The 18 December 1979, in New York, the International Convention against the capture of hostages was signed, then ratified by Italy only six years later with the 26 Law November 1985, n. 718, entering into force, pursuant to art. 18 of the same Convention, the 19 April 1986.
L. 26 November 1985, n. 718
The norm of ratification and execution of the international text punishes with imprisonment from twenty-five to thirty years the subject that, outside the cases of kidnapping for terrorist or subversive purpose (art. 289-up to of the Italian Criminal Code) and of kidnapping for extortion purposes (Article 630 of the Criminal Code), kidnaps a person - or in any case holds him in his power - threatening to kill him or to inflict harm not necessary to compel a third party legal entity, such as a State or an international organization, or physicist, single person or collectivity of individuals, to do or not to do a specific act by subordinating the release of the hostage to such action. If the death of the kidnapped ensues from the seizure, pursuant to art. 586 of the Criminal Code, provided it is proven that this consequence was not directly desired by the kidnapper, the imprisonment is for thirty years, if death is caused voluntarily, the penalty applied will be that of life imprisonment. Taking the case of a concurrence of persons in the crime, or of several kidnappers, the competitor who, by dissociating himself from the others, favors the escape of the kidnapped will be punished with imprisonment from two to eight years. In the event of the death of the victim of the crime after his release, given the proof of the existence of the causal link which proves that the death is a direct consequence of the kidnapping, imprisonment is foreseen from eight years to eighteen. In the event that one of the common or generic extenuating circumstances provided for in Articles 62 and 62-up to Criminal Code, the penalties are thus restated: in the event of a derivative death and not wanted the penalty applied will be imprisonment for twenty to twenty-four years, in the case of murder of the kidnapped, the edictal frame of imprisonment will be from twenty-four to thirty years. In the event of more extenuating circumstances, the penalty, thus redefined in the sense of decreases ex lege, however, cannot be less than ten years in the first case and fifteen in the second. In any case, the discipline of extenuating and aggravating circumstances should always be compared with Articles 1 and 4 of the Decree Law 15 December 1979, n. 625, converted into Law 6 February 1980, n. 15, containing urgent measures for the protection of democratic order and public security.
If the crime of capture of the hostage is minor, the ratification and execution law refers to art. 605 cp redetermining the penalties with a pluris from half to two thirds thus redefining the punishment for the generic fact of mere deprivation of personal liberty in the specific case above generalized in imprisonment from nine years to thirteen years and four months. In the event that the offense is committed against an ascendant, a descendant or spouse, or if the fact is committed by a public official, defined in accordance with art. 357 cp, with the abuse of the powers inherent in its functions, the penalty is imprisonment from one year and six months to sixteen years and eight months.
Article. 3, co. 29, lett. a), of the 15 Law July 2009, n. 94, has inserted in the art. 605 cp a series of forecasts concerning sanctions in the event that the victim of kidnapping is a minor. Although it intervened subsequently to the law of ratification and execution of the New York Convention of the 1979, strictly speaking it is to be considered as such innovative sanctions, in the context of the crime of kidnapping, should find ample and certain confirmation also in the crime of capture of hostages for the facts made after the entry into force of this regulatory change. It provides that, if the victim of the hostage is a minor and the crime committed is the generic one, imprisonment from four years and six months to sixteen years is applied, in the event that the crime is committed against the descendant minor, on the minor by the public official in the performance of his duties, or the minor of fourteen years or even if the minor is conducted abroad during his imprisonment, the penalty is imprisonment for four years and six months to twenty-five years. If the child then dies as a result of the crime of capture of the hostage, the penalty is life imprisonment.
The executive regulation of the Convention on the capture of hostages provided that, without prejudice to the general principles of the Italian criminal law - that is to say the right to a fair trial, the principle according to which nothing poena sine lege, the right to respect for private and family life and the freedom of thought, conscience, religion, expression, assembly and association - the Italian citizen who commits the crime of capture of hostages abroad, and the foreigner who commits the same crime in Italy and the extradition is not ordered or has committed the fact in order to force a State body to perform or refrain from performing an act, are punished by Italian law at the request of the Minister of Justice.
The 1979 New York Convention
La International convention against the capture of hostages it's a asset legislation composed of twenty articles that aim to be widely expected by all the signatory States of this legal act. As defined by this legislative text, it commits the crime of capturing hostages, pursuant to art. 1, "anyone who captures a person or holds it and threatens to kill, injure or continue to hold it to force a third party, ie a state, an international intergovernmental organization, a natural or legal person or a group of people, to perform any act whatsoever or to abstain as an explicit or implicit condition for the release of the hostage". As you can easily see with the above, the definition coincides perfectly with that provided later by the Italian ratification and execution law No. 718 / 1985. For the Convention, the active subject who attempts to capture the hostage also commits a crime. that is, that it competes with a third party who captures, or tries to do so, a hostage.These cases also find evidence in our national legislation by means of article 56 cp, which sanctions the attempted crime, and of art. 110 cp, which punishes the concurrence of persons in the crime The provision of specific penalties by the Italian legislation for the crime of capturing the hostages is an obedience to the condition set by the same Convention that imposed an obligation, towards the signatory States, to punish the crimes envisaged by the article 1 "with appropriate penalties that take into account the serious nature of these crimes ".
Article. 3 then provides that the State of the territory in which the hostage is detained must take all necessary actions to improve the victim's condition specifically aimed at his release and to facilitate his departure after liberation. In the event that the State comes into possession of an object owned by the victim that the offender obtained from his capture, he must return it to the rightful owner or to the competent authorities. The obligations of individual States, however, are not only those of providing for these crimes individually, but also a constraint of cooperation aimed at preventing the facts of hostage capture, which is implemented through the provision and implementation of appropriate measures to prevent the preparations functional to the crime also prohibiting, each in its own national territory in respect of the principle of state sovereignty, any illegal activity of persons, groups and organizations that encourage, foment or commit hostage-taking acts. There cooperation it is also implemented through the exchange of information and the coordination of the implementation of measures to prevent these crimes.
With regard to jurisdiction, it establishes the art. 5 which provides that every State must provide for every need to establish its jurisdiction for the crimes of capture of hostages committed in its territory - it is to be understood as the territory of the State also the ship or the aircraft registered in that State - or by any of its citizens or stateless persons who have their habitual residence in the territory of said State, or to the detriment of their own citizen (in the event that it is deemed appropriate at a political level), or finally if the crime was committed with the purpose of forcing the National Authority to perform, or refrain from performing, any act. In this matter our country has not provided anything specific in L. 718 / 1985, thus postponing de jure the general criteria for determining the Italian jurisdiction of the criminal code. In this context, the offender who commits the offense in the territory of the State, understood as the area of the Italian Republic and any other place subject to the sovereignty of the State pursuant to art. 4 cp. In any case, the offense is considered to have been committed in the territory of the State when the action or omission has taken place in whole or in part within it, or the event resulting from the action or omission has occurred here. For crimes committed abroad, however, the Italian jurisdiction finds space in the event that the offender is an Italian citizen or a foreigner who has committed one of the following crimes: crimes against the personality of the Italian State1, crimes of forgery of the seal - and use of the same - of the Italian State, of falseness of coins in use or of Italian stamped values, and crimes committed by public officials serving the Italian State who abuse or otherwise violate their functions . Article. 7, co. 1, n. 7 cp then determines the Italian jurisdiction even in cases where specific crimes provide for provisions and following the best practices in this regard or in the case of international conventions that establish the applicability of Italian criminal law. Outside these contexts it is however punishable by our law the offender who commits a crime in a foreign country for which it would provide for life imprisonment or imprisonment of not less than a minimum of thirty years if such offender were in the territory of the State. In the event that a penalty is imposed which restricts personal inferior freedom, there is room for Italian prosecution by request of the Minister of Justice.
Article. 6 of the New York Convention provides that every State in whose territory the presumed author of the crime of capturing the hostages is located adopts, in accordance with its own legislation, detention - or in any case surveillance - measures for the initiation of a criminal proceeding or all extradition in accordance with the principle ofaut dedere aut judicare, a constraint to which the State is subjected in specific form by art. 8 of the Convention. Without delay, then, this State will have to proceed with the necessary preliminary investigations. Detention measures or other genus of which in the first paragraph of said article must be immediately notified directly, or through the Secretary-General of the United Nations, to the State of the place where the crime was committed, to the State or to the international Organization subject to the constraint or to the State of which the natural or legal person has been the subject of the constraint2, to the State whose hostage is a citizen, to the State of which the offender is a citizen, and to any other State concerned. Each recipient of personal measures has the right to communicate with the representative - accredited in the country that issued the measure - of the State of origin of the suspect3, and to receive the visit of the said representative. These rights must be exercised in accordance with the laws and regulations of the proceeding State, of course, which in any case cannot be opposed to the objectives of the International Convention against the capture of hostages. In any case, it is always possible to invite the International Committee of the Red Cross to contact and visit the alleged offender and the results of the preliminary investigations must then be communicated to the same subjects mentioned above. The epilogue of the criminal proceedings against the offender must then be, pursuant to art. 7 of the Convention, notified without delay to the Secretary-General of the United Nations, which will inform the States and the international intergovernmental organizations concerned.
On the possible extradition requested by a third State to the one hosting the offender, the request may be disregarded in the cases provided for by art. 9, that is to say if it has been presented in order to prosecute or punish a person for his religion, nationality, race, ethnicity or political opinions, or if a prejudice can be caused to this subject. Article. 10 then acts as a pillar to the international convention, stating that the crime of capturing the hostages will be subject to extradition in any future treaty concerning criminal proceedings between the signatory States. In the event that the extradition is requested by a State party to the New York Convention to another signatory State which, recognizing the extradition possible only in the presence of a specific treaty between the international parties, pleads the non-existence of a specific agreement in this matter between the two legal entities, the first State may establish the 1979 Convention as the legal basis for extradition in the event that the offense in question is provided for by the number of the art. 1. For these purposes these crimes highlighted by the New York act will be considered among the signatory States as if they had been committed not only in the place of their perpetrations but also on the territory of the States that must establish their jurisdiction pursuant to art. 5, co. 1. In judicial matters, the art. 11, which envisages a collaboration agreement between the parties negotiating the Treaty on any criminal proceedings relating to the subject of the stipulated matter, cooperation that will take place through the exchange of every piece of evidence available to them necessary for the procedure, of course that these obligations do not prejudice however, any restrictions on judicial cooperation provided for by other treaties. The Convention cannot then be applied, pursuant to art. 13, if the active and the passive subject are both citizens of a State in whose territory the crime of capturing the hostages was committed, made de jure sanctioned by the art. 3 L. 718 / 1985. At the same time, no internationalist provision that is the subject of the aforementioned Convention can be used to justify the violation of the territorial integrity and political independence of a State envisaged by the Charter of the United Nations.
The art. 16 provides for disputes generated by problems relating to the interpretation and application of the Treaty. Any dispute must be resolved, (in primis), through a negotiation and only if this fails will the way of arbitration open, which will in any case have to be requested by one of the states in dispute. If for the following six months from the request of this the parties do not agree on the organization of the judgment, any of the defendants may refer the dispute before the International Court of Justice by depositing an instance for this purpose in accordance with the Statute of the same Court. The Convention provides in the paragraph of the art. 16 the possibility of not adhering to this arbitration clause of the dispute. Any signatory State which formulates the reserve may in any case withdraw it at any time by sending a notification to the Secretary-General of the United Nations.
It is considered necessary to terminate the discussion with art. 12 of the International Convention against the crime of capture of hostages which excludes the applicability of said normative text to cases of acts of capture of hostages committed during armed conflicts or during those actions and they equalized by art. 1, par. 4, of the I Additional Protocol of the 19774. In this case the Geneva Conventions of the 1949 for the protection of the victims of war and the additional Protocols will do.
Footnotes
1) If the crime does not fall within this genus but is still a political crime, it is punished by Italian law at the request of the Minister of Justice. If there is a complaint as a condition of admissibility, it must be attached to the request to proceed. In accordance with art. 8, co. 3, of the Italian Criminal Code, a crime that offends a political interest of the State or a political right of the citizen protected by the articles of Title V, Part I of the Italian Constitution or any common crime committed for political reasons is to be defined as "political".
2) The constraint, as already highlighted in the superscript, is from art. 1 of the 1979 New York Convention envisaged as a constituent element of the crime of taking hostages.
3) If he is stateless, he refers to the representative of the State in which the suspect usually resides.
4) The struggle of the people against colonial rule, foreign occupation or racial regimes in the exercise of their right to self-determination as defined by the United Nations Charter.
