Historical Pollution Under Scrutiny in the Italian Criminal Case Law

In the absence, at least until recently, of a comprehensive system for environmental protection in Italy, the case law has mainly reverted to the offenses against public safety foreseen by the Italian Criminal Code, in order to meet the protection needs arising in the context of cases of historical pollution. In particular, the offenses of Unnominated disaster and of Water poisoning , provided for, respectively, by Articles 434 and 439 of the Italian Criminal Code, appear to be the most recurring. With regard to the Testo Unico Ambiente (Legislative Decree of 3 April 2006, n. 152) the most significant issues arising within the case law and concerning historical pollution relate to the misdemeanor under Article 257 (Failure in remediation proceedings). In the following sections, cases identified either as leading cases or as in any event particularly representative of the phenomenon will be briefly set out. The analysis conducted on the case law brings to light a considerable number of questions pertaining to various topics in criminal law: from the culpability principle to succession in duty of care and the selection criteria for punishable conduct. The description of leading cases is followed by a short analysis of five hypothetical scenarios, related in various ways to the phenomenon of historical contamination and characterized by an increasing level of harmfulness. To each scenario we try to give possible solutions, based on the case law examined and the statutory framework. As every situation typified within each scenario reflects a mere abstract hypothesis, whose evaluation under Italian criminal law could change according to the concrete facts that may actually occur, the principles listed in Sects. 2.1–2.5 have to be considered as general guidelines and not as specific directions.