Abstract

The present contribution aims at assessing Italy’s international obligations in respect to the acts of torture allegedly committed against Giulio Regeni, in Egypt by Egyptian authorities. Taking into account the Constitutional Court’s judgment in the case at stake, the paper tries to understand whether Italy was bound by an international obligation to investigate and prosecute those acts and which is the source of such an obligation. It appears that, differently from what the Constitutional Court had held, there is no such obligation binding the State of passive nationality – notably, of the nationality of the victim – under general international law and the Convention against Torture, pursuant to which the exercise of extraterritorial criminal jurisdiction on the basis of the principle of passive nationality is respectively legal and allowed. Such an obligation, however, may be imposed under the ECHR, pursuant to which a State which institute an investigation over deaths occurred abroad on the basis of the principle of passive nationality establishes a jurisdictional link capable of triggering the positive obligations of investigation and prosecution enshrined in Articles 2 and 3 of the ECHR. It therefore appears that the correct intermediate parameter of constitutionality in the case before the Constitutional Court should have been the ECHR, and not the Convention against Torture.