La responsabilità del vertice aziendale nella vicenda ThyssenKrupp tra "Formula di Frank" e recklessness

The dolus eventualis is an institute created doctrinally and jurisprudentially, on the border with conscious negligence, traditionally used by the jurisprudence to meet the needs of criminal policy in the presence of dangerous illegal activities. Recently, however, a new jurisprudence trend has been developed in order to apply the category of dolus eventualis also to other risk-based licit activities (eg, medical-surgical activity, traffic circulation and risky productive activities) in which, previously, it was considered almost automatically coincident guilt and failure in event prediction. The sentence with which the Court of Assizes of Turin has condemned the ceo of ThyssenKrupp ast for multiple manslaughter and arson – following the accident in which seven workers of the industry in Turin were killed – is the expression of this orientation of the courts. Addressing the mismanagement of the employer, the Assize of Turin has consistently applied the principle of effective delegation of tasks, considering ineffective a delegation that lacks in managerial and financial autonomy and that is not equipped with discharging effect against the employer’s responsibility for accident prevention. But in shaping the intentional responsibility (deceit) only for the ceo, courts have applied a jurisprudential track related to the dolus eventualis by the so-called Frank’s formula. According to this formula, the prediction of the possible event integrates the concept of deceit even if forecasting the same event as it certainly would not have retained the action-agent and would not take the significance of a decisive contrasting pattern. However, the so-called Frank’s formula is not convincing in any case: whether if we consider it as explanation of intentional responsibility, whether if we use it as tool to be used as proof of the intent. As matter of fact, that formula implies the replacement of a mere hypothesis of the real psychological attitude of the agent, which, even when used as a survey criterion and not as evidence, results in unnecessary and impossible probatio diabolica, producing risks of regression toward an “authorial” criminal law. The purely hypothetical nature of the justice, in fact, allows us to access the agent characteristics more then the intent of the fact. If you do not want sharing the doctrine based on the idea that the acceptance of risk can’t be considered the common element between dolus eventualis and conscious negligence. This represent an intent that fails, despite the odds, the subject acts (or omits to act) with the certainty of avoiding the event, the solution might be to predict, next to the intentional responsibility, a form of tort liability risk knowingly taken along the lines of recklessness in the criminal justice system of the various institutions of the English system or took en danger délibérée envisaged in the new French penal code and conscious desprecio por la vida de los Demas of the Spanish penal code.