The Supreme Court returns to the issue of preterintentional homicide with judgment no. 10865, filed on March 18, 2025, annulling and remanding the decision of the Court of Assizes of Appeal of Bari. The case, involving defendant F. S., provides an opportunity to focus on the subjective element of the crime under Article 584 of the Italian Criminal Code, a topic that has always been controversial and subject to fluctuating interpretations between simple sections and United Sections.

Legal Framework and Precedents

Preterintentional homicide is governed by Article 584 of the Italian Criminal Code, which punishes those who, while committing assault or battery, cause the death of a person. The debate revolves around Article 43 of the Italian Criminal Code: is intent for the assault or battery sufficient, or is something more required? In 2009, the United Sections (judgment no. 22676) adopted the thesis of "intent mixed with negligence," while some subsequent rulings have oscillated between negligence and abstract foreseeability. The 2025 decision fits into this context, realigning with a more restrictive line of reasoning, already anticipated by judgments no. 23926/2024 and no. 624/2025.

The psychological element of the crime of preterintentional homicide is a combination of intent, for the crime of assault or battery, and concrete foreseeability, for the fatal outcome.

Commentary: The Court clearly distinguishes two aspects: on one hand, direct or eventual intent relating to the initial violent action; on the other hand, the necessary "concrete" foreseeability of the fatal outcome. This means that the judge must ascertain whether, in the specific case, the perpetrator could actually foresee death as a possible consequence of their conduct, taking into account the context, the force used, the victim's condition, and any aggravating or mitigating factors.

The Novelty of Ruling no. 10865/2025

Compared to divergent decisions in previous years (e.g., judgments no. 44986/2016 or no. 36402/2023), the Court introduces a criterion more aligned with the principle of culpability: foreseeability must be assessed "concretely," not abstractly. This means it is not enough for the fatal outcome to be generally possible; it must be demonstrated, with objective and subjective parameters, that the defendant could concretely anticipate it.

Practical Implications for Prosecution and Defense

• Prosecutor's Burden of Proof: The prosecution must document factual circumstances (method of the blow, body part hit, intensity) sufficient to demonstrate concrete foreseeability.
• Defense Strategy: The defense can rely on forensic medical expert reports to demonstrate the unforeseeability of the lethal outcome, for example, in the presence of pre-existing pathologies unknown to the defendant.
• Relevance of Precedents: The judgment refers to consistent rulings from 2024-2025, reducing interpretative uncertainty and providing a strengthening argument both in the merits phase and before the Court of Cassation.

Conclusions

The Court of Cassation, with judgment no. 10865/2025, consolidates a more protective yet demanding approach: to establish preterintentional homicide, intent for the assault or battery and concrete foreseeability of death are required. In the absence of the latter, the offense could be downgraded to serious or very serious bodily harm under Articles 582-583 of the Italian Criminal Code, with evident repercussions on the penalty. Legal professionals will therefore need to calibrate their evidentiary strategies in light of this dual psychological track, valuing factual elements and expert reports that attest to – or refute – the perpetrator's ability to foresee the fatal outcome.