SUMMARY: 1. Premise. – 2. Gender-based violence in international law: a human rights issue. – 3. Obligations and due diligence standard according to international law and in the practice of international bodies. – 4. Italian law on combating gender-based violence. – 5. Evaluation of the Italian law by international monitoring bodies. – 6. Italy’s compliance with the due diligence standard: the ECtHR judgment in the case Talpis c. Italia. – 7. Reflections on the evolution perspectives in Italy. – 8. References.
The time period 2016-2017 of the third issue of the Review is characterized by the submission of the Italian seventh periodic report (CEDAW/C/ITA/7) concerning progresses realized within the period 2011-2015 in the implementation of the Convention on the elimination of all forms of discrimination against women (CEDAW). The CEDAW Committee examined the Italian report in July 2017 and addressed to Italy its Concluding observations (CEDAW/C/ITA/CO/7), many of which are dedicated to the issue of gender-based violence against women1. In 2017, the CEDAW Committee also adopted General Recommendation No. 35 on gender-based violence against women, which complements and updates General Recommendation No. 19 of 1992, giving new impetus to the consideration of the issue at international and national level. In 2017, the European Court of Human Rights also issued its judgment No. 41237/14 in the well-known case Talpis v. Italy, which has redefined the obligations of States in the area of combating domestic violence, which could have a substantial impact on internal jurisprudence in Italy and abroad.
The 2015 ISTAT survey showed signs of improvement with respect to the situation photographed in 2006, but the reported violence appeared with more serious forms and the number of women who feared for their lives increased (from 18.8% in 2006 to 34.5% in 2014).
This gives the measure of how the phenomenon is widespread and structural in Italy and how it is qualified as a social problem that requires general answers that go beyond the specific event, notwithstanding the profound changes have been made progressively in the relevant Italian legislation starting. In fact, from the norms of the 1930 Criminal Code, which placed sexual assault between crimes against public morality and morality, provided for extinct effects of sexual crimes in case of ‘repairing marriage’ and attenuated penalties for the murder for reason of honor, the Italian regulatory framework has evolved in order to execute conventional obligations or to respond to requests coming from international bodies.
However, such evolution does not appear in line with the international legal instruments and their interpretation by international bodies, nor even it is suitable to counter the spread of the phenomenon in Italy. Therefore, it is deemed opportune a reflection on the degree of development of the legislation and policies adopted in Italy for the fight against gender-based violence against women in the light of their evaluation by international monitoring bodies.
- * Researcher of international law at the Institute for International Legal Studies (ISGI) of the National Research Council (CNR) of Italy.
- 1 Italy ratified the CEDAW pursuant to Law No. 132/1985 and adhered to its Optional Protocol on 29 October 29 2002.
2. Gender-based violence in international law: a human rights issue
The significant progresses made in recent years at international level in the fight against gender-based violence against women are the result of the explicit recognition of violence as a human rights issue, intrinsically rooted in dating and widespread discrimination against women.
Although they prohibit all forms of violence, international human rights treaties do not explicitly cover violence against women. Not even the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which extensively protects women’s rights, contains a specific specification on such issue, even though many of its anti-discriminatory provisions have long been deemed able to protect women from violence2.
If, therefore, the right to equality and the prohibition of discrimination against women are well-established principles of international human rights law, the issue of violence against women encountered much resistance in the human rights system. The central issue has long been the recognition of this issue as belonging to human rights context, being part of the general debate on States’ responsibility for human rights violations carried out by private individuals. Violence against women was considered as a matter of national law. In the framework of their sovereignty, States determined whether and what actions to define a crime and how to repress such crimes.
Only with its qualification as a violation of human rights, in particular as a form of discrimination, violence against women has been detached from the national context of protection and integrated into the framework of international human rights law. This step was marked by the adoption by the CEDAW Committee of General Recommendation No. 19 of 1992 (A/47/38), which integrated gender-based violence into the definition of discrimination against women pursuant to Article 1 of the CEDAW3, and it was reiterated in the UN Declaration on the Elimination of Violence against Women of 1993 (A/RES/48/104), which recognized violence against women as a violation of human rights. This statement was later consecrated in legal binding instruments, such as the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women of 1994 (Convention of Belém do Pará) and the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence of 2011 (Istanbul Convention).
By General Recommendation No. 35 of 2017, the CEDAW Committee takes over the aspects of substantive law, as well as those related to the qualification of violence acts already dealt with in General Recommendation No. 19 of 1992. If at that historical moment the CEDAW Committee was to fill an almost absolute gap within international human rights law, the new document strengthens the obligations to protect women from violence since it widens the phenomenology of violence, by taking into account the many differences of which women are carriers and on which discrimination is grounded. General Recommendation No. 35 identifies in the change of social norms the fundamental passage to interrupt the spiral that allows the reiteration of violence, also on the basis of cultural or religious traditions.
The main innovation of General Recommendation No. 35 is the statement that “the opinio juris and State practice suggest that the prohibition of gender based violence against women has evolved into a principle of customary international law” (paragraph 2). Although it is debated in doctrine the detection of a ‘common value’ emerging from the practice of States for all forms of violence against women (see De Vido, 2018, p. 390 ff.), the statement of the CEDAW Committee is intended to recognize the perception of the close link between discrimination and violence against women as a common heritage. Violence, in fact, is linked to the social and cultural structures of woman/man relationships which, due to the traditionally recognized role of women, place women in a position of marginality, both inside and outside the home, and acceptable acceptance of partner criteria -environmental which can give rise to a specific predisposition of women to suffer aggression and become passive subjects of certifying crimes. This perspective is reflected in the new definition of gender-based violence against women contained in General Recommendation No. 35. In fact, it puts the emphasis on the social causes of the phenomenon, by regarding gender based violence against women as being rooted in gender related factors, such as the ideology of men’s entitlement and privilege over women, social norms regarding masculinity, and the need to assert male control or power (paragraph 19).
- 2 See CEDAW Article 2 which commits States parties to pursue a policy of eliminating discrimination against women and Article 5, paragraph a, which requires the adoption of all appropriate measures to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.
- 3 Gender-based violence is intended as “violence that is directed against a woman because she is a woman or that effects women disproportionately. It includes acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and other deprivations of liberty”.
3. Obligations and due diligence standard according to international law and in the practice of international bodies
Framed within international law of human rights, violence against women unequivocally implies a responsibility issue for States, imposing on them obligations aimed at fighting violence against women in its broadest sense, whether perpetrated by the State or by private individuals.
Traditionally, obligations foreseen in international legal instruments on human rights are classified as obligations of respect, protection and implementation. In the context of gender-based violence, these obligations are translated into the obligations to prevent, investigate and sanction acts of violence, and provide remedies to victims.
The determination of States’ responsibility differs depending on whether the violation is committed by the State – through its organs or officials – or by non-State actors. In the latter case, State’s responsibility arises not for the act or omission in itself, but because the State has not taken reasonable and adequate measures to prevent or repress the violation according to the so-called standard of due diligence.
This concept expands the borders of States’ responsibility and it is particularly relevant in the context of the fight of violence against women for various reasons. First, the due diligence obligation overcomes the public/private dichotomy in viewing violence against women, capable of producing a sort of normalizing effect of violence in the private sphere and to justify a less intense intervention by the State in such situations in comparison to episodes of ‘public’ violence. Secondly, due diligence puts the emphasis on prevention, acting as a corrective to the predominant focus on repression in this field. In particular, due diligence requires that programs, policies and practices focus on the roots of gender based violence, combating stereotypes, addressing gender inequalities, ensuring access to political empowerment and decision processes.
The Thematic Reports of the United Nations Special Rapporteurs on violence against women, its causes and consequences contributed to specify the extent of States’ responsibility in combating gender based violence (Coomaraswamy, E/CN.4/1999/68, 1999, para 23-24; Ertürk, E/CN.4/2006/61, 2006, para. 69-115; Manjoo, A/HRC/23/49, 2013). The Report of the Special Rapporteur Rashida Manjoo of 2013 is entirely devoted to the study of States’ responsibilities and obligations in this matter. In general, the State is responsible for any action and/or omission committed by State actors or by any other person acting on behalf of the State. Furthermore, according to the principle of due diligence, the State has also the obligation to intervene for acts and/or omissions performed by non-State actors.
According to what emerges from the Report, the standard of due diligence is the benchmark for ascertaining the fulfilments or possible failures of the State in the fight of violence against women (see Goldscheid, Liebowtiz, 2015, 2015). States’ obligations are identified on the basis of due diligence parameter, by distinguishing it in two categories: individual due diligence and systemic due diligence. Individual due diligence refers to the chain of States ‘obligations towards victims of violence, from protection to punishment, from the provision of effective remedies to the assistance in post-violence reconstruction. Systemic due diligence concerns States’ obligation to ensure a holistic and lasting model of prevention, protection, punishment and reparation for acts of violence against women. In this perspective, in addition to participating in a general transformation of society to combat gender inequalities and structural discrimination, States are required to adopt or modify national legislation, to develop strategies, action plans and awareness campaigns on this issue, and to reinforce the capacities and power of police, prosecutors and judges.
By General Recommendation No. 35 of 2017, the CEDAW Committee identified States’ obligations in the context of the Convention, widening and completing the structure elaborated in its previous recommendations.
First, the Committee reiterated the general rule, codified in the 2001 Articles on Responsibility of States for Internationally Wrongful Acts of the International Law Commission, according to which States are responsible for acts or omissions of their organs, by referring it to the obligations of anti-discrimination protection contained in Article 2 of the CEDAW (CEDAW/C/GC/35, para. 22). In this form of so-called “institutional” violence, as defined by the Inter-American Court of Human Rights in its 2010 decision in the case Fernandez Ortega et al. v. Mexico, it is included the violence committed by military personnel or in relation to detainees within State-run prisons (De Vido, 2018, p. 388; Khair, 2003, p. 28 ff.). State responsibility is also raised for actions or omissions of non-State actors, understood as private actors authorized to exercise elements of the governmental authority, including private bodies providing public services, such as health care or education (CEDAW/C/GC/35, paragraph 24, letter a).
As for the violence committed by privates, States are liable when they do not act with due diligence to prevent, protect, prosecute, punish and provide reparation for such acts by virtue of Article 2, paragraph e, of the CEDAW, according to which States adopt the appropriate measures to eliminate discrimination against women by any person, organization or company. In this context, the CEDAW Committee qualified as a violation of human rights the failure to adopt all appropriate measures to prevent acts of gender-based violence against women in cases where State authorities are aware or should be aware of the risk of violence, or the failure to investigate, prosecute and punish perpetrators, and provide remedies to the victims of such acts, as well as the tacit consent or encouragement to perpetrate acts of gender-based violence against women.
By outlining States’ obligations, General Recommendation No. 35 transposes and spreads out the “4 Ps approach” (prevention, protection, prosecution and integrated policies) underlying the Istanbul Convention, which represents the most advanced level of the international standard for preventing and combating gender-based violence, protecting victims and criminalizing perpetrators. The obligations of the Contracting States are specified in Article 5 of the Istanbul Convention (States obligations and Due Diligence): the general obligation to abstain from integrative conduct of violence against women directly or indirectly attributable to state bodies, is accompanied by the prescription of the due diligence standard in preventing, investigating, punishing those responsible and to recognize adequate reparation measures for victims of violence attributable to private individuals. These obligations reflect the four constituent moments of conventional architecture, corresponding to the four “P” for prevention, protection of victims, prosecution of perpetrators and integrated policies for the contrast and the elimination of violence against women and domestic violence. The Convention also contains specific provisions of criminal interest which sanction obligations to penalize conduct constituting cases of violence, that is, harmful to fundamental and discriminatory rights in the sense specified by the Convention.
From the set of conventional rules and the indications coming from the international monitoring bodies can be obtained a detailed picture of States’ obligations and practical guidelines on how to implement them, to be taken into consideration in assessing the conformity of the Italian law on this issue.
4. Italian law on combating gender-based violence
The norms, above all of substantive and procedural criminal law, issued by the Italian legislator in the last thirty years are inspired by a ratio of increasing the repressive response to gender crimes, on one hand, and of implementing international legal instruments for the protection of women from violence, on the other.
The bulk of Italian law on violence against women is Law No. 66/1996, starting from which sexual violence against women is qualified as a crime against the person, and no longer as an offence against morality. Under Law No. 154/2001 the removal of the violent family member was envisaged and social protection measures were introduced for women who suffer violence. Female genital mutilation is prohibited as a criminal offense and sanctioned as an independent hypothesis with respect to the basic case of personal injury by Law No. 7/2006. Law Decree No. 11/2009, converted with modifications into Law No. 38/2009, introduced the crime of stalking (Article 612 bis of the Criminal Code), sanctioning the consummation of persecutory acts consisting in the repetition of harassment or threat conducts likely to cause a lasting and serious state of anxiety or fear. By implementing the Lanzarote Convention, Law No. 172/2012 of authorization for ratification made changes to the case of family maltreatment (Article 572 of the Criminal Code) and doubled the statute of limitations in relation to various crimes, including those of sexual violence and ill-treatment (Article 157 of the Criminal Code).
The real turning point in Italian law is recorded in 2013 when, immediately after the ratification of the Istanbul Convention by Italy based on Law No. 77/2013, the Italian legislator dealt with “the succession of extremely brutal events against women and the consequent social alarm that resulted”, adopting, in the forms of the emergency decree, a complex regulatory intervention aimed at “tightening, for dissuasive purposes, the punitive treatment of the authors of such facts, introducing, in certain cases, preventive measures aimed at the early protection of women and of every victim of domestic violence”. It was thus introduced by the Head of State, the Law Decree No. 93/2013, then converted with changes into Law No. 119/2013, identifying in the multiple episodes of femicide in recent years “the extraordinary cases of necessity and urgency” that justify the exceptional legislative power of the Government envisaged by Article 77 of the Constitution.
From the very beginning, the adoption of Law Decree No. 93/2013 was accompanied by numerous and harsh criticisms from the legal operators, first of all from the Unione delle Camere Penali, which highlighted the inadequacy of the instrument of the emergency decree to face a so relevant and rooted issue as that of gender-based violence (Unione delle Camere penali, 2013). In particular, it was deemed inopportune the predominant attention to the repressive aspect with respect to the educational and cultural element which is the basis of prevention. It was highlighted that this approach clashed with the spirit of the Istanbul Convention in which preamble considers that “the realisation of de jure and de facto equality between women and men is a key element in the prevention of violence against women” and that “violence against women is a manifestation of historically unequal power relations between women and men, which have led to domination over, and discrimination against, women by men and to the prevention of the full advancement of women”.
Some changes introduced by Law No. 119/2013 in substantive and procedural criminal law have adapted the Italian legislation to the Istanbul Convention. Among these, the provision of aggravating circumstances in relation to factual contexts of accentuated negative value (Article 46 of the Istanbul Convention), as the aggravating circumstance of the consummation of the crime in the presence or in the damage of a minor (so-called assisted violence) or against a pregnant woman. Further aggravating circumstances have been included with reference to the case of sexual violence committed against a victim who is pregnant or from a person linked to the victim by an emotional relationship. From a procedural point of view, the changes introduced concern precautionary measures (removal from the family home), investigation tools (telephone interceptions), coercive measures (mandatory arrest in flagrante delicto) and other measures aimed at protecting victims during the handling of trials, for example by giving the absolute priority, in the formation of the criminal docket, to the proceedings concerning crimes of mistreatment, persecutory acts and sexual violence, with the ratio to avoid a ‘secondary victimization’ of the woman.
Other positive aspects concern the crime of stalking which has been modified in the lawsuit regime. The lawsuit is irrevocable if the fact was committed through repeated and aggravated threats; in all other cases, however, once the lawsuit has been filed, the postponement can only take place in court. The crime remains ex officio if the offense is committed against a minor or a person with a disability, as well as when the fact is connected to another crime for which it is mandatory to proceed. The reform also provided for an aggravating circumstance when the fact is committed through IT or telecommunications tools.
Particularly delicate is the profile relating to the compliance with the prevention and protection obligations equally covered by the conventional regime. Article 5 of Law No. 119/2013 foresees the adoption of an “extraordinary action plan against sexual and gender-based violence” aimed at guaranteeing suitable actions to achieve the Convention obligations regarding information, prevention, awareness, education, training, monitoring and strengthening of support structures for the victims and for the children involved.
The Italian government has produced so far three national action plans: the first 2011 National Plan Against Gender-based Violence and Stalking, the second Extraordinary Action Plan Against Sexual and Gender-Based violence 2015-2017, and the third Strategic National Plan on Male Violence Against Women 2017-2020. Both the first and the second Plan have been strongly criticized for their emergence and not structural intervention and for the measures considered generic and lacking in concreteness, with an almost exclusive emphasis on protection.
It is only when the 2017-2020 Strategic Plan is elaborated that an attempt is made to plan for structural and long-term measures aiming at a cultural change on violence against women. The Plan objectives reflect those of the Istanbul Convention. In the field of prevention, the priorities are the strengthening of the strategic role of the educational system, the training of public and private social workers, the activation of intervention programs for men authors or potential perpetrators of violence, the awareness raising of the mass medias on the role of stereotypes and sexism. In terms of protection and support for victims, the Plan is structured according to the charge of victims by specialized services (anti-violence centers and shelters), economic empowerment, work, housing autonomy and specific protection and support actions of child victims of assisted violence. As for the repression of crimes, the priorities indicated in the Plan are to guarantee the protection of women victims of violence (including stalking) through an effective and rapid assessment and management of the risk of lethality, seriousness, recurrence and recidivism; improve the effectiveness of judicial proceedings to protect victims of abuse and violence and crimes related to male violence against women.
The Italian norms and policies for combating violence against women include the regulatory instruments for transposing some European directives relevant to the issue (2011/99/EU, 2012/29/EU, 2004/80/EC) and aimed at providing tools for the general protection of crime victims (including potential ones).
In this regard, it is worth mentioning Legislative Decree No. 9/2015, implementing Directive 2011/99/EU of the European Parliament and the Council on the European Protection Order (OPE), aimed at ensuring mutual recognition of the effects of protection measures for victims of crime when adopted by judicial authorities of EU Member States. Legislative Decree No. 212/2015, implementing Directive 2012/29/EU of the European Parliament and the Council, which establishes minimum standards on assistance, protection and procedural rights of victims of crime in criminal proceedings.
By implementing Directive 2004/80/EC, Law No. 122/2016, known as European Law 2015-2016 and amended by European Law 2017 (Law No. 167/2017), recognizes the right to compensation for victims of violent intentional crimes through the anti-mafia and anti-usury fund (thus remedying the non-compliance detected by the EU Court of Justice, with the judgment of 11 October 2016, case C-601/14).
Further legislative measures have been adopted to complete the existing legislation. Law No. 161/2017, reforming the Anti-Mafia Code, has provided for new preventive measures against the victims of stalking, such as the special surveillance of public safety, the prohibition of stay in one or more municipalities and the application of the electronic bracelet. Always with regard to stalking Law No. 172/2017, for the conversion of the legislative decree n. 148/2017, excluded the possibility of extinguishing the crime of persecutory acts following reparative conduct.
On the subject of repair, Law No. 4/2018 recognizes procedural and economic protections for minor and economically dependent adults which are children of domestic crimes victims. Law No. 4/2018 also modifies the Criminal Code by intervening on the murder aggravated by personal relations, providing for life imprisonment for uxoricide and extending its application to the relationship within civil union and cohabitation.
5. Evaluation of the Italian law by international monitoring bodies
The Italian legal framework to combat gender-based violence does not seem to be a reflection of an advanced cultural and social landscape in the country. The CEDAW Committee in the 2011 Concluding observations expressed its concern “about the persistence of socio-cultural attitudes that condone domestic violence” and underlined “the high number of women killed by their partners or former partners, who may indicate the failure of the State authorities to adequately protect women” (CEDAW/C/ITA/CO/6, paragraph 26).
In her Report drawn up following her visit to Italy in 2012, the UN Special Rapporteur Manjoo stigmatized gender stereotypes that predetermined the role of men and women in Italy and that gave women the main responsibility in home care (while the contribution of the men is among the lowest in the world) and culturally associate it, through its representation in the media, to issues such as sex, fashion and beauty (only minimally to social commitment and professionalism) (UN Human Rights Council, Report of the Special Rapporteur on violence against women, its causes and consequences, Rashida Manjoo, Addendum : Mission to Italy, A/HRC/20/16/Add.2, 15 June 2012, paragraph 11).
According to the Rapporteur Manjoo, the existing rules on this matter are not always applied in the appropriate way due to the lack of homogeneity in the degree of protection at the regional level, the inadequate punishment of the guilty and the lack of effective legal remedies for women victims of violence. Furthermore, legislative interventions and policies are undermined in their effectiveness by the persistence of a widespread substratum of discriminatory prejudices and stereotypes against women that slows down or even prevents the operation of the existing regulatory provisions on the subject. The danger of this cultural problem is appreciable not only in public opinion, but also among the operators who work with women who suffer violence and even in the judiciary, as shown by some recent judgments that the Court of Cassation has annulled, requesting the intervention of the inspectorate offices of the Ministry of Justice, for the strongly stereotyped motivations capable of producing a sort of judicial legitimizing effect of gender-based violence (see Filice, 2019; F.Q., 2019).
At the conclusion of the reporting cycle of the VII Report of Italy, the CEDAW Committee in its 2017 Concluding observations noted the persistence of gender stereotypes in Italian society, asking for more decisive interventions in the school system and the media (paragraphs 25 and 26), and considered with concern the priority given by the Department for family policies to the protection of the family with respect to the elimination of discrimination against women (paragraphs 21 and 22) (on the CEDAW Concluding observations, see. Antoniazzi, 2017).
With regard to gender-based violence against women, the CEDAW Committee appreciated Italy’s efforts to improve its regulatory, institutional and policy framework, such as the adoption of the Law No. 119/2013 and the Extraordinary National Plan Against Sexual and Gender-based Violence, the establishment of the National Observatory on Violence and the creation of the National Database on Gender-based Violence (paragraph 27).
However, Italy’s margins for improvement on this issue are still wide and it is very detailed the list of the principal areas of concerns identified by the Committee, among which the undermining of violence; the low rate of prosecutions and convictions, which result in impunity for offenders; the difficulties faced by women in obtaining restriction/removal orders; the practice of judges to refer victims to alternative dispute resolution procedures, such as mediation and conciliation; the regional and local disparities in the availability and quality of assistance and protection services, including shelters for women victims of violence.
The theme of violence recurs in the CEDAW Committee’s observations on women belonging to disadvantaged groups, as they suffer the cumulative impact of the intersection of several discrimination grounds and, therefore, they are more exposed to violence, such as migrants, asylum seekers and refugees, or women with disabilities.
With regard to the women belonging to some of these disadvantaged groups, notwithstanding a normative framework attentive to the issue of violence, an application evolution and a regulatory orientation of opposite sign stands out.
This is the case of migrant women for whom Article 4 of the Law No. 119/2013 has included in the Consolidated Act on Immigration (Legislative Decree No. 286/1998) the specific rule of Article 18 bis, which provides for the issuance of a residence permit for humanitarian reasons to allow the foreign victim to evade violence, when this is ascertained, and there is a concrete and actual danger for his safety. This provision has played an important function for the emergence of violence against foreign women since it also contains the provision of the predisposition of reception measures. However, the anti-trafficking measures and policies have been progressively weakened by the prevalence of the repressive purpose of the irregular immigration. In shadow reports prepared by the NGOs on the Italian Report to the CEDAW Committee, it is pointed out, in fact, that the difficulty of having access to a residence permit remains the main factor that in Italy exposes foreign women to multiple discrimination and gender violence, as well as to obstacles in accessing anti-violence centers, and that the residence permit for domestic violence is scarcely granted (Shadow Report by Human Rights Watch, 2017). Very often situations of migrant women deserving of a political shelter or subsidiary protection are deferred to a lower level of protection, such as a residence permit for humanitarian reasons. This is in contrast with the view of the Court of Cassation that recognized in order No. 12333/17, domestic violence as part of inhuman and degrading treatment in the light of Article 3 of the Istanbul Convention, and it affirmed that id a State does not offer adequate protection of the victim woman, the latter has the right to obtain subsidiary protection according to the provisions of Legislative Decree No. 251/2007implementing Directive 2004/83/EC on the status of refugees and persons in need of international protection.
This situation is reflected in the CEDAW Committee’s observations on the lack of adequate identification and referral mechanisms for victims of trafficking, which need protection and are often considered perpetrators of crime and irregular migrants rather than victims (paragraph 29, letter c).
On this issue, Law Decree No. 113/2018, commonly known as the Salvini Decree and converted with modification into Law No. 132/2018, marks a significant step backwards in protecting the rights of asylum seekers, in particular women victims of gender-based violence. In fact, it has repealed the residence permit for humanitarian reasons, making it fall into one of the hypotheses of the ‘permit for special cases’ which, however, would not offer equal guarantees to women victims of trafficking or violence.
With regard to women with disabilities, the CEDAW Committee noted a widespread condition of economic dependence that puts them at risk of violence. In the Italian legal system there is not a specific law protecting them from discrimination, therefore it is applied general rules on equal opportunities and equal treatment of gender between men and women without specific references to the condition of disability. No specific indications on women with disabilities are contained in Law No. 66/1996, but only a generic aggravation of the penalty for violence committed against people with disabilities regardless of gender. The total absence of references to women with disabilities emerges in the Extraordinary Action Plan Against Sexual and Gender-based Violence 2015-2017. If the Strategic Plan 2017-2020 finally devotes specific attention to the situation of migrant women, refugees and asylum seekers, for women with disabilities there is a generic quotation concerning the “persistent phenomenologies that must lead to reflections and specific interventions, such as exposure to the violence of vulnerable groups (young women, disabled women) […]”, which is not sufficient to produce actions to protect these women.
The CEDAW Committee returns to the issue of violence in the area of granting child custody, stressing the need to consider in this context gender-based violence in the domestic sphere (paragraph 51, letter b). In particular, the reference is to the use of the ‘parental alienation syndrome’ (PAS) in the divorce and children custody causes, as also provided in Bill No. 735, presented to the Senate on 1 August 2018 and known as Pillon Bill. The PAS is often used in an instrumental manner by the abusive fathers during the causes of children custody with the aim at imputing to the mothers the alienation behaviours assumed by the children towards them. The call of the CEDAW Committee confirms the opposition, underlined by many NGOs, of Pillon Bill to Article 31 of the Istanbul Convention which requires States Parties to take the necessary legislative or other measures to ensure that, in the determination of custody and visitation rights of children, incidents of violence covered by the Convention are taken into account. In this dissonance it is also reflected the “incommunicability” between criminal and civil jurisdiction in personal and family events connected to maltreatment dynamics reported in the Final Report of the Parliamentary Commission of Inquiry on Feminicide, as well as on any form of gender-based violence (pp. 392-394).
It is not only on violence against women committed by private individuals that Italy has been admonished by international control bodies. In the complaint No. 91/2013, presented by the CGIL and examined in 2016, the European Committee of Social Rights of the Council of Europe found a violation of Article 11 of the European Social Charter (right to protection of health), as well as Article E (non-discrimination) in conjunction with Article 11, due to the considerable difficulties encountered by women in accessing abortion practices. According to the Committee, the high percentage of conscientious objection to the voluntary interruption of pregnancy by health personnel and the failure to adopt the necessary measures by the competent State and regional authorities to implement Law No. 194/1978 constitutes a violation of women’s right to health (and a violation of the right to work for non-objecting health personnel). The decision of the Council of Europe Committee highlights, therefore, a default of Italy also with regard to the so-called institutional violence, following the path traced by other international monitoring bodies on the qualification of the criminalization of abortion as a form of gender-based violence against women (see the CEDAW Committee in General Recommendation No. 35, paragraph 18; the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment in its Report of 5 January 2016, A/HRC/31/57, paragraph 44. See De Vido, 2019).
6. Italy’s compliance with the due diligence standard: the ECtHR judgment in the case Talpis v. Italy
In light of the indications of the CEDAW Committee, the due diligence standard is the measurement with which the action of States in the contrast of violence against women is evaluated. This is what emerges also from the recommendations addressed by the CEDAW Committee to Italy, as due diligence represents the cornerstone around which many of the measures that are requested for implementation, such as the adoption of a comprehensive law to prevent, combat and punish all forms of violence against women, as well as of the new national action plan against gender-based violence (paragraph 28, letter a); the evaluation of the response of the police and the judiciary to complaints of sexual crimes and introduce mandatory capacity-building for judges, prosecutors, police officers and other law enforcement officers on the strict application of criminal law provisions on gender-based violence against women and on gender-sensitive procedures for interviewing women who are victims of violence (paragraph 28, letter b); the investigation of racist, xenophobic and sexist acts against women, the prosecution of perpetrators and the imposition of sentences commensurate with the gravity of the crime (paragraph 28, letter e); the reinforcement of the protection and assistance provided to women who are victims of violence, including by strengthening the capacity of shelters and ensuring that they meet the needs of victims and cover the entire territory of the State party, with the allocation of adequate human, technical and financial resources (paragraph 28, letter f); Collect statistical data on domestic and sexual violence disaggregated by sex, age, nationality and relationship between the victim and the perpetrator (paragraph 28, letter g).
The CEDAW Committee’s recommendations on due diligence echo the conclusions reached a few months before by the European Court of Human Rights in its judgment No. 41237/14 of 2 March 2017 in the case Talpis v. Italy. The main object of the application was the (in)fulfilment by the Italian authorities of the duty to protect the victim following the numerous episodes of domestic violence (for which the applicant lodged a complaint) carried out the applicant’s husband – episodes that resulted in the murder of her son and her own attempted murder. The judgment, which received great attention in doctrine with a copious literature of comment, deserves to be reported for the effective reconstruction of the due diligence obligations with respect to criminal acts carried out by private individuals, elaborated by the Strasbourg Court in an evolutionary manner compared to its previous jurisprudence with regard to violence domestic against women.
The question at issue was, in fact, whether or not the Italian authorities had used the necessary diligence required by the Convention in preventing the aggressions perpetrated by the spouse towards the complainant and her son, which integrated a violation of Article 2 (right to life), Article 3 (prohibition of inhuman and degrading treatment) and Article 14 (prohibition of discrimination) of the European Convention on Human Rights. The starting point was the ‘Osman test’ ideated by the European Court in its judgment No. 23452/94 of 28 October 1998 in the case Osman v. United Kingdom to define the scope of the conventional obligations in the protection of individuals threatened by harmful actions carried out by third parties and then, starting from the judgment No. 33401/02 of 9 June 2009 in the case Opuz v. Turkey, was used to verify the necessary diligence by States in cases concerning acts of domestic violence.
According to the ‘Osman test’, in order to give rise State’s liability for omission it must be ascertained that “the authorities knew or should have known there and then that a particular person was effectively and immediately threatened in his life and that they have not adopted, within the framework of their powers, the measures which, from a reasonable point of view, would undoubtedly have eliminated this risk”. Starting from this assumption, the European Court highlighted that, especially in the matter of domestic violence, States Parties to the Convention must not only adopt an adequate regulatory framework able to offer protection against possible acts of violence, but they have also to take preliminary practical measures to protect individuals from violence perpetrated by privates. However, as recalled by the Court, not all threats call the authorities to take measures to prevent it, but only those appearing to be ‘real and imminent’ (paragraphs 100-101). Therefore, even in the context of domestic violence, to ascertain the responsibility of the States, it is not enough to detect, ex post, the perpetrator’s murderous or violent intent, but it is necessary to prove that the authorities reasonably were (or they should have been) aware and, nevertheless, they did not put in place the necessary protective measures.
Applying these principles in the present case, the Court censured the passivity of the Italian judicial and police authorities following the lodging of the applicant’s complaint, believing that their inaction has “deprived the complaint of any effectiveness” and created “a situation of impunity” conducive to the recurrence of the perpetrator’s acts of violence against his wife and family (paragraph 127). This passivity, together with the inadequacy of the police intervention during the night of the tragic events, led the Court to conclude on Italy’s lack of due diligence. Further, the Court introduced a stricter interpretation of the standard of due diligence, stating that the protection obligation is intensified in consideration of the applicant’s belonging to a vulnerable group and the context of endemic discrimination against women in Italy. From the vulnerability of the subject and from the structural discrimination derives, according to the Court, the onset of a duty of early protection. In other words, at a structural risk there is a duty of reinforced protection and special preventive measures. On such premises, the Strasbourg Court held that the behaviour held by the Italian authorities settled below the threshold of diligence imposed by the Convention, integrating a violation of Articles 2, 8 and 14 (in conjunction with the other Articles) of the Convention.
Referring for the critical profiles of the sentence to the relevant literature (see Casiraghi, 2017; De Franceschi, 2018; De Vido, 2017), in the context of the Review a reflection is required regarding the impact of the ruling in domestic jurisprudence, in particular regarding the civil liability of magistrates for fraud or gross negligence in cases of violence against women. The reference is to decision No. 1566/2017 by which the Court of Messina, a few months after the sentence of the European Court, recognized the responsibility of the Public Prosecutor for not having arranged any act of investigation and any measures aimed at neutralizing the dangerousness of the perpetrator before the multiple complaints presented by a woman victim of abuse by her husband, who had finally killed her. Ten years after the commission of the crime, the Court of First Instance established a “violation of the law with inexcusable negligence” by the competent magistrates with consequent condemnation of the Presidency of the Council to the compensation of pecuniary for the damage deriving from the death of the mother to the children of the victim (on the judgment, see Buscemi, 2017; De Vivo, 2017). What is relevant for our purposes is that in judgment the Court of Messina expressly refers to the ruling of the Strasbourg Court to reiterate that in the matter of domestic violence the task of a State does not end in the mere adoption of provisions of law to protect the most vulnerable individuals, but it is extended to ensuring that the protection of these subjects is effective, highlighting that the inertia of the authorities in applying these provisions results in a nullification of the instruments provided therein.
The conclusions of the Court of Messina do not reflect a shared jurisprudential orientation on the interpretation of the State due diligence obligations of the State in the matter of violence against women, given that the Court of Appeal of Messina with decision No. 198 of 19 march 2019 reversed the ruling of the first degree, annulling the compensation to the victim’s children, on the assumption of the lack of any responsibility of the institutions for the incident, either because the legislation of that time did not include the crime of stalking, and because the ill-treatment and threats reported by the victim did not appear serious enough to allow the precautionary measure to her husband.
7. Reflections on the evolution perspectives in Italy
If it is in the prism of prevention and due diligence – not therefore the only criminal reaction – that the fight against gender violence can be considered effective, Italy will have to work under these profiles in the light of the evaluations of the international bodies. The numerous regulatory interventions carried out over time have gradually filled the protection gaps and the inadequacies of the regulatory structures in Italy. However, the need for regulatory interventions that address the issue of violence against women from a holistic and structural perspective persists.
However, it appears unchanged the perspective of the Italian legislator, whose recent initiatives on the subject do not deviate from the purely repressive trend. Law No. 69/2019, known as ‘Red Code’, is characterized by a general sanction tightening and by the introduction of new crimes, such as the unlawful dissemination of sexually explicit images or videos (the so-called revenge porn), the deformation of the person’s appearance through permanent injuries to the face, the constraint or induction to marriage. From the point of view of due diligence, Law No. 69/2019 provides that the judicial police will report the crime to the magistrate and that the female complainant must be heard compulsorily by the public prosecutor within three days. The purpose of the new provisions is clear: to guarantee an immediate intervention of the judiciary, if necessary also of a personal precautionary nature, at the same time demonstrating to the injured person the closeness of the State. However, the performance of this fulfillment will not entail any real possibility for the woman to benefit from greater and more effective protection after having reported violence.
The rules of the “Red Code” address the problem of gender-based violence from an essentially repressive perspective, without introducing measures to improve the prevention of the phenomenon. Even the cultural and educational aspects are scarcely taken into consideration, with a single rule that provides for the subordination of the conditional suspension of the sentence to participation in remedial courses at institutions that deal with prevention, psychological assistance and recovery of those convicted of this type of offenses. However, this is a rule that presupposes that a crime has already been committed and that a sentence of conviction has been received, which therefore does not appear to be enrolled in a perspective of prevention and cultural education aimed at avoiding the commission of these offenses (see Cardamone, 2019).
However, it is precisely from the cultural and educational aspects, in which violence against women historically has its roots, that it must start again. In the context of the contrast of gender-based violence, law can effectively play its role only by fighting the gender stereotype that it triggers. If not accompanied by an adequate awareness of the cultural matrix of these crimes, the set of adopted rules can be lost in its purpose. Therefore, the more these aspects will be addressed, the more the adaptation of domestic law will be ‘faithful’ to what international law in this matter imposes and the fight against violence will find the fertile place for the implementation of the law.
- Antoniazzi, Comitato di controllo della Convenzione sull’eliminazione di tutte le forme di discriminazione contro le donne. Le Osservazioni conclusive del Comitato CEDAW al settimo rapporto periodico dell’Italia, in La Comunità internazionale, 2017, fasc. 3, p. 491 ff.
- Buscemi, La protezione delle vittime di violenza domestica davanti alla Corte europea dei diritti del’uomo. Alcune Osservazioni a margine del caso Talpis c. Italia, in Osservatorio sulle fonti, n. 3, 2017, p. 1 ff.
- Cardamone, Gli stereotipi di genere tra prospettiva sociologica e codice rosso, in Magistratura e società, 14 September 2019, http://questionegiustizia.it/articolo/gli-stereotipi-di-genere-tra-prospettiva-sociologica-e-codice-rosso_14-09-2019.php
- Casiraghi, La Corte di Strasburgo condanno l’Italia per la mancata tutela delle vittime di violenza domestica e di genere, in Diritto penale contemporaneo, 13 March 2017, https://www.penalecontemporaneo.it/d/5278-la-corte-di-strasburgo-condanna-litalia-per-la-mancata-tutela-delle-vittime-di-violenza-domestica-e
- De Franceschi, Violenza domestica: dal caso Rumor al caso Talpis cosa è cambiato nella giurisprudenza della Corte Europea dei Diritti dell’Uomo?, in Giurisprudenza penale, 2018, http://www.giurisprudenzapenale.com/wp-content/uploads/2018/01/DeFranceschi_gp_2018_1.pdf
- De Vido, The ECtHR Talpis v. Italy Judgment. Challenging the Osman Test through the Council of Europe Istanbul convention?, in Ricerche Giuridiche, vol .6 – No. 2, December 2017, p. 7 ff. https://edizionicafoscari.unive.it/media/pdf/article/ricerche-giuridiche/2017/2/art-10.14277-Rg-2281-6100-2017-02-001_soQ2GOC.pdf
- De Vido, The Prohibition of Violence Against Women as Customary International Law? Remarks on the CEDAW General Recommendation No. 35, in Diritti umani e diritto internazionale, vol. 12, n. 2, 2018, p. 379 ff.
- De Vido, Conscientious Objection and Access to Abortion in the Case CGIL v. Italy decided by the European Committee of Social Rights, in Hitotsubashi Journal, 2019, p. 45 ff.
- De Vivo, Mancata tutela delle vittime e responsabilità civile dei pubblici ministeri. Nota a Tribunale di Messina, I sez. civile, sent. del 30/5/2017 (n. 5384/2015), 27 July 2017, http://www.forumcostituzionale.it/wordpress/wp-content/uploads/2017/05/devivo.pdf, p. 1 ss.
© Rachele Cera and ISGI, November 2019.
Quotation: R. Cera, Non-Discrimination and Gender-Based Violence In Italy Over the Check of International Monitoring Bodies. In: “Italy and International Law. Survey of Italian cases and materials on International law by the Institute for International Legal Studies of the National Research Council of Italy”, edited by G. Palmisano and O. Ferrajolo, No. 3: 2016-2017, November 2019, http://www.larassegna.isgi.cnr.it/en/focus-non-discrimination-and-gender-based-violence-in-italy-over-the-check-of-international-monitoring-bodies/