Incident involving death of an adult instructor and a 13 year near Naples Italy

[Diver0001]

Moderators have been informed and are discussing it. Carry on for now. The discussion is being waged respectfully and contains valuable information. There is no reason to wait for a decision before continuing the discussion.

R..

 

[wgw04024]

Informed and discussing what? Did I miss something?

 

[fsardone]

How were the 5 divers involved? Were they on the same boat and realized those 2 divers should of surfaced by then? Did the 5 divers see them enter the came? This seems kind of silly, and possibly is it simply following proper protocol in a situation like this and nothing more?

Bill

The relevant bit in the news article is:
I destinatari degli avvisi, a quanto si è appreso, sono cinque sub (di Pozzuoli, Baia e Bacoli) che stavano partecipando a immersioni nelle acque tra Vivara e Ischia quando avvenne la tragedia. L'ipotesi si fonda sulla circostanza che i sub avrebbero dato l'allarme senza però, prima dell'arrivo dei soccorsi, operare un tentativo di salvataggio

In brief: They are investigated because these divers (there are no details here but I believe from some other news coverage they were diving in the area but from a different boat and they noticed the SMB of the deceased there for a time longer than needed to exhaust reasonable air ...) called for rescue but without attenpting themselves to rescue the distressed and (in my opinion already deceased) divers.

 

[Diver0001]

Informed and discussing what? Did I miss something?

The thread was reported with the question being posed if it should be split or not. Deciding that will take a little time but I was saying not to wait on moderators, just carry on for now.

 

[fsardone]

Informed and discussing what? Did I miss something?

Possibly the need to split the thread between the accident analysis and the legal ramifications.

 

[Diver0001]

The relevant bit in the news article is:
I destinatari degli avvisi, a quanto si è appreso, sono cinque sub (di Pozzuoli, Baia e Bacoli) che stavano partecipando a immersioni nelle acque tra Vivara e Ischia quando avvenne la tragedia. L'ipotesi si fonda sulla circostanza che i sub avrebbero dato l'allarme senza però, prima dell'arrivo dei soccorsi, operare un tentativo di salvataggio

In brief: They are investigated because these divers (there are no details here but I believe from some other news coverage they were diving in the area but from a different boat and they noticed the SMB of the deceased there for a time longer than needed to exhaust reasonable air ...) called for rescue but without attenpting themselves to rescue the distressed and (in my opinion already deceased) divers.

Is there anything in the law that says that someone cannot be legally required to endanger their own lives in order to save the life of another?

This is explicit in Dutch law, for example. It would (probably) be interpreted in the courts that if someone is not qualified to make a certain dive -- for example into a cave to perform a rescue or a body recovery -- that they cannot under any circumstances be held legally responsible for declining to do so. How does Italian law deal with that?

R..

 

[fsardone]

Is there anything in the law that says that someone cannot be legally required to endanger their own lives in order to save the life of another?

This is explicit in Dutch law, for example. It would (probably) be interpreted in the courts that if someone is not qualified to make a certain dive -- for example into a cave to perform a rescue or a body recovery -- that they cannot under any circumstances be held legally responsible for declining to do so. How does Italian law deal with that?

R..

You are not required to endanger yourself.
Problem is that diving is non-regulated in Italy and therefore there is no legal requirement to be certified to do any diving activities (certain zregions have regulated this for instructors and guides). So anybody is cleared for any dive if they dive on their own.

If these divers knew that the accident divers were in the cave, or they had insufficient gas (used in their previous dive for example) or they knew for certain they were already beyond rescue ... then they will be off the hook. But unfortunately they will go through the ordeal of being investigated and probably the need to prove that they could not have rescued the incident dovers without undue risk to themselves or the fact they were too late to make a difference.

 

[Diver0001]

I've heard this about the Italian legal system. It must be a burden on everyone when blame must always be assigned for fatal accidents.

To my mind, once the fatality has occurred then the highest possible priority must be given to avoiding additional victims. Nobody should be taking a risk at that point.

Having a legal system that assumes culpability by (distant) association seems set up to encourage people to put themselves at risk. .... or am I seeing that wrong?

R..

 

[wgw04024]

Maybe it's more to make people think twice about doing something stupid in the first place?

...and I know it's only my opinion, but I dislike the split threads. Everything related to an accident I'd prefer to stay in one thread. I honestly have a job, kids, other hobbies, etc and don't want to make a career out of navigating all over this HUGE (and great!) forum. Just mho.

 

[fsardone]

Hello Fabio,

I am afraid your explanation is not very accurate. "Omicidio colposo" (Codice Penale, art. 589) is a crime committed with "colpa", as opposed to "dolo". The concept of "colpa" is given on art. 43, which establishes the "elemento psicologico del reato". Applied to "omicidio", and simplifying things quite a bit, it means the agent did not intend to kill but acted negligently and provoked someone's death. The corresponding crime in common law systems, to the best of my knowledge, is "involuntary manslaughter".

Chiunque cagiona per colpa [c.p. 43] la morte di una persona è punito con la reclusione da sei mesi a cinque anni. Roughly translates as:
Whoever causes by "colpa" wrongful act [As defined by Art 43] death of a person is jailed from 6 months to 5 years.

Art 43 for the part concerning wrongful act:
[The event/crime] Is not wanted by the agent and occurs due to negligence or imprudence or imperfection, or for non-compliance with laws, regulations, orders or disciplines

So we need to understand what is the violation of law, regulations, order or discipline that the prosecutors ascribes to the 5 other divers.
IMHO it will conclude with a decision not to proceed

Simply failing to give assistance to someone in need, not having caused the situation of risk, is the crime of "omissione di soccorso" (art. 593), with a higher minimum sentence if a death occurs ("(...) se ne deriva la morte, la pena è raddoppiata.").

There is the principle of specificity which applies here. A more specific crime has to be considered before a general one. So in mi view (and again I am not a lawyer) Omissione di soccorso (which includes the possibility of death) is more specific and should take precedence over Omicidio Colposo.
The big issue here is that to be omissione di soccorso, the agent has to have "sensorial contact" with the victim (see it or touch it, knowledge is not enough) therefore it might not meet the requirement to be omissione di soccorso since they only had knowledge but missed the view of the distressed victims. So this case might fall under the more general crime of Omicidio Colposo if there is any "law, regulations, order or discipline" that have been violated.

Cheers