84. Since the Maxi-Trial in 1986-1987, during which a number of
Mafia bosses were sentenced to long prison sentences,
Note and
after a series of assassinations of major political and institutional
figures,
Note public opinion
started revolting against the Mafia phenomenon. The Italian authorities
began to evolve a strategy for combating organised crime and passed
strong anti-Mafia legislation in the early 1990s.
Note In 2008, the authorities
reformed the work of the parliamentary Anti-Mafia Commission which
was tasked with investigating “the Mafia phenomenon” and other criminal
organisations.
Note Anti-Mafia District Prosecution
Offices, which have special jurisdiction with respect to serious
organised crime and terrorism-related offences, are co-ordinated
by the anti-Mafia National Directorate. Recently, co-operation at
European and international level to counter transnational organised
crime groups has been reinforced. Following the most recent amendments which
entered into force in November 2017, the Anti-Mafia Code now extends
to the confiscation of assets.
Note
5 Conclusions
and recommendations
85. While Italy, a founding member
of the Council of Europe, is generally honouring its membership obligations
to the Council of Europe, a number of concerns exist. The political
landscape remains characterised by a fragmented party system and
political instability. Both parliamentary chambers are able to initiate
no-confidence votes. The December 2017 referendum, which aimed at
reforming the political system and making it more efficient and
stable, failed. A decade-long, severe economic crisis and increased
mistrust in political and judicial institutions have contributed
to boosting the popularity of, notably, a far-right party (the Lega)
and an anti-establishment party (the Five Star Movement). In June
2018, these ideologically different political parties joined forces
to form a governmental coalition following political bargaining
and institutional tensions with the President of the Republic.
86. Concerning the functioning of democratic institutions at local
and regional level, the rapporteur calls for the implementation
of the 2017 recommendations of the Congress of local and regional
authorities, in particular the reconsideration of budget cuts, the
lifting of financial constraints imposed on local authorities, and
greater fiscal autonomy for the regions with ordinary status in
order to reduce the gap between them and regions with special autonomous
status. The Italian authorities are also invited to sign and ratify
the Additional Protocol to the European Charter of Local Self-Government
on the right to participate in the affairs of a local authority.
87. Concerning migration inflow management, the rapporteur reiterates
the Assembly’s position calling on all member States to show solidarity
to address the large-scale arrivals of refugees and migrants in
Europe, which has disproportionally affected Italy. In this context,
the rapporteur welcomes the shortening of delays in accessing the
asylum procedure achieved in 2017. The efforts made to put an end
to the so-called “push-back” policy – resulting in forced return
of irregular migrants and failed asylum seekers – are to be welcomed,
as is the adoption of a National Integration Plan launched in 2017.
The Italian authorities are encouraged to implement integration
policies for those migrants in transit, and to strengthen their
action to combat trafficking in human beings for the purpose of
labour exploitation, in line with the recommendations made by GRETA.
The fate of child victims of trafficking and the disappearance of
unaccompanied children deserves due attention.
88. The rapporteur also notes that the new government has vowed
to implement harsher migration policies. The rapporteur is deeply
worried by the stance taken by the newly elected authorities to
criminalise local authorities implementing integration policies
for migrants; to hamper the work of NGOs rescuing migrants; and to
ban disembarkation of migrants rescued at sea in Italian ports,
which put the lives of people at jeopardy and violates basic humanitarian
standards. While the international community as a whole is expected
to provide a common response to the migration inflow, the rapporteur
urges the Italian lawmakers to ensure that legislation on migrants
and refugees complies with Italy’s European and international obligations
and guarantees the respect of fundamental freedoms.
89. The rapporteur expects the Italian authorities to remain strongly
committed to the protection and the promotion of human rights. The
rapporteur notes that Italy has a well-developed legal framework
for that purpose. A number of important treaties still await ratification.
While acknowledging the transposition, in 1999, of the principles
of the European Charter for Regional or Minority Languages in the
legal system, the rapporteur continues to encourage Italy to ratify
the Charter. The Italian authorities are also encouraged to take
the necessary steps to ratify Protocol No. 12 to the European Convention
on Human Rights and the European Convention on Nationality. The
rapporteur welcomes the recent introduction of a parliamentary bill
on the ratification of Protocols Nos. 15 and 16 to the European
Convention on Human Rights and invites the parliament to ratify
them at its earliest convenience.
90. The ratification of the Optional Protocol to the United Nations
Convention against Torture (OPCAT) in 2013 and the creation of a
National Preventive Mechanism institution (Garante
nazionale) are to the credit of the Italian authorities.
The rapporteur welcomes the steps taken by the parliament to establish
a National Commission for the Promotion and Protection of Fundamental
Human Rights which should act as Italy’s independent National Human
Rights Institution in line with the Paris Principles. While the
introduction of torture as a separate offence in the Criminal Code
is to be welcomed, the overly narrow definition of torture fails however
to address all concerns raised by the CPT and the European Court
of Human Rights. The criminal legislation remains inadequate to
prevent and punish torture and other ill-treatment. That and the
statute of limitations result in a de
facto climate of impunity for such crimes. The rapporteur
notes the significant progress made in terms of judgments pending
execution before the Committee of Ministers and encourages the Italian authorities
to pursue their efforts to reduce the number of applications lodged
with the European Court of Human Rights.
91. The rapporteur remains very concerned about the increase in
racist attitudes, xenophobia and anti-Gypsyism in public discourse,
notably in the media and on the internet and rising hate speech
by politicians, as highlighted by the Commissioner for Human Rights,
ECRI and the Advisory Committee of the Framework Convention for
the Protection of National Minorities. It calls on the authorities
to strengthen the independence of the National Office against Racial
Discrimination, and to effectively combat all manifestations of
racism, intolerance and xenophobia, particularly by preventing,
investigating and prosecuting all racially motivated offences.
92. The rapporteur also calls on the Italian authorities to pay
due attention to the situation of Roma people who are subject to
prejudice and stigmatisation. This is particularly true for an estimated
15 000 undocumented Roma people from former Yugoslavia who face
problems in accessing housing, education and health care; they are
unable to register their children who are therefore, de facto, stateless. This situation
should be addressed by adequate legislation.
93. In the field of media, the rapporteur welcomes the efforts
undertaken in relation to the allocation of broadcasting licenses
and the reform of the public broadcaster with a view to improving
its independence, efficiency and sustainability. It notes however
that, despite the introduction of new regulations, media ownership
concentration remains an issue in Italy. Regrettably, defamation
is still a criminal offence, with prison sentences being handed
down. This has a chilling effect on media freedom. The rapporteur
urges the Italian authorities to amend the criminal law in order
to ensure the principle of proportionality of sanctions, in line
with the recommendations of the Venice Commission.
94. Concerning the rule of law, the Italian judiciary is governed
by a solid legislative framework and enjoys special constitutional
protection. The rapporteur welcomes recent criminal justice reforms
which have, inter alia, extended
the statute of limitations, including in corruption cases, and amended
the appeals system. He calls on the Italian authorities to further
address the issues of excessive use of pretrial detention, underuse
of alternative measures, delayed justice and court cases backlogs.
95. Corruption remains a pervasive and deeply rooted phenomenon.
The rapporteur acknowledges the efforts undertaken by the Italian
authorities to combat corruption. The creation of the National Anti-Corruption Authorities,
the adoption of a National Anti-Corruption plan and the adoption
of the 2017 Whistleblowing Law are to be welcomed, as well as the
significant progress achieved in the framework governing political
party funding. The new system of party and election campaign funding,
which will rely on private donations, requires however due transparency
and oversight to prevent corruption, through an efficient mechanism
of control of accountability. In this respect, the rapporteur welcomes
the adoption of a Code of Conduct and Rules on Lobbying by the Chamber
of Deputies, which need to be upgraded to comply with the recommendations
of GRECO; it expects the Senate to take similar steps.
96. The rapporteur welcomes the measures envisaged by the Italian
authorities to strengthen the fight against corruption, which will
need to comply with the case law of the European Court of Human
Rights. He also encourages the Italian authorities to implement
the remaining GRECO recommendations, consider lifting the reservation
made in 2013 to the Criminal Law Convention on Corruption and consider
ratifying its Additional Protocol.
97. Finally, the rapporteur is concerned about the persistent
intertwinement of corruption, money laundering and mafia-type organised
crime, especially in southern Italy, and by the tight grip of organised
crime on Italian politics, particularly at the local level. These
are issues that need continuous attention by the authorities. Clarifying
the notion of conflict of interests for magistrates exercising extra-judicial
activities, in line with the GRECO recommendations, could also help
to strengthen the trust of people in the judiciary in that respect.
