Il riconoscimento dell’obbligo di esercitare la giurisdizione penale nella sentenza n. 192 della Corte costituzionale sul caso Regeni

This article provides a critical comment to the judgement n. 192/2023 of the Italian Constitutional Court on the “Regeni” case. The contribution focuses on the question of the legal foundation of the obligation to exercise criminal jurisdiction, which, according to the Constitutional Court, stems from the prohibition of torture, enshrined in the “Convention against torture”. The judgement n. 192 considered the Convention as a whole as the constitutional parameter implied in article 117 of the Italian Constitution but did not specify the provisions which are the legal basis of the obligation to exercise criminal jurisdiction, except for article 5 of the Convention, which provides that a State establishes jurisdiction according to the principle of the nationality of the victim “if the State considers it appropriate”. The author argues that, while this provision seems to contradict the reasoning of judgement n. 192/2023 by providing a merely discretionary jurisdictional title, the conclusion of the Constitutional Court is ultimately correct because the obligation to exercise jurisdiction stems from the complementary application of art. 5, as executed by the Italian statute n. 489/1988, and article 14 of the Convention against torture, interpretated systemically in the light of the jurisprudence of the European Court of Human Rights on procedural bligations embodied in article 3 of the European Convention on Human Rights.