Cesare Battisti (born 1954)

Cesare Battisti

Battisti, 17 November 2009
Born December 18, 1954
Cisterna di Latina, Italy
Criminal charge
 Two murders and accomplice in other two
Criminal penalty
 Life imprisonment
Criminal status Refugee in Brazil

Cesare Battisti (born 18 December 1954) is an italian former member of the Armed Proletarians for Communism, a far-left militant and terrorist group which committed acts of illegality and crimes in Italy during the period known as "Years of Lead". Sentenced for four homicides (two policemen, a jeweler and a butcher) to life imprisonment in Italy, currently he is a writer and he lives as a free man in Brazil. Fleeing Italy, he flew to France and subsequently Mexico before settling in Brazil. He has become a fiction author, having written 15 books.

Battisti was sentenced to 12 years under the charge of participating in an armed group and of the material killing of two people and being the mandate for other two homicides. He fled to France, where he received protection under the Mitterrand doctrine. Later, he was tried in absentia based on testimony in Pietro Mutti's trial implicating him in four assassinations, bringing the total of charges against him to 36. He was given a sentence of life in prison. After the de facto repeal of the Mitterrand doctrine in 2002, Battisti entered in Brazil with fake documents to avoid a possible extradition.

He was arrested in Rio de Janeiro on 18 March 2007 by Brazilian and French police officers. Later, Brazilian Minister of Justice Tarso Genro granted him the status of political refugee, in a controversial decision which was much criticized in Italy, whereas divided Brazilian and international press opinion was more divided.[1][2][3][4][5][6] On 5 February 2009, the European Parliament adopted a resolution in support of Italy[7] and held a minute of silence in memory to Battisti's victims. On 18 November 2009, the Brazilian Supreme Court considered the refugee status illegal and allowed extradition, but also stated that the Brazilian constitution gives the president personal powers to deny the extradition if he chooses to, effectively putting the final decision in the hands of Brazilian President Luiz Inácio Lula da Silva. On 31 December 2010, Lula's last effective day as president, the decision not to allow extradition was officially announced.

Battisti was released on 9 June 2011 from prison after the Brazilian Constitutional Court denied Italy's request to extradite him. Italy plans to appeal to the International Court of Justice in The Hague.[8][9]

Youth and PAC membership

Cesare Battisti was born in 1954 at Sermoneta, near Latina. He left the classical lyceum he was attending in 1971, engaged in petty crime, and then moved on to more serious offenses.[10]

In 1976 he moved to Milan, and took part in activities of the PAC, an autonomist Marxist group which conducted armed struggle, and which had a "horizontal", decentralized structure, opposed to the centralist organisation of the Red Brigades (BR). The organisation, which counted approximately 60 members, had its roots in a district in southern Milan, called Barona.

Four assassinations were committed by the PAC: Antonio Santoro, a prison guard accused by the PAC of mistreatment of prisoners (on June 6, 1978 in Udine), jeweler Pierluigi Torregiani (on February 16, 1979 in Milan), Lino Sabadin, a butcher (on the same date, near Mestre), and DIGOS agent Andrea Campagna, who had participated in the first arrests in the Torregiani case (on April 19, 1979 in Milan). The PAC also engaged in several robberies.

The murder of Torregiani and Sabbadin had been decided by the PAC because both of them had killed a robber-terrorist in the past, thus as an act of armed opposition to self-defense by attacked persons.[11] Torregiani was killed as revenge in front of his 13-year-old son, who was also shot by his father as a result of a tragic error.[12] The paraplegic Torregiani considers now that, in any case, Battisti is responsible for the shooting, and should serve his sentence in jail: "It's not about the person of Cesare Battisti - he declared to the national press agency ANSA - It's in order that everyone understands that, sooner or later, those who have committed such serious crimes should pay for their faults".[13]

Cesare Battisti has stated in several texts that he abandoned political violence after Prime Minister Aldo Moro's kidnapping and subsequent murder in May 1978, carried out by the Second Red Brigades led by Mario Moretti

First trial and escape

Cesare Battisti was arrested and jailed in Italy on February 26, 1979, sentenced to 12 and a half years in prison for participation in an "armed group" ("partecipazione a banda armata"). He was sentenced on the ground of material evidence[14] and testimonies provided by two "collaboratori di giustizia" (defendants who testified against their former accomplice) who benefitted from lighter condemnations for their testimony.[15] The status of "collaboratore di giustizia", also popularly known as pentito, was established by anti-terrorist legislation enacted during this period.

PAC members organised his escape on October 4, 1981, while he was in Frosinone prison. Battisti fled to Paris and then for Puerto Escondido, Oaxaca, Mexico, very shortly afterward. While in Mexico, he founded a literary review, Via Libre, which is still active. He also participated in the creation of the Book Festival of Managua (Nicaragua) and organised the first Graphic Arts Biennal in Mexico. Cesare Battisti began to write at the suggestion of Paco Ignacio Taibo II and collaborated with various newspapers.

Second trial

Pietro Mutti, one of the leaders of the PAC who had been sentenced in absentia for the assassination of prison surveillant Santoro, was arrested in 1982. He sought the status of "collaboratore di giustizia" and his testimony, which helped him reduce his sentence, implicated Battisti (and an accomplice) in the four assassinations claimed by the PAC. Battisti's trial was thus reopened in 1987, and he was sentenced in absentia in 1988 for two assassinations (Santoro and DIGOS agent Campagna) and complicity of murder in the two other (jeweler Torregiani and butcher Sabbadin). The court sentenced him, in appeal, to a life-sentence in 1995. Two years before, the Court of Cassation had quashed, on procedural grounds, the case against Battisti's accomplice, accused by Pietro Mutti.[12]

Two of the assassinations occurred on February 16, 1979, one at Milan at 15h, and the other in Mestre, 270 km away from Milan, at 16h50. Battisti was sentenced for materially committing the first assassination, and for planning the second one.

Battisti's return to France

Ten years earlier, in 1985, the President of France François Mitterrand had indicated that "leftist Italian activists who were not indicted for violent crimes and had given up terrorist activity would not be extradited to Italy"; this became known as the "Mitterrand doctrine". Many Italian political activists had fled to France during the 1970s-1980s. Trusting in this declaration, Battisti returned to France in 1990, where he was arrested on Italy's request in 1991, when his sentence was confirmed in the Court of Cassation. He thus passed five months in Fresnes prison and then was freed after the extradition request was rejected by the Paris Appeal Court on May 29, 1991. French justice concluded that the anti-terrorist legislation enacted in Italy "went against the French principles of law," which, along with the European Court of Human Rights (ECtHR), prohibited in particular to extradite a person sentenced in absentia if that person had not been in a condition to adequately defend himself during his trial.[15] The court also defined the evidences held against Battisti as "contradictory" and "worthy of a military justice."[16]

After his release in 1991, Battisti lived in Paris, where he wrote his first novel, Les Habits d'ombre ("Shadow clothes"). Two thrillers, L'Ombre rouge ("Red shadow") and Buena onda, took as backdrop the Parisian world of Italian fugitives from justice. Another major novel, titled Dernières cartouches ("Last bullets"), takes place in Italy during the "years of lead".

In 1997, jointly with other left-wing Italians who had fled to France and were accused of taking part in violent crimes, he asked without success the President of Italy at the time, Oscar Luigi Scalfaro (DC), for an amnesty.

A diplomatic dispute between France and Italy

Over the years, Italy asked France several times to arrest and extradite left-wing Italians involved in court cases connected with political violence in Italy and who had fled to France. On September 11, 2002 the extradition of Battisti and others was again requested during the meeting in Paris between Italy's Minister of Justice Roberto Castelli and France's Minister of Justice Dominique Perben.

Arrest in France

On February 10, 2004, the French government arrested Battisti on Italy's request and planned to extradite him to Italy. On June 30, 2004, the Paris Court of Appeal gave a favorable opinion for his extradition. An appeals in the Court of Cassation was filed against this opinion and another recourse introduced before the Conseil d'État against the extradition decree. President Jacques Chirac stated on July 2, 2004 that he would not oppose French justice's decision to extradite him. Perben confirmed Paris' new position: "There is no ambiguity. There has been a change of attitude from France, and I support it," (in reference to the "Mitterrand doctrine"), among other reasons "because of the European construction".[17][18]

As of 2007, only Paolo Persichetti, former member of the Unità Comuniste Combattenti, among the 200 Italians involved in Court cases dealing with political violence requested by Italy, was extradited (in August 2002). He was eventually sentenced to 22 years of prison. Minister Edouard Balladur had signed Persichetti's extradition decree in 1994; it was validated by the Conseil d'Etat the following year.[18] According to RFI radio station, the Perben-Castelli agreement was divided in three parts: all events before 1982 would be prescribed "except in case of exceptional gravity"; facts between 1982 and 1993 would be "examined on a case by case basis", in function of the European Convention of Human Rights (ECHR) principle and of the "conditions in which the trials took place in Italy".

Still claiming his innocence, Cesare Battisti failed to check in at the local police station, while on parole, on August 21, 2004 and went under.

On March 18, 2005, the French Conseil d'Etat (the French Supreme Court in administrative law), ruling ultimately for Battisti's extradition, affirmed clearly that the Italian legislation did not conflict with the French principles of law. The Conseil established that:

the circumstance that some of the charges held against Mr Battisti, which led to the cited sentences, are partly based on statements by "repented" witnesses, is not contrary to French public order and does not constitute an infringement by Italian authorities of the requirements of Article 6 of the European Human Rights and fundamental liberties safeguard convention (...).[19]

ECtHR, then, confirmed those decisions and ruled that the Italian trial in absentia in Battisti's case was fair under its provisions.

In July 2005, the Italian press revealed the existence of the Department of Anti-terrorism Strategic Studies (DSSA), a "parallel police" created by Gaetano Saya, leader of Destra Nazionale neofascist party, and Riccardo Sindoca, two leaders of the National Union of the Police Forces (Unpf). Both claimed they were former members of Gladio, NATO's "stay-behind" paramilitary organization involved in Italy's strategy of tension and various alleged activist acts. According to Il Messaggero, quoted by The Independent, judicial sources declared that wiretaps suggested DSSA members had been planning to kidnap Cesare Battisti.[20]

On 5 February 2005, the European Parliament adopted a resolution in which it expressed its trust "that the re-examination of the decision on the extradition of Cesare Battisti will take into account the judgment delivered by an EU Member State in full compliance with the principle of the rule of law in the European Union"[7]

The European Court of Human Rights (ECtHR), in its December 2006 decision, rejected Battisti's claim that France's extradition decision was illegitimate. The Court considered that:

The applicant had patently been informed of the accusation against him and of the progress of the proceedings before the Italian courts, notwithstanding the fact that he had absconded. Furthermore, the applicant, who had deliberately chosen to remain on the run after escaping from prison, had received effective assistance during the proceedings from several lawyers specially appointed by him. Hence, the Italian and subsequently the French authorities had been entitled to conclude that the applicant had unequivocally waived his right to appear and be tried in person. The French authorities had therefore taken due account of all the circumstances of the case and of the Court’s case-law in granting the extradition request made by the Italian authorities: manifestly ill-founded.[21]

Asylum in Brazil

Battisti fled to Brazil and was arrested in Rio de Janeiro on March 18, 2007.

After that the government of Brazil granted Cesare Battisti the status of political refugee through a decision of its Minister of Justice Tarso Genro. Battisti's request for asylum was first denied by the National Committee for Refugees, in a decision taken by simple majority. His defense appealed to the Minister of Justice, who granted in January 2009 refugee status, a decision which divided Brazilian public opinion.[22] Refugee status, however, halts the request for extradition, which is being considered by the Brazilian Supreme Court.

Italian President Giorgio Napolitano wrote to Brazilian President Luiz Inácio Lula da Silva, informing him of the "emotion and understandable reactions" raised in his country, in public opinion and among political forces by this "grave decision". Italian Justice Minister, Angelino Alfano, has asked Brazilian authorities to reconsider this decision "in the light of international cooperation against terrorism".[23] Lula answered Napolitano, mentioning that Genro's decision is founded on the Brazilian constitution and on the UN 1951 Convention on Refugee Status and is an act of sovereignty of Brazil.[24]

Criticism was also based on speculations about the influence exerted by Carla Bruni, spouse of the French President Nicolas Sarkozy, on Genro's decision.[25] Brazilian Senator Eduardo Suplicy attested to Corriere della Sera that Bruni herself asked Lula to refuge Battisti. Bruni denied this claim on a RAI interview as she expressed her condolences with the families of Battisti's victims.[26]

Controversy surrounded Genro's decision on granting refugee status to Battisti. Many law specialists have spoken saying that the decision was illegal. The Brazilian Supreme Court started trying the case in September 2009. By 5 votes to 4 (simple majority), the court ruled Genro's decision null and void on 18 November. However, the court also decided by 5 votes to 4 on the interpretation that the Brazilian constitution gives the president of the executive branch personal powers to deny the extradition if he chooses to, effectively putting the final decision in the hands of Brazilian President Luiz Inácio Lula da Silva.

On the 29 December 2010, unofficial reports in Italy and Brazil said President Lula was about to announce he had denied the extradition of Battisti, just 3 days short of ending his presidential mandate. The official announcement took place on December 31, hours before the end of Lula's mandate.[27]

On 8 June 2011, the Brazilian Supreme Court ruled that Lula's decision regarding the non-extradition of Battisti is final.[28] Italian authorities announced their intention to appeal to the International Court of Justice against Brazil for breaching the extradition treaty.[29]

In November 2013, the Universidade Federal de Santa Catarina invited Battisti to speak at a conference.[30]

Currently Cesare Battisti lives in the town of Embu das Artes, São Paulo metropolitan, working as a realtor.

On March 2015 a federal judge ruled null and void the decision to grant him a permanency visa as it would conflict with Brazilian law, ordering his deportation. The judge stressed that the deportation should not be confused with extradition, as it does not require that Battisti be surrendered to Italy, but rather to the country of origin from where he entered Brazil of any other that agrees to receive him. [31]

Public opinion

Cesare Battisti denied having committed any of the murders he has been sentenced for. The circumstances of his sentence have been put in question. A movement claiming Battisti's innocence is active in the media and in public opinion (especially in France). Among the most vocal supporters of Battisti, writers Fred Vargas, Valerio Evangelisti and Bernard-Henri Lévy consider that the trials conducted in Italy were marked by irregularities. These alleged irregularities involved the use of torture (Battisti's French lawyers have not used this peculiar charge, the violation of article 3 ECHR, in their rejected claim to ECtHR), and the misuse of witnesses: according to Battisti's supporters, witnesses against Battisti were either affected by mental troubles, or were "collaboratori di giustizia", (that is, defendants testifying against other defendants in order to benefit from a reduced sentence. Those peculiar witnesses are also used by French justice, i.e. art. 132-78 French Code Penal). Battisti's supporters also claim that ballistic analysis and graphological expertises used in Italian court cases do in fact, contrary to what the Courts considered, exonerate Battisti.[12][32][33]

Most of public opinion in Italy disagrees with those views, and Battisti's arrest in Brazil has been commented upon favourably in the media. Rifondazione Comunista, however, considers that he should not be extradited, as he would not be granted the right to a new trial. In France, supporters of Battisti, such as Gilles Perrault, have called this arrest, a few weeks before the April 2007 presidential election, an "electoral feat," closely timed by the then Interior Minister Nicolas Sarkozy, candidate for the UMP conservative party. François Bayrou, candidate for the UDF right-of-center party, has called for a new trial, as have members of the left-wing.[15]

Defenders of Battisti, among whom the Human Rights League (LDH), consider that France's decision to extradite Battisti was illegal, since Battisti would not have the right to a new trial, after having been judged in absentia.

But the alleged right to a new trial is not a sufficient guarantee for the defendant, as clearly ruled the ECtHR in the case of Krombach v. France, application no. 29731/96, and also article 6 of ECHR, the juridical ground of Battisti's claim against extradition, doesn't prescribe a new trial. ECHR establishes that there is not an absolute right to a new trial, after a trial in absentia. Battisti's claim concerned the defendant's knowledge of the trial, and Battisti's lawyers argued that the defendant had not been in a position to know that in Italy there was a trial against him and so his rights had been violated.

The Union syndicale des magistrats (USM, the largest trade union of French judges) has supported the fairness of the Italian trial in absentia and has also confirmed the legality of Battisti’s condemnation:[34]

"L'USM condamne le procédé consistant, dans une perspective purement idéologique, à discréditer une décision de justice rendue par une cour d’assises italienne, dans le strict respect des règles de procédure pénale (appel et cassation) s’agissant d’un accusé en fuite mais défendu à tous les stades de la procédure conformément au droit italien en vigueur."

Translation : "The USM condemns the procedure consisting in discrediting, in a purely ideological perspective, a justice decision emitted by an Italian Assizes Court, in strict respect of penal legal procedures (appeals and "Cassation"), in the case of a defendant not appearing in Court but defended in each and every stage of procedure in accordance with Italian prevailing legislation."

Endnotes

  1. ↑ Economist.com, The madness of asylum
  2. ↑ Le Journal du Dimanche. 14/01/2008. Battisti: Brésil, terre d'asile.
  3. ↑ Centro de Mídia Independente, 14.01.2009: Cesare Battisti conquista condição de refugiado político
  4. ↑ Última Instância, revista jurídica. 21.012009. A Itália dos anos de chumbo e a questão do asilo político a Cesare Battisti
  5. ↑ Folha de São Paulo, 14/01/2009. Comissão de Direitos Humanos diz que refúgio a Battisti segue a Constituição
  6. ↑ Última Instância, revista jurídica. 21.01.2009. Ministério da Justiça recebe abaixo-assinado apoiando refúgio a Battisti
  7. ↑ 7.0 7.1 http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+20090205+TOC+DOC+XML+V0//EN&language=EN
  8. ↑ news24.com, 2011-06-09. Italy to contest Battisti Brazil release: News24: World: News
  9. ↑ Italy Global Nation, 2011-06-09. Brazil: Italy calls release of convicted terrorist 'humiliation' and pledges Intl. Court appeal
  10. ↑ L'appello: "Battisti in Italia e in galera" - Il Tempo
  11. ↑ «La culpabilité de Battisti repose sur des preuves», interview with public prosecutor Armando Spataro, in L'Express, 15 March 2004 (French)
  12. ↑ 12.0 12.1 12.2 Valerio Evangelisti, Valerio Evangelisti répond à 50 questions (French)
  13. ↑ (Italian) Torregiani: A Cesare Battisti chiederei solo perche, 18/03/2007
  14. ↑ Battisti persiste et signe, Guillame Perrault
  15. ↑ 15.0 15.1 15.2 Cesare Battisti: dire la vérité, respecter les droits, Human Rights League (LDH), public statement of March 17, 2007 (French)
  16. ↑ Vantaggiato, Iaia (2009) Cesare Battisti, no all'estradizione quotation:
    Nell'aprile '91 la Chambre d'Accusation lo dichiarò non estradabile in base alla dottrina Mitterrand che garantiva protezione ai latitanti per motivi politici. La magistratura francese bollò le prove a suo carico come "contraddittorie" e "degne di una giustizia militare".
    Original French quotation:
    dignes d'une justice militaire
  17. ↑ Richard Mallié, deputy of the Bouches-du-Rhône, Question au gouvernement: Extradition de Cesare Battisti, 26/10/2004 (French)
  18. ↑ 18.0 18.1 Clarisse Vernhes, « Paris prête à extrader d’autres «brigadistes», in RFI, 2002 (French)
  19. ↑ "Considérant que la circonstance que certaines des charges retenues contre M. Battisti, et qui ont donné lieu aux condamnations précitées, reposent pour partie sur des déclarations de témoins " repentis ", n'est pas contraire à l'ordre public français et ne constitue pas une méconnaissance, par les autorités italiennes, des stipulations de l'article 6 de la convention européenne de sauvegarde des droits de l'homme et des libertés fondamentales (...)" Conseil d'Etat's http://www.conseil-etat.fr/ce/jurispd/index_ac_ld0515.shtml
  20. ↑ Philips, John (2005-07-05). "Up to 200 Italian police 'ran parallel anti-terror force'". London: The Independent. Retrieved April 28, 2010. (URL accessed on January 22, 2007)
  21. ↑ European Court of Human Rights's decision (Sub art. 6, "claims inadmissible" : Life sentence following a conviction in absentia in "Battisti v. France," Information note n. 92)
  22. ↑ http://www1.folha.uol.com.br/folha/brasil/ult96u490815.shtml
  23. ↑ Gazeta do Povo, 17/01/2009. Presidente da Itália manda "carta de pesar" a Lula pelo asilo a Battisti.
  24. ↑ Folha de São Paulo. 23/01/2009. Leia íntegra da carta do presidente Lula enviada ao governo da Itália.
  25. ↑ "Bruni denies asked Brazil not to extradite Italian". Reuters. January 25, 2009.
  26. ↑ Folha de São Paulo. 25/01/2009. Carla Bruni nega participação em decisão brasileira de refugiar Battisti.
  27. ↑ "Lula sparks diplomatic spat with Italy over refusal to extradite killer" The Guardian, Friday 31 December 2010 18.54 GMT
  28. ↑ "STF rejeita reclamação da Itália no Caso Battisti"
  29. ↑ "Cesare Battisti extradition: Italy to go to Hague court" BBC News
  30. ↑ http://www.egov.ufsc.br/portal/conteudo/ufsc-paga-vinda-de-criminoso-condenado-na-it%C3%A1lia-para-falar-aos-alunos
  31. ↑ http://www.migalhas.com.br/Quentes/17,MI216508,61044-JFDF+determina+deportacao+Cesare+Battisti
  32. ↑ Fred Vargas, « Cesare Battisti: A la recherche de la justice perdue » in La Règle du Jeu, n°30 (January 2006) (French)
  33. ↑ Cesare Battisti, Ma Cavale, 27/4/2006, Preface p. 13 (French)
  34. ↑ Communiqué USM Affaire Battisti in http://usm2000.free.fr/article.php3?id_article=142

Bibliography

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