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

[Nirvana]

@fsardone

Hello Fabio,

I'm glad you seem to be finding this topic interesting.

Before addressing your points quoted above, let me tell you that it is not my intention to nitpick or point flaws in your arguments. In fact, I would like to thank you for bringing to our attention here at scubaboard all the information you have found on this tragic incident.

As to why the authorities are investigating the divers for "omicidio culposo", I have to first admit to not giving a good enough explanation before and implying an incorrect fact. More specifically, a crime committed by omission in the form of the art. 40 of the Italian Criminal Code can be either "doloso" or "colposo", provided both forms of the crime are disciplined in a statute. That is the case of "omicidio" (homicide or manslaughter).

Someone may have a duty to ensure someone else's safety. If he or she fails to prevent the result, due to some form of breach of duty of care, as specified on art. 40 ("a causa di negligenza o imprudenza o imperizia, ovvero per inosservanza di leggi, regolamenti, ordini o discipline"), and this inaction or lack of proper action causes the victim's death, then he or she will have committed an "omicidio colposo" (involuntary manslaughter).

Just to hopefully clear things up, "omicidio" is classified as "reato comissivo", requiring an action that is the cause of the death. Only exceptionally, when the rule established on art. 40 applies, it is considered a "reato omissivo", said "reato omissivo improprio".

Differently, "omissione di soccorso" is a "reato omissivo proprio". It is, in essence, a crime of omission, a violation of a general duty of solidarity.

 

[KevinNM]

So like the dive shop owner whose instructors regularly took kids into death traps?

 

[fsardone]

@fsardone


Someone may have a duty to ensure someone else's safety. If he or she fails to prevent the result, due to some form of breach of duty of care, as specified on art. 40 ("a causa di negligenza o imprudenza o imperizia, ovvero per inosservanza di leggi, regolamenti, ordini o discipline"), and this inaction or lack of proper action causes the victim's death, then he or she will have committed an "omicidio colposo" (involuntary manslaughter).

I pretty much agree with all you say except here.
You might be culpable of "omicidio colposo" Culpable Omicide even if you do not have a duty of care, but just violating (which is either action or inaction) laws, regulations, orders or disciplines also negligence, imprudence and imperfection are gauged according to industry best practices.

Finally, you can only be found guilty of "Omicidio colposo" if "ex ante" (before hand) you could have forecasted (according to your expected knowledge for the role you have) and prevented the death. (a good reference is the supreme court decision - Cass Pen Sez IV 12 Oct 2007 n 37606 which states that you need to have violated a rule that was aimed to prevent that specific occurrence)

These people cannot be investigated for "omissione di soccorso" because the supreme court decided (decision 20480/2002) that the knowledge of somebody in peril is not enough. You need to have material contact with your sensing organs with the person in peril (pretty much see him, but this wording covers a blind person stumbling into him).

Therefore, [my speculation here] since you need to identify a crime hypothesis (that can be later reviewed) to investigate people (granting them the right of taking part with their counsel into the investigation) and the best suited option here was "omicidio colposo". IMHO.

 

[fsardone]

So like the dive shop owner whose instructors regularly took kids into death traps?

The instructor is culpable (violating accepted practices rule regulations of the diving organisations, set there to prevent those deaths and the death can be forecasted and avoided).
If the shop owner is also culpable depends on the relation between the instructor and the shop.
If the shop employed the diver there is also a whole lot of additional regulation (Work Health and Safety - DLGS 81/2008) which in itself would bury the employer in so many responsibilities (risk analysis, risk mitigation plan, emergency responders, evacuation plan ...) which makes employing an instructor a complicated matter but clears the fact that unless the instructor was violating a shop code of practice the shop owner would be guilty.

If he endorsed the instructor or has a collaboration and he is qualified to understand the risks he might be found culpable.
If he advertises the dives into the caves he is promoting (and making a profit out of) them, [speculation from here on] then they will find him culpable. You cannot expect to promote an activity and claim no knowledge of the involved risks and best practices.

Cheers