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Adelmo Manna - Vito Plantamura

(ed.)

HOMICIDE CRIMES
BETWEEN THEORY
AND PRACTICE
 Manna, Adelmo
J homicide crimes between theory and practice / Adelrno Manna, Vito Plantarnura. - Pisa : IUS / Pisa
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 CHAPTER THREE

Road homicide

G IAN LUCA RTG GIERO*

The new road homicide provision offers a picture of an emergency prov- ure,
insufficiently thought through in light of the entire system, which results in a
serious lack of reasonableness of the11 entire regulatory system, exacerbated
by an articulated and uneven set of aggravating circumstances that prevents
finding a convenient differentiation between the prerequisites that justify the
different punitive treatment.

Tie Introduction in Jtnly o/ the syeo5 gence vehiciilnr manslaughter ii an

emergen- cy measure, and do not over nn imnge oJ systetnatic thought. The many
aggrnv'tting circuiturnnces, like vehiodar manslaughter while intoxicated or
dnngerom operation of a motor vehicle causing denth, nre not reesona ble iJ
compared with ihe factual basis flint juniJying the ii jferent treatment of inncfions.

SouuAtion: i. Foreword. - z. Between eventual intent and conscious guilt. - 3. The innova-
tive scope of art. j B9 '.p. - . 11 system of aggravating circumstances. - 5. The mitigating
factor of "with cause". - 6. Conclusions.

i. Background. Law z3 March zoi6, ri 41 introduced, among other things, the

crime of "road homicide" a1l "art. 589 of the Criminal Code, identifying, for
the first time, a criinological type of culpable delinquent in this particular area
connoted by a risky but lawful activity, permitted or authorized by the system'.
The main purpose of the new provision was to appease the ever-increasing
demand for more severe sanctioning of certain serious incidents characterized by
gross neglect of the good of life and resulting in injury or death. On the other
hand, the possibility of being able to order the pre-trial detention of individuals
who are perpetrators of accidents mor-

* Associate professor of criminal law at the University of Turin.

t. For the approach that sees wilful ascription to the field of illicit-based activities and culpable
im- putation to lawful-based activities see DE VERO, Contingent intent, conscious colyrt, and
construction
"seporatn'' of criminoii types, in Studies in Honor of Mano Romano, vol. Il, Naples, 2O*3. 883 SS.;
Crewson ri- Ri, In distinction tro eventual intent and conscious guilt in basic 'permissible' ruchiodi
contexts," in Dir pen. cont. , 6 Feb. zOi3.

49
I ReA TI DI OM ICI DI O T RA TE ORI A E PRA $fI

such certainly has the preventive-dissuasive effect (the Abschreckung of general

negative prevention)', typical of "manifest" criminal law aimed at reassuring the
consociates about the (apparent) effectiveness of the state sanctioning response'.
In other respects, of general theory of crime, a disproportionate increase in
penalties for culpable offenses undermines, from the point of view of
proportionality, the politico-criminal boundaries between intentional and
culpable offenses-which have always been the subject of endless debates,
especially on the demarcation between the institution of intentionality and
culpability with foresight of the event'.
In this regard, one of the intentions of the reform was to leave no room for the
figure of contingent intent, or rather to do away with that politico-judicial
necessity of contesting and condemning under that title those injurious or fatal
facts arising from road traffic'.

z. Between malicious intent and conscious negligence. To see whether the

legislature's intentions can be usefully achieved, it may be interesting to compare
some recent court decisions that have affirmed the wilful liability of a motorist by
relying on certain factual elements from the zoi6 reform introjected ne1l the
objective element of fault.
In particular, the system of aggravating circumstances articulated by Article 589
c.p. provides as constituent elements that justify the increase in sanctions,
respectively, from eight to twelve arms of imprisonment for those who culpably
cause the death of a person by d r i v i n g a motor vehicle in a state of alcoholic
intoxication with a blood alcohol level higher than i,s grams per liter, or from five
to ten arms if the event was caused by driving on the wrong side of the road.
These are-as everyone can see-the violations of specific precautionary rules, which,
however, when compared with recent decisions, by no means impose a con-
clusion in the sense of manslaughter. In a ruling of the Assize Court of

z. Siusexzri, Ziir AbschrerLungsveirkung des Strafiech te. Eine Metaanalyse kiiminalstatistischev Hn-.
tersuchttitgen, Berlin, aoi3, i8i ss., zii ss.
3. NOTARO, Ì ntt0Ù rials of Stradnle Homicide and strndal personnli injury: "matiifesto" norms and spe-
cialization of manslaughter? in www.legislazionepenale.eu, z8 July ioi6, 5.
4 MARlNUCCi, Doccioi, Matuuile di diritto pen'tìe. Porte generale, 6- ed., Milan, zoiy. 3W
s. For a reconstruction of the many interventions that have followed over time see Roisri, T h e
introduction ofThe road homicide and the unrrestabiIe rise of the yenal law of diQerenzinzione, in Dir. pen.
cont., i° June zoi6, 5 ff.
6. Cf. MASSARO, Road Homicide and Serious or Very Serious Road Injury persotial injury: from a
"/ammentnary" and a "/ominentnary" criminal law, in Dir. ben. cont., zo May, zoi6, z. On the criticism
of objectifying theories of intent in an attempt to curb t h e disproportionate expansion of eventual
intent, Di Giov in e, Il dolo (evenniale) tra psicologia schemi fica e psicologia comune, in Studi in onore di
Mauro Ponco, Turin, zoiy, 308.

yO
 ROAD HOMICIDE

Appeal of Turin in zoi6', on remand by the Court of Cassation for proof of the
alleged subjective element of the crime', one finds what are comu- narily
defined as the "symptomatic indices" of intent, demonstrative, therefore, of the
will to engage in conduct contrary to the order" in the pursuit of a prohibited end.
The circumstance that the logical limit represented by the proof of the
volitional element has not always been respected, explains how the doctrine has
spoken of "analogical wilfulness" or sometimes of doltts i" re ipsa moving from
the observation that this form of wilfulness encompasses culpable and malicious
psi- cological attitudes in a single summary diction, favoring dangerous
jurisprudential oscillations, the solution of which inevitably results in a
normalization of wilfulness to the detriment of guilt'°.
As is well known, the doctrinal construction of "willful misconduct"
seesaws between the theories of representation and the theories of volition of
the event," while jurisprudence, for its part, has come up with the thesis known as
the "theory of voluntary acceptance of risk," whereby willful misconduct occurs
when the perpetrator
- acting with an intention directed to another purpose--represented to himself the
pos- sibility of causing by his conduct a harmful event (not directly pursued) and,
nevertheless, determined to act anyway, even at the cost of actually causing it'z .
Not only that: even in the "personality" characteristics of the agent, such as at-
tention, sensitivity, scruple or light-heartedness, superficiality, and indifference to
other goods or interests, case law has identified one of the main symptomatic
indicators of the possible presence of malicious intent, understood as voluntary
acceptance of the occurrence of an injurious event °.

7 Ass. App. Turin, i March zoi6. n. z, Beti.

8. The Supreme Court required precisely "the completion of a *8 pink check of the procedural
elements submitted to its cognizance, such as not to leave spanium to presumptions or to
evidentiary simplifications, obsequious to exclusively edictal requirements." In the same vein, Bun-
desgerichtshOf. Dec. 3 zoi-; - 4 StR 36y/ ij, in NStZ, zoi6, 668.
g. Cass. sec. II, i7 February ig 3. no. 3957.
I. In more recent manuals see, for mtti, MA NNA, Corso di diritto penole. General part, 4' ed.,
Padovà, zOI7, 386 s. See, also, PIERDO" ri, Dolo e ascertamento nelle/attùperie Tenuti c.d. "pre- guanti",
Napoli, zoiz, z63 ff. and p'usim.
ii. For all, Ron co, The Discovery of Will in Willfulness, in Riv. it. Difi. proc. pen., i4, *964: -
succi, "Fact" and "value" in the definition of intent, TOrino, zOO4, 368 SS. 397
iz. See Bundesgerichtshof, i3 July zoi6 - StR iz8/ i6, in NStZ, zoi6, 67th.
i3. Cass. SS.UU., i8 September zo'4. no. 38343, in Riv. ir. Dir. and Proc. ¡*m.. *4, 19-5 ff. with a
note by FiznDxcx, £e Sezioni Unire attempt to dirodare iI "mùrero" del dolo eventuale, relating to the
famous Tyssenkrupp case; Io., Printrt lezione di diritto penale, Bari, zO*7, iyi, which well highlights the
difference between simple acceptance of the risk and real acceptance of the harmful event questioning
also the reality of such psychological process.
I REA TI OI OM ICAL OF 0 BETWEEN THEOR I A AND PRA6SI

But the reference to the situation effectuates her imports a further consequence
to whose failure to individualize is due many of the disputes, some of them not yet
dormant, built on an approach whose very terms exclude the possibility of an
unambiguous solution: we allude to the character of relativity of a distinction, of
which we are not always clearly aware, based on purely psychological-normative
data.
The factual circumstance of1 having driven the wrong way does not matter to
assess the dangerousness of the behavior from which to derive the circumstantial
element of1the acceptance of the risk of that1the event, even represented,
occurring, but rather to assess in concrete terms how from the agent's behavior is
not rav- visible any element from which to infer that, in some way, he had counted
on avoiding the event*.
The recognition, however, of the nonsufficiency of a single factual element
to affirm the existence of malice, leads to the need to place it side by side with
additional evidentiary elements, such as the power of the vehicle, the state of
alteration due to the as- suction of alcohol that induces feelings of
omnipotence as well as, in the present case, the repetition of the dangerous
conduct .
It is easy to perceive how the zoi6 reform has by no means resolved the
problems related to the distinction between naturalistic events caused with malice
and events occurring due to imprudence, negligence or inexperience during road
traffic." Jurisprudence has been - as mentioned - fluctuating, imphcitably
recognizing the eminently relative character of the notions of even- tual intent and
conscious fault whereby the correctness of the legal concept should be deduced
from the available evidentiary material, hence the purely procedural need to resort
to such definitions to justify sanctioning treatments
vastly different' .7

*4. In foreign jurisprudence, reference is often made to this mental process that com- poses a
practically objective ascription of intent. See BGE i3o IV j8 E. 8. on the well-known Swiss issue of
"Raserfall" More recently, BGer of i9 ii zora confirming the ruling of the Criminal Tribu- nal of the
Canton of Zurich of 17.06.soio. In dOttrina: ARZr, Dar Ay/e1schIms - srrr@rettifiche
ltandòenterkungen zii \ViIheltit Tell, recht zoom, i8o ff; BoiuusR, Dir si:rafreclitliche RechHprccfiung des
Bundesgericùte im /nài-e zoo8, in ZBjV, '8. 916 SS.; 9'' SS.; GODENZI-Bàciiri BiETRT, Tàtungsvorsatz video
Willen* - Die Praxis des Bundesgericlits bei Raserdelikten, in Jnhrhuch num Strassenverkehrsrecht zooq ta c.
of Schaffhauser), St. Gallen, z°°°9. 56r ff.; SC rrwEIZER, fimerurteile: Verwàsserung des fvea-
tualvorsatzes, Pladoyer zooy, 3z ss.; Vxsi-WEBEs, Anmerkiing our Dùkuiiioit iiòrr den Exentualvorsatz
bei RnseJóIIen, in ZSirR, z°°°9. 443 ^^
ij. Cf. Mzxcruui, Roadside ouiicide. Mminnle policy choices and sistcma fragmentation,
Naples, zoi6, is6.
i6. So also MzscrllN I, Road homicide, cit., "-93
i7. Cf. Rnccix, Lo rritiiiualità stradale: nlternzione da sosAnse alcoliche e yrìncipio di
colpevolezza, Torino, zora, rio. On this topic: G scANi, Substantive facts and evidentiary dynamics.
Notes on the proces unlizzntion of typicity perme, in Il reato lungo gli impervious sentieri del processo (a c.
di De France-

5*
 Recognition of a traffic offender," in addition to postulating reference to
the full range of the complex regulatory framework drawn by Article 5 9 *is
Criminal Code and related amendments to the Code of Criminal Procedure,
gives rise to the certain typical effect to which it is preordained, stigmatizes
the typology by evoking the image of an offender who demonstrates a certain
disregard for public safety and, as such, deserving per se of severe
punishment.
It could be argued that the legislature wished to regain its sovereignty in
criminal policy choices, often self-attributed by the judiciary and disguised under
the label of judicial policy, but-as noted-the problem, represented by the perennial
fluctuation of the qualification of behaviors from intentional to culpable and vice
versa, does not seem to have been resolved; or, at least, not definitively.
To deny this aIaffirmation in order to support the definitive overcoming of
the1'arinous problem is to gloss over the fragmented jurisprudential panorama
that, pro- prio in road traffic matters, has recorded strong swerves. Justifiable
perplexity arises first and foremost from that swarm of first instance judicial
measures affirming the "existence of (possible) intent and related appellate and
Supreme Court rulings affirming, on the other hand, the existence of (conscious)
fault," as opposed to that first instance orientation, shared, however, by the
Supreme Court, which identifies wilful behavior in one who acted by making
a prior balancing of interests, between the life of others and his own and the
risk of heavy con- sequences on the judicial level, as well as one who speeds
along city streets at high speed to escape an arrest and causes a fatal accident."

sco-Marzaduri), Turin, zoi6, ioo s.; VELTES, TenAetizen zar Objektiviening am Beisyiel der Untreve, in 1
Criteria d'iinpuinzione subjective hei criminal law deli'econoiitia (ed. by Ronco-Helfer), Padua, zory, yg ss.
i8. Cf. Auronini, in Fundamental Issues in the Special yarte of Criminal Law (ed. Fiorella),
z' ed., Turin, zoi6, ss ss.
See the penetrating reflections regarding the1 impossibility of offering a unitary model of guilt
carried out by Fino noce, Crisis of the reservation of law and the élisagio of raypresen tative democracy in
the age of jurisdictional pro- tagonism, in Crìtninalia, zoii, 94. "[ .] it will always be the interpreters who
will tell us how criminal guilt differently attitudes and modules in relation to the needs of the various
contexts of reference, so that even in the future medical guilt would never be the perfect copy of sports
guilt and employer guilt would never be the same as road guilt."
'9 Emblematic, for all, is the case addressed by Trib. Rome, z6 November zoo8, Ltiridi, in Foro it. ,
2009, . 4'4 ff. with note by Fixenzce, Dashing through a "red light" and causing a fatal accident:
homicide with malice aforethought? which had concluded with a conviction for voluntary manslaughter,
reformed by Ass. App. ROrTia, i8 June zOO9. t-ridi, unpublished, later affirmed by Cass. sez. lV, i8
February soio, Lucidi, in faro it., soio, It, 306 with note by Di FRESco, Fatal accident caused by driving
conduct sconsiÀfratanlente speTicofata: colyous homicide a'gfTavored by Ha previsione deIl'evento!
zo. Cass. pen., sec. I, i February soii (dep. r; March zoii), Vasile, in Dir. pen. cont. zoii, with note
by Zecca, Dnlln colpa cosNetite al malolo eventuale: un ipotesi di omicidio e lesioni personali "stradali" iii
nun recente sentenza della Corte di Cassazione. See also Fonrs, The uncertain conjìni of datum and fault. a
problematic case itt on the subject of srradnle rerrolntion, in Lu Corte d'A5Sts P, 2OI I, 891SS.
I n Eni I DI OM ICI DI0 TR A TfiO R I A E PRA551

Somewhat disconcerting would also be the consequences that would result

from a flattening of essentially intentional hypotheses to road guilt, establishing a
true objective culpability of authorship without any need for in- ducation on the
foreseeability in concreto of the event as well as, as we shall see, of the dreaded
aggravating circumstances with special effect. This is, as everyone can see, a
disproportion in the use of imputative criteria, arbitrarily changing-according to a
complex but effective expression-into tort (Unreciit) what in reality is merely
accidental, fortuitous (Ungliicà)2', moving, however, in a different sphere from
that proper to tah elaborations, which is that of prevention, not easily transposable
to the terrain of event crimes. This implies a greater flexibilization of the classical
assumptions of imputation, both objective and subjective, with consequent
restriction of the guarantee principles proper to criminal law.

3 < @ ^ < < 3^^ *< 1*° ** '- 5*9 *is c.p. The foregoing does not imply disco-
nsidering the difference in discipline between the partial repeal of art. s8g c.p. and
the new art. s89 bis c.p., so it is now a matter of examining its real applicative
scope i n t h e face, above all, of the massive recourse to the tech- nics of
deferral, which, if it does not hinder the reconstruction in a content-oriented key
of the precept, certainly places the penal norm in a further sanctioning perspective
of violations already punished elsewhere and in another way.
11 first paragraph of art. 589 fis c.p. punishes with imprisonment from two
to seven arms "anyone who culpably causes the death of a person by violation
of the rules on traffic regulations," a provision that stands in continu- ity with the
previous art. j89 c.p. only that, while in the latter such violation represented an
aggravating circumstance, in the new wording it becomes the basic case of an
autonomous figure of crime."
It is therefore necessary to take as a starting point a hypothesis expressly
aimed at re- priming conduct already sanctioned by the Highway Code, so it
might be thought that the new rule provides exclusively for specific fault
hypotheses. The use of this qualification, however, is well to be confined within
defined limits: it is not enough that a behavior constituting the object of a
certain normative evaluation other than the incriminating criminal law realizes
the case of ulte- rior legal effects, but it must be an "intrinsic structural necessity
whereby a certain situation binds the evaluation of a behavior that cannot be
defined except in relation to the legal consequences to which it is preordained.

zi. PRrrzwrrz, Stra/echt un ltisii o. Unterstichu'tgen zur Krise voti Strafrecht und Kriminnlpolitik in
der Piiibogeseltscli'tJt, Frankfurt a.M . *993, *°9. 113, 378
zz. Cass. sec. IV. i4 June aoiy, no. 9 1 . Critical on the point Squicc "ci, Omhre and (few) luri in the
Introduction of the remi of homicide and road personal injury, in Dìr pen. cont. , i8 April zoi6, 4.

54
 L'OM I Cl Dl O sTRA Dfi r E

Apart from this preliminary remark, it is necessary to verify whether, under

Article s89 *e, Paragraph I of the Criminal Code, the violation of rules laid down
in the Highway Code (D.lgS. 3o April 9s , n. z85) actually represents as many
hypotheses of specific fault.
Article I4o, first paragraph, of the Highway Code stipulates that road users must
behave in such a way as not to constitute a danger or hindrance to traffic and
in such a way that road safety is in any case safeguarded. It could be argued
that r between the two types of fault (generic and specific) there is a common
element, given precisely by being the two situations instrumentalah to the
prevention of the occurrence of an event, but one would wonder how one can
justifi- cation of the same concept to designate classes of phenomena
declaredly different, rria above all, it can not help but appear arbitrary to
classify under the same label hypotheses of fault contained in the same text of
the law, such that any violation of the rules de1 highway code marking a specific
fault.
A clarification that is not superfluous, since it allows us to draw an exact line
between the figure of the objective situation of subjective gen- ernal imputation
and the objective element of specific subjective imputation, taking into due
account that, as has been well said, there always remains a hypothesis of gen-
ernal fault even when there is no violation of a specific cautionary rule°°. Here, as
is easy to warn, we are outside the subjective situation,
which necessarily gravitates around the anticipated representation of an event;
when the latter has occurred, it is necessary to verify that the event the
precautionary rule was intended to avoid was among those covered."
In cases of specific negligence, therefore, the prognostic judgment on the
preventive-cautionary character of the rule is made in advance by the person
(legi- slator, authority) who places the act bearing the precautionary rule, even
though there exists

83 Cass. 5ez. IV, May 4, no. §88i8 in Dejure: "The substitution or addition or specification of
a particular profile of guilt, with respect to those originally contested, is not valid to realize a
diversity of immutation of the fact, with substantial enlargement or modification of the
contestation. In fact, the reference to generic guilt shows that the charge concerns the defendant "s
conduct taken as a whole so that the defendant is placed in a position to defend himself relati- vely
to all aspects of the conduct at the time of the event for which he is called to answer, regardless of
the specific rule allegedly violated."
4. Cass. sec. IV, zo August soio, no. 3ziz6, in Dir. peti. cont., iy January zora (with note by
ABBA- DessA, An interessanfe pronouncement of the Supreme Court on the subject of the nexus between
blow and event tieni'homicide Irr violation of the rules soffri road traffic): "In matters of road traffic
accidents, the ascertained existence of unlawful conduct of one of the road users with violation of
specific rules of law or precepts of common prudence cannot in itself presume the e- existence of
causality between his conduct and the damaging event, which must always be proved and which must
be excluded when it is proved that the accident would have equally occurred without that conduct or
was, in any case, determined exclusively by a different cause."
I tEAT I DI OM I CI DI O BETWEEN THEORY AND P RASS I

of "elastic" precautionary rules that come closer and closer to generic fault
hypotheses, both because it is necessary to refer more and more to elements of the
fact, and because the precautionary purpose of the rule turns out to be indeterminate,
ultimately leaving the task of concretizing it to the judge."
The indefiniteness that connotes the duty to behave in such a way as not to
constitute a danger or hindrance to traffic and in such a way that road safety is in
any case safeguarded makes it a generic rule and, as such, susceptible to impose,
from time to time, the identification of the model agent to be referred to." The
situation thus expresses the moment in which the process of objectifying the rule
takes place, but it places on the same level a violation of a specific rule and a
generic precautionary rule, representing road traffic only the setting in which
imprudent conduct takes place and which, for that alone, realizes the case
referred to in art. s®9 te c.p.*.
At this point it is possible to make an initial observation in relation to the
possibility that since the agent cannot be charged with specific negligence, he
or she will be punished with the same punishment if a charge of general
negligence can be made against him or her.
The finding that compliance with the specific precautionary rule would not have
co-mediated the event, for example because, although the motorist complied with the
rules of precedence, he did not moderate his speed in preseriza- tion of a flashing se-
maf, as required by Article 41, COURSE I7. C.d.s. or that, in the presence of a right of
way, ne11 approaching an intersection, he did not behave prudently by having to, as
jurisprudence holds, foresee the possible imprudence or transgressions of other road
users," leaves a reprimand for not having adopted the diligence, prudence and ac-
curacy necessary to prevent harm to third parties from his activity.
The finding, that is, of1the non-existence of a specific violation should shed
light on the fact that the general rules of the highway code represent nothing more
than the codification of a general rule of prudence, in the absence of which an
assertion of liability could equally be reached, with the important difference that,
in any case, the death event is punished according to the new penalties, because
it is caused by violation of the rules on road traffic regulations.

a ;. See CANESTRARI, in Manuftle di dintto penale. General part (eds. by Canestrari, Cornacchia,
De Simone), z' ed., BOlogna, zo'7, 474.
z6. MARlNiJcci-Doxcini, Handbook of Criminal Law, cit., 36a.
^7. Cf. LosArrio, Of the new crimes of srriidalr murder, in Dir. pen. - , June 3, zoi6, i6.
z8. Cass. sec. IV, i-; July zoio, no. 3-zoz, Filippi, in Ced Cos., * 84®354, 81]3Ortata by Mx i , Code of
Jtrnda, Padua, zoiz, 39°: also MzSSxRO, Homicide strada.le e lesioni personali strndnìi gravi o
gravissime, cit., 14

56
 THE OMi CI OIO s BETWEEN QA LE

4 The system of aggravating circumstances. he following paragraphs introduce

aggravating circo- stances (with special effect), explicitly defined as such by the
new art s9 q'toter c.p., which are removed from possible sanitization as a result of
the balancing judgment.
It is from these provisions that we find the clear criminal policy guidelines
aimed at stiffening the penalty treatment. Thus, the punishment ranges from eight
to 12 years if the person drives a motor vehicle in a state of alcoholic intoxication,
when the blood alcohol level exceeds the value of i,s g/1 (art. i86, second
paragraph, letter c.d.s.), or of psycho-physical alteration consequen- tial to the
intake of narcotic or psychotropic substances (art. 187 .d.s.). The same penalties
apply to those who professionally carry out the activity of transporting people or
things (art. i86-òis, first paragraph, letters b), c) and d) c.d.s.) in a state of
intoxication, if the blood alcohol level is between o,8 and ,s g/1 (art. i86, second
paragraph, letter b): professional drivers who drive in a state of alteration by
narcotic or psychotropic substances are not explicitly taken into consideration,
with respect to whom the provision of the second paragraph therefore applies.
The injurious or fatal event resulting from a traffic violation is progressively
punished with imprisonment ranging from five to ten years for the one who
has a blood alcohol level between o.8 and i.5 gll and from eight to twelve
years for the one who exceeds the limit of ,s g /l as well as for those who have
taken drugs and psychotropic substances.
The same penalty of eight to 12 years applies to a person who has a blood
alcohol content of more than o.8 but less than ,s g/1 and is professionally
engaged in the business of transporting persons or property.
The penalty progression is distinguished on the basis of quantitative
thresholds that represent, rather than a deepening of the offense, a criterion of
penalty increase based on a presumption of greater dangerousness due to the
dif- ferent alcohol level, a threshold that vanishes when the psychophysical
alteration is due to the intake of narcotic or psychotropic substances. The
ascertainment of a concrete state of alteration should, in our opinion, also
concern the alcohol thresholds, considering that the judgment of
personalization of criminal re- sponsibility should not disregard a real
incidence of the quanti- tative of alcohol on the cognitive abilities of the
subject.
At this point, the discrepancy between the rules of the Highway Code becomes
apparent.
which, in Art. i86(6), considers one who has a blood alcohol content of more than
o.5 grams per liter to be in a state of intoxication, and the Criminal Code, which
instead requires a threshold of at least o.8 to consider a person intoxicated.
Here we are dealing with different normafive evaluations to which correspond
different considerations of the state of alcohol impairment conditioning the
application of certain penalty consequences, in the light of toxicological
acquisitions se- cording to which a blood alcohol level higher than ,s and lower
than o.8 g/l does not correspond to the
1 REAT1 OI 0 MICI DIO TRA TEORI A E P RA SS I

de a "safe" condition of psycho-physical disharmony capable of affecting driving i-

doneity, while the symptoms of intoxication are "perceptible" only above the
threshold of o.8 g/l."
Instead, what should be the subject of greater investigation is the inci- dence
of the assumption of narcotic or psychotropic substance (assumption that can be
both culpable and intentional) on the psycho-physical condition of the subject ìl
which, even in a situation of intoxication c.d. serious referred to in letter c) of the
art. i86, second paragraph, c.d.s. may well be alert, perfectly oriented in time and
space, devoid of deceit of memory, hallucinations and dissipation°, so that the
aggravation of punishment is justified only on a presumption of greater
dangerousness, with the possible paradoxical consequence that, if someone causes
a death event during road traffic with a blood alcohol level of slightly less than ,s
but particularly sensitive to the effects of alcoholic beverages, he will re-sponder
à of manslaughter under Art. 589 of the Criminal Code, having not violated any
road traffic regulations, while one who slightly exceeds the o,s g/1 limit will, for
that alone, be subject to the basic penalty under1 new Article 589 bts c.p., with
obvious disproportion, in terms of offensiveness, of the punitive treatments°'.
A systemic argument in favor of our proposed thesis, which is intended to
mitigate the gap between the legislature's presumptions and the judgment of fault,
is given by the first paragraph of art. i86 his c.d.s., which prohibits driving after
consuming alcoholic beverages and under the influence thereof, so we are faced
with

89 MEN GHIN I, L omiciúio stradale, cit , s ss

3º See Ass. App. Turin, r March zoi6, no. z, Beni.
In order to ensure the immediate availability of clinical data on the state of drunkenness or
stupefaction the diversification of pen a limits, Law No. 4i of zoi6 amended Articles zzq bîf C. 1 C.. ^
359 8i5 COlTtrrlă 3 m ° P.P., which extend at new offenses under articles j89 äú and s9o 6ü
c.p. the possible coercive submission to biological material sampling or medical examination
ovviamenre within the limits established byI qth paragraph of art. azq òù c.p.p. according to which in no
way may operations be ordered that conflict with express prohibitions placed by law or that may
endanger the life, physical integrity or health of the person or the unborn child, or that, according to
medical scieriza, may cause suffering of no small magnitude. Significant on1 point, the effectiveness of
which is also confirmed by the Circular of i4 June zOi6 of the Turin Public Prosecutor's Office (Chief
Prosecutor Dr. Armando Spataro), is paragraph 3 kit of art. 359 his c.p.p. regarding the conduct to be
adopted against the driver who refuses to submit to the checks of the state of alcoholic intoxication or
alteration related to the1 use of stu- pefacient or psychotropic substances. If, in fact, there is well-
founded reason to ñtend that serious or irreparable prejudice to the investigation may result from the
delay, the decree and the further measures provided for may, in cases of urgency, also be adopted
orally and subsequently confirmed in writing by the Public Prosecutor. Judicial police officers shall
proceed to accompany the in- terested person to the nearest hospital for the purpose of undergoing the
necessary sampling or ascertainment, and the operations shall be carried out coercively if the person
refuses to undergo them.
3i. For the distinction between "state of drunkenness" and "sta to of drunkenness" see, for all, MEN
GHINI, L'omiridio stradale, cit., y ff.

s8
 THE OM|C1DO T4ADAL¥

a definite link between 1 intake and the effects the substance produces and the
violation of the precautionary rule, on the one hand, and the foreseeability-
avoidability of the event on the other.
The problem of whether the intake of alcohol and its effect can rise to the role
of an element of a culpable case or be considered a mere objective condition of
increased punishability, must be dissolved in the first sense, having to provide
both the proof of the link between 1 intake and 1 a1teration, and the ne- cessary
link between the latter and the violation of the precautionary rule prescribed by
the S.C. and between this and1event of death (or injury).
In the subsequent aggravating hypotheses, some, but not all, cases are
specified in which dangerous conduct is recognized as responding to that
emergency demand for city safety. These are again hypotheses that do not take
into account circumstances of time and place, whereby it is stipulated, in the
first case, that the "driver" of a motor vehicle who culpably causes a fatal
event, if he proceeds in an urban center at a speed equal to or greater than
twice the permitted speed and in any case not less than 7s km / h, or on
suburban roads at a speed at least so km /h higher than the maximum permitted
speed, shall be subject to imprisonment from five to ten years.
We are in the presence of absolute prohibitions typical of the Highway Code
but not of criminal legislation, especially where the offensive content is reduced in
terms of disobedience and not of concrete exposure to danger of an interest that at
this point is determined only a posteriori with the occurrence of the1 event.
The question remains whether certain forms of reckless and contemptuous
conduct of any caution should not be repressed upstream with the provision of
factispe- cies of common danger, as preceded recently by the Swiss "Federal
Law on Road Circu- sion" following a long path of reforms that, in the two
packages that characterized it took the name "Via Sicura"°'.
An example can be offered by1 new Art. 9 of the aforementioned federal law,
which in its second paragraph punishes with imprisonment of up to three years or
with a fine anyone who, by seriously violating traffic regulations, causes a serious
danger to the safety of others or assumes the risk of such danger or, in the third
paragraph, with imprisonment for a term of one to four years anyone who, by
intentionally violating elementary traffic rules, runs a serious risk of causing a
traffic accident with serious injury or death, particularly at- traction through gross
disregard of a speed limit, performing overtaking

3z. Sixcnisr, PrävcntiotireQeûte des Vassnnhmenpnèeu Via sicura, in Fünftes Zù "iier Praventiois-
forum-Rœei; itisiko/nhrer itnd nndere Criminelle Verkehisteiinehoter (ed. by Schwarzenegger-Nägeli),
Zürich-Basel-Genf, zoiz. 7 S . S e e also Évaluation du programme Via secure Rapport du Conseil
fÂdñal en épouse au postulat i 6.yz67 di- In Commission des transports et des télêcommunicntions de
Conseil
des Êtats du ig nviil zoi6 in wow.astra.admin.ch.
Ì REA TI DI OM IC I DI O TR A TE OR I A E P RASSI

recklessness or participation in unauthorized motor vehicle races."

Without it being possible to dwell on the subject, the provision of a rule of
danger that protects a collective interest in road safety would be more effective in
deterring harm than a case of harm whose system of aggravan- tions is devoid of a
solid cryrninological basis."
It is enough to continue scrolling through the text of the law to assert, in
exegetical terms, the weakness of a system that unreasonably contemplates
factual elements from which to deduce an ex se dangerousness, such as
crossing an intersection with the traffic light set to red, where experience
teaches that, many times, a simple distraction, which can be traced back to
unconscious guilt, demonstrates the agent "s employment of very low spiritual
energy, even in the face of serious consequences, and contrasts with the
necessary proportion that must exist between subjective culpability and the
punishment imposed.
It is one thing, therefore, to identify human conducts that are risk factors
deserving of sanction within the framework of a case of danger, and quite
another, on the other hand, to claim to enunciate them peremptorily while
inevitably leaving out conducts that are just as pregnant with foreseeable and
avoidable consequences.
Thus, No. 3 of paragraph s° of Art. j89 òis of the Criminal Code counts as
deserving of aggravated sanction the conduct of those who cause an event (death)
as a result of maneuvering to reverse the direction of travel near or at
intersections, curves or speed bumps or as a result of overtaking another vehicle in
correspondence with a crosswalk or continuous line. The phenomenon that one
would like to encapsulate in an e1encation apodictically held to be exhaustive,
more responsive to the technical drafting of a road traffic law, cannot be said to
present itself as more appropriate to the cultural Weltettschnuiiiig of criminalists.
Behaviors such as talking on a cell phone - according to the id qitod plerumqxe
accidit a source of serious risks to road traffic - proceeding "zigzagging" on
highways or carrying out unauthorized competitions, are not taken into
consideration, precisely because of the impossibility of exhausting all possible
hypotheses in a mere list - among 1 "other arbitrary - of dangerous situations.

33. On the COl3figurability of possible intent for fatal events caused by automobile racing-.
stics unauthorized in urban centers, Landgericht Berlin, zy February zoiy - ;z / i6 (8/ i6), in NJ,
-°'7, 384 SS. with critical note by SAfl6E, Jllegales Autorennen in einer Onschaft ale getneingefiihrliches Mittel.
34The Swiss Criminal COdice contains a general rule, Art. *89 5tGB, which punishes cori with
imprisonment of up to five arms or with a fine "Glti chiunque mette senza scnipoli in pericolo im-
minente la aitri ritmi," resolving with an appropriate sanction threat those cases in which an injurious
event has not occurred, such as in unauthorized motor competitions or performs reckless maneuvers on
typically busy roads; and so on. 5On the effectiveness of this normative provision see, for all,
THOMMsN, ETZfiR, fiVeitfttfi[YOrsniz iind Eeòetisge/ahrdung, in Liòer amirorum
r Utrich Veder, Ziirich, zot6, 193

6o
 Nor, then, can it be argued that the exclusion from the list of active subjects in
aggravated cases of subjects other than drivers of motor vehicles, responds to
criteria of strict rationality, let alone that the exclusion is in any way compensated
for by the sufficiency of the basic hypothesis to punish the behavior of cyclists or
drivers of vehicles pulled by pack animals (even racing carts), since the danger
of causing an inauspicious event by driving a velocipede or other non-motor
vehicle while under the influence of alcohol or narcotics is certainly relevant and
worthy of consideration."
On a critical analysis of these formulas, in short, it turns out that the dis-value
of road o- micide is based on a further sanctioning conception of the criminal di-
ritory with respect to conduct that is already the subject of provision by the
Highway Code in the form of a contravention or administrative offense, while the
peculiarities of the criminal legislation on the model of the former Article s89
of the Criminal Code in its aggravated form should have been taken into
account.
The most conspicuous product of "emotional" criminal law is found in the latest
hypothesis (special, with common effect) of the aggravating circumstances of the
basic case, as a result of which the punishment is increased if the act is committed
by a person without a driving license or with a suspended or revoked license,
or in the case
where the motor vehicle is owned by the perpetrator and such vehicle is
without mandatory insurance. That such a congerie of aggravating factors does
not pass the positive test of reasonableness as required by the Constitutional
Court in its ruling m9 of zoio, which declared 1 the constitutional illegitimacy of
the aggravating factor of clandestinity provided for in1 Article 6i, paragraph ii-
bis of the Criminal Code. seems to us to be sufficiently clear, since 11 the
legislature should place at the basis of1the tightening of punishment a
criminological justification missing here altogether; moreover, from an
exquisitely dommatico point of view, it is not given to riscon- traire any
connection of congruity between the event that is intended to be avoided and the
cau- telary rule of reference.

s <the mitigating factor of "concause." Paragraph 6º contemplates a rather

singular provision: "In the cases referred to in the preceding paragraphs, if the
event is not the exclusive consequence of the culprit's action or omission, the
punishment shall be dimi-
nuita up to half."
The eccentricity of the norm is given by the scanning of an entity-the causal
relationship-that cannot be broken down, and then proceeding through the
detection of the as- sessed reciprocal connections to the construction of a
composite figure, which would be matched by an attenuated circumstance (special
effect special).
3s Cass. sec. lV, i8 Jan. zoi7. @O3, in Law m Justice, 13, 2017,s, with note by Mendicino.

6i
 The Rocco Code-as is well known-did not regulate the con-causation of the e-
wind but only the concurrence of causes, as the rubric of Article 41c.p. bears,
stabi- ling that if pre-existing or simultaneous or supervening causes act jointly,
even if independent of1the culprit's action, the causal link is not excluded.
Concauses in a "diminishing" function were provided for a1rt. 367 of the 1889
Zanardelli penal co-decree and were limited to pre-existing ones unknown to
the culprit and to those that had arisen and were independent of the agent's act,
while the Sardinian penal code of i 59, in Art. 54° 8 54a, admitted them as
mitigating factors only, however, for injury followed by death, corresponding
to the present manslaughter*.
The 95 codification has resolved the diminishing ef- ficacy of causation in a
tendentially negative way: if the intervening cause is "alone" suffi- cient to bring
about the event, causation is excluded toitt court. The only mitigating argument
for the Code's firm stance is Article 6z, no. 5
Criminal Code, which attaches diminishing effect to the "willful act of the
offended person" that contributed to the event together with the offender's action
or omission, which, however, isolates only cases in which the offender's conduct
is willful, while the new provisions do not introduce limitations with respect to
concau- sion referring to events resulting from violation of traffic regulations*.
Moving in strictly exegetical terms, it does not seem that this configu-
ration of concauses offered by the 7th Comma of Art. 589 òù c.p., represents a
derogation from (or highlights an unfailing feature of) the general discipline
offered by the Criminal Code.
In culpable matters, especially for proponents of RtsibotJteorien, rap-
presents a school case the situation in which a risk generated by conduct
interrupts, separating them, the spheres of responsibility, not because it ec-
ceutical, as the theorists of adequate causation and human causation would
have it, but because it is eccentric to a risk created by prior conduct."

36. See, for all, IrJeAucousni, Codice yenale italiano illustrato, vol. Ht, Florence, 1890, *39
37- eri terms: MASSARO, Road Homicide and Serious or Grave Road Injury, cit., i3, who also sees no
systematic obstacle to the configurability of the victim's intentional conduct concurring with the
culpable conduct of the offender.
3s Roxio, Pfliclitwiórigkeit and EJoIg òei /nhrIàssigen DeIi£ten, in 2eitschrift fàr die ges'imte Stra-
/echtiwùsenschn/. '96a. 4'i ff. and by the same later extended to1st objective imputation (in In.,
Srrn/echt. Allgemeiner Teil, I, ¢' ed., Miinchen, zoo6, §§ H / 88 ff.) for the realization of a legal
risk-
mind disapproved it is enough that the action, in its entirety, was legally reprobated for the fact that
it increased the risk of producing the result in the form in which it happened and that it was causal
to that.

6z
 The 5TnanAL o uiciDIO.

T,he Italian jurisprudence, for its part, has held that the interruptive effect
of causation can be due to any circumstance that introduces a new or otherwise
radically exorbitant risk compared to the a1er'9.
Rereading àrt. 4 '.p. in the light of theories of objective imputation of the event
leads to this type of conclusion, all the more so when one considers that men-
three art. 6z, n. s, is limited to cases in which the malicious act originates from the
offended person, in art. 589 *is, paragraph y°, both cases of malicious and
culpable contribution of the offender and those situations caused by third parties
that to some extent go to affect the etiological link can be reported.
Similarly, the fact that the event directing the causal relationship taken into
consideration by1 art. 4i c.p. does not make any distinction between the source of the
concause, nor whether it is intentional or culpable, induces to frame the new 7th
paragraph of11 "art s89 Ste c.p. in a dimension whereby a necessarily culpable
conduct of the first agent is aggravated or brought to moral consequences due to the
intervention of a culpable conduct of third parties or of the victim himself. It should
be borne in mind, however, that the phrase used by the legislature " . . . ) exclusive
consequence [...j" is rather incorrect, since it is now accepted that human conduct
represents only one of the conditions that give rise to the cause of which the event is a
consequence-°, a figure which, compared with the second paragraph of1 Article 4
C.p. appears pleonastic, since it is the very definition of "condition supervening" that
postulates the requirement of "exclusivity" in order to
elide the causal relationship between the first agent's conduct and the event-'.
To understand the exact scope of Paragraph 7º it is neccssary that the conduct
of the third party or the victim does not have the characteristics
of11'exceptionality or de11'esc1u- sivity and that it gives rise to a situation of
cumulative causahtà to which the le- gislator exceptionally grants a (mandatory)
decrease in punishment of up to half. It further puts into account to note that
under normal conditions contextual causes do not exclude the causal link (art. 4i,
paragraph I, Criminal Code), and it is only for those that are supervening that the
problem arises of ascertaining the creation of an eccentric risk with respect to
that generated by the first conduct capable of interrupting the link between it and
the result (art 4 , CO£Timà Il, Criminal Code)4'.

39 Cass. Sez. IV, z8 July zoiy, no. 333"9 (C. d ruling "Sorrentino"), in Dir. pen. e yroc., zois. i53y
ss. with note by Verme i, Compri medirn, roncnme soprnvvettute e competen:za for risk: something new,
nnzi the old. Similarly, Cass. Sect. IV, *4 à rile aoi6, ri i5493, ÌI'1 Dir. pen. cont., zoiy (There has been
talk in this regard of "twin judgments"). Most recently: Cass. Sec. IV, ii July zoiy, no. 33yyo, in www.
quotidianosanita.it.
4o. Greco, Appunti di diritto penale, vol. II, fl reato, pt. 11, La fattispecie oggettiva, Torino, zooo, ioi.
4i For a critical overview of the debate, for all, VxrLi> i, "Causes soprnvvenitte alone su@cient"
and nessi trn conducts. Pe:r a callocaziotte deII''irt. qi, comt a z, c.p. in the theoretical framework of "arres-
tific" causality, in Dir. pen. cont., ii July zoiz, '; ff.
pc. Cf. MING PIIN I É'OìTtididiO 8 If ! ^. °'*- 9-5
I RfiAT I OF OM ICI DI0 TR A TEOR I A AND PR AS6I

As has been masterfully observed, fault is a form of loss of control of

causality so it does not seem to be an entirely new operation to compare the
"risks" created by multiple conducts and see what weight they had in bringing
about the event. Consider - in time of night - two motorists of whom one is
traveling at high speed and who, approaching a stationary vehicle on the
roadside, is dazzled by an oncoming vehicle and, as a result of the impact,
causes death or injury.
The de1 magistrate's task, in this case, will be to verify the incidence of the
respective negligent conduct towards the event, and if any of these suggests that
exclusivity cannot be attributed to only one of the behaviors engaged in, then he
or she will have to proceed to decrease the sentence. Otherwise, the general rules
established by Article 4i of the Criminal Code will apply.

6. Conclusions. Having framed certain problematic nodes in these terms, we

can only formulate provisional conclusions here, with the caveat that it would
incur a distorted representation of legal reality to offer a simple commentary
reading of the legislation presented by the zoi6 reform. A mechanical e-
exposition of this prevents coghere what is the flaw in the criminal legislation
translating into a serious lack of reasonableness of the implantation of
aggravating circumstances because it prevents finding a convenient
differentiation to heterogeneous figures such as those that are claimed to be
enclosed in an unbalanced listing, more in keeping with a single behavioral
text than with criminal legislation."
If, in the first basic hypothesis, one can agree with the need to prepare a more
rigid sanctioning basis - but it is hard to see why this could not also be done for
other areas of special legislation: first and foremost the anti-accident sector - there
are many dogmatic complications in the body of the novella if one wishes to link a
worsening of the sanctioning treatment descending from certain subjective
positions of the agent, rather than anchoring it to the disvalue of the action put in
place.
Further complications arise from the failure to coordinate with the general
doctrines of the Rocco Code, in that the "practical intentions" of the compilers of
the reform, perhaps inspired by civil-law requirements, even to accommodate the
wishes of associations animated by the most laudable ends, create inconsistencies
both

43. Domini, strict fmpiitntion of the event, "Risk nexus," and vicarious liability,
Turin, zoo6, 96.
¢ . In terms also MzrriisuDzxi , h simple offender driver, the collector of offenses (perhaps
professional), the reckless one, and the clueless one...possibly fleeing: anatomy of ir- rngionevolezsn, in
www.archiviopenale.it, i / 2OI7. Ibid.

64
 THE OMI CI DIO STR D LR

terminological as well as conceptual that result in overlapping situations that

are clearly, though inconspicuously, distinct.
The problem of concurrences, best configured within the concurrence of
independent culpable facts, would have been more appropriate to resolve on
the terre- nal of culpability, perhaps enhancing the principle of reliance4', in line
with a well-established dom- matic and jurisprudential elaboration, without
avven- turing in fields, such as that of balancing "risks" (by creation or
increase) still subject to in-depth study by penahstical science.

q5. On1the obligation to consider the possible imprudence of others if it falls within the limits
of foreseeability, intended as a temperament to the principle of blameless reliance, Cass. Ses. IV,
Dec. i5 zoi6, no. s33°y; Cass. 5ez. IV, Oct. 19, zoi7, "*. 48294 On the so-called "de facto precedence".

ss