Published on 22 July 2024
FIRST SECTION
Applications nos. 8528/21 and 10587/21
Giorgio CANTI against Italy and
Giorgio CARIMATI against Italy
lodged on 2 February 2021 and 4 February 2021 respectively
communicated on 2 July 2024
SUBJECT MATTER OF THE CASE
The applications concern the foreseeability of the applicants’ conviction for the offence of unnamed disaster (disastro innominato) by culpable negligence provided for by Articles 434 and 449 of the Criminal Code (“the CC”), which punish as ‘unnamed disaster’ whoever causes by culpable negligence “another disaster”, namely a disaster other than those explicitly provided for by the CC (such as, inter alia, flood, landslide, shipwreck or trainwreck).
In the 60s toxic waste had been massively buried under an industrial site and the industry’s water supply had been leaking for years, with the effect of severely contaminating the groundwater in the area. In this connection, the applicants, in their capacity of ‘environmental executives’ in two companies consecutively operating at the site in subsequent years, were charged of having contributed to the water poisoning by failing to perform the due maintenance of the water supply, omitting to report to the competent authorities the pollution of the groundwater and failing to put in place any adequate measure to eliminate or, at least, contain the pollution.
The Alessandria Assize Court found the applicants guilty of unnamed disaster by culpable negligence, reasoning that the groundwater’s pollution amounted to an environmental disaster which had endangered public safety and, since the offence of unnamed disaster should be considered a “continuing criminal offence” (reato permanente), the applicants - albeit not being the authors of the pollution - could be held responsible for their failure to comply with a duty to remediate (bonificare) the site. The conviction was upheld by the Assize Court of Appeal and by the Court of Cassation (judgment no. 13843 of 12 December 2019, filed with the registry on 7 May 2020).
The applicants allege of a violation of Article 7 of the Convention. The applicant in application no. 10587/21 alleges also of a violation of Article 6 § 1 of the Convention. Relying on a domestic practice according to which the offence of unnamed disaster could not be considered as continuing (see, inter alia, Venice District Court’s judgment no. 173 of 22 October 2001; Court of Cassation’s judgments no. 4675 of 6 February 2007, no. 7941 of 23 February 2015 and no. 47779 of 19 October 2018), they complain of the unforeseeability (i) of the domestic courts interpretation of the offence at hand as a continuing criminal offence, and (ii) of its application in the form of ‘environmental disaster’ to the conduct of failed remediation of a pollution caused by others.
QUESTIONS TO THE PARTIES
In light of the relevant domestic provisions (Articles 434 and 449 of the CC) and of their interpretation by the domestic courts (see, inter alia, Venice District Court’s judgment no. 173 of 22 October 2001; Court of Cassation’s judgment no. 4675 of 6 February 2007; Constitutional Court’s judgment no. 327 of 30 July 2008 and the subsequent case-law), considering the facts reproached to the applicants, was their conviction for the offence of environmental unnamed disaster by culpable negligence (disastro ambientale innominato) in compliance with Article 7 of the Convention (compare Liivik v. Estonia, no. 12157/05, §§ 99-101, 25 June 2009; Rohlena v. the Czech Republic [GC], no. 59552/08, §§ 57-58, ECHR 2015; Soros v. France, no. 50425/06, §§ 53 and 59, 6 October 2011; Litschauer v. the Republic of Moldova, no. 25092/15, §§ 31-35, 13 November 2018; Parmak and Bakır v. Turkey, nos. 22429/07 and 25195/07, § 73, 3 December 2019, and Tristan v. the Republic of Moldova, no. 13451/15, § 49, 4 July 2023)? In particular:
a) Was the domestic court’s interpretation of the offence of unnamed disaster to the facts of the applicants’ case consistent with the essence of that offence and could it be reasonably foreseen by the applicants at the material time (compare Parmak and Bakır, cited above, § 67-68; Soros, cited above, § 57; Dragotoniu and Militaru-Pidhorni v. Romania, nos. 77193/01 and 77196/01, § 43, 24 May 2007, and Tristan, cited above, § 59)?
b) What are the elements identifying the commission (consumazione) of the offence of unnamed disaster and were those elements present in the applicants’ case (see Rohlena, cited above, § 57; mutatis mutandis, Yüksel Yalçınkaya v. Türkiye [GC], no. 15669/20, § 267, 26 September 2023)?
The parties are requested to submit the relevant case-law of the Court of Cassation setting out the material elements identifying the commission of the offence of unnamed disaster under Article 434 of the CC.