La tutela penale dell’art. 2 CEDU nelle attività a rischio base consentito: la colpa grave come limite soggettivo?

In recent years, the ECtHR has begun to include within positive obligations in criminal law also violations of Article 2 ECHR (right to life) committed involuntarily and by individuals that are not under the responsibility of public authorities, especially in the context of inherently hazardous activities. The Smiljanić v. Croatia case both confirms and innovates this interpretation; its theoretical implications can be criticised, but it also offers opportunities for criminal policy. Notably, the mens rea that Strasbourg judges require to be pursued in their rulings is that of recklessness or mise en danger, depending on the language versions of the text. The analysis of the meaning of these two terms in the respective national laws allows us to come to interesting conclusions with respect to both the systemic repercussions on positive obligations in the ECHR and on whether a criminal justice system that sanctions, in crimes against life, only a low level of colpa is compliant with the Convention.