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. rubricato “Elemento soggettivo del reato” che recita: “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”. Due condizioni dunque sono necessarie ai fini della configurabilità della fattispecie incriminatrice in premessa: 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. Quando parliamo di posizioni di garanzia conseguenti a delitti di cui allo studio in premessa, 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, le posizioni di controllo sono quelle riferite al controllo di una fonte di pericolo e presuppongono in capo al garante l’esistenza di una posizione di dominio sull’oggetto del controllo, while protection positions presuppose entrusting the guarantor with the task of protecting certain assets from external dangers. I soggetti che assumono posizione di garanzia, 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, un Responsabile del Servizio di Prevenzione e Protezione per gestire e coordinare le attività del servizio di prevenzione e protezione dai rischi previste dal dettato normativo del D.Lgs. 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. Il 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, un concorso di responsabilità del datore di lavoro che resta titolare della posizione di garanzia in via generale in quanto esercita poteri decisionali e di spesa dell’organizzazione aziendale o dell’unità produttiva e del RSSP che ha una posizione di controllo e di protezione in caso di infortunio sul lavoro.
Per ovviare al vuoto normativo e limitare l’esclusione di responsabilità da parte di soggetti distinti dal datore di lavoro, 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, soprattutto per i reati omissivi, 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, più corretto sembra procedere nel corso del giudizio ad una attenta ricerca e analisi delle contingenze nel caso concreto che, 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, assume fondamentale importanza il concetto di “rischio” che le parti assumono rispetto al ruolo esercitato nell’attività di impresa e che si traduce nella “probabilità di un danno come conseguenza di una decisione”. 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".