Analysis of Judgment No. 36942 of 2024: Liability for Omission and Causal Link
Judgment No. 36942 of September 18, 2024, issued by the Court of Cassation, provides an important reflection on the theme of liability for omission, particularly in relation to the causal link. This decision fits into a complex legal context, where the determination of liability requires a rigorous analysis of omissive conduct and the consequences that arise from it.
The Principle of Liability for Omission
In matters of criminal liability, the Court clarified that the determination of the causal link in the case of omissive conduct must follow two distinct phases:
- Explanatory Judgment: it is necessary to reconstruct with procedural certainty what happened on a naturalistic level.
- Counterfactual Judgment: it must be assessed whether the omitted mandatory action, if carried out, could have prevented the harmful event.
The specific case concerned the death of a patient with severe heart conditions, for which the Court excluded the liability of the doctor who had performed a procedure to remove a stray gauze. The reason for this exclusion lies in the fact that the proof, beyond any reasonable doubt, that the death was attributable to the procedure itself had not been reached.
Analysis of the Legal Maxim
Liability for omission - Determination - Phases - So-called explanatory judgment - So-called counterfactual judgment - Consequences - Hypothesis. In terms of causal link, the determination, in the case of omissive conduct, must be carried out through a preliminary so-called explanatory judgment, related to the reconstruction, with procedural certainty, of what happened on a naturalistic level and a subsequent so-called counterfactual judgment, implicative or predictive, aimed at determining whether the omitted mandatory conduct, if performed, could have prevented the event, opposing the negative outcome of the explanatory judgment, even in the presence of negligent behavior, to the assertion of liability. (Hypothesis related to involuntary manslaughter, in which the Court deemed the decision that excluded the causal link of the death of a patient, suffering from severe heart conditions, to the procedure of removing a stray gauze in the intestine, immune from criticism, on the grounds that, in the absence of an autopsy, the proof that the death had occurred, beyond any reasonable doubt, due to the presence of the gauze or the removal procedure itself had not been reached).
Conclusions
Judgment No. 36942 of 2024 not only clarifies the principles of liability for omission but also emphasizes the importance of a rigorous determination based on concrete evidence. In a legal context where decisions can have significant repercussions, it is essential that legal practitioners understand the phases of evaluating the causal link, both explanatory and counterfactual. This judgment therefore represents an important step forward in jurisprudence and offers reflections for future similar cases.
