Regulatory Framework
ITALIAN LEGISLATIVE DECREE of 2 January 2018
Art. 6
Powers of territorial civil protection authorities (Italian Legislative Decree 2 January 2018, Art. 6 — formerly Article 1-bis, paragraph 2, Law 225/1992; Article 5, paragraph 5, Decree-Law 343/2001, converted by Law 401/2001). In compliance with the directives adopted pursuant to Article 15 and with the provisions of regional legislation, Mayors, in accordance with the provisions of Italian Legislative Decree 18 August 2000 No. 267, Metropolitan Mayors and Regional Presidents, acting as territorial civil protection authorities, exercise supervisory functions over the integrated and coordinated performance of the same activities by the structures belonging to their respective administrations. Territorial civil protection authorities are responsible, with reference to their spheres of government and their competences, and in compliance with applicable regulations, for:
a) implementing national civil protection guidelines;
b) promoting, implementing and coordinating the activities referred to in Article 2 carried out by the organisational structures under their remit;
c) allocating the financial resources earmarked for civil protection activities, in line with the effective requirements of the functions to be performed as regulated in the planning referred to in Article 18;
d) organising the structures responsible for carrying out civil protection functions and assigning to those structures adequate staff with specific professional skills, also with regard to the operation of emergency operations centres, the network of functional centres and the activities of territorial monitoring posts;
e) establishing procedures and organisational methods for the administrative action of the structures and bodies belonging to their respective administrations — procedures that are specifically tailored and streamlined in order to ensure their operational readiness and responsiveness on the occasion of or in anticipation of the events referred to in Article 2.
Art. 12
Functions of Municipalities and exercise of associated functions within the National Civil Protection Service (Italian Legislative Decree 2 January 2018, Art. 12 — formerly Articles 6 and 15, Law 225/1992; Article 108, Legislative Decree 112/1998; Article 12, Law 265/1999; Article 24, Law 42/2009 and related implementing legislative decrees; Article 1, paragraph 1, letter e), Decree-Law 59/2012, converted by Law 100/2012; Article 19, Decree-Law 95/2012, converted by Law 135/2012)
- The performance, at municipal level, of civil protection planning activities and the direction of emergency operations with reference to the structures of each municipality is a fundamental function of Municipalities.
- In order to fulfil the function referred to in paragraph 1, Municipalities, including in an associated form and in implementation of Article 1, paragraph 1, of Law 7 April 2014 No. 56, shall ensure the implementation of civil protection activities in their respective territories, in accordance with the planning referred to in Article 18, in compliance with the provisions of this decree, the powers referred to in Article 3, the regional laws on civil protection, and consistently with the provisions of Italian Legislative Decree 18 August 2000 No. 267, and subsequent amendments, and in particular shall, on a continuous basis:
- a) implement, at municipal level, the risk prevention activities referred to in Article 11, paragraph 1, letter a);
- b) adopt all measures, including those relating to emergency planning, necessary to ensure first aid in the event of a calamitous event in the municipal area;
- c) organise their own offices and establish procedures and organisational methods for administrative action that are specifically tailored and streamlined to prepare the structures and means necessary to carry out the related activities, in order to ensure their operational readiness and responsiveness on the occasion of or in anticipation of the events referred to in Article 7;
- d) establish procedures for the deployment of qualified personnel to be mobilised, when events occur in the territory of other municipalities, in support of the affected local administrations;
- e) prepare municipal or area civil protection plans pursuant to Article 3, paragraph 3, including in the associated and cooperative forms provided for, and, on the basis of national and regional guidance, ensure their implementation;
- f) upon the occurrence of emergency situations as referred to in Article 7, activate and direct first aid to the population and the urgent interventions necessary to deal with emergencies;
- g) supervise the implementation by local civil protection structures of urgent services;
- h) deploy civil protection volunteers at municipal or area level, pursuant to Article 3, paragraph 3, on the basis of national and regional guidance.
- The organisation of the activities referred to in paragraph 2 in the municipal territory is structured in accordance with the civil protection planning referred to in Article 18 and with regional guidelines, which regulate the management of emergency services operating in the municipal territory, in conformity with Article 3, paragraph 2, letters b) and c).
- The municipality approves by resolution of the municipal council the municipal or area civil protection plan, drawn up according to criteria and methods to be defined by the directives adopted pursuant to Article 15 and the regional guidelines referred to in Article 11, paragraph 1, letter b); the resolution also regulates the mechanisms and procedures for periodic review and updating of the plan, possibly delegating them to acts of the Mayor, the Executive Board or the competent administrative structure, as well as the methods for disseminating it to citizens.
- The Mayor, consistently with the provisions of Italian Legislative Decree 18 August 2000 No. 267, and subsequent amendments, is also responsible for civil protection purposes for:
- a) adopting the contingent and urgent measures referred to in Article 54 of Italian Legislative Decree 18 August 2000 No. 267, in order to prevent and eliminate serious risks to public safety, also on the basis of assessments made by the civil protection structure established pursuant to the planning referred to in Article 18, paragraph 1, letter b);
- b) carrying out, on behalf of the Municipality, the activity of informing the population about risk scenarios, civil protection planning and dangerous situations arising from natural risks or from human activity;
- c) coordinating the activities of assistance to the affected population in the municipal territory carried out by the Municipality, which provides the necessary initial interventions and implements the civil protection plan, ensuring the constant flow of information to the Prefect and the President of the Regional Executive on the occasion of emergency events referred to in Article 7, paragraph 1, letters b) or c).
- When the natural disaster or the event cannot be dealt with using the means available to the municipality or as provided for in the planning referred to in Article 18, the Mayor requests the intervention of other regional operational forces and structures from the Region, and of national operational forces and structures from the Prefect, who adopts the measures within their competence, coordinating their interventions with those of the Region; for such purposes, the Mayor ensures a constant flow of information to the Prefect and the President of the Regional Executive on the occasion of emergency events, also taking care of public information activities.
- The specific provisions relating to Rome as the capital city, pursuant to Article 24 of Law 5 May 2009 No. 42, and subsequent amendments, and the related implementing legislative decrees remain in force.
Reference Case Law
Genoa flood: conviction upheld for former Mayor Marta Vincenzi. Her husband suffers a health crisis in the courtroom
ANSA Editorial Team — March 23, 2018 – News
The conviction of former Genoa Mayor Marta Vincenzi was upheld on appeal for the November 2011 flood in which six women died, including two young girls. In the first-instance trial she had been sentenced to five years. The ex-mayor’s husband, Bruno Marchese, suffered a health crisis immediately after the verdict was read: he began trembling and collapsed to the ground. His wife was not present in the courtroom.
According to the prosecution, the Genoese politicians and technical officials failed to close schools despite a Level 2 alert having been issued, and on the morning of the flood did not close the roads with sufficient urgency. Investigations revealed that “the municipal civil protection offices had received alarming reports as early as 11 a.m., while the Fereggiano stream burst its banks around 1 a.m.” In those two hours there was an opportunity to prevent the tragedy through certain measures that “were not put in place”, the public prosecutor had written. The senior figures of the municipal administration “not only failed to do what needed to be done” but, according to the prosecution, “falsified the official report by altering the time of the flooding.” That document, according to investigators, was tampered with to support the claim that the city had been struck that day by an inherently unforeseeable cloudburst.
In the aftermath of the tragedy, a case file was opened for culpable disaster and multiple culpable homicide against persons unknown. Through the testimonies of citizens and their photos and videos, investigators discovered that the truth contained in the reports submitted by the municipal offices was very different from what had actually happened. The charges relating to the “doctored” report were thus brought forward: forgery, and calumny, because the defendants had written in the document that the civil protection volunteer was present at the stream monitoring the water levels when in fact he never arrived at the site. Those who perished in the Fereggiano disaster were Shpresa Djala, a 29-year-old mother, and her daughters Gioia (8 years old) and Janissa (10 months), Serena Costa (18), Angela Chiaramonte (40) and Evelina Pietranera (50).
2011 flood: former Mayor after the conviction is upheld — “I don’t know if I’ll be able to carry on”
A verdict that mirrors the one for the Sarno disaster in which 37 people died: the Mayor convicted with a final sentence of 5 years.
Genoa. “What do you want me to say? I don’t know if I’ll be able to carry on.” Those were the words of former Genoa Mayor Marta Vincenzi to the ANSA news agency, which met her at her home in Rivarolo, in the hills above Genoa, a few hours after the Genoa Court of Appeal upheld her conviction to 5 years’ imprisonment for the November 2011 flood. If the sentence were to become final, Marta Vincenzi would face prison. The former mayor, who had remained at home, reportedly appeared subdued and shocked, while her husband, who had come to the courtroom that morning to hear the verdict read out, suffered a mild health episode. “I have no words,” was the comment of her defence lawyer, Stefano Savi. “We will have to wait for the Supreme Court of Cassation to press the application of the provisions on culpable homicide,” he said.
The verdict — read today by the President of the Second Section of the Court of Appeal, Giuseppe Diomeda — mirrors the one for the Sarno disaster in which 37 people died: the Mayor was convicted by a final sentence (confirmed by the Court of Cassation 8 months ago) to 5 years.
According to the defence lawyer of Francesco Scidone, Andrea Testasecca, “this is a complex ruling, the understanding of which requires reading the reasoning of the judges regarding the elements constituting the offences charged. There are passages that are difficult to understand, especially regarding the alleged commission of forgery which in our view was and remains entirely unfounded.” The former assessor, who nevertheless benefited from a significant reduction in sentence (from 4 years and 9 months to 2 years and 10 months), is also expected to appeal to the Court of Cassation.
For Emanuele Olcese, the lawyer representing the family of Serena Costa, who died after going to collect her brother from school, the verdict speaks clearly and “states that the Mayor is the primary person responsible for civil protection in the city and that even if on that day she was at a conference, she was required to ensure that the emergency management machine was functioning.”
“I am pleased, but this verdict has not changed anything for me because my loved ones are dead and nothing will bring them back. But at least these people will suffer a little. I am satisfied and I hope God also does his duty and sends them all to hell,” commented Flamur Djala, who lost his wife and two daughters in the flood, following the appeal verdict that upheld the five-year conviction for former Mayor Marta Vincenzi. “Everything that emerged during the trial has been confirmed — emphasised Marco Costa, father of Serena, who died at 19 after going to pick up her brother from school — namely the responsibility: they did not manage to diminish it because it could not be diminished. The arguments were what they were, they were developed at first instance and analysed on appeal. The appeal to the Court of Cassation worries us because we do not know how things go in this area of law, but in reality we have always been confident and in these years justice has been done.”
Boulder detachment causes fatalities. Mayor convicted
Liability for failure to report the hazard
The Court of Cassation upheld the culpable homicide convictions handed down to two mayors accused of having negligently, through carelessness, recklessness and breach of regulations, caused the deaths of two teenagers on a school trip, as a result of a boulder detaching from a cliff overhanging the beach.
The two mayors had been found guilty of failing to report, in their capacity as persons responsible for the municipal territory and for public safety, the existing hazard, despite previous events involving a rockfall in the same area.
In its extensive Judgment No. 14550 of 29 March 2018, the Supreme Court first examined the issues relating to hydrogeological planning, soil protection and the civil protection system, and with particular reference to the mayors, their legal obligation to prevent the event.
The Court of Cassation then considered the conduct that the defendants should have adopted in light of the foreseeability of a new rockfall, affirming a specific interpretive principle in this regard.
The “model agent” — as stated in the ruling — for the purposes of adapting their conduct to comply with precautionary rules in matters of damage resulting from calamitous events involving hydrogeological risk, must refer not to what was actually perceived, but to what could have been perceived with the level of diligence required of them; they are not required to have specific hydrogeological expertise, but rather to report the need for the area affected by previous landslides to be examined by specialists and closed to the public pending a full risk assessment.
The model agent, in other words, must not rest on past events in the absence of factual knowledge that would allow the exclusion of further and more serious occurrences.
Weather alerts and liability for events: force majeure no longer exists
21 August 2018
The seasons are no longer what they used to be, and even full seasons are causing problems — all due to climate change, and this no longer seems to be a cliché.
Flood damage from heavy rainfall is becoming increasingly common and our cities consistently prove ill-equipped to deal with the emergency. Summer “cloudbursts” or heavy winter rain and snowfall now constitute a serious risk. Who should compensate for the resulting damage?
The Municipality is the primary suspect, but the Italian Civil Code allows public authorities to be absolved of liability where they demonstrate the unforeseeable and inevitable nature of the event (what is known as “force majeure”).
The custodian or owner of an asset, such as a public road, must compensate for all damage caused by it, including flooding, even if they are not at fault. This is what is defined as “strict liability for things in custody”. However, if the event was caused by a circumstance that could not have been avoided even with the most scrupulous conduct, no compensation is owed.
We are thus faced with the scenario where an exceptional storm may exclude the Municipality’s liability.
Indeed, according to the Court of Cassation, a storm of particular force and intensity, prolonged over time and of such a nature as to fall outside the normal parameters of meteorology, can, in the abstract, constitute “force majeure”. The exceptional and unforeseeable nature of atmospheric precipitation may constitute force majeure, suitable for excluding liability for the damage that occurred.
However, the Municipality may still be jointly liable if it has exacerbated the damage — for example, by failing to clean road drains blocked by waste and debris — and the damage caused by rain, hurricanes, storms and other atmospheric precipitation of particular force and intensity was determined by the inadequacy of the road’s rainwater drainage system. It must also be considered that the exceptional nature of a natural phenomenon, in the sense of its occurring only occasionally even if not frequently, is not, in itself, sufficient to constitute force majeure, because this does not mean that it is not nonetheless foreseeable. Indeed, the Court has also specified that the exceptional and unforeseeable nature of atmospheric precipitation can constitute force majeure, capable of excluding liability for the damage that occurred, only when it constitutes an independently sufficient supervening cause of the event.
It is certainly true that an exceptionally intense rainfall can constitute force majeure, but it is not at all true that heavy rain always and in every case constitutes force majeure. The public administration must in fact demonstrate — in order to avoid paying damages — that the rainfall in question was, by itself, a sufficient cause of the damage notwithstanding the most scrupulous maintenance and cleaning of the stormwater drainage works on its part.
It must therefore be demonstrated that the rainfall was so intense that the flooding would have occurred to the same extent even had the required maintenance been carried out. Liability for damage caused by things in custody, under Article 2051 of the Italian Civil Code, also applies in relation to public domain assets where the continuous and effective control required to prevent the emergence of hazards for third parties may be impossible, by applying in general the principle of “neminem laedere” under Article 2043 of the Italian Civil Code and the limitation of liability.
In order for the public authority to be absolved of liability under Article 2051 of the Italian Civil Code for damage caused by public domain assets, it is necessary to assess the extent of its power of control and supervision over them. Precipitation of unforeseeable and exceptional severity can constitute force majeure, since force majeure must be understood as an unforeseeable event, an imponderable factor that suddenly intervenes in the causal chain as an autonomously determining factor of the event.
The possibility of invoking force majeure must be considered admissible only in the case where the causal factor external to the party causing the damage has an effect of such intensity as to entirely break the causal link between the thing and the harmful event, such that it can be considered a supervening cause that is by itself sufficient to produce the event. It is evident, therefore, that a storm of particular force and intensity, prolonged over time and of such a nature as to fall outside the normal parameters of meteorology, can, in the abstract, constitute force majeure, except where the existence of conduct abstractly capable of establishing (co-)liability on the part of the party invoking the exemption in question has been established.
One of the Mayor’s primary duties is to be able to guarantee the safety of their community at all times, both as individuals and as a collective, and they also have the power, as a Government Officer, to issue contingent and urgent measures aimed at protecting public safety.
It should be noted that the recent legislation reorganising the National Civil Protection System has assigned new responsibilities to the Mayor, designating them as the Civil Protection Authority who “assumes direction of emergency services in the municipal territory”, while Decree-Law 6 July 2012 (the Italian “spending review”) has included among the fundamental functions of the Municipality “the activity, at municipal level, of civil protection planning and coordination of first emergency response”, thus reaffirming the importance of the tasks entrusted to the Mayor in this area.
The Mayor is thus called upon to operate with full involvement in the activities of forecasting, prevention, rescue and overcoming of the emergency, and is the authority that plays a complex and fundamental role within the civil protection system, being required to predict, prevent and manage the calamitous events that may affect their municipality and its inhabitants.
The Mayor must therefore implement all preventive activities aimed at ensuring the safety of their citizens, the protection of their assets and the territory.
When an emergency situation arises, having obtained the appropriate and detailed information about the event, the Mayor takes charge of rescue and assistance services for the affected population and adopts the necessary measures.
The Mayor cannot be caught unprepared to face such an event, as they are the (operational and administrative) point of reference and support for their citizens, who turn to them as the closest institution.
It is the Mayor’s exclusive responsibility to provide preventive and emergency information to the population about possible dangerous situations (Art. 12, Italian Law 265/92)
Communication with citizens is primarily aimed at limiting casualties and loss of human life as well as the destruction of material assets through information on the correct conduct to adopt in emergency situations.
In order to respond effectively to various emergency activities, it is therefore necessary that all municipal services be ensured at the municipal level, with the presence of the municipal secretary, directors/officers, the Municipal Technical Office, the Local Police and local volunteers.
The Mayor also makes use, in order to ensure within their municipal territory the direction and coordination of rescue and assistance services to the population, of the Municipal Operations Centre (C.O.C.), promptly activated and chaired by the Mayor, in anticipation of or immediately following an event.
The case of former Genoa Mayor (always at the forefront when exceptional events are concerned) Marta Vincenzi, sentenced to five years’ imprisonment for culpable disaster, multiple culpable homicide and ideological forgery, in the trial concerning the flood that affected Genoa on 4 November 2011, in which six people died.
Former Genoa Mayor Marta Vincenzi “lied to everyone”, “completely abdicated her duty to intervene in matters of civil protection” with a “flight from responsibility” and “made a ‘political’ assessment aimed at maintaining popular consensus.” So wrote the judges of the Genoa Court of Appeal in the reasons for the judgment convicting the former mayor to 5 years for the 2011 flood in which 4 women and 2 young girls died. “The guarantors of safety — reads the document — attempted an extremely dangerous gamble with fate, with unjustified and extremely high recklessness.”
There is no doubt that the information available to the mayor was all pointing, univocally and explicitly, to the likelihood of the waterways overflowing — well known for the recurrence of such phenomena at least since the 1980s onwards. The mayor’s conduct can only be assessed as seriously negligent.
The story of the former mayor’s conviction on appeal is worthy of reflection. It is a fact that mayors, administrators and municipal directors are exposed to liability in the event of extraordinary events not always foreseeable in their extent and effects.
The period 2004/2015 saw approximately 70 pending criminal proceedings related to civil protection emergencies, involving 200 people including mayors, administrators, municipal employees, regional representatives and others. The conduct charged is generally: having underestimated the warning signal from the monitoring system. The number of judicial proceedings demonstrates that there is a problem of “poor” functioning of the “legal” system that generates litigation and places the mayor, as the primary civil protection authority, under the burden of duties and responsibilities that involve a high technical content and little political discretion.
The mayor of a municipality at hydro/hydrogeological risk (i.e. 87% of all Italian municipalities) receives on average 150 weather alerts per year, ranging from yellow to orange levels. The mayor bears the excessively technical burden of assessing the progression and severity of the forecast event, and thus of defining the level of alert — but the gap between maximum responsibility and minimal resources for municipalities in terms of civil protection is far too wide.
Case law regarding the liability of mayors most often results in rulings that clearly exempt the Municipality and the Mayor from liability.
But when the mayor’s conduct can only be assessed as seriously negligent — in particular when, faced with a technical decision based on the information received, a “political” assessment driven by considerations unrelated to the protection of the community comes into play, aimed instead at maintaining popular consensus among those sectors that could claim losses for their businesses in the event of normal activities being disrupted —
the sense of responsibility demands that everyone, and above all mayors, assess and verify the actual situation, because in every municipality the circumstances are different and specific. It is necessary to take on the responsibilities of the role seriously, without passing decisions and consequences on to others.
The decisive task is entrusted to maintenance: only where it is demonstrated that every possible prevention and maintenance activity has been carried out can any exemption from liability be considered.
The result, in practice, is that even for a storm of particular intensity, force majeure may be excluded where the owner is unable to demonstrate that all appropriate measures were taken to prevent the damage.
The Sarno disaster: the Court of Cassation upholds the conviction of the mayor — negligent conduct
Nearly 15 years after the flood that cost 137 lives, the Supreme Court makes the sentence final for the former mayor.
27 March 2013
Almost 15 years after the Sarno flood of 5 May 1998, which cost 137 lives, the Court of Cassation has made its final ruling.
The conviction of Mayor Gerardo Basile to five years’ imprisonment, handed down by the Naples Court of Appeal in December 2011, is now final.
Sarno: another conviction for Basile from the Court of Auditors (Corte dei Conti)
The mayor at the time must compensate the victims’ relatives with over €200,000
05 October 2018
SARNO — Gerardo Basile becomes the “scapegoat” for the tragic flood events of 5 May 1998: the Court of Auditors (Corte dei Conti, Italy’s public accounts court) also issues a conviction. There is no peace for the former mayor in office at the time of the May 1998 landslide, when enormous mudslides engulfed the town of Sarno, claiming 137 victims. Following that event, the former mayor was convicted by the Naples Court of Appeal, whose judgment became final on 26 March 2013, to 5 years’ imprisonment for the offence of culpable homicide by omission and disqualification from public office. The tenor of that judgment revealed Basile’s gravely negligent conduct: he should have considered the impact of the rainfall and the meteorological situation and should therefore have ordered the evacuation.
The conduct charged, moreover, is relevant not only at the criminal level but also in terms of compensation. Basile was ordered to pay €30,000 as an interim payment for each injured party, so as of today the amount payable amounts to €202,000, plus monetary revaluation, interest and legal costs. The ruling of the Court of Auditors, published just a few days ago, states: “Having established the existence of unlawful conduct and a public expenditure to which no utilitas for the paying administration corresponds, the loss to public funds coincides with the amount paid by the Municipality of Sarno to the injured parties: €202,225.80. This loss is entirely attributable to Basile. There are no grounds for applying a reduction for several reasons: the damage derives from the breach of multiple substantive and procedural rules that presented no interpretive uncertainties; the defendant possessed specific professional expertise as an engineer; no significant causal contribution by other persons not joined in the proceedings has been demonstrated.”
Accordingly, the jurisdictional section of the Court of Auditors for Campania ordered the payment of €202,000 in favour of the Municipality of Sarno. It should also be recalled that, following the conviction, the Salerno Prefecture must compensate the relatives of each victim of the 5 May 1998 landslide up to a maximum of €100,000. The conviction of Basile caused a stir. In addition to the former mayor, the Presidency of the Council of Ministers, the Ministry of the Interior and the Municipality were also convicted and required to pay an interim payment of €30,000 and to compensate the relatives who had joined the proceedings as civil parties.
The Third Criminal Section of the Court of Cassation rejected the appeals lodged by Basile and the civilly liable parties — the Presidency of the Council, the Ministries of the Interior and of the Economy. Those convicted must also pay the costs of the proceedings and compensate the legal expenses of the civil parties.
The mayor had been found guilty by the Naples Court of negligent conduct for having failed to order the evacuation of the population during the night of 4 to 5 May 1998. The Court of Cassation’s ruling follows the Supreme Court’s earlier rejection in March 2010 of the acquittal handed down in 2008 by the Salerno Court of Appeal.