Manslaughter by Preterition: The Court of Cassation Clarifies Concrete Foreseeability (Judgment No. 27694/2025)

In the vast and complex landscape of criminal law, manslaughter by preterition represents a particularly delicate criminal offense, situated between intent and mere negligence. It is not uncommon for an action, even if not aimed at causing death, to lead to such a tragic outcome. It is precisely in these contexts that jurisprudence is called upon to clearly define the boundaries of criminal liability, while ensuring justice and legal certainty. The recent ruling by the Court of Cassation, Judgment No. 27694 of 2025, offers a fundamental contribution in this regard, outlining with greater precision the psychological element that characterizes this serious crime.

Manslaughter by Preterition: Between Intent and Unintended Consequences

Article 584 of the Italian Penal Code defines manslaughter by preterition as the case where someone commits acts aimed at striking or causing personal injury, resulting in death. The peculiarity of this offense lies in the fact that the perpetrator did not intend the victim's death, but nevertheless acted with the intention of committing a lesser crime (assault or battery), and death was a consequence "beyond the intention" (preterintention, precisely). The case on which the Court ruled, involving defendant M. A., provided the occasion to reaffirm and clarify crucial aspects of this legal framework.

The Supreme Court, presided over by R. P. and with A. T. as rapporteur, rejected the appeal against the decision of the Court of Assizes of Appeal of Rome, reaffirming a consolidated orientation that is always worthy of further examination, particularly regarding the ascertainment of the subjective element of the crime.

The Psychological Element: Intent for the Action, Foreseeability for the Fatal Event

The core of the Cassation Court's decision, and of the legal doctrine on the matter, lies in the interpretation of the psychological element, or "intent combined with concrete foreseeability," which must be proven to establish manslaughter by preterition. Article 43 of the Penal Code, in fact, distinguishes between intent (dolo), negligence (colpa), and preterition (preterintenzione) as forms of the psychological element of a crime. For manslaughter by preterition, the intent (dolo) manifests with respect to the assault or battery, while death, although not intended, must nevertheless be a foreseeable consequence of the action.

The psychological element of the crime of manslaughter by preterition is a combination of intent, for the crime of assault or battery, and concrete foreseeability, for the fatal event. (In its reasoning, the Court specified that concrete foreseeability is ascertained by the judge through a "posthumous prognosis" judgment, aimed at verifying whether, considering the specific circumstances of the concrete case, the event that occurred could be considered, "ex ante," among the foreseeable consequences of the intended conduct).

This maxim is of fundamental importance. It clarifies that the foreseeability of the fatal event is not mere abstract or generic foreseeability, but must be "in concreto." This means that the judge must not ask whether, in principle, an assault can lead to death, but whether, given the specific circumstances of the case (the manner of the action, the victim's condition, the location, the use of objects), death was a concretely foreseeable consequence by the perpetrator. The "posthumous prognosis" judgment is the tool through which the judge makes this assessment. He must place himself "ex ante," i.e., at the moment the perpetrator engaged in the conduct, but with the "ex post" knowledge of all the elements that emerged in the proceedings, to determine whether the lethal event fell within the reasonably conceivable consequences of that specific conduct.

Legal Implications and the Protection of Due Process

The clarification offered by Judgment No. 27694/2025 has significant practical implications. It strengthens the principle of culpability and the principle of legality, also enshrined in Article 7 of the European Convention on Human Rights (ECHR), which requires criminal law to be clear, precise, and foreseeable. For the accused, the need to prove the concrete foreseeability of the fatal event represents a guarantee, preventing liability for an unintended outcome from being based on an overly broad or abstract criterion. For the prosecution, it implies a more specific burden of proof, requiring them to demonstrate not only the intent to injure but also the concrete foreseeability of the lethal event.

For judges, this orientation provides precise guidance in the analysis of facts. Among the factors that can influence the "posthumous prognosis" judgment are:

• The force and manner of the aggressive action.
• The area of the body struck.
• The potential use of instruments or weapons, even improvised ones.
• The victim's physical condition (e.g., advanced age, frailty, pre-existing conditions known to the aggressor or easily perceptible).
• The environmental circumstances in which the aggression took place.

These elements contribute to outlining the framework within which the judge must assess whether death was, for an average person with normal intelligence and diligence, a concretely conceivable consequence of the conduct engaged in by the defendant.

Conclusions

The Cassation Court's judgment No. 27694 of 2025 not only reaffirms a cornerstone principle in the interpretation of manslaughter by preterition but also strengthens it with the specification of "concrete foreseeability" and the "posthumous prognosis" judgment. This ruling contributes to greater legal certainty, providing clear criteria for establishing criminal liability in one of the most complex and tragic offenses in our legal system. For legal professionals, it represents an indispensable reference point for rigorously and precisely addressing cases of manslaughter by preterition, ensuring a fairer justice that is more closely aligned with the reality of the facts.