Published on 15 July 2024
FIRST SECTION
Application no. 22456/20
Enrico GILBERTI
against Italy
lodged on 5 June 2020
communicated on 28 June 2024
SUBJECT MATTER OF THE CASE
The application concerns the foreseeability of the applicant’s conviction for the offence of unnamed disaster (disastro innominato) by conscious negligence (colpa cosciente) 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).
Under such provisions in 2012 the applicant, in his capacity of Ceo and manager of a refinery plant, was brought to trial for having failed (between 2001 and 2007) to hinder and prevent the spreading in the area surrounding the refinery of a contamination in the groundwater, mainly caused by leaks in the refinery’s sewerage network over the years. On 18 July 2014 the Cremona preliminary hearings judge found him guilty. The conviction was later upheld by the Court of Appeal and the Court of Cassation (by judgment no. 44528 of 25 September 2018, filed with the registry on 31 October 2019). According to the domestic courts, the abovementioned contamination amounted to an environmental disaster (disastro ambientale) which had endangered public safety.
Relying on the domestic case-law at the material time, the applicant alleges of a violation of Article 7 of the Convention, complaining of: (i) the absence of a clear and foreseeable legal basis for his conviction, given the broad definition of the offence of unnamed disaster provided for by Article 434 of the CC; (ii) the unforeseeability of the extensive interpretation adopted by the domestic courts in his case, since the inclusion of the environmental disaster (in the form of a continuing pollution) within the scope of Article 434 of the CC is inconsistent with the features of the offence and was based on a line of case-law posterior to time of the commission of the acts reproached to him.
QUESTIONS TO THE PARTIES
1. In light of the relevant domestic provisions (Articles 434 and 449 of the CC) and of their interpretation by the domestic courts, considering the facts reproached to the applicant, was his conviction for the offence of environmental unnamed disaster by conscious negligence (disastro ambientale innominato) in compliance with Article 7 of the Convention (compare Liivik v. Estonia, no. 12157/05, §§ 99-101, 25 June 2009; Soros v. France, no. 50425/06, § 53 and 59, 6 October 2011; Rohlena v. the Czech Republic [GC], no. 59552/08, §§ 57-58, ECHR 2015; Parmak and Bakır v. Turkey, nos. 22429/07 and 25195/07, § 62, 3 December 2019, and Tristan v. the Republic of Moldova, no. 13451/15, § 49, 4 July 2023)? In particular:
1.1. Was there a sufficiently clear legal basis for the applicant’s conviction, as required by Article 7 § 1 of the Convention? Did the national law at the material time define with sufficient clarity the criminal offence of unnamed disaster (Article 434 of the CC; see Liivik, cited above, § 93)?
1.2. What are the elements of the offence of unnamed disaster set out in Article 434 of the CC 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)?
1.3. Were the domestic legal provisions, on the basis of which the applicant was convicted, foreseeable in their application? In that connection, could the domestic courts’ interpretation of the offence of unnamed disaster as covering environmental disasters in the form of continuing pollution be reasonably foreseen by the applicant at the time of the acts on which his conviction rested (see, mutatis mutandis, Litschauer, cited above, §§ 31-35; Dragotoniu and Militaru-Pidhorni v. Romania, nos. 77193/01 and 77196/01, § 38, 24 May 2007)?
1.4. 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 applicant at the material time? (compare Parmak and Bakır, cited above, § 67-68; Soros, cited above, § 57; Dragotoniu and Militaru-Pidhorni, cited above, § 43, and Tristan, cited above, § 59)?
The parties are requested to submit the relevant case-law of the Court of Cassation setting out the material elements of the offence of unnamed disaster under Article 434 of the CC.