On October 26, 2023, the Italian Constitutional Court issued an important decision declaring the illegitimacy of Article 420-bis, paragraph 3, of the Italian Criminal Procedure Code, insofar as it does not allow judges to proceed in the absence of defendants accused of the crime of torture as defined in Article 1, paragraph 1, of the 1984 Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (hereafter the Convention Against Torture), in cases where the state of the defendant’s nationality does not assist the Italian state. This ruling stems from the judicial events related to the well-known case of Giulio Regeni, an Italian citizen and PhD student at the University of Cambridge, who was kidnapped, tortured, and killed between January and February 2016 in Cairo, Egypt, where he was conducting research on independent trade unions in Egypt.

The “Regeni Case”

Giulio Regeni was a 28-year-old Italian citizen, a PhD student at the University of Cambridge. In 2016, he was in Cairo conducting research on independent trade unions in Egypt after the presidency of Hosni Mubarak. He was found dead on February 3, 2016, on the side of a highway linking Cairo to Alexandria. He had been missing since January 25 of the same year.

Autopsies conducted on Regeni’s body revealed clear signs of torture that led to his death.

The judicial events surrounding this case have been and remain at the center of public debate. A large national and international mobilization from civil society has demanded “Truth and Justice for Giulio Regeni,” a phrase displayed on many buildings in Italian towns, on bracelets, and on pins worn by campaign supporters.

Despite statements from both Italian and Egyptian public authorities expressing determination to conduct adequate investigations and find those responsible for Regeni’s kidnapping, torture, and murder, cooperation between the investigators from the two countries has not yielded appreciable results. Nevertheless, despite recurring tensions and a temporary recall of the Italian ambassador to Cairo, commercial relations between the two states have never been interrupted, and on September 14, 2017, the Italian ambassador returned to Egypt.

On April 30, 2019, the “Parliamentary Inquiry Commission on the Death of Giulio Regeni” was established to determine the responsibilities related to the researcher’s death and to submit a final report to Parliament.

As of today, the trials concerning the kidnapping, torture, and murder of Giulio Regeni are not yet concluded. The judicial case remains particularly complex, especially due to the Egyptian authorities' reluctance to cooperate with Italian courts.

Criminal Proceedings in Italy

The Constitutional Court was asked to decide on the possibility for Italian courts to proceed in the absence of a defendant in cases involving crimes such as those that Giulio Regeni was a victim of. The Court issued its ruling no. 192 on October 26, 2023.

This decision addresses a gap in the Italian legal system regarding the prosecution of torture cases, in line with the Convention Against Torture.

The Italian criminal procedure began with an investigation initiated at the request of Italy’s then-Minister of Justice, Orlando, on March 23, 2016.

The Rome prosecutor’s investigation into the death of Giulio Regeni concluded in December 2020, nearly five years after the events, and resulted in charges against four agents of Egypt’s National Security Agency (the Egyptian security services) for kidnapping, torture, and murder.

The four Egyptian agents are accused of aggravated kidnapping for having, in collaboration with other not identified persons, seized Giulio Regeni inside Cairo’s metro and subsequently detained him incommunicado for nine days, from January 25 to February 2, 2016. One of them is also charged with aggravated personal injury and murder for having, in collaboration with others, inflicted severe and widespread injuries on Regeni over several days, torturing him cruelly until his death.

On May 25, 2021, the Preliminary Hearing Judge (GUP) in Rome decided to proceed with a trial for the four agents, but the process was suspended (hearing on January 10, 2022).

At that time, the defendants were declared untraceable, as the notification of the proceedings could not be sent due to the lack of addresses for the four individuals, which had never been provided by Egyptian authorities. As a result, the process was halted because Italian magistrates were unable to inform the defendants of the existence of criminal proceedings against them.

Under Italian law, Article 420-bis of the criminal procedure code allows for exceptional prosecution in the absence of a defendant in cases where the defendant has personally received a notice to appear, has voluntarily chosen not to attend, or is formally declared a fugitive. However, in this case, the notification could not be served because Egyptian authorities had not communicated the defendants’ addresses, preventing the declaration of their absence.

Thus, it became necessary to proceed in accordance with Article 420-quater of the criminal procedure code, which stipulates that if the defendants remain untraceable, an inappellable decision is issued to discontinue the proceeding due to the defendant’s lack of knowledge of the ongoing trial.

The Italian judge was convinced that the four Egyptian security agents were aware of the trial but that Egyptian authorities were attempting to protect the agents, effectively granting them “de facto immunity.” Egypt’s failure to cooperate prevented the trial from proceeding.

To overcome the stalemate, during the May 31, 2023, hearing, the GUP in Rome raised the constitutional legitimacy question of Article 420-bis, considering it unconstitutional insofar as it fails to allow prosecution in the absence of defendants for torture-related crimes, particularly when the inability to prove the defendant's knowledge of the proceedings results from the lack of cooperation of the defendant's state of nationality or residence.

The Constitutional Court’s Decision on the “Regeni Case”

The Court declared the constitutional illegitimacy of Article 420-bis, paragraph 3, of the Criminal Procedure Code, insofar as it does not allow prosecution in the absence of the defendant for crimes committed through acts of torture (Article 1, paragraph 1 of the Convention Against Torture) when the absence is due to the failure of the defendant’s state of nationality to assist. However, to protect the right to a fair trial, the Court’s ruling also includes the possibility for the defendant to request the reopening of the trial in their presence.

The Court highlights two fundamental human rights: the prohibition of torture and the right to a fair trial.

The Court affirms that “torture is a crime against the person and a crime against humanity.” It emphasizes that, although the crime of torture was codified in Italy only in 2017 (Law No. 110 of 2017), the provision has the status of jus cogens under international law, meaning it is an imperative norm that cannot be violated.

The Court further notes that the non-prosecution of torture crimes constitutes a violation of Article 3 of the European Convention on Human Rights (ECHR) in its procedural aspect, as the inability to judicially verify acts of torture undermines the dignity of the victims and their family.

The Court also acknowledges the defendant’s fundamental right to attend the trial, which is protected by Article 111 of the Italian Constitution and Article 6 of the ECHR, and this right applies to the four Egyptian agents as well. The Court goes so far as to establish a participatory right for the accused, interpreting Article 420-bis in a constitutionally oriented manner, so that the defendant may request the reopening of the trial if they appear, thus protecting their right to participate in the proceedings.

Italy, Egypt, and the Convention Against Torture

The ruling of October 26, 2023 also highlights more gaps in the Italian legal system regarding international obligations. The Court notes that Italy failed to respect its obligations under the Convention Against Torture, adopted by the UN General Assembly on December 10, 1984.

Italy ratified it with Law No. 498 of 1988 and later introduced the crime of torture into Italian law (through Law No. 110 of 2017) with considerable delay. The law introduced Articles 613-bis (Torture) and 613-ter (Incitement to Commit Torture) in the criminal code.

However, the constitutional flaw in Article 420-bis exposed Italy’s failure to comply with Article 5 of the Convention, which allows double or triple jurisdiction for torture crimes, meaning that perpetrators can be prosecuted either in the state where the crime occurred, in the state of the alleged perpetrator’s nationality, or in the state of the victim’s nationality, with the aim of preventing impunity.

Egypt, which ratified the Convention Against Torture on June 25, 1986, violated the international norm, especially Article 9 of the Convention, which requires states to provide “the widest judicial assistance” in criminal proceedings related to torture, including sharing all available evidence with the authorities investigating torture cases. In this case, Egypt failed to provide the addresses of the accused, which were the only pieces of evidence that was required to share.

The Constitutional Court’s ruling now allows Italy to fulfill its obligations under the Convention and proceed with the Regeni trial, overcoming Egypt’s reluctance to cooperate.

The Fight for Truth and Justice Continues

The criminal case for the death of Giulio Regeni can now proceed. A hearing was held on January 21, 2025. The Constitutional Court’s ruling has provided new momentum for the cause of justice in Regeni’s death. The case continues to symbolize resistance against oppression and the practice of enforced disappearances by Egyptian authorities, and it underscores the importance of states like Italy taking adequate diplomatic and political measures against countries that flagrantly violate human rights. Regrettably, in recent years, Italy has restored its ambassador to Cairo instead, and strengthened commercial relations with Egypt, especially in the arms trade, a normalization of relations that appears incompatible with a commitment to protecting human rights.