Written by Maria Rosa Todisco
Translated from Italian to English by Alice Sieve
Right after the approval of the latest law about “ecocrimes” (l. 68/2015), it may be useful to reconsider the “Asbestos Trial”, well-known in Italy during the last few years, in order to trace a short report about legislative decrees on environmental crimes. The problem of establishing a pollution control law, especially for environmental disasters, has been steadily rising up due to the overflow in maladies related to uncontrolled asbestos expositions.
The trial has been named after the “Eternit” company, jointly owned by the Swiss family Schmidheiny and the Belgian De Cartier, that had already stolen the name to the alloy of cement and asbestos patented in 1901 and used in their production. Italy was also one of the countries where they opened some factories: the most famous one was set in Casale Monferrato, into the County of Alessandria. Even though the studies related to the danger of inhaling asbestos’ fibers and the lack of precaution in their handling had been led at the end of the 50s, the company has continued to work until 1986, when bankruptcy was declared. Despite the fact that risks were well-known, the company never established plant safety regulations; moreover it publicized a counter-strategy in order to minimalize the material’s damaging effects and reassure both workers and labor unions. Measures to reclaim were taken only for two out of the four Italian factories. However, this decision has not spared 2856 people, whose 2575 have been considered “exposed workers”.
A short story of the trial
In 2009, the District Court of Turin asked for approval of a 20-year prison sentence, after the recognition of an actual connection between the copious numbers of death and maladies and the asbestos’ dispersion. Two crimes have been contested to the Eternit company’s owners: first, fraudulent lack of safe precautions against injuries on the workplace; then the responsibility for an environmental disaster – that has not been recognized yet by the Italian penal code, and still considered in the wider category of “Nameless Disasters”. Though the factory had closed since 23 years, magistrates state that the crime cannot be considered as statute barred, because the environmental disaster still continues. Previsions tell that the highest spread of diseases will be reached in 2025, because the incubation period of the malady is around 30 years. The District Court has supposed the existence of an enduring crime, that lasts throughout the time until the effects will finish to provoke damage. This hypothesis is reinforced by the fact that measures to reclaim have not been taken for two factories; moreover the asbestos materials had been buried or left uncovered on service areas, without any precaution against the weather conditions.
The District Court of Turin convicts the accused part of 16 years of prison, because of both environmental disaster and lack of safety precautions, but just for two of the four sites. The Court considers the crime related to the two improved ones as non prosecutable.
On the other hand, the Court of Appeal convicts Schmidheiny, the only living accused after the Louis De Cartier’s death, of 18 years of prison and the payment of large compensations to the sick people and deads’ families. Penal responsibilities are also concerned with reclaimed areas, as the disaster will not be considered consumed until the moment the damage will cease, and the crimes expired.
However, the Supreme Court shocked the public opinion declaring expired all these crimes in 2014, even before the first-level sentence, so that the compensations were no more compulsory.
The Supreme Court rejected the sentence against both the District Court of Turin and the the Court of Appeal, stating that the crime could not be considered permanent and the disaster is not an epidemiological case – as it falls under the crimes against the person. Moreover, it declares the crime expired in the moment that the asbestos dispersion have ceased, that means when the company closed in 1986. The crime could not be considered as permanent, though the company neglected the reclaiming of the areas: this because at that time there was no legal duty to do it.
The public opinion went into uproar when the case exploded. Politicians from different parties were together with indignation and concern. Could a sentence so socially unfair be avoided? The reply comes from the closing speech held by the Public Prosecutor Francesco Iacoviello, who asked the cancellation of the trial without indictment. He says: “In the end, the prescription does not meet the public demand for justice, but we need to be careful that the law would not be bent to the substantial justice. Law constitutes a precedent, and bending the law to the justice today may give justice but is a precedent that will bring a thousand injustices tomorrow. (…) It is natural that the offended choose the way to justice, but when the judge is put in front of the dramatic choice between law and justice he has no alternative: a judge is under the law, and between law and justice he must choose the law”.
What is the situation of our legal order related to the asbestos problem?
From 1992, a law entered into force banning the manipulation, sale, importation and exportation of the asbestos. The juridical obligation of reclaiming the sites can be traced back to the administrative order Ronchi 22/97, set to be part of the environmental code 252/2007 that had been updated with the European Community’s directives.
On May 22nd, 2015 a new decree was introduced in our penal code with the Law 68, under the title “About Crimes against the Environment”. It includes articles from 452 bis until 452 terdecies, adding five new crimes: environmental pollution, environmental disaster, traffic and abandonment of high radioactive materials, impeding of controls, lack of reclaiming areas. It could be asked why it took so long to be finally approved for a legislation about these phenomena, even though laws about so-called ecocrimes have been considered in Parliament from 2007. Today, the actual hope is that this new law will avoid situations as the Asbestos’s case, beyond some of its criticies.