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ISSN 2611-8858



Pandemic and culpability

Text originally published in Italian on Sistema Penale, 26th April 2020. Translated, with the authorization of Sistema Penale, by Fernando Londoño Martínez, associate professor at the Universidad Diego Portales, Santiago de Chile

The Path of Decriminalisation of Medical Error

The “Mariotti” case constitutes a turning point in the use of criminal law to punish health professionals who have caused death or bodily harms by negligence. However, the status of criminalisation of medical negligence laid out by this decision is quite different from what could have been imagined before the two reforms adopted in the last few years, which aimed to reduce the relevance of criminal responsibility for medical malpractice. Starting from the decline of modern medicine and from the judicial over-exposure of practitioners, the essay critically reviews the key steps in the path of decriminalisation of medical error. At the end of the analysis, the author argues that the heritage of these reforms, despite their shortcomings, might be a new “legal culture” of prosecutions for medical negligence, rather than an actual decriminalisation of medical malpractice.

Self-driving Cars and Criminal Law

Autonomous driving is and increasing phenomenon in several countries and recently it has involved Italy too. This paper aims to provide a general picture of the potential future intersections between the said phenomenon and the criminal law.

The Usage of Smartphones While Driving and The Road/Traffic-Related Crimes of Manslaughter and Personal Negligence-Based Injuries: the Assessment of Negligence in Court Through the So-Called Log Files.

The increasing phenomenon of IT distractions for drivers made inevitable, in the event of accidents involving people, checking the smartphone in addition to other crash measurements. Some Italian Prosecutor Offices issued guidelines in order to avoid any abuse by the police, without prejudice to the assessment of criminal liability for the road/traffic-related offences of manslaughter and personal negligence-based injuries. In the said scenario, the log file can be useful, being a digital document self-generated by a device where all the operations performed with it by the driver are recorded over the time. The log files, even in instant messaging apps, have an investigation focus limited to if and when the smartphone or a single app were used, without an overall view of the information storage. It is still controversial, in turn, how to acquire such data, especially because the case law seems to forget the volatility and unreliability of digital evidence.

Il lato oscuro della rappresentazione: riflessioni sulla colpa con previsione alla luce della sentenza Schettino

The criminal case on the sinking of the cruise ship “Costa Concordia” is crucial in shaping the notion of the most blameworthy kind of criminal negligence under the Italian law (namely, when the defendant foresees the consequence of the misconduct) in order to distinguish it from the ordinary criminal negligence – on the ‘lower’ side – and from the dolus eventualis – on the ‘upper’ side –. The paper focuses not only on the above notions, but also on the case-law stemmed from the Supreme Court of Cassation – Joint Criminal Branches – in the “ThyssenKrupp” case.

The Best Available Techniques on Defining the Case in Issue and on the Culpability Verdict

The object of this article is the relevance given to the so-called best available techniques in the definition and detection of environmental crimes. In order to explore this topic, it's fundamental to clarify what is intended for BAT and how they operate in the environmental law system, before to evaluate under what terms criminal law might apply them. To do so, it's necessary to examine the nature of the BAT, analyzing how their identification inevitably involves political and economical factors - and not merely technical ones.

Legislative Options about Mens Rea in New Environmental Crimes

The discipline of the environmental crimes included in the penal code leads to questioning about some issues concerning culpability and the relationship between it and the punishment. In particular, the ambiguous wording of new art. 452-ter c.p. requires to verify whether death and bodily injuries require a mens rea of negligence. Moreover, art. 452-quinquies c.p. stimulates interesting reflections on the proportion between culpability and punishment.

The role of precautionary principle in the “new” environmental criminal law

The law no. 68 .of 2015 introduced new criminal offences, aimed to protect the environment, life and physical integrity of affiliates in various degree and shapes. It also introduced for environmental crimes to be subjected to a mechanism of degradation of the criminal offense and to avail of political and criminal tools already used successfully in other areas. Despite many changes have also affected decree no. 152 of 2006, the legislator didn’t clarify the role of the precautionary principle in the environmental criminal law. Far from being confined to a restricted space, like the the latest judgements of the Supreme Court suggested, the precautionary principle could know an expansion, contributing to the increase of area of criminal relevance concerning cases referred to articles 452 bis, 452 ter, 452 quinquies of Criminal Code.

The Criminal Liability of the Healthcare Professionals and the New Law No. 24/2017 (the So Called Gelli-Bianco Law)

The Law No. 24 of 2017 (the so called Gelli-Bianco Law), which has been welcomed with great enthusiasm by the medical profession, reshapes the criminal negligence in the healthcare sector, after less than five years from the Balduzzi Law. The new appearance of the medical liability for fault is based on a detailed regulation of the guidelines, within which it is possible to identify the recommendations which are generally binding for the healthcare professionals; at the same time a new Article, concerning the criminal liability for death or personal injury in the healthcare sector, has been inserted in the Penal Code (Art. 590-sexies), characterized by the cancellation of the gradation of the fault and by the limitation of the non-punishability only to the unskilful conducts, when appropriate guidelines are observed.

Some Reflections on "Parallel Dimensions" of Criminal Responsability: Anxiety for Justice, Moralism and Normative Conceptions of Guilt»

The article is inspired by the Prosecutor’s closing argument in the Eternit case before the Suprema Corte di cas-sazione. The author reflects on the inclination of the criminal law to use moral parameters, which was possibly encouraged by the so called “normative conception of culpability” as elaborated by the German legal doctrine. The conclusion remains open to the new horizons of a criminal law freed from the mythology of principles, but underlines – at the same time – the intrinsic moral value implied in the respect of criminal law guarantees and equality among citizens.