22 Jun employer's manslaughter

Anyone who negligently causes the death of a person in violation of the rules for the prevention of accidents at work is punished with imprisonment from two to seven years. (art. 589, co. 2, c.p.)”.
The legal asset protected by the law is the life and physical safety of people. For the configurability of the subjective element it is appropriate to refer to the art. 43 c.p. entitled "Subjective element of the crime" which states: “It's negligent, or against the intention, the crime, when the event, even if expected, it is not wanted by the agent and occurs due to negligence, imprudence or incompetence, or for failure to comply with laws, regulations, orders or disciplines”. Two conditions are therefore necessary for the purposes of the configurability of the incriminating case in the introduction: the violation of precautions in order to prevent the endangerment of certain legal assets considered relevant by the legislator and the death of a person as an unwanted consequence by the suspect/defendant. Indeed, the hypothesis referred to in the paragraph 2 dell’art. 589 represents an aggravated hypothesis with consequent increase in the penalty foreseen in the general case, since the employer or others to whom prevention obligations are specifically assigned hold a position of guarantee towards the worker, having the duty to adopt all suitable tools to "guarantee the safety of employees".
Typical conduct consists in the behavior of the subject who contravenes the necessary precautions by acting negligently, imprudence or incompetence, or violating laws, regulations, orders or disciplines.
In particular, there is "negligence" when the agent carries out a certain activity without paying due attention. We talk, instead, of "imprudence" in the event that the active subject engages in conduct contrary to the general duties of prudence and foresight. Yes it can, in the end, speak of "incompetence" if a person engages in conduct that presupposes knowledge of certain technical rules which, But, are not respected by him, due to his inability or due to his technical or professional ineptitude.
The crime can be prosecuted ex officio and the jurisdiction lies with the monocratic Court.
For the purposes of ascertaining liability, it is important to define the concept of "guarantor" also in light of complex business realities. When we talk about positions of guarantee resulting from crimes referred to in the study in the introduction, we are referring to those subjects who can be considered potential offenders of the protected legal assets, i.e. health and safety in the workplace, are the main guarantors of their protection, due to the exercise of powers to control sources of risk and powers to prevent harmful events that occur during the performance of work performance. These powers are better explained by the art. 40 comma 2 c.p., pursuant to which “No one can be punished for an act considered by law as a crime, whether the event is harmful or dangerous, on which the existence of the crime depends, it is not a consequence of his action or omission. Don't prevent an event, which you have a legal obligation to prevent, ". Crimes committed through omission, that interest us most, they are characterized precisely by a specific role that the subject has towards the offended person. In this regard, it is also necessary to distinguish between the position of control and the position of protection. In particular, control positions are those relating to the control of a source of danger and presuppose the existence of a position of dominion over the object of control on the part of the guarantor, while protection positions presuppose entrusting the guarantor with the task of protecting certain assets from external dangers. The subjects who take on a guarantee position, be it control or protection in the workplace they are not only: the employer, the manager, the provost, the person in charge of the prevention and protection service (RSPP), the competent doctor, the worker, but also subjects external to the company organization chart, such as for example, the designers, the manufacturers, suppliers and installers.
When company realities provide for delegations that transfer powers and duties regarding workplace safety, for reasons of efficiency and organization, difficulties in ascertaining the relevant responsibilities may arise during the proceedings. Very often the employer, indeed, nomination for segments of contractual operations, a Prevention and Protection Service Manager to manage and coordinate the activities of the prevention and protection service from risks envisaged by the regulatory provisions of the Legislative Decree. 81/2008 and for which specific technical expertise is required. In particular, art. 33 of the decree ut cited above, although it does not clarify the responsibilities of the RSSP, defines the areas of interest. Indeed, the same must identify the risk factors, proceed with their careful evaluation, identify measures for the safety and healthiness of working environments; develop safety procedures for various company activities; propose information and training programs for workers; provide workers with information on workplace health and safety risks associated with the company's activity. He RSSP, although not expressly provided for by the law, in carrying out its activities, it must act with a certain autonomy precisely by virtue of the specific technical qualities it possesses. And it is precisely the autonomy of his office that requires him to dissuade the employer from corporate choices that could endanger the safety of workers and third parties and that if lacking, make him indictable in a criminal trial. In fact the RSPP will respond, together with the employer, for the occurrence of an accident whenever it is objectively attributable to a dangerous situation that he would have had the obligation to know and report. We will therefore have, upon the occurrence of a typical crime pattern, a contribution of responsibility of the employer who remains the holder of the guarantee position in general as it exercises decision-making and spending powers of the company organization or production unit and of the RSSP which has a position of control and protection in the event of accident at work.
To overcome the regulatory gap and limit the exclusion of liability by parties distinct from the employer, but which at the same time contribute to entrepreneurial choices even if limited to individual contractual hypotheses, the judging body feels forced, most of the time, to adopt, in the reconstruction of the typical fact and in the trial ruling, especially for crimes of omission, a deductive interpretative criterion, entrusting the probabilistic coefficient a primary role in the reasoning that identifies and justifies the causal link. However, this hermeneutic criterion, although it is peacefully adopted as a practice and is often justified by the considerations of the Court of Cassation in the rulings submitted to its scrutiny, hides pitfalls. Indeed, an indiscriminate use of the logical criterion- deductive risk of producing rhetorical degenerations which, as is sometimes found in practice, they arbitrarily put the seal of high logical probability on evidentiary reasoning which remains highly uncertain as to the salvific nature of the failed conduct and which does not adequately compare with the concrete case. So, it seems more correct to proceed during the judgment with a careful research and analysis of the contingencies in the concrete case that, can allow us to overcome the principle of equivalence of causes, which brings as a consequence, the equivalence and indifference on the evidentiary level of the individual conditions not always necessary for the verification of the harmful event". About that, The concept of "risk" that the parties assume with respect to the role exercised in the business activity assumes fundamental importance and which translates into the "probability of damage as a consequence of a decision". The risk in this case, concerns the health and safety of workers. And each "guarantor" is responsible for managing one or more risk areas precisely by virtue of the role held. It's this diversity of areas, which allows us to delimit and better specify the different responsibilities that come into play in the event of an accident. Therefore only a careful and scrupulous analysis of the judgment against- factual nature of the specific case, it would seem to narrow not only the scope of the pipelines which, if you neglect, they would go unpunished, but also, on the other hand, exclude the punishability of those behaviors which would be irrelevant for the purposes of verifying the event and which would risk condemning all the parties involved without distinction for the aforementioned principle of the equivalence of the causes.
The recent ruling of the Fourth Section of the Supreme Court can therefore be shared by the writer, who reiterated the need to rely on the so-called "causality of guilt" in the sense that: "the negligent reproach must concern the commission of a criminal act which could have been avoided through the due observance of the precautionary rules violated. From which the more objective side of guilt emerges, in the sense that, in order to assert negligent liability, it is not sufficient that the typical offensive result was produced as a consequence of conduct that did not comply with a specific precautionary rule, but the offensive result must correspond precisely to the danger that the violated precautionary rule was intended to address. It's necessary, that is, that the offensive result is the realization of the danger taken into consideration by the precautionary rule; or, in other words, that the harmful event falls within the class of events for which the precautionary rule was intended to prevent. This highlights the so-called causality of fault, i.e. the principle according to which the failure to comply with the precautionary rule of conduct by one of the subjects involved in a negligent case is not in itself sufficient to affirm the latter's responsibility for the harmful event. occurred, unless its existence is proven, The aggravation of the instability punished by art, of the causal link between the violating conduct and the event".