Sentenza reato di epidemia colposa da Covid 19 nella casa di riposo “Don Bosco” A cura dell'Ufficio Salute e Sicurezza

Roma, 1 giugno 2021 – Cassazione Penale, Sez. 4, 24 maggio 2021, n. 20416 – Reato di epidemia colposa da Covid 19 nella casa di riposo. Non sussiste nesso di causalità tra l’omessa integrazione del DVR con il rischio biologico e la diffusione del virus.
Con la sentenza del 24 maggio 2021 n. 20416 la Corte di Cassazione ha rigettato il ricorso presentato dal Procuratore della Repubblica del Tribunale di Caltagirone avverso l’ordinanza del Tribunale per il riesame di Catania con la quale è stato annullato il decreto di sequestro preventivo della casa di riposo “Don Bosco” di Caltagirone emesso (il 14-15 maggio 2020 dal G.i.p. del Tribunale di Caltagirone) nei confronti di G.L., indagato per epidemia colposa (artt. 438-452 c.p.) e per violazioni in materia di salute e di sicurezza del lavoro (artt. 65, 68 e 271 del d. lgs.n. 81/81), fatti ipotizzati come commessi tra il 22 aprile ed il 5 maggio 2020.
G.L. è il legale rappresentante della società cooperativa sociale che gestisce la casa di riposo “Don Bosco” di Caltagirone, oggetto di accertamenti da parte dei Carabinieri, che hanno segnalato, tra l’altro, l’omessa doverosa integrazione del DVR con le procedure previste dal D.P.C.M. 24 aprile 2020 e l’omesso aggiornamento dello stesso.
Nel primo motivo del ricorso il Procuratore della Repubblica ha lamentato la violazione degli artt. 438 e 452 c.p., affermando che il Tribunale ha erroneamente ritenuto che il reato di epidemia colposa postula necessariamente una condotta commissiva a forma vincolata, condotta che nel caso di specie non era stata ritenuta sussistente.
La Suprema Corte nel rigettare il ricorso ha escluso la configurabilità della fattispecie nella vicenda in esame in quanto l’ordinanza del Tribunale ha richiamato un recente orientamento giurisprudenziale secondo cui, “in tema di delitto di epidemia colposa, non è configurabile una responsabilità a titolo di omissione in quanto l’art. 438 c.p., con la locuzione “mediante la diffusione di germi patogeni”, richiede una condotta commissiva a forma vincolata incompatibile con il disposto dell’art. 40, comma 2, c.p., riferibile esclusivamente alla fattispecie a forma libera” (Cass. Pen. Sez. 4, n. 9133 del 12/12/2017).
La Corte di Cassazione ha aggiunto che, in ogni caso, l’ordinanza giustifica la decisione di annullamento del sequestro con una “doppia motivazione” con la quale il ricorrente non si è confrontato.
Infatti, secondo i Supremi Giudici, il Tribunale ha affermato che “In ogni caso, ritiene il Collegio che, anche a voler aderire all’orientamento minoritario della dottrina e della giurisprudenza che qualificano il reato di epidemia colposa nella categoria dei c.d. “reati a mezzo vincolato” e come tali compatibili di essere convertiti, mediante la clausola di equivalenza di cui all’art. 40, secondo comma, c.p., in illeciti omissivi impropri, nel decreto di sequestro preventivo disposto in via d’urgenza il 12.05.2020 dal p.m. ex art. 321, comma 3 bis, c.p.p. e nel successivo decreto di sequestro preventivo disposto dal Gip di Caltagirone, ex art. 321 c.p.p., il 14.05.2020, non vengono dedotti né illustrati gli elementi e le ragioni logico-giuridiche in base ai quali la condotta omissiva ascritta all’indagato sia causalmente collegabile alla successiva diffusione del virus da Covid-19 tra i pazienti ed il personale dalla casa di riposo diretta dal ricorrente […] Ed invero, alla stregua del giudizio controfattuale, ipotizzando come realizzata la condotta doverosa ed omessa dall’indagato, non è possibile desumere “con alto grado di credibilità logica o credibilità razionale” che la diffusione/contrazione del virus Covid-19 nei pazienti e nei dipendenti della casa di riposo sarebbe venuta meno. Non è da escludere, infatti, che qualora l’indagato avesse integrato il documento di valutazione dei rischi e valutato il rischio biologico, ex art. 27 D. lgs. 81/2008, la propagazione del virus sarebbe comunque avvenuta per fattori causali alternativi (come ad esempio per la mancata osservanza delle prescrizioni impartite nel DPCM per le case di riposo quali di indossare le mascherine protettive, del distanziamento o dell’isolamento dei pazienti già affetti da covid, ovvero a causa del ritardo negli esiti del tampone). Quanto accertato, dunque, non è sufficiente a far ritenere, in termini di qualificata probabilità richiesta in questa sede, la ricorrenza del fumus della fattispecie di epidemia colposa».
La Suprema Corte ha dunque sostenuto che la motivazione del Tribunale è esistente, non incongrua e non illogica, di per sé non sindacabile in sede di legittimità. Ne è conseguito il rigetto dell’impugnazione.

 

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