Abstract

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.