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United Nations Committee on the Rights of the Child - States Parties Reports |
UNITED
NATIONS |
|
CRC
|
|
Convention on the Rights of the Child |
Distr. GENERAL CRC/C/70/Add.13 12 July 2002 Original: ENGLISH |
COMMITTEE ON THE RIGHTS OF THE CHILD
CONSIDERATION OF
REPORTS SUBMITTED BY STATES PARTIES
UNDER ARTICLE 44 OF THE
CONVENTION
Periodic reports of States parties due in 1998
ITALY[*]
[21 March 2000]
CONTENTS
Paragraphs Page
I. IMPLEMENTATION OF THE
CONVENTION IN ITALY 1 - 89 6
A. Introduction 1 -
9 6
B. The protection of the rights of the child 10 -
12 7
C. Childhood in Italy 13 - 18 8
D. A strategy to
protect the rights of the child 19 - 20 9
E. Policies aimed at
implementing the rights of the child 21 - 24 11
F. Plans for future
action 25 - 29 18
G. The dissemination of the Convention in Italy
30 - 38 19
H. Economic resources employed for children 39 -
72 21
I. Cooperation with developing countries 73 -
75 27
J. Comments on the previous report and action taken 76 -
79 30
K. The preparation and dissemination of the report 80 -
82 33
L. The attention of society to the rights of the child 83 -
89 33
II. THE DEFINITION OF THE CHILD AND THE
IMPLEMENTATION OF THE
GENERAL
PRINCIPLES OF THE CONVENTION 90 - 120 35
A. Who is the
child as defined by Italian law? 90 - 94 35
B. Non-discrimination
95 - 102 42
C. The best interests of the child 103 -
106 43
D. The right to life, survival and development
107 45
E. Respect for the views of the child 108 - 120 45
CONTENTS (continued)
Paragraphs Page
III. CIVIL RIGHTS AND
FREEDOMS 121 - 177 48
A. Introduction 121 - 124 48
B. Name
and nationality 125 - 134 49
C. Preservation of identity 135 -
139 51
D. Freedom of expression 140 - 141 53
E. Freedom of
thought, conscience and religion 142 - 149 53
F. Freedom of peaceful
association 150 - 153 54
G. Protection of privacy 154 -
163 55
H. Access to appropriate information 164 -
166 57
I. The right to express one’s own thoughts 167 -
171 58
J. The protection of children from harmful
information
addressed to them 172 - 174 59
K. The right not to
be subjected to torture or to cruel,
inhuman or degrading treatment or
punishment 175 - 177 60
IV. THE FAMILY ENVIRONMENT 178 -
285 60
A. Introduction 178 - 180 60
B. Support to parenting
181 - 184 61
C. Parental responsibilities 185 -
190 63
D. Separation from parents 191 - 206 64
E. Family
reunification for foreign children 207 - 219 69
F. Illicit transfer
and non-return 220 - 226 73
G. Recovery of maintenance for the child
227 - 236 74
CONTENTS (continued)
Paragraphs Page
H. Children deprived of
their family environment 237 - 265 77
I. Adoption 266 -
283 85
J. Temporary entrance into Italy of unaccompanied
foreign
children 284 - 285 91
V. ABUSE AND EXPLOITATION OF THE CHILD 286 -
358 92
A. Introduction 286 - 291 92
B. Maltreatment and
violence 292 - 311 94
C. Exploitation and sexual abuse 312 -
327 97
D. A new strategy against violence in childhood
328 104
E. Economic exploitation 329 - 343 106
F. Sale,
trafficking and abduction of children 344 - 358 113
VI. BASIC HEALTH
AND WELFARE 359 - 449 116
A. The right to life, survival and
development 359 - 373 116
B. Health education 374 -
379 120
C. The situation of children with disabilities 380 -
414 121
D. Health and health services 415 -
431 129
E. Social security and standard of living 432 -
437 134
F. Drug abuse 438 - 449 135
VII. EDUCATION, LEISURE,
CULTURAL ACTIVITIES 450 - 505 138
A. Introduction 450 -
453 138
B. The formal school system 454 - 492 139
C. The
non-formal education system 493 - 505 149
CONTENTS (continued)
Paragraphs Page
VIII. SPECIAL PROTECTION
MEASURES 506 - 604 152
A. Children in situations of emergency 506 -
526 152
B. Children involved with the system of administration
of
juvenile justice 527 - 597 158
C. Children belonging to a minority or
an indigenous
group 598 - 602 170
D. Children of the so-called
“Repented” 603 - 604 171
I. IMPLEMENTATION OF THE CONVENTION IN ITALY[*]
A. Introduction
1. With Law No. 176 of 27 May 1991 Italy
ratified and brought the Convention on the Rights of the Child of 1989 into
force in its
entirety. This means that domestic legislation which was
incompatible with the rules contained in the Convention was automatically
abrogated, and that, consequently, all those rules in the Convention which have
the value of precepts took immediate effect. Moreover,
existing domestic laws
which already conformed to the principles of the Convention were reinforced, in
that they could no longer
be amended in such a way as to run counter to the
principles of the Convention. Finally, the interpretation of laws currently in
force must now refer back mainly to the principles of the Convention which have
become an integral part of the Italian legal system.
2. For this reason,
the Italian Government believes that it can rely on a legal system which
conforms to the Convention of 1989.
No doubt, it may still be necessary or
advisable to make a few more changes to the laws, in keeping with the spirit of
the Charter
of the United Nations, in order to extend the protection of
children in Italy even further, and to defend the rights of the individual.
There do not, however, seem to be any outstanding conflicts between areas in
Italian legislation and the principles of the Convention,
nor could there be,
given that any Italian laws which ran counter to the principles of the
Convention would have been automatically
abrogated, and any gaps in our
legislation would have automatically been filled by the measures contained in
the Convention.
3. The provisions of the Convention are not, however,
just theoretically applicable, but they have already been applied in real
situations
which have affected the lives of children. This fact is revealed by
the increasingly frequent use that the Italian judicial system
is making of
them.
4. The Italian Constitutional Court, for example, in a decision of
9-16 May 1994 expressed the view that the preamble to the Convention
favoured
placing an abandoned child with an adoptive family rather than with single
parents for the purpose of guaranteeing that
the child will have a family
environment. Recently, the Italian Supreme Court, in two separate cases, made
explicit reference to
the Convention: in the first case (Decision No. 6899 of
23 July 1997), it directly applied articles 8 and 9 of the Convention and
inferred from these articles that the child who was under the age of 12 and
whose adoption had been declared without having been
heard directly by the
judges, had the right to maintain his or her own identity and family relations
and that he or she could not
be separated from his or her parents if this were
not in his or her interests. In the second case, which involved the question of
offspring following upon termination of the civil effects of marriage (Decision
No. 317 of 15 January 1998), the Court decided the
issue on the basis of
principles sanctioned by the New York Convention of 20 November 1989,
ratified by Law No. 176 of 1991. The
Criminal Division of the Italian Supreme
Court, for its part, held that, also “in the light” of the New York
Convention,
violence is not admissible for the purposes of education (Supreme
Court, Div. VI, 16 May 1996). Other courts as well have made frequent
reference
to the Convention: for example the Court of Catania (17 April 1997) recognized
the rights of children, on the basis of
the United Nations Convention, to
make choices which affect their own lives (acknowledgement of natural children)
when they have
shown an adequate level of maturity.
5. And because, as we
have already said, the Convention has become the law of the land everyone may
take legal action to defend their
rights and legitimate interests as guaranteed
by the Convention before either ordinary or administrative courts.
6. It
should also be pointed out that, in some sectors, the Italian legal system
actually guarantees better protection than the Convention
itself: for example,
voluntary enrolment in the armed forces in Italy is only admissible after 17
years of age, while only those
over the age of 18 may be drafted (Law No. 958 of
24 December 1986); likewise, an adopted child becomes the legitimate offspring
of the adopting family (Law No. 184 of 4 May 1983); similarly, in the cases of
criminal proceedings against a child, Italian law
requires that the proceedings
have an educational value and that the possibility of incarceration should be
reduced to a minimum
with as many as four alternatives which do not end in
imprisonment (acquittal for reasons of immaturity, judicial pardon, irrelevance
of the fact, acquittal on the evidence), and penalties themselves which
substitute incarceration (parole, semi-detention).
7. The Italian
Government, nevertheless, feels that it is not enough that the national legal
system should be in substantial harmony
with the provisions of the Convention.
To improve the protection and care of children the fact that our laws do not
clash with the
principles of the Convention is only a necessary precondition;
this must be followed by further efforts to make sure that our laws
correspond
to the ideas expressed by the international community.
8. The Italian
Government is well aware that it cannot just limit itself to a formal adoption
of legal principles: a complex system
of protection, support and promotion has
to be set up in order to ensure, if only potentially, that all children can have
their most
essential needs taken care of, needs which the 1989 Convention
transformed into rights.
9. The Convention cannot just be reduced to a
dry code of legally enforceable rights for minoraged citizens. The Convention
speaks
about a wide range of needs for those who are growing up, needs which
must be met not only by means of judicial decisions, but also
through
specifically targeted political, social and cultural programmes whose aim must
be the real interests of the growing generations
and the construction of a
mature identity. What the Convention is proposing is a new pedagogy for human
development, and the Italian
Government intends to promote this and develop it
both at home and in Europe.
B. The protection of the rights of the child
10. It can hardly be denied that if we want to
safeguard the rights of children we need legislation which recognizes all such
rights
and identifies the best way we can help those in possession of those
rights to enjoy them. But, today, we must also realize that
the best laws by
themselves will not be enough to meet the most basic needs of human
growth.
11. The law may point to the best way to behave and sanction
improper behaviour, and it may organize support programmes, but laws
by
themselves cannot be counted on to create positively structured relations; and
this is what children most need when they are growing
up. And the intervention
of the courts alone does not appear to be enough to ensure that those
fundamental needs of children which
we conceive of as rights will be met. The
courts may punish certain behaviour which infringes fundamental human rights;
they may
order monetary compensation for any damages suffered; they may remove
from authority any person who has abused his or her powers
or neglected his or
her duties; they may establish how to behave in relation to someone in trouble;
they may check to see that support
efforts do not end up by manipulating the
weaker parties; but court decisions by themselves cannot perform the task of
structuring
interpersonal relationships or performing real support functions.
They may assist the development of the one and the implementation
of the other
but not directly produce the fulfilment of profound needs. For this the legal
order must make sure that it enables
people to take on more immediate duties
towards others and develop closer social solidarity and that it provides a
network of services
for the support and promotion of the
individual.
12. The Italian Government recognizes the importance of the
challenge it faces; and this is essentially that it must reform its welfare
system by orienting it towards the nurturing of future generations, by
supporting the job of parenting, by creating a net of solidarity
which will help
integrate the genders, ethnic groups and generations. The Italian Government
recognizes the interconnection between
human development, environmental
protection and social and economic development, and, as we shall see in this
report, it has taken
positive action on behalf of children.
C. Childhood in Italy
13. By and large, Italian legislation for
minor-age citizens appears to be satisfactory. But in spite of this fact, it
cannot be
said that the situation for children and adolescents is entirely
without dark sides, or that we can allow ourselves to declare triumphantly
that
there is not much left to do to ensure decent conditions for human development.
Rights which may be recognized in theory are
not always rights which people
actually enjoy; the needs of children growing up are not always being met; the
process of creating
a personal sense of identity is not always made easier or
respected.
14. If we look at the real conditions of children and
adolescents in Italy we are forced to face up to the fact that we still
have:
− Children deprived of decent conditions for development;
− Children who have been abused or who are victims of violence sometimes originating from the institutions themselves;
− Children who are sexually exploited or exploited as child labour;
− Children who are not adequately protected or respected because of insufficient services;
− Children who risk losing contact with institutions: children of gypsies and immigrants, children of poor families who are not able to stay in school or within the professional training system.
15. We must also
recognize that nationwide conditions are not the same; the problems affecting
children from the North are very different
from the problems of children from
the South; children from rural areas and children growing up in big cities;
children living in
city centres and children living in decayed suburban
areas.
16. An awareness of this situation is what has directed the
efforts of the Government, the Regions, the Municipalities and large segments
of
Italian society to deal with these situations. Indignation is not enough.
Decisive action must be taken to prevent hazardous
situations from arising, and
to restore those areas which have deteriorated the most and where the most cases
of violence and exploitation
occur.
17. It must also be said that while
people are right to be concerned, these situations have ended up by receiving
too much attention.
Arising from a few disturbing incidents a general alarm has
sounded which may bring with it many risks, not so much because an emphasis
on
macroviolence draws less attention to the phenomenon of micro-violence which,
because it so frequently happens, destroys so many
persons who are growing up,
but chiefly because the grim view that childhood is a dangerous period may
create a suffocating overly
protective system. In order to defend their
children from a society which they consider to be dangerous, hostile or even
bad, many
parents might well be tempted to isolate them in protected areas,
separating the children from society and society from children
with the result
that society will become even more barbarous than it already is and young people
who are starting out in life will
end up becoming shy and insecure; they will be
forever looking for help, either too dependent or too
aggressive.
18. Certainly, it is necessary to keep an eye out for
potential situations of abuse and the attendant consequences, but we should
not
focus all our attention on pathological situations while neglecting the normal.
Only attention to what is normal will make it
possible to ensure effective
prevention of the pathological. Policies directed at children must not be
merely policies designed
to deal with emergencies or assistance or
protection.
D. A strategy to protect the rights of the child
19. In order to effectively defend the rights of
the child, the Italian Government, the Parliament and all the local institutions
have in recent years attempted to come up with a general policy on children and
adolescents.
20. It is believed that this strategy must be based on the
following principles:
(a) Significant policies for children cannot be
adopted without more general policies aimed at improving the social and
political
conditions for the entire Italian community: policies related to the
war on poverty, efforts to reduce unemployment, to foster a
sense of solidarity
within society against all the various egotistical interests of individuals or
groups, to recognize wider citizenship
rights, to open up participation in the
social and political life of the country to wider groups of people, to ensure
that there
exists equal opportunity for women, to spread culture and education
all over the country, to improve the health of the community,
and this means not
just curing or preventing diseases but fostering a real state of well-being;
none of these policies should be
considered separately from policies aimed at
the new generations; policies which deal with children must come under a whole
range
of policies on behalf of the entire community;
(b) Effective
policies for children cannot be developed if problem areas are dealt with only
when they reach the crisis stage (drug
addiction, juvenile delinquency,
paedophilia), by means of Band-Aid measures or ad hoc solutions adopted without
there being any
overview of the background situation and the real conditions of
children and adolescents. A suitable plan needs much more than just
reliable
information on what the situation is for children in Italy, or detailed study on
preventative measures for existing problems,
but it also requires a general set
of strategies which can be adopted gradually, allowing for coordination at all
levels, releasing
the energies of both institutions and individuals acting
together; it must make sure that periodic surveys take place in order to
see
that the work which has been performed is indeed effective and that adaptations
be made wherever necessary;
(c) Effective policies for children cannot
depend entirely on laws even if good laws are a necessary condition. Laws have
to be
enforced in such a way that they really make a difference. Legislation
should be accompanied by an administration which pays attention
to the needs of
children and is respectful of their personalities and interests; action should
be taken throughout the country not
only to protect children but also to help
them develop, and this should be done by combining the use of public funds with
private
contributions in such a way that both sources can actively work
together; children should be encouraged to take part in the life
of the
community of citizens in order to overcome their
marginalization;
(d) Policies to prevent problems from occurring.
Prevention is the key word here. Efforts to heal those who have already
suffered
are not always enough because wounds often leave lasting scars; the
policies must not be limited to identifying risk situations or
taking action so
that the risk does not actually turn into damage. They must be designed to
create the conditions which will encourage
healthy growth and not oppose it; the
child’s original identity must be cherished and respected; intervention
should be positive
and it should supply structural support: this means forming
a community which is truly “educational”, a community which
can help
the boy or girl go about the task of creating a personality for themselves in
the spirit of the ideals proclaimed in the
Convention, above all in the spirit
of peace, dignity, tolerance, freedom, equality, and solidarity (the
introduction to the Convention).
This educational task is not something which
can be left to the family or to the school alone: all the educational agencies,
even
those which are informal, must assume responsibility for this task; all the
adults who have contact with young people, whether in
a professional capacity or
not, must take their part in fostering the maturation process of those who are
starting out in life.
And policies have to be there to encourage this
commitment.
E. Policies aimed at implementing the rights of the child in Italy
21. In the past four years policies concerned
with children’s rights have been adopted along various lines in keeping
with the
principles mentioned above. What follows is a brief summary of the
actions which have been taken:
(a) Efforts were made to find out what
the real condition of children and adolescents is in Italy by founding a
National Documentation
and Analysis Centre for Children and Adolescents
which would select, process and analyse all data to do with various aspects
of children’s lives by using a standard set of criteria.
A database was
created which contains all the statistics as well as national and regional laws;
proposed legislation under examination
by Parliament; case law on the subject of
children; all the international resolutions passed on this subject by the
European Union,
the United Nations, UNICEF, UNESCO, WHO, and ILO; the actions
taken by various ministries in the field of children; the most important
experiences of local governing bodies; actions taken by non-governmental
organizations; periodicals and books which deal with children’s
issues.
This imposing quantity of material has been made available to the public by
means of telephone, fax and a web site on the
Internet,
(http://www.minori.it). It has attracted the interest of a great number
of users with more than 6,000 visitors per month. In addition to this, the
Centre
publishes a periodical which makes the information it has gathered
available to all those working in the field. But the National
Centre does not
just collect and publish information; it also carries out detailed studies as
well. In 1996 a voluminous report
was published (420 pages) on the condition of
children in Italy (Title: Diritto di crescere e disagio [Right to Grow
Up and Disadvantage]) in which many problem situations were analysed.
Particular attention was devoted to the differences
between the North and South
and to the strategies that should be adopted to combat these disturbing
phenomena. In 1997 another report
was published (424 pages) which attempted to
identify the way in which children’s personal and social identities were
created.
Particular attention was placed on gender, territorial and ethnic
identities. (Title: Un volto, una maschera? [A Face, A Mask?]).
Obviously, the idea behind this was to determine how best to encourage young
people’s development. These
reports have been widely distributed
throughout Italy (30,000 copies) and they have set off a considerable amount of
debate and study
in the schools, in the public services and among the voluntary
sector. The Centre also regularly publishes issues of a bulletin
devoted to
single questions in order to get a better understanding of the problems arising,
problems which require special action
on the part of lawmakers: one particular
issue was devoted to the sexual abuse of children; another issue discussed the
separation
of parents and the effects this has on children; and another was
devoted to child labour. The Centre also publishes a series of
laws (for
example, a collection of regional laws concerning children was published) and a
statistical yearbook. The Centre was founded
by a decree of the Department for
Social Affairs and its mandate is contained in a special piece of legislation
(Law No. 451 of 23
December 1997);
(b) In order to come up with more
effective and more comprehensive policies, a special Parliamentary Commission on
Children was set
up (with the passage of Law No. 451 of 1997). Twenty
senators and twenty deputies sit on the Commission and their task is to direct
and implement international agreements and Italian legislation concerning
children. More specifically, the Commission is expected
to make an annual
report to the Chambers on the results of its activities, to propose legislation
in this area, as well as to approve
a National Plan of Action for
Children;
(c) The same law also declared the National Day on the Rights of
the Child and the Adolescent which is to be celebrated each year
on 20 November
marking the occasion of the signing of the Convention. This day is supposed to
encourage the community to think about
the principles of the Convention in Italy
with the hope that everyone will work together so that these principles will be
reflected
not just through the passage of legislation, but also in the life of
the community;
(d) Law No. 451 of 1997 also set up a National
Observatory on Children as part of the Council of Ministers, Department of
Social
Affairs, which is headed by the Minister for Social Solidarity; the
Observatory is composed not only of experts, but also of representatives
from
other ministries which are concerned with children, representatives from local
authorities (Regions and Municipalities), private
associations, volunteer
organizations, and groups engaged in monitoring and defending children’s
rights. Every two years the
Observatory prepares a special Plan of Action which
includes proposals to improve the condition of children in Italy and throughout
the world, it suggests measures for coordinated efforts to be taken by the
Public Administration and local bodies, and also how to
finance these efforts.
The Observatory also prepares a special report, every two years, on the
condition of children in Italy and
how their rights are being implemented; and
it also prepares an outline of the United Nations report - to be adopted by the
Government
- in accordance with article 44 of the Convention. In order to make
it easier for the State and the Regions to work together, special
coordinating
measures have been planned as regards the collection and processing of data on
the psychological, cultural, economic,
social and health conditions of children
and adolescents, the allocation of financial resources and the areas where they
will be
allocated, a map of the services available in Italy, and resources spent
by private groups;
(e) In order to prevent programmes from being
isolated to particular sectors and not subject to a overall plan - and so as to
ensure
that effective coordination can take place between the State, Regions,
Municipalities and the resources of non-profit organizations
- an initial Plan
of Action for Children and Adolescents was drafted by the Italian Government in
April of 1997 which was solemnly
presented to the Italian Parliament by the
President of the Council of Ministers; by June 1999 a second Plan will be
prepared for
the years 1999 and 2000. For the first time ever, a work programme
was adopted by all the organs of the State and local bodies to
deal with the
issues of children and adolescents in a non-haphazard and organized fashion. It
is very significant that Law No. 451
of 1997 recognized that effective policies
can only be implemented within the context of comprehensive plans: thus, the
law requires
that, every two years, the Government should approve the Plan of
Action which the Observatory has prepared. The first Plan set as
its main goals
the promotion of awareness of childhood through more information about children
in Italy, through the spread of information
regarding the Convention and also
through creation of agreements of intent with the professional orders to
implement the terms of
the Convention; another goal was the elimination of
unequal opportunities based on geographic area, socio-economic origin,
nationality
and other forms of variance; the plan also intends to come up with
policies, not just laws, which can implement rights, foster the
respect of
persons who are still growing up, help children grow up harmoniously with the
support of the family; other goals are to
struggle against every form of
exploitation; to increase levels of international cooperation on behalf of
children; to encourage
children and the disabled to join associations and make
an educational use of their spare time. The Plan calls for intervention
in the
area of public education, the health-care system, the legal system, the
environment, spare time, the world of work and international
cooperation. To
attain these goals the Plan has identified a set of actions to be taken both in
terms of legislation and through
administrative efforts. These actions will
involve a coordination of institutions, services, and resources from the private
sphere.
We shall refer to the specific initiatives in the chapters which follow
in this report;
(f) In recognition of the results of the first report
on the condition of children in Italy the Department of Social Affairs within
the Council of Ministers drafted a law which was approved by Parliament as Law
No. 285 of 28 August 1997 containing “Provisions
on the Promotion of
Rights and Opportunities for Children and Adolescents”. It should be
noted that on the basis of this piece
of legislation 800 billion lire are to be
invested over three years on behalf of children (the original sum was 900
billion lire
and the reduction of 100 billion was made necessary in order to
finance humanitarian aid for Albanian women and children and foreign
children).
This is the largest amount of money which has ever been allocated by Italy to
the field of children. Moreover, we should
bear in mind that this sum was
allocated during a period when the Italian Government was making a series of
spending cuts to meet
the parameters of the Maastricht Treaty. The law set up a
National Fund to be administered by the Council of Ministers to encourage
rights
and opportunities for children: the money is to be divided among the Regions
and Autonomous Provinces and also among the
cities, where children face a
greater number of problems. The Fund is to be distributed on the basis of
criteria which take into
account the lack of structures for very young children,
the number of children residing in the social assistance districts, the
percentage
of families with children beneath the poverty line, juvenile crime
rates.
The Fund is intended to finance projects which have the following
aims:
− The creation of support services for parents, to combat the effects of poverty and violence, and provide alternatives to the institutionalization of children;
− Innovation and experimentation of social-educational services for very young children;
− The creation of recreational and educational services for spare time activities;
− Positive action for the promotion of rights and their exercise, which encourage a better use of the environment and produce a better quality of life respecting gender, cultural and ethnic differences; actions in favour of services or economic support of natural families or foster families who have disabled children;
(g) Many laws are currently being drafted
in Italy which are intended to safeguard the rights of children more
effectively. In this
regard, Parliament has recently approved a law on sexual
exploitation of children (Law No. 269 of 3 August 1998) entitled “Law
against the Exploitation of Prostitution, Pornography, and Sexual Tourism to the
Detriment of Minors: The New Forms of Slavery”
in completion of Italian
criminal laws on sexual liberty in clear compliance with the commitments imposed
by the Convention. Moreover,
Parliament also approved a draft law on 31
December 1998 - Law No. 476, which ratifies the Hague Convention on the
Protection of
Children and Cooperation in Respect of Intercountry Adoption:
this legislation was first submitted by the Government on 20 June
1997 and it
connected the practice of adoption with the activities of the international
development aid and cooperation. Also important
is the effort the Italian
Government is making to verify the possibility of signing bilateral agreements
with countries which have
not yet ratified the Convention. While we intend to
review the new laws which have been approved later on in this report, in this
introductory section we would like to offer a brief summary of the proposals and
draft bills submitted to Parliament by the various
sectors involved in the area
of children’s rights in an attempt by means of legislative reform to
improve the system of protection
for children. This is the best proof of the
Government’s and Parliament’s acute concern for these issues. As
many as
250 draft bills regarding the family, children and their rights were
submitted to the Chamber of Deputies and the Senate and these
are currently
being examined by the Parliamentary Committees:
− A large portion of these proposed legislation concerns the family, cohabitation, support and assistance for the nuclear family, incentives for those who wish to start a new family, new regulations on divorce and separation as regards child custody, alternatives to incarceration for convicted women with children, time in the family and time in the city, aid for pregnant women;
− A number of proposals specifically concern children: regulations have been proposed to defend the general rights of children, to protect them from sexual abuse and mistreatment, to safeguard their privacy, to protect them from violence broadcast on television and in the media, to care for premature babies through aid to mothers, to oblige adults to report the disappearance of a child to the police, to protect 16 year olds from being exploited by athletic clubs;
− New and more effective instruments have also been proposed to help children. The proposal has been made to set up a special family and children’s court as well as create special sections in the ordinary courts for children. A proposal has also been made to nominate a special spokesperson for children in cases of divorce or separation; to create a public defence lawyer for children and a Data Protection Commissioner; a school psychologist to support children in school; to institute the practice of mediation on the part of the courts in trials of children; to create special Centres for Children’s Rights in school districts;
− A great many projects are concerned with the full enforcement of the right to education, educational reform, the elevation of the compulsory school age, the teaching of foreign languages, local history, health and sexual education;
− Other projects involve the area of health: post-natal assistance, vaccinations, protection from pesticides;
− There are also several different proposals in the area of artificial insemination and the guardianship of embryos; projects having to do with aid for the disabled, aid for linguistic minorities and gypsies; the reform of the laws on adoption and foster care; day-care centres and assistance and support of persons;
(h) Agreements between the Government and the
social partners for a better implementation of the rules. In the knowledge that
the
law itself is not always the only way to fully guarantee behaviour which
conforms to the principles of the Convention - and that
it is often necessary to
directly involve those working with young people in order to obtain results -
efforts were made on the part
of both the Government and the social partners to
render the laws more incisive for better protecting children and adolescents.
A
code of conduct was compiled which concerns the relationship between TV and
children and a charter was signed promising to eliminate
the exploitation of
children. In accordance with the terms of the code all public and private
television companies promised to improve
the quality of their programming for
children and take into account young people’s real needs; they promised to
help families
and the schools teach children how to make correct use of
television to avoid problems of TV addiction or imitation of role models,
and
how to select programmes critically; they pledged to make the public aware of
the problems of disabled people and children in
difficulty; they also said they
would inform the personnel working in the television industry about
children’s issues; and
in the case where children participate in
programmes they promised to avoid broadcasting images of children involved in
crime (either
as perpetrators, witnesses or victims) or affected by serious
pathologies, or in crisis situations to protect the image and dignity
of the
children. The companies have also promised not to broadcast images of violence
during those times of day when most children
are watching (from 7 a.m. to 10
p.m.), unless these are strictly necessary to the comprehension of the news, as
this could harm children’s
psychological and emotional development. The
television companies promised to inform parents whether the programmes they are
broadcasting
are suitable for children, and to ensure that television
commercials do not damage the image of children or attempt to sell products
which are harmful to them; nevertheless, the companies have been slow to put
these promises into practice. In the Charter of Pledges
against child labour
the Government and the social partners (both employers’ organizations and
the trade unions) have promised
to take action to support ILO Convention
No. 182 on child labour, to put pressure on countries which do not respect
the convention,
to again launch the role of NGOs in the struggle against child
labour, within the EU to promote an adequate regulation of the system
of
generalized preferences, to combat sexual tourism by means of legislation and
inform travel agencies about the problem. The Charter
also binds the Italian
Government to monitor the school drop-out rates and to discourage this
phenomenon from occurring; to take
action against child poverty and child
labour; to combat the plague of black market labour and the hidden
economy;
(i) Support and evaluation in the enforcement of the laws.
Aware that the interests and protection of children are not achieved
just by
drafting laws, but that laws must also be supported in their implementation
phase and that the results of laws must be checked,
the Government has begun to
adopt a law-making policy which has precisely this aim in mind. Thus, in Law
No. 285/97 it was established
that the National Research Centre for Children and
Adolescents should monitor how the law is being enforced and assume a support
role in the planning activity of local governing bodies - it should also prepare
a manual illustrating the laws which have been passed
and actions being taken as
well as the results obtained, and it should train staff working in the field and
personnel from the local
bodies. The Centre will provide technical support for
the planning and implementation of initiatives and make an estimate of how
efficiently money has been spent, as well as prepare an annual report to the
Parliament for the Minister on the current state of
the implementation of the
law;
(j) Legislative activity of the Regions. An impressive number of
measures have also been passed by the Regions in the field of children’s
rights. In Italy, regulatory authority does not just rest with the central
State but also with the Regions in specific areas. The
Regions’
activities are very numerous in the field of social protection and human rights:
in fact, social rights are, to a
large extent, the responsibility of the
Regions, that is, those rights which make it possible for an individual to go
about the task
of forming his or her personality and to effectively enjoy the
rights of freedom (health, assistance, environment and cultural development,
recreation). For this reason, activities aimed at young people fall mainly to
the local bodies which are also much closer to the
citizens themselves who are
more likely to perceive needs and employ resources where they will be best used.
As we are not able to
mention here all the regional laws which have been passed
we shall limit ourselves to providing an overview:
− As regards education and socialization during the period of early childhood a great number of laws regulate the institution of the nursery school, various types of resources (free books and didactic material, transportation services, school canteens, bursaries and grants, contributions to study expenses for boarders, social psychological and medical assistance) so as to ensure that the right to education is respected;
− At the level of social assistance special laws have been passed to set up support services for young people and couples and aid them in responsible procreation, to help young couples take effective care of their children, in maternity assistance, assistance for children in terms of economic aid and re-education;
− Besides the family counselling clinics, many Regions also provide social and economic assistance to families as well as support for foster parents;
− In the area of health, many Regions have undertaken specific initiatives on behalf of children and families as part of the regional health plans;
− In the area of spare time many Regions have passed laws regarding vacations for children and in order to develop cultural and recreational activities;
− To combat the danger of social marginalization many Regions have passed laws to defend the dignity of disabled persons, children in hospital, children of immigrants, emigrants and gypsies;
(k) Local support
structures for children. Overall the Italian community - especially local
bodies - has set up a considerable number
of support structures which defend the
interests of young people. We are well aware that there are glaring
inequalities between
services available to children in different regions of
Italy (above all between the North and the South); that the training of
personnel
in this field is not always sufficient; the fact that there are so
many types of services offered makes it difficult to arrive at
a specific
understanding of problems connected with children (there are difficulties
when it comes to activities for adolescents
and preadolescents in serious
trouble or with deviant symptoms); that it is not always possible to create
effective coordination
between the various services using a network style
system. A great deal certainly remains to be done throughout Italy to optimize
services for children and adolescents: but it would not be intellectually
honest of us if we failed to recognize that much has already
been done, and that
we are by no means at the beginning stages; that in some areas of the country
the range of services is already
adequate; that the question of training for
operators is one which has been taken very seriously; that Law No. 285 has
provided a
great stimulus for innovation in services and the realization of
projects: that the Regions are working together to bring services
to a uniform
standard (see the agreement between the Regions and the Istituto degli
Innocenti for training programmes within the
sphere of the implementation of
Law No. 285);
(l) Support structures for children
within the community. Citizen’s groups have made a significant
contribution to support
activities for children’s rights. Various
nongovernmental associations have arisen which have been working actively to
promote
a new awareness of children’s issues, to spread knowledge
about children’s rights and the respect which is due to them
from adults,
to recognize that children and adolescents have subjective needs. These
associations have worked to make it possible
for children to take an active part
in the life of society and not be merely passive; they have promoted better
pathways towards
the construction of identity for young people, they provide
support in situations of particular difficulty and aid in overcoming
troubles
originating in the family and social milieu.
22. It is certainly not
possible in this report to provide a picture of the wealth of initiatives that
have been undertaken in Italy:
but we should mention that the role played by
community organizations has been impressive in ensuring that children and
adolescents
have a better quality of life.
23. Structures which have
been organized for children in trouble by private associations have had a
remarkable impact. For example
family-style communities, according to one study
number approximately 800 and they accommodate some 5,000 children and employ
2,000-2,200
educators in the sector. Italian volunteer organizations have set
up 2,322 support structures for children of which 1,316 are for
both children
and adolescents, 534 only for children and 472 only for adolescents. A total of
73,433 volunteers are currently working
in this sector (43,878 in structures for
children and adolescents, 15,691 in structures only for children and 13,864 in
structures
intended only for adolescents).
24. It should be emphasized
how efforts have been made to arrive at cooperation between institutions and
private groups, cooperation
which respects the autonomy and function of both
parties, but which is no less effective. Because it is only by coordinating
efforts
that intervention can be carried out within the context of a network,
and that is the only way to solve the serious problems some
children have. The
need for a similar type of integration found explicit approval in Law No. 285
which we have mentioned already
several times: article 2 requires that the
local authorities prepare territorial plans of action in implementation of the
law, and
that not only the various institutions (health districts, juvenile
justice centres, education inspectorate) but also charitable non-profit
organizations should take part in the preparation of these plans.
F. Plans for future action
25. The Government’s 1997-1998 Plan of
Action for children and adolescents has in part been implemented, but it must
still be
brought to completion or further developed. Obviously the Government
is firmly committed to realizing the plan in its entirety.
26. For the
following two-year period the National Observatory on Children based on
Law No. 451 of 1997 will be working on a new national
Plan which must be
drafted by June 1999. This new Plan, as an instrument of transition for
Italian policies in the new millennium,
will have to be highly innovative and
realistic; it will be expected to determine the action to be taken on behalf of
children’s
rights, to intensify efforts at international cooperation and
to determine the best ways to finance and coordinate action of the
Public
Administration, Regions and local authorities. During the inaugural session of
the Observatory eight commissions were set
up whose task will be to prepare a
document containing an outline of pledges to be assumed in the Plan of Action.
These commissions
were subdivided into subject areas (the coordinating round
table on child labour and the coordinating committee remain unchanged
as per Law
No. 269/98): new services for children and planning liveable and safe
urban spaces; legal reform in compliance with the
Convention on the Rights of
the Child; educational and cultural systems; television and the mass media;
preadolescents, adolescents,
and support for parents; international solidarity
and international adoption. The Plan will be adopted by the Government after
hearing
the Parliamentary Commission on Children.
27. Based on studies
which are already under way, we might hazard to say that policies on children
will be concentrated on the following
objectives:
− Legislation to redefine and regulate day care and remove this from the labyrinth of social assistance services by including day care in the social educational services aimed at relations which tie parents to their children of this age group (0-3 years);
− Legislation to reorganize services for persons as part of general framework laws which rationalize and make more efficient action to support weaker members of society;
− Legislation to reform the legal system for children in order to bring about a greater degree of specialization in judicial institutions which deal with children, the elimination of overlapping of judicial responsibilities between various offices in which an individual or family may be subject to contradictory orders, a better distribution of judicial institutions nationwide so that access to judges for children is made easier, and that judges be closer to the lives of children themselves, more connected to the services in their territory;
− Legislation establishing an office for a Commissioner for Data Protection looking after children and their rights. This institution is to be created not just as an answer to international pressure but also because of the acknowledged shortcomings in our own legal system when it comes to adequate protection;
− Legislation which overhauls the penal system for children and not just certain sectors of it, so as to better guarantee the physical and sexual safety of children, the integrity of their personalities and identity;
− Reform of Law No. 216/91 to improve preventative action for preadolescents who risk delinquency and also to improve efforts to cure cases of maladjustment.
28. Moreover, as part of its administrative
Plan of Action the Government’s main priority will be aimed at:
− The prevention of abuse and the treatment of victims also by means of rehabilitation projects in areas which are particularly degraded;
− The gradual abolition of institutionalization of children in favour of adoption and foster care;
− The reception and integration of foreign children living in Italy;
− Alleviation of situations of poverty;
− The struggle against black market labour and the phenomenon of school dropouts;
− The creation of a better environment for children both by making the cities more in tune with the needs of children, and also by continuing polices which are aimed at creating housing and revitalizing urban areas (neighbourhood contracts by the Ministry of Public Works);
− International cooperation with particular attention to support for children and adolescents.
29. Finally it should be pointed
out that a draft law is currently being prepared by the Government (Department
of Social Affairs)
in favour of the new generations; the intention behind this
law is to guarantee to the country coordination in the implementation
of
policies for young people; to set up a representative organization for children
which takes into account all of their many differences;
to carry out plans of
action which are aimed at the empowerment of young people, equal opportunity,
social and political participation;
the creation of a fund for these
actions.
G. The dissemination of the Convention in Italy
30. Furthermore, it should be stressed that the
dissemination of the Convention in Italy among children, but also among adults,
was
not irrelevant.
31. Various books have been published in Italy
illustrating and commenting on the United Nations Convention of 1989, and
the text
of the Convention has been distributed in the schools and among adults
in a great many copies, thanks also to non-governmental organizations
(Italian
Committee for UNICEF, Telefono Azzurro, Arciragazzi).
32. In recent years
articles have appeared in magazines commenting on the entire Convention or
specific points of it.
33. The schools have been making intense efforts
to inform children on the themes of the Convention: for example in Friuli
Venezia-Giulia
a video cassette was produced which discusses the question of
children’s rights and this video is shown in the schools serving
as a
discussion topic for pupils; the UNICEF Committee involved 15,000 schools of
every level and type in a campaign to raise awareness;
UNICEF also sponsored an
Italian Youth Movement for UNICEF to get young people involved in the promotion
of the Convention.
34. In many universities too (Palermo, Catania,
Cosenza, Lecce, Bari, Nuoro, Benevento, Naples, Rome, Viterbo, Perugia,
L’Aquila,
Urbino, Siena, Genoa, Turin, Pavia, Milan, Padua, Verona, Venice
and Trieste joined in 1998/99 by Pisa, Udine and Trento) multidisciplinary
courses were organized in conjunction with the UNICEF Committee on education for
development about the Convention. Every year the
programme involves 400
teachers and experts and 5,000 students who may actively participate. In
addition to this, some universities
have prepared courses about children’s
rights both within the established degree programmes and special extracurricular
courses.
This is the case for the University of Campobasso which organized an
intensive course as part of the Erasmus project on this topic
as well as a
workshop entitled “Measuring and Monitoring the State of Children Beyond
Survival”; or the University of
Urbino which set up a research centre for
the family and which has performed didactic and research activities on topics
related to
children and their rights.
35. The RAI (State television) too
has been engaged in this sector and has produced five commercials on the rights
of the child:
the right to express themselves; the right to non-violence (also
within the family); the right to health; the right to live in a
multiethnic
society; the right to play.
36. The Journalists’ Association held a
seminar to raise awareness among those working in the press about “the
rights
of the child and information”.
37. The Department of Social
Affairs was directly involved in spreading information about the Convention. In
1997, together with
a very extensive campaign for foster families, another
equally large campaign was organized on children’s rights as they are
enshrined in the Convention. In 1998 three small publications were widely
distributed which illustrated children’s rights
recognized by the
Convention by means of different communications systems depending on which group
they were destined for: one was
for parents and will be distributed by the
municipalities at the time their child is born, one is for children in the
elementary
schools and one is for children in the middle schools.
38. In
addition to this, on the occasion of Universal Children’s Day, 20
November, the Government, acting on a proposal made
by the Department of Social
Affairs and the Ministry for Education (Ministerial Circular No. 423 of 19
October 1998), launched an
essay competition which involved all the
inspectorates for children in the elementary, middle and high schools.
The competition was to be about rights for children (teachers would have to
prepare their students on the subject beforehand). The
deadline was 20 November
1998. The awards ceremony was held in Rome on 16 April 1998 for the best
essays. Altogether 20 schools
received prizes for the 10 best posters or
drawings from the over 400 entries coming from elementary schools, the 5 winners
chosen
from the approximately 200 entries from the middle schools, and 5 videos
from 30 high school entries.
H. Economic resources employed for children
39. In Italy, there has been no pressing need
felt to have analytical data on spending flows, especially in the field of
social assistance:
this means that what little information is available is
gathered in different ways, by different organizations, and therefore it
is not
always comparable. Moreover, the main source of information about local
expenditures, the Municipalities’ Final Balance
Sheet Certificate, is now
outdated and not able to reveal any useful flows in relation to social
programmes; even the National Statistics
Institute (ISTAT) while waiting for
changes to be made to the Certificate is studying alternative ways to collect
data on local expenditures.
40. Given this state of affairs, and in order
to provide a description of spending on matters related to children, we can only
proceed
by means of an interpretation of the available data, data which do not
appear to be exhaustive and above all do not specifically
refer to programmes
for children and adolescents. If we look at the case of social assistance
spending by the Regions: in 1994,
the last year in which the Regions made
data available for processing of their budgets by the Institute of Social
Research (IRS),
only 39 per cent of social assistance spending was
traceable to its beneficiaries. This means that all the data for regional
spending
must be considered as purely indicative.
41. In Italy, social
spending including health care and social security transfers amounted
to 24.6 per cent of GDP in 1993 as against
an EU average of 26.9 per
cent; according to 1994 data, which is still provisional, social spending in
Italy was 25.3 per cent of
GDP so still far from the levels of the most
industrialized countries in Europe.
42. The following year, in 1995,
health spending absorbed 22.2 per cent of all social spending, pensions
70.8 per cent, while social
programmes accounted for only 7.2 per cent
of resources allocated.
43. In 1994 total social assistance spending was
75,588 billion lire, or equal to 4.16 per cent of GDP: of
this sum only 12 per cent,
or 8,802 billion, went to social programmes
while 88 per cent were direct cash transfers to families.
44. Most
of the social spending in Italy is directed to the elderly population:
approximately 62.7 per cent as opposed to an average
of 40 per
cent for other European countries (1995). Funds destined for families and
children totalled an estimated 3.4 per cent
which is considerably
lower than in the rest of
Europe.[1]
45. A recent
study compared aid packages for children in the different countries of the
European Union in 1996.[2]
Comparisons were made for various types of families: couples with
one pre-school child, and one or two or three school-age children, for
five levels of income. When taking into consideration monetary
contributions
and tax deductions Italy was one of the countries which offers the least for
children, 51 per cent below the EU average.
When taking into account
benefits in kind offered by various countries, Italy ranked second to last with
a value of 111 per cent
less than the average for countries of
the European Union.
Spending on children
46. Spending for children in Italy may be
divided into five broad categories:
(a) Social security spending and tax
deductions;
(b) Social assistance spending;
(c) Health-care
spending;
(d) Spending on education;
(e) Spending on the
juvenile justice system.
(a) Social security spending and tax deductions
47. In the first type we may include family
allowance cheques and tax deductions for dependent children.
48. The size
of the family allowance cheques varies in relation to the family income and the
number of family members and the presence
of invalids. The family is limited to
the spouses, minor children and adult children who are totally unfit for work.
In this sense,
we can say that this is a benefit which is mainly destined for
the improvement of the quality of life of children through financial
support of
the family nucleus.
49. The amount of the family allowance spending has
grown constantly over the past years: in 1995 this was 5,662 billion lire,
in
1996 this rose to 6,623 billion and in 1997, 7,237 billion
lire.[3] The recent Law No.
450/97 has called for a further increase over the following years: by 595
billion in 1998, another 618 billion
in 1999 and the same amount for the year
2000.
50. In the case of tax deductions for dependants Legislative Decree
No. 446/97 amended the rules for dependent children allowing a
deduction of
336,000 lire for each dependent child; compared to the previous rule which made
a distinction between children and other
dependants, allowing a deduction of
94,437 lire; this is a change which will tend to reduce the disadvantages
suffered by families
with many children.
(b) Social assistance spending
51. Centralized social assistance spending is
not broken down into user categories: it is therefore impossible to determine
how much
money is spent on protection or aid to children.
52. The most
recent measure aimed specifically at children is Law No. 285/1997 which set up a
“National Fund for Children and
Adolescents”, and to which 117
billion lire were allocated for 1997.
53. Law No. 449/1997, as part of
the 1998 budget, set up a fund for social programmes which is directed to
supporting the priority
goals in social spending. This fund will
receive 28 billion lire in 1998, 115 billion in 1999, and 143 billion
for 2000. Starting
in 1998 money will flow into this fund which had been
allocated to other spending programmes. The fund with the largest allocation
of
money is the National Fund for Children and Adolescents mentioned above which in
1998 is expected to amount to 312 billion lire.
54. A few further
indications may be gathered from Regional and local budgets - bearing in mind
the limits illustrated above.
55. In 1994 regional assistance spending in
the area of maternity and childhood was the equivalent of 167.6 billion lire or
9.7 per
cent of the total. If we take into account also expenditures
specifically aimed at children, 92 billion lire, then the total sum
of money
destined for children came to 15 per cent of overall social assistance
spending.[4]
56. The
latest data available on social spending by the provinces indicate that
in 1994, 116 billion lire were spent specifically
on children,
which amounted to 31 per cent of total social assistance spending
by the provinces and 1.6 per cent of the provinces’
total
current expenditures.
57. Spending on the part of the municipalities, at
4,860 billion lire, was considerably higher. Municipal spending for aid to
children
and day care was 1,376 billion lire in 1993 of which 999 billion
went to salaries and social costs relating to
employment.[5]
58. Welfare spending by the municipalities has remained by and large
unchanged: from 1988 to 1994 total sums spent followed the rate
of
inflation.
59. Almost all the municipal social assistance expenditures
were made up by current expenditures: in 1994 current expenditures accounted
for 4,726 billion lire as opposed
to 132 billion in capital accounts. In
1993 capital accounts expenditures for children and day care was 38 billion
lire. Construction
spending for day care meant that local authorities in 1997
could count on loans totalling 6 billion lire, as opposed to 17 billion
lire in
1996.
60. The differences between per capita social assistance current
expenditures between various regions is enormous: from a maximum
of 229,273
lire per capita in Valle d’Aosta to 21,468 lire per capita spent by
municipalities in Calabria
(1994).[6]
61. Tables
1 and 2 contain values for spending on child and day care obtained from the 1993
Municipalities’ Final Balance Sheet
Certificate. This was the last year
in which this breakdown of expenditure by municipality existed.
Table 1
Current expenditure of the municipalities, by province,
year 1993 (payments) (in millions of lire)
Expenditure for children and day care
|
Expenditure for welfare - IRS definition
|
% Expenditure for children in the IRS expenditure
|
|
Piedmont
|
120 697
|
426 654
|
28.29
|
Valle d’Aosta
|
2 954
|
27 109
|
10.90
|
Lombardy
|
316 758
|
976 311
|
32.44
|
A.P. Bolzano
|
3 887
|
18 047
|
21.54
|
A.P. Trento
|
17 359
|
57 885
|
29.99
|
Veneto
|
91 134
|
404 943
|
22.51
|
Friuli V.G.
|
24 344
|
189 342
|
12.86
|
Liguria
|
47 940
|
154 530
|
31.02
|
Emilia Romagna
|
188 885
|
488 514
|
38.67
|
Tuscany
|
103 282
|
308 082
|
33.52
|
Umbria
|
24 557
|
49 335
|
49.78
|
Marche
|
34 415
|
108 562
|
31.70
|
Lazio
|
157 327
|
384 989
|
40.87
|
Abruzzo
|
25 634
|
50 132
|
51.13
|
Molise
|
2 746
|
11 294
|
24.31
|
Campania
|
32 304
|
195 222
|
16.55
|
Abulia
|
56 584
|
152 643
|
37.07
|
Basilicata
|
8 846
|
13 647
|
64.82
|
Calabria
|
9 415
|
44 645
|
21.09
|
Sicily
|
81 752
|
308 483
|
26.50
|
Sardinia
|
25 544
|
197 226
|
12.95
|
ITALY
|
1 376 364
|
4 567 595
|
30.13
|
Source: IRS processing of ISTAT data. For the IRS definition
of Welfare Expenditure see, La spesa pubblica per l’assistenza in
Italia (Public Spending on Welfare in Italy), op. cit.
Table 2
Current per capita expenditure of the municipalities, by
province,
year 1993 (payments) (in lire)
Expenditure for children and day care
|
Expenditure for welfare - IRS definition
|
|
Piedmont
|
28 026
|
99 071
|
Valle d’Aosta
|
24 983
|
229 273
|
Lombardy
|
35 587
|
109 685
|
A.P. Bolzano
|
8 703
|
40 408
|
A.P. Trento
|
37 987
|
126 669
|
Veneto
|
20 640
|
91 713
|
Friuli V.G.
|
20 402
|
158 682
|
Liguria
|
28 833
|
92 942
|
Emilia Romagna
|
48 132
|
124 483
|
Tuscany
|
29 273
|
87 319
|
Umbria
|
29 978
|
60 225
|
Marche
|
23 929
|
75 483
|
Lazio
|
30 341
|
74 246
|
Abruzzo
|
20 297
|
39 694
|
Molise
|
8 271
|
34 019
|
Campania
|
5 659
|
34 198
|
Abulia
|
13 918
|
37 545
|
Basilicata
|
14 474
|
22 330
|
Calabria
|
4 527
|
21 468
|
Sicily
|
16 268
|
61 386
|
Sardinia
|
15 412
|
118 999
|
ITALY
|
24 088
|
21 468
|
Source: IRS processing of ISTAT data. For the IRS definition of
Welfare Expenditure see, La spesa pubblica per l’assistenza in
Italia (Public Spending on Welfare in Italy), op. cit.
62. In the
case of municipalities it is possible to identify several specific types of
intervention. Spending on day care in 1994
was approximately 1,324 billion lire
and is one of the most important components of municipal budgets. In 1994 per
capita spending
for day care was the equivalent of 23,000 lire. Spending for
day-care centres rose from 1988 to 1994 by
approximately 60 per cent in real terms or a little less than
10 per cent when accounting for inflation. User fees in 1993 varied
from a minimum of 132,000 lire for public day-care centres to three or four
times that much for private ones; no reliable data are
available for the most
recent years but the trend is to align user fees for public centres with those
for private services and vary
fees according to family income.
63. As an
example we can cite the data for the city of Milan which are particularly
significant in terms of the total amount of social
assistance spending: of the
214.7 billion lire spent on social services 13.5 per cent or 29
billion were related to children: of
these some 20 billion were employed for
residential services.[7]
64. There are no spending breakdowns available for disabled children,
and it is only possible to determine the number of disabled
children per age
group by means of the number of persons receiving disability allowances. In
1997, 3,728 disability allowances were
paid for children under the age of 4,
11,990 for children between the ages of 5 and 9 and 15,391 to children between
the ages of
10 and 14.[8]
65. Law No. 104/97 dealing with persons suffering from disabilities
allocated 120 billion lire in 1992 and 150 billion lire in 1993
of which
approximately 50 per cent was destined for children or pre-adolescent
children. The most recent study on the nature of
intervention undertaken by the
Regions gives a rather diversified picture: in 1997 investments in Lombardy
amounted to 320 billion
lire while in Basilicata this figure came to only 850
million.
66. Data provided by the Regions to the Ministry for Social
Solidarity identifies intervention directed to children in only eight
cases: in
six Regions spending destined for children amounted to 30 per cent of
the total, in the other two Regions spending on
children was residual with
respect to total expenditures. The figures for Lombardy are significant: at
105 billion lire Lombardy
was the Region which spent the most money for disabled
children.[9]
67. In
the absence of specific data for the municipalities we may take Milan as an
example; Milan spent 20.5 billion lire for education
and community centres for
adolescents and preadolescents out of a total expenditure of 34.8
billion.[10]
(c) Health-care spending
68. At present no data are available on
health-care expenditures specifically destined for children. The way the data
have been broken
down does not permit us to make this distinction.
69. If
we look at general trends in health care related to children, we can identify
two significant aspects:
− The National Health Service provides free preventative treatment to children: thus vaccinations during early childhood or for children of school age are free;
− As regards the “Sanitometro”, a system which is still being studied and which takes into consideration family income in determining the size of payment for services, this system is expected to contain a compensation formula for every child under the age of 6. Theoretically speaking, the system ought to indirectly guarantee better healthcare coverage for children living in low income families.
(d) Spending on education
70. Data from the Ministry of Education show
that in 1996 total spending on education was 59,271 billion lire; of these
14,177 went
for primary education and 13,419 for lower secondary education. In
terms of per capita costs every pupil enrolled in elementary
school cost around
5.4 million lire, while every middle school pupil cost 7.3 million lire.
Spending per capita was up by 30 per
cent over the previous
year.[11]
(e) Spending on the juvenile justice system
71. In 1996 expenditures on juvenile justice
amounted to approximately 135.5 billion lire: of these some 16.5 billion were
spent
on programmes and treatment for children and 10 billion on projects which
were part of Law No. 216/91 entitled “Initial Intervention
on Behalf of
Children at Risk of Involvement in Criminal Activity”.
72. In 1997
total spending in this sector was 155.7 billion lire which was an increase
of 15 per cent. The share of money allocated
to the categories
mentioned above remained by and large the same: the most significant increase
concerned personnel costs. Spending
forecasts for 1998 are set at 231.3
billion lire to be divided in roughly the same proportion between
programmes/treatment and projects,
while there is expected to be a considerable
increase in investments, from 9.4 billion to 32.1 billion. In any case, the
significant
increase over 1997 is largely attributable to the fact that the
heading of personnel expenditures will be included; previously this
was managed
by other Directorates General of the Ministry.
I. Cooperation with developing countries
73. International development aid and
cooperation from the Ministry of Foreign Affairs has planned action which is
aimed at children
who risk social exclusion. These interventions are part of
sectoral programmes as well as of those for human development and the
struggle
against poverty. In implementing the Convention programmes specifically aimed
at children regarded:
− The promotion of rights;
− Bilateral initiatives in favour of street children in Ethiopia;
− Training programme on the rights of children and adolescents in Albania;
− Bilateral support programme to improve the quality of life for children in Uruguay;
− The bilateral programme “Sistema mínimo de opportunidades - pibes unidos” aimed at children and adolescents in Argentina;
− The right to education;
− Basic education projects in the Palestinian territories;
− Activities in Angola and Mozambique aimed at recovering children who are victims of war;
− The right to health;
− Socio-health initiatives for mothers and children and school health programmes in Albania, Egypt, the Palestinian Territories, China, the Philippines, Viet Nam, Azerbaijan, Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan, Uzbekistan, Colombia, Jamaica, Uruguay, Djibouti, Niger, Uganda, South Africa;
− The right to inherit and share a cultural and environmental heritage which remains unaltered;
− A water and sanitation programme in poor areas of Manila and elsewhere in the Philippines;
− A programme aimed at bringing drinking water into nursery schools and including environmental education in the Gaza Strip;
− The right to social integration;
− Bilateral initiatives both in the area of integrating disabled children in Cuba and the treatment of children who are underweight at birth;
− Actions aimed at supporting physical rehabilitation services for children in Colombia;
− A project to aid brain-damaged children in Uganda;
− A rehabilitation centre for children with disabilities in Albania;
− An atlas of decentralized cooperation aimed at encouraging the participation of public institutions, associations, families and students in the educational process in Bosnia and Herzegovina;
− Children’s rights in conflict and post-conflict situations;
− A project for psycho-physical recovery of children with disabilities or children who have suffered from the effects of the war in Bosnia;
− Projects for street children in cities where armed conflict has taken place in developing countries;
− The right to protection from any form of exploitation;
− Financial subsidies for Italian joint ventures with businesses from developing countries are subject to a declaration that child labour will not be used. This rule has already been applied to two projects in China.
74. Below are tables which indicate aid and
development activities carried out by the Ministry for Foreign Affairs on behalf
of children.
BREAKDOWN OF ACTIVITIES BY CHARACTERISTICS
BREAKDOWN BY TYPE OF INTERVENTION
75. The
Government’s Plan of Action indicates future activities to be undertaken
in the field of international aid and development.
Among other things there is
a promise to design programmes which will take into account the different needs
of boys and girls; programmes
which will emphasize the growth of institutions in
developing countries; projects which benefit families’ culture and society
in countries torn by conflict; specific financial allocations to bring about the
acceptance of the Convention on the Rights of the
Child, specifically concerning
the recent “omnibus resolution” adopted by the Commission on Human
Rights (protection
of children involved in armed conflict, refugees, the
elimination of all forms of discrimination, especially against girls, the
prevention
and abolition of the sale of children, prostitution and child
pornography, child labour and street children).
J. Comments on the previous report and action taken
76. Finally, mention should be made of the
actions Italy took on the basis of observations made by the Committee on the
Rights of
the Child on Italy’s previous report.
77. When the first
report was made public the Committee made several recommendations and
suggestions which influenced the policies
which have been adopted over the last
four years.
(a) The observation that our Criminal Code does not
guarantee sufficient protection to children against physical or sexual abuse
within the family is only partly founded. The Italian Criminal Code already
included heavy penalties in the case of mistreatment
or sexual abuse of children
within the family: this is more a problem of enforcing the legislation than
amending it, in the sense
that silence on the part of adults and the inability
of children to express their difficulties mean that a great number of cases
never come to light. In any case, as regards sexual abuse, two new laws
were passed (Law No. 66 of 15 February 1996 and Law No.
269 of 3 August
1998) which tend to improve the protection of victims’ interests: these
laws are referred to in the section
of this report devoted to sexual violence
against children;
(b) The recommendation made to change the laws for
children born out of wedlock in order to guarantee them equal treatment has
already
been implemented: Italian law recognizes equal rights for legitimate
and illegitimate children, in terms of status, rights to child
support,
education and inheritance, as well as in their relation to family members. If a
child born out of wedlock is not acknowledged
by either of his or her parents,
then he or she will be immediately entrusted to a family for adoption, becoming
the legitimate child
of those parents. In any case, at the local level, support
programmes have been enhanced to aid young unwed mothers;
(c) The
recommendation that measures be taken to encourage responsible fatherhood or
motherhood have already been met by the activities
of the family counselling
clinics which were established with this end in mind;
(d) The
recommendation that more attention should be paid in our national legislation to
preventing and prohibiting torture and other
cruel or degrading forms of
punishment is already present in the Italian legal system. These prohibitions
are enshrined in the highest
law of the land, namely the
Constitution;
(e) The Committee pointed out that there was little
coordination between the various government bodies at the national, regional
and
municipal levels. It also stressed the need to create a network for the
collection of data on the Convention which take into
consideration all the
children living in Italy. In answer to these needs, which the Committee quite
rightly pointed out, Law 451
of 23 December 1997 established a National
Observatory for the problems of children and a National Centre for the
protection of children
as well as a Plan of Action to come up with policies for
children;
(f) The Committee also observed the considerable economic and social gap
between the North and South of the country which is having
a negative impact on
the lives of children. Precisely with a view to rectifying this distorted
situation, the 1996 report specifically
analysed in detail this phenomenon. Out
of this came Law No. 285 which is aimed at overcoming the imbalance by
allocating funds
and developing programmes which will favour disadvantaged
areas;
(g) The Committee also pointed out the importance of taking
measures to assist children within vulnerable or disadvantaged groups
(children
of poor families, or children with single parents, children of immigrants
and gypsies, children born out of wedlock).
The 1996 report paid
particular attention to these disadvantaged groups and Law No. 285 calls for
particular action to be taken in
these sectors;
(h) The Committee also
asked that Italy incorporate within its legislation the principle of
listening to the children: on 25 January
of this year, Italy signed the
European Convention on the Exercise of Children’s Rights which was
adopted by the Council of
Europe on 11 September 1995. It should, however, also
be pointed out that in the implementation of the rule outlined in the
Convention,
our legislation not only provides the possibility to listen to the
child’s wishes but also to respect these wishes whenever
the child’s
maturity is superior to his or her real age (Juvenile Court of Catania, 17 April
1997 in Il Diritto della Famiglia e delle Persone, 1997 p.
1468);
(i) It was observed that there were not enough measures being
taken for the psychophysical rehabilitation and treatment of children
who have
been victims of abuse, and that not enough is being done to combat the
phenomenon of school dropouts or juvenile delinquency:
it should be mentioned
that during these years a number of programmes have been started to help
children who have been abused and
these are illustrated at length in the
National Centre’s first issue of the bulletin (Naples’s Network
Project for the
Prevention of Mistreatment and Abuse of Children; Marghera
Centre; Centre for Abused Children in Milan; Numero Blu in Cagliari; services
of
the Hospital Bambini Gesù in Rome; Community Project in Sasso Marconi).
In addition to this a nationwide coordinating
bureau was set up which includes
41 organizations, treatment centres and prevention services. At the Ministry
for Social Solidarity,
Department of Social Affairs, a commission was
established to study the problems of mistreatment and violence against children,
the
results of which will appear later in this report.
78. As regards the
phenomenon of school dropouts, we shall refer to this question below in the
section of this report devoted to education.
79. As regards preventing
children from getting involved with organized crime, we refer to the general
preventative actions adopted
as part of the implementation of Law No. 285 as
well as specific intervention to prevent risk situations from arising. Of this
we
intend to speak later in the section devoted to the exploitation of children
by adult criminals.
BREAKDOWN BY GEOGRAPHICAL AREA
EXPENDITURES BY TERRITORY IN 1997
9 339 789 580
|
|
Latin America
|
9 447 217 500
|
Italy
|
398 439 000
|
Eastern Europe
|
11 000 000 000
|
Asia
|
23 187 763 706
|
Africa
|
32 450 949 451
|
Total
|
85 824 159 237
|
PERCENTAGE BREAKDOWN BY SPECIAL AND NON-SPECIAL INITIATIVES
K. The preparation and dissemination of the report
80. In order to
mobilize and sensitize non-governmental agencies as well as young people
themselves about the themes of the Convention,
we made efforts to involve them
in the preparation of the report.
81. For this reason, representatives of
various professional and volunteer associations which deal with the problem of
children were
interviewed, not only to find out about their activities but
rather to have an opportunity to hear their views on children’s
problems
and what proposals they might have to improve things.
82. Twenty-four
NGOs were contacted: Telefono Azzurro (Blue Telephone), Caritas Italiana, BICE
(International Catholic Child Bureau),
CNCM Coordinamento Nazionale
Communità Minori (National Coordination of Children’s Homes),
Coordinamento Nazionale “Dalla
parte dei bambini”, (National
Coordination “On Behalf of Children”), “Ciai - Centro Italiano
Adozione Internazionale
which is going to take the name Centro Italiano Aiuti
per l’Infanzia (Italian Centre for Aid to Children), AiBi - Associazione
Amici dei Bambini (Association of Friends of Children), CNCA - Coodinamento
Nazionale Comunità di Accoglienza (National Coordination
of
Children’s Shelters), Aizo - Associazione Italiana Zingari Oggi (Italian
Association Gypsies Today), Opera Nomadi (Nomad
Action), World Wide Fund for
Nature, WWF, Lega Ambiente (Environmental League), Coni - Comitato Olimpico
Nazionale Italiano (Italian
National Olympic Committee), Agisci (Scouts), ACLI
-Associazione Cattolica Lavoratori Italiani (Italian Association of Catholic
Workers),
ACP - Associazione Culturale Pediatri (Cultural Association of
Pediatricians), Società Italiana di Pediatria (Italian Society
of
Pediatricians), Coordinamento nazionale dei Centri e dei Servizi di prevenzione
e trattamento dell’abuso a danno di minori
(National Coordination of
Centres and Services for the Prevention and Treatment of Child Abuse), Comitato
Italiano UNICEF (Italian
Committee for UNICEF), Movi -Movimento Volontariato
Italiano (Volunteers in Italy), Arciragazzi, Tribunale per i diritti del malato
(Tribunal for the Rights of the Sick), Movimento Federativo Democratico
(Democratic Federal Group), Terres des Hommes. Once the
outline for the report
has been approved by the Council of Ministers, we intend to involve the children
themselves by organizing
seminars in the schools which will discuss the
implementation of the rights recognized in the Convention.
L. The attention of society to the rights of the child
83. In examining the previous report, the
Committee complained of the scant attention Italian society pays to
children’s rights,
the absence of participation of citizens in issues that
regard children, as well as an adequate professional preparation on these
problems.
84. This observation is certainly well founded, and at present
it is the main preoccupation of the Italian Government. While legislative
and
administrative action are indeed necessary, they alone are not enough to deal
with children’s problems without the participation
of the community as a
whole. The Government, local institutions and volunteer organizations are
particularly sensitive to the problems
of the weaker members of society and they
are doing much to bring about public awareness and familiarity of issues
involving children
in Italy: the publications of the National Centre, the
distribution of the two Reports on the Condition of Children and Adolescents
in
Italy, the establishment of the National Observatory including the presence of
representatives from the professions and the collaboration
of several
professional associations (such as the Order of Journalists, the Cultural
Association of Paediatricians) to raise the
public’s awareness, the
designation of a Day of the Child, activities to spread information about the
Convention in the schools,
promotional campaigns on television and the opening
of special offices to listen to matters concerning foster care and child labour,
innumerable cultural initiatives on the situation of children organized by local
authorities to inform families and workers of every
type who are involved with
children about children’s problems; these activities show what efforts
have been made to draw new
attention to children’s rights and the respect
of those rights.
85. But all of this does not authorize us to be overly
confident that a new awareness of childhood is developing in Italy. Besides
the
extremely encouraging elements there are also a number of areas of great
concern.
86. As shall be seen in this report, there has never been so
much attention devoted to the needs of children and the tendency to respect
their autonomy and identity. Unlike in the recent past many fathers today take
an active role in the care of their children, not
just in meeting their material
needs but also their personal development; the function of education is not
understood as a form of
manipulation or colonization, but rather as support and
guidance through the process of constructing a personality; many forms of
authoritarianism have been banished not only from the family but also from the
schools and services; families and schools have a
greater ability to listen to
children; the entire community is looking for ways to encourage their
participation and not shunt them
off to the margins of society. And it is also
true that today, as never before, a great number of families are showing
solidarity
towards children in trouble by declaring their readiness to adopt or
perform the very difficult social service of foster parenting.
87. But
alongside these encouraging elements, we cannot ignore that there are also very
ambiguous attitudes in society towards children.
These are troubling signs that
must not be neglected. One cannot fail to notice:
− Certain attitudes of desirerepulsion, attractionworry, lovefear in relation to children;
− Attention directed to children not as individuals needing help in developing but rather as resources which adults expect to receive gratification from;
− More strident claims for “adults’ rights to have children and rights over children” without the recognition that whatever rights we might attribute to parents are really “rights of the children”;
− Gradual loss of the sense that childhood is an autonomous and essential period in itself in the process of growing up, a path or route along which successive stages have to be covered to carry the child peacefully into adulthood; pressure that children become adults too soon depriving them of the chance to metabolize experiences and develop gradually;
− Continuation of many prejudices and stereotypes about childhood which risk being disastrous for a correct process of development: the stereotype of childhood as a happy carefree period when in reality the process of development is often complex, demanding and sometimes traumatic; the stereotype that children are rather malleable, easily formed and open to infinite number of manipulations; the stereotype that the only important period is early childhood, and that once the initial efforts of education have been made parents can tranquilly withdraw, when the reality is that also during the following stages, and especially in the period of preadolescence children need support, guidance and affection; the stereotype that education is synonymous with manipulation, while leading another out of a state of inadequacy (in Latin educere) means helping to overcome many forms of conditioning and illusory feelings of infantile omnipotence to reach the real though limited capacity of an adult. There are also many gender (in the case of girls) and ethnicrelated prejudices circulating in our society.
88. The Government is well aware
that it must face these emerging realities and that defending the interests of
children will require
serious efforts in promoting knowledge about
children’s issues.
89. Here there remains much to be done: we must
promote a real understanding and respect of children, we must support the needs
of
individuals who are growing up, pay attention to and listen to their silent
requests, not just to prevent abuse or neglect but in
order to improve the
quality of life for a group of persons who otherwise might risk falling by the
wayside.
II. THE DEFINITION OF THE CHILD AND THE IMPLEMENTATION
OF
THE GENERAL PRINCIPLES OF THE
CONVENTION[*]
A. Who is the child as defined by Italian law?
(guideline
24)
90. In the Italian
legal system, the legal persons considered to deserve particular protection due
to the fact that they are in a
formative phase, and because they have not yet
reached full maturity, are those within the age range 018 years. Naturally,
within
this category, regarding the exercise of individual rights, there are
differentiations. While for the infant, no right which can
be exercised
directly is recognized (the rights are exercised through a legal representative:
the parent, or where there is no parent,
the guardian), with the progression of
age, the regulations attribute also to the minor the possibility of exercising
some rights
directly.
91. According to Italian legislation, the age of
majority by which one acquires the capacity to accomplish all the acts for
which
no different age limit has been established is fixed at the attainment of
18 years (art. 2, Civil Code). The various provisions
of the law normally
define as “minorenne” or “minore di
età” or “minore” those who have not
yet reached the age of 18 years, giving significant equivalence to the word
“fanciullo” which appears in the official Italian version of
the Convention on the Rights of the Child.
92. In some documents, as in
the regulations on the protection of employment (Law No. 977 of 17
September 1967) “fanciulli” are taken to mean minors who have
not reached the age of 15 and “adolescenti” minors between 15
and 18 years, but also in this case there is the coincidence with the same
age range of the Convention on
the Rights of the Child.
93. In order to
acquire certain rights and responding to some specific queries posed in the
guidelines the Italian regulations fix
the following age
limits:
(a) Medical or legal consultation in the absence of parental
consent: No minimum age for medical consultation is given in the regulations.
It should be noted, however, that whatever the age and therefore also before
the age of 14 the minor may consult a health centre
and the local health
services for the voluntary termination of pregnancy, without the consent of the
parents or of the guardian and
without informing the same, when such consent may
be denied or there are serious reasons which discourage consulting the persons
exercising parental authority or guardianship (art. 12, Law No. 194 of
22 May 1978). The age at which a minor may make use of legal
counselling
without the consent of his or her parents coincides with the ability of the
minor to enforce his or her own rights.
He or she is entitled (art. 2,
Civil Code) to exercise the rights and actions which flow from an employment
contract; therefore,
from the age of 14 years, when he or she can carry out
light work, a minor can consult a lawyer. In the case that he or she has
to
undergo a criminal trial, responsibility for which begins at the age of
14 years, he or she can consult, at that age, a lawyer
in alternative or in
addition to any lawyer appointed by his or her parents. From this doctrine, it
can be deduced that the general
principle is that, at least from the age of 14,
a minor can undoubtedly, and without the consent of the parents, avail him or
herself
of legal counselling;
(b) Medical treatment or surgery without
parental consent: The Italian regulations require the consent of the party to
medical treatment
or surgery but it does not specify whether, for the minor,
consent must be given by the minor him or herself, or by his or her legal
representatives. Prevailing opinion is, that for small children, consent must
be given by the natural protector (parents or by other
near relatives) while in
the case of preadolescents or adolescents, given that it relates to rights of a
most personal nature, proper
informed consent to treatment must be given by the
interested party him or herself. It is not possible to indicate a precise age
above which consent must be given by the minor him or herself. In this regard,
account must be taken case by case on the effective
maturity of the child. In
this way, case law recognizes that an adolescent who does not wish to undergo a
particular health treatment
need not do so, even in the case of a vaccination
which is held to be compulsory;
(c) End of compulsory education:
Elementary education, carried out for at least eight years, is compulsory
(article 34 of the Constitution). Given that school begins at
6 years, education is now compulsory until the age of 14 years.
However, the length of compulsory
schooling, beginning from the school year
1999/2000 will be raised from 8 to 10 years (art. 1, para. 1, Law
No. 9 of 20 January 1999)
and therefore it will continue normally
until 16 years of age. These provisions on the years of compulsory
education are applied
also to foreign minors living in Italy (art. 36,
para. 1, Law No. 40 of 6 March 1998);
(d) Entry into
employment or work including hazardous work, parttime work, fulltime work and
apprenticeship: The minimum ages for
admission to work are established by Law
No. 977 of 17 October 1967:
− At 14 years in agriculture and in work for the family, or in light, nonindustrial work, provided that it is compatible with the needs of child health protection and does not involve transgression of compulsory schooling;
− At 15 years in the ordinary way, and for apprentices;
− At 16 years for itinerant occupations;
− At 16 years for males and at 18 years for females for hazardous, laborious or unhealthy jobs, also for cleaning and servicing of engines and transmission parts of working machines;
− At 18 years for underground work in quarries, mines, bogs and tunnels, and lifting weights and transport of goods on wheelbarrows and on twowheeled handcarts, when such work is carried out in conditions of special discomfort and danger, for opencast mining in quarries, mines and bogs, for work loading and unloading sulphur ovens, for work in cinematographic halls and in the preparation of theatrical performances, in the manoeuvring and towing of mine carts, and in the retail supply of alcoholic drinks.
Article 6, Law No. 196/1997 amends the law
relating to apprenticeship which concerns:
− The field of application, extending the ability to enter into an apprenticeship contract in all sectors including agriculture;
− The minimum and maximum age limits fixed for entering into an apprenticeship contract (16 years and 24 years);
− The duration of not less than 18 months and not longer than 4 years;
− The obligation of training outside the company as a condition for benefiting from tax relief;
(e) Marriage: Minors cannot
contract marriage, but, where psychological and physical maturity has been
ascertained and given serious
motives, the Juvenile Court may allow the marriage
of those either boys or girls who have reached the age of 16 years
(art. 84,
Civil Code);
(f) Sexual consent : A minor boy or girl
can consent to sexual activity at the age of 14 years. This age limit is
taken from
the criminal law (art. 609 (4), Criminal Code) which
prohibits sexual acts committed with minors of less than 14 years. This
age
limit is reduced to 13 years in the case in which consent has been
given for a sexual encounter with a minor who is not more than
3 years
older. Further, the minor may never validly give his or her consent to incest
(punished within the limits set down by article
564, Criminal Code) and
until the age of 16 years may not consent to sexual acts with his or her
guardian, or with a person who has
been in a position of care and control over
him or her for reasons of education, supervision or
custody;
(g) Voluntary enlistment in the armed forces: For voluntary
enlistment in the armed forces the minimum age limit is 17 years
(art.
35, Law No. 958 of 24 December 1986) while there is no
conscription for national service for people under the age of
majority;
(h) Taking part in hostilities: The minor who has voluntarily
enlisted may be used to participate in hostilities, but under Law
No. 762
of 11 December 1985, concerning the protection of young enlisted persons, it
seems possible to infer that precedence should
be given to military personnel
over the age of 18 years in direct participation in armed
hostilities;
(i) Criminal responsibility: The minor is not legally
responsible for crimes committed up to the age of 14, presuming that until
that
age, for whatever crime, he or she is not sufficiently capable of forming the
necessary criminal intent (art. 97, Criminal Code).
Between the ages of 14
and 18 years each case must be decided individually as to whether the
minor, at the time of committing the
crime, had the capacity of understanding or
the intention and therefore whether he or she was legally criminally responsible
for
his or her actions (art. 98, Criminal Code). He or she cannot be
subjected to administrative sanctions, unless, at the moment in
which he or she
committed an indictable administrative offence, he or she had reached the age of
18 years (art. 2, Law No. 689 of
24 November 1981),
with the exception of administrative sanctions inflicted by the
Prefect concerning the use of narcotic substances.
No minimum age is
provided for imposing such sanctions (article 75 of Decree of the President
of the Republic No. 309 of
9 October
1990);
(j) Deprivation of freedom due to arrest,
detention and imprisonment, among other things, in the areas of the
administration of justice,
asylumseeking, and the placement of children in
welfare and health institutions: Precautionary measures or detention can be
applied
commencing from the age of 14 years. With regard to children under
the age of 14 who commit serious crimes or who are considered
to be effectively
dangerous, the security measure of placing them in a judicial reformatory can be
applied (art. 224, Criminal Code)
without a minimum age limit. No
deprivation of liberty is provided on an application for asylum, which can be
submitted irrespective
of the age of
the applicant. At frontier posts, reception services are provided for the
purpose of furnishing information and assistance to foreigners
who intend to
apply for asylum (art. 9, para. 5, Law No. 40 of 6 March 1998).
The placing of children in welfare and health institutions
does not involve
deprivation of liberty and takes place without the provision of minimum age
limits;
(k) Capital punishment and life imprisonment: Italian law does
not provide for the death penalty, either in time of peace or in
wartime, even
for people who have reached the age of majority. For crimes committed as a
minor, the sentence of life imprisonment
is not applicable;
(l) Giving
evidence in court, in civil and criminal cases: In a criminal trial, all
persons have the capacity to testify, irrespective
of age (art. 196,
para. 1, Code of Criminal Procedure), but during the proceedings a child
under 14 years of age does not swear to
tell the truth and the content of
his or her testimony in not imputable. The same doctrine that all persons have
the capacity to
testify also holds for a civil trial, following the decision of
the Constitutional Court (No. 139 of 11 June 1975) which declared
unconstitutional not recognizing a reason for a different doctrine between
criminal and civil trials the law which provided that
minors under the age of
14 could be heard in civil trials only when their testimony was made
necessary by particular circumstances;
(m) Lodging complaints and
seeking redress before a court or other competent authorities without parental
consent: The minimum age
at which a minor can lodge a complaint for a criminal
procedure, with or without parental consent, is 14 years (art. 125,
Criminal
Code). A minor has the capacity to personally bring civil proceedings
to exercise the rights (including compensation for damages)
which flow from the
employment contract, starting from the age at which he or she can undertake
certain employment (see above on
the age of employment) (art. 2,
para. 2, Civil Code). In all other cases, until the attainment of the age
of majority, it is the
legal representative who, in the minor’s name, can
begin civil proceedings to enforce a right;
(n) Participating in
administrative and judicial proceedings affecting the child: Article 12,
paragraph 2, of the Convention on
the Rights of the Child, which provides that
the child can be heard in any judicial and administrative proceedings which
affect him
or her, irrespective of his or her age, is held to be immediately
effective. However, for the time being, there are no specific
means provided by
which the child can ask to participate in proceedings and be heard, when the
presiding judge of the court in administrative
or judicial proceedings decides
not to let him or her be heard;
(o) Giving consent to change of
identity, including change of name, modification of family relations, adoption,
guardianship: The
young person:
− Must give his or her consent to adoption from the age of 14 years (art. 22, para. 4, and art. 45, para. 2, Law No. 184 of 4 May 1983);
− Need not give his or her consent for the appointment of a guardian (article 348, paragraph 3, Civil Code, provides only that a young person who has reached the age of 16 years must be heard before the appointment of a guardian);
− Is not called upon to express his or her consent to a correction or a change of surname which does not derive from a change of status (articles 153178 of Royal Decree No. 1238 of 9 July 1939);
− Is called upon to give his or her consent to a change of status which results in a change of surname only from the age of 16 years in the case of marriage authorized by the Juvenile Court with the acquisition, if a woman, of the surname of the husband (art. 143 bis, Civil Code) and in the case of parental recognition (art. 250, para. 2, Civil Code) which may involve the change of surname (art. 262, Civil Code);
(p) Having access to information concerning the
biological family: The child can have access at any age to information about
his
or her own biological family, with the sole exception of the adopted child
to whom no right to have information on the identity of
the biological parents
is recognized;
(q) Legal capacity to inherit and to conduct property
transactions: All those who were born or conceived at the time of the death
from which the inheritance derives are capable of inheriting (art. 456,
Civil Code). A minor may not conduct property transactions,
because until the
attainment of the age of majority, acts relating to property, excluding small
items of expenditure, are made on
his or her behalf by his or her parents or
guardian (arts. 320, 374376, Civil Code);
(r) Creating or joining
associations: There is no age limit for a child to create or join
associations;
(s) Choosing a religion or attending classes on religion
at school: The child can choose a religion when, in actual fact, he or
she has
sufficient maturity and capacity of discernment, without a minimum age having
been fixed by law. The right regarding whether
to attend a course of religious
instruction at school is limited to secondary or senior high school students
(art. 1, Law No. 281
of 18 July 1986) and therefore normally applies
to students from the age of 1415 years. Children who attend the eight
years of compulsory
elementary education, whatever their age, do not have
freedom of choice because such choice is made by their legal
representatives;
(t) Consumption of alcohol and other controlled
substances: It is absolutely prohibited to sell or supply:
− To those under the age of 14 years, tobacco (art. 730, para. 2, Criminal Code);
− To those under the age of 16 years, poisonous substances (art. 730, para. 1, Criminal Code);
− To minors of any age, narcotic or psychotropic substances or preparations (art. 44, Decree of the President of the Republic No. 309 of 9 October 1990).
Proprietors of
public houses and those who sell drinks in public places are prohibited from
selling alcoholic beverages to minors
under the age of 16 years (art. 689,
Criminal Code): apart from this, there is no age limit at which the minor may
receive or consume
alcoholic substances, with the exception of the evaluation of
the conduct of the parent who consents to abuse with consequent damage
to health
as a poor exercise of authority;
(u) Entry into a job or work in
relation to the age laid down for the completion of compulsory schooling:
Compulsory schooling is
fulfilled with the attainment of the middleschool
leaving certificate and those who have not achieved such a leaving certificate
are released from the obligation on the attainment of the age of 15 years,
having demonstrated that, for at least eight years, they
have complied with the
laws on compulsory education (art. 8, para. 2, Law No. 1859 of
31 December 1962). In accordance with this
law on compulsory
education, a minor who has not reached the age of 15 years (the age at
which at present the obligation to attend
school ends, in any case, after at
least eight years of attendance) cannot enter into employment, with the
exception of work in agriculture
and in the service of the family allowed only
when it does not involve noncompliance with the obligation of compulsory
schooling
(and, therefore, the young person has already attained the
middleschool leaving certificate) (arts. 3 and 4, Law No. 977 of
17 October
1967);
(v) Differences between boys and girls:
There are no differences in the treatment of the sexes, not even to the effect
of an anticipation
of rights regarding sexuality or marriage, save that which is
mentioned above on the differences in minimum age for work between
boys and
girls. The criterion of puberty is never used, and there is no difference
between boys and girls in the enforcement of
criminal law.
94. It must be
pointed out that attributing directly the exercise of rights is not always based
on logical and comprehensible criteria.
The impression is that, in reality, the
criterion on the basis of which the law attributes or denies capacity, assures
or denies
protection, if it exists, is extremely random. It is, for example,
incomprehensible why the right to decide on the termination of
pregnancy is
attributed without an age limit while it is prohibited under the age of
16 to recognize the parenthood of the child
and, before the age of 18, to
contract marriage. It is incomprehensible why it is prohibited to donate blood
under the age of 18
but the minor of any age is allowed to decide,
autonomously and secretly, on diagnostics and rehabilitation in the case of drug
addiction.
It seems, therefore, that a revision of the current laws is
necessary in order to base them on more rational and uniform criteria.
B. Nondiscrimination
(guidelines 2532)
95. The principle of
nondiscrimination is not provided for in our legal system with specific
reference to minors but, by constituting
a general principle of law at
constitutional level (article 3, paragraph 2, of the Constitution), it
does not permit derogation and, therefore, also fully protects citizens who have
not reached the age of majority.
96. Moreover, Italy has ratified and
made executive the International Convention on the Elimination of All Forms of
Racial Discrimination
adopted at New York on 7 March 1966 (Law
No. 654/1975) and has enacted following the increasingly numerous episodes
of racism and
xenophobia in Italy Law No. 205/1993 which provides urgent
measures in relation to racial, ethnic and religious discrimination.
It is also
to be noted that the Convention on the Rights of the Child has become part of
domestic law whereby the principle of nondiscrimination
contained therein is
fully operative.
97. The issue of the fight against discrimination has
also been taken up again in the new law Law No. 40 of 6 March 1998
(Regulation
of Immigration and Rules on the Condition of the Foreigner) which,
under article 41, paragraph 1, lays down that “discrimination
is
constituted by all behaviour which, directly or indirectly, involves a
distinction, exclusion, restriction or preference based
on race, colour,
ancestry or national origin or ethnicity, convictions and religious practices,
and that has as its aim, or effect,
the destruction or compromise of the
recognition, the enjoyment or the exercise in equal conditions, of the human
rights and fundamental
freedoms in the political, economic, social and cultural
fields and in every other sector of life”.
98. Moreover, the
measures taken to combat discrimination adopted by the law are also applicable
to xenophobic, racist or discriminatory
acts carried out against Italian
citizens, stateless persons, and citizens of other member States of the European
Union present in
Italy. In order to ensure that the principle of
nondiscrimination is operating effectively, article 42 of the Law is also
of particular
importance. It provides for a specific judicial civil action
against discrimination, allowing a person who feels discriminated against
to
present him or herself personally before the court to ask for an order for the
termination of the discriminatory acts. Furthermore,
the same
article provides for the setting up of Observation Centres, offering
information and legal assistance to the victims of
discrimination based on
racial, ethnic, national or religious motives. Such centres could become an
important source of monitoring
of situations relative to
discrimination.
99. At present, there are several Observatories on
discrimination in operation (such as the National Observatory on Xenophobia; the
Observatory of the Piedmont Region on the manifestations of Racism, antiSemitism
and Xenophobia in Italy; or the experiment conducted
by the Municipality of
Bologna on racial incidents in that city) and it has become evident that, rather
than the need to spread these
Centres, it is indispensable to improve their
coordination and, above all, to more carefully define the situation in
question.
100. With regard to this, mention should be made of the project
promoted by UNICEFInternational Child Development Centre (ICDC) and
the Istituto
degli Innocenti of Florence for the activation of a specific Observatory against
discrimination towards foreign minors
and minors of foreign origin. This
project has as its objective an increased scientific attention to the
phenomenon, and has as
its own point of reference monitoring the implementation
of Law No. 176/1991. It is a unique experience in Italy, and seeks to
become
a linkup point to other centres and research programmes which could be
instituted subsequently.
101. The problem of the prohibition of
discrimination is, however, certainly not resolved by way of the not
insignificant legislation
adopted and the eventual judicial protection provided.
Initiatives for integration and support for the ethnic and cultural identity
of
foreign children are, therefore, being developed, at the level of local
authorities, of schools and the private and voluntary
sectors. Of particular
interest is the experience, by now common in some large cities, of cultural
coordinators and street social
workers who speak the same language and are of
the same nationality as the young foreign people they want to
reach.
102. Particular attention has been given over the last few years
to gender discrimination and how to overcome it. A Department of
Equal
Opportunities has been set up within the Prime Minister’s Office, chaired
by a minister, which is carrying out very intense
work in this field. The 1997
Report on the Condition of Young People in Italy, edited by the National Centre
for Children and supervised
personally by the Minister for Social Solidarity, is
primarily dedicated to the protection and construction of the female
identity.
C. The best interests of the child
(guidelines
3339)
103. The principle of
the interests of the child which are privileged in respect to other interests
does not appear in the Italian
Constitution, but is present in numerous
legislative provisions. It is enshrined in various regulations in the fact that
in a possible conflict
of interests between adults and minors it is necessary
to take into particular consideration, and to protect in a preferential way,
that which appears to be the best interests of the weaker party and who is at
the beginning of life. In the interests of the child,
the law makes reference
to the case of late recognition by the parents (art. 250 (4), Civil
Code), the case of parental recognition
of a child conceived by incest on the
part of parents in good faith (art. 251 (2)), the case of the
insertion of the child born out
of wedlock into the legitimate family of the
natural parent (art. 252), the case of the legitimization of the child born
out of wedlock
by judicial action (art. 284), the case of the giving of
custody to one parent when there is a separation of the spouses (art. 155),
and so on.
104. The Constitutional Court has also held this principle to
be so significant and fundamental for the protection of the personality
of the
child whose “emotional balance, educational and social placement”
must not be prejudiced that it has used it
as a criterion for evaluation of the
constitutionality of the law. In that sense, with Decision No. 341
of 20 July 1990, it held
that an action in terms of article 274 of the
Civil Code for a judicial declaration of paternity is admissible only if the
judge
considers that this also corresponds with the best interests of the child;
with Decision No. 303 of 24 July 1996, it held that the
judge must derogate
from the rigid criteria of the difference in age between the person who wishes
to adopt and the child available
for adoption when placement in that specific
family responds to the best interests of the child. The judges have
consequently taken
from article 2 (respect and development of the human
being) and article 31 (protection of young people) of the Constitution the
principle which has become the constitutional rule of the best interests of the
child.
105. In administrative actions, the criterion of the best
interests of the child is at the basis of social policy and of actions carried
out by local authorities to whom supportive and promotional functions are
attributed. In the Plan of Action of the Government, among
the fundamental
objectives to be followed, it is emphasized that it should guarantee, not only
on a legislative level but also on
that of regular operative procedures, that
the personality of a child in his or her formative years is to be respected and
that the
interests of the child are privileged in respect to other interests.
The best interests of the child constitute a criterion of evaluation
in
deliberations both administrative and judicial relating to the family and are
used, in particular, in deciding whether it is
more opportune in situations of
prejudice or abandonment of the child to help parents in difficulty by way of
social or educational
aid or to order the removal of the child or his or her
adoption; for socioeconomic action regarding scholastic assistance and
protection
of the right to education; for the development of foster care and the
reduction of institutionalization; for the integration of foreign
children; for
the fight against underage child labour; for prolonging compulsory education and
so on.
106. Despite the attention of the Government to the best interests
of the child, it cannot be said that all the problems have been
resolved. In
the institutional sphere, there remain attitudes which tend to privilege the
interests of the adult, so that it is
not unusual that these interests are
smuggled in as the interests of the children when they are in fact the interests
of the adults,
and that organizational and financial problems (for example, in
relation to welfare assistance and placement in particular institutions)
prevail
over fundamental needs during the formative years. It is necessary, therefore,
to develop, together with a more adequate
attitude of respect for those who are
in their formative years and their rights, also a better system of protection of
these interests.
It is also indispensable to reform the juvenile justice
system, revising the jurisdiction and providing specialized judges for all
minors. Moreover, it is necessary to enhance the training system for social
workers and teachers regarding the needs, difficulties
and demands of children
and adolescents, and also ensure a better level of understanding on the part of
health professionals of problems
inherent not only to the physical health but
also to the psychological and emotional development of children in their
formative years.
It is necessary to create a system of services for the
protection of children which is, in spirit, homogenous throughout the nation,
overcoming historical inequalities.
D. The right to life, survival and development
(guidelines
40-41)
107. For the answers
to the queries referred to in paragraphs 40-41 of the guidelines, see the part
of this report relative to health
and assistance, as it seems opportune to cover
the problems relating to health and the right to life, development and survival
as
a whole, given the strict interconnection which exists between these
matters.
E. Respect for the views of the child
(guidelines 42-47)
108. The Italian Constitution provides, in a
general way, that all persons have the right to express freely their views by
way of speech, writing and in any other
method of dissemination: even if there
is no specific reference to the minor, the use of the all-encompassing term
“all persons”
must also include the child.
109. In the family
sphere, the duty to listen to the child and to take his or her opinions into
consideration is not expressly declared
but it can be clearly inferred from the
rule which provides that parents have the obligation to carry out their own
educative function
taking account of the capacity, the natural inclinations and
aspirations of their children (art. 147, Civil Code). Violation on
the part of
parents of this duty can involve intervention which limits or removes their
authority. On the basis of this legal rule,
the Juvenile Court in Bologna held
that parental authority “does not include the right to impede, also by
means of personal
restrictions, the ideological-cultural choices of the child
but must be exercised with respect to fundamental freedoms and inviolable
human
rights” (26 October 1973).
110. In the scholastic sphere, the
statute for students in secondary school has been recently approved (Decree of
the President of
the Republic of 29 May 1998) in which various rules uphold the
right of the minor to be heard: article 1 states that the life of
the
scholastic community is based on freedom of expression, of thought, of
conscience and of religion; article 2, paragraph 1, that
the school shall
enhance the personal capabilities of the students by way of providing adequate
information, the possibility to formulate
requests and to carry out autonomous
initiatives; that, under section 4, the students have the right to active and
responsible participation
in the life of the school and, under section 6, to a
choice in curricular activities. On the disciplinary front, the same rules
state (under art. 4) that no one shall be subject to disciplinary sanctions
without having been first invited to explain their reasons
and that, in no case,
can they be punished, either directly or indirectly, for having freely expressed
their views in a reasonable
manner and without harm to others.
111. It
is not, however, expressly provided that the young person must always be heard
nor that he or she can express his or her opinion
prior to his or her placement
in a welfare institution or community or in a foster home. There has, however,
developed in some of
the judges who are more aware of these issues, the
conviction that, before separating a child from his or her family, it is always
necessary to allow the child to express his or her opinion and to explain to him
or her the significance of the measures that will
be taken.
112. In
jurisdictional procedures, some rules have been laid down relating to the
hearing of the child. As already stated, it is
necessary, however, to recognize
that the regulations regarding the hearing of children are very fragmentary,
incoherent and, at
times, contradictory and, therefore, it is not possible to
find clear guidelines from the legislators.
113. In civil proceedings,
the rule is that in some cases not only the hearing of the minor is necessary
but the wishes of the minor
are also considered binding: parental recognition
of the 16year-old cannot take place without his or her consent; the placement
of
a child born out of wedlock into the legitimate family cannot take place without
the consent of the legitimate children who have
reached the age of 16 years; in
various stages of the adoption procedure the wishes of the 14-year-old minor are
considered decisive.
In other cases, however, it is provided only that the
minor must obligatorily be heard if he or she has reached a certain age:
12
years for the various stages of the adoption procedure and that of fostering.
On the other hand, the hearing of the child is
not mentioned in the case of the
separation of the parents, whether it be consensual or judicial, or when changes
are made to the
conditions of the separation. It should be emphasized that,
when confronted with a legislative approach which appears oriented towards
the
recognition of a growing need to hear the minor in judicial proceedings, the
most recent provisions (Law No. 74/1987) on divorce
establish that the judge
should hear the minor only if strictly necessary, retaining, therefore, less
ample space for discretion
than established in this matter (“if
opportune”) in the previous law (Law No. 898 of 1970).
114. It is
also to be revealed that different rules exist for similar situations: children
over 14 years of age must be heard by
the judge if there is a disagreement
between the parents on questions of particular importance which affect them
(art. 316, Civil
Code) while no provision is made when the disagreement has
become so relevant as to involve the separation of the parents and the
giving of
custody of the child to one of them, or possibly to third parties, or when there
is controversy over the exercise of the
parental authority. It is provided that
the children of a legitimate family must give their consent to bringing a child
born out
of wedlock into the family unit, but that in the case of the
legitimization by judicial measures the children must only be heard,
and for the
adoption of another child on the part of parents with children, the hearing of
the legitimate children of the adopting
couple or of the fostering couple is not
even requested, while it appears evident that it is advisable that they be
involved in a
decision which will have notable impact on their future life. And
also the fixing of different ages for being heard (12, 14, 16
years) does not
seem connected to the peculiar nature of the situations, but appears completely
random.
115. It would seem, therefore, indispensable to have a single
legislative provision which - leaving aside some specific cases that
require the
consent of the child, on the basis of their relevance to his or her life -
establishes, in all judicial and administrative
procedures affecting a minor who
has reached the age of 12 years, and when advisable also at a younger age, that
he or she be heard
in ways and forms which permit the perception of his or her
real opinion and do not cause him or her to be seriously upset.
116. The
legislation with regard to juvenile criminal proceedings is more organic in that
it provides, at every phase of the trial,
for the hearing of the accused minor
with the assistance of the social services and the parents or other suitable
persons nominated
by the minor. It is also required that the hearing of the
minor becomes a constructive dialogue: the new code of juvenile criminal
procedure requires that the judge explains to the accused the meaning of the
procedures taking place in his or her presence, and
also the content and ethical
and social reasons for the decision (article 1, Decree of the President of the
Republic No. 448 of 22
September 1988).
117. In the criminal trial of an
adult, in which minors are involved as victims or witnesses to crimes, a series
of provisions have
been enacted to guarantee the due hearing of the child and
the protection of his or her personality. The regulations have tried
to protect
the privacy of the minor, providing the possibility for proceedings to be held
in chambers for the hearing of the child
and forbidding the press to publish
details and photographs of minor witnesses and people who are offended or
damaged by the crime
until they have reached the age of majority (art. 114,
para. 6, Code of Criminal Procedure). Attempts have also been made to protect
the personality of the minor providing, in article 498, paragraph 4, that the
examination in the courtroom is conducted only by the
presiding judge of the
court on questions and crossexamination proposed by the parties and that, in the
examination, the presiding
judge may be assisted by a family member of the child
or an expert in child psychology. An important innovation has been introduced
by the law on sexual violence (Law No. 66 of 1996) providing, under article 13,
that it is possible for the public prosecutor, or
the person undergoing
investigation, to ask that evidence be taken in the pre-trial phase and, under
article 14, that the hearing
may also take place in a different place from the
court, even at the home of the child.
118. However, in administrative and
judicial proceedings, the child is able to begin proceedings through his or her
representative
(usually the parent or the guardian but also a special
representative in the case of conflict of interests). It is to be noted that
under our legal system, on the attainment of the age of 14 years, a child can
obtain an autonomous residence permit valid until his
or her eighteenth year and
that the child him or herself is able to present an application regarding the
right to asylum: the Juvenile
Court must, however, be informed so it can
nominate someone to represent his or her interests.
119. The right of
children to create associations in the school is provided by the aforementioned
statute of the rights of the student;
the right to elect their own
representatives in the collegial council of the secondary school is provided by
Decree of the President
of the Republic No. 416 of 31 May 1974.
120. Many
cities are developing Municipal Children’s Councils. The Councils perform
their activities through confrontation
and mediation with adult administrators;
the activities are supported by a steering committee formed by adults (a teacher
or a coordinator);
and the Councils operate within the municipal territory which
coincides with an area that the children know; have control of a budget
which
allows them to gain experience and carry out small projects; plan projects for
the transformation of urban spaces, for the
environment, for sports and free
time activities and for cultural activities.
III. CIVIL RIGHTS AND FREEDOMS[*]
A. Introduction
121. The Italian legal system recognizes, also
at the constitutional level, the civil rights and liberties of all persons
irrespective
of age. Naturally, the possibility of exercising such rights can
vary in relation to the capacity - full rights or minority rights
- of the
individual during his or her maturing process: the exercise of rights and
freedoms as an adolescent is one thing and the
exercise of rights and freedoms
as a child is another. The construction of the identity of the individual in
his or her formative
years is brought about by way of a dual process of
continuity and growth in which he or she must constantly renegotiate his or her
own need to belong to his or her own family with the need to make him- or
herself autonomous and responsible, and his or her own
need for dependence with
the exercise of freedom. The fulfilment of authoritative relations on the part
of the parents and officials,
which balance liberties and directive intervention
and guiding regulations, support and self-determination, constitute a important
factor in the development of identity, encouraging personal development towards
autonomy and excluding egocentric individualization
and introversion. If, in
the educational sphere, it is necessary to contrast autonomy and dependence by
way of dynamic and constructive
dialectics, in the sphere of the law it is also
necessary to have an adequate balance between the two positions and an overall
and
consistent vision.
122. This implies, on the one hand, the
acknowledgement that rights and freedoms, so far as they are basic human rights,
cannot be
made substantially irrelevant by giving the parents an absolute right
over the child and, on the other hand, that if autonomy is
functional to the
construction of the identity of the child, in regard to a person whose maturity
is not yet complete, the exercise
of authoritative guidance on the part of the
parents who oversee his or her formative itinerary, both in the interests of the
child
and of the community, is also necessary.
123. The legal system has
not dealt with - at least not in an explicit way - the problems relative to the
relationship between the
educational functions of the parent and the rights and
freedoms of the child. It is, however, to be noted that the affirmation found
in article 147 of the Civil Code - according to which parental activity
regarding the education of a child must respect the capabilities,
the natural
inclinations and the aspirations of the child - has placed, in a general way, a
prime, fundamental limit on parental
power, which cannot be exercised in such a
way as to violate the moral personality of the child rather than educate him or
her to
freedom, which only favours development and helps the child to become an
adult person who is conscious and responsible. The constitutional
recognition
of the fundamental human rights and the precise applications which emerge from
the Convention on the Rights of the Child
constitute a further interpretative
criterion when there is conflict between the rights and freedoms of the child
and the educational
rights of the parents.
124. It emerges, however, from
the legal system that if the right of the parent is not absolute, and can and
must be checked, the
rights and freedoms of the child also cannot be considered
absolute because they must be functional to a real process of growth,
autonomy
and becoming a responsible person. The rights and freedoms of the child find a
limit in the necessity to assure him or
her a global and harmonious development
which intervenes in the case of choices that may be damaging for his or her own
growth.
That does not mean that the rights and freedoms of the child must be
substantially denied or set aside, but that it must be carefully
evaluated -
firstly by the parent and then, possibly, by the judicial body for the
protection of children - whether the child in
his or her formative years has
reached sufficient maturity to allow him or her an authentic free choice which
responds to his or
her development needs, an adequate and constructive direction
of his or her own life and an awareness of the consequences implicated
in the
effective choice.
B. Name and nationality
(guidelines 49-53)
125. The registration
of birth must be made to the Registrar of the State in the 10 days following the
birth (article 67 of Royal
Decree No. 1238 of 9 July 1939). The registration
procedure has been reviewed recently under Law No. 127 of 15 May 1997 on
administrative
simplification which, in amending article 70 of the said Royal
Decree No. 1238/1939, established that when the child is born in a
hospital or
in a clinic, the registration of birth is carried out directly within such an
institution and whoever registers the birth
(one of the parents or their lawyer,
a person who has assisted at the birth or the person delegated by the hospital
where the birth
took place) must respect the wishes of the mother not to be
named. Since the obligation of registration is incumbent on a large
number of
people and since almost all children are born in a hospital or clinic where the
registration of birth is, in any case,
done automatically, and because
assistance for the birth of the public hospital structure is also available to
female foreign illegal
immigrants the possibility that a birth is not registered
or that it is registered late is very remote.
126. The consequence is
that, with the registration of birth, a child born in Italy immediately acquires
an identity constituted by
a surname (of the father, of the natural mother who
alone has acknowledged the child, or given by the registrar if the father is
unknown and the mother has asked not to be named on the Register of Births), by
a first name (indicated by one of the parents or
by the Registrar for the child
of unknown parents) and by citizenship (Italian, if, by article 1 of Law No. 91
of 5 February 1992,
at least one of the parents is Italian, if the parents are
unknown or are displaced persons, if the child does not take the citizenship
of
his or her foreign parents according to the law of the State to which they
belong; otherwise the foreign citizenship of one of
the parents).
127. By
way of registering the birth, if the parents have accepted to be named as such
by acknowledging the child, the parents become
titleholders to all the rights
and duties of parents and the child has the right to know them and to be brought
up by them. If,
on the other hand, the natural parents have not acknowledged
the child, and neither paternity nor maternity has been judicially declared,
the
Juvenile Court (possibly after a waiting period to give one of the parents time
to decide whether to acknowledge the child) declares
the child to be adoptable
(article 11 of Law No. 184 of 4 May 1983) and therefore proceeds to place the
child in adoptive care in
a family which shall become “his or her”
family and in which he or she will be brought up and educated.
128. The
failure to register a birth has been encountered in some cases of nomad children
of families coming from the former Yugoslavia
and, in these cases, provision has
been made to give the child an identity by way of a procedure of late
registration of birth (articles
68-69, Royal Decree No. 1238 of 9 July 1939).
In some cases, the parents have hidden the birth in order to give the child to
another
couple who have registered the child as their own, committing an offence
of forgery (art. 483, Criminal Code) punishable by imprisonment
for up to two
years. In any event, the child immediately receives an identity even if it does
not correspond to his or her biological
family or to his or her status as an
unacknowledged child.
129. To avoid any form of stigmatization or
discrimination against the child who does not have parents, or who is the child
of only
one acknowledged parent, the extracts of the Register of Births must be
released only in summary form (except when the Public Prosecutor
of the Republic
authorizes the release of a full copy), omitting any indication which shows that
the paternity or maternity is not
known and indicating only the name of the
parent or parents who have acknowledged or adopted the child (article 186 of
Royal Decree
No. 1238 of 9 July 1939).
130. Specific measures have not
been adopted aimed at informing the parents that the child has the right to know
them and to be brought
up by them. This right of the child is obvious and
characterizes all of the legislation, and, in particular, is expressly upheld
by
article 1 of Law No. 184 of 4 May 1983 (“The child has the right to
be brought up within his or her own family”),
and social policies and the
judicial approach have always been aimed at bringing this about, including in
the form of educational
support, economic support and housing allocation to
parents.
131. In particular, it is held to be poor exercise of parental
authority for the parents to delegate the bringing up of the child,
except in
cases of temporary force majeure, to other persons or communities or welfare
institutions, to the extent that when such
cases are discovered the Juvenile
Court intervenes by taking measures or, in cases of material and moral
abandonment, by declaring
the child available for adoption.
132. On the
basis of Law No. 91 of 5 February 1992 on Citizenship, a child cannot remain
without nationality because:
− The child born in Italy who does not take the citizenship of the parents according to the law of the State to which the parents belong is an Italian citizen;
− The child of unknown parents found in the territory of the Republic, if he or she is shown to possess no other citizenship is considered to be an Italian citizen by birth;
− The foreign child adopted by an Italian citizen acquires Italian citizenship; in the case of the revocation of adoption by the adopted child, he or she loses citizenship if he or she is in possession of another citizenship or he or she reacquires the same;
− The minor child living with his or her parent who acquires, or reacquires, Italian citizenship, acquires Italian citizenship;
− Italian citizenship may be conceded to a stateless child born outside Italy or a refugee child (born in Italy or outside Italy) who has resided legally in the territory of the Republic for at least five years;
− Italian citizenship may be conceded to a foreign child, born in Italy or abroad, who has resided legally in the territory of the Republic for at least 10 years (this period is reduced to 4 years if the child is a citizen of a member State of the European Union).
133. There is no difference as
regards citizenship between a child born in or out of wedlock, and for children
applying for political
asylum or refugee status the above-stated
applies.
134. The child born to parents of different nationalities may
acquire and maintain the nationality of both parents, the obligation
to choose
having been abrogated and the principle of plurality of nationality being in
force, at least until the child renounces
Italian citizenship when he or she
transfers residence abroad.
C. Preservation of identity
(guideline 54)
135. The principle of
preservation of the identity of the child, constituted by name, family
relationship and nationality, encounters
an important exception in the adoption
of the child, which creates a new status by which the child, keeping only his or
her original
forename, acquires the surnames, the family relationship and
nationality (or the nationalities) of the new parents (article 27, paragraph
1,
Law No. 184 of 4 May 1983). In this case, the child who has reached the age of
14 years can keep his or her own identity by denying
his or her consent to
adoption and, if he or she is under age, can express his or her opposition
(article 22, paragraph 4, Law No.
184 of 4 May 1983).
136. The law
attributes a triple significance to the surname, as a sign of personal
identification, indication of belonging to a family
group, and the nature of the
status in family relations. Given these characteristics, there is a tendentious
principle of permanency
of the surname of the child, a permanency which has
exceptions only in the following cases:
− Acknowledgement of the child born out of wedlock after the completion of the birth certificate of an unacknowledged child (article 262, paragraph 1, Civil Code: the surname originally given by the Registrar, being a fictitious name, is substituted by that of the acknowledging parents, or the surname of the father if the acknowledgement is carried out contemporaneously by father and mother);
− Paternal acknowledgement subsequent to that of the mother (art. 262, para. 3, Civil Code): the Juvenile Court decides for the child whether to substitute the initial surname of the mother with the surname of the father, or to add the surname of the father to that of the mother;
− Non-legitimizing adoption (article 55, Law No.184/1983 and article 299 Civil Code): the adopted person assumes the surname of the person adopting and adds it to his or her own;
− Legitimization of the child born out of wedlock by subsequent marriage or by the father (articles 280 et seq., Civil Code: the child who had the surname of the mother acquires that of the father);
− Subsequent legitimization on the part of the mother of the child whom only the father had acknowledged (inferred from article 290, Civil Code, the original paternal surname is substituted by that of the mother);
− Upholding the action of dis-acknowledgement of legitimate paternity (arts. 244 et seq., Civil Code): loss of status as a legitimate child, with maintenance of the status of a child acknowledged only by the mother from whom he or she acquires the surname;
− Annulment of parental acknowledgement of a child born out of wedlock (arts. 263268, Civil Code): with the removal of the paternal surname the child is given the maternal surname if the child was acknowledged by the mother, or another surname if there was no maternal acknowledgement;
− Change of surname for well-founded reasons by decree of the President of the Republic (art. 6, para. 3, Civil Code and art. 153 of Royal Decree No. 1238/1939);
− Rectification of a surname given in error (art. 165 of Royal Decree No. 1238/1939).
137. Intervening nevertheless to evaluate the
constitutionality of one of these provisions by which the child can have his or
her
surname changed and therefore also his or her identity, the Constitutional
Court, in Decision No. 13 of 4 February 1994, has upheld
the non-obligatory
nature of such modification and the possibility to maintain the original surname
where this has become part of
the personal identity of the person in question.
This is a principle which stands, therefore, in any one of these situations, for
the protection of the child.
138. A change in family relationships in the
interests of the child takes place when there is an adoption, legitimization, or
acknowledgement
of the child born out of wedlock. Such change comes about,
however, with a painful loss of elements of identity in the case of annulment
of
acknowledgement and in actions for dis-acknowlegement of legitimate paternity.
At this time, it is highly debatable whether a
father who has consented to the
assisted pregnancy of his wife by way of artificial insemination by donor can
then refuse to acknowledge
paternity of the child, thereby causing the child to
lose both his or her status as legitimate and the surname by which he or she
was
known in social relationships.
139. Conduct which illegally deprives the
child of the constitutive elements of his or her identity, or some of these, for
example,
declaring another surname or other parents, is punished as a crime
(arts. 494, 495 and 496, Criminal Code).
D. Freedom of expression
(guideline 55)
140. Article 21 of the
Constitution establishes that “all persons have the right to express
freely their own opinion in speech, writing and any other means of
dissemination”. And this provision applies to everyone, citizens and
foreigners, adults and children.
141. There are no restrictions on the
freedom of expression for children or adolescents that are different or greater
than for adults.
From the formal point of view, the names of the printer and
the author must be indicated in order to publish non-periodical printed
material
and periodicals require registration, while television or radio broadcasts by
other than public broadcasters must be licensed.
As far as content is
concerned, freedom of expression is limited in the case of that which is
contrary to public decency and the
expression of words or pictures which
constitute a crime.
E. Freedom of thought, conscience and religion
(guidelines
56-57)
142. The Italian
State guarantees fully, for the child as for the adult, the right to freedom of
thought, conscience and religion.
143. The rights and freedoms of thought
and of conscience, both of individuals and of social groups, are among the
fundamental human
rights which the Republic recognizes and guarantees (art. 2 of
the Constitution). And article 19 of the Constitution provides that all persons
have the right to profess freely their religious faith in whatever form,
individually and in association,
to issue propaganda and to perform their rites
in private or public, provided that they are not contrary to public
decency.
144. There is, therefore, no doubt that the child has these
rights in full, without limit outside his or her own family, save those
relating
to public order and public decency. The problem which is posed, however, is
whether the child has the right to express
opinions which are different from
those of his or her parents, to express them outside the family against their
wishes, to profess
a religious faith different from that of his or her parents,
or, within the faith of his or her parents to make choices for his or
her life
different from the wishes of his or her parents or to stop practising any
religious faith. With regard to the law, taking
account of the age and of the
maturity of the child and of the intensity of his or her feelings, it is held
that choices which do
not damage either him- or herself or others, and
expression of thought which springs from a sincere and reasonable conviction,
must
be respected and parental conduct that impedes the child who is already
sufficiently mature to exercise these very personal rights,
or to force him or
her to behave in a way which does not correspond with his or her present
inclinations, is inappropriate.
145. The young person taking part in a
religious minority or indigenous group has full rights to freedom of conscience
and to express
his or her religion or belief, without limitations except those
protecting public decency.
146. The problem of respect for the freedom of
the young person to manifest his or her religion or belief is also posed with
respect
to participation in religious instruction taught by teachers appointed
by the Catholic Church (which in Italy is by far the most
important religion) in
the weekly hour of religious instruction which takes place in public schools.
The solution provided is that
of optional religious instruction. Before the
commencement of the school year the parents, as representatives of the children
(for
the elementary or middle schools) or the students themselves (those who
have already reached the age of 14 years, for the secondary
schools), choose
whether to avail themselves of the teaching of the Catholic religion. When the
decision is not to take part, the
student can choose whether, in that hour of
the week dedicated to the Catholic religion, he or she will attend a different
subject
of study, devote him- or herself to self-study, or leave the school
building.
147. The problem remains for the nursery schools (which take
care of children from 3 to 6 years of age) and the
elementary schools
in which there is widespread teaching of the Catholic
religion for two hours per week. This makes it more difficult for children
who
belong to minorities to abstain from these lessons without suffering periods of
marginalization. A general solution was found
in nursery schools where there
are children who belong to religious minorities: religious teaching be of a
non-confessional kind.
148. For the young person who finds him- or
herself in a community or a hospital affiliated with a faith other than the
child’s,
there is a normal ecumenical practice by which the intervention
of the minister of the religion of the child is allowed or requested
or the
child is otherwise allowed to practise his or her own
religion.
149. Finally, it is to be noted that the recent law on
conscientious objection with regard to military service (Law No. 230 of 8 July
1998, New Regulations in regard to Conscientious Objection) has brought profound
innovations with regard to the previous laws on
the subject: objection to
military service ceases to be a benevolent concession by the State, and becomes
the expression of a subjective
right and therefore of the freedom of thought,
conscience and religion.
F. Freedom of peaceful association
(guideline 58)
150. Every citizen,
adult or child, has the right to freely associate, without authorization, for
purposes which are not in themselves
prohibited by the criminal law, which
prohibits secret associations and organizations of a military character (article
18 of the
Constitution). Therefore, the child can create and join associations
without the need to apply for or obtain authorization.
151. Citizens,
adults and children, have the right to assemble peacefully without arms and for
meetings which take place both in private
or are open to the public, without the
need for authorization or prior notice (article 17 of the Constitution). Only
for meetings which take place in public places must the organizers, adults or
children, give prior notice to the authorities
to enable them if necessary to
prohibit the meetings for demonstrated motives of public security or
safety.
152. Law No. 40 of 6 March 1998, which constitutes the charter of rights and
duties of the foreign citizen, lays down, under article
2, that the foreign
citizen who has regular permission to stay in Italy enjoys the civil rights
attributed to the Italian citizen,
subject to any contrary provisions. And,
therefore, the rights of association and of assembly, exercised according to the
conditions
outlined above, are also applicable to a foreign child who has legal
permission to stay.
153. Current Italian law, therefore, corresponds
fully to what is established by article 15 of the Convention on the Rights of
the
Child.
G. Protection of privacy
(guideline 59)
154. The question of
the protection of the privacy of the child is taken into consideration under
many headings.
155. Firstly, the activity of the parents or guardian who,
in exercising educational vigilance, concern themselves with his or her
life and
also are aware of the content of his or her correspondence or his or her diary,
is not held to be arbitrary or illegal interference
in the private life of the
child; only the abuse of such vigilance in ways which do not respect the
identity and the psychological
privacy of the child may constitute poor exercise
of parental authority and can involve the intervention of the Juvenile
Court.
156. The right to privacy of the child with respect to
interference external to the family is protected in the general ways provided
for all persons (the reading and revelation of the contents of correspondence
addressed to others is punished by articles 616 and
618 of the Criminal Code;
the residence is inviolable in accordance with article 614, Criminal Code; it is
a crime punished by article
615 bis of the Criminal Code to use surveillance
equipment, whether visual or sound, to record images or sounds in the private
home
of another; according to law, it constitutes, a civil wrong - on the basis
of article 2 of the Constitution which upholds inviolable human principles - to
reveal by way of the media specific information on the particulars of
someone’s
private life and image outside of a situation of public-social
relevance; Law No. 675 of 31 December 1996 on privacy protects individuals
against interference in their private life due to the processing of personal
data, including so-called sensitive data which can reveal
racial and ethnic
origin, philosophical, religious or other convictions, membership of political
parties, unions, associations, health
or sexual orientation).
157. In
addition to these general measures, specific measures are laid down for the
protection of the privacy of the child. To prevent
potentially damaging
consequences of publicity for a child who participates in a criminal trial and,
in particular, to prevent premature
identification of the child who is accused
or is the victim of a crime, publishing details about or the photograph of the
child is
prohibited until he/she has reached the age of majority, save with the
authorization of the child who is over the age of 16 years
or of the Juvenile
Court (art. 114, para. 6, Code of Criminal Procedure). Furthermore, the
publication and the divulging, by whatever
means, of details or images capable
of enabling the child in any way involved in criminal proceedings to be
identified are prohibited
(article 13, Decree of the President of the Republic
No. 448 of 22 September 1998) except at the request of the accused who is
over
16 years that the proceedings be public. Finally, in order to shield the
child victim from the curiosity of the public which may
compromise the
rehabilitation of his or her personality, criminal proceedings against an adult
accused are held in chambers when the testimony of a child victim of the
crime may be heard (art. 472, Criminal Code).
158. In turn, the law,
holding that with regard to children, in the balance between the right to
privacy and the right to information
in the presence of a socially relevant
fact, the former has priority, is now oriented towards prohibiting the
widespread publication
and uncontrolled divulging of the image of a minor,
including outside criminal proceedings, when the consent of the minor over the
age of 16 years or of his or her legal representative has not been
given.
159. Whether the parents, representing the child and custodians of
his or her right to privacy, can in his or her name allow the publication
of his
or her photographs and sell the rights to reproduce the same - outside criminal
proceedings where it would, in any case, be
prohibited has been
questioned; it has been held that, having attained the age of 16 years, only the
child him- or herself, and
not his or her legal representatives, can cede the
right to his/her image.
160. Italian journalists of the press and
television have given themselves a code of conduct, the so-called Charter of
Treviso of
5 November 1990, which binds them to maintain the anonymity of
children who are accused of or are victims of crime by refraining
from
publishing elements which, even indirectly, can lead to his or her
identification and to the violation of the protection of
the child as a person
of formative years who could be very disturbed by publicity, including in
relation to facts which do not constitute
crimes (suicides, matters relevant to
adoption and fostering, children of people in prison, etc.). Moreover, in cases
where personal
data and photographs are necessary (for example, kidnappings or
children who have disappeared) the Charter invites journalists to
obtain prior
consent of the parents and the tutelary judge. This document, updated in 1995
with a Handbook, has become domestic
law (Official Gazette of 2 August
1998).
161. Moreover, on 29 July 1998, the Commissioner for Data
Protection launched the Code of Conduct on Privacy (in implementation of
Law No.
675 of 31 December 1996) prepared by the National Council of the Order of
Journalists. Some cases of violation of the rules
have taken place in the last
three or four years and disciplinary proceedings have been undertaken, according
to four procedural
methods: a warning, for violations of a mild nature;
censure, for matters of grave importance; suspension from work (from two months
to one year), in cases of conduct which has damaged the dignity of the
profession; expulsion from the Order of Journalists, if the
dignity of the
profession has been seriously compromised. Seventy-four disciplinary orders had
issued, as of April 1997: 62 warnings,
5 censures, 6 suspensions
and 1 expulsion. The following table offers a regional breakdown of
the sanctions applied:
Table 3
Disciplinary proceedings against journalists, by region and type of sanction
Region
|
Expulsion
|
Warning
|
Censure
|
Suspension
|
Trentino Alto Adige
Piedmont V. Aosta Lombardy Veneto Tuscany Emilia Romagna Marche Umbria Lazio e Molise Apulia Basilicata Sicily |
-
- - - - - - - 1 - - - |
3
2 15 3 4 2 3 1 13 23 1 2 |
1
3 - - - - - - 1 - - - |
-
- - - - 1 - - 5 - - - |
Total
|
1
|
62
|
5
|
6
|
Source: Journal of the National Council of the Order of
Journalists, Og-Informazione, April 1997.
162. Besides the
above-mentioned, attacks on the honour and reputation of a child, as for
an adult person, committed with the use
of the mass media or by the spoken
or written word, constitute punishable offences on complaints brought on behalf
of the child under
the age of 14 years by his or her parents or
guardian; for children between the ages of 14 and 18 years, complaints can also
be brought
by the child him- or herself.
163. There are no specific
measures relating to the privacy of children who have been placed in
children’s homes. The respect
for the life and for the dignity, in all
its aspects, of the child held in an institution is guaranteed by criminal
penalties (abuse
of methods of correction or discipline, or maltreatment,
articles 571-572 Criminal Code), by administrative supervision (entrusted
to
local authorities) and by judicial controls on the specific conditions of each
child (periodic inspections by the presiding judge;
article 9, paragraphs.
4 and 5, Law No. 184 of 4 May 1983).
H. Access to appropriate information
(guideline 60)
164. The mass media
are free, and it does not appear possible, given the great variety of the
productions aimed at a young public,
for the State to promote editorial choices
and specific dissemination according to evaluations of social and cultural
worth. It
is the school which above all deals with the initiation of, and the
education in, the reading of books and newspapers; also, of a
daily newspaper
for reading in class and common discussions on some of its contents is available
at a favourable price from the publisher.
165. A significant experiment
with the dissemination of literature has been carried out by means of some
important literary prize
competitions (the Pavan prize, in the Venice region,
the Grinzane-Cavour prize in the Piedmont region), in which children are the
judges of the books in competition.
166. The problem of teaching, books
and information in their original language interests some indigenous minorities
and groups of
recent immigrants. Taking account of these situations, the
Italian Parliament is about to approve a general law which also allows
the
schools to carry out collateral teaching of minority languages and cultures,
with probably similar arrangements also for the
production and broadcasting
through the mass media in the same languages. And article 36, paragraphs 2
and 3, of Law No. 40 of 6
March 1998 on the rights and duties of the foreigner,
in addition to providing courses of Italian language teaching for foreign
children,
specifies that “the school community welcomes linguistic and
cultural differences as the basis of reciprocal respect, of the
exchange between
the cultures and of tolerance; to that end it promotes and encourages
initiatives aimed at welcoming and protecting
the original culture and language
and at implementing common intercultural activities”. More clarification
will be given in
the part of the report relating to minority languages.
I. The right to express one’s own thoughts
(guideline
60)
167. According to the
Constitution (art. 23), everyone has the right to express freely his or her own
thoughts in words, writing, and any other mode of communication;
and the right
to freedom of expression obviously includes also that of receiving expressions
of thought. All this also applies to
children and adolescents. In relation to
this freedom, there are some problems.
168. The first problem is how to
make the right of the child to express and receive information and ideas
effective, furnishing him
or her with appropriate opportunities and instruments
to transmit his or her thoughts. The school system, as regards the theme of
democracy of thought, has undertaken since 1974 (Legislative Decree No.
416/1974) to recognize, for the upper schools (for students
from about 14
years), student assemblies and student elections for their representatives in
the school structure and the participation
of those representatives in
deliberations on matters of the school together with representatives of the
parents and teachers.
169. At the level of educating children to express
their thoughts, the initiative of some daily newspapers to invite schoolchildren
to write to their newspaper, featuring the best articles submitted on special
pages, should be noted. And there are now many school
newspapers edited by the
students.
170. The second problem is how to assert the common
responsibility of parents or the guardian concerning the education of the young
person, combining it with the freedom of the child to express and receive
expressions of thought. It is recognized that the real
exercise of rights on
the part of the child is correlated with the age and educational needs and that,
in any case, when he or she
has reached a sufficient level of maturity, he or
she can enjoy all the expressions of thought which are not in conflict with
educational
needs, for example in the field of religious, cultural or political
choice, save that parental education must take place “taking
into account the capacity, the natural inclinations and aspirations of
the child” (art. 147 Civil Code). As a consequence,
the limitation by the
parents of the freedom of the child to express and receive expressions of
thought would constitute poor exercise
of authority.
171. The legal
system and the civil society can, in the name of other values, place limits on
the freedom of expression of young people.
The law places on the freedom of
expression of children the limits provided for the freedom of expression of
every person and only
these: the expression of thought must not harm the
reputation of others, morality, public order or national security.
J. The protection of children from harmful information
addressed to them
(guideline 60)
172. To duly protect
individuals of a formative age from messages which could disturb the normal
process of development and interfere
seriously with the process of acquisition
of identity, Italian law lays down some rules on protection. Therefore, a child
under
the age of 14 years, or of 18 years, is not allowed to see films and
theatrical works which may be considered unsuitable for them
given the
particular sensitivity of their age and because of the need for their moral
protection (Law No. 161 of 21 April 1962);
the marketing and distribution of
publications destined for young people and adolescents when, by reason of the
sensitivity and impressionability
of the young people, these publications are
capable of offending in any way their moral sentiments or constitute an
incitement to
corruption, to crime or to suicide, is punished as an offence
(art. 14 of Law No. 47 of 8 February 1948); designs, images, photographs
or
figurative objects in any way destined for the public which offend modesty or
public decency, or represent scenes of violence,
judged according to the
particular sensibilities of the child and the needs of his or her moral
protection cannot be affixed and
exhibited to the public (Law No. 1591 of
12 December 1960); and, on the subject of the particular sensibility of the
child, it should
be noted that there is also a law which governs the prohibition
and the timing of television programmes (Law No. 203/1995). Finally,
to limit
the damage which the media may cause to children and adolescents, a Code of
Conduct governing the relationship between television
and children has been
launched by the Decree of the President of the Council of Ministers of 5
February 1997.
173. Some television stations have taken the initiative in
marking the transmissions not suitable for children with a coloured symbol,
but
this choice has been very much contested because of the consideration that it
might, instead, constitute an invitation to watch.
174. The problem of
prolonged exposure of children to television entertainment programmes is also
clearly present in the Italian culture.
This brings the disadvantage that
passive reception extinguishes creativity and also in this case the development
of a better culture
of information and better opportunities for the child to use
his or her free time are involved.
K. The right not to be subjected to torture or to
cruel,
inhuman or degrading treatment or punishment
(guideline
61)
175. The
Italian Constitution establishes that punishment cannot consist of treatment
contrary to the sense of humanity and must be aimed at the re-education of
the
offender. In application of this principle, while the death penalty, already
abolished in peacetime, has been abolished in general
also for the criminal code
applicable in wartime (Law No. 589/1994), the penalty of life imprisonment has
been declared unconstitutional,
and therefore abolished, for children by the
Constitutional Court with its Decision No. 168 of 27 April
1994.
176. Since punishment must be aimed at re-education, the
punishments provided for children are, in ascending order of gravity: binding
over for good behaviour; the obligation to stay at home; placement in a
community; and protective custody for a limited period (and
never for life) in
prison. Minors are criminally responsible and therefore they can be sentenced
to such punishments, diminished,
however, in their duration with respect to
those for adults, only for crimes committed by minors over the age of 14
years.
177. Italian law does not provide for nor admit the practice of
torture and other such treatment or of cruel, inhumane or degrading
punishments;
rather, these practices are punished with more serious sentences (art. 61, para.
9, Criminal Code) for those who commit
maltreatment, torture, or cruel
punishments with abuse of power or with violation of the duties inherent in
their public function.
Torture, maltreatment or cruel punishment, with all the
more reason, are not provided for children. And to ensure that the punishment
of detention in prison has, for the minor, an effective re-educational function
and that, in the course of their execution, no abuses
can be committed, it is
provided that this is carried out in appropriate institutions for children, with
educational personnel and
specialized custodial staff and that particular
methods are used which permit relations with the outside world.
IV. THE FAMILY
ENVIRONMENT[*]
A. Introduction
178. In Italy, the family - despite having
undergone profound transformations - still constitutes a living reality which
assures the
child protection, support and affection. It is not without
significance that, according to the annual statistics of the National
Statistics
Institute (ISTAT) of 1997, the level of satisfaction of the population 14
years and over in regard to their family is
very high (93.3 per cent
of those interviewed). And over 80 per cent of the population
between 20 and 24 years of age declare that
the institution of marriage has
not been superseded.
179. The family in Italy is undergoing a profound process of change:
− The number of marriages remains high (5.1 per 1,000); also, the number of de facto relationships are on the increase, as shown by the increase in the number of children born out of wedlock. In 1995, for example, of 525,609 live births, 42,664 were children born out of wedlock, while two years previously, despite the higher number of live births (549,484) only 40,457 were born out of wedlock;
− Separation and divorce, while on the increase, remain in the minority compared to the many stable unions and are far fewer in number than in other countries in the Western world: the level of divorce was 9.3 per cent in 1995 and appears, with respect to the preceding years, stable if not slightly decreasing;
− The number of children per family unit is falling drastically and this involves a relevant disproportion in the balance between the generations: in 1995 families with one child were 70.8 per cent against 24.7 per cent of families with two children and only 4.5 per cent of families with three or more children;
− The family is increasing in age: the age at which a woman has a child is increasing, from an average of 26.7 years in 1989 to 28.1 years in 1995;
− The age until which the unmarried young person who has reached the age of majority stays in the family home is increasing: in 1990, 79.6 per cent of young people between the ages of 20 to 24 years and 39 per cent of those between 25 and 29 years were still living at home. In 1996 the percentages had risen respectively to 88.4 per cent and to 54.1 per cent.
180. All these
changes are indicative, on the one hand, of some difficulty in the process of
construction of the autonomy by the young
person (which delays the phase of
separation from his or her own family unit even if he or she has reached by way
of his or her occupation
his or her own economic autonomy) and, on the other, of
situations of difficulty which children can experience because of problems
related to the single-parent family or the separated family or the family with
an only child or the family with elderly parents.
B. Support to parenting
(guidelines 62-64)
181. The fragility
and difficulties of the family today, together with the fundamental importance
which it has for the development
of the personality of the child, require
adequate support on the part of the entire community. The organization of the
State recognizes
that the family, for its relevant functions of building
individuality and socialization, must be supported by the State in its various
sectors and that it is, therefore, indispensable to have an adequate family
policy both at the national and the local level aimed
at the promotion and not
at the substitution of the family; at the empowering of its subjectivity and of
its resources and not at
rendering it dependent on social welfare; at the
development of new and significant relationship methods between the family and
the
institutions.
182. To ensure that this policy is more organic, the
task of coordination has been attributed to the Minister for Social Solidarity
(and in the Department of Social Affairs, there is a specific Office for Family
Affairs). Legislative action has been taken in order
to support motherhood and
fatherhood and to harmonize the hours of work with hours spent on the care of
the family; to facilitate
renting or acquisition of homes on the part of young
couples and of one-parent families: to increase the nuclear family allowances
to support the families and single people with dependent children and families
with handicapped members, to increase tax allowances
for families with dependent
children, to counter poverty and social exclusion by action aimed at bringing
about social integration
and the economic autonomy of families who do not have
the possibility of providing for the maintenance of their children due to
psychiatric,
physical or social causes (Decree Law No. 237 of 18 June
1998).
183. The Regions, on their part - for the duties they have which
are more expressly directed to the assistance and support of individuals
and the
families in which they develop their personalities - have enacted a considerable
amount of legislation for the promotion
of the family. There are various
sectors in which regional legislation has intervened:
− To promote and bring about an organic and integrated social policy aimed at supporting the rights of the family in the free fulfilment of its functions; to support the co-responsibility of the parents in the care and bringing up of their children; to support the right of spouses in positive, free and responsible choice in procreation; to promote and bring about initiatives for employment and enhancement of jobs for women and to make them compatible with other family and work needs;
− Loans at low or no interest have been provided for young families and for single people who have dependent children;
− Regulation of social assistance and health services for the family: in particular, for social work assistance in the home; to promote the parental capacities of those who have serious difficulties; for the temporary placement in residential structures of the victims of sexual assaults, pregnant women in difficulty; to find families who may be able to foster children; to assist women with problems arising from pregnancy, women alone with children and families with problems of marginalization;
− Economic assistance has been provided for housewives and unemployed women who have children; for families or persons who voluntarily and temporarily give up employment to look after elderly people, invalids, people with serious disabilities, people incapable of looking after themselves and those at risk of marginalization; for unsecured loans in favour of nuclear families or individuals in temporary difficulty; for home-help assistance, including nursing help at home;
− Some principles have been laid down for the social work services regarding children in their formative years: it has been established that these services must be organized in a flexible way to respond to the needs of the family; that these must be educational centres throughout the regions which involve parents, voluntary workers and local communities; that communal play areas of an educational and cultural nature for children and adults with children must be opened;
− Action relating to scholastic assistance and the right to study has been carried out as well as providing for the social management of the school and the central function of the family in this activity;
− The productive and social value of domestic work to the advantage of the entire nuclear family is recognized and protected: the responsibility for the risks of domestic work is taken on by the Region; courses of health education are promoted for those who carry out such work; women’s associations can be subsidized as cultural bodies when they assume initiatives in this field;
− Regional commissions have also been constituted for the family to ensure political representation in the different forms and types of association in which families are organized in relevant sectors of health service, basic welfare and education: the commissions are the consultative organs of the Regional Authority.
184. Finally, how the specific services
to support family relationships are provided by the law should be underlined: a
national
law imposes on the Regions the duty to institute, by law, Family
Counselling Clinics which have, among other things, the function
of giving
psychological and social assistance for the preparation for responsible
motherhood and fatherhood and for facing the problems
of the couple and of the
family, and with respect to the question of children (art. 1, Law No. 405 of 29
July 1975). Nursery schools
and “family dens” encourage the
increased involvement of the parents in developing and consolidating the trust
of the
child, in understanding his or her problems, and in developing the
capacity to find his or her own educational solutions. Family
Centres aim at
supporting the experience of parenthood with opportunities for meetings and
moments of sharing and reflection. Obviously,
the rights of the child are borne
in mind and are made known in these places. Moreover, in recent years, both in
the ambit of Family
Clinics and in Family Centres, family mediation services
have been developing throughout Italy, in order to render separation or
divorce
less conflictual, maintain parental contact with children and uphold joint
responsibility in the decisions to be made towards
the children even when the
marriage no longer exists.
C. Parental responsibilities
(guidelines 65-67)
185. The law,
establishing that the age of majority is fixed at the attainment of the age
of 18 years and that only at the age of
majority does the child
acquire the capacity to fulfil all the acts for which there is no different age
limit stipulated (art. 1
Civil Code), gives both parents, as a general rule, the
powers and duties of care (specified as to maintain, instruct and bring up)
and
the task of representation of the person of the minor child and the
administration of his or her property (arts. 315-329 Civil
Code). In the case
of death or absence or loss of parental authority on the part of both parents
these powers and duties are assigned
to a guardian who exercises the same under
the supervision of the tutelary judge (art. 357 Civil Code).
186. In the
case of disagreement, the issue of the common responsibility of married parents
(who by marriage undertake the obligation
to collaborate in the interests of the
family) and of
unmarried parents who cohabit is remedied through the power attributed to the
father to adopt the urgent provisions which cannot be
deferred in the presence
of a looming danger of serious harm to the child and through the power of both
parents to apply to the judge
in the case of disagreement in the exercise of the
authority.
187. In the maintaining, instructing and bringing up of the
child, the criterion which must guide the parents is the best interests
of the
child, as the general principle of the entire legal system. The interests are
carried out “taking account of the capacity,
the natural inclinations and
aspirations of the child” (art. 147 Civil Code) and, therefore, with
respect to the differences
of the child compared to his or her
parents.
188. The Constitution guarantees that the formation of the
family and the execution of the relative duties, especially with regard to large
families, are
facilitated with economic measures and other provisions (art. 31
Constitution). In this way, the State undertakes to help parents with their
common responsibility to ensure the right to life, to survival and
to the
development of the child in the greatest measure possible.
189. In order
to support parenthood, other than through Family Counselling Clinics, some
innovative services (play centres, centres
for parents and children, Family
Centres) operate in numerous local centres. These tend to be not only centres
for the care and
education of children but also places for socialization and
confrontation for the family and support for parenthood through meetings
and
discussions and for working out answers to problems that the parents experience.
In the Orientation Manual for planning the action
provided for in Law
No. 285/97, the strengthening of social and psychopedagogical services in a
sphere of prevention and problem-solving
for parents is called for, thereby
enhancing the resources of the nuclear family and involving it in methods for
dealing with difficulties.
190. It is also to be noted that in the
scholastic sphere, a Parent Project launched by the Ministry of Education has
been in place
for five years. It aims at using the school as a place
to put the parents in a condition to reflect on their role and on their
relationship
with respect to their children. Such projects involved as of
1996, 451,709 parents of elementary school students, 352,546 middle
school
students and 48,513 secondary school students.
D. Separation from parents
(guidelines 68-72)
191. The Italian
legislation aims to remove or minimize the social-family-based causes which can
involve the separation of a child
from his or her family. A separation of the
child from his or her parents can be due to biological causes (grave illness or
hospitalization),
social causes (emigration, poverty), cultural causes (practice
of requesting the placement of the child in an institution), family
causes
(schism of the parental couple), criminal causes (detention of the parents), and
even for education reasons (boarding school).
The right of the child to be
brought up in his or her own family sphere - and, therefore, not normally to be
separated from the
family for one of these reasons - is affirmed by article 1 of
the Law No. 184 of 4 May 1983, while
article 2 of the same Law provides the possibility of separation with foster
placement in another family or in another community and,
subordinately, with
placement in an institution as absolutely the last resort only when the child is
deprived temporarily of a suitable
family environment. All the social policies
and the judicial guidelines are directed towards impeding or limiting these
separations,
even temporarily.
192. The undertaking to ensure that
children are brought up directly by their parents living with them has been
specifically carried
out in some instances:
− The deinstitutionalization of children. Italy has put into place in the last 10 years a policy aimed, on the one hand, at the closure or the conversion of institutions and, on the other, at an administrative check (carried out by the Regions) and a judicial check (entrusted to the tutelary judge) on the reasons for placing children in institutions and intervening to eliminate them (art. 9, para. 4 and 5, Law No. 184 of 4 May 1983);
− The constitution of a network of foster families and family communities (or communities of a family nature) which can receive a child when the family finds itself in temporary difficulty, assuring him or her a temporary stay in a substitute family and taking care that during this period of separation the relationship between the child and his or her parents is maintained and facilitated with a view to favouring the child’s re-entry into his or her family of origin (art. 5, Law No. 184 of 4 May 1983);
− Assistance to families, giving economic, employment, educational and accommodation support so that they can keep the children, but also discouraging a traditional culture which believes it is normal to place children in institutions or in institutionalized boarding school education;
− The possibility of the presence of one or both parents in hospital when a child is having treatment;
− The possibility that imprisoned mothers keep their children with them up to the age of 3 years and the extension, for short periods, of alternative forms of punishment so that the mother is not always separated from the child.
1. The separation of the child from his or her family
193. When it becomes absolutely impossible for
the child to remain in his or her own family, the law provides, with extreme
caution,
for the separation of the child from the parents or from one of them,
but only if this really coincides with his or her best interests.
Separation
from the parents can happen in three situations:
(a) When the conduct of
one or both parents is seriously harmful (physical, psychological or sexual
abuse) for the child and it is
not possible to remedy the situation with other
measures such as other legal provision or social help (art. 333 Civil
Code);
(b) When the child is in a condition of abandonment because he or
she is without material and moral assistance from the parents and
relatives
(art. 8, Law No. 184 of 4 May 1983) and there is a desire to declare
him or her available for adoption;
(c) When the parents separate and the
child must be placed in the custody of one of them or, in case both are
inadequate, of a third
person such as a foster parent, or in an
educational institution (art. 155, para. 6, Civil Code; art. 6, para. 8,
Law No. 898 of
1 December 1970; art. 317 bis Civil Code).
2. The procedure
194. In all these cases the decision to
separate is made by the judicial authority (the Juvenile Court for children in
harmful situations
or in the state of abandonment, or for children of unmarried
parents; the ordinary court in case of separation or divorce of the
parents) by
means of a procedure in the course of which it is obligatory to hear the parents
who can make use of a technical defence
(obligatory, with the appointment of a
public defender if they do not have their own lawyer, when they oppose a
declaration of adoptability).
195. As for asking for a revision of a
decision to separate the child, an appeal against the decision at first instance
can be brought
in every case, on questions of law, as well as an appeal to the
Italian Supreme Court.
196. After passing through all or some of the
levels of adjudication, the possibility of changing the separation order depends
on
whether the child has been adopted or not. In the case where there has been,
in the meantime, a pre-adoptive foster placement or
an adoption of the child,
given that the adoption has constituted a new birth in a new family, it is no
longer possible to revise
a declaration of adoptability and therefore the child
cannot be returned to his or her former family. In all other cases where the
child has been separated from his or her parents, or from one of them, the same
judge (ordinary court for separation and divorce,
Juvenile Court for harmful
situations or situations involving unmarried parents) can at any time amend the
previous decision and,
therefore, also order the return of the child to his or
her parent or parents from whom he or she has been separated.
3. The hearing of the parents and the child
197. The legislation already guarantees, in the
correct manner, the right of parents to participate in the deliberations of the
judicial
proceedings which may have as their subject the separation of the
child, as well as the right to express their opinions.
198. The problem
of the hearing of the child in proceedings of separation from the parents has,
on the contrary, different legislative
solutions, influenced by concern about
not disturbing the child with a hearing in court and not forcing him or her in
any way to
express a choice against the parents, as such choice would weigh
heavily upon him or her. These are:
(a) In the case of judicial proceedings against the harmful conduct of the
parents, provision is not made for the Juvenile Court
to hear the child (but
this is not excluded, because such hearing can take place as a part of the
“information” to be
taken into consideration), even if in this way
the Court fails to satisfy the need for the child to speak and to be heard
(art. 336
Civil Code);
(b) In proceedings for the separation
of the spouses (either consensual separation or judicial separation which amends
the previous
conditions for the separation), provision is not made for the
ordinary court to hear the child (art. 155 Civil Code and 706-710 Code
of Civil
Procedure);
(c) In proceedings for the dissolution of the marriage, the
presiding judge of the court hears the minor children only if the
conciliation
procedure between the spouses-parents is not successful and
only when “he considers it to be strictly necessary given their
ages” (art. 4, para. 8, Law No. 898 of 1 December
1970);
(d) In proceedings relating to adoptability which take place in
situations of abandonment, the judge must hear the child who has
reached the age
of 12 years and, if appropriate, also younger children (art. 10, para. 5, Law
No. 184 of 4 May 1983);
(e) The bill currently being debated in the
Chamber of Deputies entitled “New Regulations regarding the Separation of
the Spouses
and the Dissolution of Marriage” amends the provisions
referred to in the preceding points, obligatorily including among “the
kinds of evidence, ... except when particular reasons discourage this, the
hearing of the minor child”;
(f) The provisions of the Convention
on the Rights of the Child, article 12, paragraph 2, and article 9,
paragraph 2, are considered
to be directly in force - and therefore should have
amended the ordinary law referred to at points (a), (b) and (c) - but only some
judges have so far “culturally” accepted and followed these
provisions.
199. A general reinterpretation of this law would be
opportune, according to the principle that the child, as soon as he or she is
of
age, must always be heard in judicial proceedings which concern him or her and
at least, if he or she is too young, there should
be an indirect hearing of his
or her needs, delegated to the social services, to guarantee his or her
participation in decisions
affecting him or her. An event such as the
separation of the parents creates for the child less stressful consequences when
it is
explained to him or her calmly, it becomes accessible to his or her
understanding, the reasons are clear to him or her and he or
she has the
possibility to express his or her opinions, his or her wishes and his or her
expectations to the judge.
4. The maintaining of personal relations with
the parents
after separation from them
200. The legislation
upholds the right of the child who is separated from his or her parents, and
finds him- or herself therefore
in a foster home or in a welfare community or a
children’s home, to have direct and personal contact which his or her
parents
in accordance with article 5 of the Law No. 184 of 4 May 1983:
“The person having care of the child must facilitate the relations
of the
child with his or her parents and encourage his or her re-entry into the family
of origin.” This is a general provision,
which may be limited by a
contrary provision and derogation by the judicial authority which, taking
account of the harm which can
come to the child, can regulate or reduce contact
or order that this take place in a protected place or, in serious cases,
prohibit
it either for a certain period or for ever.
201. In the case of
schism of the parental couple, article 6 of Law No. 898
of 1 December 1970, applicable to separation or divorce
and by
analogy also to the relations of the non-custodial parent with the child
born out of wedlock, lays down that the court shall
establish the mode of
exercise by the non-custodial parent of the rights-duties of maintenance,
instruction and upbringing and of
the right to oversee the instruction and
upbringing of the child. Case law provides that the regulation of contact with
the child,
which is qualified as the regulation of access rights, must permit
the significant presence, both in terms of time and of quality,
of the
non-custodial parent, to continue so that he or she can fully exercise his or
her rights-duties towards the child and that
the child is not separated from
either of the parents, even if he or she is living normally with only one of
them.
202. As regards the possibility that the child, separated for
whatever reason, can make known his or her opinion on the manner of
the access
rights of one or both of the parents, we refer to what has been said
previously.
5. Knowledge about the whereabouts of the separated child
203. In the case of separation brought about by
the detention, expulsion or death of one of the parents or the detention,
expulsion
or death of the child, there is no judicial or administrative
limitation on either the relatives or the child knowing the whereabouts
of the
child or the family member, save where the request for information can involve
harmful consequences for the interested persons.
This derives from the public
nature of the process and from the tendency to publish the acts of the public
administration.
204. There are two exceptions to the general rule of
knowing the whereabouts of the child, however separated from his or her
legitimate
or unmarried parents:
− When, in his or her interests, the Juvenile Court orders that the child be placed in a place which must remain unknown in order to impede contact which is held to be harmful with the parents or other family members;
− In the case of foster placement with a view to adoption by a couple who will become the adoptive parents, save where this involves people who are already known to the family of origin of the child.
205. Despite the fact that there is no legislative
provision, case law holds that the adopted child, even after having reached the
age of majority, cannot know the identity of his or her procreators, which is
opposed by the nature of new birth at adoption. There
is much debate on this
point and proposals have been formulated aimed at allowing limited and guided
access on the part of the adopted
person who has reached the age of majority
about the identity of his or her parents.
206. The objective for the
future must be the provision of a wider hearing of the child separated from his
or her family of origin
with regard to decisions affecting him or her.
E. Family reunification for foreign children
207. The entire subject of immigration to Italy of
“foreigners” (as are defined citizens of States which do not belong
to the European Union and stateless persons) has been newly regulated by Law No.
40 of 6 March 1998, which establishes the rights
and duties of the foreigner.
The said Law amends prior legislation and supersedes a large part of the law and
the limiting administrative
procedures which were based on the previous
legislation.
208. In this Law, in article 26, paragraph 3, a fundamental
principle has been laid down which must guide every decision relating
to
administrative action as well as those of judges regarding family reunification
of the child: “In all administrative and
judicial proceedings aimed at
giving the right to a family to be united and regarding children, the best
interests of the child as
a priority shall be taken into consideration, in
conformity with the provisions of article 3, paragraph 1, of the Convention on
the
Rights of the Child.” There is therefore an explicit reference to the
Convention as a criterion in terms of both inspiration
and interpretation for
all proceedings and for the final decisions; this reference is extended to the
entire Convention and, therefore,
includes also the invitation in article 10 to
consider every application brought by the child or by his or her parents
“in
a positive, humane and expeditious manner”.
209. It is
clarified that on the basis of articles 5, 6 and 27 of the said Law No. 40/1998,
foreigners can find themselves legally
in Italy on the basis of:
− A residence card issued for an indefinite period;
− A residence permit for a definite period (up to three months, up to six months, up to nine months, up to one year, up to two years, for a period longer than two years) and which is renewable before the expiry date;
− A family unification permit;
− A visa to enter for reunification with a child.
210. Regusslations stipulated for family unification
or reunification of children is differentiated according to five situations:
that the parent is already in Italy and requests reunification with the child;
that the foreign child asks to enter Italy to stay
with his or her parents; that
it is the unmarried parent who wants to join the child who has regular
permission to stay in Italy;
that the foreign parent or child wants to leave
Italy for reunification of the family; that it is a mixed family of Italian
citizens
or EU citizens with a foreign spouse and/or children, either natural or
adopted.
211. The first situation is defined as the most important. Italy has
recently become a country of immigration and, in particular,
people arrive who
are alone and in search of work who, for the initial period, leave their
families in their country of origin, periodically
making visits to them and
sending them money; if they find the situation in any way positive, there is the
problem of the reunification
of the family, i.e. having the spouse and children
join them (as, for example, happens with the two principal communities of
immigrants,
from Morocco and from Albania).
212. When, however, an adult
foreigner in Italy wants to be reunited in a stable way with his or her
children, Law No. 40/1998 provides
for this possibility:
(a) The
foreigner regularly settled in Italy for more than five years and who has
obtained a residence card for an indeterminate
period can request that residence
be extended to the spouse and children under 18 who live with them (art. 7,
para. 1 and art. 29,
paras. 1 and 2, Law No. 40/1998), securing for
him- or herself, in such a way, the recognized and affirmed right to
maintain or to
reacquire family reunification (art. 26, para. 1, Law No.
40/1998). The residence card can be given individually to any minor child
of
that parent starting from 14 years of age. This means that the foreign parent
who is settled in Italy legally for more than five
years is assured an
indefinite stay and complete stability for the entire family unit, not only for
the child born in Italy of less
than five years of age but also for the spouse
and the minor child come to join him or her in Italy from overseas for less than
five
years - and perhaps for a very short time - or who intend to join him
or her;
(b) The same right to maintain or reacquire family unity is
recognized, in certain conditions, for foreigners who hold a residence
permit of
a duration of not less than a year, issued for employment or self-employment or
for asylum-seeking, for educational reasons,
or for religious motives (art.
26, para. 1, Law No. 40/1998). In these cases a residence permit is granted for
family reunification
for a maximum duration of two years and is renewable
(art. 5, para. 3 (d) and art. 29 para. 1, Law No. 40/1998). Moreover,
on reaching
14 years, the residence permit for family motives is granted to the
minor individually with validity up until he or she reaches the
age of majority
(art. 29, para. 2, Law No. 40/1998);
(c) The foreigner who arrives or
who finds him- or herself in Italy legally but outside these two situations can
bring his or her
family subsequently to effect the reunification if he or she
has accommodation and income available and if he or she has an employment
contract for a duration of not less than a year or an autonomous employment
(non-occasional) or he or she comes to Italy for motives
of study or religion
(art. 27, para. 4, Law No. 40/1998);
(d) However, whosoever falls
outside these situations cannot obtain family reunification by bringing the
children to Italy (for example,
the foreign worker who finds him-
or herself in Italy with a seasonal employment residence permit of a
duration of up to nine months
or the foreigner staying in Italy
illegally).
213. The second case is that of the foreign minor child who
asks to enter Italy or to remain there to stay with his or her parent
who are
already there. For the child who asks to enter Italy, there is no specific,
explicit provision. The general provisions
in force grant entrance to any
foreigner in possession of a valid passport and an entrance visa, but it is
obvious that the Italian
Consular authorities, in the evaluation of whether
to grant an entrance visa to a child for the purposes of family reunification,
must certainly consider the application “in a positive, humane and
expeditious manner” according to article 10 of the
Convention on the
Rights of the Child and take into consideration “the best interest of the
child as a priority” according
to the dictates of article 27, paragraph 3,
Law No. 40/1998.
214. If, however, a child finds him- or herself already
illegally in Italy, and there is no possibility to legalize the situation
related to the presence of a parent who is there legally, Law No. 40/1998,
with a principle of great civility, gives the Juvenile
Court the power to
evaluate whether to order, on the application of the Chief of Police, his or her
expulsion (art. 29, para. 4,
Law No. 40/1998) or to order protective
measures for him or her, foster placement, placement in a welfare institute or
adoption (art.
29, paras. 1 and 2, Law No. 40/1998 and art. 37 of Law No. 184 of
4 May 1983), which would involve his or her temporary or definitive
legalization. Article 17, paragraph 2, Law No. 40/1998 allows only the Minister
for the Interior, together with the Juvenile Court,
and only for motives of
public order and security of the State, to order the expulsion of foreign
children under 18 years of age
but excludes their expulsion ordered by the
Prefect or set down by the judicial authority in the name of administrative
sanctions
or security measures, save the right of the child to follow the parent
or foster parent who has been expelled. On the basis of this
provision, the
Italian State undertakes to take care of illegal immigrant children who find
themselves even de facto in its territory,
entrusting all evaluation to a
specialized court for the protection of children. Moreover, it safeguards the
right to family unity
in that it mentions specifically the right of the child -
who finds him- or herself in Italy in a legal or illegal situation - to
follow
the parent or foster parent who has been expelled.
215. This favor
minoris which pervades the entire Italian legal system is confirmed by
another specific provision for legalizing the situation on reaching
of the age
of majority (art. 30, Law No. 40/1998) and for the provision of the constitution
of a Committee for the Protection of
Foreign Children (art. 31 Law No. 40/1998)
whose task it is to bring together and supervise projects for the reception of
children,
to watch over the modes of residence of foreign children and to
coordinate the activities of the administrations involved.
216. The third
case is that in which the foreign natural parents want to join their child who
is resident in Italy. On this point,
the law sufficiently protects the
interests of the child: according to article 27, paragraph 6, Law No. 40/1998,
the entrance of
the natural parent is allowed for reunification with the child
who is in Italy legally on the condition that later, within a year
of their
entrance into Italy, the said parent demonstrates that he or she has acquired
the necessities of accommodation and an income.
If, however, these conditions
are not satisfied, or because the child finds him- or herself in Italy
illegally, or because the reunion
is in regard to a relative apart from the
natural parent, or because the requisites of law relating to accommodation or
income have
not been satisfied, article 29, paragraph 3, of Law No. 40/1998
provides that the Juvenile Court, “for serious motives in connection
with
the psycho-physical development of the child and taking account of the age and
the condition of health of the child who finds
him- or herself in Italy”
may authorize, outside the other provisions of law, the entrance or the
settlement of a relative,
for a determinate period of time.
217. In a general way, there are no obstacles to the parent or minor child,
whether Italian or foreign, leaving Italy for family reunification
abroad, the
only limitations being those which aim only at protecting the best
interests of the child. Therefore, article 3 (a),
of Law No. 118 of 21
November 1967 provides, for the minor child who does not have the consent of
those who exercise parental authority
over him or her, that the tutelary judge
may authorize him or her to obtain a passport and go abroad. In the case of
opposition
by the parents - one of whom refuses to give consent, for example,
because the parents live apart and one has moved abroad - it is,
therefore, up
to a judge to evaluate case by case whether to grant consent to the child,
evaluating his or her interests in being
reunited with the family of the parent
who lives abroad. Moreover, it is recalled that article 17, paragraph 2, of Law
No. 10/1998
gives foreign children under the age of 18 years the right to follow
the parent or guardian who has been expelled abroad, safeguarding
in this way
the family unit.
218. The last case is that of so-called mixed families,
that is, an Italian or EU citizen with a foreign spouse and/or children, the
latter natural or adopted. For minor children, there are no obstacles to
reunification. In fact - independently of the period of
residence in Italy -
the cohabiting foreign spouse and minor children of an Italian or EU citizen can
request and obtain, according
to the case, a residence card for an
indefinite period or a “unification permit” (art. 7, para. 2, art.
26, para. 2,
and art. 27, para. 5, Law No. 40/1998). Therefore, the principle
of family unity and the right to reunite the family in Italy are
fully
recognized - and further confirmed by Decree of the President of the Republic
No. 1656 of 30 December 1965 - for mixed families.
A limitation to the entrance
into Italy is the adoption of a foreign child by Italian citizens abroad in
circumvention of the procedure
for prior evaluation of the requisites of
capacity and age; the adoption is therefore not recognized in Italy, under
article 31 of
Law No. 184 of 4 May 1983 on adoption.
219. To
complete the answer to the question relative to reunification of families, the
following statistics are given:
Table 4
Foreign children (of non-European Union countries) to whom
entrance visas
for reasons of family reunification have been granted
<14 years
|
14-17 years
|
Total
|
|
1990
|
655
|
306
|
961
|
1991
|
1 868
|
578
|
2 446
|
1992
|
2 338
|
565
|
2 903
|
1993
|
5 344
|
1 214
|
6 558
|
1994
|
4 235
|
1 170
|
5 405
|
Source: Ministry of the Interior.
F. Illicit transfer and non-return
1. Voluntary transfers
220. The prevention of and the fight against
illicit transfers of children abroad has been provided for in Law No. 40/1998
(Regulation
of Immigration and Rules on the Condition of the Foreigner), in
particular under article 10, which makes explicit reference to children.
Moreover, article 31 institutes a specific Committee for the Protection of
Foreign Children, with the tasks of coordination at a
national level and of
supervising the stay of foreign children temporarily admitted to Italy for
reasons of solidarity (who in 1997
numbered about 50,000). The Committee, which
has been active for some years, monitors their entrance and re-entrance, which
can
also be extended to residence.
221. Under Law No. 396 of 30 June
1975, Italy ratified the European Convention on the Repatriation of Children
signed at The Hague
on 28 May 1970, which did not come into force because it was
not ratified by other countries.
222. As far as the foreign
unaccompanied child is concerned, even if he or she is legally treated like an
unaccompanied Italian child,
the system of assistance and monitoring of the real
situation remains full of lacunae. Moreover, his or her position is not dealt
with in a homogenous way in the various Italian Regions. The criteria and
solutions vary according to the discretion of the Juvenile
Courts and the judges
themselves (there are those who believe that repatriation and reinsertion into
the family are indispensable
and those who view this solution as the last
resort). Some regions provide for the care and protection of the minor over 14
years
of age. It is not clear which are the competent structures to whom the
foreign unaccompanied child must refer. A coordinating structure
which
establishes the minimum standards for a uniform policy in favour of the child is
lacking.
223. Also, taking account of the European Resolution on
Unaccompanied Minors who are Nationals of Third Countries (27 June 1997),
the
Government is providing for a specific agreement with the Albanian Government,
within measures of support in Albania promoted
by the Ministry for Social
Solidarity and by way of a specific convention with International Social
Services.
2. International child abduction
224. The increase in marriages between people
of different countries and the growth of family divisions, often involving
bitter conflicts,
has increased the very disturbing phenomenon of international
abduction of children. To fight against this phenomenon, Italy signed
the
Convention on the Civil Aspects of International Child Abduction, open to
signature at The Hague on 25 October 1980, and ratified
the same by Law No.
64 of 15 January 1994. The Convention of Luxembourg of 20 May 1980 on the
Recognition and Enforcement of Decisions
concerning Custody of Children and the
Restoration of Custody of Children has also been implemented in Italian law.
In enforcing
the aforesaid Conventions, the Central Authority on Conventions was
instituted and set up in the Central Office of Juvenile Justice
at the Ministry
of Justice.
225. The aforesaid Italian Central Authority in the period from
1995 to June 1998 dealt with the following number of proceedings:
− 364 regarding children involved in proceedings relative to the implementation of the Hague Convention of 1980;
− 48 regarding children involved in proceedings relative to the Convention of Luxembourg of 1980;
− 27 regarding children involved in proceedings relative to the Hague Convention of 5 October 1961 concerning the jurisdiction of authority and the law applicable to the question of protection of children.
226. It must be noted that, while in all the cases
in which the Italian Central Authority has acted on the basis of an application
coming from abroad, in no small number of cases has it been able to guarantee
the repatriation of the child within a very short time.
The same cannot be said
for cases in which a request for repatriation was made by the Italian Central
Authority to a foreign Central
Authority, which has often assisted in a kind of
defence to the bitter end of its nationals, assuring them of a sort of impunity.
Moreover, obstacles to the enforcement of the right of the child in this sector
derive also from the provision that the procedures
may be initiated only with
obligatory legal assistance at costs often unaffordable for most people. The
regular procedures of the
Conventions have not yet been demonstrated to be
completely adequate instruments for the resolution of very complex conflicts
which
would require the sharing, on the part of the States, of more general and
objective principles and criteria really aimed at the full
legal protection for
the child involved.
G. Recovery of maintenance for the child
(guideline
79)
227. The problem
regards the fulfilment of that which the Italian Constitution (art. 32) defines
as the rights-duties of the parents for the maintenance of the child. The
parents must provide directly for the
maintenance, instruction and upbringing of
the child (art. 147, Civil Code) in proportion to their means and according to
their capacity
in relation to professional or domestic work. If they do not
have sufficient means, the other legitimate or natural ascendants are
held
responsible for furnishing the parents with the necessary means, up to the point
where they can fulfil their duties in respect
to the child (art. 148, para. 1,
Civil Code). This obligation of the parents is also extended to the child born
out of wedlock who
is acknowledged by the parents (art. 261, Civil Code) and
concerns also the parents for whom it is impossible to acknowledge their
offspring because it is prohibited by law, as in the case of children procreated
by incest (art. 279, Civil Code).
228. Under the profile of the
affirmation of the right of the child to maintenance, the Italian legislation
assures a substantially
complete protection. The exception is the child born
out of wedlock, who can be but has not been acknowledged and therefore is not
registered at birth nor afterwards as a child of his/her parent(s), because in
this case only acknowledgement effected by the parent
or by judicial declaration
of paternity or maternity bestows the status of being someone’s child and
incurs the resulting obligation
of maintenance, moreover, with retroactive
effect to the moment of birth. This concerns more theoretical than real cases
in that
the child who is not acknowledged by either of the parents (unless he or
she has a very serious disability) is given up for adoption.
229. The
instruments for determining the measure in which the parents or other persons
bearing the obligation (the ascendants) are
held to satisfy their quota of
maintenance, or support payment, for the child and to force them to contribute
in such measure, are:
− An order of the presiding judge of the court, issued with a summary procedure of assessment and very simplified form of decree, aimed at the person in breach, to pay a proportion of his/her income to the other spouse or to whoever bears the expenses of the child (art. 148, para. 2, Civil Code). This order can be issued whether the married parents live together or whether they are in fact separated or whether - according to the most recent case law - they are unmarried natural parents, independently of the fact that they may live together or do not live together any more or have never lived together. Moreover, this order can be aimed either at the parents or the legitimate or natural ascendants held to be liable to maintain the child;
− The provision of the judge who, in the case of separation or divorce of the spouses, establishes the measure and the mode in which the non-custodial spouse must contribute to the maintenance, instruction and upbringing of the child (art. 155, Civil Code);
− A decree in terms of contentious ordinary proceedings which has the maintenance as its object.
230. On the other hand, in the
case where the person who bears the obligation fails to comply with it, the
legislative system is still
objectively deficient in the scope of assuring
recovery of this support payment or maintenance cheque for the child. Other
than
indirect sanctions, which have been shown to be of little effect (criminal
proceeding for violation of the obligation of family assistance,
loss of
parental authority by the parent at fault or even adoption of the child who is
without material and moral assistance), the
principal ways to ensure the
recovery of the maintenance are constituted by the resort to mediation by the
tutelary judge. The judge
must oversee compliance with the conditions
established for the exercise of parental authority, among which those relative
to maintenance,
or the initiation, by the person who has custody of the child,
of the expensive, long and often thankless process of moveable or
immovable
execution. In fact, there are numerous situations in which the payment of the
support allowance is evaded and the right
of the child to a normal upbringing is
sacrificed.
231. In the face of this situation, a branch of Parliament,
the Chamber of Deputies, is moving towards the approval of a bill entitled
“New Regulations regarding the Separation of the Spouses and the
Dissolution of Marriage”. This provides, among other
things, a system of
guarantees for periodic support credits (registration of judicial mortgages,
obligations on third parties who
pay a salary to the non-paying parent,
extension of criminal liability), but above all it institutes, at the
Bank of Italy, a “maintenance fund” with the aim of assuring the
payments and the maintenance cheques established by the
judge in favour of the
party with the right, a fund into which the persons held liable have to make
payment and which has a right
of recovery against them in case of
breach.
232. So far as the international profile on this question is
concerned, Italy, with Law No. 918 of 4 August 1960, ratified both the
Hague
Convention of 24 October 1956 on the Law Applicable to Maintenance Obligations
towards Children and the Hague Convention of
15 December 1958 on the
Recognition and Enforcement of Decisions relating to Maintenance Obligations;
and subsequently with Law No.
745 of 24 October 1980 which implemented the
Convention on the Law Applicable to Maintenance Obligations of the Hague
of 2 October
1973. Protection aimed at the recovery of support payments
ordered by a foreign judicial authority is guaranteed when the parent
in breach
is in Italy or has goods or income in Italy. The Italian legal system provides
that when the parent held to pay maintenance
is in breach, the sums due are
taken directly from the salary by way of withholding it at the source.
In Italy, violation of the
obligations of family assistance constitute a
crime (art. 570, Criminal Code).
233. In order to recover the
child’s support payments from his or her parents or other persons having
a financial responsibility
towards the child, in their own country or abroad,
normal regulations relating to forced execution by executive order are in force,
given that the maintenance payment is, in any case, held to be privileged with
respect to others.
234. On the international plane, it is noted that
Italy has ratified, under Law No. 524 of 23 December 1992, the
Convention relating
to the simplification of procedures for the recovery of
maintenance payments, signed at Rome on 6 November 1990. That convention
provides for the constitution of a Central Authority within the Central Office
of Juvenile Justice. The Authority favours the collaboration
between competent
authorities of the respective States, with the aim of facilitating the recovery
of maintenance payments. This
takes the form of looking for the debtor and his
or her possessions, obtaining the necessary information, declaring the order
applicable,
facilitating the transfer of the maintenance obligation to the
creditor, ensuring that in the case of absence of payment to the creditor
of the
due payment, all the executive instruments are put into effect. Moreover, it
informs the Central Authority of the foreign
State of the measures taken and
their results. As of today, the Convention has not entered into force, because
article 9 provides
for the deposit of the instruments of ratification, accession
and approval by all the States parties, while it appears that only
Italy and the
United Kingdom have done so.
235. There are four conventions which
have been drafted by the Conference on International Private Law in The
Hague: two concern
the law applicable to maintenance obligations (The Hague, 24
October 1956, ratified on 4 March 1960 by Law No. 913 and 2 October
1973, ratified on 24 October 1980 by Law No. 745) and two conventions on
the recognition of foreign decrees in respect of maintenance
obligations towards children (The Hague, 14 April 1958,
ratified by Law No. 388 of 4 August 1960 and 2 October 1973, ratified by
Law No.
745 of 24 October 1980).
236. The most important is the Convention on the Recovery of Maintenance
Abroad (New York, 24 June 1956, ratified by Italy under Law
No. 338 of 23
March 1958). This gives a State authority, within which the procedure must
be carried out, the task of facilitating
the taking of maintenance actions and
the execution of the relevant decrees concerning maintenance payments in respect
of a child
regarding a parent domiciled abroad.
H. Children deprived of their family
environment
(guidelines 80-82)
237. Law No. 184 of 4
May 1983 is concerned specifically with guaranteeing special protection and
assistance to children who are temporarily
or permanently deprived of the family
environment or who cannot be left in such environment in their best interests.
This Law regulates
the adoption and foster placement of children and affirms
with force the right of every boy and girl to grow up in a family, obliging
State officials not to resort, except in extreme cases, to the placement of the
child in a welfare or educational institution, indicating
as a preferential
solution foster placement with another family, possibly with children, or with a
single person or a family-type
community.
238. It is to be emphasized,
however, that the modern welfare and education institutions are very different
from those of the past.
The big totalitarian institution in which the
socialization of the child was rendered difficult given the lack of contact with
the
outside world (scholastic education also took place inside the institution)
are now only memories of past times.
239. The law has come, therefore, to
codify a consolidated orientation of social policy, already present in the
Italian Constitution: the family constitutes for the individual in his or her
formative years a fundamental right of the child because it is only in
a family
environment that he or she has the possibility to develop both his or her own
individual and social personality. And it
is significant that the policy of
deinstitutionalization practised in recent years has brought about a drastic
contraction of the
number of children who live outside their own family: the
number of children living in residential socio-educational structures
has been
reduced from about 300,000 in the 1950s to about 150,000 in 1971 to 15,000
reported now (1998) by specific research carried
out by the National
Documentation and Analysis Centre for Children and Adolescents. While such
research has filled a long-standing
void of information on children resident in
institutions, the difficulty of obtaining certain and disaggregated data on
children
in foster homes still remains but is destined to disappear in the near
future given that the National Centre is carrying out research
on this
question which will be concluded by the end of 1999.
240. The first
data from the research on children in residential structures testify to sharp
reductions in the number of boys and
girls outside the family and in large
structures. Notwithstanding these results, the process of
deinstitutionalization still presents
some difficulties in the regions of the
south of the county as appears evident from the tables which follow:
Table 5
Number of socio-educational residential structures and the
number of children
resident as at 30 June 1998 according to Region
No. structures
|
No. children
|
|
Piedmont
|
149
|
1 011
|
Valle d’Aosta
|
2
|
11
|
Lombardy
|
288
|
1 919
|
Trentino
|
39
|
155
|
Bolzano
|
13
|
98
|
Veneto
|
159
|
840
|
Friuli - Venezia Giulia
|
29
|
240
|
Liguria
|
69
|
551
|
Emilia - Romagna
|
120
|
571
|
Tuscany
|
76
|
603
|
Umbria
|
16
|
204
|
Marche
|
22
|
115
|
Lazio
|
152
|
1 261
|
Abruzzo
|
12
|
168
|
Molise
|
11
|
85
|
Campania
|
133
|
1 869
|
Apulia
|
128
|
1 174
|
Basilicata
|
24
|
106
|
Calabria
|
121
|
1 386
|
Sicily
|
195
|
2 293
|
Sardinia
|
44
|
285
|
ITALY
|
1 802
|
14 945
|
Source: National Documentation and Analysis Centre for
Children
and Adolescents.
Table 6
Socio-educational residential structures according to the
number
of children resident as at 30 June 1998
|
||||||
|
North-west
|
North-east
|
Centre
|
South
|
Islands
|
Total
|
No. resident children as at 30 June 1998*
|
15
|
20
|
15
|
19
|
20
|
89
|
Up to 3 children
|
71
|
118
|
52
|
58
|
25
|
324
|
4-5 children
|
110
|
84
|
54
|
65
|
22
|
334
|
6-10 children
|
244
|
106
|
86
|
136
|
89
|
661
|
11-15 children
|
41
|
14
|
28
|
60
|
33
|
176
|
16-20 children
|
15
|
6
|
10
|
22
|
22
|
75
|
21-50 children
|
11
|
2
|
17
|
67
|
26
|
133
|
50 or more children
|
1
|
|
4
|
2
|
2
|
9
|
Total
|
508
|
360
|
266
|
429
|
239
|
1 802
|
Source: See table 5.
* Structure with availability and
authorization to receive children which as of 30 June 1998 had no
resident children.
1. Foster placement
241. A great deal of work has been carried out
in recent years to increment the foster placement of children who cannot, for
temporary
reasons, stay within their own family. If, on the other hand, the
situation of absolute absence of family is not temporary and resolvable
but
definitive, the legal system provides that the road to adoption should
decisively be embarked upon as the only route which allows
the child deprived of
his or her own family to find a caring family as a substitute.
242. The
local Social Services and the Juvenile Court have jurisdiction to evaluate the
conditions of the child and, eventually, to
make substitute provisions after
having verified the non-efficacy of adequate support measures for the family of
origin within which
to guarantee the maintenance of the child. Where possible,
and on the basis of a programme which also provides for the recovery
of the
family of origin by way of surmounting the difficulties which have made the
separation of the child from his or her family
environment necessary, the aim is
to assist his or her placement with a temporary substitute
family.
243. There are no precise data on the number of foster placements
made. Research by the National Documentation Centre is being planned
with the
aim of fully analysing this phenomenon, not only at the quantitative but
principally on the qualitative level (the situation
which has brought about the
separation and the foster placement, the time scale, the re-entry into the
family, and any other provisions
that have been made). Nevertheless, some data
can be inferred from the judicial statistics: the tutelary judge, who must
enforce
the provisions relating to foster placement adopted by the Social
Services (when the natural parents consent to foster placement),
in 1994 made
1,626 orders on the subject and in 1995, 1,043; the orders for foster placement
made by the Juvenile Court (when the
parents do not consent) were, in the same
years, 754 and 825 respectively. From more recent data of the Ministry of
Justice (1997)
it appears that the Juvenile Courts have ordered foster placement
in 922 cases.
244. It is necessary to recognize that in effect, 15 years
after the enactment of the law, foster placement is not yet a widespread
practice throughout Italy as the numbers are inferior to those for children
placed in communities and institutions. In any case,
a considerable effort is
being made to extend this legal instrument even further to provide for
situations of temporary difficulty
of the child and his or her
family.
245. In the course of 1997, the Department of Social Affairs,
with the involvement of many associations of the service sector, organized
a
series of regional conferences and the first National Conference on Foster Care
(in Reggio Calabria on 13 and 14 December 1997).
At the regional conferences,
more than 3,000 people participated (officials of the public and private welfare
system, voluntary
workers, administrators, and foster families) and at the
National Conference, nearly 800 people took part. Such conferences constitute
an occasion for making comparisons, for carrying out verifications, for
promoting and relaunching this instrument of assistance to
children in
difficulty and their families of origin.
246. National coordination of
public officials who are involved with foster placement has been constituted in
order to enable Law
No. 184/83 to be enforced properly and consistently
throughout Italy.
247. There has been an attempt to differentiate the
ways in which foster placement is carried out in order to respond adequately to
the different needs of children in difficulty in their family of origin:
consensual foster placement/judicial foster placement;
foster placement that is
residential or daily or limited to weekends; foster placement for immediate
placement (from one day to three
months)/short term/programmed (not short but of
a fixed term)/prolonged (possibly also over the age of 18) foster
placement.
248. At both national and local levels, various awareness
campaigns on foster placement and on training foster families and bringing
them
up to date have been carried out. In this field, collaboration between workers
in the public and private sectors has been a
positive experience.
2. Placement in communities
249. One of the ways of overcoming the logic of
institutionalization is represented by the communities for children which have
developed
in Italy starting from the 1970s.
250. The judicial system has
not defined the different types of community and has not, in a precise way,
defined their possible characteristics.
Only Law No. 272/89 stipulates the
requirements for the type of community with which the Ministry of Justice may
contract for applying
criminal measures that are an alternative to detention.
They must be family-type organizations, there may be no children undergoing
criminal proceedings, the maximum capacity is 10 children, they must carry out
personal educational projects in a predominately educational
climate,
professional workers must be present; it must collaborate with interested
institutions and use local resources. Not even
the regional legislation helps
to codify, in a homogenous way, the structure of the communities: they refer to
“family homes”
and “family-type communities” and
“residential communities” of “apartment groups” and
“family
groups”. Also, the standards proposed are very different
from Region to Region: in some cases, there is a limit of 8 children,
in others
10, in others 15. It is a paradox that, while in many laws on the protection of
children reference is made to communities
as instruments for overcoming the
situations of families in difficulty, the legal system has not felt the need to
define their characteristics
and specifications.
251. A concept which is
more or less shared provides for communities as structures which:
− Accommodate not more than 10 children;
− Use an accommodation structure of the civil habitation kind with spaces which protect the privacy of the inmates;
− Aim to overcome situations of difficulty of the child through educational projects;
− Employ social workers who have had sufficient training;
− So far as their educational projects and methodologies of work are concerned, are open to other local resources.
252. According
to data relating to 1996, there are 747 communities operating in Italy and they
assist, according to reliable estimates,
5,500 children: of these 5 per cent
fall into of the age range 0-2 years; 4 per cent are 3-5 years; 34 per cent 6-11
years and 57
per cent 12-18 years.
253. In the year 1997, the Juvenile
Court made 1,293 decrees placing children in residential communities or
institutions.
3. Monitoring of these cases
(guideline 80)
254. The monitoring
of the situation of children and adolescents for whom a form of substitute
protection is provided is guaranteed,
by legislative provision, by the tutelary
judges and by the Regions. The law establishes that a minor of more than 12
years of age
must be heard with respect to his or her placement resulting from a
possible separation from the family of origin. In effect, the
operative
practices in many areas of the country tend to involve the child even of a
younger age, complying with the general principles
of the Convention, at least
in relation to his or her best interests and with respect for his or her
opinions.
255. Even if a specific survey has not been made, there appear
to be very few cases in which, in deciding between the different solutions
to
adopt in response to the necessity of the separation from the family unit,
account is not taken of the need for continuity in
the education of the child.
In finding adequate responses to individual differences, there is a growing
awareness of the need to
take account also of the ethnic, religious, cultural
and linguistic origins of the child.
256. As we have already said,
currently, at a national level, we do not have data and information on the
children involved in the
measures in question: disaggregated information by
age, sex, ethnic (social and national), religious, cultural and linguistic
origins
is gathered by some Regions which have a register of children placed in
residential care and foster homes.
4. Periodic review of placement
(guidelines 8687)
257. The measures
adopted to recognize the right of the child who has been placed by the competent
authorities in a residential institution
or to carry out a periodic review of
the ways and means of placement of the child in public or private institutions
or by social
services are of a legislative, administrative and judicial
nature.
258. On the legislative side, the sources are Law No. 184/83
combined with Law No. 798/75, which provide for the competence of the
Regions in overseeing the institutions and residential homes. Many of the
Italian Regions have legislated on a system of review
and control of placement
of these children, indicating structural, functional and personnel standards,
and specifying the procedures
for monitoring the treatment of the child from the
moment of reception to when they leave. Given that national guidelines are not
in existence (however, they are provided, at least as an objective, by the
Government’s Plan of Action for Children), it is
difficult to infer
unitary trends from the different approaches of the various
Regions.
259. On the administrative side, in anticipation of the
guidelines just referred to, it is the Regions which regulate, by deliberations
and implementation circulars, the legislative directives at the national and
regional levels. The municipalities and the ASLs (local
health authorities),
according to their diverse competencies, undertake to monitor the existence and
the continuity of the requirements
set out in the regional legislation (of a
structural, organizational, and procedural kind) and to provide adequate
regulations for
its implementation (for example, the Regulations on Foster
Placement).
260. The case law of the Juvenile Court, of the Court of
Appeal and, for some decisions, the Italian Supreme Court represents a
significant
body of law to be referred to in monitoring the system of placement
of children separated from their families, upholding the principles
of
nondiscrimination, the best interests of children and respect for their
views.
261. The principal authorities considered competent in this
undertaking are the tutelary judges and the Social Services of the regional
administrations. The frequency of the checks on placement and of the treatment
given in residential structures must be carried out
in accordance with the law
by way of a report which the residential placement services send every six
months to the tutelary judge
competent for that particular area. In some
Regions, there is a provision to substitute this report with the compilation of
a questionnaire
structured and articulated for every child placed in care in the
sixmonth period preceding the report. To encourage coresponsibility
between
various bodies in monitoring the conditions of the child placed in residential
care, these forms are sent, for their information,
to the local and regional
Social Services and to the Juvenile Court.
262. The circumstances taken
into consideration in deciding on the arrangements for placing a child in a
residential structure for
his or her care, protection and treatment are defined
within the regional sphere. In general, autonomous administrative provisions
are taken, aimed at setting up integrated services, both in the sense of the
presence of different professional personnel and in
the prospective of a
coordinated action between the operative units of different institutions
(Municipalities, Local Health Authorities,
Juvenile Courts, the Service Sector,
etc.). Priority, in general, is given to: the various problems of the family
of origin; the
immediacy of the risk of abandonment, violence and, in general,
psychological, social, emotional or educational harm to the child
due to the
inadequacy of the family of origin; the need to encourage the very prompt return
of the child to the family of origin
combined with the evaluation of the best
opportunities to maintain contact and relations with the family during the
period of separation
(e.g. timing and modes of visits, distance of the
reception structure).
5. Difficulties encountered and preestablished
objectives
(guidelines 8287)
263. The progress
made in Italy consists in a progressive and constant diminution of resort to
placing children in residential children’s
homes, with a differentiation,
more marked in the regions of the North of Italy, favouring communityfamily type
home with respect
to other institutions. Significant difficulties still
exist:
(a) A reluctance still exists on the part of some administrators
and professionals to make use of the institution of foster placement,
whereby
Law No. 184/83 has not been implemented in a wide and adequate manner
throughout Italy. There are still many Regions and
very many Municipalities
which have not set up the procedures and the services to comply with the
priorities of the legislation;
(b) Many institutions remain reluctant to
put into effect a real process of conversion to smaller and betterequipped
structures for
residential care to respond adequately to the psychological,
educational, emotional and relational needs of the children placed
there;
(c) There is a prevalence of nonconsensual placements,
i.e. ordered by the Juvenile Court for children in harmful situations,
with
respect to consensual placements, i.e. recommended by the Social
Services, and an indication that foster placement is conceived,
in too many
cases, as a last resort, often resorted to after the failure of the family and
of institutions. Too often foster placement
ordered by the Juvenile Courts is
seen as a punitive measure rather than a tool for
assistance;
(d) Difficulties exist on the part of the Juvenile Courts in
intervening in a prompt and timely manner in respect of the needs and
expectations of the child. The tutelary judges, who deal with consensual foster
placement, may fail to take adequate action, for
lack of time and preparation,
with respect to the functions of vigilance and control of the children’s
institutions under their
jurisdiction. These functions too often are only
formal and not substantial.
264. The objectives which are intended to be
fulfilled can be summarized in this way:
− Improvement of Law No. 184/83 also by way of the constitution of a special commission as part of the yettobeconstituted National Observatory on the conditions of children;
− On the administrative side, the Plan of Action provides for the monitoring and strengthening of the policy of deinstitutionalization, support for families in difficulty, promotion of foster placement and improvement of the condition of the foreign child. The institutions involved will be various at the central and peripheral levels, with an important role in the structure of coordination (StateRegions Conference and StateCity Conference);
− The implementation of Law No. 285/97, which came into force in the last months of 1998, offers a notable opportunity to increase the quality and the spread of action for the protection of children separated from their families of origin. Specific intervention is provided for aimed at fighting against institutionalization, promoting foster placement (with particular attention to the integration between the various services and institutional parties involved), and supporting foster families and the families of origin;
− The proposed national law on the institution of a public guardian for the child aims at covering lacunae in the organization and coordination of the action for the protection of children placed in residential children’s homes, most of all in respect of children who come from situations of abandonment, disabled children, refugees and asylumseekers, including those who are unaccompanied.
265. Carrying out research on children
separated from their families is enabling us not only to finally learn the real
magnitude of
the phenomenon, but also to identify the causes of the separation
and the possibility of the rehabilitation of the family and of
reentry therein
and, therefore, to identify the most appropriate strategies for reducing cases
of separation.
I. Adoption
(guidelines 8385)
266. Adoption was
reformed in Italy by Law No. 184 of 4 May 1983. Its objective is to give a
family to a child who is lacking one
and not to give a child to a family without
children. Adoption must not be a remedy for sterility but a remedy for
abandonment,
and therefore must always be done in the best interests of the
child. The law recognizes that the child has the right to grow up
in the sphere
of his or her own family, which must be helped to carry out its tasks. When
there is no family or it is no longer
interested in the child, there is a state
of abandonment. Only the child declared to be in a state of abandonment can be
adopted.
267. The jurisdiction for the procedure of adoption is that of
the Juvenile Court, which is a specialized judicial organ composed
of
professional judges and experts. All the provisions of the Juvenile Court,
including the decree of adoption, can be appealed
against to the Court of
Appeal.
1. National adoption
268. The Juvenile Court ascertains the state of
abandonment of the child, chooses from among the people who wish to adopt those
held
most suitable for the child, and pronounces on the adoption after a trial
period (preadoptive foster placement) of one year.
269. The parents of
the child must be heard by the judge, who can suspend the finding of abandonment
and put them to the test with
measures to assist and supervise them through the
social services. If the measures are ineffective or are held to be useless, the
Court declares the state of adoptability. The parents can oppose this,
presenting an appeal against the decision of the Court.
If the decision is
upheld, their consent for adoption is not required.
270. Those who wish
to adopt must apply to the Juvenile Court. The application is not nominative
and the child cannot be chosen.
The Court orders a thorough social
investigation to ascertain suitability for adoption and chooses from among those
who have submitted
applications those who are most capable of corresponding to
the needs of the child.
271. The child who has reached the age of
12 years must be heard by the judge and, if opportune, a child of a younger
age can be heard.
The child who has reached the age of 14 years must give
his or her consent to the Court.
272. The period of preadoptive foster
placement is monitored by the social services who periodically refer to the
Court. The adoption
is decreed at the end of the preadoptive foster placement
period and it is irrevocable.
273. The adopted child becomes the
legitimate child of the adoptive parents and takes and passes on their surname.
Relations with
the family of origin cease. The adopted child does not have the
right to know his or her biological parents. He or she has a right,
on the
other hand, not to be contacted by them; therefore, registrars and public
officials must keep the details of the adoption
secret.
2. Intercountry adoption
274. Italian law permits adoptions abroad, both
in the form of expatriation of Italian children with the aim of adoption and
also
in the form of adoption of foreign children on the part of Italian
citizens.
275. The first case (expatriation of Italian children) is
merely theoretical due to the large number of applications for national
adoptions and the small number of children abandoned in Italy (average ratio
15:1). There is no express provision in law which provides
for the principle of
subsidiarity but, as stated above, the Juvenile Court must favour the
application which best corresponds with
the needs of the child. This rule is
constantly interpreted in the sense that couples resident in Italy must be
preferred. In the
case in which the child must be expatriated because a couple
resident abroad have been chosen, the law provides the same guarantees
for him
or her as those provided for adoption in Italy and, therefore, a year of
preadoptive foster placement under the monitoring
of the Juvenile Court (in this
case, through the Italian consul). If during the preadoptive foster placement
difficulties arise,
the child can be repatriated.
276. The second case
(adoption abroad on the part of Italian citizens) has increased significantly in
recent years. Currently, the
number of adoptions of foreign children are about
double those of Italian children. Those who wish to adopt a child from abroad
must fulfil the same requisites required for national adoption.
277. The
subject of intercountry adoption has been recently profoundly amended in the
Italian legal system. Italy, in fact, has signed
the Hague Convention of 29 May
1993 on the Protection of Children and Cooperation in Respect of Intercountry
Adoption, subsequently
ratified and entering into force in Italy under Law
No. 476 of 31 December 1998. This law was passed not merely for
ratification
but as was indispensable has rewritten all the regulations on
intercountry adoption.
278. The principles on which the new law is based
are the following:
− The child who can be adopted in Italy must be a child of whom the situation of abandonment has been ascertained in his or her country of origin;
− The foreign child to be adopted must not have found in his or her own country an alternative arrangement which assures him or her a valid family environment;
− The prospective adoptive parents do not have a right to obtain a child as son or daughter but can only express their willingness to adopt because the instrument of adoption, even intercountry adoption, does not function to give a child to a couple who have no children, but to satisfy the need for a family for a child who does not have one;
− The preparation for such a responsible undertaking as adoption must be adequately developed because it is not easy to be transplanted not only from one family to another family but from one way of life to another which is totally different. Therefore, many functions have been attributed to the social services of the local authorities to which the Juvenile Court must transmit, within 15 days, the application of the spouses so that adequate information on the intercountry adoption can be given, and preparations made for adoption and for ascertaining their personal conditions. This activity must be completed within four months, after which the social services must send a report to the Juvenile Court, which, having heard the spouses, must decide within two months whether to grant or deny suitability. In the affirmative case, the decree is sent by the Court to the Commission on Intercountry Adoptions with all the relative documentation;
− It is the Juvenile Court which evaluates the suitability of the couple for adoption: the decree of suitability will also contain indications for favouring a better match between the prospective adoptive parents and the adopted child. The decree stays in force for the entire duration of the procedure, but the spouses have the onus of initiating it within a year, turning to one of the accredited bodies of their choice;
− To adopt a child abroad, it is, in fact, obligatory to consult an accredited agency, that is, an organization which is not a profitmaking organization, which is directed and run by people who by virtue of moral integrity, training and experience are qualified to act in the field of intercountry adoption, which avail themselves of the assistance of professionals in the social, legal and psychological fields, which have at their disposal an adequate organizational structure in at least one Region, and do not harmfully discriminate in favour of the people who hope to adopt;
− The accredited agency informs the prospective adoptive parents of the adoption procedures, completes the documentation for adoption with the competent authorities of the country indicated by the prospective adoptive parents, receives the proposals for foster placement from the foreign authority, transfers all the information and all the details regarding the child, receives the written consent to foster placement by the prospective adoptive parents, receives from the foreign authority a statement that the conditions provided by the Convention exist, informs the commission, the Juvenile Court and the local social services of the decision relating to foster placement, certifies the date of placement of the child with the fostering spouses, oversees the modalities for the child’s transfer to Italy and carries out support activities for the adoptive family;
− The setting up, at the Department of Social Affairs of the Prime Minister, of a Commission on Intercountry Adoptions is planned. It will have the tasks of a central authority, and must present a report to the Italian Parliament once every two years on the state of intercountry adoptions, on the level of implementation of the Convention and on the stipulation of possible bilateral agreements with nonadhering countries. It must, moreover, authorize the activities of the intermediary agencies and oversee their operation. For this purpose, it must ascertain that the agencies are in conformity with the requisites of the law. Furthermore, it must promote cooperation between all those who are operative in the field of intercountry adoption and the protection of children; promote training initiatives for personnel and assure the uniform spread of accredited agencies throughout Italy. It is the Commission which, in individual cases, evaluates the conclusions of the accredited agency and declares that adoption meets the best interests of the child;
− This declaration cannot be made when it does not emerge from the documentation that there is a situation of abandonment of the child and when the adoption does not give to the adopted child the status of a legitimate child;
− The child who has entered Italy on the basis of a provision for adoption or foster placement with the aim of adoption enjoys, from the moment of entry, all the rights attributed to Italian children in foster care and he or she acquires Italian citizenship by effect of the registration of the adoption decree;
− Intercountry adoptions pronounced in a country which does not adhere to the Convention or which is not a signatory to bilateral agreements may be declared effective in Italy on condition that the condition of abandonment of the child or the consent of the parents for legitimizing the adoption is ascertained, that the prospective adoptive parents have obtained the decree of suitability, that the adoption procedures have been effected through the intervention of the Commission and an accredited agency, that the indications contained in the decree of suitability have been complied with, and that the authorization of the Commission has been granted;
− Special provisions are provided for in relation to the adoptive parents: in particular, they will have the right to a leave of absence from work corresponding to the period of stay abroad requested by the country of origin, and, once they have reentered Italy, can have a period of three months of paid leave from work even if the child is more than 6 years old. Moreover, after the three months have passed and until the child has reached 6 years of age, they can ask for leave from work for six months with the right to retain their posts, not to mention the right to leave during illnesses of the child. There are also some fiscal benefits: 50 per cent of the expenses borne by the adoptive parents for the procedure of adoption can be deducted from the gross income;
− Unauthorized action by intermediaries is sanctioned and will be considered a crime punishable by imprisonment for up to one year or by a fine of 10 million lire. Also, those who have applied to unaccredited agencies or people will be liable for punishment.
3. Longdistance support
279. There is in Italy a highly developed form
of efficacious support to children of underdeveloped countries to allow them to
remain
in their country while receiving the help which allows them not only to
survive but also to have a regular process of development.
Italian families
undertake to send a periodic economic contribution to families with children who
live in situations of indigence
in their countries, creating a bond of
solidarity which is not only economic but also in some way emotional. It is
known improperly
as “longdistance adoption” because no judicial link
is created between those who assume a responsibility of this kind
and those who
receive aid: more appropriately, it should be referred to as
“longdistance support” as this act of solidarity
is beginning to be
referred to. It is not a phenomenon of little importance: about 2 million
people have adhered to the proposal
advanced by some associations operating in
the field of international solidarity. And every year about 1,500 billion lire
flow from
this form of aid to developing countries.
280. Recently, thanks
to the undertaking of five of the biggest nongovernmental organizations which
carry out longdistance support
projects (Ai.Bi, Cefa, Ciai, Terre des Hommes,
Vis), the Italian Committee for Distance Support has been set up which has the
task
of proposing projects relating to longdistance support destined for
children and families in difficulty (against the exploitation
of child labour
and child prostitution, for the prevention of the abandonment of children and
the rehabilitation of street children,
for the prevention of childhood illnesses
and malnutrition) and for carrying out public awareness campaigns and
initiatives aimed
at finding supporters and at spreading a new culture of
solidarity with children.
4. The interests of the child
281. The implementation in Italy of article 21
can be considered, at present, more than satisfactory, considering the rigour of
the
law in giving constant preeminence to the best interests of the child. In
general, it can be said that the Juvenile Courts and local
social services
cooperate well and the latter, from the point of view of their professional
capacity, are now sufficiently well trained
on the subject of adoption and well
aware of the necessity to give priority to the best interests of the child. All
placements of
children with a view to adoption are followed and supported by the
social services in conjunction with the Juvenile Court and no
adoption order is
made without the social services having knowledge of the case and giving their
opinion.
282. The need for a greater spread of social services throughout
Italy must, however, be noted, for the purpose of preventing abandonment
and
helping the families of origin. There are, in fact, areas where the social
services are insufficient or scarcely present. In
the city of Rome, the
municipality points out that the ratio between social workers and citizens is 1
social worker for every 23,000
citizens, while 1 for every 5,000 are needed.
Budget restrictions and lack of funds are usually cited to justify this
situation.
Moreover, it must be noted that there is a negative separation of
competencies between interventions of a social nature and health
care, due to a
recent reform of the health service which has brought further budgetary
restrictions and has not sufficiently coordinated
the two areas of
action.
5. Data on adoption in Italy
283. The data on adoption in the five years
19931997 are indicative of the trend in national and intercountry adoptions and
are taken
from the parliamentary report that the Ministry of Justice which
carries out a monitoring function of adoption trends in Italy
must send
periodically to Parliament on the state of enforcement of the law on
adoption.
Table 7
Children declared to be in a state of adoptability:
absolute and percentage data
1993
|
1994
|
1995
|
1996
|
1997
|
|
With known parents
|
902
|
748
|
826
|
895
|
1 025
|
%
|
73.27
|
71.17
|
71.95
|
65.86
|
71.18
|
With unknown parents
|
329
|
303
|
322
|
464
|
415
|
%
|
26.73
|
28.83
|
28.05
|
34.14
|
28.82
|
Total
|
1 231
|
1 051
|
1 148
|
1 359
|
1 440
|
Source: Ministry of Justice Central Office for Juvenile Justice,
Statistic Analysis, Regulation of Adoption and Foster Placement of
Children
19931997, Rome, 1998.
Table 8
Applications to obtain the declaration of suitability for intercountry adoption
1993
|
1994
|
1995
|
1996
|
1997
|
|
Pending at 1 January
|
9 013
|
9 457
|
8 451
|
8 560
|
8 721
|
Presented subsequently
|
6 329
|
6 007
|
5 849
|
5 768
|
6 217
|
Accepted
|
4 546
|
4 707
|
3 767
|
3 976
|
4 356
|
Refused
|
1 609
|
1 960
|
1 031
|
713
|
725
|
% of acceptance of applications processed
|
73.9
|
70.6
|
78.5
|
81.3
|
73.6
|
Source: See table 7.
Table 9
Decrees of preadoptive foster placement and decrees
of national adoption
|
1994
|
1995
|
1996
|
1997
|
|
Decrees of preadoptive foster
placement pronounced |
710
|
614
|
854
|
1 027
|
1 141
|
Decree of national adoption
|
776
|
751
|
784
|
811
|
926
|
Source: See table 7.
Table 10
Effectiveness of foreign provision of foster placement and adoption
|
1994
|
1995
|
1996
|
1997
|
|
Pending at 1 January
|
1 334
|
1 619
|
2 327
|
2 955
|
2 713
|
Provisions effective as preadoptive foster
placement |
1 992
|
2 434
|
2 503
|
1 088
|
2 095
|
Provisions effective as adoption
|
40
|
4
|
19
|
14
|
11
|
Provisions declared noneffective
|
24
|
17
|
16
|
15
|
6
|
Revocation of preadoptive foster placement
|
5
|
5
|
5
|
7
|
7
|
Decree of definitive adoption
|
1 696
|
1 712
|
2 161
|
2 649
|
2 019
|
Source: See table 7.
J. Temporary entrance into Italy of unaccompanied foreign
children
(guideline 87)
284. Of particular
relevance is the phenomenon of unaccompanied foreign children temporarily in
Italy for vacation or health reasons.
This concerns children who come from
countries which find themselves in particular difficulties (famine, civil war,
ecological disasters),
to whom a temporary residence permit is given for a
period which cannot exceed except in exceptional cases three months and who
are accommodated by institutions or families, as part of specific projects. It
is a phenomenon which, although often originating
in a spirit of solidarity,
risks, if not regulated, provoking negative effects on the children themselves.
This has led to the signature
of the Decree of the President of the Council of
Ministers of 7 March 1994, by which, under the Department of Social
Affairs of the
Prime Minister’s Office, a special Committee for the
Protection of Foreign Children has been constituted, in which officials
of the
Prime Minister’s Office, the Ministries of Foreign Affairs, of the
Interior and of Justice take part. The task of the
Committee is to coordinate
and monitor the reception projects, granting or refusing permission. Under Law
No. 40 of 1998, article
31, it is established that the Committee has the
task of overseeing the details of the stay of the foreign children temporarily
present
in Italy and of coordinating the activities of the administrations
involved. The Committee is made up of two representatives of
ANCI (National
Association of Italian Municipalities), a representative of UPI (Union of the
Provinces of Italy) and by two representatives
of the most significant
organizations operating in the sector of the family. Moreover, with an apposite
Decree of the President
of the Council of Ministers, the duties of the Committee
concerning the protection of the rights of foreign children in conformity
with
the objectives of the Convention on the Rights of the Child will be defined and
the rules and the ways of entrance and residence
in Italy of minor children
established, restricting to those over 6 years of age, children who
enter Italy in the context of programmes
of solidarity for temporary care, and
for the foster placement and repatriation of the same.
285. The table which follows gives an indication of the phenomenon. It
illustrates the total number of authorizations granted from
1996 to 1998. It is
important to specify that the figures shown indicate authorizations which do
not, in any way, represent the
effective number of children accommodated. It
frequently happens that for one child more than one entrance is registered. The
estimate
is that the number of children accommodated temporarily was
approximately 22,00025,000 for 1998.
Table 11
Number of authorizations for unaccompanied foreign
children
accommodated temporarily in Italy 19961998
Children
|
|||
1996
|
1997
|
1998
|
|
Bielorussia
Ukraine Russia Former Yugoslavia (Bosnia and Croatia) Bosnia Croatia Serbia Romania Algeria (Sahrawis) Georgia Other |
28 978
11 151 1 626 4 943 186 2 805 355 148 204 |
31 263
10 431 1 580 see the specific data below 1 944 921 154 529 415 268 95 |
28 907
8 011 1 614 see the specific data below 1 232 400 82 382 89 154 20 |
Total
|
50 396
|
49 503
|
40 891
|
Source: Prime Minister’s Office Department of Social
Affairs.
V. ABUSE AND EXPLOITATION OF THE CHILD[*]
A. Introduction
286. The Italian Government has given
particular attention to the disquieting phenomenon of maltreatment and sexual
abuse of its under-age
citizens. Whether this maltreatment is carried out
actively (blows, beatings, injuries, sexual acts) or whether it is carried out
by conduct of omission (neglect, lack of care, abandonment), it provokes grave
consequences in the short, medium and long term on
the process of growth and
puts it at risk of being compromised.
287. No less disturbing is that
form of violence against children which is expressed in the exploitation of
children on the part of
adults. The culture that generates this, based on
reducing the child from a person to an object to be freely disposed of, has
serious
consequences because the abused or exploited child inevitably loses
self-esteem which is indispensable for the complete development
of the person
and because seeing him- or herself as someone without value causes him or her to
rebel and to act aggressively or passively
and to behave in a hyperacquiescent
way. It is of fundamental importance to prevent these phenomena and
indispensable to put into
effect forms of intervention for resocialization aimed
at the full recovery of the child who is the victim of abuse and
exploitation.
288. Given these premises, it seems opportune to bring
together in this part of the report the responses to the questions relating
to
both the implementation of article 19 (guidelines 88-91) and the implementation
of articles 32-36 of the Convention (guidelines
151-164).
289. Unfortunately, phenomena of this type are present in Italy
and cut across all strata of society. Italy is still without a complete
monitoring of the real incidence of these phenomena because the only accurate
data are, at present, those deriving from the judicial
statistics which,
obviously, cannot be completely exhaustive. In fact:
(a) Some phenomena
do not constitute crimes (for example prostitution, at least when it is not
concerned with soliciting or aiding
and abetting and exploitation, which are
difficult to prove, or the personal use of narcotics);
(b) For crimes of
violence, abuse and exploitation of children, reports to the judicial authority
are few:
− Not all the victims are willing to report the fact in order to avoid unpleasant publicity and in order to avoid reliving, in the course of the trial, experiences which are often devastating;
− Much of the violence is perpetrated in the closed sphere of the family and this impedes detection because it is feared that public revelation will dissolve the bond existing between the adults;
− A code of silence between adults to the detriment of children covers often disquieting situations;
− The person is at a formative age or does not perceive the abuse as such or, in any event, often does not have the capacity or the courage to report the abuse to the outside world.
290. The available data in
relation to single phenomena will be indicated. Here, it is opportune only to
highlight the relative data
regarding protective action taken by the Juvenile
Court in relation to parental authority: they are obviously indicative of a
dysfunction
of the parental relationship which implies actions or acts of
omission which produce grave prejudice to the child. In 1993, 1994
and
1995 the Juvenile Court issued, respectively, 7,736, 7,257 and 5,831
limitation or removal orders with regard to parental authority.
291. Neither is there, at present, significant research on the various forms
of exploitation of children which can illuminate the
extent of the phenomenon in
the absence of judicial data. It is the intention of the National Observatory
and of the National Documentation
Centre to develop research in this field
within the next few years.
B. Maltreatment and violence
(guidelines 88-91)
1. Judicial data
292. Judicial
data are not fully indicative of the real frequency of the phenomenon of
maltreatment of children not only in terms
of the high incidence of unknown
cases of deviance but, as regards maltreatment and violence, also because, for
the major part of
the crimes, the National Statistics Institute (ISTAT)
statistics do not indicate the typology of the victims and therefore it is
impossible to determine whether they are children or other members of the
family. Therefore, the crime of abandonment concerns not
only the children but
also adults who are incapable; therefore, the crime of maltreatment in the
family may also involve members
of the family other than the child; and
therefore, the crime of violation of the obligations of family assistance may
also involve
behaviour which does not concern the offspring. On the other hand,
crimes of infanticide and abuse by means of punishment are
specific.
293. The table which follows indicates the state of the
phenomenon over the last 10 years:
Table 12
Crimes for which the judicial authority has initiated criminal
action,
excluding that of a sexual nature
1986
|
1987
|
1988
|
1989
|
1990
|
1991
|
1992
|
1993
|
1994
|
1995
|
1996
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Infanticide
|
7
|
14
|
13
|
4
|
2
|
6
|
13
|
6
|
4
|
3
|
6
|
|
|
|
|
|
|
|
|
|
|
|
|
Abandonment of incapable minors
|
295
|
249
|
217
|
192
|
163
|
207
|
271
|
298
|
334
|
338
|
388
|
|
|
|
|
|
|
|
|
|
|
|
|
Violation of the family allowance
|
5 673
|
6 442
|
6 103
|
5 267
|
2 067
|
3 447
|
3 283
|
3 589
|
4 002
|
4 017
|
4 201
|
|
|
|
|
|
|
|
|
|
|
|
|
Maltreatment
|
2 225
|
2 600
|
2 424
|
2 316
|
1 163
|
1 765
|
2 029
|
2 254
|
2 268
|
2 300
|
2 290
|
|
|
|
|
|
|
|
|
|
|
|
|
Consensual abduction of a child
|
261
|
265
|
276
|
219
|
109
|
150
|
112
|
123
|
130
|
112
|
117
|
|
|
|
|
|
|
|
|
|
|
|
|
Abuse by means of punishment
|
77
|
107
|
68
|
99
|
49
|
40
|
57
|
57
|
77
|
65
|
85
|
Source: ISTAT, Criminal Judicial Statistics, Year 1990,
Annuario No. 38, ed. 1993; Criminal Judicial Statistics, Year 1991,
Annuario No. 39, ed. 1993; Criminal Judicial Statistics, Year 1992,
Annuario No. 1, ed. 1994; Criminal Judicial Statistics, Year 1994,
Annuario No. 3, ed. 1995; Criminal Judicial Statistics, Year 1995
and 1996, Annuario, ed. 1993.
2. Legislative provisions on protection
294. Violence against the child in all its
forms is prohibited by law, both by criminal measures applicable to every person
responsible
for the violence and by civil measures that concern more directly
the parents and the legal representatives of the child.
295. Civil
protection: The Civil Code (arts. 330 and 333) provides that the parent who
violates or neglects his or her duties towards
the child or abuses his or her
power, causing prejudice, can be deprived, in all or in part, of his or her
authority. His or her
relationship with the child can be limited or suspended
by the judge, who can also nominate a different legal representative for
the
child and can order the child placed in another environment. In emergency
cases, the court can take temporary official action
in the interests of the
child.
296. The Juvenile Courts apply articles 330 and 333 to a large
range of violent behaviour on the part of the parents. According to
the law,
these provisions regard physical violence including corporal punishment; mental
violence or psychological abuse (humiliation,
offence, mental cruelty);
negligence and lack of care; exploitation; sexual abuse as generally understood
and also when it is behaviour
that does not constitute a crime. A large part of
the case law holds that articles 330 and 333 are also applicable when, in
the
case of separation or divorce, the child becomes willingly involved by the
parents in their arguments, or when rights of access are
impeded, or when the
child is taken away by the custodial parent.
297. The abandonment of the
child receives greater and more specific protection in Law No. 184 of 4 May
1983 on adoption and fostering.
The determination of abandonment by the
Juvenile Court has been described elsewhere in this report.
298. The
Juvenile Court can be directly informed about the situation of abuse or violence
towards the child by a relative so that
provisions for protection can be taken.
The Public Prosecutor’s Office can equally be informed by any person
whosoever has
come to know of the abuse or violence. The Office, having
ascertained the foundation of the report, will initiate action through
the
Juvenile Court. It is to be noted that the social services (also teachers and
doctors of the health services) have the obligation
to inform the Juvenile Court
of cases of abandonment which come to their notice during their work. The same
obligation is not provided
in cases of maltreatment except if they, by reason of
their gravity, can be considered as cases of abandonment. Also, the child
victim can ask directly for protection, applying to the Office of the Public
Prosecutor of the Republic.
299. In cases of maltreatment and violence to
the detriment of the child, the role of the social services is of particular
relevance
in identifying situations of abuse, for an initial processing of the
case, and in executing provisions ordered by the court, which
very often decides
to attribute to the social services the tasks of support and control of the case
to the extent that seems necessary
in respect of the interests of the
child.
300. Criminal protection: The Criminal Code provides for a series
of crimes of violence and maltreatment against the individual,
and therefore
also against the child, and for some typical crimes of which only the child can
be victim (infanticide, abandonment
of children, child
homicide, instigation of a child to commit suicide, abuse of means of
correction or punishment, child abuse, child abduction, avoidance
of civil court
orders relating to child custody, illicit fostering of children to avoid the law
on adoption).
301. The criminal law obliges public officials and those
exercising a health profession to refer to the judicial authority any facts
that
may present the elements of a crime.
302. Taking account that in Italy
criminal action is obligatory, there is an unbalanced system: too rigid on the
criminal side (which
is concerned with punishing the guilty but does not concern
itself with the victim); too tenuous on the civil and juvenile side (which
is
concerned with protecting the victim but not with the guilty party). It is also
to be noted that, in contrast to the civil system
and family law, the criminal
system presents notable failings in the protection of the children and appears
very outdated.
303. First of all, there is no organic criminal system for
the protection of the child which takes into consideration not only the
protection of his/her physical or sexual integrity - or of his/her patrimony -
but also adequately protects his/her personality and
his/her regular
development. For example, it is significant that, in the Italian legal system,
the crime of undue influence on
incapable persons exists - for the punishment
of those who abuse the passion, needs and inexperience of a child, inciting him
or
her to carry out acts which could have consequences in relation to property -
while there is no regulation which sanctions an act
of at least equal criminal
responsibility for those outside the family who incite the child to carry out
acts harmful to his or her
psycho-physical development. Moreover, there is no
police force for children which is effectively specialized and present in the
whole territory. There is no legislative basis for coordination between
criminal action against the perpetrator of the violence
and civil action for the
protection of the child.
304. This last lacuna is particularly damaging
in the cases of violence carried out by parents; because of simultaneous
competencies
of different judges, different kinds of action may be carried out
which are not harmonized among them. Also, the connection with
the social
services appears to be full of difficulties, taking account moreover of the
obligatory principle of criminal action and
therefore of the difficult position
in which the social worker may find him- or herself.
305. Different
reform proposals to improve this unsatisfactory state of affairs have been
presented to Parliament but not yet approved,
and it is to be hoped that these
be quickly taken into consideration.
306. Furthermore, the exploitation
of the child is punished by the criminal law, which characterizes certain
behaviour as crimes in
order to fight against the market in children for
adoption and lays down very severe punishment for the exploitation of child
prostitution.
It appears, on the other hand, necessary to have better
protection with regard to the exploitation of children by adult criminals,
especially by organized crime.
307. The system of protection described
above shows itself to be lacking as far as measures of an educational character
directed at
promoting positive, non-violent forms of discipline, care and
treatment of the child are concerned. The jurisdiction for ordering
measures of
this type belongs to the Juvenile Court. The law provides only two types of
measure: the care of the social services,
and placement in an institution.
These measures must be provided for and managed by the local community, to whose
competence they
were transferred by a decree of 1977. In any case, despite the
time that has now passed with the exception of some big municipalities
the
services of the local authorities appear generally unprepared in the face of
these interventions, and the social politics of
the local authorities seem to
forget the problem.
308. A child at the age of 14 has been recognized the
right to make a complaint on his or her own behalf.
3. Treatment of the victim of violence
309. The most important problem is that of
making the problem of hidden maltreatment and violence emerge, not only in order
to persecute
the guilty but principally to ensure that the child has adequate
support and recovery. An action aimed at increasing the awareness
of
professionals (in particular, of teachers and paediatricians) who are most
frequently in contact with children and minors and
who can best perceive both
the signs of suffering resulting from violence and the traces of physical
violence is also being developed.
The National Centre is closely collaborating
with the Cultural Association of Paediatricians: a training seminar was held in
1997
for paediatricians who must, in turn, institute training courses on the
problems of violence towards children throughout Italy.
310. Energetic
activities to make the phenomenon of abuse and maltreatment of children emerge
have been carried out in Italy by the
non-governmental organization the Blue
Telephone, both by way of a series of initiatives to build public awareness and
by way of
a widespread telephone network for reporting abuse or seeking advice
in regard to relations with children.
311. There are also attempts to
develop a new culture of respect for the personality of the child and a network
of services for the
protection and care of the maltreated child; this will be
referred to later in this report, along with the kinds of treatment
available.
C. Exploitation and sexual abuse
(guidelines
158-159)
312. Particular
attention must be given to exploitation and sexual abuse. This is because the
phenomenon appears to be in expansion
- and not only in Italy - because it
presents international aspects (sexual tourism, paedophile networks on the
Internet) and principally
because of the devastating effects on the normal
maturing process of the child in his or her formative years who has suffered
these
forms of violence.
1. Judicial data
313. We report in the tables which follow the
data relative to crimes involving sexual abuse of children.
Table 13
Sexual violence against children, 1996-1997
Violence against children
|
|||
< 14 years
|
14-17 years
|
< 18 years
|
|
North
|
313
|
955
|
1 268
|
Centre
|
146
|
369
|
515
|
South
|
316
|
634
|
950
|
Italy
|
775
|
1 958
|
2 733
|
Source: Ministry of the Interior - Department of Public
Security, Central
Direction of the Criminal Police, Anti-Crime Service,
data processed by
ISTAT, 1998.
Table 14
Crimes against children for which the judicial
authorities have
initiated criminal proceedings, 1986-1996
1986
|
1987
|
1988
|
1989
|
1990
|
1991
|
1992
|
1993
|
1994
|
1995
|
1996
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Incest
|
18
|
15
|
22
|
13
|
7
|
10
|
5
|
4
|
5
|
4
|
6
|
|
|
|
|
|
|
|
|
|
|
|
|
Rape
|
1 149
|
1 205
|
1 228
|
1 296
|
1 385
|
1 432
|
1 758
|
1 724
|
1 689
|
1 869
|
3 304
|
|
|
|
|
|
|
|
|
|
|
|
|
Indecent assault
|
834
|
963
|
1 069
|
996
|
884
|
1 094
|
1 461
|
1 599
|
1 672
|
1 859
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Child abuse
|
149
|
166
|
183
|
155
|
74
|
104
|
141
|
138
|
168
|
174
|
98
|
|
|
|
|
|
|
|
|
|
|
|
|
Abduction of children under 14
|
101
|
80
|
71
|
71
|
65
|
67
|
74
|
116
|
78
|
111
|
(a)
|
Source: See table 13.
(a) Since 1996 the relative figure
for abduction of children has been included in the figure regarding child
abuse.
314. The verifiable increase in 1996 for crimes reported under the
heading of rape is connected not to a real increase in the phenomenon,
which
would be alarming, but to the fact that, following the Law of 15 February 1996,
the two different crimes of rape and acts of
indecent assault were unified in
the single crime of sexual assault.
2. Legislative provisions
315. The Italian criminal legislation on sexual
freedom has been completely amended with the revision of responsibilities
imposed
by the Convention on the Rights of the Child. This revision was
initiated with Law No. 66 of 15 February 1996 regarding the provisions
on sexual
assault. This law established that:
− Crimes of sexual abuse are crimes against the person and not against public morality;
− The two distinct crimes of rape and indecent assault (according to whether there has been “penetration” or not) are unified in the single crime of sexual assault, which constitute better protection for the child in his or her formative years both because it excludes distressing investigations, which can be particularly traumatic, to find out whether or not there has been penetration and also because it appears evident that, for a child, sexual acts other than rape have an equally destructive effect;
− Conduct by anyone who with violence or threats or abuse of authority forces a child of any age to carry out or suffer sexual acts constitutes a crime. In this case, punishments are heavier: from 7 to 14 years’ imprisonment if the child involved is less than 10 years old, from 6 to 12 years’ imprisonment if the child involved is less than 14 years old (or 16 years old if the guilty party is the parent or guardian);
− Equally, it constitutes a crime punishable by imprisonment from 5 to 10 years for those who, even without violence, carry out sexual acts with a child who has not reached the age of 14 years (or 16 if the guilty party is the parent or guardian or another person who has care and control of the child). If the child is less than 10 years old, the punishment goes from 7 to 14 years of imprisonment;
− The crime is automatically prosecuted if the sexual acts are committed with children under the age of 10 years whereas it is prosecuted on complaint in three cases: if the sexual acts are committed with a consenting child under the age of 16 years when the perpetrator is an ascendant, parent or guardian; if the sexual acts are committed with a consenting child of less than 14 years when the perpetrator is a person who is more than four years older; and if the sexual acts are committed with a child of less than 13 years when the perpetrator is a child with less than four years of difference in age with respect to the injured child;
− It constitutes a crime (new formulation of the crime of child abuse) to carry out sexual acts in the presence of a child under the age of 14 years, with the aim of making him or her witness the same acts (punishable by imprisonment from six months to three years);
− Participation of several persons united in acts of sexual assault constitutes the crime of group sexual assault;
− To protect the personality of the child victim of sexual crimes, proceedings are carried out in chambers and, moreover, the Public Prosecutor may ask that evidence be taken in the pre-trial phase when it involves taking the evidence of the child under the age of 14 years and that such evidence may be taken in a different location than the Court, using specialized facilities or even the home of the child.
316. In completion of this
legislation, Parliament has recently approved a new law on the sexual
exploitation of children (Law No.
269 of 3 August 1998) entitled Law against the
Exploitation of Prostitution, Pornography, and Sexual Tourism to the Detriment
of
Minors: The New Forms of Slavery. This establishes that:
− Whosoever procures a person under the age of 18 years for prostitution or who aids and abets it or exploits prostitution is punishable by imprisonment from 6-12 years and a fine of 30 million to 300 million lire;
− Whosoever, even though the fact no longer constitutes a serious crime, carries out sexual acts with a child between the ages of 14 and 16 years, in exchange for money or other economic advantage, is punishable by imprisonment from six months to three years and with a fine not inferior to 10 million lire;
− The public official or public service officer who has information that a child practises prostitution is obliged to give immediate notice to the Office of the Public Prosecutor which takes action regarding protection;
− Whosoever exploits children under the age of 18 years with the aim of carrying out pornographic exhibitions or to produce pornographic material is punishable by imprisonment from 6 to 12 years and with a fine of 50 million to 500 million lire. The person who markets the pornographic material is liable to the same punishment;
− Whosoever distributes, divulges, or publishes, including by telematic media, pornographic material and information aimed at the solicitation and the sexual exploitation of children is punishable by imprisonment from one to five years and a fine of 5 million to 100 million lire. In this regard, the law provides that the organ of the Ministry of the Interior which is in charge of the security and the regularity of telecommunications services can set up on information networks sites to enable the interception and reception of all information necessary to carry out police investigations in the sector;
− Whosoever cedes to another, even without payment, pornographic material produced by way of the sexual exploitation of children under the age of 18 years is punishable by imprisonment for up to three years and a fine of 3 million to 10 million lire;
− Whosoever procures or holds pornographic material produced through the sexual exploitation of children under the age of 18 years is punishable by imprisonment of up to three years or with a fine of not less than 3 million lire;
− Whosoever organizes, assists or publicizes journeys abroad with the aim of taking part in activities related to prostitution to the detriment of children is punishable by imprisonment from 6 to 12 years and a fine of 30 million to 300 million lire;
− Whosoever traffics in or in any way trades in children under the age of 18 years with the aim of procuring them for prostitution is liable to the same penalty under article 601 of the Criminal Code;
− The aforesaid crimes can also be prosecuted if committed abroad by an Italian citizen or by a foreign citizen acting together with an Italian citizen;
− The Prime Minister’s Office shall coordinate all the public administrations relative to the prevention of, assistance to and protection of children from sexual abuse;
− The fines gathered constitute a fund to finance specific programmes for prevention, assistance and rehabilitation of child victims;
− The Prime Minister’s Office shall acquire data at a national and international level on prevention and repression and shall promote studies and research on the social, health and judicial aspects of the phenomenon of the sexual exploitation of children.
317. Finally, by Decree of the
Minister of the Interior dated 30 October 1998, special squads of the judicial
police specialized in
the fight against such crimes were set up, giving more
impetus to the activity carried out by the Children’s Office already
operating at Police Headquarters.
3. Preventive action
318. Besides the initiatives for general
prevention of violence and abuse, both physical and sexual, and the initiative
for recovery
from sexual violence, a public awareness programme has been carried
out, for a more widespread understanding of the problems of exploitation
and
sexual abuse, in particular, by leading associations and centres specialized in
abuse which have operated on a national scale
for several years. Of these, we
have already mentioned the Blue Telephone of Bologna, which has carried out a
great deal of work
in order to bring the extent and gravity of the phenomenon of
violence in childhood to the notice of the general public and to spread
a
different culture of respect for the child and for his or her rights, and has
also set up telephone lines for reporting cases of
abuse and for telephonic
support for children in difficulty and parents with problems; the Hansel and
Gretel Study Centre in Turin;
“Break the Silence” in Turin; the
Centre for Maltreated Children in Milan; the Association of Santa Maria Mater
Domini
in Venice; the Toniolo Centre in Naples. On the international aspects of
the phenomenon, a special public awareness project has
been carried out by the
organization Terre des Hommes Italia.
319. Training programmes for health
workers, teachers and parents have also been launched to help them hear and
decipher the signals
which come from children, so that the latter can speak and
confide in someone, breaking the silence. Also, for Juvenile Court judges,
action has been taken by the Italian Association of Judges for Juveniles and for
the Family to raise their awareness of the problem.
For prevention to be
effective, the new criminal laws should be accompanied by a law on child
education on relationships and emotions,
and, above all in school, to develop in
the young a responsible and informed approach towards their sexuality. Until
now some legislative
initiatives in this direction have not had good results.
However - in anticipation of this law - the Italian school already constitutes
an important time and place for education in the implementation of the
educational plans for health and the prevention of pathologies
connected with
drug addiction, by way of initiatives of focal point teacher training, single
school educational projects for children
and centres of information and
counselling. The educational orientation prevailing and which is held to be
more fruitful is that
which does not uniquely deal with specifically sexual
themes, but gives space to the elaboration on the part of the children of the
emotions connected to affectivity and to relations with the other sex, offering
in that way the possibility of confiding about what
has happened and of coming
out of the solitude of their own negative emotions to those who have had the
experience of disturbed relationships
and of abuse.
320. Also Catholic
religious teaching programmes in the secondary schools (approved by Decree of
the President of the Republic No.
350 of 21 July 1987) provide, in the third
year of secondary school, which constitutes the eighth year of compulsory
primary education,
that themes of emotional and sex education are also dealt
with from the moral and religious point of view.
4. Child prostitution
321. The problem of child prostitution in Italy
merits special mention.
322. No specific data exist in relation to this
phenomenon because the activity of prostitution - if not procured or aided and
abetted
- is not sanctioned by the criminal law and the child over the age of 14
years has the right to the free exercise of his or her own
sexuality. There do
not appear to be sufficiently credible estimations of the extent of the
phenomenon (it is said that there are
2,200 under-age prostitutes) because
it is not clear on the basis of which elements such estimates have been
produced. Furthermore,
the data on judicial and criminal statistics do not
allow the crime of trafficking in women with the aim of prostitution to be
looked
at singly, nor is there any disaggregated data by age or country of
origin.
323. With the aim of a better understanding of the phenomenon and
with a view to being able to more precisely programme action to
counter it, the
Department of Equal Opportunities of the Prime Minister’s Office has
become the promoter of an investigation
on the problem of prostitution in Italy
entitled “Traffic in Immigrant Woman and Sexual Exploitation: Aspects and
Problems.
Research and Analysis of the Italian Situation and Social Action in
the Sector”, in collaboration with the association for
research and social
action called Parsec and with financing from the European Commission as part of
the Daphne Initiative. The results
of that research are now being
published.
324. In the course of an investigation by the police or of the
social welfare services of local authorities, evidence was found of
a
substantial number of under-age prostitutes coming from Africa and, in
particular, from Albania. It is not certain whether the
phenomenon of
immigration for prostitution is the consequence of violence or trickery or of
free choice (given the conditions of
economic, social and cultural deprivation
which have existed in Albania in the last few years, it is difficult to believe
that for
some of these girls it is an authentically free choice). There is,
however, no shortage of evidence and testimonies from which it
can be deduced
that the recruitment of at least of some of these girls, in particular of
12-year-olds, is carried out by kidnapping
them from village streets and the
Albanian countryside. Regarding this, there are indirect data (the number of
complaints against
Albanian citizens for crimes connected with prostitution) on
the role of prostitution, its exploitation and trafficking with this
aim, in
immigration from Albania.
325. To counter the phenomenon, action by the
police has limited value even if it is useful to block exploitation; the girls
taken
off the streets do not stop prostituting themselves, among other reasons
because it is very difficult for them to return to their
own countries due to
the social stigma. Therefore, in Italy, forms of health assistance to
prostitutes (street assistance) are developing,
which also opens the way for
contact with other means of social assistance. In some social situations
particularly hit by the phenomenon,
the “City and Prostitution
Service” is developing for creating dialogue, understanding of the
problems and providing
an alternative to life on the street by way of the
preparation of a personalized plan of reintegration in society which confronts
the logistics (accommodation centres) the legal aspects (assistance with
obtaining residence permits in Italy), employment (training
courses and entry
into employment). Some voluntary associations (such as the religious
association “Pope John XXIII”,
and the voluntary association
“On the Road”) have also organized a vast network of logistical
accommodation centres which
range from the family home, to the recovery
community, to the agricultural cooperative, to the emergency social services, by
means
of which they have consistently managed to take away from the prostitution
market a number of under-age girls and have put into effect
a number of
preventive health measures as well as providing social
information.
326. To counter the phenomenon, it is necessary to follow
some fundamental objectives:
− Produce programmed, strategic and synergetic plans of action which can give cohesiveness to preventative, rehabilitation and training processes;
− Intensify the control of agencies suspected of organizing the exploitation of underage prostitution;
− Favour the entry of the young people implicated into employment;
− Promote action networks.
327. It is, moreover, to be
emphasized that, in order to protect children from prostitution and assure their
recovery, the recent
law on immigration, most opportunely, has laid down
criminal penalties for whosoever carries out activities aimed at assisting the
entry into Italy of people destined for prostitution or of children to be used
in illicit activities with a view to their exploitation
(art. 12 Consolidated
Act) and has provided that “when, in the course of police operations,
investigations or proceedings relating
to one of the crimes referred to in
article 3 Law No. 75 of 20 February 1958 [the Law on Prostitution] or of
those provided for under
article 380 Code of Criminal Procedure [crimes which
provide for obligatory arrest when caught in the act] or in the course of acts
of assistance of the local authorities by the social services, situations of
violence or of grave exploitation towards a foreigner
are ascertained and there
are concrete risks for his or her safety caused by his or her attempts to remove
him- or herself from the
control of an association dedicated to one of the
aforesaid crimes, the Chief of Police shall issue a special residence permit to
allow the foreigner to remove him- or herself from violence and from the control
of criminal organizations and to participate in
a programme of assistance and
social integration” (art. 18 Consolidated Act).
D. A new strategy against violence in
childhood
(guideline 159)
328. In the last few
years a series of initiatives have been taken in Italy to counter the
disquieting phenomenon of violence and
abuse - physical, psychological and
sexual - which involves children. Apart from the legislative initiatives
already spoken of and
the initiatives connected with the implementation of Law
No. 285/97 which provides expressly for prevention and assistance in the
cases
of violence, several plans have been undertaken in this sector. Very briefly,
these are:
(a) Non-governmental or professional organizations have
undertaken to raise public awareness;
(b) To intensify the police action
aimed at the prevention and countering of criminal phenomena harmful to
children, the Ministry
of the Interior has produced and implemented a project
called “Arcobaleno” (Rainbow Project) aimed at redefining and
strengthening interventions in the sector by the establishment of
“Children’s Offices” at all offices of Chiefs
of Police; a
special telephone line has been installed to put into effect procedures of
emergency action in favour of children with
the aid of the qualified personnel
of the aforesaid offices; a link has been set up between this new structure and
the private or
public bodies which operate in the same area; adequate training
has been provided for managers attached to such structures and for
the workers,
by way of training seminars lasting one week having as their subject criminal
matters involving children and protective
action, with particular regard also to
connections with international organizations (UNICEF, the United Nations
Interregional Crime
and Justice Research Institute (UNICRI)) operating in the
sector. An appropriate organizational unit has been set up, at a central
level,
at the Central Directorate of the Criminal Police, with the objective of
constantly monitoring the evolution of criminal activity
involving child victims
of crime, in harmony with the activities carried out in other
countries;
(c) Specialized structures are being set up throughout the
country with the task of dealing with the treatment of child victims of
violence; the intervention is obviously not separated from support for the
family of the abused child. Also, in the diversity of
the methodologies for
intervening, it can be said that similar structures have constructed models of
significant and useful intervention
for the recovery of the child victims of
abuse and that the experimentation carried out in this way is extremely
useful;
(d) The setting up of an adequate network of services throughout Italy is
being attempted. A national coordinating Committee of
the centres and services
for prevention and treatment of abuse damaging to children has also been set up.
This committee has produced
an important document which contains guidelines for
the intervention of psychiatric health professionals on the theme of sexual
abuse
in childhood;
(e) To counter, at both a European and at an
international level, international organizations dedicated to the sexual and
commercial
exploitation of children having transnational dimensions and
ramifications, the Central Directorate of the Criminal Police has provided
for:
− Coordination of information and investigations through Interpol channels;
− Active participation in the Permanent Working Group of Interpol on crimes of which the victims are children. The task of this group is to identify the principal themes on the subject, to develop sufficient and indepth research for formulating recommendations to the General Secretariat for the possible issuing of appropriate resolutions (among others, the training of police personnel, national legislation on child pornography and on underage prostitution, pornography on the Internet, the exchange of information on networks of paedophiles discovered in various countries, and steps to counter sexual tourism are being analysed);
− Cooperation with the collateral foreign organizations of the operative police telecommunications squad which, among other things, undertakes to counter at an international level exploitation of and trade in pornographic material involving children via Internet;
− Collaboration with the joint action of Europol in regard to the trafficking in human beings and to the sexual exploitation of children and women;
(f) In 1997, the Department of Social Affairs of the
Prime Minister’s Office established a National Commission for the
Coordination
of Action regarding the Maltreatment, Abuse and Sexual Exploitation
of Children, in order to increase the effectiveness of the actions
for the
prevention of all forms of violence and abuse in childhood and adolescence. The
Commission - which included, in addition
to some experts on the subject,
representatives of all the interested ministries - defined an organic and global
strategy based on
five approaches to intervention:
(i) More organic and exhaustive collection of data relating to the phenomenon of violence and abuse and a map of the resources throughout Italy;
(ii) Intense activity related to basic training on the phenomenon of maltreatment and abuse on the part of all those who are involved in the educational process in order to acquire the necessary competence to understand the signs of difficulty, and adequate specialized training for the staff delegated to diagnose abuse and take care of the victims;
(iii) Strengthening the quality of resources, by including the construction of networks to carry out global projects to help children and the adoption of diverse protocols of understanding between the various competent institutions (social-welfare-health integration, relations between judicial offices, between social-welfare-health services and judicial offices, between school social services and health and judicial offices);
(iv) Agreements, at an international and national level, for the fight against the sexual exploitation of children, centralizing databanks linked to foreign countries, harmonizing the legislation on sexual tourism with that of the foreign country, connecting with foreign institutions which operate in the sector;
(v) Agreements with the media for the dissemination of a culture of childhood which respects the Charter of the United Nations.
E. Economic exploitation
(guidelines 151154)
329. The economic exploitation of the child, of his or her capacity and
energy by adults is not unfortunately absent in Italy and
it is not limited to
the phenomenon of exploitation of child labour. Before examining this latter
phenomenon, it is opportune to
mention some other cases of economic exploitation
of children.
330. In the last 20 years a market for children
with a view to adoption has developed in Italy. The disparity between the
number of couples willing to adopt
and the number of adoptable children brought
about private contracts to evade the law on adoption. So contacts were made -
during
pregnancy - with unmarried girls or even married women not wishing to
have another child. The woman was offered a considerable sum
of money; the
child born by the woman was acknowledged as a child born out of wedlock on the
part of the man of the couple aspiring
to adopt (or the child born of the girl
with whom the contract was made was passed off as a child born of the woman of
the couple
aspiring to adopt); the child was then placed in the new family. At
a certain point criminal organizations also entered into this
market.
331. The phenomenon was strongly countered both by heavy criminal
sanctions provided by the reform of 1983 of the law on adoption
and by way of
specifically checking up on all acknowledgments of children born out of wedlock
on the part of a married man. Even
though there are no specific data on the
phenomenon, if it has not disappeared, at least it has very much
diminished.
332. A specific, if different, market in children has been
made up of intercountry adoptions because aspiring adoptive couples were
allowed
to act autonomously in the countries of origin of adoptable children and could
turn to any channel of intermediation that
was available. The situation has
radically changed, given the approval by Parliament of the law of reform of
intercountry adoption
on the basis of the Hague Convention of 1993. In fact,
this law provides that all intercountry adoptions must be effected by way
of
accredited agencies and provides criminal sanctions for illegal
mediation.
333. The phenomenon of the use of children in begging is
unfortunately still present in Italy, if now only involving the gypsy minority.
The act is criminally sanctioned (article 671 of the Criminal Code punishes with
imprisonment from three months to one year whosoever
uses or allows, for the
purposes of begging, a person under 14 years to beg). The criminal
sanction has not eradicated the phenomenon
because the practice of begging using
children is strongly based in the culture of this minority. Nor does it seem
possible to resort
to alternative solutions: taking action in relation to
parental authority has proved ineffective and the resort to adoption is
impractical,
given the strong attachment of the gypsy child to his or her
family. It seems here that there is nothing to be done but depend on
the
actions aimed at integration and schooling which are being carried out by the
local authorities with the support of “Opera
Nomadi”.
334. The use of children in advertising and in
performances. With ever more frequency, advertising tends to use the image of
the
child as a vehicle for propaganda for products and ever more frequently
performances in the theatre, movies or television resort
to the use of children
and young people in the representation of life. This is a new form of child
labour of which neither the consenting
parent nor the institutions have
perceived the precise consequences, not so much on the physical plane (e.g.
regarding the prolonged
working hours of children in theatres) so much as on the
psychological plane. In this regard, it should be noted that the Convention
on
the Rights of the Child expressly recognizes the right of the child to his or
her privacy (art. 16), as does the Italian legal
system (and also the case
law) which recognizes a right to privacy as a fundamental human right. For the
person who has the full
capacity to act, consent to the use of his or her image
overrides the principle of privacy. For the child, the present system seems
to
hold that it is sufficient for the consent be given by the legal representative
of the minor without any further control. But,
except for the fact that the
very personal rights, such as the right to privacy, must certainly be considered
and cannot be exercised
by way of representation, it appears at least
inopportune that the consent only of the person who holds the authority - whose
interest
in the exploitation of the image of the child can be more his or her
personal interest rather than that of the child - legitimates
violating the
right to privacy which is fundamental for the child in his or her formative
years because it also involves the construction
of a more authentic identity.
It appears frankly paradoxical that the parent cannot alienate any property of
the child, even if
of limited economic value, without authorization of the
tutelary judge, but can, on the other hand, alienate the image of the child
and
decide on its use. It would, therefore, at least be necessary to hold that the
consent of the parent to the use of the image
of the child constitutes an act of
extraordinary administration and as such be subject to control. This has
opportunely been provided
for in a government bill, which would give that
authority to the Privacy Commission, which must determine that no situation
exists
of potential prejudice, not only moral but also psychological and
pedagogical.
335. The use of children in cinematographic, theatrical and
television performances and in transmission of entertainment programmes
also
requires more protection of the personality of the minor. The legislation in
force on the subject, albeit recently reformed,
appears not only to be lacking
in effective protection but also with respect to the bodies that have to carry
out the control and
make the decisions. The Decree of the President of the
Republic of 24 April 1994 is concerned with reforming article 4 of Law No.
977
of 17 February 1967, but not with the necessary aim of increasing the protection
of the minor in an employment sector which presents
notable risk factors but
only to simplify the authorization proceedings for the employment of minors in
the performing arts. The
Labour Inspectorate will grant the authorization, on
the basis of the written consent of the parents or the guardian, on the
condition
that the employment is in nonhazardous work in relation to the
child’s physical or biopsychological integrity and does not
continue after
midnight. The Decree adds (it is not clear for what purpose) that since the
conditions for the authorization already
exist, in part, that permission is
subordinate to the existence of all the necessary conditions to assure the
physical health and
morality of the child and the observance of the compulsory
education requirements. One can observe that the written consent of the
parents
or of the child does not sufficiently protect the child because the parents - as
experience has shown are more keen to secure
fame for the child and to receive
large payments than to worry about and be aware of the damage which such
activity could cause,
not only to the physical health but also to the
psychological health of a child in his or her formative years. The reference to
bio-psychological integrity appears not to be enough to effectively protect the
regular formative process of the child. Attributing
such a function to a body
such as the Labour Inspectorate, which has the technical but not the
psychological competence, renders
merely declamatory the need to evaluate the
possibly damaging effects of work in such a sector on the personality of the
child.
The law, with a view to simplifying the authorization procedure, says
nothing about the kind of information which must be given to
the Labour
Inspectorate so that it can effectively evaluate not merely the physical
environment in which the work is carried out,
but also the type of scenes which
the child would be called on to interpret and the equivocal or violent
situations in which he or
she could be involved.
336. The exploitation of
the child on the part of adult criminals. The phenomenon of the use of children
in criminal activities by
adults is very worrying. Given that the child is,
rightly, assured criminal immunity - completely for a child under the age of
14
years, but also often for the child under the age of 18 years -
irresponsible parents or people outside the family, increasingly
are using
children for committing thefts, drug trafficking, committing robberies and
extortion, and even for contract killings.
The provision in article 111 of the
Criminal Code which provides that only the person who has caused the child to
commit the crime
is responsible for it does not seem to be sufficient. The
damage from this kind of incitement is not only that consequent to the
commission of the crime but is also connected to the launching of the child in
his or her formative years on the road to delinquency.
337. This damage
is done to the child both if he or she commits the criminal act and if he or she
does not have the opportunity or
the courage to do so. It would therefore be
appropriate to establish a new crime which sanctions, and in a severe way, the
incitement
of the child to commit crimes, whether these are felonies or
misdemeanours.
338. It would also be opportune to sanction severely those
forms of organized crime which are being formed to use children to commit
crimes, or for child prostitution, or child pornography, or the exploitation of
illegal child labour or begging. Some serious episodes
which have been reported
in Italy in this sense make more decisive intervention necessary on the criminal
level to protect childhood,
which is increasingly being exploited and less
respected.
339. An activity aimed at preventing the involvement of
children in criminal activities has been carried out. Under Law No. 216 of
19
July 1991, an attempt has been made to curtail the phenomenon of juvenile
delinquency, and in particular the recruitment of young
people by adult
criminals, including organized crime, by carrying out actions aimed at the
prevention of juvenile delinquency and
to bring about the resocialization of
minors involved in criminal episodes. Funds come from the Ministry of the
Interior and the
Ministry of Justice. The former has tried principally to
develop network projects throughout the territory to deal with situations
of
risk. The idea is to create a nationwide network of interconnected
interventions on a single project model, made up of many organizations
operating
together. From 1991 to 1997, the Ministry of the Interior allocated
250,557 million lire, the major part of which (51.28
per cent) to
municipalities while 43.43 per cent was given to
associations.
340. The Ministry of Justice, for its part, has used the
funds allocated under Law No. 216 to establish local educational services
for the support and treatment of children not in detention, in collaboration
with local social services and agencies. These include
centres for
multifunction activities including entertainment, listening, scholastic support,
sport, expressive activities, selfgoverning
spaces, family counselling and
personalized educational programmes; training in socially useful services, in
particular in the field
of protection of the environment and public parks; work
experience programmes with craftsmen’s cooperatives or firms; work
training with scholarships; social and/or criminal mediation services to offer
young people a space in which they can express situations
of conflict in the
presence of counsellors capable of furnishing them with the instruments to work
through and manage them; services
aimed at foreign children with a cultural
mediator; information services for the family aimed at supporting the awareness
of the
role of every member of the family and facilitating a process of
responsibilization; social information services by way of the construction
of an
office open to the public which gives information on the resources available
throughout the territory; psycho-social interventions
and information/guidance
services.
341. Exploitation of child labour. Child labour has always
been on the agenda of the departments of the Ministry of Employment through
the
arrangement of appropriate supervision, usually programmed in the summer period
at the end of the period of compulsory education.
From the controls carried out
it seems that the phenomenon is widespread, if at different levels of intensity,
throughout the country
and involves both the violation of the legal age limits
for starting work and of the provisions on health and safety. The sectors
mostly involved in the phenomenon are the agricultural sector, some artisan
activity, and smallscale services to the public. In
1997, under the ordinary
control system, about 600 children were involved. There have also been
initiatives carried out on a local
basis, using officials and police of the
Labour Inspectorate in the areas at risk in 19 Italian towns. From the
information gathered
it can be seen that the phenomenon exists but the estimates
proposed by the various bodies and organizations diverge substantially.
The
estimate of 300,000 children working illegally is recurrent. This estimate
is inferred principally from data on children evading
compulsory schooling, but
the two phenomena, although obviously connected, cannot be considered to
have a relationship of cause and
effect. The absence of quantitative, but most
of all qualitative, data on illegal child labour remains a void to be filled,
and
is included as an objective of the Charter of Pledges for the Promotion of
the Rights of the Child and the Adolescent and for the
Elimination of the
Exploitation of Child Labour signed on 16 April by the Government
and the social partners.
Table 15
Accidents at work indemnified by
INAIL (National Institute for
Industrial Accident Insurance),
1994-1995
Region
|
12 years
|
13 years
|
14 years
|
Piedmont
|
1
|
1
|
66
|
Valle d’Aosta
|
|
1
|
|
Lombardy
|
2
|
3
|
292
|
Liguria
|
1
|
1
|
3
|
Veneto
|
1
|
1
|
148
|
Trentino
|
|
1
|
98
|
Friuli
|
|
|
7
|
Emilia Romagna
|
8
|
5
|
155
|
Tuscany
|
1
|
1
|
46
|
Umbria
|
|
|
24
|
Marche
|
|
|
55
|
Lazio
|
2
|
|
20
|
Abruzzo
|
|
|
18
|
Molise
|
|
|
4
|
Campania
|
1
|
|
5
|
Apulia
|
|
2
|
71
|
Basilicata
|
|
|
9
|
Calabria
|
|
|
5
|
Sicily
|
|
2
|
31
|
Sardinia
|
|
|
5
|
North
|
13
|
13
|
769
|
Centre
|
3
|
1
|
145
|
South
|
1
|
4
|
148
|
ITALY
|
17
|
18
|
1 062
|
Source: INAIL.
Table 16
Violations of the minimum age for employment, 1996
Region
|
Industrial companies
|
Artisans
|
Commercial
|
Agriculture
|
Total
|
||
Big
|
Medium
|
Small
|
|||||
Piedmont
|
|
|
|
1
|
3
|
|
4
|
Valle d’Aosta
|
|
|
|
|
|
|
|
Lombardy
|
|
4
|
1
|
1
|
8
|
8
|
22
|
Liguria
|
|
|
2
|
|
3
|
|
5
|
Veneto
|
|
1
|
|
5
|
8
|
|
14
|
Trentino
|
|
|
|
|
1
|
|
1
|
Friuli
|
|
|
|
|
1
|
|
1
|
Emilia Romagna
|
|
|
1
|
|
1
|
|
2
|
Tuscany
|
1
|
1
|
1
|
3
|
2
|
|
8
|
Umbria
|
|
|
|
|
|
|
|
Marche
|
|
1
|
|
|
1
|
2
|
4
|
Lazio
|
|
|
2
|
1
|
13
|
|
16
|
Abruzzo
|
|
|
|
1
|
4
|
1
|
6
|
Molise
|
|
|
1
|
|
|
|
1
|
Campania
|
|
1
|
8
|
4
|
2
|
2
|
17
|
Apulia
|
3
|
7
|
8
|
9
|
17
|
3
|
47
|
Basilicata
|
|
|
|
|
|
|
|
Calabria
|
|
|
|
|
5
|
|
5
|
Sicily
|
|
|
|
|
|
|
|
Sardinia
|
|
|
|
|
|
|
|
North
|
0
|
5
|
4
|
7
|
25
|
8
|
49
|
Centre
|
1
|
2
|
3
|
4
|
16
|
2
|
28
|
South
|
3
|
8
|
17
|
14
|
28
|
6
|
76
|
ITALY
|
4
|
15
|
24
|
25
|
69
|
16
|
153
|
Source: Ministry of Employment and Social
Security.
342. The legislation relative to the protection of child labour
is very rigorous, as shown in the previous report. The legislative
references
are: Law No. 977 of 17 October 1967, Decree of the President of the Republic
No. 36 of 4 January 1971 (light work in
which young people of not less than 14
years of age can be employed), Decree of the President of the Republic
No. 479 of 17 June
1975 (periodical medical visits for young
people employed in non-industrial work which exposes them to harmful processes),
Decree
of the President of the Republic No. 432 of
20 January 1976 (definition of hazardous, tiring and unhealthy work),
Decree of the President
of the Republic No. 367 of 12 April 1997, Decree of
the President of the Republic No. 365 of 20 April 1994 (employment of
children
in performances), Decree Law No. 566 of 9 September 1994
(amendments to regulations regarding sanctions relating to protection from
child
labour), Law No. 196/97, article 16 (amendments to the law on
apprenticeship), Law No. 157/81 (ratification of ILO Convention
No.
138).
343. These appear to be useful steps in bringing Italy into line
given the new socio-economic state of the country; less adequate
appears to be
the system of monitoring with the risk that the protection legislation will end
up being more a declaration of intent
than an effective system of protection.
It is, however, to be pointed out that:
− In 1997 the action of control of the Ministry of Employment was intensified by way of the Inspectorate and a special police support squad and that, in that year, 25,780 commercial companies were visited. In Sicily, given the dramatic cases of exploitation of child labour, a specific task force has been instituted by the Ministry’s police squad - which will be extended also to Calabria, Campania and Apulia, the regions most at risk - to curtail and control the phenomenon;
− As already stated, the Ministry of the Exchequer and social partners have stipulated a Charter of Pledges against the exploitation of child labour in which, among other things, the Government undertakes to promote interventions aimed at monitoring the abandonment of compulsory education and at countering it; to develop actions against poverty and child labour; to combat the plague of undeclared and hidden employment;
− The Ministry of Employment, in collaboration with ILO and ISTAT, will carry out an investigation (first of all in a Western country) to gain quantitative and qualitative knowledge about child labour, which will permit actions to be identified both at the preventative as well as the repressive level;
− The National Centre has opened, in an experimental manner, an information office on child labour aimed at citizens, social service operatives, institutions and associations which wish to receive information and documentation on the legislation and the contractual rules which regulate in Italy the work relationship with citizens who have not reached the age of majority but have the right to work;
− Attention has been given to professional training (151,634 young people participated in regional courses in the two years 1994-1995 and 148,991 in the two years 19951996); and besides the offer of ordinary training, there is also the EU initiative called “Occupation - Youthstart” in which projects have involved 5,000 beneficiaries between the ages of 14 and 19 in the two years 1995-1996 and 22,800 in the subsequent two years 1997-1998;
− The Ministry of Employment has given its patronage to an initiative of the confederated unions Cgil, Cisl and Uil, promoted together with the Italian Committee for UNICEF, which has collected from among workers and companies about 3 billion lire in order to raise public awareness about the exploitation of child labour and to launch ILO-UNICEF integrated projects initially in Nepal, Bangladesh and Pakistan.
F.
Sale, trafficking and abduction of children
(guidelines 160-162)
344. The possibility of sale, abduction or trafficking in children is
present as a preoccupation at a general level and at various
specific levels.
The problem concerns, in particular, children who are born in Italy who are sold
by or abducted from their parents
and then falsely registered as the child of
those who have bought or abducted them. For foreign children, it is thought
that some
adoptions carried out in the countries of origin may arise from the
purchase or abduction of children and that intermediaries traffic
children with
the aim of satisfying the desire for children on the part of Italian
couples.
345. One phenomenon which has been discovered is children who
have been brought to Italy by organizations that bought them from their
families
of origin to be used to beg or steal or become prostitutes, sometimes reducing
them to a state similar to slavery. On the
other hand, the investigations
carried out have not permitted verification of rumours that emerge every now and
again of children
who are given or imported for the traffic in
organs.
346. In any case, at this point, the question of separated
parents who belong to different national communities who abduct their child
from
the parent who has custody or do not return him or her at the agreed time would
appear to lie outside these phenomena. This
situation is regulated under the
relevant conventions of the Council of Europe of Luxembourg and of
The Hague, ratified by Italy
by Law No. 64 of 15 January 1994, which
laid down procedural rules which now render action effective.
347. On the
general problem of sale, abduction and trafficking in children, Italy has not as
yet concluded any bilateral or multilateral
conventions with other States, nor
has the need been felt to do so, owing to the extremely low incidence of the
phenomena and to
their control through action by the ordinary police force. The
limited and occasional circumstances in which these events occur
explain why no
specific measures of an administrative, educational, social and financial nature
have been adopted except for taking
action under the general instruments of
protection of children from the various forms of exploitation and save what will
be said
in the following points.
348. Italian legislation offers
sufficient and suitable instruments to repress these activities. At the base
there is the acceptance
of the International Conventions for the Suppression of
the Traffic in Women and Children approved at Geneva on 30 September 1921
(ratified and implemented in Italy under Royal Decree No. 2749 of 31 October
1923) and of the Supplementary Convention on the Abolition
of Slavery, the Slave
Trade, and Institutions and Practices Similar to Slavery - which makes explicit
reference to children - approved
at Geneva on 7 September 1956 (ratified and
made executive in Italy with the Law No. 1304 of 20 December
1957).
349. In implementation of these conventions the Italian Criminal
Code, under articles 600, 601 and 602, provides the crimes of reduction
to
slavery, trafficking and trade in slaves and alienation and purchase of slaves
which also punish conduct which places a person
in a condition analogous to
slavery. These criminal provisions were applied a short time ago in the
criminal proceedings against
members of organized crime which paid poor families
in the former Yugoslavia sums of money to acquire children to bring them to
Italy
in order to break into houses.
350. Trafficking in children with
the aim of making them prostitutes in Italy is made a crime under Law No. 75 of
20 February 1958
which punishes both Italian and foreign organizations and those
who, personally or in association with others, recruit people with
the aim of
making them engage in prostitution, with a double punishment when the passive
party is under the age of 21. It should
be added here that the new law
which was recently approved (Law No. 269 of 3 August 1998,
art. 9) has introduced as a specific crime
anyone who “commits
trafficking or in any way trades in children under the age of 18 years with
the aim of procuring them to
become prostitutes”.
351. The
employment of children in begging is punished by article 671 of the Criminal
Code but is limited to children under the age
of 14 years, and therefore
there is a loophole in criminal repression. The phenomenon of nomad families
and citizens of States which
do not belong to the European Union who use not
only their own children for begging or for washing windscreens but also other
children
given by their family of origin for this “work”; this has
been discovered many times, but it has been preferred to intervene
with measures
of protection, taking the children away from these situations.
352. The
buying of newborn babies (or their “kidnapping” from the hospital
where they are born, with the complicity of
someone on the staff) by couples who
then falsely register the child as their own is punished very severely as the
crimes of suppression
of status and alteration of status (arts. 566-567,
Criminal Code), of abduction of incapable people (art. 574, Criminal Code)
and
of kidnapping (art. 605, Criminal Code).
353. As regards the
concern that, in intercountry adoptions, children are sometimes kidnapped or
acquired in their countries of origin
or in which intermediaries operate with
the aim of satisfying the desire for children on the part of Italian couples,
the remedy
is about to be supplied with the ratification, currently in course,
of the Hague Convention for the Protection of Children and Cooperation
in
Respect of Intercountry Adoption of 29 May 1993 and by the law which
modifies intercountry adoption which accompanies the latter,
which provides that
in Italy only
children who pass through the accredited and supervised channels can be
adopted and introduces the system of bilateral agreements
between Italy and the
countries of origin of the children. The same law stipulates that couples who
aspire to adopt must follow
obligatory training.
354. The Italian
legislation considers the category of “exploitation” within the
category of harm and entrusts the Juvenile
Court (arts. 330, 333 and 336,
Civil Code) with the task of taking the measures against parents or those
exercising parental authority
who carry out harmful conduct - whatever this may
be - to the detriment of the child.
355. Action by a judge against
abusive adults or institutions outside the family is not expressly provided but
the Juvenile Courts
act in a wider manner in these situations. It is also
affirmed in principle, taken from article 23, Decree of the President of the
Republic No. 616/1977, that the Juvenile Court can, in situations of ascertained
harm, oblige the local authority to provide assistance
(which can range from an
adequate extra-familiar arrangement to educational support to control) for the
protection of a minor who
in any way is in a situation of harm.
356. As
regards administrative actions relating to protection, article 9 of Law No. 142
of 8 June 1990 gives municipalities all the
administrative
functions which involve the population and therefore also the task of
intervening by way of their social services
in possible situations of
exploitation of children.
357. Regarding a category of minor which is
more easily subject to exploitation, namely foreigners, article 31 of Law No. 40
of 6
March 1998 provides for the establishment of an appropriate Committee for
Foreign Children at the Department of Social Affairs of
the Prime
Minister’s Office. It has the task of controlling the modes of residence
of foreign children admitted temporarily
into Italy and of coordinating the
activities of the administrations involved. In that regard the Government, with
a recent legislative
decree approved on 9 February 1999 concerning Amendments to
the Consolidated Act of the Provisions concerning the Regulation of Immigration
and Provisions on the Condition of Foreigners, has established that the
tasks of the aforesaid committee must also include the task of achieving the
best interests of the child,
which is normally to live in his or her own family.
The regulation, therefore, based on the supposition that in Italy the presence
of the unaccompanied child must be considered an exception, provides the
procedure of assisted repatriation of the foreign children
with the aim of
allowing their reunification with their families in the country of origin or in
a third country, attributing the
jurisdiction to order such measure to the
committee itself.
358. In this situation it is intended to widen the area
of protection against all forms of exploitation of the child with the
introduction
(by way of an appropriate law which defines the powers-duties and
the structures) of the figure of the guarantor - or guardian -
for children, a
figure which today has been established in only two Italian Regions (Veneto and
FriuliVenezia Giulia).
VI. BASIC HEALTH AND WELFARE*
A. The right to life, survival and development
(guidelines
4041)
359. Italy
has always clearly recognized the principle established by the World Health
Organization (WHO) that health needs to be
understood not only as the absence
of disease or infirmity, but mainly as a state of complete physical, mental and
social wellbeing,
which enables the individual to develop to his or her fullest
potential and to participate actively in society. The Italian Constitution
affirms that health is both an individual right and a collective resource; that
the State protects (rather than promises to protect)
this resource; that every
individual not just every citizen but every human being has the right to
health; and that health is a
fundamental right, which means that it is
inviolable, inalienable, and unable to be transmitted, disposed of or renounced.
The Constitution, therefore, commits the entire society to take action so that a
resource of primary importance such as health does not risk being
compromised if
already possessed, and can be attained if lacking. To ensure that this right is
fulfilled, curative measures are
not enough: preventative and proactive
measures are also needed.
360. The Italian legal system recognizes the
right to life of the unborn child: Although Law No. 194 of 22 May 1978
does indeed legalize
abortion but only in particular circumstances and in
precise ways this same law affirms that the State protects human life from
conception and that abortion is not a means of birth control (art. 1). It
obligates family planning centres to work towards resolving
problems arising
during pregnancy and to contribute to overcoming the causes that may prompt a
woman to seek an abortion (art. 2).
361. Other regulations also
provide for the protection and health of the unborn child. The law protecting
working mothers contains
practical provisions to safeguard a woman’s
physical integrity, but its main objective is to ensure the optimal development
of the unborn child: Law No. 860 of 26 August 1950 (art. 5) and Law
No. 1204 of 30 December 1971 (art. 4) prohibit the employment
of women
in the period immediately preceding childbirth and make it impossible for the
pregnant woman to renounce this protection.
Law No. 1204 of 1971
(art. 3) prohibits employing pregnant women in work that involves the
transportation or lifting of heavy objects
or in work that is dangerous, tiring
or unhealthy. The Criminal Code (art. 146) stipulates that a pregnant
woman cannot serve a
prison sentence, a measure that is clearly not meant to
privilege the sentenced woman but to protect the unborn child (and, in fact,
it
applies for the six months following childbirth as well, when the health of the
child and not the mother is at
stake).
__________________
* This section deals
with the issues relating to articles 6, 18, paragraph 3, 23, 24, 26 and 27,
paragraphs 13 of the Convention,
to which paragraphs 92104 of the
guidelines refer and article 33 of the Convention, to which
paragraphs 155157 of the guidelines
refer.
362. Italy is strongly committed to combating infant mortality, and the
results have been noteworthy. During the last few years,
infant mortality has
continued to decline, falling from 8 per 1,000 live births in 1991 to 6.5
per 1,000 in 1995, while perinatal
mortality fell from 11 to 8 per 1,000
live births over the same period. Similar trends are found in other Western
European countries,
among which Italy ranks in the middle. It should be noted,
however, that wide discrepancies continue to exist between the CentreNorth
of
the country and the South: in 1995, for instance, infant mortality was less
than 5 per 1,000 live births in the CentreNorth while
it exceeded 8 per 1,000 in
many regions of the South. This gap can undoubtedly be linked to the
environment and to social inequalities,
but it is also the result of
inadequacies in the regional structure for intensive infant care. There are, in
fact, sharp differences
in perinatal and infant mortality rates among regions
with similar socioeconomical and educational levels.
363. A reporting
system for infant mortality exists in Italy (and all deaths are registered).
Nevertheless, this reporting system
should go beyond the traditional role of
recording mortality rates to monitoring health and the quality of life in
relation to chronic
conditions and critical events that are not fatal, such as
disability, poverty and atrisk behaviour.
364. While infant mortality
has declined in Italy, accidents are still a leading cause of death in
childhood: accidents rank fourth
in causes of death after perinatal diseases,
malformations and tumours. Italy still lacks an epidemiological monitoring
centre for
the collection of data relating to childhood accidents (which would
be an important step towards reaching the WHO goal of reducing
accidentrelated
deaths by 25 per cent). A significant source of information is
nevertheless provided by the extensive sector analyses
carried out in various
parts of the country. From these, it can be seen that most accidents occur in
the home; boys tend to have
more accidents than girls; most accidents occur
between 11 and 24 months and after 10 years of age; accidents also frequently
occur
in schools and especially in gymnasiums. Intensive information campaigns
need to be promoted, targeting parents. Stricter regulations
on the safety of
school structures are also needed (in secondary schools many gymnasiums do not
meet safety standards). Luckily,
most household accidents are not serious.
365. One positive trend that needs to be highlighted, however, is the
steep decline in the number of childhood deaths due to road
traffic accidents:
between 1975 and 1995, the number of road traffic deaths among under14yearolds
fell from 721 to 174, which in
absolute numbers is 547 fewer deaths,
or a 75.6 per cent reduction. In 1975, deaths due to road traffic
accidents represented 7.6
per cent of all deaths in this age group,
whereas in 1995 they represented only 2.7 per cent.
366. In our
country but not only in ours there has been an increase in psychosocial
problems among preadolescents and adolescents,
which often seriously compromise
their development and sense of identity. A number of factors point to this
increase even if the
total numbers are not yet alarming:
− The increase in serious cases of mental disorder (too often minimized as being merely symptomatic of psychosocial problems and kept under control with an unsatisfactory regime of prescription drugs);
− The notable increase in cases of bulimia and anorexia (longitudinal studies have shown that in 1950 only 0.5 per 1,000 adolescent girls had minor eating disorders, whereas today 810 per cent of adolescents have serious and dangerous disorders, with occurrences among boys as well as girls);
− The increase in the number of children under 15 years of age using public medical services for drug addiction (between 1990 and 1995, there were 463 cases, 429 of which involved boys and 34 girls);
− The failure to reduce the number of suicides (45 in both 1987 and 1996) and attempted suicides (from 150 in 1987 to 145 in 1996) (see tables 3.7 and 3.8 attached);
− The significant number of children who leave home without a trace (see tables 15.115.3 attached);
− The increase in bullying, in more or less serious forms, among schoolage children (studies undertaken in several regions of Italy reveal that 41 per cent of children in primary school and 26 per cent of those in middle school have been victims of bullying).
367. It is indispensable that
steps be taken to help adults who are in contact with adolescents learn to
recognize the symptoms of
maladjustment more readily and to give adolescents
themselves greater opportunities to learn to be at ease with themselves and to
get along with others.
368. The implementation manual for the law
relating to the promotion of the rights and opportunities of children and
adolescents recommends
and provides for the following measures:
− Measures for the social and emotional education of children, to be carried out in schools with the collaboration of the teachers;
− Educational measures for parents for the prevention of maladjustment;
− Measures that facilitate children’s social integration and adequate support for parents, when less serious forms of maladjustment emerge; psychotherapy made available even within the public structure;
− The establishment of specific communities for adolescents with psychological problems.
369. To help young people to become
more selfreliant, adolescent health centres have been set up alongside or within
family health
centres. Recent research (carried out by the Italian Institute
for Social Medicine) reveals that in Italy 348 adolescent health
centres/offices
are already in operation (119 in the North, 78 in the Centre, 94 in the South
and 57 on the islands) with a total
staff of 1,891. Adolescent health centres,
unlike family health centres, provide
services that are equally divided
between sex education and social welfare measures (including measures for the
prevention of drug
addiction, scholastic or professional orientation, health
education, and prevention of maladjustment and delinquency).
370. A
further development along these lines is desirable and would represent an
important contribution to overcoming maladjustment
among adolescents. A
fundamental step towards improving conditions for child development and ensuring
full health as defined by
WHO is to make the social environment more responsive
to the needs of children and young people. For this reason, the Ministry for
the Environment is strongly committed to creating childfriendly cities,
modifying the way cities have been managed up till now, in
that children need to
be considered as indicators of the quality of urban life and their needs and
spaces as parameters for the promotion
of sustainable development. These
measures herald a new season for urban planning, devoting a portion of general
measures planned
by cities to initiatives for children, rethinking services for
children, using school structures to their best advantage, organizing
safe play
areas, setting up youth councils and other participatory bodies, devising urban
road traffic and transportation plans,
promoting environmental education
activities, and encouraging the establishment and use of neighbourhood
recreational areas.
371. The Ministry for the Environment has also set
up an office for childfriendly cities, which is responsible for monitoring local
measures. This office has established a children’s seal of approval in
four principal sectors (environmental, social, cultural
and institutional) and
has opened an advisory desk and a web site on childfriendly cities. With the
Ministerial Decree of 3 August
1998, an award was established for
“childsustainable cities” to be assigned to different municipalities
in Italy. During
the present year, on a trial basis, the initiative targeted
municipalities with populations exceeding 15,000. On 17 November 1998,
a
commission was nominated to examine and evaluate these projects, composed of
representatives from the Ministry for the Environment,
the Department of Social
Affairs, the StateCity Commission, ANPA (the Italian Environmental Protection
Agency), the Italian Committee
for UNICEF and, for the first time,
three young people representing the National Committee of Youth
Councils and several environmental
associations. Municipalities received
awards on the basis of actions they had taken to improve the conditions and
opportunities
in the lives of children. On 22 December 1998, 15
of the 82 municipalities examined received the award.
372. In addition,
the Ministry for the Environment has organized an international forum on
childfriendly cities; it has promoted workshops
for staff of local authorities
in order to illustrate the accomplishments, techniques and administrative
instruments for the creation
of parks, play and recreation areas, for the
reduction of traffic and for sharing experiences in participatory planning; and
a workshop
for adolescents who illustrated and compared their
experiences.
373. Furthermore, the State has allotted
300,000 million lire for the realization of urbanrenewal measures in poor
outlying areas
of cities. The programmes seek not only to find solutions for
degraded buildings and areas but also to provide concrete opportunities
to
reduce the different forms of social deprivation and to encourage the training
and work placement of adolescents.
B. Health education
374. For the right to health, or the right to
wellbeing, of every child to be promoted effectively, intense training
activities are
required. And these activities must take place within the school
system, which reaches all children and creates particularly strong
relationships
with them on the level of training. The Italian school system has for some time
planned and carried out a full programme
of health education and the prevention
of alcohol, tobacco and substance use.
375. Health education for
adolescents has generally sought to:
− Raise adolescents’ selfesteem and selfknowledge;
− Enable them to gain a better knowledge of their own potential, and increase their selfreliance and sense of responsibility;
− Foster among adolescents a sense of belonging to the community and its institutions as a antidote to the absence of values and a sense of being without roots;
− Develop their abilities to think critically and to resist peergroup pressures; and
− Foster a realistic understanding of substance and alcohol abuse.
376. In particular, health education has:
− Promoted attitudes and lifestyles that favour selfprotection, the conservation of health and the prevention of illness;
− Raised awareness about the interaction between social developmental processes and the quality of health;
− Improved the interaction between the citizen and the health system;
− Strengthened the capacity of young people to understand their own needs;
− Promoted and spread a positive attitude towards health that takes into account biological, psychological and social resources, overcoming a negative view of health that equates illness or disorder with medical or pharmacological measures, even in the face of more complex biological or psychosocial disorders.
377. The Ministry of Education has carried out the following
projects:
− The Rainbow Project (Progetto Arcobaleno), with activities in 2,400 nursery schools, reaching some 400,000 children between 3 and 5 years of age (43.9 per cent of the population in this age group);
− The Children in the Year 2000 Project (Il progetto Ragazzi 2000), with 4,270 projects in 3,000 primary schools, reaching approximately 1 million pupils (43.4 per cent); and 7,400 projects in middle schools, involving 56 per cent of the population in this age group;
− The Young People in the Year 2000 Project (Il progetto Giovani 2000), which has been developed in 75 per cent of secondary schools, reaching 864,000 students (35.4 per cent).
378. Health education teachers have had access to training
courses and onthejob training. Training has enabled them to gain a better
knowledge of the various developmental stages of children, including cognitive,
psychological and emotional development; to understand,
in the context of new
knowledge and learning theories, the different ways of knowing and learning that
exist and the role that individual
motivation plays in these; to learn teaching
methods and techniques that value diversity and the students’ resources;
to understand
the importance of emotional factors in the teachinglearning
process and the role that studentteacher relationships play within the
classroom; to learn to identify and tackle collectively the difficult cases that
arise and, when necessary, to seek assistance from
the competent services.
379. “Information and Advice Centres” have been set up which
provide advice to individuals on health problems; plan information
campaigns on
the main health themes and preventive measures on topics relating to
affectivity, sexuality and pathologies connected
with atrisk behaviour; involve
students themselves in planning initiatives aimed at preventing and promoting
health; and design measures
to help counter scholastic difficulties. Courses
were also held with parents in order to increase their competence in and
awareness
of educational issues and to provide them with information that could
enable them to take an active part in preventing maladjustment
and
addiction.
C. The situation of children with disabilities
(guideline
92)
380. During the last
decades the overall situation of children with disabilities has progressively
improved, and their welfare, health
and educational needs are far better met
today than in the past. This progress is the result of many factors, including
the profound
and radical cultural and socioeconomic changes that have occurred
within Italian society; improved legislation relating to social
problems and
issues specifically connected with disabilities; and the realization of
increasingly innovative and targeted social
policies.
381. Compared with
the situation in the 1970s, children with disabilities whether congenital or
acquired now have greater opportunities
to grow up in a family setting; they
tend to be included in mainstream schools rather than placed in special
education centres; and
they increasingly take part in everyday
life.
382. Attitudinal changes are also apparent among families with
children with disabilities: they no longer feel ashamed of their child;
they
have come out of their social isolation, overcome attitudes of resignation, and
avoid forms of delegation; they make their requests
for assistance known and
demand that their civil rights are recognized and respected.
383. Associations of families have been formed and have made themselves
heard. Either independently or in collaboration with other
similar
organizations, they have given priority attention to the problems of children
with disabilities. Many of these organizations
promote and set up
rehabilitation centres and daycare centres; they organize cultural and social
events to make the public and local
authorities aware of problems connected with
disabilities; they focus the attention of institutions on the needs of children
with
difficulties; and they exert pressure on local authorities to set up area
services.
384. Organizations of volunteer groups and groups of
professional workers are becoming actively involved in raising awareness of the
needs and problems of individuals with disabilities. Their situation is
increasingly being viewed as a social problem, and is finding
responses in the
law, in treatment and rehabilitation strategies and in the choice of social
policies.
1. The rights of children with disabilities under Italian law
385. Italian legislation recognizes that
children with disabilities have specific rights and are entitled to specific
forms of protection
and equal opportunities to develop their personalities,
selfreliance and ability to participate in society. The numerous relevant
provisions, besides being part of childrelated legislation, largely originate
and are placed within the context of legislation on
disabilities.
386. Initially these laws were developed in response to the
welfare needs of individuals with disabilities; subsequently and to an
increasing extent, they have been in response to the growing needs connected
with their social integration.
387. Early laws, which were specific and
fragmentary, have been followed by others that are less sectoral and more
general relating
to:
− Financial assistance (Law No. 62/66 and Law No. 406/68; for blind persons, Law No. 381/70; for deaf mutes, Law Nos. 118/71 and 18/80; for civilians with disabilities, Law No. 508/88; for all categories, Law No. 104/92);
− Social welfare (Decree of the President of the Republic No. 616/77, Law No. 6972/80 and Law No. 104/92);
− Health care (Law Nos. 118/71, 833/78 and Law No. 104/92, financial laws);
− Education (Law No. 118/71, Law No. 517/77; for compulsory schooling, Law No. 270/82; for nursery schools, Law No. 104/92);
− Professional training (Law Nos. 845/78 and 104/92);
− Work (Law No. 482/68; on obligatory placement, Law No. 104/92); and
− Mobility (Law No. 118/71, Decree of the President of the Republic No. 384/78, and Law Nos. 41/86, 13/89 and 104/92).
Together, these legislative measures define an
everwider legislative framework for persons with disabilities and create
conditions
that favour their cultural, economic and social integration.
388. At present the Magna Carta for Italian children with disabilities
can be considered Law No. 104 of 5 February 1992, the “Framework
Law
for the Assistance, Social Integration and Rights of Persons with
Disabilities”. Its aims are respect for human dignity,
maximum
selfreliance and participation, functional and social rehabilitation and the
elimination of social marginalization.
389. In accordance with
constitutional provisions, this legislation has sanctioned the general
principles of the rights of persons
with disabilities. It has brought together
and integrated previous provisions and set out measures (information, early
diagnosis,
health education, removal of prenatal, post-natal and environmental
risk factors) to prevent and eliminate disabling situations.
It has planned
services that support independent and integrated living; made provisions to
counter processes of marginalization
and discrimination; specified legal and
administrative instruments to give an adequate and holistic response to
individuals with
difficulties. It has made it clear that persons with
disabilities are considered “handicapped” when their disabilities
cause difficulties and lead to social disadvantage. One no longer speaks of the
“seriously handicapped”, but rather
of persons with serious
disabilities, using a terminology that indicates a vision of the evolving and
dynamic nature of the psychological,
physical and social conditions of persons
with disabilities.
390. The law pays particular attention to the needs
of children with disabilities:
− It provides for entry into a crèche from birth to 3 years of age;
− It sets out a series of measures to guarantee integration in nursery schools and all other academic establishments;
− It provides for specific facilitations for working parents; and
− It identifies measures and services that ensure social integration (foster placement, daycare centres for social rehabilitation and education; community and children’s homes).
391. Two successive
amendments have been introduced (Law No. 162 of 21 May 1998 and No. 17
of 28 January 1999), which provide, among
other things, for:
− Promotion of statistical research on disabilities, and the convening of a national conference every three years on policy issues relating to disabilities in order to identify eventual corrections required in the laws in force;
− Promotion of pilot projects aimed at improving the living conditions of persons with serious disabilities;
− Guaranteed technical and teaching support for university students with disabilities, as well as the support of specialized tutors and teachers to ensure the students’ integration;
− Planning and implementing personalized programmes to help individuals with serious disabilities to become as selfreliant as possible, with monitoring of the services provided and their efficacy.
392. With the
progressive decentralization of State competence to local authorities, there has
been an increase in regional legislation
relating to the family and children, as
well as in detailed regulations concerning the particular needs of children with
disabilities
(assistance, the right to education, the removal of architectural
barriers, mobility, information, leisure, sports, etc.).
393. Framework
Law No. 104/92, together with subsequent State and regional legislation,
has not been fully implemented in every social
context and geographic area. A
number of factors among which, the fact that sectoral laws continue to exist in
the legislation,
the lack of adequate practical laws, the scarce
responsibilities of competent bodies in observing these laws, the intermittent
coordination
among different institutions and the insufficient involvement of
local bodies and the local community still prevent children with
disabilities
from fully enjoying their civil rights and make it difficult for them to
integrate into all social spheres (family,
school, community).
2. Prevention, early diagnosis and rehabilitation
394. In addition to Framework Law
No. 104/92 and its subsequent amendments, a number of national and regional
laws relating to health
contain principles protecting children with disabilities
and promoting their health. These laws regulate how and when services are
provided and their integration with social welfare
measures.[12] In particular,
children with disabilities are guaranteed specific forms of medical assistance
(table 16).
395. In the context of the health system, ongoing
programmes and specific guidelines set out specific measures relating to
prevention,
early diagnosis, treatment and rehabilitation.
396. In the
national health plan for 19941996 a project to be implemented throughout the
country concerned the protection of mothers
and infants. It provided, in
particular, for the following measures:
− Strengthening and ensuring an adequate distribution of services for the prevention and early diagnosis of genetic diseases;
− Setting up and strengthening services of integrated home assistance for families with children, aged from birth to 14 years, with serious disabilities;
− Identifying and strengthening structures for the prevention, diagnosis, treatment and rehabilitation of disabilities, and, more specifically, starting up services for the rehabilitation of children (birth14 years).[1]
Additional
projects have been set up for children with disabilities in the related health
plans of the different regions.
Table 16
Specific types of health care for children with disabilities
Services
|
Modality
|
Responsibility of
|
|
All children requiring treatment
|
Rehabilitative treatment
|
Services:
home care outpatient semiresidential residential |
Local branch of the National Health Service (ASL)
Private services operating within the National Health Service |
Children with disabilities
|
Prostheses
|
Free provision
|
ASL
|
Children with disabilities
|
Pharmaceuticals
|
Exemptions from payment of user fees
|
ASL
|
Children with disabilities
|
Specialist care
|
Exemptions from payment of user fees
|
ASL
|
All children requiring treatment
|
Health care in a foreign country
|
Reimbursement of costs sustained
|
ASL
Region |
397. Inasmuch as institutional responsibilities have been defined, the
right to receive health services or rehabilitation is not equally
guaranteed
throughout Italy. Some Regions have long had structures capable of meeting the
specific rehabilitative needs of children
with disabilities. Others, instead,
have such inadequate facilities that they cannot assure continuity of treatment,
forcing individuals
in need to seek treatment in centres in other
Regions.
3. Measures for families with children with disabilities
398. In Italy, the practice of
institutionalizing children with disabilities, although still in existence, is
becoming less common
and in fact is nearly obsolete. In its place, integrated
structures that provide alternatives to the family of origin are being
set up.
In 1992, the total number of children under 18 years of age with disabilities
assisted by health and social services programmes
within institutions was 3,901.
The exact number of children with disabilities in institutions is currently
unknown, but with the
progressive implementation of the provisions of Law
No. 104/92, it is likely that their numbers are decreasing
dramatically.
399. Today, children with physical, sensorial and mental
disabilities, in the vast majority of cases, live and grow up in the family,
which is the primary environment on which institutional and social responses are
concentrated. The fact that the vast majority of
children with disabilities
live at home and among these, children with serious disabilities has required
and brought about radical
changes in health and social services provision.
Services, which tended in the past to be sectoral and specifically oriented
towards
the child with disabilities, are today increasingly directed at the
family or, in any case, are integrated with other measures targeting
the
family.
400. Based on current laws, on institutional competence and on
organizational procedures, some facilities are currently provided for
children
with disabilities and their families (higher family allowances, paid leave for
working parents when the child is under 3
years of age and paid leave for three
days a month when the child is over 3, tax benefits, tax and economic benefits
to overcome
physical barriers within the home), special allowances (both
continuing, such as indemnity for companions and attendance, and noncontinuing);
and integrated social and welfare services and support services for families
(home care or household help, personalized help, daycare
centres for the
rehabilitation and education of the child) or in replacement of the family
(foster care and residential structures).
401. The various solutions
have not always been found in a holistic and timely way.
402. The
economic and tax benefits provided for in national laws have not been
accompanied by the social and welfare services foreseen,
which are the
responsibility of the local authorities. At the local level, the policies in
support of the family, within which responses
to the needs of its members must
be placed, still appear to be disorganized and discontinuous. In many Regions
the commitment of
the local authorities towards the needs of children with
disabilities, even in the absence of the family of origin, have resulted
in
surveys, planning of projects and the realization of a locally provided
integrated system of services as an alternative to institutionalization.
In
other situations, especially in southern Italy, the network of local social and
welfare services is not complete or is thinly
spread. In some cases, the lack
of services for children with disabilities is truly dramatic, especially when,
for various reasons,
parents are absent or unable to fulfil their functions. In
many situations, institutionalization is the only option, in structures
that are
outside of the Region or at any rate far from the child’s home.
4. Local services for the promotion of selfreliance and social integration
403. In Italy, there is greater acceptance and
integration of children with disabilities than in the past, and overt forms of
discrimination
and violence towards these children are only exceptionally
found.
404. It is widely believed that the family and the school are not,
and cannot be, the only worlds in which children with disabilities
live. All
children have the need and the right to play, to learn and to express
themselves; to be with others and to have different
cultural, social and
recreational experiences; to grow up in environments and spaces outside of their
home and school. Using areas
to play, to talk and to socialize with others is
therefore not the exclusive need of certain people. Children with disabilities
do not have special requirements in this respect, but often, precisely because
of the permanent situations of disadvantage with which
they live, they have more
need than others do for this kind of space.
405. This growth of social
awareness has not given rise, in all areas of the country, to the necessary
arrangements for related services
and extracurricular measures. Often the right
of children with disabilities to equal opportunities is still conditional and,
in
some cases, denied. The barriers that exist in public and private buildings,
in social and tourist structures, in urban areas and
in public transport are for
many children with physical or motor difficulties the concrete indicators of
their daily discomfort.
When local authorities create recreation and social
services and areas for children, they do not always take into consideration
the
needs of children with mental disabilities and they do not arrange adequate
forms of support to facilitate their participation.
5. Outlook for overcoming the barriers to equal opportunity
406. In respect for and in the implementation
of the principles approved by international organizations and affirmed by
Italian law,
social policies adopted in the last few years in Italy have
contributed to a general improvement in the quality of life enjoyed by
children
with disabilities. Nonetheless, inequalities still exist: poverty; cultural,
social and affective deprivation; gaps and
discrepancies in the provision of
local services; difficulties in socializing.
407. The participation in
programmes of the European Community and the contacts, exchanges of experience
and the forms of cooperation
carried out by the public administration, private
social organizations and associations have favoured research and the choice of
innovative solutions on a practical level. These initiatives in different areas
have made it possible to try out and realize new
intervention models in the
sectors of rehabilitation, professional training and mobility; together, they
have contributed to the
definition of specific strategies for dealing with
disabilities and have resulted in improvements for people with disabilities in
terms of communication and forms of participation in social life.
408. In this process, and through the sharing of strategies of good
practice for realizing equal opportunities, the problems that
still exist can be
overcome mainly by improving, on a local level, the programmatic choices of
social policies, the organization
of childcare services, information about
disabilities, the ethos of integration and the practice of solidarity.
409. The situation of children with disabilities must be considered
within the context of the overall situation of children. Children
with
disabilities do not have “special” needs; they can have greater
difficulties and thus require different and targeted
measures, but they need,
first of all, the same responses as their peers.
410. The lack of
knowledge about the total number of children with disabilities in a given area
should not in any way be an obstacle
to planning measures in their favour. Many
local services (transportation, social centres, gymnasiums, swimming pools and
parks)
do not have to be organized especially for children with disabilities,
but rather also for them.
411. As is already happening in different
Regions, a timely knowledge about the cases of children with grave disabilities
and a systematic
survey of their needs are of fundamental importance in order to
give immediate and detailed responses to specific situations and
thus should be
encouraged and accomplished but not emphasized.
412. Disability is
normally not a stationary condition, and its seriousness can change over time,
depending on multiple variables
(cultural, social, economic, technological and
environmental).
413. Continued efforts are needed throughout the country to
make the best use of existing resources, to survey children’s needs
whatever their form, and to build a network of services that is flexible and
able to adapt to the different and changing needs of
families and their members.
It is a matter of making a network of integrated area services visible,
functional and measurable. This
network should involve private organizations,
associations, voluntary groups and informal selfhelp networks. It should be
able to
offer a wide array of measures and support for the best promotion of
child development, with particular attention to individuals
at risk of being
marginalized, and it should also be able to promote and sustain a permanent
ethos of respect for civil rights and
solidarity.
Table 17
Children with disabilities (0-17 years) in social welfare
institutions,
by age and region, 1992
< 5 years
|
5-17 years
|
Total
|
|
Piedmont
|
11
|
260
|
271
|
Valle d’Aosta
|
-
|
2
|
2
|
Lombardy
|
7
|
301
|
308
|
Trentino Alto Adige
|
-
|
26
|
26
|
Veneto
|
22
|
363
|
385
|
Friuli
|
-
|
43
|
43
|
Liguria
|
4
|
84
|
88
|
Emilia Romagna
|
11
|
136
|
147
|
Tuscany
|
5
|
101
|
106
|
Umbria
|
-
|
61
|
61
|
Marche
|
1
|
81
|
82
|
Lazio
|
15
|
428
|
443
|
Abruzzo
|
4
|
112
|
116
|
Molise
|
-
|
19
|
19
|
Campania
|
114
|
359
|
473
|
Apulia
|
47
|
404
|
451
|
Basilicata
|
1
|
50
|
51
|
Calabria
|
8
|
134
|
142
|
Sicily
|
50
|
608
|
658
|
Sardinia
|
1
|
28
|
29
|
ITALY
|
301
|
3 600
|
3 901
|
North-west
|
22
|
647
|
669
|
North-east
|
33
|
568
|
601
|
Central
|
21
|
671
|
692
|
South-Islands
|
225
|
1 714
|
1 939
|
Source: ISTAT, Statistiche della previdenza della sanità e
dell’assistenza sociale, anni 1992-93 (Health and Social
Welfare Statistics, 1992-93), Annuario n. 33 (Yearbook No. 33),
1995.
414. For a discussion of the integration of children with
disabilities into schools, see the section of the following chapter of this
report regarding schooling for children in especially difficult situations.
D. Health and health services
(guidelines 93-98)
1. Statistics on the health of children in Italy
415. Data
on the health situation of children in Italy can be found in the attachment to
this report (points 2, 3, 4, 5).
416. It should be noted, that except for
sporadic and exceptional cases which are statistically insignificant,
malnutrition is non-existent
in Italy and clean drinking water is available
everywhere; no significant risks exist in connection with environmental
degradation
and pollution; and there are no traditional practices that are
prejudicial to the health of children, or otherwise contrary to the
principles
and provisions of the Convention.
417. As far as international
cooperation is concerned, reference is made to the paragraph related
specifically to this type of intervention.
2. Access to services
418. All children have access to health
services, with exemption from user fees for lowincome families and payment of a
small user
fee for all others. Health care is guaranteed to all foreign
children living in Italy, including illegal immigrants. Article 33
of the
recent Law on Immigration stipulates that “the health of the minor will be
protected in accordance with the Convention
on the Rights of the Child”.
Immigrants have the same rights as Italian citizen to vaccinations and family
planning assistance.
The same law - which establishes that services should be
provided free-of-charge to indigent users - also ensures that illegal immigrants
can use health services without risk of being discovered and deported,
specifying that “access to health structures on the
part of the foreigner
not adhering to the regulations relating to residence cannot involve any type of
reporting to the authorities,
except in cases in which reports are obligatory,
the same as they would be for an Italian citizen” (art. 33, para.
5).
3. The national health plan and child protection
419. The national health plan 1998-2000 makes
special provisions for children and adolescents. It recognizes that:
− Although infant mortality is being progressively reduced throughout Italy, there are still wide regional disparities, with the South lagging behind the North;
− The increase in the proportion of children with disabilities resulting from congenital or acquired pathologies points to the need for better early-intervention techniques;
− Particular attention must be paid to situations of abandonment, neglect and the deprivation of primary health care in early childhood, and to anomalies and developmental disorders in later childhood.
420. Consequently the plan sets out the following general
goals:
− To reduce infant and perinatal mortality to 8 per 1,000 in all regions;
− To prevent at-risk behaviour among pre-adolescents and adolescents connected with serious accidental injury, self-injury and substance abuse;
− To prevent the causes of mental and sensory disability and multiple disabilities;
− To prevent cases of psychological and social maladjustment due to problems at school, with the family and in relations with others, and also connected with abuse and neglect;
− To promote aware and responsible parenthood, monitoring at-risk pregnancies and providing adequate support to families;
− To assist programmes of prevention and control of genetic diseases;
− To monitor the physical, psychological and social well-being of children and adolescents, including through the National Observatory on Children.
421. The objectives of the plan will be elaborated in a
specific project for mothers and children, which is currently being drawn
up.
Some measures will also seek to protect women’s health, in all phases and
contexts of their lives. Nevertheless, the
plan already establishes some
measures to protect children’s health, which should be provided for in
regional and local plans:
− To make reliable prenatal and post-natal screening and diagnosis available;
− To carry out measures for the promotion of health among pre-adolescents and adolescents;
− To rationalize the hospitalization of young children, taking into account the particular requirements of each age group, coordinating and integrating hospital care with district services and giving a greater role to the family paediatrician;
− To upgrade outpatient services, especially day hospitals, for the treatment of neurological or psycho-pathological disorders and disabilities;
− To make services for children more humane, including through the use of appropriate biomedical technologies;
− To establish guidelines for pregnancy, childbirth, paediatric hospital care, and family and community paediatricians;
− To integrate the maternal and paediatric services with social, welfare and education services, taking into account the provisions of the national programme of action relating to childhood and adolescence.
4. Health prevention and protection
422. While services for the treatment of acute
diseases are generally widely and evenly spread, they are limited as far as
basic preventive
care is concerned. A survey in 1988-1989 revealed that medical
check-ups are mainly requested by mothers with higher levels of education;
that
the prevalence of routine medical check-ups is significantly lower in the South;
that 11.5 per cent of 6- to 10-year-olds have
orthodontic treatment in the
North, compared with only 4.8 per cent in the South and 3.4 per cent on the
islands; among the 11-13
year age group, the percentages are 24 per cent in
the NorthWest and 7 per cent in the South and islands; similar data are also
found
with regard to the correction of visual impairments. It seems that the
introduction of the National Health Service has made it possible
for the various
social classes to have equal access to general practitioners and hospital care
but not to preventive and specialist
medicine.
423. Even the
immunization system is not universal, particularly with regard to optional
vaccinations. For example, only 35 per cent
of infants in the southern province
of Campania receive their first vaccination by their third month. In areas
where immunization
is low, it would be opportune to keep an immunization
register in every local health unit; to encourage general paediatricians to
develop, in collaboration with the local health unit, initiatives that guarantee
coverage of their patients; to make paediatricians
working in hospitals
responsible for the immunization of children who have not been properly
vaccinated, as happens in other countries;
and to ensure that immunization
strategies are devised and well coordinated.
5. The child and the hospital
424. It is worth pointing out that the Regional
Council of Friuli Venezia Giulia has very opportunely drawn up and approved, by
a
law dated 4 May 1998, a Charter on the Rights of the Child in Hospital, which
will provide guidelines for all local health services
in the Region. In brief,
this document acknowledges that children in hospital have the right:
− To enjoy health to the maximum extent possible;
− To receive comprehensive care;
− To have access to the best possible medical treatment and care;
− To have their identity respected;
− To have their privacy respected;
− To have their physical, psychological and emotional development protected, maintaining relationships even in cases where isolation is required, and not subjected to restraints;
− To be informed, in a manner appropriate to their age and understanding, about their conditions of health and the procedures they will have to undergo;
− To express their views freely on every issue that concerns them;
− To have their opinions taken into consideration, in accordance with their age and maturity;
− To be involved in the process of consent/non-consent to treatment;
− To be involved in the process of consent/non-consent to experimental treatment;
− To be able to manifest their discomfort and suffering and to be given less invasive and painful treatment where possible;
− To be protected from every form of violence, insult or physical or mental cruelty, abandonment or negligence, ill-treatment or exploitation, including sexual violence;
− To be taught to take charge of their own treatment as far as possible, and in cases of disease to be given knowledge of signs and specific symptoms;
− To enjoy a confidential patient-doctor relationship; to ask for and to receive information that helps them to understand their own sexuality, to protect themselves from unwanted pregnancies and sexually transmitted diseases; to ask for and receive information on drug addiction and to be given adequate guidance on rehabilitation services;
− To participate fully together with their family.
425. With regard to this last point, it is now
becoming common practice in most paediatric wards to allow parents to stay with
their
children in hospital at all times. Nonetheless, research carried out
nationally on a sample of 102 hospitals has revealed that approximately
10 per
cent of the heads of hospital do not allow parents to be present outside of
normal visiting hours.
426. It is to be hoped that the practice of
allowing parents to stay with their children will be extended to all paediatric
wards
and that a similar Charter for the Rights to Children in Hospital will
also be adopted in other Regions.
6. AIDS and children
427. The number of new AIDS infections among
children in Italy has fallen sharply in recent years. Following a period of
little progress,
with a high of 76 new cases in 1995, in 1996
only 49 cases were recorded, and in 1997 only 9. The majority of
these cases involve
HIV transmission from mothers to infants. Although the use
of antiretrovirals in pregnancy can reduce the probability of HIV transmission
to approximately one third, it is likely that the decline in new cases is mainly
the result of awareness-raising campaigns launched
by the Ministry of the
Health - Department of Prevention. Between 1990 and 1998, approximately 10
campaigns were carried out (through
newspaper articles, distribution of
informative pamphlets, television and radio spots, training and information
measures etc.).
Five campaigns were targeted specifically at women of
reproductive age and stressed the importance of responsible motherhood and
safe
sexual behaviour and the risks involved in drug injecting with shared needles.
The other five campaigns targeted children and
adolescents.
More
complete data can be found in table 5.1 attached.
428. It should also be
emphasized that a group of paediatric immunologists has been formed in Italy,
which has involved universities
and paediatric centres in the important work of
prevention, treatment and protection of the children affected by AIDS. In 1992,
a Charter for the Rights of the Child with AIDS was also approved, which asserts
that children with HIV/AIDS are persons like all
others and enjoy the same
inalienable rights. In particular, they have the right:
− Not to be discriminated against or marginalized because of their illness;
− To grow up in their own families like other children;
− To receive the social and psychological assistance they require;
− To be admitted to a hospital only to undergo specific treatment;
− To have the confidentiality of health information about their condition protected;
− To grow up with their peers, to attend nursery school and regular school, to use recreational facilities and to practise all sports activities;
− To have timely access to all treatments for the prevention and treatment of AIDS and associated diseases;
− To receive advanced treatments, even if experimental, benefiting from rigorous protection, including from an ethical viewpoint;
− To be informed about their condition in a manner appropriate to their age;
− Not to become object of speculation of any kind.
7. Family planning education and counselling services
429. In order to foster a better understanding
of parental duties, including those relating to health, and to encourage
responsible
parenthood, family planning centres were established
in 1975.
430. According to 1991 data, the latest available, 2,542
public family planning centres were in operation at that time, representing
an
average of 1.7 centres for every 10,000 women of childbearing age. To these
must be added the many private family planning centres
in existence, mostly
Roman Catholic but also non-denominational.
431. In this area, as in
others, disparities between the North and South are wide.
E. Social security and standard of living
432. The Italian Social Security System provides, first of all, for the
child’s right to health care. This entitlement is an
individual one since
the national health-care system is universal - that is, it is accessible by all
residents and financed through
taxation. As far as social security is
concerned, instead, the child’s rights are only derivative, since they are
connected
with the work activities of his or her parent(s).
433. In the
pension system, orphan’s benefits are payable to minors, students or to
children who are unable to work because
of a physical or mental infirmity.
Benefits are equal to 70 per cent of the pension entitlement if
the child is the sole survivor;
to 40 per cent for each child in the
absence of a spouse who has an entitlement; and to 20 per cent for each child if
surviving spouse
benefits are also payable.
434. The allowance granted to
the core family is inversely proportional to the total income of the core family
and directly proportional
to the number of family components. The core family
consists of the applicant, of his or her spouse if not legally separated, of
children less than 18 years of age, or over that age if disabled. The upper
income limit is increased in the case of single-parent
families or in the
presence of minors who have difficulties in performing tasks and functions
normal for their age.
435. In situations where the minor or his or her
family experience particular difficulties - not only economic but also
relational
- the local authority steps in with welfare measures to protect,
maintain and promote the child’s rights, as has been explained
in detail
in other parts of this report.
436. The problem does not so much consist
in the recognition of the right to welfare - which is amply provided for in
Italian legislation,
even at the constitutional level, but rather in the timely
identification of children living in extremely difficult situations.
Families
that are destitute and at great risk of marginalization often remain hidden on
the outskirts of big cities or in remote
rural areas. These families rarely
seek access to available services; because their economic poverty is often
compounded by severe
cultural poverty, they often are even unaware that they can
ask for help and support. Social services should greatly improve their
ability
to identify these situations and not limit themselves to waiting for the citizen
to apply for help. Moreover, they should
vary the kinds of measures used
according to the different needs encountered. But that will be difficult to do
if policies relating
to services are not developed - evenly over the entire
national territory - that provide expressly for such activities and make
adequate
resources available to the local services, including in terms of
staff.
437. As has been discussed in detail in the first chapter of this
report, the Government is strongly committed to the promotion of
strategies that
address the needs of families living in poverty, unfortunately still numerous in
Italy (see tables 16.1 and 16.2
attached).
F. Drug abuse
(guidelines 155-157)
1. Data
438. The Italian Government carefully monitors
the incidence of drug abuse, including by minors, a trend that is obviously
alarming.
A permanent Observatory on drug use, within the Ministry of the
Interior, has been in operation since 1984. Its purpose is to provide
continuous and up-to-date information on the use and abuse of drugs, supplying
statistics, news and analyses of trends, concerning
not only individuals but
also the structures and services involved and the degree to which the law is
being properly enforced. The
following tables give some indication of the
extent of the drug addiction.
Table 18
Drug addicts registered for the first time, by age and geographic location
<14
|
15-17
|
Total <18
|
Total all age groups
|
<18 as % of all age groups
|
|
North-east
|
128
|
1 548
|
1 676
|
31 669
|
5.3
|
North-west
|
56
|
786
|
842
|
16 875
|
5
|
Centre
|
127
|
1 643
|
1 770
|
30 324
|
5.8
|
South
|
102
|
1 363
|
1 465
|
17 914
|
8.2
|
Islands
|
50
|
982
|
1 032
|
11 394
|
9.1
|
Total
|
463
|
6 322
|
6 785
|
108 176
|
6.3
|
Source: Ministry of Health - Health Information System,
Department of Prevention, Rilevazione attività nel settore
tossicodipendenze, anno 1996, (Survey of Activities in the Sector of Drug
Abuse, 1996), 1997.
Table 19
Users of public services for drug addicts, by age, 1992-1996
1992
|
1993
|
1994
|
1995
|
1996
|
||||||
|
No.
|
%
|
No.
|
%
|
No.
|
%
|
No.
|
%
|
No.
|
%
|
<15
|
112
|
0.11
|
85
|
0.08
|
98
|
0.09
|
89
|
0.07
|
118
|
0.09
|
15-19
|
5 021
|
4.84
|
4 293
|
4.10
|
4 000
|
3.52
|
3 880
|
3.13
|
4 181
|
3.22
|
20-24
|
29 435
|
28.36
|
26 821
|
25.61
|
26 619
|
23.40
|
25 752
|
20.80
|
24 820
|
19.11
|
25-29
|
37 965
|
36.57
|
37 241
|
35.55
|
39 333
|
34.58
|
40 550
|
32.75
|
40 923
|
31.51
|
30-34
|
21 030
|
20.26
|
23 684
|
22.61
|
27 701
|
24.36
|
32 278
|
26.07
|
34 170
|
26.31
|
35-39
|
7 499
|
7.22
|
9 081
|
8.67
|
11 071
|
9.73
|
14 436
|
11.65
|
15 823
|
12.18
|
>40
|
2 743
|
2.64
|
3 537
|
3.38
|
4 913
|
4.32
|
6 843
|
5.53
|
9 849
|
7.58
|
Total
|
103 805
|
100.00
|
104 742
|
100.00
|
113 735
|
100.00
|
123 828
|
100.00
|
129 884
|
100.00
|
Source: see table 18.
Table 20
Drug-related deaths, by age
1994
|
1995
|
|||
No.
|
%
|
No.
|
%
|
|
<18
|
4
|
0.46
|
6
|
0.58
|
18-24
|
199
|
22.95
|
195
|
18.70
|
25-29
|
350
|
40.37
|
347
|
33.26
|
30-39
|
282
|
32.53
|
428
|
41.04
|
>40
|
32
|
3.69
|
67
|
6.42
|
Total
|
867
|
100
|
1 043
|
100
|
Source: see Table 18.
2. Prevention of drug addiction
439. The Government is carrying out an intense
strategy of prevention on various levels.
440. A previous paragraph
discussed the health education and drugs-prevention campaigns the Ministry of
Education carries out in schools.
Although activities are mainly for students,
some also involve families.
441. In 1996, the Presidency of the Council
of Ministers transferred to the Regions 75 per cent of the
national fund for the fight
against drugs (which in 1996 amounted
to 202,940 million lire). The aim was to ensure, through
decentralization, a better distribution
of resources, enabling measures to be
taken locally to prevent drug abuse and to rehabilitate drug addicts.
442. In addition, a toll-free hotline has been set up called
“Drogatel”, which consists of three telephone lines active
seven
days a week from 9 a.m. to 9 p.m. This anonymous service provides information
on drug addiction and alcoholism; counsels callers
about their options; screens
callers for placement in appropriate public centres or other structures
operating within the National
Health Service; and manages and keeps up to date a
computerized databank containing information relating to centres of various
types.
In May 1996, the Department of Social Affairs of the Presidency of the
Council of Ministers also launched an information campaign
to combat drug abuse,
which has had three phases:
− An anti-drug publicity campaign promoting positive values and social solidarity and targeting both young people and adults through radio and television spots, posters, announcements in daily newspapers and magazines;
− An itinerant exhibition using material produced by schoolchildren; and
− An information leaflet (in 500,000 copies) containing first-aid instructions and emergency telephone numbers, distributed widely throughout Italy.
443. The Ministry of the Interior, for its part, has
launched an initiative known as Project Adolescents, which is aimed at young
people at risk of drug abuse and other deviant behaviour. The general
philosophy behind the project is that young people should
be considered not only
as project beneficiaries but also as project designers - in other words,
what is needed is a project that
is both for and with adolescents. Pilot
projects have been carried out in approximately 30 municipalities, more
than half of which
are located in the South. Municipalities are in fact thought
to be the correct level at which to conduct initiatives that link the
State with
local authorities. The Ministry of the Interior also supports drug-prevention
projects that seek to educate and influence
children and young people and their
communities through information and publicity campaigns; a project evaluating
the measures undertaken
by Operational Squads on Drug Addiction and fine-tuning
a surveillance and appraisal system that can serve as a model for similar
monitoring structures; and a programme of training and coordination of area
services that provides continuing education for relevant
staff.
3. Minors, drug use and the law
444. In Italian legislation the possession of
drugs for “personal use” is no longer a criminal offence, which
means no
young person is subject to criminal charges for drug use or abuse. The
use of drugs is, however, often linked to other crimes:
first of all to the
trafficking of drugs (about 70 per cent), but also to crimes against property to
obtain money to purchase drugs.
445. Young immigrants from non-European
Union countries are especially apt to be involved in drug trafficking and are
used by organized
criminal rings for drug peddling.
446. The Ministry
of Justice has begun large-scale rehabilitation programmes for young drug users
who have entered into the criminal
justice system. The services responsible for
the administration of juvenile justice in collaboration with local social and
health
services have carried out rehabilitation programmes that have emphasized
psychological support rather than using prevailing pharmacological
methods; this
strategy is used not merely to limit the spread of drug abuse among minors, but
chiefly to treat minors within structures
for juveniles in a way that goes
beyond merely reducing the damage already done, helping to educate young people
and modify their
behaviour. In the case of foreign minors, provisions have been
made for the use of “cultural mediators”, whose task
is to provide
not only linguistic support but also to help the minor take full advantage of
the opportunities that the local services
have made available.
4. Use of alcohol, tobacco and other substances
447. For the use by children of alcohol and
tobacco, see attached tables 4.8 and 4.9.
448. It is against the law to
sell tobacco to children under 14 years of age (art. 730, para. 2, Criminal
Code); furthermore, it is
illegal for taverns or stores to serve alcohol to
children under the age of 16 (art. 689 Criminal Code). Young people easily get
around these laws by asking their older friends to purchase alcohol or tobacco
for them.
449. The same preventive and educational measures discussed
earlier in relation to drug addiction apply in the case of alcohol and
tobacco
use.
VII. EDUCATION, LEISURE, CULTURAL ACTIVITIES*
A. Introduction
450. The right of the
child to a suitable education is one of the fundamental human rights expressly
recognised in the Italian Constitution.
451. Article 34 of the
Constitution, having stated that school is open to all, decrees that education
is compulsory and free for at least eight years; the right of those
who are
capable and deserving, even if lacking the means, to reach to highest levels of
education; and the commitment of the Republic
to fulfil this right with grants,
family allowances and other measures awarded by competition. Under Law No. 9 of
20 January 1999,
Urgent Provisions for Raising the Age of Compulsory Education,
with effect from the school year 1999/2000, compulsory education is
increased
from 8 to 10 years (art. 1, para. 1).
452. The right to education is not
limited to the mere possibility for the child to attend a school, irrespective
of the result which
such attendance can achieve in terms of real acculturation.
Illiteracy is not only the inability to read and to write even a brief
and
simple text about everyday life (according to the 1956 UNESCO definition), but
also embraces those who can read and write but
are incapable of writing a short
description of their daily activities (according to a more recent UNESCO
definition). It must be
recognized that even today, notwithstanding the
remarkable progress achieved in the growth of schools in Italy, the second type
of
illiteracy is still widespread. Consequently, many have their concrete, not
abstract, right to education violated. This right must
find fulfilment in order
to facilitate, in the increasingly complex reality of modern life, not only the
understanding of diverse
messages which intersect our lives, but also the
necessary ability to express oneself and therefore communicate with others. A
lack
of the indispensable means to acquire knowledge and make oneself known can
lead to grave social marginalization (indeed delinquency,
including juvenile
delinquency, is closely related to dropping out of school). This
marginalization hinders not only the development
of the personality but also
impedes an active and cognizant participation in society. A wide-ranging
acquisition of culture has
a double value, individual and collective, in that it
guarantees a practical contribution of every citizen to the life of the
community
and to the defence of a democratic State.
453. Moreover,
education cannot be synonymous with the acquisition of ideas alone but must be
closely allied to an adequate and overall
development of the personality.
Education, upbringing and training are three aspects of the same fundamental
right of the child
to be assisted in developing completely as a person, to
overcome his or her initial disadvantages and to allow him or her to make
the
choices that best suit his or her personality and plans for the
future.
* This section responds to the queries relative
to articles 28, 29 and 31 of the Convention to which paragraphs 105-118 of the
general
guidelines refer.
B. The formal school system
(guidelines 105-116)
454. In Italy, the
school system is in line with the aims outlined in article 29 of the Convention.
It will suffice on this point
to cite the first article of the very recent
secondary school pupils’ charter (Decree of the President of the Republic
29.5.1998),
according to which:
(a) The school is a place of training
and education by way of study, the acquisition of knowledge and the development
of a critical
conscience;
(b) The school is a community of dialogue,
research, and social experience, informed by democratic values and aimed at the
growth
of the individual in all his or her dimensions. Here each person, with
equal dignity and in a diversity of roles, works to guarantee
a training in
citizenship, the realization of the right to study, the development of each
child’s potential and the overcoming
of situations of disadvantage in
accordance with the principles prescribed by the Constitution and by the
Convention on the Rights of the Child, and with the general principles of
Italian legislation;
(c) The school community, interacting with the
wider civic and social community of which it is part, bases its programme and
educational
activities on the quality of teacher-pupil relations, it contributes
to the development of the pupils’ characters also through
education
towards the awareness and appreciation of their identities as humans. It
develops their sense of responsibility and their
individuality and pursues the
attainment of cultural and professional objectives suitable to the evolution of
knowledge and entry
into a working life;
(d) The life of the school
community is based on the freedoms of expression, of thought, of conscience and
of religion, with the
reciprocal respect of all the people who comprise that
community, whatever their age or condition, and rejecting all ideological,
social and cultural barriers.
1. The principal features of the current school policy
455. Schools of every level and type try to
follow these principles. The Government is currently committed to a thorough
reform of
the entire school system in order to fulfil these principles
completely. The leading features of this reform are as
follows:
(a) Reform of the courses: The reform seeks to transcend the
idea of the mere transmission of knowledge, a concept currently fundamental
to
Italian schools, in favour of the concept of transmission-acquisition of methods
of learning. This is not meant to throw doubt
on the value of general
instruction, which it is proposed be reinforced in all curricula; it is intended
to respond to the multiplicity
of questions which society has posed about
schools in recent decades and particularly to the problems of pupils repeating a
year,
expulsions and dropping out, whose incidence is certainly too high. In
synthesis, the reform of the courses seeks to promote successful
education for
all, a rise in the cultural level of each citizen and consequently of society as
a whole, the appreciation of the value
of work in its most diverse forms, the
integration of education and professional training, the growth of a democratic
conscience,
the development of a culture based on the appreciation of
differences, on the values of pluralism and of freedom. To attain these
aims
the reform provides for an educational programme structured in three stages: an
initial infant course of three years (3-6 years
of age); a primary course of
six years (6-12) divided into three two-year periods; a secondary course of
six years (12-18). The
first and second two-year periods of the primary
programme aim at literacy, meaning not only the acquisition of language and
basic
knowledge, but also the beginning of developing a critical capacity, the
pleasure of learning, the recognition of the values of democratic
living. The
third two-year period aims at consolidating and expanding the knowledge already
acquired as well as at developing an
independent capacity for studying and
investigating. The final threeyear period is directed at in-depth instruction
in each of the
subjects including the possibility of practical exercises and
brief work experiences;
(b) A more efficient system of school and
professional guidance: Recognizing that the mechanisms of selection, which have
been eliminated
from the beginning of various stages of schooling, are
nonetheless operative at other times, and considering that these mechanisms
especially affect the socially and culturally weaker sections of the population,
and also considering that this is attributable not
only to the uniformity of the
education courses but also to the mistaken choices of the students, measures are
to be developed for
guidance. These are intended as a combination of activities
aimed at forming and developing the students’ capacity to get
to know
themselves, the environment in which they live, the cultural and socio-economic
changes, and the training possibilities available
to them. This should enable
them to make their own plans for the future and to experience their studies,
their families and social
life in an active and responsible way and on equal
terms;
(c) Reform of school subjects: In view of the profound
transformation in human experiences and knowledge due not only to the effects
of
the world of the media but also to the epistemological revolution in science,
art, technology and collective behaviour in this
century, it is not enough that
schools be up to date: they must be in a position to redefine their cultural
fabric, with a view
also to the context of globalization. A commission has been
set up, made up of so-called saggi (wise men), to identify those subjects
which, in the near future, will be essential for a complete education. On the
basis of the
results of this work, new syllabuses will be determined and
objectives and standards defined;
(d) School autonomy: A rigorous
decentralization of educational institutions is taking place, giving them
teaching, organizational,
research and development autonomy and the status of
legal persons. This autonomy should be the means of greater educational success
both in quantitative terms (through major attention to the needs of individuals
and groups) and in qualitative terms (through the
enrichment of educational
opportunities and wider choices). The schools are given the responsibility of
identifying strategies,
methods and means for the pursuit of national objectives
and standards.
2. Public expenditure on education
456. It is not easy to calculate the amount
spent in this sector because it is divided among the budgets of a multiplicity
of public
authorities (the Ministry of Education, the Ministry of Works, the
regional and local administrations) and because much of it does
not fall
directly under the account heading for education (for example, the amounts spent
on the construction, acquisition and rent
of buildings).
457. It should also
be emphasized that the quantitative variations for the years 1994-1998 reflect
two diminishing factors (the general
fall in the school population due to the
decline in the birth-rate, and the policy of limiting spending) and to two
growth factors
(the increase in local government spending, and the increased
spending on investment (updating, improving training schemes, combating
waste,
etc.) with respect to current spending (wages).
Table 21
Spending on education (absolute values and percentage values)
|
1995
|
1996
|
1997
|
|
1,000 billion lire
|
52
|
48
|
50
|
51
|
Current expenditure %
|
88.4
|
87.6
|
86.6
|
86.4
|
Capital investment %
|
11.6
|
12.4
|
13.4
|
13.6
|
Source: Ministry of Education.
Table 22
Spending on education (in billions of lire)
Source: Ministry of Education.
Table 23
Public expenditure for schooling by source of
financing, 1994-1995
(in billions of lire)
|
%
|
1995
|
%
|
Variation (%)
1994-1995 |
|
---|---|---|---|---|---|
Government
|
|
|
|
|
|
Central government expenditure
|
51 841.6
|
79.7
|
47 364.8
|
77.1
|
-8.6
|
Of which capital expenditure
|
509.7
|
|
496.7
|
|
-2.5
|
Regions
|
|
|
|
|
|
Regional administration expenditure
|
1 025.1
|
1.6
|
1 056.7
|
1.7
|
3.1
|
Of which capital expenditure
|
66
|
|
98.4
|
|
49
|
Local authorities
|
|
|
|
|
|
Local administration expenditure
|
12 148.5
|
18.7
|
13 047.9
|
21.2
|
7.4
|
Of which capital expenditure
|
1 796.5
|
|
2 007.4
|
|
11.7
|
Total expenditure
|
66 015.2
|
100
|
61 469 4
|
100
|
-5.5
|
Education public administration
|
|
|
|
|
|
Of which capital expenditure
|
2 372.2
|
|
2 602.6
|
|
9.7
|
Source: Ministry of Education.
3. School attendance in various levels of schools
458. In the tables attached to this report,
tables 6.1 to 6.12 show data relating to the level of school attendance in the
country,
both by class numbers and child-teacher ratios and public and private
schools, as well as the percentages of pupils lost to the system.
459. Any in-depth comment on this data is unnecessary since the picture
that emerges speaks for itself. It will be noted that attendance
in the
compulsory education schools is quite satisfactory with a low drop-out rate in
the primary schools (0.08 per cent) and a little
more alarming in middle
schools. A certain concern arises from the data on the rate of failure in the
compulsory years.
460. It should be noted, however, that a 1995 survey of
persons of every age who had not achieved the school-leaving certificate,
taking
into consideration the generations for whom schooling was already compulsory,
revealed that in Italy 15.4 per cent of the
population questioned had not
achieved the certificate, with 11.6 per cent in the north-west, 10.4 per cent in
the north-east, 11.9
per cent in central Italy and 22 per cent in the south and
the islands. It is also significant that women outnumbered men. It is,
however, reassuring that while the percentage of those not having the
certificate is 36.0 per cent in the 40-42 age group, this falls
to 8.5 per cent
in the 15-19 group and to 7.8 per cent in the 20-24 range. There is, therefore,
a noticeable decline in the phenomenon
of failing to complete the period of
compulsory schooling.
461. The problem of compulsory schooling dropouts
is, however, enough of a problem to merit focused
intervention.
462. Early school leaving does not seem to be related to
economic factors. Indeed, compulsory education in Italy is free and the
local
authorities provide notable support to ensure that all pupils, even the most
economically disadvantaged, can avail themselves
thereof. Free education is
not, in fact, intended merely as an exemption from the payment of school fees.
It serves also to ensure
- through the provision of books, school materials and
even transport - the conditions which eliminate any obstacle to regular school
attendance, especially for those economically worse off.
463. The
legislation provides also for making parents responsible by the provision of a
specific offence. Article 731 of the Criminal
Code makes it an offence for
anyone with authority over, or charged with the supervision of a minor, to
fail, without just reason,
to instruct or provide elementary instruction to
that child. (In reality the rule in article 731, taken together with the
regulations
which extend compulsory education to the end of the middle school,
cover the entire period of compulsory schooling: Cass 17.2.1988
[Supreme Court]
in Rivista penale 1989, p. 199.)
464. It seems that the
phenomenon of dropping out of school is related to socio-cultural issues which
are not easily resolved.
465. The Ministry of Education is committing
itself particularly to this matter. In the Charter of Intent to promote the
rights of
children and adolescents and to eliminate the exploitation of child
labour, it is explicitly affirmed that it is intended, during
the 1998/99 school
year, to promote enterprise for training teachers and directorial staff in the
problems of hardship and of early
school-leaving which might lead to a
reconsideration of the content, methods and organization of teaching in relation
to the deep
needs of childhood and adolescents; to introduce additional
activities of interest to the pupils, helping those in major difficulties
to
overcome the sense of alienation and the suffering which often characterizes
their school experience, predisposing them to failure,
to undervalue themselves
and finally to drop out of school; to provide flexible ways of re-entering
school in the case of child workers;
to manage school registration and monitor
attendance in such a way that attention is drawn quickly not only to dropouts,
but also
to cases at risk, and so that opportune measures, including
preventative ones, can be taken also involving other institutional and
private
social agents; to involve also families through training parents to be more
aware of problems; to provide for “contracts”
with the families of
dropouts, with forms of incentives/penalties to encourage pupils who are not
attending school to return.
466. In the past the Ministry of Education
had already put in place measures to support pupils in difficulties through a
link between
school and professional training. In 1995 there were
about 600 programmes involving 50,000 pupils and in 1998 there were 1,150
involving
65,000, while for 1999 there are plans for 3,100 such projects for
about 110,000 pupils.
467. Finally, it should be noted that, to assure
the right to study for all who have the capacity and are deserving to do so,
according
to the constitutional principle, family benefits and other allowances
are provided which allow the deserving, less well off to study
to the highest
level of education.
4. Schooling for those in particular difficulties
468. Provisions are made for the right to
education of children in particularly difficult situations.
(a) Foreign children
469. Notable effort has been made to cater for
foreign children in schools: the following table speaks for itself.
Table 24
Enrolments of foreign students
Primary school
|
Middle school
|
Higher secondary school
|
|
1992/93
|
15 018
|
6 320
|
1 234
|
1993/94
|
19 256
|
8 001
|
1 417
|
1994/95
|
20 199
|
9 089
|
6 060
|
1995/96
|
23 991
|
9 471
|
6 410
|
1996/97 (a)
|
23 568
|
11 042
|
6 060
|
Source: Ministry of Education, processed from data from Central
Statistics Office.
Source (a): Prime Minister’s Office -
Department of Social Affairs.
470. Moreover, it should be noted that schools
are committed to providing support for foreign children attending compulsory
education
schools and who find language difficulties in integrating into school.
The regulations provide for extra teachers for these pupils.
Moreover, the
regional administration, on the basis of Law No. 943/86, promotes special
Italian language and culture courses to
encourage integration. Numerous
ministerial circulars have stressed the importance of valuing also the language
and culture of origin
of foreign pupils through recourse to mother-tongue
experts and mediators.
(b) Children in hospital
471. For children in hospital, teaching posts
at hospitals have been instituted to ensure the continuity of the sick
child’s
education. Of particular note is the protocol between the
Ministries of Education and of Health, the national association of local
authorities and Italian Telecom to put into action a project of tele-teaching
with the use of multimedia stations, to guarantee the
right to study of the
hospitalized child.
(c) Minors in penal institutions
472. Minors confined to penal institutions are
served by branch sections established by the primary and middle schools situated
in
the area in which the detention centre is located. It devolves upon the
workers who run the centre to monitor attendance at the
school activities.
Moreover, to provide these children with a schooling related to their particular
educational needs, the activities
which are planned, organized and undertaken
are not aimed exclusively at the school-leaving certificate but seek to provide
a real
opportunity to mature. The courses, therefore, pay particular attention
to the cultural characteristics and socio-psychology of
the children and are
arranged according to the length of time the child spends in the centre.
(d) Minority children
473. For children of linguistic minorities
there is a legislative provision in the process of approval which will permit,
in those
localities where the 12 protected languages are spoken, the use of the
minority language not only in public offices but in schools
as well.
(e) Disabled children
474. Considerable effort has been made to
guarantee schooling for disabled children and to foster their integration in
schools. Given
the importance and specificity of the measures, some detail is
given here.
475. All disabled children have the right to register at and
attend schools of every type and level. About 20 years after the first
legal
provisions specifically relating to compulsory education (Law No. 517/77) the
process of integration is widespread and general
practice in all schools.
Continuing legislative and administrative development, methodological and
didactic innovations and the
choice of social policy of the local authorities
have contributed to improving education services on the whole.
476. The
normal school system today admits almost all disabled children of school age and
has suitable structures and resources to
run personalized education courses.
For pupils who cannot attend school for at least 30 days for health reasons,
instruction is
guaranteed through special sections in hospitals.
The methods of school integration
477. The education of disabled children is
realized through the operations and services coordinated partly by the various
branches
of school administration and the local authorities (regional,
provincial and municipal and local health services) that offer whatever
forms of
support fall within their competence.
478. The strategies for integrating
each disabled pupil into the school system are based on precise procedures which
involve the local
social health services, school personnel and the family, which
must be informed, involved and collaborative. The family takes part,
together
with the teachers and others, in the planning of the courses.
479. The
integration of the pupil proceeds in various phases:
− The identification of the disabled pupil and the relative functional diagnosis, undertaken by the local health services;
− Drawing up a profile of the pupil’s functional dynamics, in collaboration with social workers, teachers and family.
− Arrangement of an individualized educational plan by the teachers.
480. To favour conditions of equal opportunity
various forms of assistance and didactic support are offered: specialized
teachers,
computer aids, flexible organization, research and development in
education and methodology.
481. The presence of specialized teachers -
currently distributed, according to the regulations, not related to the number
of disabled
pupils but equal to a teacher-pupil ratio of 1:138 - is the
principal element of educational assistance and represents a qualified
resource
which ensures, in many cases, the necessary psycho-pedagogical technical and
organizational support in the individualized
learning activities and in itself
serves as a learning experience for the whole class.
482. Currently the
inclusion of disabled children in schools is an integral part of the normal
education system and is supported by
a network of operational groups at diverse
levels of school
administration,[14] by
structures for the initial training of specialized
teachers,[1] and by study,
research and investigation at local and national
levels.[1]
Quantitative aspects
483. From an analysis of current data from the
Ministry of Education it is shown that in the last five years the overall number
of
disabled pupils in nursery and other (compulsory education) schools surpassed
100,000 and has stabilized both in absolute numbers
and in percentage at about 2
per cent of the school population (table 25). At the different levels of
school, on the other hand,
it can be seen that the percentage of disabled pupils
varies. The low presence of such pupils in the nursery schools may be due
to
the fact that schooling at that level is not compulsory and to the late
diagnosis of the disabilities. The differences in percentages
between primary
and middle schools highlight a problem of discontinuity in the school system.
Notwithstanding the setting up of
diagnostic and methodological measures, they
demonstrate the differences and difficulties of identifying a homogeneous system
of
evaluating disabilities in the school context.
484. Another
quantitative datum of particular interest regards the presence of special
assistant teachers. In 1997/98 there were
52,978, evenly distributed in all
levels of nursery and other schools, on average almost equal to one teacher for
every two disabled
pupils.
Table 25
Disabled pupils in nursery
and compulsory education schools in the school
years 1992/93 to
1996/97 (absolute values and % variation)
Level of school
|
School year 1992/93
|
School year 1993/94
|
School year 1994/95
|
School year 1995/96
|
School year 1996/97
|
Variation
1992/93-96/97 |
||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|
ab. v.
|
v.%
|
ab. v.
|
v.%
|
ab. v.
|
v.%
|
ab. v.
|
v.%
|
ab. v.
|
v.%
|
ab. v.
|
v.%
|
|
Nursery schools
|
7 460
|
0.90
|
8 145
|
0.97
|
8 884
|
1.03
|
9 080
|
1.02
|
9 669
|
1.06
|
2 209
|
+29.62
|
Primary schools
|
49 299
|
1.83
|
48 626
|
1.86
|
48 466
|
1.86
|
48 335
|
1.86
|
48 599
|
1.87
|
-700
|
-1.41
|
Middle schools
|
43 753
|
2.3
|
42 893
|
2.27
|
42 710
|
2.32
|
42 949
|
2.36
|
42 995
|
2.45
|
-758
|
-1.73
|
Total
|
100 512
|
1.83
|
99 664
|
1.86
|
100 060
|
1.88
|
100 364
|
1.88
|
101 263
|
1.92
|
+712
|
0.74
|
Source: Ministry of Education - Office of Studies and
Programming.
Table 26
Pupils and special teachers in nursery and
compulsory
education schools in the school year 1996/97
Number of disabled students
|
Number special teachers
|
Ratio students/
teachers |
|
Nursery schools
|
9 669
|
6 020
|
1.61
|
Primary schools
|
48 599
|
24 595
|
1.98
|
Middle schools (first level)
|
42 995
|
22 366
|
1.92
|
Total
|
101 263
|
52 978
|
1.91
|
Source: Ministry of Education - Office of Studies and
Programming.
485. The data on disabled pupils categorized by type of
disability give information on the variety of disabilities. The Ministry
of
Education statistics distinguish three types of disability among pupils: sight,
hearing and psycho-physical disabilities. In
the school year 1996/97, in
nursery and other schools the sight impaired totalled 1,913, the
hearing-impaired were 4,281 and those
with psycho-physical disabilities were
95,069 (table 27). These figures show no significant variation from those of
previous years,
neither in absolute numbers nor in percentages, confirming that
their distribution is by now consolidated at all levels of schooling.
Table 27
Disabled pupils by school level and type of disability, school
year 1996/97
(absolute values and percentage values )
Disability
|
||||||
---|---|---|---|---|---|---|
|
Sight
|
Hearing
|
Psycho-physical
|
|||
|
No.
|
%
|
No.
|
%
|
No.
|
%
|
Nursery schools
|
239
|
2.47
|
640
|
7.25
|
8 790
|
90.90
|
Primary schools
|
925
|
1.90
|
2 079
|
4.28
|
45 595
|
93.81
|
Middle schools
|
749
|
1.74
|
1 562
|
3.63
|
40 684
|
94.62
|
Source: Ministry of Education - Office of Studies and
Programming.
Problems and prospects
486. The current major problems are no longer
ones of instruction in the normal school system, inasmuch as they relate to the
quality
of the service not being uniform throughout the country. In some places
the involvement of the local administrations is still insufficient
to guarantee
that all disabled pupils can exercise their right to study.
487. One
aspect of the data compares accessibility to school buildings. In the year 1997
only 62.33 per cent of school buildings
overall were without architectural
barriers, the percentage varying in different areas. The greatest number of
schools without barriers
was in the southern regions (table
28).
488. Moreover, on a national level, it is found that there is a lack
of the services that should be guaranteed by the municipal authorities
(adequate
transport, special non-teaching assistants for children with severe
disabilities); in particular there is a lack of supportive
action which should
be guaranteed by the health services (both in the planning of the functional
dynamics profile of the child and
more so in the monitoring of personalized
education programmes).
489. Some inefficiencies within the school system
must also be overcome: incomplete basic training of all the teachers,
insufficient
qualifications of the permanent specialized teachers and their
insecurity of tenure, attitudes of non-acceptance of responsibility
among
workers, lack of continuity from one school level to the next, lack of
educational and teaching programmes suited to pupils
with serious and uncommon
disabilities.
Table 28
School buildings free of architectural
barriers
Level of school
|
Total buildings
|
Buildings free from barriers
|
|||||
Nursery
|
Primary
|
Middle
|
High
|
No.
|
%
|
||
North-West
|
1 472
|
2 364
|
821
|
662
|
9 289
|
4 866
|
52.38
|
North-East
|
918
|
1 899
|
591
|
594
|
7 450
|
3 768
|
50.57
|
Centre
|
1 952
|
2 329
|
891
|
805
|
8 169
|
5 313
|
65.03
|
South
|
3 413
|
3 448
|
1 679
|
1 310
|
12 329
|
8 719
|
70.71
|
Islands
|
1 507
|
1 672
|
869
|
608
|
6 041
|
4 313
|
71.39
|
Total
|
9 262
|
11 712
|
4 850
|
3 979
|
43 274
|
26 979
|
62.33
|
Source: Ministry of Education - Office of Studies and
Programming.
5. Respect for the opinions of children
490. The recently approved students’
charter guarantees the custom of listening to the opinions of the students
which, within
the limits and variety of the cultural history of society, has
been a constant factor of the pedagogical method adopted in the Italian
school.
It should be added only that the recent law governing immigration expressly
affirms that the school community embraces the
linguistic and cultural
differences as a valuable and fundamental starting point for debate, based on
reciprocal respect, on the
exchange between cultures and on tolerance (art. 36,
para. 3, Law No. 40 of 6 March 1998).
491. Beyond listening to the
demands of minors in the schoolroom context, it is to some degree assured by the
collegial democratic
management of schools: since 1974 there has been
representation of parents within the schools for pupils up to 14 years and
direct
representation after the age of 14 on the governing bodies of secondary
schools (class councils, committees and boards at different
levels).
6. Provisions for improving the qualifications of teachers
492. The Ministry of Education has taken the
following initiatives in order to improve teachers’
qualifications:
− An Inter-ministerial Decree of 10 March 1997 abolishes teacher training schools for teachers in nursery schools and the teachers’ training colleges for elementary schoolteachers and, under Decree of the President of the Republic No. 47 of 3 July 1997, the graduate course for the initial training of infant schoolteachers becomes the only means of qualifying for such teachers;
− Decree of the President of the Republic No. 47 of 3 July 1997 also establishes postgraduate university training for secondary schoolteachers;
− Ministerial Circular No. 73/97 establishes the regulations and curriculum of training courses for teachers who win places on such courses;
− Ministerial Circular No. 226 of 13 May 1998 defines for the first time specific priorities for in-service training, considering in particular the strengthening of the learning process and training opportunities, pupil guidance and its link to professional guidance, training for democratic coexistence, intercultural understanding and active citizenship (human rights, equal opportunities).
C. The non-formal education system
493. The formative education system outside the school - not left solely
to the free market but organized by local authorities, engaged
in realizing
conditions which render possible the full development of the person - has the
function, through educational and cultural
activities, of giving the chance of
responding to those needs for communication, exploration, planning, imagining
and adventuring
which are typical of growing children and essential to them in
the building of a complete personal identity and the development of
a suitable
social personality. Such needs risk being left unsatisfied in some cases. In
addition to these there is a need to encounter
other people to understand
oneself better in relation to others; the need to try out one’s own
imagination and creativity in
games without the pressure to succeed and to
develop a knowledge which is not merely notional; the need for information and
training
outside the school; and the need for free experiment and
expression.
494. In the first place, if the formative process devolves
not solely upon the school system, but must make use also of local resources
outside the school, the lack of a suitable structure which permits everyone in
the area to benefit from an integrated education becomes
a cause of
unjustifiable inequality among the citizens. If the right to study - which is
substantially the right to education -
must, for constitutional principles, be
assured for all, it is not acceptable, given the new burden assumed by the
formative forces
outside the school in determining the quality of a
person’s life, that there should be profound differences in those
resources
and therefore substantial inequalities among those who have local
educational and cultural opportunities at their disposal and those
who do
not.
495. Given such a premise, the Italian Government recognizes the
fundamental need to promote personal development and facilitate interaction
among children through the establishment of an integrated system of
education.
1. The activities of local authorities
496. The local authorities have in recent years
paid particular attention to educational activities. Of course it cannot be
said
that the network of such activities is everywhere equally widespread, but
the commitment of all the local authorities - which was
given a boost by
Law No. 285 of 1997 - gives reason to hope that the lacunae will soon be
filled.
497. The following services have already been established and should be
augmented for:
− Very young children, recreation centres and any available spaces set aside for children to gather in their free time and offering the opportunity of organized games or play at liberty; Ludoteche (children’s play centres) are a sort of library of toys organized on the basis of spaces given over to play activities, with shelves and cupboards where toys and games are kept which are also available for loan; public spaces for games to allow the children to leave home unaccompanied, meet friends and play in the open;
− Pre-adolescents and adolescents, recreation centres (theatre and creative workshops, centres for games and pre-sport activities, meeting places) and educational centres (to promote cultural interests, to rediscover games and liberating activities, for virtual travelling, for the discovery of other cultures, to support the pre-adolescent desire to be the centre of attention); these centres are fundamental not only for discouraging delinquency but also to help the physiological path of development of the normal preadolescent.
498. The local authorities have undertaken
initiatives for summer school holiday activities: sea and mountain holidays;
day camps
for smaller children.
499. For all these initiatives the local
authority very often works in cooperation with local social organizations. This
useful cooperation
between the public and private sectors needs to be developed
further because it is the only way to ensure the widespread satisfaction
of the
demands of children.
500. The network of municipal libraries has also
grown, especially in small centres, and is made good use of by children.
There are
no national statistics but the data available
from local research seem encouraging: for example, in the province of
Gorizia, in
11 out of 24 libraries, the number of users aged 6-14
exceeds that of all other age groups, that is, they exceed 50 per cent of users,
while in another 6 libraries, the 6- to 14yearolds are said to constitute at
least 40 per cent of users.
2. Data on young people’s use of free time
501. It is impossible to show what percentage
of the local authorities’ budgets is spent on educational leisure
activities,
nor to obtain precise data on the use of such facilities by the
young people. Such data are difficult to trace since these initiatives
are not
centralized.
502. It can only be indicated that, from statistical
research, the following picture of such activities in our country
emerges:
− 57.2 per cent of boys and 42.5 per cent of girls between 11 and 14 years of age regularly play sport, while the percentages for those between 3 and 17 are 42.4 and 32.6 respectively;
− 45.2 per cent of boys and 34.4 per cent of girls between 11 and 17 read a newspaper at least once a week; of those aged 6-17, 45.1 per cent of boys and 58.8 per cent of girls read books;
− 97.7 per cent of boys and 97.7 per cent of girls habitually watch television while those who watch more than five hours per day are 9.0 per cent of boys and 8.5 per cent of girls;
− 0.3 per cent of boys and 0.3 per cent of girls attend the theatre more than 12 times a year; for cinema attendance the figures are 4.1 per cent and 2.7 per cent respectively; for museums and exhibitions, 0.8 per cent and 9.7 per cent; for classical music concerts 0.4 per cent and 9.5 per cent; other concerts 1.1 per cent and 0.5 per cent; for sporting events 19.9 per cent and 3.2 per cent; 6.2 per cent of boys and 6.1 per cent of girls go to discotheques and other places of dancing; 5.3 per cent and 7.0 per cent attend public festivals;
− 71.8 per cent of boys and 63.8 per cent of girls meet their friends daily.
503. It seems evident from the above data how much
remains to be done to develop genuine cultural interests in the generation who
face the future. The school and the local community must exert themselves
further in this regard. But it will be difficult to make
progress in this
field if the mass media peddle only the trivialization of life and its
problems and a passive nonengagement. To
be welcomed, therefore, is the drawing
up, in association with the Government, of a television authorities’ code
of conduct
which, for the first time, takes account of the needs of the
education of children at an impressionable time of life, not only to
avoid
disturbing their paths of development but also to help such development. In
addition, the State television service has produced
a daily news programme for
young people.
3. Associationism
504. Outside the school, the role of
associationism is fundamental in youth development. An association centred on
small groups can
encourage children to plan and decide together; it teaches
friendship and participation, helps develop a sense of belonging and
independence
from the family.
505. Juvenile associationism is well
developed in the nation (see the data in the statistics appended to this
report). It should
be noted that:
− About 15 per cent of boys and 19 per cent of girls of 14 years of age and 15 per cent of boys and almost 20 per cent of girls between 15 and 17 have taken part in cultural or ecological groups;
− 5.1 per cent of 14-year-olds and 6.8 per cent of 15- to 17-year-olds have been active in voluntary associations;
− Participation in trade unions has been insignificant, perhaps because so few young people are yet working;
− Political activity is widespread, although not in the traditional form within a political party.
VIII. SPECIAL PROTECTION
MEASURES[*]
A. Children in situations of emergency
1. Refugee or asylum-seeking children
506. Italy is a party to the 1951 United Nations Convention relating to
the Status of Refugees which it implemented into domestic
law with Law No.
722 of 24 July 1954. It also harmonized domestic law with the 1967 Protocol
relating to the Status of Refugees
with Law No. 95 of 14 February
1970.
(a) Statistics
507. The following tables provide data relating
to asylum-seeking children under 18 years of age, and include both unaccompanied
children
and children accompanied by their parents or by any other
persons:
Table 29
Number of asylum-seeking children under 18, by country of origin
1994
|
1995
|
1996
|
1997
|
Total
|
|
Albania
|
1
|
|
|
13
|
14
|
Angola
|
2
|
1
|
1
|
|
4
|
Burundi
|
1
|
|
|
|
1
|
Cameroon
|
|
|
1
|
1
|
2
|
Ethiopia
|
1
|
1
|
1
|
1
|
4
|
Former Yugoslavia
|
|
|
1
|
2
|
3
|
Iran
|
|
|
1
|
1
|
2
|
Iraq
|
2
|
4
|
1
|
8
|
15
|
Liberia
|
|
1
|
|
|
1
|
Poland
|
1
|
|
|
|
1
|
Romania
|
19
|
5
|
|
1
|
25
|
Russian Federation
|
1
|
|
1
|
|
2
|
Rwanda
|
|
5
|
3
|
|
8
|
Table 29 (continued)
1994
|
1995
|
1996
|
1997
|
Total
|
|
Sierra Leone
|
|
|
|
3
|
3
|
Somalia
|
2
|
|
1
|
|
3
|
Syria
|
|
1
|
|
|
1
|
Turkey
|
1
|
2
|
|
4
|
7
|
USSR
|
|
1
|
|
|
1
|
Zaire
|
|
|
3
|
5
|
8
|
Total
|
31
|
21
|
14
|
39
|
105
|
Source: Ministry of the Interior.
Table 30
Number of accompanied asylum-seeking children under 18, by country of origin
1994
|
1995
|
1996
|
1997
|
Total
|
|
Afghanistan
|
2
|
10
|
10
|
|
22
|
Albania
|
7
|
3
|
|
308
|
318
|
Algeria
|
1
|
10
|
9
|
2
|
22
|
Angola
|
8
|
7
|
10
|
6
|
31
|
Armenia
|
|
|
2
|
2
|
4
|
Bangladesh
|
|
|
|
1
|
1
|
Bulgaria
|
5
|
|
|
1
|
6
|
Burundi
|
3
|
6
|
8
|
|
17
|
Cameroon
|
|
1
|
1
|
|
2
|
Chad
|
|
2
|
|
|
2
|
China
|
3
|
|
|
|
3
|
Colombia
|
|
1
|
|
|
1
|
Congo, Rep.
|
|
|
1
|
2
|
3
|
Cuba
|
2
|
|
|
|
2
|
Egypt
|
2
|
4
|
|
|
6
|
Estonia
|
|
1
|
|
|
1
|
Ethiopia
|
9
|
6
|
2
|
|
17
|
Former Yugoslavia
|
18
|
7
|
1
|
9
|
35
|
Georgia
|
|
|
1
|
|
1
|
Ghana
|
|
|
2
|
|
2
|
Hungary
|
1
|
|
|
|
1
|
Iran
|
4
|
19
|
5
|
10
|
38
|
Iraq
|
8
|
22
|
13
|
38
|
81
|
Lebanon
|
|
|
5
|
|
5
|
Liberia
|
2
|
1
|
|
|
3
|
Nigeria
|
|
1
|
|
|
1
|
Table 30 (continued)
1994
|
1995
|
1996
|
1997
|
Total
|
|
Pakistan
|
1
|
2
|
|
|
3
|
Peru
|
3
|
|
|
|
3
|
Poland
|
|
|
|
|
0
|
Romania
|
156
|
50
|
4
|
7
|
217
|
Russian Federation
|
3
|
4
|
1
|
|
8
|
Rwanda
|
1
|
11
|
9
|
6
|
27
|
Sierra Leone
|
|
|
|
|
0
|
Somalia
|
|
9
|
5
|
2
|
16
|
Sri Lanka
|
20
|
|
|
1
|
21
|
Sudan
|
4
|
5
|
|
1
|
10
|
Syria
|
|
5
|
|
10
|
15
|
Tajikistan
|
|
|
1
|
|
1
|
Togo
|
|
1
|
|
1
|
2
|
Tunisia
|
2
|
|
|
1
|
3
|
Turkey
|
3
|
|
3
|
6
|
12
|
Ukraine
|
3
|
7
|
2
|
3
|
15
|
USSR
|
|
2
|
|
|
2
|
Viet Nam
|
1
|
|
|
|
1
|
Zaire
|
4
|
1
|
8
|
6
|
19
|
Total
|
276
|
198
|
103
|
423
|
1 000
|
Source: Ministry of the Interior.
Table 31
Outcome of asylum applications by children under 18, 1994-1997
On waiting list
|
Not considered
|
Not granted
|
Granted
|
Suspended
|
Total
|
|
Unaccompanied
|
3
|
-
|
73
|
25
|
4
|
105
|
Accompanied
|
49
|
15
|
674
|
245
|
17
|
1 000
|
Total
|
52
|
15
|
747
|
270
|
21
|
1 105
|
Source: Ministry of the Interior.
.
(b) Procedures
508. The child can be assisted by a guardian ad
litem during hearings related to his or her application for asylum, if it is
considered
necessary by the presiding judge or the Central Commission for the
Recognition of Refugee Status. The child is also guaranteed the
assistance of a
qualified interpreter. The child’s views and the information he or she
provides are taken into due account
by the Commissioners in their deliberations.
Applications for family reunion are generally seen in a favourable light and
processed
quickly.
(c) Non-recognition of refugee status and the possibility of remaining in the country
509. A government bill for a law on
asylum-seekers (A.S. No. 2425, Regulations relating to Protection and the Right
to Asylum) is
currently being considered by Parliament. Under article 9,
it provides that, when the Commission finds it inappropriate to send
an
asylum-seeker back to his or her country of origin or of residence, such
circumstances enable the Commission to grant the applicant
a temporary
authorization to remain in the country for one year. This authorization is
renewable one year at a time. After five
years, the applicant can obtain
residence papers that entitle him or her to the same rights as those granted to
a political refugee.
The same rules apply to an unaccompanied asylum-seeking
child. Moreover, there is provision that a hearing for the recognition
of
refugee status for such a child will have priority over others and that legal
action will be suspended until the competent Juvenile
Court can name a guardian
ad litem to follow the case.
(d) Assistance
510. Children who have not obtained refugee
status are not entitled to the same assistance and protection as refugees.
Nonetheless,
article 31 of Law No. 40 of 6 March 1998 provides that a committee
will be set up with responsibility for monitoring the situation
of foreign
children who are authorized to remain temporarily in Italy. Responsibilities
will only be defined precisely in a subsequent
act of the President of the
Council of Ministers, but will certainly be inspired by the principles set out
in the Convention on the
Rights of the Child.
511. The procedures
currently in place do not require that all refugees (whether adults or children)
be automatically placed in reception
centres. Refugees are free to choose a
domicile anywhere in Italy and to provide for their own maintenance. They can
apply to the
State for an exceptional grant to cover the initial expenses
incurred in settlement.
512. Local authorities provide access to health
care for all refugees, just as they do for all Italian citizens in
need.
513. Asylum-seekers who have entered into Italy without means of
subsistence or accommodation can benefit from an emergency allowance
for a
period not exceeding 45 days. It should be added, however, that the proposed
law mentioned earlier provides for a series of
welfare measures benefiting
asylum-seekers. These measures range from medical and hospital care to
reception in refugee centres
with a right to room and board for the entire
period needed for processing the asylum application.
514. Italy
collaborates with various non-governmental and intergovernmental organizations -
and in particular with the Office of the
United Nations High Commissioner for
Refugees (UNHCR) - regarding welfare programmes aimed at enabling refugees to
settle permanently
in Italy.
515. The State is obviously committed to
ensuring that the child and his or her family members do not find themselves in
dangerous
situations.
516. It should be pointed out that, at least from
the scarce official data that exist on refugee and asylum-seeking children, the
problems faced in Italy differ greatly from those encountered in other
countries. Two situations are in fact prevalent among asylum-seeking
children:
− A high proportion of the applications made by accompanied asylum-seeking children are rejected on grounds that they are unfounded, yet there is practically no information on what happens to child applicants once they are denied asylum;
− Unaccompanied asylum-seeking children represent only a small portion of asylumseekers and in general are given full assistance.
517. Because of this situation, very few
initiatives targeting refugee children exist in Italy, with the exception of
humanitarian
relief efforts addressed through special legislation, as in the
case of children from Rwanda, Somalia or the former Yugoslavia.
In these cases,
much attention has been directed to the psychosocial recovery of these young
children and their integration into
Italian society, when possible. The major
problem today appears to be refugees who cannot or do not want to return to
their country
of origin and whose future circumstances in Italy are highly
uncertain (this is especially true of refugees who come from the former
Yugoslavia and whose residence permits expired in July 1998).
518. On the
basis of this experience, article 18 of Law No. 40/1998 provides that the
President of the Council of Ministers can, by
decree, make temporary protection
measures for refugees, even in partial revocation of existing provisions of the
law, in cases of
impelling humanitarian need resulting from armed conflict,
natural disasters and other events of particular gravity in non-European
Union
countries.
(e) Children in Albania
519. Numerous projects were launched in Albania
in 1998, aimed at the protection of Albanian children. These are one- to
two-year
projects run directly by various Italian nongovernmental organizations
(NGOs) in close collaboration with local NGOs and
financed
by the Department of Social Affairs of the Presidency of
the Council of Ministers. Located throughout Albania, the projects
aim
to create and strengthen the following: 20 educational structures
for children; 5 family-type communities for minors in difficult
circumstances;
11 youth centres; and 2 centres for the protection of Albanian girls at risk of
becoming part of prostitution rings
operating in Italy, which will also serve as
centres for the reintegration of former young prostitutes who have repatriated
to Albania.
520. Other projects involve aid at a distance, professional
training (the training of youths as well as the training of trainers)
and the
development of information services on social and health concerns. Specific
projects target children with disabilities,
orphans, child drug abusers and
children living or working on the street. Of particular interest is the project
directed by the
International Labour Organization (ILO) that seeks to raise
awareness of children’s rights.
521. A total of 14,500 million lire
have been allocated to these projects, approximately half of which is devoted
directly to measures
affecting children.
522. In addition, an agreement
was signed between the Government of Italy and the UNICEF Office in Albania in
August 1999 for the
realization of a multisectoral “Plan for Child
Protection”, which is estimated to cost approximately 2,500 million
lire.
523. The President of the Council of Ministers also signed an
important agreement with International Social Service (ISS), a step
that can be
considered a follow-up to the Statement of Intent signed by the Italian Minister
for Social Solidarity and the Albanian
Ministers of Social Affairs on 20 May
1997 and 21 July 1998. ISS is mandated to organize the repatriation of
nonaccompanied Albanian
children currently in Italy, whose return to their home
country is considered to be in their own best interests. It will also assist
repatriated children, facilitating their re-entry into their family, enrolment
in school, professional training, job placement, and
so forth. From December
1998 to the present, approximately 150 Albanian minors have been repatriated,
and all have re-entered their
family of origin. In addition, approximately 50
were integrated successfully into the work environment, thanks to the
availability
of “work scholarships”.
2. Children in armed conflict
524. Italy has addressed the situation of children in armed conflict both
by intervening within conflict-torn countries and by launching
initiatives in
Italy. Included in the first category are the numerous measures taken by the
Ministry of Foreign Affairs. The Regions
and the local authorities have also
promoted related activities (such as Law No. 14 of the Tuscan Region
dated 22 April 1991 concerning
“contributions for aid to
asylum-seekers, refugees, prisoners and populations caught up in exceptional
events caused by armed
conflict, natural disasters and situations of
malnutrition, lack of hygiene and poverty”, and Law No. 11 of the Trentino
Alto
Adige Region, dated 30 May 1993 “in favour of populations of
non-European Union countries affected by war, natural disasters
or particularly
difficult economic and social conditions”).
525. The initiatives
carried out in Italy have essentially been in favour of children affected by
armed conflict in Somalia, Rwanda
and the former Yugoslavia. Building on the
positive experience of the Medevac Programme, which brought more than 200
wounded children
from Yugoslav conflict zones to Italy for treatment, article 34
of the new Law No. 40/1998 sets out special procedures to facilitate
entry into
Italy for medical treatment. In addition, several NGO initiatives have enabled
trained personnel to work with child victims
of armed conflicts in order to
promote their physical and psychological recovery and social reintegration, and
to strengthen their
ties with their culture of origin, including the maintenance
of bilingualism. These initiatives have usually been part of European-wide
activities. They remain, however, isolated episodes, which makes it difficult
to estimate what funds have been allocated up until
now specifically for the
physical and psychological recovery of these children. In this regard, there
have repeatedly been calls
for a coordinating body to be established for NGOs
active in foreign countries, including countries affected by armed conflict.
Such a body would facilitate the use of different kinds of child-welfare
measures, including those financed through the mechanism
of aid at a
distance.
526. Given the current emergency situation of Kosovar refugees in Albania,
Montenegro and Macedonia, the Government of Italy has organized
a
humanitarian drive called Mission Rainbow (Missione Arcobaleno),
with coordinating bodies in Rome and in Tirana. A toll-free number was set up
on 31 March 1999, which is connected with a crisis
unit of the Civil Protection
whose task it is to provide information about the amount of funds raised (by end
April 1999, a total
of 84,000 million lire had been collected) and about
the refugees’ specific needs for assistance. It also provides information
about the possibility of providing support to the children of Kosovo through the
organizations that take part in the “Albanian
Children” Programme.
Within this programme, the Department of Social Affairs is developing a project
for aid at a distance,
in collaboration with a network of volunteer
organizations (AIBI - Associazione amici dei bambini [Association
of Friends of Children], AVSI - Associazione volontari per il servizio
internazionale [Association of Voluntary Organizations for International
Service], CEFA - Volontari nel mondo [Volunteers in the World], CI
AI - Centro italiano aiuti per l’infanzia [Italian Centre for Aid
to Children], Terres des Hommes, VIS - Volontariato internazionale per lo
sviluppo [International Volunteers for Development]). The objectives of
this project are:
− To raise funds through the promotion of individual donations of 300,000 lire, which allow one child to stay with an Albanian family for at least six months or to be placed in a centre which is backed by a network of 21 observatories involving both Italian volunteers and the Albanian authorities;
− To provide the support of a psychosocial team for reception, guidance and prompt psychological care for the relief of post-traumatic stress disorders;
− To carry out intensive activities regarding registration and documentation in order to trace missing family members and promote family reunification.
The project expects to benefit approximately
7,000 children.
B. Children involved with the system of administration of juvenile justice
527. The Italian legal order view children as legal persons who have both
rights and needs that must be recognized and fulfilled.
For this reason, all
judicial proceedings involving minors are presided over by a specialized judge,
who can fully respect the personality
of the child, understand his or her needs
and provide for the child’s basic developmental needs - as far as this can
be done
in a court. This judge puts together a special commission competent not
just in legal matters but also in psychology, pedagogy and
social welfare (the
commission is normally composed of two professional judges and two expert judges
who have specialized knowledge
in child-related fields). It is very significant
that the Constitutional Court, in its decision No. 222 of 1983, recognized
that
the protection of children is guaranteed by the Constitution and that the
State, in order to fulfil its constitutional obligation in protecting children,
must promote the development and operation
of various institutions, among which
is the Juvenile Court. It would be anomalous, therefore, to entrust certain
proceedings that
profoundly affect the lives of minors (such as custody in cases
of parental separation) to a non-specialized judge.
528. The protection
of the fundamental needs of the child and the promotion of educational measures
when the child’s education
has been interrupted are important elements not
only in civil proceedings relating to child protection but also in criminal
proceedings
that concern the child not as a victim but as the possible
perpetrator of a criminal offence. The new criminal procedures applicable
to
juvenile offenders intend to emphasize education far more than retribution, as
will be explained in detail later, and have as
their main objective the
rehabilitation of the juvenile offender.
1. Criminal responsibility of the child and the trial
529. The age of criminal responsibility in
Italy is 14 years of age. Children under that age are presumed not to have the
capacity
to infringe the criminal law and therefore cannot be charged with a
criminal offence or be subjected to criminal proceedings. Between
the ages
of 14 and 18, youngsters can be charged if they are capable of
understanding and committed the offence wilfully; that is,
if it can be proved
that they were capable of forming the necessary criminal intent in relation to
the specific offence they are
accused of committing.
530. Criminal
proceedings involving an alleged juvenile offender take place in the Juvenile
Court and are presided over by a specialized
interdisciplinary commission. Even
the investigation and the prosecution will be handled by a specialized juvenile
judge, the Public
Prosecutor for Juveniles.
531. The juvenile is
entitled to all of the procedural guarantees provided for adults. In addition,
article 1 of Decree of the President
of the Republic No. 448 of 22
September 1988 (Approval of Provisions on the Criminal Procedure Applicable
to Juvenile Offenders)
provides that the rules governing the proceedings must
always be applied in a way that is consonant with the personality and
educational
needs of the defendant. This law was enacted to avoid a
youngster’s contact with the juvenile justice system being miseducational
or perceived as an act of incomprehensible violence perpetrated by adults.
During the trial, the judge must explain to the young
defendant the significance
of the proceedings at which he or she is present, as well as the content of and
grounds (including those
of an ethical and social nature) for the court’s
decisions. These explanations are given so that the juvenile is fully aware
of
what is occurring during the proceedings and why it is occurring.
532. Respect for the child’s personality is a principle enshrined
in the law. The judge must fully evaluate the juvenile’s
personality from
a psychological, social and environmental point of view, obtaining information
about his or her personal, family
and social circumstances, resources and
background. This information is used to determine whether the juvenile can be
charged and
the degree of his or her responsibility, and to evaluate the social
significance of the offence.
533. The judge is responsible for
questioning the juvenile, and no cross-examination is allowed. When it is
considered necessary
for safeguarding the personality of the youngster,
proceedings may be held with or without his or her presence.
534. Hearings in the Juvenile Court are conducted in closed chambers,
but the judge can, at the request of a defendant over the age
of 16, authorize a
public hearing.
2. The rights of children during criminal proceedings
535. It is a fundamental principal of Italian
law that an individual can only be punished for an act that is expressly
recognized
as an offence by the law in force at the time it is committed. This
principle is applicable to everyone, regardless of age, gender
or personal or
social circumstances (article 3 of the Constitution).
536. The minor,
like every other person, is presumed innocent until proven guilty according to
law.
537. The juvenile defendant, like every other defendant, has the
right to be informed promptly of the charges against him or her.
Therefore,
immediately after the first act in which a defence counsel has the right to be
involved, the public prosecutor must send
the defendant a notice (called
“information on guarantees”) containing the details of the laws that
are thought to have
been infringed and the date and place of the offence, and
inviting the defendant to exercise the right to name a defence counsel
of his or
her choice. If the defendant does not nominate a defence counsel, the court
will appoint one on his or her behalf.
538. The court must appoint a
defence counsel whenever a juvenile is without legal representation. The
court-appointed defence counsel
must be a lawyer specialized in juvenile law.
The State advances the costs of legal fees, and in case of conviction, seeks
reimbursement
from the minor’s parents when their income is above a
certain level established by law.
539. During the entire procedure,
young defendants have the right to receive the emotional and psychological
support of their parents
or of any other person of their choice if so authorized
by the court. In any event, they must be ensured access to the assistance
of
the services responsible for the administration of juvenile justice.
540. The law provides that the public prosecutor must conclude his
investigations and request that the juvenile be brought to trial
within six
months (a year in the case of more serious crimes). The judge may extend this
period if he deems fit. There is no provision
for accelerating the proceedings
on grounds of being under the age of majority.
541. Following the
public prosecutor’s application for a hearing, the judge sets the date for
a preliminary hearing, which must
be held within 30 days of the application.
This time limit was introduced by the reform of 1988 but has proved difficult to
respect
because of the severe shortage of judges.
542. The preliminary
hearing is held in the Juvenile Court, before three judges (a professional
judge assisted by two “expert
judges”). The court decides whether
to prosecute after hearing the minor, his or her parents and the social
services. If
the defendant has previously had a clean record, the court may
issue a judicial pardon and close the case. The court may also dismiss
the case immediately if the offence is a minor one and has not been
repeated. In addition, it may suspend proceedings and order
the juvenile
to be placed on probation and to undergo noncustodial treatment, releasing him
or her to the services responsible for
the administration of juvenile justice.
If the court considers that probation has had positive results, it can close the
case.
Treatment can involve mediation and victimoffender reconciliation and is
carried out in collaboration with the local services. The
court may also
sentence the juvenile during the preliminary hearing if it deems that he or she
should be fined or subject to other
non-custodial measures. On the other hand,
if it decides that a more serious punishment is required or that it does not
have sufficient
evidence to make a decision, it can call for criminal
proceedings to be instituted.
543. Criminal proceedings are always held
in the Juvenile Court. During the proceedings, the public prosecutor has to
prove the accusations.
Young defendants cannot be crossexamined and cannot be
compelled to testify against themselves. They are allowed to call witnesses
who
will testify on their behalf, and have the same guarantees as adults on trial
for a criminal offence.
544. Young defendants also have the right to
the assistance of an interpreter if they cannot understand or speak Italian.
545. If found guilty, they can lodge an appeal against the sentence in
the Court of Appeal (Juvenile Division); and can also appeal
to the Supreme
Court against a sentence of the Court of Appeal.
546. The privacy of
minors is protected as hearings have to be held in closed chambers, and the law
prohibits the publication or dissemination
of information or pictures that might
make it possible to identify young persons involved in criminal
proceedings.
547. The Ministry of Justice has sought to develop social
and educational programmes to promote the social reintegration of young
offenders. In this connection, it has signed formal agreements with territorial
bodies, public bodies, cooperatives and social-action
voluntary groups for the
management of appropriate recreational, cultural and educational activities.
Among the organizations involved
are the World Wide Fund for Nature (WWF),
UISP (Unione sportiva per tutti) [Union of Sports for Everyone],
AICS (Associazione italiana cultura e sport) [Italian Association of
Culture and Sport], Rotary International, CSI (Centro Sportivo Italiano)
[Italian Centre for Sports], ETI (Ente Teatrale Italiano) [Italian
Theatrical Society], Arciragazzi, MoVI [Italian Volunteer Movement].
3. Specialized authorities and institutions
548. The Italian system of juvenile justice is
made up of a specialized court - the Juvenile Court in the first instance, the
Court
of Appeal (Juvenile Division) in the second instance - with a special
office of the Public Prosecutor’s Office, Juvenile courts
are located in
every city where there is a Court of Appeal.
549. The Juvenile Court has
competence over all criminal offences perpetrated by children under the age of
18 years. It is also authorized
with regard to civil or protection matters,
such as child abuse or abandonment, national and intercountry adoption, and
criminal
offences perpetrated by children under the age of 14, that is, children
who have not reached the age of criminal responsibility.
550. Besides
the Juvenile Court, there is a special office within the Ministry of Justice
concerned with juvenile offenders: the
Central Office for Juvenile Justice.
This office is composed of technical staff (social workers, educationalists,
psychologists)
and administrative staff. In addition, in every city with a
Juvenile Court, there is also an office for social services within the
Ministry
of Justice, consisting of social workers, psychologists and educationalists.
551. If related to criminal law, the actions and measures decided on by
the Juvenile Court are carried out by the youth services of
the Ministry of
Justice, in collaboration with the social services of the local community
(municipalities, provinces). If related
to civil law, they are carried out by
the social services of the local community. Children under 14 who have
infringed the criminal
law fall within these civil law activities. These
children often live in precarious family situations with abusive or negligent
parents. In these cases, parents are ordered by the court to accept the
supervision of the local social services. Children can
be released to the care
of the local social services and must adhere to any behavioural rules they set.
If children cannot remain
within their family environment, the court may order
placement in a foster family, a family-type community or in an institution,
under the responsibility of the local social services.
552. Reformatories
run by the Ministry of Justice have not existed for many years
(since 1977). The services of the Ministry of Justice,
as mentioned
earlier, can only become involved in criminal cases, and therefore only handle
cases involving children who have reached
the age of 14. Exceptionally, they
can become involved in the cases of younger children, when the court considers a
child to be
a danger to society and orders, as a security measure, that the
child be placed in a judicial reformatory. This measure is only
provided for in
relation to very grave crimes (e.g. murder). Until 1988, custodial sentences
involving placement in a judicial reformatory
were carried out in institutions
run by the Ministry of Justice. This procedure was amended by Decree of
President of the Republic
No. 448 of 1988, and young offenders are now placed in
a community setting.
553. Although the law gives ample leeway to the
judge and the social services in the treatment of young offenders under the age
of
14, undoubtedly much still remains to be done. Many municipalities have
inadequate social services, and social workers find it difficult
to add these
cases to their caseloads.
4. Training of personnel
554. Legal provisions have been enacted to
ensure that all staff involved in the system of juvenile justice receive
training. Decree
of the President of the Republic No. 448 established special
sections for minors within the Criminal Investigation Department of
the Public
Prosecutor’s Office. Professional training courses and refresher courses
for staff of these sections are carried
out by the Ministry. Court-appointed
lawyers are also required to take specific training courses, and the bar
association of any
city where there is a Juvenile Court has to organize annual
refresher courses for lawyers on issues related to juvenile justice and
the
problems of the formative years. Training of judges and public prosecutors is
carried out by the Higher Council of Judges, which
periodically holds seminars
for judges, usually of a few days’ duration. At present, much attention
is being focused on improving
training courses for judges, since attendance is
not obligatory. The Higher Council is therefore examining the possibility of
holding
decentralized courses of a longer duration.
555. Training of the
staff of the youth services of the Ministry of Justice is the responsibility of
the Central Office for Juvenile
Justice. In all training courses, time is
allocated for studying the provisions of the Convention on the Rights of the
Child and
other relevant international instruments in the field of juvenile
justice. In particular, the Central Office for Juvenile Justice
- in
accordance with the provisions of the United Nations Standard Minimum Rules for
the Administration of Juvenile Justice of 1985,
the Council of Europe’s
recommendation No. R (87) 20 on social reactions to juvenile
delinquency, and the Riyadh Guidelines
- has an intense programme of training
courses, which are held in schools located in the North (Castiglione delle
Stiviere), Centre
(Rome) and South (Messina) of Italy. Training is targeted at
the following groups: initial training for newly hired technical staff
(educationalists, social workers, psychologists); on-the-job training involving
special project work for already employed staff;
training for various categories
of personnel (staff of the Ministry and of local authorities; penitentiary
guards).
5. Data on juvenile offenders
556. Data on juvenile offenders can be found in
the tables attached to this report. From these data it can be seen that:
− There has been a slight increase in the number of young persons accused of offences;
− More girls are in trouble with the law than in the past, while the percentage of boys is decreasing;
− The average age of juvenile offenders is falling (for example, while 14-year-olds made up only 9.2 per cent of all juveniles in trouble with the law in 1990, they have represented approximately 13 per cent in the last few years);
− Most of the offences are committed by children who did not continue their schooling after completion of compulsory education;
− The most common criminal offence is theft;
− The number of foreign children accused of offences is increasing, and there are more foreign than Italian children in custodial facilities due to the lack of valid alternatives to detention.
6. Deprivation of liberty
557. It is a fundamental principle of the
Constitution that no one may be deprived of his or her liberty unless this is
decided by a judge and only in cases where such punishment is provided
for by
law. This principle applies equally to youngsters and adults. In addition, it
is a fundamental principle of juvenile justice
that the use of detention for
juvenile offenders is to be considered as a last resort.
558. Juveniles
can only be deprived of their liberty when they have been found guilty of
committing an act that is expressly defined
as an offence by the criminal code
or by criminal law.
559. The police can arrest a minor on the spot if he
or she is caught in the act of committing a serious crime (e.g. murder, rape),
but they must immediately inform the public prosecutor and the juvenile
services. The public prosecutor can order the juvenile to
be placed in a
reception centre or released into the custody of his or her parents while
waiting for the judge’s decisions.
560. Within the ensuing 48
hours, the public prosecutor has to request the judge to determine whether or
not the arrest was justified
and accordingly confirm or annul the arrest and
decide whether or not to place the child in pre-trial detention.
561. Pre-trial detention or preventive custody in prison is permitted
only for very serious crimes, the same ones for which immediate
arrest is
provided. The judge can order a juvenile to be remanded in prison only when any
other measure would be inadequate and
there is a danger that the youth will try
to escape or tamper with the evidence, or where there is a risk of recidivism.
The judge
must, in any event, take into account the need not to interrupt any
educational processes already in act. Preventive custody takes
place in special
juvenile penal institutes where youths are not in contact with adults. The
length of detention provided for by
law is reduced by two thirds for youngsters
between 14 and 16 years of age, and by one half for those between 16 and 18
years old.
562. The law also provides for non-custodial measures. These
are mainly placement in a community, house arrest or other restrictions.
Although these measures effectively limit personal liberty, they do not involve
imprisonment. Pre-trial detention may also be substituted
by one of these
non-custodial measures. The juvenile who is subject to preventive custody
measures is always handed over to the
juvenile justice services, whose
activities involve both support for and control of the youngster and are carried
out jointly with
the local services.
563. While restrictions and house
arrest are common measures, placement in a community is far less frequent
because of the very limited
number of such communities. The Ministry of
Justice, which is responsible for organizing such communities, has encountered
difficulties
in doing so.
564. The law does not provide for
indeterminate detention. For juveniles as for adults, only the punishment
provided by law for a
specific offence is admissible. Deprivation of liberty is
only applicable to juveniles convicted of a criminal offence or for those
on
pre-trial remand, in the ways and within the limits described above (see
guideline 138).
565. Young refugees or asylum-seekers have the right to
assistance and are not deprived of their liberty because of their status.
Nonetheless, much still needs to be done to improve the situation of foreign
youths, especially refugees, illegal immigrants and
Romani children. Foreign
youths represent a disproportionately high percentage of the total inmates of
juvenile detention centres
(in 1995, admissions for foreigners were 903 compared
with 1,110 for Italians; in 1997, more foreign than Italian admissions were
registered - 954 compared with 934). A pattern of discrimination is also
evident in the data relating to pre-trial provisions.
According to research
carried out by the Ministry of Justice, 21.9 per cent of Italian youths arrested
in 1995 were put under house
arrest compared to only 8.74 per cent of foreign
minors. In contrast, pretrial detention was a measure applied more often to
foreign
(31.85 per cent) than to Italian (21.86 per cent) minors.
566. On an average, some 45,000 juveniles are accused of crimes every
year (of whom 10,000 are foreigners). About 4,000 are arrested,
roughly
half of whom are foreigners (in 1997, there were 2,007 Italians and 2,189
foreigners arrested). As can be seen, arrests
represent less
than 9 per cent of the total.
567. Approximately 10,000
juveniles accused of crimes are under 14 years of age, which means they are not
liable to charges and cannot
be judged or sentenced because they have not yet
reached the age of criminal responsibility. The only applicable sanctions are
civil
measures that are non-custodial and do not limit their freedom. Any
action is the responsibility of the local social services.
Local communities,
however, as has already been mentioned, are not always alert to the problems or
often have inadequate social services.
568. Between 1990 and 1995, the
number of Italian minors accused of committing crimes remained substantially
stable (from 34,457 to
34,698), whereas the number of accused foreign minors
almost doubled (from 6,594 to 11,353).
569. The juvenile who is under
arrest is not detained in prison. The police must immediately notify the public
prosecutor of the
arrest, who in turn can arrange for the minor either to be
returned to his or her parents or to be placed in secure accommodation
pending
his or her appearance before a judge. Small, protected apartments are usually
used for this purpose. They are not meant
to seem like prisons but, at the same
time, effectively ensure that the minor remains at the court’s disposal.
Where it is
possible, they are located within the Juvenile Court. The juvenile
must remain in this accommodation until a preliminary hearing
is held to decide
on pre-trial provision. At that hearing, the judge must determine whether or
not the arrest was carried out legally,
and whether any precautionary measures
need to be applied pending the trial, including detention in prison if provided
for by law.
Only 37.5 per cent of arrested juveniles are, as a
precautionary measure, incarcerated. As mentioned earlier, the judge has to
arrange for a preliminary hearing within 48 hours of receipt of the public
prosecutor’s application.
570. The police have to accompany
juveniles caught in the act of committing minor crimes (such as purse-snatching,
burglary or car
theft) directly to the police station and detain them there for
only the time strictly necessary for returning these youngsters to
their parents
and, in any case, not more than 12 hours. The public prosecutor must be
notified immediately of the arrest.
571. New provisions relating to
foreign minors were introduced with Law No. 40 of 6 March 1998 on
immigration. The Law prohibits
the expulsion of a foreign minor unless
necessary to protect national security or public order. The measure of
expulsion is taken
by the Juvenile Court on the application of the police
commissioner. While awaiting a decision, the foreign minor is temporarily
detained in a reception centre and provided assistance as needed.
572. At the request of the surveillance judge, a residence permit can be
issued at the Juvenile Court to a foreigner who has finished
serving a prison
term for a crime committed while he or she was still a minor and who has
successfully completed a programme of assistance
and social integration.
573. In the event of serious psychological or physical problems and
bearing in mind the juvenile’s age and health, the Juvenile
Court may
authorize a relative of a juvenile who is living in Italy to enter into and
reside in the country for a defined period
of time, even in derogation of the
existing provisions of the immigration law.
574. The law has, moreover,
instituted a Committee for Foreign Juveniles, made up of representatives of the
various ministries, local
authorities and volunteer groups. This Committee is
responsible for coordinating the activities of the interested administrations
and for monitoring the residence formalities of foreign youths temporarily
residing in Italy.
575. Since the law has only recently been passed, no
information about its application to minors is as yet available.
576. As
far as prevention is concerned, it should be noted that two instruments exist
that are particularly relevant for carrying
out preventive measures in
collaboration with the local authorities: Law No. 216 of 1991 and Law No. 285
of 1997. The former intends
to promote, in particularly crime-prone areas,
measures aimed at preventing minors from becoming involved in criminal
activities,
while creating within local administrations a greater awareness of
children’s issues and better planning within this sector.
The projects
target young people who have very limited opportunities for schooling or social
interaction. The second law - which
is also preventive in nature - has
required Centres of Juvenile Justice to take an active role in drawing up
agreements on programmes
that define territorial plans of action.
577. Apart from the projects carried out in connection with the
above-mentioned laws, the Ministry has paid particular attention to
all of the
initiatives carried out jointly with local authorities for the implementation of
projects that can reduce juvenile delinquency
and disadvantage.
7. Respect for article 37 (c) and (d)
578. In an effort to ensure respect for article
37 (c) of the Convention, the Ministry of Justice has made a special effort to
train
all staff dealing with children deprived of their liberty. Both
educationalists and psychologists serve on the staff of juvenile
detention
centres. Even the guards (penitentiary police officers) are chosen and trained
to interact correctly with minors.
579. No juvenile can be held in an
adult prison. Youngsters serving a custodial sentence are detained in separate
juvenile detention
centres and have the right to maintain contact with their
family through telephone calls, correspondence and visits. Juveniles in
pre-trail detention have to obtain authorization from a judge to have contact
with their families.
580. Juvenile detainees currently enjoy all the rights set out in Law No. 354
of 26 July 1975 (Prison Rules and Provisions on the
Enforcement
of Prison Sentences and Measures Restricting Freedom). The Government intends,
however, to introduce a bill in Parliament
for a law specifically regulating the
treatment of juveniles deprived of their liberty.
581. In every
Juvenile Court, there is a judge responsible for the supervision of minors.
This judge monitors both the conditions
of juvenile detention centres and the
treatment of detainees, as stipulated in Law No. 354/1975 cited above.
582. Classes are held in juvenile detention centres, enabling detainees
to complete compulsory education or repeat scholastic years;
professional
training courses and sports activities are also available, in collaboration with
both the local community and voluntary
organizations. All detainees have the
right to medical care.
583. The provisions of article 37 (d) of the
Convention are assured by the regulation requiring the court to appoint a
defence counsel
whenever a minor does not have a lawyer of his or her own
choice. The public prosecutor or the judge nominates a defence counsel
at the
start of the proceedings. Juveniles already serving a custodial sentence have
the right to challenge the legality of their
detention through the Juvenile
Court, whereas juveniles in pretrial detention must go before a judge whose task
it is to validate
it or not. Time limits for this decision have been
established.
584. Law No. 448 stipulates that minors have the right to
maintain continuous contact with their families, who are considered to be
important references in every aspect and step of the hearing (art. 21). It is
stressed even earlier (art. 7), however, that there
is a duty to give notice to
the person exercising parental authority of “the information on the
charge” and the order
setting the date of the hearing, with the risk of
annulment when this duty is not fulfilled. Article 31 also requires the person
exercising parental authority to be present and “unless there is a
legitimate reason for his or her absence, the judge may
order him or her to pay
a fine in the event of noncompliance”.
585. With the measures
provided for in articles 20 and 21, the family is urged to reassume the
educative role that it is under a duty
to fill.
586. Within the limits
set by law, relations with family members are encouraged for detained youths as
well, through conversations
and cultural and artistic events held at detention
centres. Activities are oriented towards the recovery, if necessary, of a
positive
relationship between the minors and their families.
587. The
Central Office establishes the types of treatment to be provided in juvenile
detention centres, effecting periodic controls
by monitoring the activities
carried out in the peripheral structures. Periodic inspections are also carried
out to verify that
the activities carried out are those provided for in
accordance with the law. The judge responsible for the supervision of minors,
in turn, monitors conditions in the detention centres, with respect to the
penalties, through inspections, administrative controls
and judicial acts and
measures.
588. In compliance with the provisions of the United Nations
Standard Minimum Rules for the Administration of Juvenile Justice, young
detainees are kept in separate structures from adults. Youngsters who are under
arrest are taken to secure accommodation where they
remain until
the preliminary hearing. This kind of accommodation is especially valid in
some cases in that it provides a space for
problems to be addressed,
thus permitting minors to return to their own environment without having
had to experience prison life.
Circular No. 60080
of 19 January 1995, which regulates the administration of
juvenile detention centres, clearly states that each
centre must carry out the
provisions of the judicial administration, ensure that the rights of the
juveniles are respected and promote
the young person’s sense of
responsibility and self-worth, including through an orderly and organized
community life.
589. The health needs of the juveniles are catered for
through medical posts set up inside the juvenile detention centre, in which
nurses and doctors provide not just basic medical assistance, but also undertake
other global interventions relating to the persons
and the environment of these
centres. The detention centres cover the cost of medicine, analyses and
specialized medical examinations.
590. In all services relating to
juvenile justice, a psychologist is always a member of the team (either on the
staff or under contract)
in order to provide psychological support and
facilitate clarification processes.
8. Punishment
591. Neither adults nor juveniles are subject
to capital punishment in Italy.
592. The sentencing of a minor to life
imprisonment was abolished by decision of the Constitutional Court (Decision No.
168 of 28
April 1994).
9. Rehabilitation
593. As has already been said, criminal
proceedings aim at the physical and psychological recovery and social
reintegration of the
child.
594. It can be added that:
− Programmes for the recovery and support of children who are victims of neglect, exploitation or abuse are the responsibility of the local community services. Notable differences therefore exist nationally in the types of action carried out. Some large municipalities (such as Milan and more recently Rome) have shown special concern for children who are victims of sexual violence, setting up special centres for abused children. Complementing local services, these are composed of specialists who run special projects for the assistance and reintegration of abused children, which involve the temporary placement of the abused child in a special children’s shelter;
− Shelters for battered women are also common, and temporary stays are envisaged not just for women fleeing from domestic violence but also for their children;
− Considerable efforts are being made to increase school enrolment and retention of Romany children, whose numbers are very high in the large cities of North and Central Italy. In Rome, for instance, where the Romany population numbers more than 5,000, some 1,223 Romany children are enrolled in compulsory schools. Special transportation programmes have been set up to facilitate attendance. Nonetheless, only 870 pupils attend school regularly. It is clear from the experience of this programme that efforts to integrate Romany children into schools are, by themselves, not enough. Much more needs to be done to ensure that Romany children and their families can enjoy more dignified accommodation in adequately equipped stopping-grounds. Better-coordinated measures are also required to tackle the widespread problems of unemployment, illegal residence status and the lack of identity documents. National data on these phenomena are not available.
595. As far as training
is concerned, it is possible to indicate, apart from the data already presented,
the latest initiatives of
the Office for Juveniles of the Ministry of Justice:
− Programmes and activities for the physical and psychological recovery and social integration of young detainees;
− Staff training has received particular care and attention.
596. In 1996:
− Training of 41 specialized educationists;
− Training courses on “The Rights of the Child: Educational and Procedural Issues in the World of Justice”, sponsored by the Central Unit for Juvenile Justice of the municipality of Messina and aimed at a mixed group, including legal prosecutors, law students and sector workers;
− The project camp school laboratory on “learning about legality” in collaboration with the provincial education office of Messina and the provincial observatory for school drop-outs, targeting at-risk students in primary and middle schools in Barcellona P. di G., Capo d’Orlando and Tortorici;
− Refresher courses for State penitentiary police and workers in juvenile services, in collaboration with the police headquarters and the Juvenile Social Services Office of Messina.
597. In 1997:
− Training course for newly hired psychologists;
− Training course on juvenile issues for 100 penitentiary police transferred to the juvenile sector after a special recruitment campaign;
− National seminar for principals, teachers and workers of the juvenile detention centres, at which courses for the middle-school level have been started on the theme of “Adolescents Without a Future? Schools and Juvenile Detention Centres: Let Us Work for an Integrated Training Programme”, organized by the Ministry of Education.
C. Children belonging to a minority or an indigenous
group
(guidelines 165-166)
598. In Italy, a
number of linguistic minorities can be identified:
− Groups living in border zones who, for historical reasons, share the same language and cultural traditions as the populations in the neighbouring countries: the Frenchspeaking minority in the Valle d’Aosta, the German- and Ladina-speaking minority in Trentino Alto Adige, and the Slovenian-speaking minority of FriuliVenezia Giulia;
− Groups historically settled in different localities of the country who have totally distinct characteristics: the ethnic pockets of Alberesh, Carinziani, Carnici, Catalans, Cimbri, Croatians, French Provencals, Grecanici, Mcheni, Occitali e Walser;
− Groups of the same identity forming the entire population of a specific region: the Friulani and the Sardinians who form a majority-minority.
599. Given that article 3 of the Constitution provides that
all citizens, without distinction of any kind, have equal rights before the law
and equal social dignity, and that
article 6 expressly obligates the State to
adopt special measures to protect linguistic minorities, it can be said that
adequate
protection for minorities does indeed exist in Italy. In fact:
− Almost all regions with linguistic minorities have adopted laws aimed at their protection;
− The Central Office for Border Zone and Ethnic Minority Issues - which is part of the Ministry of the Interior - not only contributes to drafting regulations protecting minorities, but it has also harmonized these with the principles of equality and liberty set out in the Constitution and in the international conventions ratified by Parliament (in particular, the Council of Europe’s Framework Convention for the Protection of National Minorities (1995), ratified by Law No. 302 of 28 August 1997);
− The Central Office has arranged for the dissemination of information about minority groups (publications, brochures, films) to draw the attention of personnel in institutions and others to the concerns of linguistic minorities; it has written reports containing data, case histories and cultural aspects of the minorities, including a focus on children of minorities; it has developed programmes aimed at increasing knowledge of minority cultures in general; it has carried out research studies, jointly
with the Ministry of Education, which provide a useful knowledge tool about different aspects of minority cultures (and organizations representing the minorities themselves were actively involved in this activity);
− In order to identify children belonging to linguistic minorities, functional measures have been taken to improve and spread knowledge of the mother tongue through training courses which aim to preserve and spread knowledge of minority languages;
− To ensure their rights to use their own language and enjoy their own culture, minority children have been encouraged to participate in mother-tongue poetry and prose contests; artistic exhibitions on the theme have been promoted; local newspapers have been financed, which include columns on children’s problems; museums and cultural centres have been set up that can be visited by children and in which children collaborate; radio and television programmes for children in minority languages have been promoted;
− Religious freedom is fully guaranteed to all citizens in Italy, and therefore minorities can worship according to their own beliefs.
600. To ensure that minorities can use their own language,
together with other members of their group, the following measures have
been
adopted:
(a) Mother-tongue language courses have been introduced in
schools, and the necessary teaching aids have been made available. Reports
have
also been distributed free of charge, and dictionary and glossaries have been
published;
(b) Initiatives have been undertaken to spread knowledge
through the mass media about the cultural heritage of minorities; some
minorities
are entitled to use their mother tongue during legal proceedings and,
in any case, minors, when they request to do so, may use their
mother tongue
throughout the proceedings, nominating an interpreter if necessary.
601. Steps have not yet been taken to translate the Convention on the
Rights of the Child into minority languages. The Convention
is, however,
available in Italian, which is spoken by all minorities who live in our country.
602. It can therefore be said that minorities enjoy ample protection
within Italy. It is also important to mention that this protection
will be even
greater when the new “Consolidation of Provisions relating to the
Protection of Linguistic Minorities” is
approved by Parliament, which is
likely to be in the near future.
D. Children of the so-called “Repented”
603. The children of informants who have been
admitted to witness protection programmes are a category at special risk. These
children
are sometimes victims of cynical and vicious clan vendettas.
Furthermore, they have already suffered a series of traumatic events
since the
witness protection programme involves moving to a more secure locality, and in
the more dangerous cases, a change of identity.
Becoming part of a new
environment (usually in a different and distant locality) and being required to
take all sorts of precautionary
measures add up to a pattern of life that is
often incomprehensible to the child. Furthermore, the child’s development
can
be seriously jeopardized by the need to change schools and use a fictitious
identity.
604. According to a report presented to Parliament by the
Ministry of the Interior, some 2,025 children are in witness protection
programmes, which is hardly an insignificant number. It would, therefore, be
useful for staff specialized in children’s concerns
(and a representative
from the juvenile justice system) to take part in the commission responsible for
witness protection programmes
so that the particular situation of these children
can be kept in mind and ways found to help them deal with their unusual
difficulties.
Notes
[*] For the initial report submitted by the
Government of Italy, see CRC/C/8/Add.18, for its consideration by the Committee,
see documents
CRC/C/SR.235-238 and for the concluding observations, see
CRC/C/15.Add.41.
The attachments referred to in the report are available
for consultation at the Office of the High Commissioner for Human
Rights.
GE.02-43225 (E)
160802
[*] This section will respond
to queries relating to articles 4, 42 and 44, paragraph 6, of the Convention to
which paragraphs 11 to
23 of the general guidelines for periodic reports
refer.
[1] Source: Eurostat, 1997.
[2] Jonathan Bradshaw, “La condivisione dei costi per i figli: i pacchetti di aiuti per i figli nei paesi dell’Unione Europea nel 1996” in Polis, April 1998.
[3] Source: National Statistics Institute (ISTAT) - National Accounting.
[4] Source: IRS
processing of regional data in La spesa pubblica per l’assistanza in
Italia (Public Spending on Welfare in Italy), a publication edited by the
Commission on Poverty and Marginalization of the Prime Minister’s
Office,
1996.
[5]
Source: IRS processing of National Statistics Institute (ISTAT) data
from Certificate of Final
Balance.
[6]
Source: IRS processing of National Statistics Institute (ISTAT)
data.
7 Source: Social Services Aldermanry of
Milan.
[8] Source:
Ministry of the Treasury, State Accountant General’s
Department.
[9]
Source: Processed by Il sole 24 ore of Monday, 8 June 1988 on the
basis of data from the Report on the state of implementation of policies for the
handicapped in Italy,
1997.
[10]
Source: Social Services Aldermanry of Milan.
[11] Source: Ministry of Education, Statistics Service - SISTAN Office.
[*] This section will respond to queries relating to articles 1, 2, 3, 6 and 12 of the Convention to which paragraphs 24 to 47 of the general guidelines for periodic reports refer.
[*] This section responds to queries
relating to articles 7, 8, and 13-17 of the Convention to which paragraphs 48 to
61 of the general
guidelines for periodic reports
refer.
[*] This section will respond to
queries relating to articles 5, 18, paragraphs 1-2, 9-11, 19-21, 25, 27,
paragraph 4, of the Convention
to which paragraphs 62 to 87 of the general
guidelines for periodic reports
refer.
[*] This section responds
to the queries relating to articles 19, 39, 32, 34, 35, and 36 of the Convention
to which paragraphs 88-91 and
151-164 of the general guidelines for periodic
reports refer.
[12]
“Treatment and rehabilitation for persons with disabilities are carried
out through integrated health and social services
programmes, which make the
most of the abilities of each person with disabilities and act on the global
situation of disability,
involving the family and the community”
(Framework Law No. 104/92, art. 7).
13
“Rehabilitation aims to enable the maximum possible recovery of functions
harmed following an illness, preventing secondary
disabilities and treating the
disability in order to contain and avoid a handicap and allow the person with
the disability to lead
a better quality of life and to be better integrated into
the society” (National Health Plan 19941996).
[14] Within the Ministry
of Education, in addition to specific offices, there operates a national
monitoring body to study, monitor and
make proposals in regard to the
integration of disabled pupils. At the provincial level, there are special
technical and consultative
groups set up by the provincial education offices.
Groups comprising teachers, social health workers and parents operate in
individual
schools.
15 In anticipation of the
provision of training on integration for all teachers at university level,
initial courses and in-service
training activities have been organized on a
permanent basis for specialized teachers.
16 Research,
studies and monitoring of the progress of pupils’ integration has usually
devolved onto the public administration
and public organizations.
- - - - -
[*] This
section will examine the special protection measures contained in articles 22,
38, 39, 40, 37 and 32-36 of the Convention to
which paragraphs 119 to 165 of the
general guidelines for periodic reports refer. It should be noted, however,
that information
concerning children in situations of exploitation has been
placed in the section relating to the abuse and neglect of children, given
the
clear connection between the two phenomena, and that drug abuse is discussed in
the section concerning basic health and welfare.
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