Judgment No. 51159 of 2023: State of Necessity and Relevance of Putative Necessity

The recent judgment No. 51159 of October 12, 2023, issued by the Court of Cassation, offers important insights into the concept of the state of necessity in criminal law. This ruling clarifies the requirements for conduct to be considered justified in the presence of an imminent danger of serious harm to a person. The decision concerned the case of an individual who, due to navigation difficulties, had used a compass for orientation while transporting irregular migrants, and the Court excluded the applicability of the justification.

The Concept of State of Necessity

The Italian Penal Code, in Article 54, governs the concept of the state of necessity, defining the circumstances under which an individual may justify their criminally relevant conduct. The fundamental principle is that the intervention must be necessary to avoid serious harm, which must not have been caused by the person performing the necessitated action. The judgment under review highlights the importance of putative necessity and the conditions required to avail oneself of this justification.

PUTATIVE NECESSITY - State of Necessity - Requirements - Danger of serious harm to a person not caused by the perpetrator - Relevance - Case facts. In the context of the state of necessity, the imminent danger of serious harm to a person, not otherwise avoidable, must not have been voluntarily or negligently caused by the perpetrator of the necessitated act and must also be independent of their will. (Case facts in which the Court excluded the applicability of the justification for an individual who, due to subsequent navigation difficulties, had used the compass aboard a vessel transporting irregular migrants, as the agreement to use the instrument was made at the time of the vessel's departure).

Implications of the Judgment

The Court emphasized that, for an individual to invoke the state of necessity as a justification, it is essential that the danger does not arise from voluntary or negligent conduct. This means that the individual must be in an emergency situation not provoked by themselves. In the specific case, the fact that the defendant had agreed to use the compass only at the time of departure implies that the emergency was already ongoing, and this excludes the possibility of availing oneself of the justification.

Conclusions

Judgment No. 51159 of 2023 represents an important reflection on the conditions of the state of necessity within our legal system. It clarifies that, to invoke this justification, it is crucial that the danger is imminent, serious, and not caused by the individual themselves. This ruling not only sheds light on the specific case but also offers useful guidance for a better understanding of the legal dynamics governing emergency situations in criminal law. The analysis of this judgment is fundamental for legal professionals and anyone wishing to deepen their knowledge of justifications.