updated on 9th of March 2020
From the Greek epi-demos: extended over the people.
The crime of epidemic is punished in Italy with life imprisonment.
“the enormous importance that has now acquired the possibility to come into possession of germs, capable of causing an epidemic, and to spread them…”
(A. Rocco, Minister of Grace and Justice of the Kingdom of Italy,
commentary on the new crime of epidemic, 1929)
The coronavirus (Covid-19) holds the world in suspense. Italy is entirely in lockdown.
No one today knows for sure the etiopathogenesis of this virus. The origin is unknown.
One thing is certain, it has spread and continues to spread.
Is the conscious coronavirus virus is punishable under Italian criminal law? Yes, life imprisonment.
On 29 January, the Italian Minister of Health ordered a total blockade of flights to/from China for 90 days. Italy and the Czech Republic are the only two European countries to have banned any direct flights to China with all airlines.
The U.S. has decreed level 4 alert and also the American companies have suspended flights. More than 70 airlines have suspended flights to China (since February 14, Lufthansa has also suspended flights to China). In Russia Aeroflot moved all flights to a dedicated terminal.
Etihad Airways decided on payroll bonuses and doubled the flight allowance for crews who agreed to fly to China during the epidemic, (the Beijing-Abu Dhabi route is still operational). The figure is relevant, considering that many countries have decreed quarantine (14 days) for all people who have been in China.
ICAO has estimated a contraction of flights from 39% to 41%, with 4-5 billion dollars of reduced operating revenues.
The Indian government has released throughout the population a note for prophylaxis in which, among others, a homeopathic treatment based on arsenicum album 30 is recommended, (here the article published by The Hindu newspaper).
In contrast, protective masks and sanitizers are experiencing a golden age. In 10 days, the Dpi in Rome has sold its 10 year stocks, with orders for tens of millions of pieces.
The race for the pharmaceutical companies’ vaccine has begun. Among them the Advent srl of Pomezia. China applied for a new patent for an experimental drug from Gilead.
In fact, there have been alternating rumors both on the origin of animal and on the possibility that it is linked to the activity of the BSL-4 laboratory in Wuhan (safety level 4). Francis Byle, author of the Biologycal Weapons Anti-Terrorism Act of 1989, an American expert on bioterrorism, has hypothesized that it is a bacteriological weapon of war and that the drastic measures adopted by the Beijing government, (including the sudden isolation of entire cities), are a direct expression of an awareness of the data and the dangerous effects of uncontrolled spread.
In February 2017 the magazine Nature, published a survey entitled Inside the Chinese lab poised to study world’s most dangerous pathogens, dedicated an investigation on the inauguration of the BSL-4 laboratory in Wuhan, home of the most dangerous pathogens on the globe, born with the aim of “facing the greatest biological threats on the planet”, (it is curious to note that today to that article the editorial staff has added a statement in which it distances itself from possible deductions with the coronavirus). The article can be found in the Italian version on Le Scienze: A Chinese laboratory for the most dangerous pathogens in the world.
Rumors about the possibility of a bioengineered strain of the virus intended for defensive immunotherapy protocols exploded again after Chinese state media have just reported that Major General Chen Wei, China’s leading expert on biochemical weapons for defense, will be stationed in Wuhan – now militarized – to lead efforts to overcome the deadly pneumonia virus.
Beijing has already had 4 incidents that have caused the SARS virus to escape from the laboratories.
Add to this the research published by the Chinese scientist Zhengli Shi, co-author of a controversial 2015 document describing the creation of a chimera virus, born from the combination of a coronavirus found in bats with another that causes acute acute human respiratory syndrome (SARS) in mice. The U.S. government has placed a moratorium against this kind of experiments in 2014.
US biosafety experts in 2017 had warned against the possibility of virus escape from Wuhan.
On the other hand, the research and patent application to modulate the spike-protein genes of a SARS-Cov coronavirus are public.
Recently, an email emerged that on January 2, 2020, the Wuhan Institute of Virology sent to all Chinese medical departments with which the disclosure of coronavirus infection data was banned, “must not be disclosed to the media, including the official media and organizations with which they collaborate. They are asked to ‘strictly adhere to what is required’. And then the director of the Institute, Wang Yan Yi, sent congratulations to the various departments of virology and research after Beijing’s orders.
On 27 January in the USA a boy infected with the coronavirus was treated for the first time with an experimental drug, Remdesivir, used for Ebola and SARS. He was cured on 30 January and the data were published on 31 January in the New England Journal of Medicine.
The interesting data?
On January 21, before the trial in the USA, Dr. Wang Yan Yi of the Wuhan Institute of Virology filed a patent application for a medicine suitable to treat the new coronavirus.
The result was that Remdesivir now meets intellectual property barriers for use in China. It was because of the patent application, look at it, from the Wuhan Institute of Virology.
Is it just a case?
No one knows for sure about diffusion and mortality data. The calculation criteria have recently been changed by China itself. The matter is of great complexity: difficulty in finding free information from infected areas, (two reporters investigating in Wuhan have disappeared, as reported by the BBC), the first doctor who reported the spread of a new virus, arrested tortured and now dead (here the interview with the New York Times), The abrupt isolation of entire cities, with tens of millions of inhabitants locked indoors, closed intercontinental flights to/from China, quarantined ships, statements by Guo Wengui, an exiled millionaire outside China and a few videos leaking from the internet are the information data with which we interface today.
As of March 9th, 2020, there were over 113,000 people infected and 4,000 dead. In Italy there are more 9.000 new cases.
A simple analysis of the available information reasonably leads us to believe that this is the most singular “influence” of the last centuries, after the Spanish one, which seems to have led to tens of millions of deaths in the world.
The origin of the Covid-19 coronavirus is unknown.
The hypothesis of human manipulation of the virus is an interesting clue to draw a picture of the epidemic crime, foreseen and punished in Italy by Article 438 of the Italian Criminal Code with life imprisonment and, in the original formulation of 1930, with the death penalty.
The term “epidemic” refers to a contagious disease that simultaneously affects the inhabitants of a city or region. From the Greek epi-demos: extended over the people.
In medicine, the epidemic coincides with any contagious or infectious disease which, in view of the spread of pathogenic germs, is characterized by a rapid and massive appearance in a given territorial context, infecting a significant number of people such as to cause social alarm and a consequent danger for an indeterminate number of individuals.
The Italian legislative system has various rules on epidemics, access to ports for infected and uninfected ships, even on the treatment of repatriation of corpses.
However, above all, it is to the penal code that the most invasive regulation of the epidemic is entrusted. The semantic perimeter is, of course, different.
The Italian Criminal Law takes into consideration a more restricted ambit with respect to the medical-scientific phenomenon, regulating the conduct of “diffusion of pathogenic germs“.
The crime of epidemic in our system is regulated by art. 438 of the Penal Code, which states that “Whoever causes an epidemic by spreading pathogenic germs is punished with life imprisonment. If the fact results in the death of several people, the death penalty is applied*“, (* the death penalty was abolished and replaced with life imprisonment by Legislative Decree no. 224 of 10.08.1944).
For the record, this crime is not time-barred, (regardless of the recent reforms), pursuant to Article 157, paragraph 8, of the Italian Criminal Code.
Placed to protect public safety, the crime is included in our Criminal Code among the “crimes of common danger through fraud”.
The crime of epidemic, structured in the legislative technique as a commission offence with a restricted form, sanctions the conduct of voluntary propagation of pathogenic germs of which the agent is in possession. The epidemic, in order to detect criminally, must be an event directly attributable to the indicted action.
It is interesting to observe how in the 1930s the Minister of Prayer and Justice A. Rocco, in introducing the new crime of epidemic and justifying the severity of the penalties, pointed out “It was recognized the need to provide for it in the Code, in relation to the enormous importance that has now acquired the possibility of coming into possession of germs, capable of causing an epidemic, and to spread them, and it was found justified the serious penalty, which is the penalty of life imprisonment for the typical form of the crime, and the death penalty, for the hypothesis that the fact results in the death of several people….”, (Preparatory work for the Criminal Code and Code of Criminal Procedure, 1929, p.229).
The provision of the Penal Code is extremely broad, in so far as it does not identify precise methods of spread, requiring only that the agent causes an epidemic by spreading pathogenic germs, without specifying the method of spread, (it is essential that the method of spread is capable of causing an epidemic, i.e. has the potential to reach a large number of people).
It is interesting to note that the italian Supreme Court has also dealt with the problem of the unctor (super spreader), making it clear that, for the purposes of diffusion, it is not necessary that the agent and the germs are separate entities, as the agent is the vector of pathogenic germs. The case of the untore concerned a man suffering from HIV accused of having infected, knowingly, a large number of women, (Cass. Sez. I, sent. n. 48014 of 26.11.2019). In that case the Court dealt with the legal distinction between “contagion” and “epidemic spread”, (what is different is in fact to infect someone with physical contact, compared to taking appropriate actions to trigger the epidemic type causal chain).
From this point of view, the untore who is aware of having contracted the coronavirus and continues to circulate freely, spreading the germs, meets a certain condemnation.
In short, from the legal point of view, the epidemic is characterized by an uncontrollable diffusivity within a significant number of subjects for a contagious disease of rapid development and autonomous within an indeterminate number of subjects and for a chronologically limited duration, (Sez. Unite, sent. 576, 11.01.2008, in Rv. 600899-92).
As far as the subjective element of the crime is concerned, (i.e. the degree of psychological participation of those who act), the epidemic is punished by fraudulent intent, since it is necessary for the acting subject to represent himself and want to cause the epidemic event.
For the sake of completeness, our Criminal Code also takes into consideration the hypothesis of a so-called “culpable epidemic“, framed in the incriminating case of art. 452 of the Criminal Code “culpable crimes against public health” with which the hypothesis of an unintended epidemic spread is punished with lighter penalties (from 3 to 12 years or from 1 to 5 years), but attributable to hypothesis of guilt (negligence, imprudence and inexperience).
Think of the (fanciful) example of an infectivologist, modern Arsenio Lupin, who enters a high-security laboratory where mortally dangerous viruses are kept and, in an attempt to steal one, unwittingly carries out actions from which the virus spread.
What would happen to the person who reasonably believes he is infected with coronavirus but fails to inform the Ministry of Health and the bodies responsible for diagnostic tests?
It is reasonable to believe that contravening the indications of the Ministry of Health, (a call centre has been set up with the public utility number 1500), could certainly lead to the assertion of hypotheses of responsibility, including criminal liability, on the part of the private individual.
Fantasy reconstructions aside, in Italy, contrary to what one might think, the Court of Cassation has been called upon several times to rule on hypotheses of an epidemic.
Recently, the S.C. has analyzed the accusation of culpable epidemic in relation to the waterborne epidemic that broke out in 2009 in a municipality of Brescia due to the presence of enteric viruses with an infectious charge found in the local public aqueduct for a deficient management of the aqueduct, the water purification process and the consequent exposure to public health hazards.
In the legal databases, there are judgments on the epidemic of animal and plant parasites linked to the recent Xylella and the immeasurable damage caused to the cultivation of olive trees. Or again on the African swine fever epidemic, which is the basis of a huge claim for compensation to the Public Administration due for the slaughter of pigs.
Our legislation also expressly regulates the cases in which a ship or an aircraft with infected persons asks for access to a port/airport.
Law no. 106 of 9 February 1982, art. 1, regulates the “Practice of ports or airports in a condition of epidemic, of ships or aircraft not infected” under which, except in the case of emergency involving serious danger to public health, the Health Authority of a port or airport may not, because of another epidemic disease, refuse free practice to a ship or aircraft that is not infected or suspected of being infected with a disease.
It is interesting to refer to the Royal Decree of 16 June 1938, n. 1055 with which the convention stipulated in Rome between the Vatican City and the Kingdom of Italy, concerning the mortuary police service, was approved. In that agreement, among others, agreement no. 1/4 regulated the transport of the corpses of persons who died during an epidemic, providing that “it may be permitted to transport, one year after death, the corpses of persons who died during an epidemic, or as a consequence of one of the diseases mentioned above, when they are wrapped in a sheet immersed in a disinfectant solution and closed in a metal box welded to fire”, “and then in another strong wooden box“[1]
Probably in the short term no one will be able to reconstruct how and why the Covid-19 coronavirus was born and spread.
However, our system offers all the tools to the Public Prosecutors to open an investigation.
