Download - Transcrime - Università degli Studi di Trento

10. Italian legislation and judicial competences in the fight against trafficking and smugglingThe conduct in question is a criminal offence frequently subject to proceedings inregard to cases of trafficking in persons for exploitation because it constitutes amodus operandi typical of traffickers in human persons.The judicial interpretation of the concept of slavery has undergone profoundevolution, especially as regards the definition of a “condition similar to slavery”. 167The new interpretation of the provision derives from ruling no. 261 by the Court ofCassation issued on 16 January 1997, 168 which in accordance with the approachadopted by the Constitutional Court, defined “the condition similar to slavery”, exarticles 600 and 602 of the criminal code, not only as a circumstance defined bylaw but also as “any situation where the conduct of the wrongdoer causes theoffended person to be treated as a slave, that is to say, his or her exclusivesubjugation to another person who may dispose of the former in a similar way tothat of a master and a slave in legal orders where slavery is permitted”. 169Given the that the right to freedom is inalienable, it has argued that any consentgiven by the passive subject or by whoever has authority over him or her isirrelevant, and in no case can be considered an extenuating circumstance. 170 Themens rea is generic so that cases of attempts to commit the crime may arise.167 See on this G. Porco, “Schiavitù un fenomeno in evoluzione” [Slavery an Evolving Phenomenon], in LaGiustizia Penale, Part II, 1998, pp. 732 ff. The original rule in the Rocco Code distinguished the crime ofreduction to servitude from the crime of undue influence (article 603 criminal code) on the ground that theformer concerned “situations at law” (situazioni di diritto) where the law recognised the status servitutis,and the latter all other “factual situations” not regulated by any provision and consisting of cases ofsubjugation where the person is deprived of free self–determination. Because of this restrictiveinterpretation, article 600 remained a dead letter until the landmark ruling by the Constitutional Court (caseno. 96 of 6 August 1981) that declared the crime of undue influence invalid because of insufficientprecision in its description. Furthermore, the Constitutional Court, in order to close any lacunae in the law,ruled that application of the provisions on slavery were to be extended to encompass factual situations stillnot legally disciplined. A different interpretation, in fact, would have been in conflict with the internationalobligations undertaken by Italy by signing the 1926 Geneva Convention to Suppress Slavery and the 1956Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and PracticesSimilar to Slavery, whose section on “Institutions and Practices Similar to Slavery”, provides for any “factualconditions carried out without any legal act or fact that authorises them”.168 Criminal Court of Cassation, S.U., 20 November 1996, in Cass. Pen., 1998, p. 36.169 Before unanimous interpretation was reached, two jurisprudential approaches clashed: the firstsuggested adopting the comprehensive list provided by the 1926 and 1956 Geneva Conventions andspecifying all the punishable “similar conditions”, whilst the second proposed an extended interpretationwhich included a range of possible behaviours not determinable a priori. The afore-mentioned decision ofthe Court of Cassation settled the matter by specifying that, with reference to conditions similar to slavery,the institutions and practices mentioned in the Geneva Conventions constituted only a exemplificatory list,not a comprehensive one. This interpretation is also adopted by the following rulings: Criminal Court ofCassation Section III, 7 1998, no. 7929, rv. 211543; Criminal Court of Cassation, Section III, 24 September1999, no. 2793, rv. 214517, all in Codice penale e codice di procedura penale annotati con lagiurisprudenza, Esselibri Simone Multimedia, Naples, 2002. To be noted, however, is that before theCassation ruling, the criminal offence was considered applicable to trafficking for exploitation. See CriminalCourt of Cassation, Section V, 24 January 1996, no. 2390, rv. 204369, in Codice penale e codice diprocedura penale annotati con la giurisprudenza, Esselibri Simone Multimedia, Naples, 2002. In the case inquestion the decision recognised the existence of the crime of slavery where the behaviour of thedefendants/traffickers consisted in the exploitation of Albanese children delivered to them by their parentsto be used for begging.170 The irrelevance of consent recalls the definition of trafficking in persons provided by the Protocolagainst trafficking signed in Palermo. On this see section 5.3.101