The Working Group on Enforced or Involuntary Disappearances, the Special Rapporteur on extrajudicial, summary or arbitrary executions and the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, independent human rights experts appointed by the United Nations Human Rights Council (HRC), came together to address an issue regarding a double Italian and Argentinian national priest, accused of crimes against humanity during the military dictatorship in Argentina (1976-1983), namely the annulment of the extradition of the priest decided by the Italian authorities. 

Historical context of Argentina

During the Argentinian civil-military dictatorship, between 1976 and 1983, a series of human rights violations and international crimes were committed. The violations included torture, imprisonment without trials, executions, and the practice of enforced disappearance. The latter included the kidnapping of people, placing them in clandestine detention centers, and torturing and murdering them on the assumption they posed a threat. Thousands of people died under the military regime. Many people were involved in killings, torture and other violations, including some associated with the Catholic Church. Although the first trials of those involved in the violations began two years after the fall of the dictatorship, in 1985, trials concerning the involvement of religious figures were held as late as 2010 and are still ongoing today.

The Italian-Argentinian priest, whom the communication concerns, was one of the people whose trial began in 2010. He was accused, among other things, of participating in the crime of torture, encouraging inmates to confess their political affiliations under duress. The priest fled from Argentina to Italy before appearing in court. He settled in Sorbolo, Parma, where he started to serve as a priest in the church of Saints Faustino and Giovita. Given the new information about his activities during the Argentine dictatorship and his escape from trial, Interpol issued an international arrest warrant.

In 2013, Argentina requested Italy to extradite the priest to face the criminal charges. 

The Italian involvement in the case

The case was handled by the Court of Appeals of Bologna, which rejected the extradition order in 2014. The court explained that torture was not criminalised in Italy, and thus, acts amounting to torture must be qualified as a different criminal offence. They added that the requested individual could no longer be extradited because a long time had passed. However, the Communication reminds that a law criminalising torture was passed in Italy in 2017. Thus, the crime of torture is now a distinct offence in the Italian Criminal Code.

The case came up again in 2021 when new findings were made. During another trial, it became clear that the priest was involved in the homicide of 20-year-old Josè Guillermo Beron, whose body was never found. Based on these new charges, a new extradition request was issued by Argentina based on the Extradition Convention between the Republic of Argentina and the Republic of Italy, signed in Rome in 1987. The legal grounds for the extradition request was, in particular, torture, which, as mentioned above, had been codified as a crime in Italy. The Italian Cassation Court ordered a re-examination of the case. 

In 2023, the Bologna Court of Appeal approved the extradition, and later, the Court of Cassation upheld this decision. However, in January 2024, the Italian Minister of Justice denied executing the extradition without initially explaining the reasons. Later, the Minister explained that his decision was motivated by the priest's state of health. 

The case is ongoing, and Italy has no prospects to prosecute or extradite the man, who is now 88 years old. The victims of the crimes that the accused person has allegedly committed and their families have accordingly been stripped of their rights to access to justice, to an effective remedy, to the truth, and reparation.  

Laws relevant to the case

In the Communication, the human rights experts invoke the aut dedere aut judicare (extradite or prosecute) rule. It means that a State must either exercise jurisdiction over and prosecute persons suspected of committing serious crimes, in full compliance with international standards, or extradite them to a State able and willing to do so. This obligation is contained in numerous international instruments relating to crimes under international law, including treaties to which Italy is a party, for example, the Convention on the Prevention and Punishment of the Crime of Genocide and, in particular, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. 

Another instrument mentioned in the Communication is the Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, whose Article 18 says:

“Governments shall ensure that persons identified by the investigation as having participated in extra-legal, arbitrary or summary executions in any territory under their jurisdiction are brought to justice. Governments shall either bring such persons to justice or cooperate to extradite any such persons to other countries wishing to exercise jurisdiction. This principle shall apply irrespective of who and where the perpetrators or the victims are, their nationalities or where the offence was committed.”

The Special Rapporteurs appended an Annex to their Communication, listing the international human rights instruments and standards relevant to these allegations, all ratified by Italy. The first document mentioned is the International Covenant on Civil and Political Rights. The covenant was cited with particular emphasis on articles 6, 7, 9 and 16, which guarantee the right to life, the right not to be subjected to torture or to cruel, inhuman or degrading treatment or punishment, the right to liberty and security of person, the right to remedy and the right to recognition as a person before the law. 

The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is referred to in connection to Articles 2, 7, 9 and 12. Except from the aut dedere aut judicare rule, the Convention also highlights that States parties shall afford one another the greatest measure of assistance in connection with criminal proceedings in respect of torture and ill-treatment, and that each State party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.

The 1992 Declaration on the Protection of All Persons against Enforced Disappearance is also relevant. Article 14 states that:

“Any person alleged to have perpetrated an act of enforced disappearance in a particular State shall, when the facts disclosed by an official investigation so warrant, be brought before the competent civil authorities of that State for the purpose of prosecution and trial unless he has been extradited to another State wishing to exercise jurisdiction in accordance with the relevant international agreements in force. All States should take any lawful and appropriate action available to them to bring to justice all persons presumed responsible for an act of enforced disappearance, who are found to be within their jurisdiction or under their control.”

In addition to this, article 15 also brings attention to the fact that if the person is believed to participate in acts of enforced disappearance, the State should take that into account when deciding on granting asylum. Moreover, Article 18 of the Declaration prohibits amnesties and other similar measures that could benefit the perpetrators or alleged perpetrators of acts of enforced disappearance. The Declaration also limits the right to pardons.

The Special rapporteurs’ requests to Italy

The Communication called on Italy to provide a detailed answer within 60 days. The topics that needed clarification were as follows: 

• to indicate how the Italian Minister for Justice´s decision to reject the extradition of the priest to face criminal charges in Argentina for crimes against humanity and gross human rights violations committed in that country between 1975 and 1976 follows international human rights standards;
• to provide information on which measures have been undertaken to ensure that the person is brought to justice and held accountable, including any measures related to the obligation to aut dedere aut judicare;
• to provide information on any measure taken to ensure the victims’ rights to truth, justice and reparation.

As for today, Italy still hasn’t replied on these points.