Lessons galore in Italy’s rare case

By Pravin Bowry

The seismic news from Italy, that land of Prime Minister Silvio Berlusconi and his sex scandals, and presently a country in dire financial difficulties, relates to a most fascinating case which is creating tremors in legal circles all over the world.

Enzo Boschi, the renowned President of Italy’s National Institute of Geophysics and Volcanology (INGV), faces trial on charges of manslaughter with six other scientists for failing to alert the residents of L’Aquila prior to the devastating earthquake that struck the Italian town on April 6, 2009 killing 308 people.

The seven accused who sat on the nation’s major risks committee were probed by prosecutors after members of the public complained that it was the committee’s expert reassurances that persuaded them not to leave their homes ahead of the quake.

International outcry

It is alleged that the seven had given to the Italians “imprecise, incomplete and contradictory information” in a press conference following a meeting held by the committee six days before the quake. In doing so they “thwarted the activities designed to protect the public”.

There has been an international public outcry against the charges which can result in a 12-year imprisonment.
The global condemnation of the charges has come from all over.
Arguments for and against are based on the different criminal law regimes. It is being argued that differences between the common law system and Italy’s law, based on the Napoleonic Code, need to be appreciated.

This difference is being given as the reason as to why these charges are being brought by a judge rather than an independent prosecutor.
When the charges were first preferred in June 2010, the case was likened to a frivolous attempt by overzealous local prosecutors to make scapegoats at Italy’s most respected geophysicists. The views of over 5,000 members of the scientific community, who signed a petition, have been disregarded by the prosecutors even though pinpointing the time, location and strength of a future earthquake in the short term remains, by scientific consensus, technically impossible.

The prosecutors, however, argue differently and state that the trial has nothing to do with the ability to predict earthquakes, but instead everything to do with the failure of the Government appointed scientists serving on an advisory panel to adequately evaluate, and then communicate the potential risk to the local population. The charges are detailed in a 224 page document and relate to a public that had been traumatised by months of persistent low-level tremors.

Chilling effect

Although the trial is to continue in October and the outcome may not be known for months, it is being dubbed as a ‘trial against science’ but the prosecutors are adamant that the “be calm, don’t worry”, and lack of specific advices deprived citizens of an opportunity to make an informed decision about what to do on the night of the earthquake.
The prosecutor is on record as having said that “I am not crazy. I know they can’t predict earthquakes. The basis of the charges is that as functionaries of the State, they had certain duties imposed by law: to evaluate and characterise the risks that were present in L’Aquila. They were obligated to evaluate the degree of risk given the factors and they did not”.

The trial has already had a chilling effect on scientists’ willingness to share their expertise with the public not only on matters of earthquakes, but also on other natural disasters such as tsunamis, tornadoes, hurricanes, floods and drought. It is argued that the defensive approach to just “shut up” would be the only solution.
The study in risk assessment and public communication is likely to change forever as a result of the case.

Professional negligence and breaches of statutory duties result in civil remedies of damages. Doctors and lawyers are frequently faced with defending themselves but criminal negligence is rarely pursued even though in Kenya criminal negligence is acknowledged in Section 243 of the Penal Code.
In Kenya the Court of Appeal has set the law by stating that if a statute creates a duty but imposes no remedy, civil or criminal for its breach, there is a presumption that a person who is injured thereby will have a right of action, for otherwise the statute would be but a pious aspiration.

Does the Italian case have any significance in Kenyan criminal jurisprudence? Should the recent Mukuru-Sinai incident or the Nakumatt fire or the Sachang’wan accident be reviewed? Will the Kenyan Director of Public Prosecutions awaken to the Italian thinking?
—The writer is an advocate of the High Court of Kenya.