PROTECTING VICTIMS OF DOMESTIC AND
GENDER-BASED VIOLENCE: STRENGTHS AND WEAKNESSES OF THE SO-CALLED «RED CODE»*
Università di Sassari
Contents: 1. Introduction. – 2. A new investigative protocol. – 3. Protecting victims
«through» criminal proceedings: changes in the precautionary field. – 4. Domestic and gender-based
violence: new crimes, more severe penalties. – 5. Protection of domestic and
gender-based violence victims «beyond» criminal proceedings. – 6. Conclusion. – Abstract.
1. – Introduction
Similarly to what has occurred at a
supranational level, the awareness that not all those who have suffered a crime
(victims) are equal has slowly made its way into the Italian criminal system[1].
Due to objective or subjective causes, some victims of crime are more exposed
to the risk of repeated
victimization, and to the danger of secondary victimization, deriving from
their participation in criminal
proceedings[2]. The status
of «vulnerable victim» does not have defined boundaries, since it is a concept
of relationships that is variable according to the type of threat taken into consideration. The extent of vulnerability changes depending on whether we look at it
from a substantive criminal law perspective of protecting a person against the
risks of primary victimization[3], or
from a procedural point of view of defending victims from the dangers of secondary or repeated victimization[4]. On a
different level, there is a distinction between an «endogenous» and an
«exogenous» vulnerability. The first one is linked to the victim's subjective
profile, relating to the physical or
mental fragility of the affected person (for example minors and the mentally
ill). «Objective» vulnerability arises from a criminal conduct likely to render
the victim fragile (for example terrorism and domestic
violence)[5].
If
the notion of a vulnerable victim varies according to the aspects involved, the
system must take specific measures.
This
happened recently in Italy with the Law of 19 July 2019, No. 69, which
sought to provide an answer to the need to fight domestic and gender-based
violence[6].
One
of the reasons that led the Italian legislator to intervene was the judgment of the European Court of
Human Rights in Talpis v. Italy of 2 March 2017, in
which the Strasbourg Court condemned Italy for violating the right to life and
the prohibition of inhuman or degrading treatment, as well as the prohibition
of discrimination because the Italian authorities in the case in question had
not adopted the necessary and appropriate measures to protect a woman and her
children who were victims of domestic violence committed by the woman’s
husband. The affair ended with the attempted murder against the applicant and
the murder of her son. For the
Strasbourg judges, the national authorities had to have taken into account «the
victim’s situation of extreme psychological, physical and material insecurity
and vulnerability and, with the utmost expedition, assess the situation
accordingly», offering her appropriate assistance[7]. However, in the instant case, even though
investigations were instigated against the applicant’s husband for the offences
of family ill-treatment, bodily injury and threats of violence, no protection
order was issued and the applicant was heard only seven months after lodging
her complaint[8]. Such a delay resulted in a violation of art. 2 CEDU
since it had deprived the complaint of any effectiveness, creating a situation
of impunity conducive to the recurrence of the man’s acts of violence[9]. At the same time, there has been a violation of art.
3 CEDU, because of: 1) the seven months of official inertia before the
instigation of criminal proceedings; 2) the tree years of criminal proceedings
for severe bodily injury after the applicant had lodged her complaint[10]. Finally, the Strasbourg Court concludes that there
has been a violation of art. 14 CEDU taken in conjunction with articles 2 e 3
CEDU «since the Court considers that the violence perpetrated against the
applicant must be regarded as based on her sex and accordingly as a form of discrimination
against women»[11].
With
a view to complying with the Strasbourg judgment, the new law introduces for
the first time a sort of preferential path in preliminary investigations
concerning crimes of domestic and gender-based violence: the purpose is to
guarantee priority in conducting investigations and an immediate establishment
of criminal proceedings in order to
allow rapid intervention on a
precautionary level[12].
In
relation to substantive criminal law, the new provisions identify certain crimes and introduce new ones, namely
the expression of physical, sexual and psychological violence that occur mainly, even if not
exclusively, in close relationships. Specifically,
the offences taken into consideration are ill-treatment against family members and cohabitees
(art. 572 Italian Criminal Code); sexual
violence, aggravated sexual violence and group sexual violence (art. 609-bis, 609-ter
and 609-octies Italian Criminal Code); sexual
acts with a minor (art. 609-quater Italian Criminal Code); corruption of a minor (art. 609-quinquies Italian
Criminal Code); stalking (art.
612-bis Italian Criminal Code); illicit
dissemination of sexually explicit images or videos (art. 612-ter Italian
Criminal Code); personal injuries and deformation of the person's
appearance through permanent injuries to the face (art. 583-quinquies
Italian Criminal Code) where
specific aggravating circumstances exist. Italian
Law 69/2019 also introduces the crime of coercion or induction into marriage (art. 558-bis Italian Criminal
Code) which, however, is not considered for the purpose of applying
the specific procedural rules established by the law itself, even though it is
a crime in terms of gender-based violence. Other crimes that express such types
of violence such as, for example, female
genital mutilation, remain
outside the scope of the new Law as well.
Finally,
Italian Law 69/2019 aims to protect victims of domestic and gender violence
even beyond criminal proceedings. In this regard, after the criminal
proceedings specific psychological treatment is provided for the author of some
of the aforementioned crimes in order to counter recidivism. The scope of
preventive measures, operating before and independently of the establishment of
criminal proceedings, has been extended.
The
Italian legislator's goal is commendable, but it must be emphasized that
Italian Law 69/2019 raises several problems.
In
this paper I will try to draw attention to the positive and negative aspects of
a law that aims to win the battle against the endemic phenomenon of domestic
and gender-based violence.
2. – A new investigative protocol
Firstly,
the law in question states that criminal police, after receiving a notitia criminis
involving any of the offences referred to in art. 347 para. 3 Italian Criminal
Procedure Code[13], shall inform the public
prosecutor of it immediately, also orally. This introduces a priority criterion,
in the sense that the new Law
requires investigations for the aforementioned crimes be carried out with absolute speed (Article 347 para.
3 Italian Criminal Procedure Code). In
this context, the criminal police
must also proceed without delay to carry out the investigative actions
delegated by the public prosecutor and, again without delay, make the records
of the activities carried out available to him (art. 370 para. 2-bis and
2-ter Italian Criminal Procedure Code).
New
aspects also concern the activity of the public prosecutor, who must gather information from the victim or from
the person who submitted a report, complaint or petition for criminal
proceedings within three days of the date in which the notitia
criminis was entered in the dedicated register,
unless there is an absolute need for the protection of minors or for confidentiality of investigations
also in the interests of the victim (art. 362 para. 1-ter Italian
Criminal Procedure Code)[14].
In
particular, art. 362 para 1-ter of the Italian Criminal Procedure Code
seeks to allow a rapid intervention on a precautionary level. However, the
restriction of the public prosecutor’s discretion with reference to the
gathering of information in the
established short term may give rise to difficulties in interpreting the scope
of the duty in question, even if there is no procedural sanction in the event
of non-compliance of the same.
First
of all, it has been highlighted that the public prosecutor would seem to be bound to take information from the victim even where the latter had already been
heard by criminal police at the
time of filing the report or the complaint, with all the possible negative
consequences in terms of secondary victimization[15].
However,
some public prosecutors, who have published guidelines on the matter,
consider that the victim of crime
heard by criminal police before the formal registration of the notitia criminis should
not be examined again if certain
conditions are met, namely if the criminal
police have already gathered from the victim all the useful elements identified
by the public prosecutor to allow him to make a quick decision on the
protection of the affected person and on the development of the proceedings[16].
It
has been argued that in those cases it is not only useless to rehear the victim
after a few days, since it can be foreseen that the affected person will not be
able to add anything to what was previously declared, but could also give rise
to a pointless secondary victimization. It
should be considered, in this regard, that the
public prosecutor may avail himself of the criminal police for carrying out
investigative activities and specifically delegated actions, including
gathering the victim’s statements pursuant
to art. 370 Italian Criminal
Procedure Code[17].
It
has also been observed that the prosecutor should not hear the victim of crime in cases where the report of the crime
appears to be manifestly unfounded or a condition of admissibility of the
criminal proceedings is lacking (for
example, when the complaint was submitted outside of time constraints)[18].
Besides,
the new Law itself introduces exceptions to the aforementioned investigative
protocol both when there is a need to protect minors, and when it is necessary
to guarantee the confidentiality of investigations also with a view to
protecting the victim.
In
particular, with reference to minors, especially when they are very young, it
will be necessary to preliminarily assess their ability to testify, considering
the developmental stage of the
child 's personality, with specific regard to
cognitive abilities and the possible propensity to suggestion, both in general
terms and towards specific people[19]. Therefore,
those requirements might not allow compliance with the three-day deadline set
by the Law.
As
for the need to guarantee the confidentiality of investigations, also in order
to protect the victim, there are different situations that may come into play:
consider a case in which the report comes from
a third person and the victim of crime is not available to make statements, or
a case in which it is necessary to proceed with the summons at the domicile
where the suspect could be, revealing the pending proceedings to the same[20].
With
reference to the vulnus of the investigative
secret, consider a case in which the crime emerged from the results of
wiretapping: in these circumstances the gathering of the victim's statements
could result in an inappropriate early discovery
of proceedings[21].
The
introduction of a fast path in taking charge of criminal proceedings for
domestic and gender-based offences aims above all to allow swift intervention
with a precautionary plan. Indeed, the criminal proceedings in question relate
to crimes for which there is not
only a high risk of reiteration of criminal
conduct, but also a high danger of escalation,
since the development of this category of crimes is likely in even more serious
acts, up to murder. It is thus
surprising that, considering the public prosecutor’s duty to hear the victim
within three days of entering the notitia criminis
into the specific register, there is no deadline for the judge's decision with
regard to a possible request for a precautionary measure by the same public
prosecutor. It can be argued in
this regard that it makes sense to provide for timely intervention by the
public prosecutor only to the extent that it is followed by an equally timely
intervention by the preliminary investigations judge into precautionary function[22].
On
the other hand, it must be remembered that in the Talpis
case the Strasbourg Court sentenced Italy for violation of art. 3 CEDU also
because of the length of criminal proceedings. In this regard, it should be
noted that art. 132-bis of the implementing provisions of the Italian
Criminal Procedure Code requires prioritising criminal proceedings concerning
the crimes most often associated with instances of gender-based violence, i.e.
ill-treatments, stalking and sexual violence. It has been highlighted by the Grevio Evaluation Report about Italy, published on 13
January 2020, that «however, the norm does not alter the general time limits
which apply for concluding inquiries into criminal offences (18 months or 24
months in cases of aggravated sexual violence, sexual violence on children and
gang rape) and no deadline applies to cases before the court of appeal and
cassation»[23]. According to Grevio
Report, «available data would indicate that the average duration of
first-instance trials into gender-based violence-related cases is three years;
however courts’ practices vary considerably and delays in proceedings lead to
significant numbers of cases being time-barred»[24]. These findings demand the introduction into the
Italian system of fixed times for the duration of the various procedural
stages.
3.
– Protecting victims
«through» criminal proceedings: changes in the precautionary field
Moving
on to the analysis of the new provisions regarding precautionary measures, Law
69/2019 extends the possibility
of control through electronic means or other technical devices (the so-called
electronic bracelet) to the
prohibition of approaching places
attended by the victim (art. 282-ter Italian Criminal Procedure Code). However, the new Law does not regulate
operational matters concerning
the installation of electronic bracelets:
these should work in a
different way from those associated with house arrest, as they are installed on
a free person and aim to warn of an excessive approach to the victim, who should also consent to the
installation of a connected device on himself. Nothing is planned as regards the
resources to be allocated for the implementation of the standards. On the contrary, art. 21 Law 69/2019 states that the
implementation of the provisions contained in the law must not result in new or
greater charges for public finances[25]. Well,
it is known that the so-called «anti-stalker»
variant of the electronic
bracelet is a prototype supplied to very few criminal police forces and in a very small number of cases[26]. Hence, due to the express provision not to invest economic resources in the
implementation of the Law, the innovation mentioned will have little or no
practical impact, remaining nothing more than a media signal.
The
new Law also intervenes on art. 275
para. 2-bis Italian Criminal Procedure Code allowing
precautionary detention in prison with reference to the dissemination of
sexually explicit images without consent, even if the sentence imposed as a
result of the trial may not exceed three years of imprisonment.
Moreover,
various information requirements are introduced to protect the victim on a precautionary level.
Specifically,
it is stated that the decisions
ordering the injunction to stay away from the family home (art. 282- bis
Italian Criminal Procedure Code) and from the places attended by the victim
(art. 282- ter
Italian Criminal Procedure Code) are communicated, in addition to the latter
and to the territorial social-assistance services, also to the victim’s defence
lawyer, where appointed (art. 282-quater Italian Criminal Procedure
Code). The communication in
question seeks to inform the victim of crime of the adoption and content of the
aforementioned coercive measures in order to allow him to report any violations
of the instructions given by the judge. In
this regard, it may be useful to point out that a new crime has been introduced
through art. 387- bis
Italian Criminal Code which provides for imprisonment from six months to
three years for those who violate the obligations imposed by the aforementioned
precautionary measures[27]. However, it
is a poorly effective provision for precautionary purposes, given that the
extent of the punishment does not allow arrest in flagrante delicto or
the application of precautionary measures. It will therefore be necessary to
continue to rely on the provision of the
Italian Criminal Procedure Code that
allows an aggravation of the precautionary measure in place in the event of
violations of the imposed obligations (art. 276 Italian Criminal Procedure
Code)[28].
Withdrawal
or substitution in melius of coercive precautionary measures applied in proceedings for crimes committed
with violence against the victim shall be immediately communicated[29] by the criminal police to the social-assistance
services and to the victim, as well as, where appointed, to his lawyer, while
previously the communication was directed exclusively to the latter and, only
in case of his absence, to the victim of crime. Again in this case, it is an
obligation aimed to inform the victim of the crime of events that could
endanger him, thus allowing the person concerned to protect himself in an
extra-procedural way.
The
immediate notification to the victims of crimes set out by the new Law and to their lawyer, where appointed, of the accused or convicted person’s
release or escape from detention, regardless of both the request of the victim and a real risk of harm to the offender which would result from such notification, is
also finalized to those needs[30].
Another
important duty to provide information, although not directly relevant to a
precautionary plan, is that relating to victim
support services, now included in the information that shall be given to all victims of crime upon the first contact with the
proceeding authority (art. 90-bis Italian Criminal Procedure Code), even
though such services are not yet fully regulated by law in the Italian legal
system[31].
4. – Domestic and gender-based violence: new
crimes, more severe penalties
Major
innovations affect the substantive side of the criminal prosecution of domestic
and gender-based violence: new criminal offences have been introduced, more severe penalties have been
provided for some crimes, there have been some
changes regarding aggravating
circumstances, as well as an intervention on
requirements for the prosecution of
crimes of sexual violence and sexual acts with a minor.
With
reference to the new crimes, in addition
to the aforementioned offence of violation of the obligations imposed by decisions
ordering the injunction to stay away from the family home and from the places
attended by the victim, other newly introduced criminal offences are the crime
of coercion or induction to marriage (art. 558- bis
Italian Criminal Code); the
crime of deformation of the person's appearance by permanent lesions of the
face (art. 583- quinquies Italian Criminal Code); the crime of unlawful dissemination of
sexually explicit images or videos without the consent of the person portrayed
(art. 612- ter
Italian Criminal Code).
Through
the crime of coercion or induction to marriage, both the compulsion with violence or
threats, and the induction to marriage or civil union - based in the latter cases on the abuse of a
dominant position or on the advantage of the victim's vulnerability - are
punished: the penalty is imprisonment from one to five years[32]. The
criminal proceedings are carried out in Italy even if the crime was committed
abroad, provided that the victim or offender is a foreigner resident in Italy or an Italian citizen.
The
new criminal offence seeks to counter so-called forced marriages, a plague that
especially afflicts some countries of the developing world, but which can also
be found more and more often in today's multicultural and multi-ethnic
societies[33]. Art. 558-bis
Italian Criminal Code, which also provides for two aggravating circumstances in
cases where the acts were committed against children, are therefore welcomed,
hoping that criminal protection will be increased in the future through
prevention and monitoring of the phenomenon[34].
Furthermore, deformation of a person's appearance
by means of permanent lesions to the face (Art. 583-quinquies Italian
Criminal Code) has been
established as an independent
crime, no longer as an aggravated form of the crime of injury. In the basic cases, the rule in
question punishes those who disfigure a person's face permanently with
imprisonment from eight to fourteen years. In
this regard, it was acknowledged that the crime of injury, even if aggravated, did not provide a satisfactory answer to the extremely serious impairment
suffered by the victims of facial disfigurement[35].
Life imprisonment is envisaged when murder
is the result of the commission of the crime in question.
Action
is also taken in the penitentiary system (art. 4 –bis para. 1-quater and 1-quinquies Italian Law 26 July 1975, n. 354),
allowing access to penitentiary benefits and alternative measures to detention
for those convicted of the offence of deformation of appearance by permanent injury to the face only on
the basis of scientific observation of their personality, collectively
conducted for at least one year, also with the aid of experts. At the same time, the positive participation in specific
rehabilitation programmes must be taken into account by the sentence
supervision judge or court for the granting of «extramural measures».
On
a repressive level, great importance has been given to the inclusion in the
Italian Criminal Code of the crime of unlawful dissemination of sexually
explicit images or videos without the consent of the portrayed person (Art.
612-ter Italian Criminal Code): whoever
creates or subtracts images or videos and then disseminates them without the
victim's consent is punished with imprisonment from one to six
years; the same penalty is imposed on those who, after having received the
images or videos in question - therefore without having realized or subtracted
them - spread them without the consent of the affected person, in order to harm
the latter[36]. Art. 612-ter
Italian Criminal Code is the punitive response to the phenomenon defined with the
neologism «Revenge porn», coined
in the Anglo-Saxon world to indicate non-consensual disclosure, inspired by
vengeful purposes, of intimate images of the former partner[37]. This
crime can be prosecuted subject to complaint, which may be withdrawn only
before the proceeding authority. The
offender is punished, basically, with imprisonment from one to six years, but the crime is aggravated if the victim
is, or was, linked to the author by marriage or even simply by an affective
relationship, or if the facts were committed through the use of computer or telematic means. Since the offensive power of so-called
revenge porn is essentially based on the use of
digital technologies, which make it at the same time very simple to implement
(in fact, it only takes a few clicks to commit the crime), statistically the aggravated
accusation will be much more likely than the basic one[38]. Furthermore,
the penalty is increased from a
third to a half if the facts were
committed in damage to a person in a condition of physical or mental
inferiority, or against a pregnant woman. In
these cases, the proceedings are started without a need for complaint.
Italian
Law 69/2019 does not specify which images or videos can be considered sexually
explicit, therefore tacitly assigning this task to the courts. The explicit sexual connotation is not, however, the only requirement with reference to
images or videos, in the sense that they must have been created in a
confidential context, in which they would have remained without one of the
above indicated criminal activities.
The
judgment on the introduction of the crime in question is positive even if it
must be understood that the criminal response is only one of the steps to be
taken to effectively fight the phenomenon of so-called revenge porn. There are still other important issues to be
addressed, such as, for example, the role of digital platforms in the dissemination of sexually
explicit images published without consent (imposing, for instance, the immediate preventive blocking of
harmful content, following the example of the
Italian legislation against the cyber-bullying)[39]. In
that area, possible paths of psychological support for victims of crime and, as
a preventive measure, the
implementation of digital education, especially among young people, seem to be crucial too. Finally, it should be noted that the
crime in question is not among the cases that require the public prosecutor to
hear the victim of the crime or the person who submitted a report, complaint or
petition for criminal proceedings within three days of when the notitia criminis is
entered in the dedicated register.
Italian
Law 69/2019 also tightens the
regulation of aggravating circumstances of
various crimes of domestic and gender-based violence.
It
can be highlighted, for example, that when the crime of ill-treatment against
family members and cohabitees is
committed in damage or in the
presence of a minor, against a
pregnant woman or a disabled person,
there will be a special aggravating circumstance with an increase of up
to half of the penalty.
Furthermore,
a new additional paragraph in art. 572
Italian Criminal Code expressly qualifies the minor who witnesses
ill-treatments as a victim of crime, thereby giving express legal relief to the
injury to psychic integrity suffered by minors who witness this type of crime.
As
concerns requirements for prosecution, the deadline for submitting a complaint
regarding crimes of sexual violence provided for in articles 609-bis and 609-ter
Italian Criminal Code has increased from six months to one year, while the
offence of sexual acts with minors set out in art. 609-quater Italian Criminal
Code is now subject to ex officio
prosecution (art. 609-septies Italian Criminal Code). The need to assign the victim of sexual
violence more time in order to decide whether to submit a complaint or not is
therefore recognised, as well as in reference to minors, considering the difficulty of submitting a complaint
when children or young persons are involved in a pathological relationship with the offender, who could possibly even be
their legal representative[40]. Regarding ex parte and ex officio
prosecution, Grevio Report has however stated that
Italian legislation is not yet fully compliant with art. 55 para. 1 of the
Istanbul Convention which requires the Parties to ensure that investigations
into or prosecution of a number of categories of offences «shall not be wholly dependant upon a report or a complaint filed by a victim
(…), and that the proceedings may continue even if the victim withdraws her or
his statement or complaint». Actually, in the Italian criminal system the
crimes of simple bodily injury (art. 582 para. 2 Italian Criminal Code) and
sexual violence (art. 609-bis Italian Criminal Code), where the violence
is not qualified by one of the aggravating circumstances described in art. 609-septies,
para. 2 Italian Criminal Code, are still prosecutable only upon a complaint of
the victim[41].
5.
– Protection of domestic
and gender-based violence victims «beyond» criminal proceedings
That
which the new Law provides on a procedural and sanctioning level has been
briefly explained.
The
protection of victims of domestic and gender-based violence cannot, however, be
limited to the criminal process, but must be implemented on the one hand even
after the conviction of the offender, and on the other hand before and
independently of the establishment of criminal proceedings.
The
crimes in question have a markedly cultural connotation; it follows that it is not realistic to
address the phenomenon of domestic and gender-based violence as a whole without
delving into an in-depth educational exploration, and with regard to persons
convicted of crimes of this type, without providing for parallel re-educational work that finds its
elective field in the enforcement phase of the conviction - aimed at the rehabilitation
of the offender pursuant to art. 27 para. 3 of the Italian Constitution[42].
In
this perspective, Italian Law 69/2019 intervenes
on several rules. A provision has
been inserted in art. 165 Italian
Criminal Code, pursuant to which in cases of conviction for the crimes set out
therein, the conditional suspension of the sentence is in any case subject to
participation in specific recovery plans with institutions or associations
dealing with prevention, psychological assistance and recovery of subjects
convicted of the same offences. The
new rule is very timely, even if the penalties provided for many of the crimes
taken into consideration by the article in question will make it difficult to reach a sentence of less than two years of imprisonment and,
therefore, to grant conditional suspension of the sentence[43]. At the
same time, art. 13-bis Italian Law 354/1975 (Penitentiary
Law) provides that prisoners convicted of
sexual offences, mistreatments against family members or cohabitees,
deformation of the person’s appearance through permanent injuries to the face and stalking may be allowed to follow rehabilitation courses in
institutions or associations that deal with prevention, psychological assistance
and recovery of persons convicted of the same crimes, organized by agreement
between the aforementioned bodies or associations and the penitentiary
institutions. The inadequacy of
the sole criminal sanction to face the phenomenon of domestic and gender
delinquency is therefore acknowledged, due to the complex personality of the
convicts who often tend to deny or minimize the negative value of the committed
facts, and to the high rate of recidivism. Although
no participatory obligation is imposed on the authors of crimes indicated by
the Law, in practice participation in such treatment will condition access to
penitentiary benefits, given that participation in the same is taken into
consideration for the purpose of
granting the benefits provided
for by art. 4-bis Italian Law 354/195, especially as regards
convicts of sexual crimes against children.
Failure to participate in the aforementioned treatment, although not
constituting an element impeding the granting of penitentiary benefits, will impose
a specific motivational obligation on that point to the sentence supervision
judge or court[44].
Perpetrators’ programmes are then welcomed, even if it
should be borne in mind that they should «work in close co-operation with
women’s specialist services to ensure victims are adequately informed and
protected»[45].
Finally,
a form of protection for victims of domestic or gender-based violence, even
outside the criminal proceedings and regardless of the beginning of the same,
can be found in preventive measures, defined as ante delictum
or praetor delictum measures, since they are applicable to a person considered socially dangerous
due to suspicious conduct.
The
new Law modifies the regulation of personal prevention measures applied by the
judicial authority in order to
minimize the danger related to the degeneration
of close relationships by adding the crime of ill-treatment in the family to
the list of criminal cases that indicate qualified dangerousness (article 4
para. 1 letter i-ter
Italian Legislative Decree 6 September 2011, No 159) and providing for a ban on
approaching persons to be
protected, a prohibition that may be
imposed by the measure of special
surveillance (Article 8 para. 5 Italian Legislative Decree 159/2011).
6.
– Conclusion
In
summary, Italian Law 69/2019 can be considered a positive tool, although
perfectible, to try to stem a phenomenon which requires a holistic approach.
In
this regard, in the Italian legal system a complete discipline on an effective
support network for victims of crime before, during and after criminal
proceedings is still lacking. Victim support services are essential to
eliminate or reduce the risks of primary and secondary victimization. In
this perspective, the establishment of victim support and assistance facilities
operating independently of criminal proceedings would also allow the pursuit of aims of general
interest, in terms of repression of domestic and gender-based crimes,
encouraging the collaboration of victims with state bodies and, therefore, the
propensity to report the suffered crime[46].
On the other hand, the training of
practitioners seems to be crucial in the field of domestic and gender-based
violence. The importance of training derives from the fact that the victim of
crime, especially a particularly vulnerable one, if not treated in criminal
proceedings in a manner appropriate to his situation, may be exposed to
secondary victimization, with negative effects also on the proper conduct
of criminal proceedings: we can mention, for example, the need for the
vulnerable victim’s hearing to be carried out by professionals with
sensitivity, background and experience regarding contacts and relations with a
vulnerable person, in order not to influence his answers and successfully
obtain reliable statements. From a different point of view, we may
consider the need, in the presence of a crime report, to assess the existence
of precautionary requirements regarding the probability the suspect or the
accused reiterates the criminal behaviour in order to apply a restriction
measure of freedom proportionate and adequate to the specific case.
As for compensation, awareness on the
dynamics and traumatic consequences of the crimes in question seem to be
essential as well[47].
Italian Law 69/2019 provides that,
within twelve months of its entry into force, specific compulsory courses are
organized for personnel performing public security and criminal police
functions, in order to prevent and prosecute the crimes set out in the same
law, as well as courses for penitentiary police that intervene in the prison
treatment of the authors convicted of those crimes.
However, gender-sensitive training
programmes are essential for all professionals involved in criminal
proceedings, that is to say, in addition to police officers, for public
prosecutors, judges and lawyers, revealing itself indispensable also for those
providing victim support, because inadequately trained operators may not be
able to fully respond to the needs of the victims[48].
Last but not least, training should also
be included in education programmes, in cooperation with schools and
universities, to fight a type of violence that needs not only a repressive but
also an educational and cultural action in order to be overcome[49].
Abstract
Le vittime di violenza domestica e di genere rappresentano una categoria di persone offese dal reato con specifiche esigenze di protezione, a causa dell’elevato rischio di vittimizzazione secondaria e ripetuta. Nel sistema italiano sono state introdotte recentemente nuove garanzie per queste tipologie di vittime tramite la L. 19 Luglio 2019, n. 69. Nel presente lavoro si porranno in evidenza i punti di forza e di debolezza di un provvedimento normativo che investe diversi rami dell’ordinamento al fine di combattere un fenomeno che, per poter essere sconfitto, richiede un approccio «olistico».
Per la pubblicazione degli articoli della sezione “Contributi” si è applicato, in maniera rigorosa, il procedimento di peer review. Ogni articolo è stato valutato positivamente da due referees, che hanno operato con il sistema del double-blind.
* Fondo di Ateneo per la ricerca 2019.
Il testo del contributo è stato redatto in lingua inglese in vista dello svolgimento di un ciclo di lezioni, previsto a ottobre 2020, presso la University of Economics and Human Sciences in Warsaw (Akademia Economiczno-Humanistyczna w Warszawie) (Erasmus+ Programme).
[1] See Directive 2012/29/EU of the European Parliament
and of the Council of 25 October 2012 establishing minimum standards on the
rights, support and protection of victims of crime, and replacing Council
Framework Decision 2001/220/JHA. Directive 2012/29/UE was implemented in Italy
with Legislative Decree 15 December 2015, n. 212. As regards international
texts focused on specific forms of crime and correlatively on particular types
of victims, see Council of Europe Convention on preventing and combating
violence against women and domestic violence (Istanbul Convention, 11 May 2011)
ratified by Italy under Law 27 June 2013, No. 77; Council of Europe Convention
on the Protection of Children against Sexual Exploitation and Sexual Abuse
(Lanzarote Convention, 25 October 2007), ratified by Italy under Law 1 October
2012, n. 172.
[2] See M. Bouchard, Sulla vulnerabilità nel processo penale. Breve guida giuridico-filosofica sulla vulnerabilità della vittima di reato, in Diritto Penale e Uomo 12, 2019, 12.
[3] Primary victimization derives directly from the
commission of the crime.
[4] M. Gialuz, Lo statuto europeo delle vittime vulnerabili, in S. Allegrezza – H. Belluta – M. Gialuz – L. Lupária , Lo scudo e la spada. Esigenze di protezione e poteri delle vittime nel processo penale tra Europa e Italia, Torino 2012, 62.
[5] See S. Van Der Aa, Variable vulnerabilities? Comparing the rights of adult vulnerable suspects and vulnerable victims under EU law, in New Journal of European Criminal Law 7(1), 2016, 49; M. Venturoli, La vittima nel sistema penale: dall’oblio al protagonismo?, Napoli 2015, 99.
[6] According to the Istanbul Convention, domestic violence includes «all acts of physical, sexual, psychological or economic violence that occur within the family or domestic units or between former or current spouses or partners, whether or not the perpetrator shares or has shared the same residence with the victim» (art. 3 lett. b). Gender-based violence concerns all acts causing «physical, sexual, psychological or economic harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life» (art. 3 lett. a). About Italian Law 69/2019 see L. Algeri, Il c.d. Codice rosso: tempi rapidi per la tutela delle vittime di violenza domestica e di genere, in Diritto Penale e Processo 2019, 1363.
[7] European Court of Human Rights, 2 March 2017, Talpis v. Italy, para. 130.
[8] See European
Court of Human Rights, 2 March 2017, Talpis v. Italy,
para. 113-114.
[9] European
Court of Human Rights, 2 March 2017, Talpis v. Italy, para. 117 and 125.
[10] European Court of Human Rights, 2 March 2017, Talpis v. Italy, para. 130.
[11] European
Court of Human Rights, 2 March 2017, Talpis v. Italy, para 148.
[12] See S. Recchione, Codice Rosso. Come cambia la tutela delle vittime di violenza domestica e di genere con la legge 69/2019, in https://www.ilpenalista.it, 26 luglio 2019, 2.
[13] In addition to the crimes already referred to in art.
407 para. 2 lett. a), numbers 1-6 Italian Criminal
Procedure Code, the offences taken into consideration are: ill-treatment against family members and cohabitees
(art. 572 Italian Criminal Code); sexual
violence, aggravated sexual violence and group sexual violence (art. 609-bis, 609-ter
and 609-octies Italian Criminal Code); sexual
acts with a minor (art. 609-quater Italian Criminal Code); corruption of a minor (art. 609-quinquies Italian
Criminal Code); stalking (art. 612-bis
Italian Criminal Code); illicit
dissemination of sexually explicit images or videos (art. 612-ter
Italian Criminal Code); personal injuries and
deformation of the person's appearance through permanent injuries to the face
(art. 583-quinquies Italian Criminal Code) where specific aggravating
circumstances exist.
[14] The duty to hear the victim or person who reported a crime concerns proceedings for the aforementioned offences, with the exception of the crime of unlawful dissemination of sexually explicit images or videos. The list of crimes for which there is an obligation to hear the victim also lacks the crime of attempted murder, which in some cases can be expression of domestic or gender-based violence. On the other hand, some of the crimes referred to in art. 362 para. 1-ter Italian Criminal Procedure Code give rise to a «presumed vulnerability» of child victims which, consequently, must be heard with the aid of an expert in child psychology and psychiatry. The same expert help shall be used when summary information must be gathered from a victim with specific protection needs, irrespective of his age (art. 362 para. 1-bis Italian Criminal Procedure Code).
[15] Consiglio Superiore della Magistratura, Parere sul Disegno di legge relativo a: “Modifiche al Codice Penale, al Codice di Procedura Penale e altre disposizioni in materia di tutela delle vittime di violenza domestica e di genere (A.S. 1200)”, (8 May 2019), in https://www.csm.it, para. 5.
[16] Procura della Repubblica presso il Tribunale di Gela, Direttiva del Procuratore – Linee Guida in materia di tutela delle vittime di violenza domestica e di genere – L. 19 Luglio 2019 n. 69 - Modifiche al Codice Penale, al Codice di Procedura Penale e altre disposizioni in materia di tutela delle vittime di violenza domestica e di genere, (8 August 2019), in https://www.ordineavvocatigela.it, 12; Procura della Repubblica presso il Tribunale di Varese, Direttive interpretative e organizzative conseguenti all’entrata in vigore della legge 19 Luglio 2019 n. 69 c.d Codice Rosso, (11 August 2019), in https://www.sistemapenale.it, 25 November 2019, 4; Procura della Repubblica presso il Tribunale di Sassari, Protocollo organizzativo e investigativo integrato per l’attuazione della Legge 19 Luglio 2019, n. 69: “Codice Rosso”, (28 October 2019), in https://www.sistemapenale.it, 20 November 2019, 11.
[17] Corte Suprema di Cassazione, Ufficio del Massimario e del Ruolo, Relazione su novità normativa, Legge 19 Luglio 2019, n. 69, Modifiche al Codice Penale, al Codice di Procedura Penale e altre disposizioni in materia di tutela delle vittime di violenza domestica e di genere, 27 October 2019, n. 62, in https://www.sistemapenale.it, 20 November 2019, para. 2.3.
[18] Corte Suprema di Cassazione, Ufficio del Massimario e del Ruolo, Relazione su novità normativa, cit., para. 2.3
[19] See Corte Suprema di Cassazione, Ufficio del Massimario e del Ruolo, Relazione su novità normativa, cit., para. 2.4.
[20] Procura della Repubblica presso il Tribunale di Tivoli, Prime linee guida per l’applicazione della legge “Modifiche al Codice Penale, al Codice di procedura penale e altre disposizioni in materia di tutela delle vittime di violenza domestica e di genere”, 31 July 2019, in http://www.giurisprudenzapenale.com, 5 August 2019, 29.
[21] See Corte Suprema di
Cassazione, Ufficio del Massimario e del Ruolo, Relazione su novità
normativa, para. 2.4.
[22] See F. Filice, La violenza di genere, Milano 2019, 61.
[23] See Grevio’s (Baseline) Evaluation Report on
legislative and other measures giving effect to the provisions of the Council of
Europe Convention on Preventing and Combating Violence against Women and
Domestic Violence (Istanbul Convention), GREVIO/Inf(2019)18, Adopted on 15
November 2019, Published on 13 January 2020, 69.
[24] See Grevio’s (Baseline) Evaluation Report, cit., 69.
[25] Therefore,
the concerned administrations shall see to the relative fulfilments with the
available human, instrumental and financial resources.
[26] See F. Filice, La violenza di genere, cit., 69.
[27] The crime of violating the injunction to stay away
from the family home and from the places attended by the victim implements art.
53 para. 3 Istanbul Convention, which requests the Parties to take the
necessary legislative or other measures to ensure that any breaches of
restraining or protection orders «shall be subject to effective, proportionate
and dissuasive criminal or other legal sanctions».
[28] See Corte Suprema di
Cassazione, Ufficio del Massimario e del Ruolo, Relazione su novità
normativa, cit., para. 3.
[29] With
the exception of the obligation to appear before the criminal police and prohibition to leave the country.
[30] See art.
90-ter para.1-bis, Italian Criminal Procedure Code; article 15
Law 69/2019. Art. 659 Italian Criminal Procedure Code
imposes that release, following a decision by the sentence supervision
judge, of the person convicted of
the crimes therein set out is
immediately communicated by the public prosecutor
to the victim and, where
appointed, to his lawyer. The
offence referred to in art. 612-ter
Italian Criminal Code (unlawful dissemination of sexually explicit images
or videos without the consent of the portrayed person) is excluded from the
scope of the rule in question, as well as from
that of art. 90-ter
Italian Criminal Procedure Code.
[31] See Rete Dafne Italia, Proposta di istituzione di un Servizio Nazionale di assistenza per le vittime di reato, in https://www.dirittopenaleuomo.org, 13 November 2019.
[32] The provision implements art. 37
para. 1 Istanbul Convention, which requires the signatory States «to take the
necessary legislative or other measures to ensure that the intentional conduct
of forcing an adult or a child to enter into a marriage is criminalised».
Directive 2012/29/EU includes forced marriages in the gender-based violence
notion (Whereas 17).
[33] See G. Pavich, Le modifiche al Codice Penale, in Codice Rosso. L. n. 69/2019, edited by A. Marandola – G. Pavich, Milano 2019, 16; G. Pepè, I matrimoni forzati presto previsti come reato anche in Italia?, in https://www.dirittopenalecontemporaneo.it , 20 May 2019, 1.
[34] See Grevio’s (Baseline) Evaluation Report, cit., 63.
[35] Victims of the crime provided for by art. 583-quinquies
Italian Criminal Code shall have the right to compensation by the Italian State
when the offender does not have sufficient resources to compensate the damage
or cannot be identified (Law 7 July 2016, n. 122, as modified by Law 20
November 2017, n. 167).
[36] Art. 612-ter Italian Criminal Code applies only
when the fact does not constitute a more serious crime (e.g. production and
dissemination of child pornography images, punished with prison sentence up to
twelve years).
[37] G.M. Caletti, “Revenge Porn”: prime considerazioni in vista dell’introduzione dell’art. 612-ter c.p.: una fattispecie “esemplare”, ma davvero efficace?, in https://www.dirittopenalecontemporaneo.it, 29 April 2019, 1.
[38] See N. Amore, La tutela penale della riservatezza sessuale nella società digitale. Contesto e contenuto del nuovo cybercrime disciplinato dall’art. 612-ter c.p., in http://www.lalegislazionepenale.eu, 20 gennaio 2020, 28; G.M. Caletti, “Revenge Porn”: prime considerazioni, cit., 3.
[39] See art. 2 l. 29 May 2017, No. 71; See N. Amore, La tutela penale della riservatezza sessuale nella società digitale, cit., 34; G.M. Caletti, “Revenge Porn”: prime considerazioni, cit., 3.
[40] See S. Recchione, Codice Rosso, cit., 9.
[41] See Grevio’s (Baseline) Evaluation Report,
cit., 76.
[42] See F. Filice, La violenza di genere, cit., 88.
[43] The costs of participation in the recovery courses
referred to in art. 165 Italian Criminal Code shall be charged to the sentenced
person. This discipline could conflict with the Constitutional principle of
equality (art. 3 Italian Constitution) since the author of crime who does not
have the means to pay the aforementioned expenses shall be obliged to serve his
sentence.
[44] Such discipline has been extended only to some of the
crimes falling into the category of crimes of domestic or gender violence.
[45] See Grevio’s (Baseline) Evaluation Report,
cit., 43.
[46] See European
Commission, Strengthening Victims’ Rights: from Compensation to
Reparation. For a New EU Victims’ Rights Strategy 2020-2025, March 2019,
31-32.
[47] See European
Commission, Strengthening Victims’ Rights, cit., 32, with
reference to gender-based violence cases: «The amount of compensation should
reflect the wide-ranging and long-term harm of gender-based violence, going
beyond potential medical and therapy costs, to also cover loss of earnings and
broader psychological damage. Compensation should serve as a means for
re-building an independent and violence-free life of dignity».
[48] Art. 25 Directive 2012/29/EU; Art. 15 Istanbul
Convention. See See Grevio’s
(Baseline) Evaluation Report, cit., 40.
[49] Art. 26 Directive 2012/29/EU; art. 14 Istanbul
Convention. See European Parliament Resolution of 30 May 2018 on the
Implementation of Directive 2012/29/EU Establishing Minimum Standards on the
Rights, Support and Protection of Victims of Crime, 9, point 33; Grevio’s (Baseline) Evaluation Report, cit., 36.