20 Apr failure to assist

The failure to assist is placed in Title XII relating to crimes against the person, to the article 593 of the Criminal Code. It has: "Whoever, finding a child under the age of ten abandoned or lost, or another person unable to care for themselves, for disease of mind or body, due to old age or other causes, fails to immediately notify the Authority is punished with imprisonment of up to one year or with a fine of up to 2.500 euro. Whoever is subject to the same punishment, finding a human body that is or appears inanimate, or a person who is injured or otherwise in danger, fails to provide the necessary assistance or to immediately notify the Authority. If personal injury results from such conduct of the offender, the sentence increased; death results, the sentence is doubled.” From reading this provision it immediately emerges that it can be broken down into two cases: the first hypothesis of failure to provide assistance arises when one fails to notify the authorities of the discovery of minors under ten years of age or of a person incapable of caring for themselves in a state of abandonment or loss, while the second hypothesis arises when one fails to provide assistance or give warning in case of a person in danger, injured or appears inanimate. In both cases, the obligation that falls on the finder, to avoid committing the crime of failure to provide assistance, is to prevent any damage that the above-mentioned categories could incur as they are exposed to a state of presumed or confirmed danger, through your assistance. To incur a form of criminal liability, the person in this situation must have the opportunity to act, understood as a material possibility of fulfilling the command: it is excluded for example due to a lack of the necessary psychophysical aptitudes (Anyone who does not know how to swim and is therefore unable to help a swimmer does not commit negligence, or due to age or infirmity is unfit to provide assistance) or due to lack of the external conditions necessary to carry out this action (for example being a long distance from the place where help is needed). Among the hypotheses that prevent the formation of the case of failure to provide assistance, there is certainly the case in which the person involved has made a serious effort to fulfill the duty of assistance/assistance and the failure is due to circumstances not attributable to him, or when there are multiple co-obligors: in the latter case, in fact, the duty to take action on the part of several subjects can eliminate the criminal liability of those who subsequently remain inactive, as their intervention would be superfluous or no longer necessary. However, a very recent intervention by the Supreme Court has highlighted how, regarding road traffic, the obligation to provide assistance to injured people cannot be delegated to third parties unless the task of assistance has been entrusted to individuals with particular rescue qualifications; the simple presence, for example, of passers-by, in fact, it does not in any way authorize the evasion of the duty to provide assistance to the injured. For both cases of the art. 593, in any case, the expected penalty is imprisonment of up to one year or a fine of up to 2.500 euro. The last paragraph instead regulates the aggravating circumstances that may arise in relation to the failure to provide assistance: in fact, the penalty is increased if the omission results in personal injury or even doubled if it causes death. As an instant crime of omission[5], Moreover, the attempt is not configurable.
The most common example regarding failure to provide assistance is that of failure to provide roadside assistance. The topic under consideration is expressly regulated in the article 189 of the Highway Code, which includes various obligations: Obligation to stop in the event of an accident with damage only to property (comma 5); Obligation to stop in the event of an accident causing injury to people (comma 6); Obligation to provide assistance to injured people (comma 7); Obligation to provide your personal details (comma 4), on the drivers. While in the case of only damage to property, if you do not stop you will incur an administrative penalty, the failure to provide assistance following a road accident in the event of damage to people entails a rather high penalty: it ranges from six months to three years of imprisonment, and increases from one to three years of imprisonment in the event that assistance has not been provided to injured people. In both cases the additional penalty of suspension of the driving license is foreseen. With regard to the conduct to be implemented to avoid incurring a failure to provide assistance, assistance to the injured is also integrated by the simple call for medical assistance, without daring to carry out complicated maneuvers that would risk worsening the situation (for example, extract the victim's body from the sheets of the car). As far as the subjective element is concerned, to be charged with the crime of failure to assist, malice is required. This type of crime does not occur when, eg, the omission is due to an error, even if negligent, carried out by the agent in order to evaluate the perceived dangerous situation or when the agent himself, despite having recognized the same, then made a mistake in choosing the rescue methods that were put in place. Furthermore, the Court of Trieste recently ruled on this point, whose orientation was confirmed by the Supreme Court, also considering possible fraud[ sufficient to constitute the crime of failure to provide assistance. However, the evaluation of the circumstances of the fact is not excluded, for example, particular lightness of the damage or having stopped before walking away and not having subsequently denied one's involvement, may lead to the recognition of a cause of non-punishment due to the particular tenuousness of the fact. The failure to provide roadside assistance can also be accompanied by another type of crime, given by the escape. The Court of Cassation subsequently clarified that the crime of escape can also be easily integrated by the road user involved in the accident even if not responsible for it.