4. Historical Pollution and the Prominence of Criminal Law Enforcement in Italy

In brief, the accident unfolded as follows: a chemical reaction led to a rapid rise in temperature of a particular chemical process, and consequently a relief valve failed in one of the reactors. The resultant toxic release extended forty metres into the air and scattered across the surrounding area, affecting the populations of neighbourhoods in the vicinity. The disaster is referred to as the Seveso case due to the name of the municipality whose population suffered the most severe consequences, but other communities were impaired by the toxic cloud as well (Meda, Desio, Cesano Maderno, Barlassina, Bovisio-Masciago). For a detailed description of the accident, see Pozzo (2008, pp. 5 ff).

The link between the Seveso accident and the implementation of the Directive can be inferred from the short presentation available on the institutional European Commission website: “From disasters to success. In Europe, the catastrophic accident in the Italian town of Seveso in 1976 prompted the adoption of legislation on the prevention and control of such accidents. The so-called Seveso Directive (Directive 82/501/EEC) was later amended in view of the lessons learned from later accidents such as Bhopal, Toulouse or Enschede resulting in the Seveso-II (Directive 96/82/EC). In 2012 Seveso-III (Directive 2012/18/EU) was adopted, taking into account, among others, the changes in the Union legislation on the classification of chemicals and increased rights for citizens to access information and justice. It replaces the previous Seveso-II Directive. The Directive now applies to more than 10,000 industrial establishments in the European Union where dangerous substances are used or stored in large quantities, mainly in the chemical, petrochemical, logistics and metal refining sectors. Considering the very high rate of industrialisation in the European Union the Seveso Directive has contributed to achieving a low frequency of major accidents. The Directive is widely considered as a benchmark for industrial accident policy and has been a role model for legislation in many countries world-wide” (“Industrial Accidents,” website of the European Commission, environment subsection: http://​ec.​europa.​eu/​environment/​seveso/​).

For a deeper analysis, see Chap. 3 in this volume.

Indeed, the conflict of basic interests, namely the protection of the environment or human health on the one hand, and the need to increase or preserve employment on the other, is a frequent point of issue in this field, and emerges in more recent episodes of relevant environmental pollution. In fact, the same dynamic seems evident also in the current Italian case of Taranto, where an iron and steel plant and its CEOs have been criminally charged for the long-term pollution of the ecosystem. In terms of social consequences, it is easy to see how the population has been divided into two groups: those who want the production to close in order to protect the health of the neighbouring community, and those who want the industrial activity to continue in order to preserve local employment (Rotolo 2014, pp. 397 ff.).

In the clinical field the incidence of toxicity has also been studied and verified in the long term. In particular, the carcinogenic nature of dioxins has been confirmed: the cohort study on the population of Seveso massively exposed to TCDD outlined “an excess risk of lymphatic and hematopoietic neoplasms” together with “an elevated risk of breast cancer” (Pesatori et al. 2009, p. 9). Moreover, polychlorinated dibenzo-p-dioxin (PCDD) has been included in the range of permanent organic pollutants (POPs) provided by the Stockholm Convention (Council Decision 2006/507/EC of 14 October 2004), in order to circumscribe the production and release of toxic substances which certainly harm human health and the environment. In brief, 2,3,7,8-tetrachlorodibenzo-p-dioxin (TCDD), which is the toxic chemical released through the accident that occurred in Seveso, can be considered “the most toxic congener in the family of polychlorinated dibenzo-dioxins, PCDD” (Pesatori et al. 2009, p. 2).

See Chap. 3 in this volume.

See Chap. 5, Sect. 1.1 of this volume.

The Taranto case has not been considered among the class of historical pollution cases, although it has several of its basic features. Rather, it can be interpreted as a case of cumulative pollution, mainly due to the activity of a steel and iron plant which started in the early 1960s; other sources of contamination can be identified in the petrochemical activities related to the refinery which operates in that area, and the commercial harbour. Nevertheless, we refrain here from discussing this case along with the class of historical pollution cases, for two reasons: first, the industrial activity is currently ongoing; second, the absence of judgments on responsibility for the contamination (the ruling so far pertained only to preventive seizures). For a complete description of the case and of the respective judicial proceedings, see Ruga Riva (2015c).

For a historical analysis of one of the most relevant cases of pollution carried out over almost an entire century, see Ruzzenenti (2001), who makes free use of the term inquinamento storico (lit.: historical pollution) (pp. 522 ff.).

Different scenarios and the legal enforcement that pertains are described by Venturato and Greco in Chap. 5 of this volume. See also Chap. 3 in this volume.

Further aspects are presented in detail in Chap. 7 of this volume, see in particular Sect. 3.2.

The complete wording of the first paragraph of the provision follows: “Upon the occurrence of an event that has the potential to contaminate the site, the polluter implements within twenty-four hours the necessary measures to prevent and immediately notifies pursuant to and in the manner provided for in Article 304, paragraph 2. The same procedure applies to the act of discovery of historical contamination that could still pose a risk of aggravation of the situation of contamination.”

See the judgment of the local administrative court of the Italian region Lombardia, TAR Lombardia, Milan, s. I, 19 April 2007, n. 1913, which emphasizes the requirement of the identity between the party who polluted the site and the one who currently holds it, and also underlines a key chronological aspect: the application of the rule cannot be extended to cases of pollution that occurred when the regulation did not exist, except if the parties who polluted and who currently own the site are one and the same. The judgment is commented on by Vanetti (2007, pp. 1081 ff).

The provision was modified through the Law of 22 May 2015, n. 68. The complete text of the misdemeanour, in its earlier version, is as follows:

See the case described in Sect. II of this chapter, Chap. 5, Sect. 1.6.

According to Art. 2.1 of the Italian Criminal Code: “No one may be punished for an act which did not constitute an offence according to the law in force at the time it was committed.” This quotation, as well as further norms reported in this essay, is drawn from the Italian Criminal Code, as translated by Wise (2005).

Tribunale di Cremona, 18 July 2014, Judge. Salvini, p. 121, p. 134, p. 340; Corte d’Assise di Chieti, 19 December 2014 (ud.), n. 2, p. 127, p. 128, p. 170, p. 171. Both cases to which the judgments refer are discussed by B. Venturato and E. Greco in Chap. 5 of this volume, respectively, Sects. 1.2 and 1.4.

In both cases, the first instance judgement has been appealed and the relevant Courts of Appeal have issued their decisions (whose full opinion is not yet available). From publicly available information, it would appear that, in the Cremona Petrochemical Plant case the Court of Appeal (Corte d'Assise d'Appello di Brescia) confirmed the conviction of one of the defendants (the company's CEO) while it acquitted all the others. The Court also confirmed the first instance sentencing to pay damages arising from the contamination to the civil claimants. With respect to the Bussi sul Tirino case, the Court of Appeal (Corte d'Assise d'Appello dell'Aquila) partially overruled the first instance judgement—which had acquitted all of the defendants—convicting ten out nineteen of them in relation to the unintentional disaster allegations, although the relevant convictions were then declared subject to pardon (indulto). The Court also sentenced the convicted defendants to pay damages to the civil claimants for an overall amount of approximately 4 million euro. Further details on these recent developments may be found in the next Chapter authored by B. Venturato and E. Greco at sections 1.2 and 1.4.

See Sect. 4.

Shall be punished by imprisonment from two to six years and fine from €10,000 to €100,000 anyone who unlawfully causes significant and measurable impairment or deterioration:

When pollution is produced in a protected natural area or in an area subject to landscape, environmental, historical, artistic, architectural or archaeological constraint, or is produced against protected animal or plant species, the penalty is increased.

Apart from the cases designated in the art. 434, whoever unlawfully causes an environmental disaster, shall be punished by imprisonment from five to fifteen years. Alternatively constitute disaster:

When disaster is produced in a protected natural area, or in an area subject to landscape, environmental, historical, artistic, architectural or archaeological constraint, or against protected animal or plant species, the penalty is increased.

In fact, Art. 257 TUA talks about excessive risk, but does not refer to the actual causing of environmental harm.

Whoever fails to install appropriate equipment, apparatus or signs for the prevention of industrial accidents or disasters, or removes or damages the same, shall be punished by imprisonment for from six months to five years. If the act results in a disaster or accident, the punishment shall be imprisonment for from three to ten years.

Whoever by negligence causes the death of a person shall be punished by imprisonment for from six months to five years.

[…]

In the event of the death of more than one person, or of the death of one or more persons and personal injury to one or more persons, the punishment applied shall be that which should be inflicted for the most serious violation committed, increased by up to one-third, but this punishment may not exceed fifteen years.

Whoever by negligence causes personal injury to another shall be punished by imprisonment for up to three months or by a fine of up to €309.

If the injury is serious the punishment shall be imprisonment for from one to six months or a fine from €123 to €619; if it is very serious, imprisonment for from three months to two years or a fine from €309 to €1239.

[…]

In the event of injury to more than one person, the punishment applied shall be that which should be inflicted for the most serious violation committed, increased by up to one-third; but the punishment of imprisonment may not exceed five years.

Of course, the voluntary provisions (respectively, Art. 575, Homicide and Art. 582, Personal injury) are not considered in this perspective, as it can be assumed that—at least normally—the event is not intentionally caused.

“Whoever, apart from the cases designated in the preceding Articles, commits an act aimed at causing the collapse of a structure or any part thereof, or any other disaster, shall be punished, if his act results in danger to the public safety, by imprisonment for from one to five years. The punishment shall be imprisonment for from three to twelve years if the collapse or disaster occurs.”

“Whoever, apart from the cases designated in the second paragraph of Art. 423-bis, through negligence, causes a fire or other disaster designated in the first Chapter of this Title, shall be punished by imprisonment for from one to five years. The punishment shall be doubled in the case of a railway disaster or shipwreck or sinking of a ship used for transporting persons or the crash if an aircraft used for transporting persons.”

“Whoever poisons water or any substance which is to be used as food, before it is drawn or distributed for consumption, shall be punished by imprisonment for not less than fifteen years.If the act results in the death of any person, life imprisonment shall be imposed […].”

“Whoever commits, through negligence, any of the acts designated in Articles 438 and 439 shall be punished: […] 2. by imprisonment for from one to five years, in the cases for which these prescribe life imprisonment; 3. by imprisonment for from six months to three years, in the case for which Article 439 prescribes the punishment of imprisonment.”

Such terminology, where the adjective Unnominated stands for nameless, gives no characterization of the context and is meant to focus on the generality—namely the broadness—of a disaster as its peculiar feature, so as to distinguish that crime from other provisions on disasters which refer particularly to specific material contexts: Massacre, Art. 422 Criminal Code; Arson, Art. 423 Criminal Code.; Flood, landslide or avalanche, Art. 426 Criminal Code; Shipwreck, sinking or aviation disaster, Art. 428 Criminal Code; Railway disaster, Art. 430 Criminal Code; and so on.

As Chapter I—Title VI of the Italian Criminal Code (where Art. 434 Criminal Code is located)—is entitled. After all, the necessary consistency of Unnominated disaster with common features of the other crimes collected in the same chapter can be deduced by the Ministerial Report which introduces the Italian Criminal Code, according to which that crime was required to answer to all the factors that could endanger public safety, and which could emerge in the future in line with industrial and technical development (see Ardizzone 1989, p. 274).

In other terms, that interpretation has to be evaluated as correct only when the material case concerns the category of accidents, since under those circumstances a sudden episode normally causes an immediate and acute danger to public health, although combined with long-term consequences to the extent that such an effect consists also in the form of danger to public safety (as in the case of the Seveso disaster).

See Chap. 5 in this volume.

Art. 1 Criminal Code; Art. 25, para. 2, Constitution Cost.

More precisely, in two relevant judgments the Court inaugurated the more nuanced interpretation of that principle: Italian Constitutional Court Judgment. 364/1988, Italian Constitutional Court Judgment. 1085/1988.

Consistent with the interpretation of the Constitutional Court, according to which it is necessary to prove only that there is danger for an indeterminate range of people.

For more details, see Chap. 5, Sect. 1.1 in this volume. For a recent and complete analysis of the case which focuses particularly questions of causation, see Vallini (2015, p. 25 ff).

The point is even more pertinent given that the local court of Venice argued that Arts. 434 and 439 Italian Criminal Code are examples of the most anticipated protection (reati di pericolo astratto), so that in order to prove the crime itself it would be sufficient to prove the correspondence of the material fact with the legal provision. That would imply that it is not necessary to verify the material occurrence of the danger (see Tribunale di Venezia, 29 May 2002, pp. 497–498). Note also that the Italian Constitutional Court judgment n. 327/2008, which has been already analysed, gives a quite different interpretation of the crime structure.

See Cassazione penale, Sezioni Unite, 10 July 2002, n. 30328.

For a recent application of such criteria to a case of historical pollution (also known as the Tirreno Power case), see Tribunale di Savona, 11 March 2014, p. 18.

For a different opinion, consistent with a rather different definition of the general regulation of proof of causation, see Masera (2014, p. 343 ff).

See Sect. 1.5 of Chap. 5 in this volume.

For the similarities between environmental harms and toxic tort suits, see Note 2015, pp. 2256–2257.

Tribunale di Torino, 13 February 2012, Pres. Casalbore; Corte d’Appello di Torino, 3 June 2013; Cassazione penale sez. IV, 23 February 2015, n. 7941.

For several examples in this respect, see Tribunale di Savona, Ufficio del Giudice per le indagini preliminari, 1 March 2014; Tribunale di Taranto, Ufficio del Giudice per le indagini preliminari, 25 July 2012; Tribunale del Riesame di Taranto, 7 August 2012, sez. feriale.

Consider here cases of life or personal health impairment.

See Chap. 5 in this volume, respectively, Sects. 2.4 and 2.3.

Tribunale di Cremona, 18 July 2014, Judge Salvini; Corte d’Assise di Chieti, 19 December 2014 (ud.).

This point also includes cases at issue as regards historical pollution. In fact, in the decision on the Cremona Petrochemical Plant case, several arguments were advanced that it was not to be considered a case of historical pollution, since the contamination had not been inherited from the past, due to the fact that different companies had succeeded each other on the same property (Tribunale di Cremona, 18 July 2014, p. 134 ff.). After all, in the light of the definition of historical pollution adopted in the present research, groundwater contamination has to be the result of a diachronic causal process, which as a consequence could emerge only after a long period and after a prolonged state of latency (as the judgment also recognizes: p. 385).

Although not for all the defendant parties.

For aspects concerning corporate liability, see Chap. 6 in this volume.

For the relevant case law, see Chap. 5, Sect. 2.6 in this volume.

Decision ECJ, 4 March 2015, proceeding C-534/2013.

The full text of the provision is as follows:

When, in a crime of negligence, the event has been brought about through the collaboration of more than one person, each of them shall be subject to the punishment described for that crime.

The punishment shall be increased for anyone who has induced others to collaborate in the crime when the conditions prescribed in Article 111 and in subparagraphs (3) and (4) of Article 112 are present.

The period of limitation shall run, in the case of a completed offense, from the day of consummation; in the case of an attempted offense, from the day on which the offender ended his activities; in the case of a persisting or continuing offense, from the day on which its persistence or continuation ended.

When the law makes punishability for the offense depend on the occurrence of a subsequent condition, the period of limitation shall run from the day on which the condition occurred. However, in cases of offenses punishable on complaint, petition or demand, the period of limitation shall run from the day the offense was committed.

See Chap. 5, Sect. 2.5 in this volume.

Consistent with this interpretation, see Tribunale di Torino, 13 February 2012, p. 509 ff.

As a consequence, the end of the period of perpetration coincides with the end of the statistical excess in disease or death, according to the relevant epidemiological studies. See Corte d’Appello di Torino, 3 June 2013, p. 588.

Clearly, environmental contamination can also cause health disasters. In this perspective, it is worth pointing out the new crime introduced under Art. 452-ter Italian Criminal Code, Death or injury as a result of the crime of environmental pollution. Of course, the offence also requires proving causation between the illegal behaviour (independently relevant as Environmental pollution, under Art. 452-bis Italian Criminal Code) and the harm, in terms of injury or death.

See Sect. 3.

Attention will be focused especially on causation and the statute of limitation, since these represent the most pertinent traits within the new regime, but this shall not preclude interest in aspects concerning mens rea and the possible extension of personal responsibility to several parties over time. The critical aspect regarding both these latter points is the interpretation of a general rule given by the criminal courts, so that only an analysis of the forthcoming case law on the new crimes will enable the formation of any opinion. When it comes to the new legal regime, the introduction of negligent crimes under Art. 452-quinquies Italian Criminal Code will introduce an alternative criminal charge.

For more details, see Chap. 6 of this volume.