Alberto Gargani

The strange case of “the imprudent action followed by the willful omission”. Critical remarks on the “Vannini” judgement

Contribution published in the Journal disCrimen and herein contextually republished.

The contribution is subject to the editorial and evaluation criteria of the aforementioned Journal.


Abstract. The Court of Cassation has judged the well-known “Vannini” case, affirming the criminal responsibility of the defendants for murder by omission. The sentence is based on an alleged position of guarantee related to the violation of the principle of “neminem laedere“, placed in the “para-family” context. A conclusion in contradiction with the requirement of the legality of the obligation to prevent the event (art. 40/2, Italian Penal Code), which confirms the tendency of jurisprudence to reconstruct omissive responsibility on a functional basis, in correlation with the “culture of common sense”. The comment highlights the limits, contradictions and ethical drifts of this approach, proposing a different legal classification of the facts, in accordance with the rules governing the matter of causality and omission.

SUMMARY: 1. Introduction. — 2. A brief findings of fact and the case summary — 3. The boundaries of the survey. — 4. The criminal liability for omissions of the defendants ruled by the Court of Cassation. — 5. The particular “para-legal” duty of care charged against the defendants. — 6. The “dejuridification” of the Garantenstellung — 7. The eclipse in the application of the hit-and-run/failure to assist crime caused by the improper intervention of the crime of murder by omission — 8. Conclusions.


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