Information Note on the Court’s case-law 184

April 2015

Cestaro v. Italy - 6884/11

Judgment 7.4.2015 [Section IV]

Article 3

Torture

Acts of torture committed by members of security forces against demonstrators at G8 summit: violation

Effective investigation

Positive obligations

Inadequacy of legal machinery for punishing members of security forces responsible for torture and other ill- treatment of demonstrators at G8 summit: violation

Article 46

Article 46-2

Execution of judgment

Measures of a general character

Respondent State required to take general measures with a view to punishing persons responsible for torture and other ill-treatment

Facts – The twenty-seventh G8 summit took place in Genoa in July 2001. A number of NGOs organised an alternative anti-global isation summit in the city at the same time. On the night of the last day of the summit the security forces decided to carry out a search in two schools used as night shelters for “authorised” demonstrators, to find evidence and possibly to arrest members of a group responsible for acts of violence. About 500 police officers took part in the operation.

After breaking down the doors of the school where the applicant was taking shelter, the security forces began to strike the occupants with their fists, feet, and truncheons, while shouting and threatening the victims, some of whom were lying or sitting on the ground. A number of occupants, awakened by the noise of the attack, were struck while they were still in their sleeping bags. Others had their hands up i n surrender or were presenting their identity papers. Some were trying to escape, hiding in toilets or storerooms, but they were caught, beaten and sometimes pulled by their hair from their hiding places. When the police arrived the applicant, then aged 62 , was sitting with his back to the wall and his arms raised. He was struck several times, especially on the head, arms and legs, causing multiple fractures. He was operated on in hospital, where he spent four days. He was temporarily unfit for work for a p eriod of more than 40 days. He has never fully recovered from his injuries, which have left him with permanent weakness in his right arm and right leg.

After an investigation opened by the public prosecutor’s office, 30 members of the security forces stood trial. The applicant joined the proceedings as a civil party. Some charges were time-barred and, after sentence reductions, the prison sentences actually served were for terms of between three months and one year, and only for attempts to justify ill-trea tment and unlawful arrest. No one was convicted for the ill-treatment itself.

Law – Article 3

(a) Substantive limb – The facts had been established by the domestic courts and were not in dispute between the parties. It could not be denied that the ill-treatment of the applicant had caused him acute pain and suffering and that it had been particularly serious and cruel in nature. In addition, in view of the lack of resistance on the part of the occupants, there was no causal link between the applicant’s conduct and the use of force by the police. The ill-treatment at issue in the present case had thus been inflicted on the applicant totally gratuitously and could not be regarded as a means used proportionately by the authorities to fulfil the intended aim. In this connection it was noteworthy that the storming of the school was supposed to be a search, but at no time had the police attempted to converse with the persons who had lawfully taken shelter in the building, or to ask them to open doors that they had been entitled to close, preferring to break them down. Lastly, the police had systematically beaten up all the occ upants in the building. Therefore, the ill-treatment of which the applicant, among others, was a victim had undoubtedly been intentional and premeditated. Nor was there any doubt about the attempts by the police to conceal these events or to justify them o n fallacious grounds.

In those circumstances, the seriousness of the ill-treatment inflicted when the police stormed the school could not be relativised in the light of the very tense context resulting from the numerous clashes which had taken place during the demonstrations or the very specific requirements of the protection of public order. Any tension arising during the storming of the school by the police could be explained less by objective reasons than by the decision to carry out well-publicised arre sts and by the adoption of operational tactics that did not meet the requirement to protect the values arising from Article 3 of the Convention.

Having regard to the foregoing, the ill-treatment sustained by the applicant when the police raided the school was to be characterised as “torture” within the meaning of Article 3 of the Convention.

Conclusion : violation (unanimously).

(b) Procedural limb

(i) Failure to identify the perpetrators of the ill-treatment at issue – The police officers who had attacked the applicant in the school and had physically subjected him to acts of torture had never been identified. They had not therefore been the subject of an investigation and had quite simply remained unpunished.

(ii) Time-barring of charges and partial redu ction in sentences – As regards the storming of the school, the acts of violence committed there and the attempts to conceal or justify them, a number of officers of the security forces, of higher and lower ranks, had been prosecuted and had stood trial fo r various offences. However, after the criminal proceedings, nobody had been convicted for the ill-treatment perpetrated in the school against the applicant, among others, as the offences of wounding and grievous bodily harm had become time-barred. The con victions upheld by the Court of Cassation had concerned the attempts to justify the ill-treatment and the lack of any factual or legal basis for the arrest of the school’s occupants. In addition, by the effect of the general reduction in sentence, the term s of imprisonment had been reduced by three years. The convicted persons had thus had to serve between three months and one year. Having regard to the foregoing, the authorities had not reacted sufficiently in response to such serious acts, and consequentl y that reaction had been incompatible with their procedural obligations under Article 3 of the Convention.

However, this result could not be imputed to the shortcomings or negligence of the public prosecutor’s office or the domestic courts, which had been firm and had not been responsible for any delay in the proceedings. It was the Italian criminal legislation applied in the present case which had proved both inadequate as regards the need to punish acts of torture and devoid of the necessary deterrent eff ect to prevent other similar violations of Article 3 in the future.

Conclusion : violation (unanimously).

Article 46: The Court ruled out any negligence or indulgence on the part of the public prosecutor’s office or the trial courts and found that the Itali an criminal legislation had been inadequate. The structural nature of the problem thus seemed undeniable. However, that problem arose not only for the repression of acts of torture but also for the other ill-treatment prohibited by Article 3: in the absenc e of any appropriately differentiated sanctions under Italian criminal law for all the acts of ill-treatment prohibited by Article 3, the statute of limitations and the system of sentence reduction could in practice preclude any punishment, not only of tho se responsible for acts of “torture” but also of the perpetrators of “inhuman treatment” and “degrading treatment”, in spite of all the efforts of the prosecution authorities and trial courts.

The State’s positive obligations under Article 3 might include the duty to introduce an adapted legal framework, in particular through effective provisions of criminal law. In that connection, the Italian legal order needed legal mechanisms that could ensure adequate punishment for the perpetrators of acts of torture or other ill-treatment and prevent such individuals from benefiting from measures that were incompatible with the Court’s case-law.

Article 41: EUR 45,000 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.

© Council of Eur ope/European Court of Human Rights This summary by the Registry does not bind the Court.

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