Legal Medicine Notes

Legal Medicine

• Legal phenomena are events with legal consequences.
• Natural facts are involuntary events (e.g., birth, death).
• Human acts are voluntary actions (e.g., contracts).
• Lawful actions comply with the law.
• Illicit actions do not comply with the law and can be penal or civil.
• The juridical system regulates social relationships.
• Ubi societas ibi ius: Wherever there is society, there is law.
• Public law governs the state's functioning and citizen-state relations.
• Private law regulates relations between citizens.

Criminal Law and Penal Code

• Purpose: preserve public tranquility through regulations.
• Guarantees individual and social assets-interests protected by the Italian Republic (rights of personality, freedom, safety, security, life…).
• Defines crimes as violations of criminal law resulting in penalties.
• The classification of rules includes command, guarantee, imperative, and taxa4ve rules

Rule Classification

• Incriminating, discriminatory, declarative, interpretive, and referral rules.

Application of Criminal Law

• Based on principles of legality, reserve of law, and prohibition of analogy (except in bonam partem).
• Ignorance of penal law is not an excuse.
• Interpretation of criminal law considers subjects (legislator, judicial, scholars) and means (grammatical, logical).
• Effectiveness has limits in time, space, and people.

Limits of Criminal Law Effectivness

• Retro-irretroactivity: law applies prospectively.
• Territoriality: law applies within the territory.
• Extradition: surrender of a criminal to another jurisdiction.
• Immunity or prerogative: ensures free exercise of mandate for officials.

Classification of Crimes

• By intent, negligence, or preterintention.
• By damage or danger.
• Commissive or Omissive.
• Consumed or attempted.
• Uni/Pluri-subjective.
• Common/Exclusive.
• Of Conduct/of EVENT (Material).
• Prosecuted by Complaint or ex Officio.

Attempted Crime (Art. 56 P.C.)

• Performing suitable acts aimed at committing a crime, but the action isn't completed or the event doesn't occur.
• Punishment reduced by 1/3 to 2/3, not less than 12 years if life imprisonment.
• Voluntary Desistance: penalty only for acts performed.
• Voluntary Prevention: penalty reduced by 1/3 to 1/2.

Requirements for Prosecution

• Complaint: a statement requesting prosecution.
• Report: by public officials and those in charge of public services.

Constitutive Elements of Crime

• Subjective/Psychological: Intentional (according to…), Culpable (against to…), Preterintentional (beyond to…).
• Objective/Material: the fact or event.

Subjective Element Examples

• Intent à using a weapon appropriately towards vital organs.
• Negligence à acting and foreseeing a behavior determining an event and excluding it due to imprudence.
• Preterintention à headbutting the chest intending to hurt, but producing death.

Principle of Legality (Art. 1 P.C.)

• Crimes and punishments must be expressly provided by law.
• No retro-activity: law applies from its enactment forward.

Distinction Between Crimes and Misdemeanours (Art. 39 P.C.)

• Crimes and misdemeanours are distinguished according to punishment.

Principal Penalties (Art. 17 P.C.)

• Crimes: imprisonment, detention.
• Misdemeanours: arrest, fine.

Accessory Penalties (Art. 19 P.C.)

• Crimes: disqualification from public office/profession, legal disqualification, inability to contract with public administration.
• Misdemeanours: suspension from exercising a profession.

Incidental Elements of Crime

• Aggravating circumstances.
• Mitigating circumstances.

Aggravating Circumstances (Art. 61 P.C.)

• Abject or futile motives, executing or concealing another offense, torture, cruelty, against a public official

Mitigating Circumstances (Art. 62 P.C.)

• Reasons of moral or social value, state of anger due to unjust actions, suggestion by crowd, offender contributing to the event, repairing damage.

Criminal Responsibility (Art. 27 Const.)

• It is personal; defendant presumed innocent until final sentence.
• Punishments aim at re-education; death penalty prohibited.

Liability (Art. 42 P.C.)

• For intent, negligence or preterintentional crime.
• Objective liability.

Psychological Element (Art. 43 P.C.)

• Intentional: event foreseen and intended.
• Preterintentional: more serious event than intended.
• Culpable: event not intended, results from negligence.

Abuse of Means of Correction (Art. 571 P.C.)

• Punishment for those who abuse means of correction to the detriment of a person

Maltreatment Against Family Members (Art. 572 P.C.)

• Punishment for those mistreating family members.

Abandonment of Minors (Art. 591 P.C.)

• Punishment for those who abandon minors or incapacitated persons.

Omission of Rescue (Art. 593 P.C.)

• Punishment for failing to assist abandoned or lost children/incapacitated persons.

Cases of No Punishment

• Legitimate defense (Art. 52 P.C.).
• Legitimate use of weapons (Art. 53 P.C.).
• Consent of the entitled person (Art. 50 P.C.).

Consent to Treatment

• Requires free, explicit, unequivocal, actual, and revocable consent.
• Given by the entitled person on available rights.

Inviolable Rights (Art. 2 Const.)

• Recognized and guaranteed to every person.

Equality Before Law (Art. 3 Const.)

• All citizens have equal social dignity and are equal before the law.

Right to Health (Art. 32 Const.)

• The Republic safeguards health as a fundamental right

Models of Legal Regulation in EU

• Euthanasia and assisted suicide is controversial in many countries.
• Legally allowed in the Netherlands, Belgium, Luxembourg.
• Allowed in Switzerland if done without selfish motives.

Neonatal Resuscitation

• Balancing the right to life with the prevention of therapeutic obstinacy for extremely premature or severely impaired infants.

ART 51 P.C.

• Exercise of a right or fulfillment of a legal duty (ex: mandatory treatment, reporting infectious disease)

Imputability(Art. 85 P.C.)

• Capacity to understand and want.

Mental Defect

• Total mental defect excludes imputability (Art. 88 P.C.).
• Partial mental defect reduces penalty (Art. 89 P.C.).

Emotional States (Art. 90 C.P.)

• Do not exclude imputability.

Drunkenness (Art. 91 C.P.)

• From fortuitous event or force majeure excludes imputability.
• Voluntary drunkenness does not exclude or diminish imputability (Art. 92 P.C.).

Deaf-Mutism (Art. 96 C.P.)

• May reduce imputability depending on the severity of the condition.

Minor Age

• Under fourteen not imputable (Art. 97 P.C.).
• Under eighteen has reduced punishment (Art. 98 P.C.)

Safety Measures and Social Dangerousness

• Measures for care, education, and resocialization of socially dangerous convicts (Art. 202 C.C.).
• Individual is considered socially dangerous even if not imputable (Art. 203 C.C.)

Causal Relationship and Concurrence of Causes (art 40 p.c).

*no one can be punished for any offense if harmful consequences were not a direct result of their action.

art 41 c.p

• Concurrent causes does not exclude causal relationship

Improper Or Omissive Crimes

• the 1st comma of the art. 40 p.c. regards the obligation to activate that is (relative) of the healthcare professionals, doctors, surgeons, nurses, etc., who must take action (not omitting, not delaying) to protect the good/interests concerning health (the wellness concerning life, mental-physical integrity…) of the citizen(s)

Criteria: The Method

1.  Etiological
2.  Topographic
3.  Chronological
4.  Phenomenal continuity
5.  Exclusion of other causes
6.  STA     STA Statistic-Scientific (Probabilistic)

• The criteria of statistical probability concerns the need to prove the direct observation data with a rigor analysis with scientifically analyzed series