e214 G. Montanari Vergallo et al. Review Clin Ter 2017; 168 (3):e214-219. doi: 10.7417/T.2017.2009 Italian law on the vehicular homicide: medical legal issues and comparative analysis G. Montanari Vergallo1, E. Marinelli1, N.M. di Luca1, V. Masotti2, R. Cecchi2, S. Zaami1 1Department of Anatomical, Histological, Medicolegal and Orthopaedic Sciences, “Sapienza” University of Rome, Rome; 2Depart- ment of Biomedical, Biotechnological and Translational Medicine, University of Parma, Parma, Italy Abstract the need to introduce more effective tools for prevention and repression. According to the World Health Organization, Law no. 41/2016, enacted after a parliamentary debate characte- road accidents are the ninth cause of death among adults, rized by a strong media pressure, intends to give a strong response to the first among youths aged fifteen to nineteen and the the growing social alarm caused by road accidents causing deaths. In second among adolescents aged ten to fourteen and young this perspective, it introduced the categories of road homicide and road adults aged twenty to twentyfour. In Italy, in 2014 there injuries within the Penal Code and the new hypotheses of mandatory were 177.031 road accidents resulting in injuries, which and facultative arrest in flagrante delicto. brought about 3.381 fatalities and 251.147 people injured. This paper aims at comparing the rules by which the United King- Compared to 2013, the number of accidents decreased by dom, France, Spain, Germany and Italy protect people’s lives and safety 2,5%; the amount of injured by 2,7% whereas the number of vehicular traffic in order to highlight strengths and weaknesses with of casualties dropped only minimally: -0,6% (1). Instead, in a view to future reforms. Europe according to the 2009 WHO “European status report A survey on the European legislature highlights that, while other on road safety. Towards safer roads and healthier transport”, countries tend to criminally sanction several dangerous driving con- every year in Europe about 120.000 people die as a result of ducts, Italy has preferred, on the one hand, to punish only with admi- road accidents, while 2.4 million sustain injuries (2). nistrative sanctions some violations related to reckless driving (with Even the European Union, on the basis of not encoura- the exception of driving under the influence of alcohol and drugs) and, ging statistics on vehicular accidents (1) since a long time on the other, to provide for particularly harsh prison sentences in the has been calling for a law to limit this type of criminal case of vehicular homicide. conduct. The authors criticize this approach and other aspects of the new For these reasons, on March 23, 2016 the Italian Parlia- law. Moreover, it seems that the legislator’s aim has not been achieved ment enacted Law n. 41 which introduced into the Italian because traffic accidents have not decreased. They also believe that legal regulations two new crimes, road homicide and road better results could be obtained by increasing controls on the roads and injuries, making changes to the Penal Code, the Criminal developing a policy of economical investments which improves road Procedure Code and the traffic laws (3). Before this reform, safety.Clin Ter 2017; 168(3):e214-219. doi: 10.7417/CT.2017.2009 such conducts were covered by the general rules applicable to all homicides and unintentional injuries (art. 589, para- Key words: road homicide and injuries, driving under the influence graphs 2 and 3, P.C., art. 590, paragraph 3, P.C.). However, of alcohol and drugs, Law, Italy, United Kingdom, France, Spain these crimes provide for sanctions that, in most cases, seem and Germany unable to adequately punish reckless drivers. In fact, penalty for manslaughter is determined by the court from a mini- mum of six months to a maximum of five years. Usually Introduction the judges, in assessing such offences, inflicted penalties considered by the public opinion not adequate to the crime. Road accidents are very common across Europe and By this law the legislator intended to sanction conducts that lead to a loud alarm in public opinion, especially if caused endanger people safety and emphasize the value of life and disregarding road rules and under the influence of alcohol physical integrity of injured people (4). or illegal drugs. In Italy for these accidents the civil society A few months after the law has been enacted, it is already and, for some years, both associations of road accident possible to make some considerations also by comparing it victims and professionals in the field have been expressing with the rules in force in other European countries. Correspondence: Gianluca Montanari Vergallo, Department of Anatomical, Histological, Medicolegal and Orthopaedic Sciences, “Sapienza” University of Rome, Viale Regina Elena 336, Rome, Italy. E-mail: [email protected] Copyright © Società Editrice Universo (SEU) ISSN 1972-6007 Italian law on the vehicular homicide: medical legal issues and comparative analysis e215 The “road homicide” and “road injury” offences Refusal to undergo the alcohol test (art. 589-bis and 590-bis p.c., introduced by art. 1, law no. 41/2016) If drivers found guilty in the accident refuse to undergo the test to verify whether they were under the influence of The “road homicide” offence is attributable to any alcohol or psychotropic substances (7), the prosecutor may person who by negligence causes the death of a person order the coercive sampling of their hair or oral mucosa, if violating the rules on road traffic. Penalties vary depending he considers that the delay in performing the analysis could on the presence of aggravating circumstances. Punishment jeopardize the investigation. The decision may be transmit- provides for imprisonment from two to seven years in the ted orally; however, the decree must be validated in writing cases of not aggravated road homicide; imprisonment from and sent within 48 hours to the Judge for the Preliminary eight to twelve years, if the driver was under the influence Investigations and confirmed in the next 48 hours (8). of alcohol or drugs. In particular in the first case, it should In urgent cases the judicial police officers may accom- be ascertained if the alcohol concentration per liter exceeded pany the driver to the nearest public health facility. In this 1.5 grams. If it proved to be higher than 0.8 and not higher case they must advise the driver’s attorney who has the than 1.5 grams per liter, imprisonment is sentenced to a right to attend the above mentioned test (art. 359 bis of the lesser extent (five to ten years). Criminal Procedure Code). “Road professionals” (truck drivers, taxi drivers, etc.) are punished with more severe penalties even if the alcohol concentration is higher than 0.8 grams per liter and not European legislation higher than 1.5 grams per liter. In such cases, the reform provides for the mandatory Some European countries have enacted specific laws to arrest inflagrante delicto. penalize road homicides. Furthermore, regardless of whether alcohol or illegal drugs In the UK, homicide committed while driving a vehicle have been taken, the law considers aggravating circumstances constitutes a separate offense from the common manslau- other imprudent conducts (speeding, crossing intersections ghter. For deaths resulting from road accidents the law with the red light, travelling on the wrong side of the road, (9,10) provides for two decreasing levels of punishment U-turn near or at the intersections, bends, humps, reckless depending on the severity of the driving conduct: 1) dan- overtaking in the presence of pedestrian crossings or a conti- gerous driving; 2) careless and inconsiderate driving. They nuous central line). These traffic offences entail the following are both expressed in very generic terms. The following sanctions: imprisonment for a period varying from five to ten are examples of careless and reckless driving a) aggressive years (art. 589-bis, paragraph V, P.C.) as well as additional driving (such as sudden lane changes or cutting into a line of sanctions such as a driving disqualification order and the ban vehicles); b) speeding; c) disregard of traffic lights and other to apply for a new up to a maximum of fifteen years (thirty road signs which, on an objective analysis, would appear years if the driver left the scene of the accident) (5). The same to be deliberate; d) driving when too tired to stay awake; approach, but with much lower penalties (from three months e) cell phone use “when the driver was unavoidably and to seven years imprisonment, as appropriate) was followed dangerously distracted by that use”. Conversely, a careless by the legislator when violating highway code rules causes and reckless driving consists, inter alia, in: a) overtaking serious injuries (i.e. inability to attend the ordinary activities on the inside or driving inappropriately close to another ve- for a period longer than forty days, or however a permanent hicle; b) inadvertent mistakes such as driving through a red or life-threatening damage) or very serious injuries. light or emerging from a side road into the path of another For all aggravated cases of serious and very serious road vehicle; c) short distractions such as tuning a car radio; d) injuries, the law provides for the optional arrest in flagrante flashing of lights to force other drivers in front to give way; delicto (art. 381, paragraph 2, of the Criminal Procedure e) driving that inconveniences other road users or causes Code, to which letter m-quinquies is added). However, dri- hazards such as unnecessarily remaining in an overtaking vers cannot be arrested if they stop, and if necessary, render lane (11). In the case of reckless driving, penalties charged assistance to the injured persons and are at disposal of the are: imprisonment up to fourteen years, at least two years of judicial police (art.