Incident involving death of an adult instructor and a 13 year near Naples Italy

[Wookie]

Wow. So the public prosecutor wanted even more victims?

 

[Compressor]

Oh!!!!!!!! What a horrible tragedy. So so very sad.

 

[fsardone]

Wow. So the public prosecutor wanted even more victims?

Wookie,
unfortunately the Roman legal system inherithed by Italy and a few other countries, require mandatory prosecution of every crime. The Italian criminal coda also requires the prosecutor to give notice of any investagation if it is done with a specific person in mind and not to find a possible responsible person for a crime.
This allows the interested parties to nominate technical expert witness and be involved in their defence early on.

In this specific case the law require anybody who sees somebody in danger to render help. This does not require you to put yourself at risk. So the endangered party was there, the obbligation to render help is by law, the other now need to prove they would endanger themselves attempting rescue.

If they do that the case will b archived otherwise it will be prosecuted (I believe, I am not a legal expert but just based on my experience and layman knowledge ...)

 

[Basking Ridge Diver]

Apparently, the Public Prosecutor of the Tribunal of Naples has started an investigation on the 5 divers who called the rescue services.

No good deed goes unpunished...
So next time they should turn around and pretend it never happened? Let the bodies just float to the surface or better yet - never be found?
Yikes....

 

[Nirvana]

Wookie,
unfortunately the Roman legal system inherithed by Italy and a few other countries, require mandatory prosecution of every crime. The Italian criminal coda also requires the prosecutor to give notice of any investagation if it is done with a specific person in mind and not to find a possible responsible person for a crime.
This allows the interested parties to nominate technical expert witness and be involved in their defence early on.

In this specific case the law require anybody who sees somebody in danger to render help. This does not require you to put yourself at risk. So the endangered party was there, the obbligation to render help is by law, the other now need to prove they would endanger themselves attempting rescue.

If they do that the case will b archived otherwise it will be prosecuted (I believe, I am not a legal expert but just based on my experience and layman knowledge ...)

I would like to clarify some of your points. Firstly, as you said, in the civil law systems I am aware of (certainly the Brazilian and German ones, and I am confident this applies to the Italian system) the crime of not rendering assistance only exists if the person that do not renders assistance could do so without endangering him or herself. That is not the only possibility for being liable for omission resulting in death, though.

Instead of answering for this crime ("omissione di soccorso" in Italy ), someone may be prosecuted for the crime of actually killing the other person for failing to act to prevent the death. For this to happen, however, it is necessary for one of certain conditions stablished in law to be present that would make someone the "guardian" of the victim. In this case, the law may require endangering oneself to protect someone else. This is an exceptional case, for which the most common examples would be the guardian of a minor and someone that actively creates a risk for other people, becoming responsible for their safety.

Regarding the criminal procedure, the police has the duty to investigate a possible crime. The prosecutor, on the other hand, is obligated to initiate criminal prosecution in case there is evidence to support the idea that someone has committed a crime. If it becomes clear from the police investigation that the other divers did not commit a crime (e.g. were not the girl's guardians and could not enter the cave without putting themselves at risk), a trial would not be necessary.

As I understand it, the notification they received has the sole objective to inform them that the police is investigating them as possible authors of a crime.

 

[Marie13]

No good deed goes unpunished...
So next time they should turn around and pretend it never happened? Let the bodies just float to the surface or better yet - never be found?
Yikes....

A good example of "never invite the man into your life."

 

[fsardone]

Instead of answering for this crime ("omissione di soccorso" in Italy ), someone may be prosecuted for the crime of actually killing the other person for failing to act to prevent the death. For this to happen, however, it is necessary for one of certain conditions stablished in law to be present that would make someone the "guardian" of the victim. In this case, the law may require endangering oneself to protect someone else.
[...]

As I understand it, the notification they received has the sole objective to inform them that the police is investigating them as possible authors of a crime.

Hello Nirvana,
"Omicidio colposo" which translates roughly with manslaughter, is the death of somebody in consequence of another crime.
So if you fail to render help when mandated by law, and somebody dies in consequence of such omission you are investigated, and if the case, indicted to stand trial for culpable omicide.

Let's give an example: your flower vase is on your balcony and accidentally falls (there is no will of making it fall) and hits somebody who dies. If you put it there without violating any rule, is an incident and you just pay civilian compensation for the "accidental" death (you better have good homeowner insurance). But if your municipality has an order preventing people to keep flower vases on balconies, you are violating a rule and in consequence of this somebody has lost his life.
You are therefore liable for civil damage and criminal behaviour of "omicidio colposo".

As I said I am just a layman in the law environment, but the fact they omitted to render help when they were mandated by law to do so makes them responsible of "omicidio colposo". They would be not mandated to render help if this would endanger them or if the victims were already deceased.

Unfortunately it is now upon them the burden of proving they would endanger themselves by attempting a rescue or that it was obvious they were too late to try. It might be costly in term of time and judiciary effort.

There is a further case that can be studied and it is the death of the three people in 2014 which were provided carbon monoxide tainted tanks. They have been found guilty of "omicidio colposo" because they have filled in violation of some rules.


I hope I am not straying too far away from the topic, but if you wish to discuss this, we might have to change forum and ask MODs to split the thred in the legal forum.

 

[Nirvana]

Hello Nirvana,
"Omicidio colposo" which translates roughly with manslaughter, is the death of somebody in consequence of another crime.
So if you fail to render help when mandated by law, and somebody dies in consequence of such omission you are investigated, and if the case, indicted to stand trial for culpable omicide.

Let's give an example: your flower vase is on your balcony and accidentally falls (there is no will of making it fall) and hits somebody who dies. If you put it there without violating any rule, is an incident and you just pay civilian compensation for the "accidental" death (you better have good homeowner insurance). But if your municipality has an order preventing people to keep flower vases on balconies, you are violating a rule and in consequence of this somebody has lost his life.
You are therefore liable for civil damage and criminal behaviour of "omicidio colposo".

As I said I am just a layman in the law environment, but the fact they omitted to render help when they were mandated by law to do so makes them responsible of "omicidio colposo". They would be not mandated to render help if this would endanger them or if the victims were already deceased.

Unfortunately it is now upon them the burden of proving they would endanger themselves by attempting a rescue or that it was obvious they were too late to try. It might be costly in term of time and judiciary effort.

There is a further case that can be studied and it is the death of the three people in 2014 which were provided carbon monoxide tainted tanks. They have been found guilty of "omicidio colposo" because they have filled in violation of some rules.


I hope I am not straying too far away from the topic, but if you wish to discuss this, we might have to change forum and ask MODs to split the thred in the legal forum.

Hello Fabio,

I am afraid your explanation is not very accurate. "Omicidio colposo" (Codice Penale, art. 589) is a crime committed with "colpa", as opposed to "dolo". The concept of "colpa" is given on art. 43, which establishes the "elemento psicologico del reato". Applied to "omicidio", and simplifying things quite a bit, it means the agent did not intend to kill but acted negligently and provoked someone's death. The corresponding crime in common law systems, to the best of my knowledge, is "involuntary manslaughter".

A different hypothesis, to which I alluded in my earlier post, is of "reato omissivo improprio". It means the practice, through inaction, of a crime that is defined in law as the product of an action. According to the Codice Penale Italiano, art. 40, "non impedire un evento, che si ha l'obbligo giuridico di impedire, equivale a cagionarlo." Roughly translating, "failing to prevent an event which one is legally obligated to prevent is equivalent to causing it." That is, if someone has the legal duty to prevent a certain result, for instance as a result of being someone else's guardian, and intentionally does not prevent this result, or accepts the production of this result, this person will be prosecuted as if he or she had intentionally and actively produced that result. If this result is another person's death, the crime committed will be, in general, "omicidio" ("omicidio doloso" or "omicidio volontario"), art. 575.

Simply failing to give assistance to someone in need, not having caused the situation of risk, is the crime of "omissione di soccorso" (art. 593), with a higher minimum sentence if a death occurs ("(...) se ne deriva la morte, la pena è raddoppiata.").

Nelson Almeida

 

[fsardone]

Hello Fabio,

I am afraid your explanation is not very accurate. "Omicidio colposo" (Codice Penale, art. 589) is a crime committed with "colpa", as opposed to "dolo". The concept of "colpa" is given on art. 43, which establishes the "elemento psicologico del reato"..

Nelson Almeida

As I said, I am not a lawyer therefore not qualified.
The prosecutors are lawyer and are investigating those people for "omicidio colposo". Why, you decide.
Also, the filling operators and the other diving operators involved in deaths in the last 3 years all have been judged and convicted for "omicidio colposo".
Colpa means wrongdoing ... psicologically did not want to cause death but due to their wrongdoing death resulted.

IMHO.
I am now reporting the thread to MODs to see if it should be split ... so we can continue in a more proper place.

Cheers

 

[wgw04024]

How were the 5 divers involved? Were they on the same boat and realized those 2 divers should of surfaced by then? Did the 5 divers see them enter the came? This seems kind of silly, and possibly is it simply following proper protocol in a situation like this and nothing more?

Bill