United Sections

Culpable epidemic, the Supreme Court broadens liability

For judges, fault can also be associated with preventive omissions. Compared to the past, aspects of health risk management are prevalent

by Alessandro Galimberti

29 July 2025

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Culpable epidemics can also be caused by misbehaviours of omission, such as the failure to distribute protective equipment to hospital staff or the lack of training of staff who have to deal with the containment of the spread of germs.

The United Criminal Sections of the Supreme Court, in their ruling 27515 deposited yesterday, intervene on the slippery subject for health administrators (and not only) of the culpable and omissive responsibility in the failure to counteract epidemics.

The affair

The case was triggered by the Sassari public prosecutor against the acquittal of the safety delegate of the Alghero hospital, where in the first weeks of the Covid emergency - between March and April of 2020 - a terrible epidemic had spread, caused, according to the prosecution, by the failure to distribute protective devices for workers and by the total unawareness ('lack of training') of the measures to prevent and combat the virus. The Court of Sassari, in applying the case in point, had noted that the crime of 'epidemic' (Article 438 of the Criminal Code) is of a restricted form and, given its wording ('through the dissemination of pathogenic germs'), cannot contemplate the omissive form - and therefore the charge pursuant to Article 40 paragraph of the Criminal Code.

The acquittal verdict was appealed per saltum in the Cassazione by the local public prosecutor, who, among other reliefs, argued that the offence in question was wrongly qualified as 'restricted form', since the 'diffusion of germs' would in fact be a mere linguistic locution accompanying a concept ('epidemic') that was already sufficiently clear and intelligible, and which would leave the framing of the criminally relevant conduct ('free form') to the interpreter. On this point, however, the orientations of legitimacy - substantially only two - had over time produced a restrictive interpretation on which the curtain fell yesterday by the United Sections.

The Historical Perspective

The starting point of the panel chaired by Margherita Cassano is from a historical perspective: the 1930 legislator had for reference the bacteriological weapons used in the early years of that century on various scenarios, conduct on which he had modelled the rule. However, already here the Court emphasises that it is not 'the conduct' that is bound, but only 'the means by which the event occurs'.

According to the United Sections, wanting to frame the 'spread of pathogenic germs' as the conduct of the offence, and not instead a mere description of the event, one ends up configuring an extremely selective hypothesis of the offence, and above all based on the 'possession'/availability' of the pathogenic element - thus excluding any culpable hypothesis, even before omissive. Here, however, the preparatory works of 1930 cannot come to the rescue, as they are too closely linked to that historical moment - works that, in any case, must never be 'exegetical constraints', on pain of elevating them to the rank of authentic interpreters.

L’attualità

But it is precisely the contemporary legislator, and precisely in the matter of Covid, who broadened the perimeter of the offence, freeing it from the constrained form and intent: in Decree 33 of 2020, in fact, failure to comply with confinement can turn into the more serious offence of Article 452 of the penal code (culpable epidemic). Moreover, the rapporteur emphasises, if the crime were to be confined to whoever is 'in possession' of the germs, it would end up delineating a crime 'proper or with restricted subjectivity', in conflict with the common nature of the case delineated by the incipit 'anyone' indicated by the rule. Lastly, the correlation with the protected legal asset - public safety - necessarily points towards a reading of the damaging conduct as 'free form'. Ultimately, according to the Supreme Court, this is a rule that emphasises the event and not the conduct, and that protects a primary legal asset through the provision of free and causally oriented conduct.

Having traced these limits. the United Sections cannot but open to the application of culpable conduct by omission because 'in the current socio-scientific-technological context, the implications of the epidemic increasingly evoke the profiles ofhealth risk management' inevitably almost always linked to culpable and omissive conduct.