THE LEGAL FIGHTING (EWHN, Info-Meeting, Bologna, October 5, 2013) Anna Guardavilla

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1 THE LEGAL FIGHTING (EWHN, Info-Meeting, Bologna, October 5, 2013) Anna Guardavilla First of all, the legislation on the prevention of accidents and diseases at work, in Italy, is a - so-called - compulsory application, since it is related to clear social requirements which cannot be derogated from. More generally, it should be pointed out that as well as applying the legislation on accident prevention, the courts have not failed to draw every useful consequence from the fundamental constitutional principle (Article 32) of the absolute right of the individual, and the corresponding interest of the community, to physical safety, a right which is defined as irrevocable and inalienable. Now let s analyze briefly Italian legislation. In the Italian legal system, besides the extremely general provision on noncontractual liability, based quite simply on the principle of - in latin - neminem laedere, there s another article really more important in cases of accidents or diseases at work, which is art. 2087, which provides that the employer is under an obligation to adopt those measures which, depending on the particular nature of the work, experience and technology, are necessary to protect the physical and mental well-being of workers. According to this general provision, frequently applied in trials in case of accidents or occupational diseases, for instance in the case of Thyssenkrupp trial, the Employer must adopt not only measures specifically provided by Legislative Decree 81/2008, but also all measures (that can be more than those) - even not provided by that decree - that are in any case necessary to protect the physical integrity and mental well-being of the workers according to the particular nature of the work, the experience and the available technology.

2 Besides this general provision, which is a provision of civil liability but, in case of accident at work or occupational disease, may be relevant as a crime because not observing it represents a criminal guilt, the Italian legal system, like most legal systems, contains more specific rules for the prevention of accidents or diseases at work. Now, these specific rules are mostly contained in the legislative decree 81/08. The general provision in Article 2087 of the Italian Civil Code, which lays down the general principle of accident prevention according to the best standard available of science and technology, and the legislative decree 81/08, are applicable both to private companies and to public bodies. In that context, the courts, and specifically the Supreme Court, have developed several legal principles: 1) the courts have, first of all, held that a 'workplace' must be interpreted as meaning not only the pre-established place where the worker normally expects to carry out tasks appointed to him, but also all other places where the same worker, even if merely exceptionally, may go to fulfil the requirements of his employment. 2) It should also be pointed out and this is very important - that the Supreme Court has always confirmed the principle that the rules on the prevention of accidents at work are provided to eliminate not only the risks related to the performance of particular employment activities, but also, and above all, those risks which are a consequence of any inexperience, negligence and carelessness of workers themselves, whose safety must always be protected, even against their own (oun) will. This is the Principle of compulsory protection 3) The distribution of prevention and protection duties follows the principle of effectiveness, which gives prominence to what organizational systems concretely actually are, rather than the formal organization, id est to obligations and responsibilities on the basis of the duties actually and concretely performed and the powers actually and concretely exercised. According to art. 299 of legislative Decree 81/08, the criminal justice system considers and declares as Employer, Manager and Foreman (with related responsibilities) even who, despite without a formal investiture, actually exercises specific legal powers of such subjects. In particular, powers which, if exercised even only in fact, are sufficient to define the role of each of those subjects are: - decision-making and spending power for the Employer; 2

3 - power management (which not necessarily has to be a power of spending; it depends on the case), organizational power and hierarchical power for Managers - hierarchical power and supervision power for Foremen. This is the Effectiveness principle. The extension of the protection to third parties 4) Finally, a substantial and consistent body of case-law of the Court of Cassation has gradually extended the protection afforded by the abovementioned rules both to non-dependent workers and to mere third parties who may find themselves declares the Court of Cassation in a judgement in the dangerous situation which the law seeks to prevent by imposing certain precautionary measures. And, specifically, in case of contracting, according to Italian case-law, it is occasionally necessary to ascertain whether the organization of the work has been entrusted wholly (leggi: hoòli) to the successful tenderer (aggiudicatario) or whether, on the contrary, the principal has reserved some power of control over the performance of the work. The successful tenderer has exclusive liability for controlling his workers only in the first case. The Court says: when the successful tenderer is not working absolutely autonomously, the principal, who participates in the performance of the work, is also liable for failure to adopt accident prevention measures, and in such a case is also under a duty to ensure safe working conditions with regard to the work contracted out. Judgements on accidents or diseases at work are generally based on three provisions of the Italian Penal Code. Art. 40 par. II of the Penal Code This article specifies the criteria of causation that must be considered in criminal matters. It provides that failing to prevent an event where there is a legal duty to prevent it, is equivalent to causing it. It means that, for instance, I can be the cause of an event by doing something that is forbidden or by not doing something that I must do since it s an obligation provided by the law: liability for action is equivalent to liability for omission. Art. 589 of the Penal Code 3

4 Then, the second provision is this article that contains the offence of manslaughter Art. 590 of the Penal Code This article criminalizes the offence of grievous bodily harm. But we will see later that other important crimes, besides to those crimes characterized by simple negligence, have been applied more and more in recent years. Anyway, when the judge ascertains the crime of manslaughter and grievous bodily harm, he considers the following elements: Causal Relationship: No one shall be punished for an act designated by law as an offense if the harmful or dangerous event, on which the existence of the offense depends, was not a consequence of his own act or omission. Concurrent causes: The presence of pre-existing, simultaneous or supervening causes, even though independent of the act or omission of the offender, shall not exclude a causal relationship between his act or omission and the event. Supervening causes shall exclude a causal relationship only when they were in themselves sufficient to bring about the event. For instance, you can consider the behaviour of a worker which is really unforeseeable. But the mere negligence of a worker is not considered unforeseeable; it s something that the employer has the duty to foresee: remember the compulsory principle we have analyzed before. Very important is the mental element of the offense: when we talk about negligence, willfull misconduct and so one, we are talking about the psychological element of the offender. According to the penal code, a crime: - is intentional or according to intention, when the harmful or dangerous event which is the result of the act or omission is foreseen and desired by the offender as a consequence of his own act or omission; - is preterintentional or in excess of intention, when the act or omission is followed by a harmful or dangerous event more serious than that desired by the offender; 4

5 - is negligent, or contrary to intentional, when the event, even though foreseen, is not desired by the offender and occurs because of carelessness, imprudence or lack of skill, or failure to observe laws, regulations, orders or instructions. Between the intentional crime and the negligent crimes, in the legal system there are two levels in the middle: negligence with the aggravating circumstance of foreseeability (briefly named negligence with consciousness ) and indirect intent. 1) Technically speaking, indirect intent is a particular kind of fault that in Italian language is known as dolo eventuale and which is a particular type of willfull misconduct. For instance, an offender can commit Manslaughter by indirect intent, that somebody also names manslaughter with recklessness. 2) The second one is negligence with the aggravating circumstance of foreseeability or negligence with consciousness, according to Italian criminal law doctrine. These particular kind of crimes were both applied in Thyssenkrupp case. Let s see what happened in that case. On December 12, 2007, there was a fire in an industrial plant in Turin that was owned and managed by ThyssenKrupp Acciai Speciali Terni S.p.a. (ThyssenKrupp), an Italian subsidiary of ThyssenKrupp Stainless group. The violent fire occurred in a cold annealing and pickling line, called APL5, where there is typically a big amount of lubricant oil and paper, as well as sparks generated by the plant s industrial process. As some workers were trying to stop the fire using light hand fire extinguishers, a large flash fire hit them and other workers present in the area. The flash fire was caused when a pipe carrying lubricant oil under pressure burst. As a result, seven workers died in the accident, and three others were seriously injured. The public prosecutors brought six ThyssenKrupp managers to trial: the chief executive, two executive directors, a general manager, the chief engineer of the plant and a RSPP (safety manager). Anyway, in the second degree all of these ThyssenKrupp employers and managers were charged and then condemned by the Court of Turin - with manslaughter by negligence with consciousness for not having ensured safe working conditions at the Turin plant and intentional removal or omission of protection against disasters or injury in the workplace. 5

6 But before, in the first degree, besides to the crime of intentional removal or omission of protection against disasters or injury in the workplace, the chief executive was charged with manslaughter committed by indirect intent, then reduced, in the second degree, to manslaughter by negligence with consciousness. Let s see the difference between manslaughter by indirect intent according to the doctrine and then referred to the chief executive of Thyssen according to the Court of Turin, first degree - and manslaughter by negligence with consciousness. Indirect intent is characterized by the following elements: a) The offender is aware that a harmful event is very likely to occur due to a failure to comply with duties related to industrial safety. b) The offender is aware that if the event takes place there is a high probability that it may result in the death of people. c) Nevertheless, the offender accepts the consequences that the possible outcome of the harmful event is the death of one or more persons. d) The offender does not change conduct in order to avoid these consequences. e) The omissions attributable to the offender can be linked to the event and the death of workers based on a correct and legal chain of causation. Negligence with consciousness is a psychological state that is very similar to indirect intent but the offender is not aware that if the event takes place there is a high probability that it may result in the death of people and he doesn t accept the consequences that the possible outcome of the harmful event is the death of one or more persons. Under negligence with the aggravating circumstance of foreseeability, the offender does not accept the consequences of death caused by the misconduct and is reasonably confident that such consequences would not take place. The psychological situation of the offender is very important. For instance when an accident in the streets happens, a car crash, and the driver was drunk, sometimes the courts in Italian cases applied the indirect intent and sometimes the negligence with the aggravating circumstance of foreseeability: it depends on the cases, on the psychological status. 6

7 As I said, in the second degree the indirect intent was not confirmed by the court and was reduced to negligence with consciousness. Nevertheless, even the negligence with consciousness should not be underestimated because it involves really higher levels of responsibility than the normal level of negligence that has been mostly applied in the past. Now we can not neglect to mention the crime of intentional removal or omission of protection against disasters or injury in the workplace, applied - in the second degree of the trial - to all the six managers condemned besides to manslaughter with consciousness. It provides a really high responsibility, because this crime is not committed by negligence but, according to the law, it is intentional: it is caracterised by a willfull misconduct. During the last 3 or four years this provision was applied in the case of Thyssen, of Eternit of Casale Monferrato, of Ilva of Taranto, in this last two cases also besides to causing environmental disaster (art. 434 par. II of the Penal Code). And, in the past, that provision was applied to Enichem of Porto Marghera and to Ilva again and in many other cases... That crime involves the penalty of imprisonment ranging from 3 to 10 years (art. 437 par. II of the Penal Code). This crime is sometimes forgotten because in Italy we usually pay more attention to other crimes that are applied more frequently, like manslaughter, but we had better not to forget it, because the level of the penalty is very very high. But, let s come back to Turin Court Findings. In order to draw an understandable and clear difference between indirect intent and negligence by consciousness, the court suggested imagining what would be the behaviour of the offender if he knew that one or more persons were certain to die as a consequence of a very highly probable harmful event. If the offender decided to carry on with the same omissive behaviour in this situation, then the offender s psychological element can be construed as indirect intent (imputed intention to commit a crime). On the other hand, if the offender would change behaviour in order to try to avoid deadly consequences due to misconduct, then the behaviour would be construed as negligence by consciousness. In Italian doctrine, this is named FRANK FORMULA. Moreover, the Court s decision included relevant monetary compensation for the local authorities, associations and private individuals. 7

8 In the second degree the Court of Turin, like in the first degree, condemned also the legal entity Thyssenkrupp s.p.a. for the adiministrative liability provided by the law decree 231/ million euros as a fine, (as forfeiture) and a few disqualification sanctions: ban on advertising goods or services (for 6 months), exclusion from benefits, loans, contributions or subsidies (for 6 months), publication of the sentence. Let s say something about this kind of liability. Legislative Decree No 231/2001 introduced into Italian law the particular legal concept of administrative liability on the part of legal persons that may be incurred as a result of criminal acts. Under a system such as that established by Legislative Decree No 231/2001, a legal person s liability is categorised as administrative, indirect and subsidiary and is different from the liability in criminal law of a natural person who committed the unlawful acts. This Legislative decree provides that the administrative liability is applied when the crime of Manslaughter or assault causing severe, or very severe, injury, committed in breach of the provisions on the protection of health and safety at the workplace was committed in the interest or to the benefit of the company. The natural persons who, as material perpetrators of the offence, involve liability of the company, are: persons acting in a representative, administrative or managerial capacity for the body or for an organisational entity having financial and operational autonomy within the body and persons acting as the managers de facto and supervisors of the body; persons acting under the direction and control of those. The body shall not incur liability if the persons acted in their own interest or in the interest of a third party. So, if the company is not able to demonstrate that the management body adopted, and effectively applied, before the offence was committed, organizational and managerial systems capable of preventing offences of the kind of the offence committed, that the task of monitoring the proper functioning of and compliance with the systems and of ensuring that they are updated has been entrusted to a unit within the body which has independent powers of initiative and supervision, and a few other circumstances that it would be long to analyze, the company itself is brought to the trial. And it s very similar to a criminal liability because the legislative decree 231/01 provides that: 8

9 - the provisions laid down in the Criminal Code of Procedure, shall be applicable to proceedings concerning administrative offences constituted by criminal acts. - the provisions concerning the accused person shall apply to the body, in so far as applicable. - jurisdiction in respect of the administrative offences of the body in question lies with the criminal court having jurisdiction in respect of the criminal acts that form the basis of the administrative charges. So, when an accident at work or an occupational disease happens, the public prosecutor s detailed preliminary charge also can seek the indictment of the legal person, called to answer the charge of an administrative offence. And this happened also in the case of the fatal accident of Molfetta (near Trani) occurred in the march Specifically, in the municipality of Molfetta a fatal accident occurred that caused the death of four workers deputed to the cleaning of a tank car owned by the company FS Logistica, part of the Italian Railways Group. The tank was used for the transportation of liquid sulphur produced by Eni in the Refinery of Taranto and destined to the client company Nuova Solmine. Consequently a criminal action commenced against some employees of Fs Logistica and of its broker "La Cinque Biotrans" and, under the provisions of Legislative Decree 231/2001, against the two above mentioned companies and the company responsible for the clean-up of the tank car Truck Center. On the 26th of October 2009, the first degree Court sentenced that both the above mentioned persons and the three companies were guilty of the charged responsibilities. Additionally, the documentation related to the trial was forwarded to the Public Prosecutor of Trani in order to ascertain the eventual responsibilities of Eni and Nuova Solmine employees in relation to the fatal accident. That documentation was also forwarded to the Public Prosecutors of Taranto and Grosseto (competent for Nuova Solmine) in order to ascertain eventual irregularities in the procedures of handling and transporting liquid sulphur. Following the sentence, the Public Prosecutor of Trani commenced an investigation against a number of employees of Nuova Solmine and an employee of Eni s Refining & Marketing division, responsible for marketing liquefied sulphur. The 14th of April 2010, the judge for preliminary hearings notified to the Eni s employee a request of extension of the preliminary investigations. The 11th of May 2010, eight employees of Eni SpA and a former employee were notified the closing of the investigation that objected the manslaughter, grievous bodily harm and illegal disposal of waste materials. 9

10 No compliance programme had been adopted by any company. At the end of the first degree of the trial, 3 companies were condemned and he following fines were applied to those companies: (FS) (La Cinque Biotrans-contractor) (Truck Center-subcontractor). Now, I would like to conclude by talking about the Eternit trial of Casale Monferrato. As Laurie Kazan-Allen wrote, the Great Asbestos Trial of individuals implicated in this scandal has achieved an iconic status not only for the crimes it has exposed but also for what it has revealed about the way corporations make life and death decisions. What makes this trial (Casale) unique is the sheer size of the judicial effort and the number of victims involved. It is the first time that representatives of the Eternit group s top decision-makers have been indicted for the consequences of what they have done in a particular country. This gives the trial transnational importance. The Eternit case is special because of the sheer size and numbers: the number of plants involved, the number of injured parties. The criminal case against the Eternit executives includes the following charges: manslaughter, actual bodily harm, causing a disaster, intentional removal or omission of protection against disasters or injury in the workplace. The choice to proceed with the accusations of disaster and intentional removal or omission of protection against disasters or injury in the workplace is very important and later it was also applied to Ilva of Taranto. The Eternit trial in Turin represents a judicial turning point in the international history of cases against asbestos industrialists. It targets the strategic behavior of a few heads of multinational asbestos firms, those who organized the internationalscale disinformation campaign on the health effects of asbestos that led to disaster not only in Italy but everywhere that asbestos was being used. As Fabrizio Meni wrote, the legal duty to ensure a healthy and safe workplace derives from a body of health and safety at work legislation. There is a fairly consistent body of case law to say that such a duty of safety existed where there was sufficient scientific knowledge about the consequences of exposure to asbestos. The Supreme Court has always been clear that an employer s duty of care included taking all technically possible preventive measures and was not limited to mere compliance with statutory limit values. The Turin judgement is based on two types of offence. 10

11 Article 434 of the Penal Code, that contains the offence of malicious commission of a disaster, id est., a tortious act or omission which caused an outcome foreseen and desired by the person committing it. Article 437 deals more specifically with working conditions and concerns the intentional removal or omission of protection against disasters or injury in the workplace. More than technical issues about the definition of offences, this approach focuses on the collective aspect of business, technical and work organization choices by Eternit top management; Disaster as a concept goes beyond just multiple unlawful deaths. 11