Road Homicide and Special Mitigation: Cassation No. 20369/2025 on Victim's Contributory Negligence

Road homicide (Article 589-bis of the Italian Criminal Code) carries severe penalties, with a special mitigating circumstance (seventh paragraph) if the event is not solely a consequence of the perpetrator's conduct. Can the victim's behavior influence this? The Court of Cassation, with Judgment No. 20369 of June 3, 2025, clarified the limits of contributory negligence and the driver's responsibility, especially concerning driving under the influence of alcohol.

Limits of the Special Mitigation: The Driver's Preeminent Responsibility

The mitigating circumstance under Article 589-bis, seventh paragraph, of the Italian Criminal Code reduces responsibility if external causes contribute to the event. In case No. 20369/2025, the defendant S. G. was driving under the influence of alcohol. The defense invoked the victims' behavior. The Supreme Court, rejecting the appeal, clarified that external factors constituting a risk that the driver is responsible for managing through specific rules of conduct do not fall under this mitigation. The driver's responsibility is not lessened by circumstances that fall within their duty of control and prudence.

In matters of circumstances, those external factors that constitute a risk to be managed by the driver of the vehicle through the foresight of specific rules of conduct do not fall within the scope of application of the special mitigating circumstance under Article 589-bis, seventh paragraph, of the Criminal Code, which contemplates the case where the event is not solely a consequence of the perpetrator's action or omission. Instead, it should encompass factors, other than those solely sufficient to cause the event and force majeure, that concur with the agent's negligent conduct while remaining external to it. (Case in which the Court found the decision to exclude causal relevance to the victims' behavior, who decided to accept the risk of traveling in a car whose driver was intoxicated with alcohol, to be free from censure).

This legal principle is fundamental. The Court confirmed the exclusion of relevance for the victims' behavior. Accepting the risk of getting into a car with a drunk driver does not mitigate the driver's culpability. Driving under the influence of alcohol is a severely negligent act, the risk of which is entirely the driver's responsibility. Their negligence cannot be mitigated by the alleged imprudence of others. The mitigating circumstance applies only to causes that are unforeseeable or uncontrollable by the driver, not to direct consequences of their unlawful conduct.

In summary, the mitigating circumstance does not apply when:

• The external factor is a risk that the driver should have managed (e.g., driving under the influence of alcohol).
• The victim's behavior does not negate the driver's primary responsibility.

The mitigating circumstance may apply, however, to factors:

• Other than those solely sufficient to cause the event and force majeure.
• That concur with the agent's negligent conduct but remain external to their sphere of control.

Conclusions: Responsibility and Road Safety

Judgment No. 20369/2025 of the Court of Cassation reinforces a core principle: the driver's responsibility in cases of road homicide is preeminent, especially for severely negligent conduct such as driving under the influence of alcohol. Those who get behind the wheel in altered conditions assume a grave risk and cannot invoke the victims' imprudence to mitigate their criminal position. This is an unequivocal warning for greater awareness and responsibility while driving, protecting human life and consolidating jurisprudence on road homicide.