C.53 - Bultaco case

I.The facts of the case show how the appellant was driving his motorbike without being legally entitled to do so in the urban area of the city. He ran over a girl who unexpectedly ran out and went to get in the way of the vehicle. The girl suffered injuries.
II.On the basis of these facts, as proposed, the following is to be understood with regard to the criminal liability of the driver:

As the old aphorism Versanti in re illicita imputantur omnia, quae sequuntur ex delicto (To the one who performs an unlawful conduct is attributed everything that follows from it), all the effects of an initial unlawful conduct were imputed. Today it is understood that such an aphorism contradicts the (sub-) principle of culpability: in order to be able to impute, at least recklessness is required regarding the effects resulting from an unlawful conduct (offences qualified by result).

II.1.As to the existence of human conduct, there is no evidence to deny it: it is not conceivable to drive a vehicle, especially a motorbike, without engaging in human conduct; unless one suffers a blackout while driving, which is not the case. Moreover, the same words are used to express the human action and the driving of vehicles: "driving". He is therefore carrying out a human conduct, a process susceptible of self-control.
II.2. More doubtful is the objective imputation of result of the injuries suffered by the girl as a consequence of the hit and run. In this case, we must consider the reckless nature of the conduct, and the criteria for objective imputation in the case of subject imprudent. In effect, given that the agent did not perceive the unexpected presence of the victim in the trajectory of the vehicle, there is no malice, but rather that he was mistaken about this aspect. The fact that there is no malice does not mean that there is no imputation, as in some cases - those where there is an overriding error about elements of subject (and the presence of a victim in the path of the vehicle is for the purposes of a possible offence of injury or homicide) - imputation is maintained, in an extraordinary way, even without malice.
That driving is causal for the injuries is evident, if we apply the heuristic formula of the condicio sine qua non, because once the driving is removed, the hit-and-run disappears in turn. But in addition, we must also assess whether this driving entails the creation of a typically relevant risk, in this case of injury (arts. 147 ff. and 152). Driving a motorbike is not a prohibited risk, therefore the risk is permitted; furthermore, it is a non-relevant risk, as it would not then be understandable that automobile traffic is permitted in cities. However, driving without ID card raises doubts. Indeed, driving without ID card is not permitted, but criminally defined, so that we are dealing with a prohibited risk. However, this fact - which cannot be denied, as it is clearly stated in the facts that he was driving without a licence - does not necessarily lead to the assertion that the injuries are objectively attributable to the motorist's conduct. Driving without ID card is prohibited by a rule which aims to establish limits and restrictions for those who drive: but the fact that legal authorisation is required does not mean that those who drive do so without risk (bad drivers), nor that those without ID card drive at risk (a sanctioned professional driver who has not recovered his points). Rather, it is a rule whose purpose is to establish certain limits on driving, since it is foreseeable that by requiring a legal authorisation many risky behaviours will be avoided, among other purposes. However, if in the specific case, test , the person driving without ID card does not generate a risk for the legal assets belonging to the type of risks that the rule of injury or homicide is intended to prevent, then it can only be said that he has carried out the subject goal described in Art. 384.

Art. 384 CP, reformed by LO 15/2007 and LO 5/2010: "Whoever drives a motor vehicle or moped in cases of loss of validity of the licence or licence due to total loss of the legally assigned points, shall be punished with...".

It seems that this is what happened in this case: the injuries have been caused by the motorcyclist while driving, but his conduct does not generate a typically relevant risk of injury (arts. 147 ff.): driving without ID card is prohibited by a rule whose purpose is different to that which prohibits injury and death. It would be different if his driving were risky, but nothing is said in the facts about a possible driving of this kind class by the motorcyclist. It could be argued that the purpose of protection of the rule which requires the wearing of ID card does not include preventing some subjects (the girl) from suddenly jumping into the street and exposing themselves to danger. In conclusion, there is no objective imputation between the result of injuries and the motorist's conduct.
II.3. If there is no objective imputation, it makes no sense to consider the other categories of the legal theory of crime (unlawfulness, culpability, punishability).

III.The motorist must be acquitted of the liability of which he was accused. This does not prevent the offence of driving without ID card from being considered as having been committed subject goal . It would be appropriate to continue with the subjective subject and other categories of the theory of the offence, which we will not deal with here.

Cf. furthermore, C.21.