Balancing the Interest in Prosecuting International Crimes against the Fair Trial Guarantees

Abstract

The Italian Constitutional Court recently issued its ruling in the context of the criminal proceedings concerning the torture of Giulio Regeni, an Italian PhD student whose dead body was found in Egypt. The case raised the issue of whether the impossibility of prosecuting the alleged perpetrators of acts of torture was compatible with Italy’s international obligations. The Constitutional Court concluded that the duty to prosecute torture imposed to hold the trial even in absentia, subject to the right of the accused to obtain a retrial. This contribution will show how the Constitutional Court filled a lacuna in the domestic legal framework by balancing the international obligations at stake. It will assess the questionable aspect of the judgment, notably the identification of the source of the alleged duty of the State of passive nationality of the victim to prosecute of torture. Lastly, it will assess the case in the light of the international legal framework concerning trials in absentia.