Nesso causale ed esposizione ad amianto. Dall' incertezza scientifica a quella giudiziaria: per un auspicabile chiarimento delle Sezioni Unite

The paper purports to highlight some of the difficulties associated with establishing causation in the context of criminal proceedings for asbestos-related manslaughters or injuries, which proceedings are frequent in Italy and expected to increase in the coming years. Following a thoroughgoing judgment by the Supreme Court on this matter, the Authors focus their attention on the validity of the “no-alternatives argument” while addressing at the same time the problems faced when attempting to identify causation in the specific case of mesothelioma. Based on the general credibility standards for scientific evidence, they concur with the Supreme Court to the extent that it concludes that, so long as scientific uncertainty as to the theory of the so-called “accelerating effect” remains, applicability of this theory at trial appears to be extremely problematic. By contrast, they disagree with the decision to the extent that it denies that such theory has ever been embraced by the Supreme Court in the past. Hence the plea for a clarification by the joint chambers of the Supreme Court on the current state-of-the-art as to the scientific acceptance of that theory. The Authors further argue that the conducts contested in proceedings for asbestos-related damages should be regarded as omissive in nature. As a result, they dismiss the opposite view adopted by the Supreme Court – which characterizes those conducts as active – as an evident exaggeration which leads to abusively simplify the proof of causality. They conclude by arguing that, in order to avoid wasting judicial resources and energies, these evidentiary difficulties should encourage prosecutors to attentively ponder whether the evidence that may be gathered in the individual investigation may realistically lead to charges that are capable to be upheld through the public trial.