This legislative decree protects maternity and paternity, and prohibits discrimination on the basis of either. It regulates parental leave, leave for the illness of a child, rest, and the treatment of pregnant workers to protect their health. (Note: PDF is the consolidated text only. Follow the external link for the entire text of the decree.)
The Italian Civil Code provides for succession and inheritance, each of which require equal treatment of male and female children (Book II, Title I). In cases in which the conduct of a spouse or co-habitant causes serious physical or mental harm to the other spouse or co-habitant, but the conduct does not constitute a criminal act, the court may issue a family order of protection. A judge may order the party concerned to stay away from the home, the spouse's place of work, the residences of extended family members, and the children's school (Book I, TItle IX, art. 342). The judge can also order the intervention of social services or a family mediation center.
The Italian Penal Code prohibits domestic violence (art. 572), female genital mutilation (art. 583), and harassment (art. 612). Punishable crimes against a person's freedom also include slavery and forced prostitution (art. 600), human trafficking (art. 601), and sexual violence (art. 609). Sexual acts coerced through violence, threats, or abuse of authority carry a prison sentence of five to 10 years. Aggravating factors in sexual violence cases include pregnancy, a victim under 14 years old, and use of a weapon. Sexual acts with a minor are not punishable when(1) the perpetrator is also a minor, (2) the minor is at least 13 years old, and (3) the age difference between the two is no more than three years (art. 609).
The Constitution provides for equality before the law without consideration of sex, race, religion, political affiliation, language, and social conditions (art. 3). It also recognizes the moral and legal equality of spouses (art. 29). Finally, it mandates equal employment opportunity for men and women (art. 37).
(English translation available through RefWorld.)
Domestic Case Law
A man was charged with the crime of mistreatment in the family pursuant to article 572 of the Italian Criminal Code and sentenced by the Court of Appeal to one year and four months of imprisonment for mistreatment, aggravated injury and threats against the cohabiting partner. The accused appealed the ruling holding that the charges referred to episodes occurred after the cessation of the cohabitation between him and the victim. However, the Supreme Court maintained that the end of cohabitation is irrelevant to the evaluation of ill-treatment between the members of the couple when the personal relationship was based on mutual solidarity and assistance, and resulted in the birth of a child. In fact, the parental obligations towards a child, for which the couple needs to relate with cooperation and mutual respect, survive despite the cessation of the cohabitation. Therefore, the Italian Supreme Court dismissed the appeal because the presence of a child increases the importance of the stability and longevity of the parents’ relationship.
The Supreme Court, in deciding upon the applicability of certain procedural rules, confirmed the main international definitions of violence within gender relationships. Particularly, the local court dismissed the case against a man charged with the crimes of stalking and mistreatment in the family pursuant to articles 612-bis and 572 of the Italian Criminal Code, without giving any notice thereof to the person injured by the crime in accordance with Article 408 of the Italian Code of Criminal Procedure. In deciding the case, the injured person appealed the decision of the local court and requested the Italian Supreme Court to declare the dismissal of the case null and void. In deciding the procedural issue at hand, the Italian Supreme Court pointed out that the Italian criminal law has drawn the definitions of gender violence and violence against women mainly from international law provisions, which are directly enforced in the system pursuant to Article 117 of the Constitution. In this decision the Italian Supreme Court gave all the definitions of violence within gender relationships in consideration of international conventions and specifically European law, and concluded that such definitions, even if not directly included in domestic regulations, “are fully part of our national system through international law and are therefore enforceable.” According to this interpretation, the definitions of gender violence given by the Istanbul Convention on preventing and combating violence against women and domestic violence are directly applicable in the Italian legal framework. On this basis, the Court ruled that notice of dismissal of the case must always be served on the person injured by crimes of stalking and mistreatment in the family pursuant to articles 612-bis and 572 of the Italian Criminal Code, as those provisions relate to the gender violence notion set forth under the international and EU provisions applicable in the Italian legal framework.
An employer fired a woman after learning of her intention to start an assisted reproduction process. The local court and the court of appeal stated that such dismissal was substantially due to gender discrimination against the employee who wanted to start the assisted reproduction process. Such decisions were challenged by the employer who argued that the dismissal of the employee was not connected to any gender discrimination but rather to the absences for illness that would have affected the efficient management of the work. The Italian Supreme Court confirmed that the dismissal was null and void due to a gender discrimination, irrespective of the fact that the assisted reproduction process had been commenced or not and sentenced the employer re-hire the employee and to pay her the relevant salaries as if she had never been fired.
The Court of Appeal of Turin upheld the lower court’s judgment deeming a clause of a collective agreement negotiated at the enterprise level to be discriminatory because it infringed on Articles 3 and 37 of the Constitution, Article 25, para 2bis, of Decree No. 198/2006 and Article 3 of Decree No. 151/2001. Under the relevant clause the “real presence at work” was as an eligibility criterion to receive an additional remuneration, it being understood that any family-related leave, including any compulsory maternity leave, parental leave. and/or leave for illness, could affect the employees’ level of performance in that respect. The Court maintained that even though the criterion was formally neutral, it resulted in an indirect pay discrimination since female workers usually take more family-related leave than male workers. Moreover, during the trial, the company failed to provide a permissible justification regarding the requirement of “real presence at work.” Therefore, the employer was ordered to (1) cease the discrimination by computing leave as actual time worked for the purposes of achieving the real presence requirement and becoming eligible for the additional remuneration, (2) to pay the additional remuneration incentive to the plaintiffs, and (3) to enhance a plan to remove the discrimination by avoiding the inclusion of the above criterion in any future collective bargaining at the enterprise level. The latter was promoted by the intervention of the Regional Equality Adviser as a case of collective discrimination.
The applicant, a Nigerian born woman, is granted refugee status based on the absence of protection for violence against women generally in Nigeria, as well as her specific experience with gender-based violence. In 2010, applicant was, without her consent, taken to Libya where she was subject to forced prostitution and violent attacks which included removal of applicant’s nails and hair. Applicant was then transferred to Italy where she was applied to the Territorial Commission for international protection. Her application was denied and she appealed to the Tribunale di Cagliari to overturn the Territorial Commission’s decision. The Tribunale di Cagliari found that the applicant’s subjective credibility should have been considered, along with the objective facts available regarding the dire situation for women in Nigeria, and that the Territorial Commission’s findings were invalid because her application for international protection was not translated to a language that she was able to understand.
International Case Law
In 1984, Ms. Boso, an Italian citizen who is married, decided to have an abortion despite her husband’s opposition. Mr. Boso initiated a suit against his wife claiming that the termination deprived the unborn child of its right to life. He also challenged the constitutionality of Italian legislation which provided that women could unilaterally decide whether to have an abortion. The European Court of Human Rights dismissed the complaint which alleged that the termination of a pregnancy by the applicant´s wife violated the right to life under the Convention and also his rights under Articles 8 and 12 of the Convention. The Constitutional Court dismissed the complaint on the grounds that the decision to grant the mother full responsibility was logical given the effects of pregnancy, both physical and mental, on the pregnant woman. Mr. Boso’s appeal to the Venice District Court alleging violations of Article 2, 8 and 12 of the Convention was also dismissed. The applicant’s final appeal to the Court of Cassation, again on constitutional and convention grounds, was similarly dismissed.
The detention pending deportation of a woman who had recently given birth found to be unlawful and violated Article 5 § 1 (f) and Article 5 § 5 (right to liberty and security) of the European Convention on Human Rights. In September 2000, the applicant, a woman from Bosnia and Herzegovina, applied to the Italian authorities for refugee status. The application was not forwarded to the competent commission because it contained formal defects. On September 26, 2003 the applicant gave birth to a child, who died a few days later at the hospital. Then, on November 11, 2003 the police served her with a deportation order and transferred her to a holding center pending such deportation that the applicant's placement and detention had been in breach of Italian immigration law no. 286 of 1998, which provided that her deportation should have been suspended until six months after she had given birth (March 26, 2004), regardless of the fact that the baby had died. In March 2006, the Rome Civil Court granted Ms Seferovic refugee status. In addition, by way of just satisfaction, the government was required to pay the applicant 7,500 euros (EUR) for non-pecuniary damage for her unlawful detention as there was no redress available under Italian law.
Italian government’s failure to take measures to ameliorate the less favorable treatment suffered by women falling into certain vulnerable categories with respect to access to abortion services was a violation of Article E (prohibition of direct and indirect discrimination) of the Revised European Social Charter (the “Charter”) in conjunction with Article 11 (right to protection of health) of the Charter. IPPF EN complaint stated that the high number of medical personnel electing to be conscientious objectors resulted in the violation of the rights of women to have access to procedures for the termination of pregnancy, thus violating their right to protection of health. Committee finds that certain categories of women in Italy are subject to discrimination in the form of impeded access to lawful abortion facilities as a combined effect of their gender, health status, territorial location and socio-economic status. Committee finds that Italian authorities should have adopted the necessary measures to compensate for deficiencies in service provisions caused by health personnel choosing to exercise their right to conscientious objection to performing abortions.
In May 2003, a Roma family with Bulgarian nationality traveled to Italy with a promise of work in a villa. M.’s parents alleged that they were threatened and forced to return to Bulgaria, leaving M.—their 17 year old daughter—in the villa, where she was raped and beaten. M.’s mother returned to Italy on 24 May and reported to the police that her daughter had been kidnapped. M. was rescued from the villa seventeen days later, on 11 June 2003. No criminal proceedings were taken against M.’s kidnapper but the police instituted proceedings against M.’s parents for perjury and libel, believing that the accusations of kidnapping were untrue and that M.’s parents had contracted to marry M. to the alleged kidnapper for a sum of money. The European Court of Human Rights found a violation of Article 3—prohibition of ill-treatment—in the investigation of rape and beating by the Italian authorities, which it ruled was ineffective. The Court found no violation of Article 3, however, in the steps taken by the police to secure the release of M.
The Commission brought an action against the Italian Republic that they failed to properly implement legislation adopting Directive 76/207. The Commission argues that the Italian government did not properly implement certain requirements, such as equal working conditions, into national law. The Court notes that Article 189 of the EEC Treaty permits a country to implement its own form of legislation. There is no infringement of Directive 76/207 if the national law lets anyone bring the matters covered under the Directive before the courts. So the Court found for the Italian Republic.