Appeal, statute of limitations and compensation: all the key issues in the Regeni judgement

Rome. “We will lodge an appeal against the first-instance judgement in the Regeni case,” lawyer Tranquillino Sarno, the court-appointed lawyer for Athar Kamel Mohamed Ibrahim – one of the three Egyptian officers convicted of the abduction of the Italian researcher – told Il Foglio. “We will do so, on the one hand, by challenging the Assize Court’s order declaring the defendants in default, given that this is possible even without the defendants’ special counsel. Furthermore, we will raise the issue of the constitutional legitimacy of the provision that prevents us from lodging an appeal on the merits in this specific trial.” Meanwhile, however, the issue of the statute of limitations arises. (Antonucci continues on page four)

“The Constitutional Court,” explains lawyer Sarno, “has established a rule stipulating that, in this specific case, the defendant may be tried even without proof that they have been summoned to court. Given that this is a unique case, we will ask the Constitutional Court whether, at least in this instance, the provision preventing a court-appointed defence lawyer from appealing the judgement – unless they hold a special power of attorney from the defendant – is also unconstitutional.”

In short, the defence teams are preparing to put forward their case in the face of a judgement handed down at the end of a trial “marked by a blatant undermining of the right to a defence”. As we highlighted yesterday, in fact, the court-appointed defence lawyers for the Egyptian officers were forced to defend individuals they had never been able to meet (it is not known whether they are still alive or dead); they were unable to call witnesses, conduct proper cross-examinations, or produce any further statements other than those already contained in the prosecution’s file. Ultimately, the Rome Assize Court handed down a verdict that satisfies and dissatisfies everyone at the same time. Three out of four defendants were in fact convicted, but received ten-year sentences rather than the severe penalties sought by the prosecution (one life sentence and 17 and a half years). Above all, the judges recognised only the offence of unlawful detention, but not those of causing bodily harm and murder, nor the aggravating circumstances put forward by the public prosecutors. For this reason, the Rome Public Prosecutor’s Office will also await the publication of the grounds for the judgement before deciding whether to appeal the verdict.

In the meantime, however, new scenarios are emerging. Firstly, the expungement of offences relating to murder, bodily harm and certain aggravating circumstances of unlawful detention raises the real risk that the limitation periods may come into effect (which is not the case for murder): for unlawful detention committed by public officials, the limitation period is 10 years, which increases to 12 and a half years due to the one-quarter extension resulting from acts that interrupt the limitation period. In other words, the offence of ‘simple’ kidnapping could become time-barred in August 2028: it is difficult to imagine that an appeal trial could be held by that date.

The second issue, which is technical in nature but even more significant in substance, concerns the very possibility of continuing with the trial. In order for the trial to begin, a 2023 ruling by the Constitutional Court was required, establishing that for offences comparable to torture (which at the time were not yet provided for in our legal system), the trial may proceed in the absence of the defendant even where it is not possible to prove that they were aware of the proceedings, if this is due to a lack of cooperation from their home state. But now that the offence of bodily harm and the aggravating circumstances (such as ill-treatment and cruelty) which could have made the offences equivalent to torture have been removed, can the trial still be considered legitimate?

Another sensitive issue concerns the provisional enforcement orders granted by the Assize Court in favour of the civil parties for a total of 650,000 euros, of which 150,000 euros is in favour of the Prime Minister’s Office. Some have argued that, given the defendants’ unavailability, the Italian government will have to claim the sum from Cairo, thereby creating a diplomatic issue. In reality, the compensation is to be paid by the three convicted defendants, not by Egypt. To make Egypt liable for the compensation, a further ruling by a civil court would be required.

Ermes Antonucci