19 Aug sporting and discriminating activity

The causes of justification o, objective causes for the exclusion of the crime, also known as exigencies or causes of lawfulness, they are particular situations in the presence of which a fact, which otherwise would be considered a crime, this is not because the law allows it, it imposes it or tolerates it (Articles. 50 ss. c.p.) and they find a logical-juridical foundation on the principle of non-contradiction.

The causes of justification are divided into common and special.

The common arguments, provided for in the general part of the code and applicable to all offenses compatible with them are: the consent of the person entitled (art. 50 c.p.), the exercise of the right (art. 51 c.p.), the fulfillment of duty (art. 51 c.p.), the legitimate use of weapons (art. 53 c.p.), self-defense (art. 52 c.p.), the state of necessity (art. 54 c.p.).

The special reasons are those provided for single criminal figures, such as the legitimate reaction to arbitrary acts of the public official.

The uncoded causes of justification, in the end, also called tacit or extra-legislative, they take on importance by virtue of the use of the procedure of analogical application of the codified exceptions.

Among the non-codified tests, the most important and discussed are medical-surgical activities (for injuries caused to patients inevitably during operations) and violent sporting activity (for injuries that athletes involuntarily cause during sports competitions).

As regards the cause of justification for sporting activity, the jurisprudential evolution has, necessarily, marked the distinction between:

necessarily violent sporting activity, in which sporting activity is an efficient cause or condicio sine qua non of offences, because violence is in re ipsa (ad is. at the speakers);
sporting activity to possible violence, where, instead, physical contact is possible but not necessary (like football or basketball);
sporting activity where violence is at its root excluded from the type of activity exercised (I swim, light).
Problems arise from the first two categories for which it is necessary to establish if and when the legal system allows the offenses caused in the exercise of sporting activity to be deemed not punishable.

For this purpose, jurisprudence has, Moreover, coined the cd. permitted risk, as an atypical excuse, thus marking the limit within which sporting activity while causing criminal offenses, does not violate an incriminating criminal offense, because these are behaviors related to game actions that are considered normal in the performance of the sporting action itself. Exceeding this limit entails a liability for willful misconduct or negligence, because it goes beyond the competitive position and leads to injury to personal safety and physical integrity.

Usually, on the subject of injuries caused in the context of carrying out a sporting activity, when the player's safety is consciously jeopardized, who legitimately expects from the opponent even rude competitive behavior, but not exorbitant from the duty of loyalty to the point of transmitting into contempt for the physical integrity of others, the overcoming of the so-called. permitted risk, with the consequent emergence of responsibility for willful misconduct or negligence.

It follows that the fact is malicious when the race is just the occasion (or the pretext) of the action aimed at causing injury, while it is culpable if engaged in the performance of competitive activity and descended from the violation of regulatory standards. Therefore, ascertaining the permitted risk is a matter of fact, to be resolved on a case-by-case basis.

On the subject of cd. "Sporting offense" the perpetrator of the harmful event who was respectful of the rules of the game, of the duty of loyalty towards the opponent and the physical integrity of the latter will not be punishable by law as the "permitted risk" threshold cannot be said to be exceeded. Otherwise, when the player voluntarily violates the rules of the game by disregarding the duties of loyalty towards the opponent, the fact cannot be included in the cause of justification, but it will be criminally prosecutable (Cass. V Sez. sent. n. 1951/2000).

Also, with regard to the issue of personal injuries caused during a sports competition that involves the use of physical force and even harsh contrast between opponents, the area of ​​permitted risk is delimited by compliance with the technical rules of the game, the violation of which, moreover, must be evaluated in practice, with reference to the psychological element of the agent whose behavior may be, despite the overcoming of those rules, negligence, involuntary evolution of the legitimately carried out physical action o, on the contrary, the conscious and malicious intention to harm the opponent by taking advantage of the circumstances of the game (ad is. the foul play if it is committed during a football match which has caused a serious injury to the opponent can be punished as a crime both by intention and by mere negligence - see. Cass. Sez. V sent. n.° 19473/2005).

In the context of serious negligent injuries occurring in the course of sports competition, the condemnation of the consent of the person entitled assumes that the "risk" of suffering said injuries is, from the participant to it, budgeted and therefore accepted, – as the sporting offence, presupposes the existence of the consent of the person entitled pursuant to art. 50, c.p., recurring when the harmful conduct is intentionally inserted in the context of a sporting activity - so that said exculpatory reason cannot be configured when the friendly or amateur characteristics of the competition make the occurrence of injuries exceeding those normally acceptable in this context unforeseeable (cfr. Cass. Sez. V° Sent. n.° 44306/200).

The doctrinal and jurisprudential elaborations have, time ago, defined the contours of the notion of sporting offense, notion that includes all those behaviors that, while substantiating infringements of the rules that govern the performance of a certain competitive discipline, they are not criminally punishable, even when they are detrimental to the physical integrity of an opposing player, as they do not exceed the threshold of the so-called. permitted risk and that it is an area of ​​non-punishment, whose theoretical justification can only be identified in the dynamics of a discriminating condition. However, the Court specified that compliance with the rules scores
the distinction between lawful and illegal in a sporting key and that not even in the event of violation of those rules, such as to constitute a sporting offense, the permitted risk area is exceeded, where the same violation is not voluntary, but you represent, rather, the physiological development of a game action. Malice occurs when the game circumstance is only the occasion for an action aimed at causing injury, supported by the will to commit an act of physical violence.

Finally, the Court specifies that it is clear that it is decisive to ascertain whether or not the fact occurred in the course of a typical game action., as in the alternative hypothesis there is always an intentional offense.

When, instead, the violation of the rules occurs during an ordinary game situation, the fact will have a culpable nature, as the conscious violation is aimed not at causing physical harm to the opponent, but to achievement, in unlawful form, and therefore unsportsmanlike, of a specific competitive goal, salva, obviously, the concrete verification that the carrying out of a game action was nothing more than a mere pretext for causing, voluntarily, damage to the opponent.

Continuing, again on the subject of cd. sports injuries, the provision of culpable excess pursuant to art. 55, c.p., as the cause of justification, cd. not coded, of the exercise of sporting activity presupposes that the injurious action does not constitute an infringement of the sporting rule or in any case, where you integrate it, is compatible with the nature of the sport being practiced and the context of its development; in the absence of the cause of justification mentioned, the crime will be willful or negligent depending on whether the conduct is characterized by a will aimed at harming the opponent's safety or prior acceptance of the relative risk or is merely negligent (cfr. Cass. Sez. V° Sent. n.° 17923/2009).

The Judges, in deciding these cases, have applied the following principle: if the violation of the sporting rule is the development of an action intended to achieve the sporting result, even if it causes an injury to the opponent, and provided that the injury was not committed voluntarily, there is no criminal responsibility.

The leg is broken, the player is cautioned, but his responsibility remains limited to the playing area. Obviously, this is not always the case: if the violation of the rule was willed “with blind indifference to the physical integrity of others o, really, with voluntary acceptance of the risk of jeopardizing it, so, in case of personal injury, you enter the criminally relevant area”, with consequent responsibility and condemnation of those who caused the injuries.

It is not the extent of the damage that determines whether the unlawful action in sport is such also for criminal law. On the other hand, it is necessary to establish whether the sporting action was carried out since its inauspicious outcome can be predicted. If you commit a foul expecting to harm an opponent or if, to get a game result, you exaggerate in performing a certain action causing injury, then – and only then – are you criminally guilty.

But if you commit the fact, anticipating its inauspicious outcome, then you are criminally responsible regardless of whether or not the sporting regulations have been violated. In this sense, the Cassation with sent. 3284/2022 with which he rejects the exoneration of the risk allowed in the light of the tout court legitimacy of the sporting activity by establishing that if I practice a contact sport, I am reasonably aware that I can suffer unpleasant physical consequences. This awareness, outlined by the sporting rules, corresponds to the "permitted risk" and the consequent non-punishment of those who have caused physical damage to the opponent.