When the Victim Becomes “Guilty”: The Crisafulli Case and the Last Door in Strasbourg

At 10:43 p.m. on 6 March 2017, at the junction of Via De Logu, Via Del Bosco and Via Zacco in Catania, the life of Domenico “Mimmo” Crisafulli came to a halt against a Smart car. He was twenty-five years old and the father of two children. The charge brought against the driver, Anastasia Conti, alleged that she had failed to stop at a STOP sign and yield the right of way; in the same document, however, Crisafulli was said to have been travelling above the permitted speed limit. From this second assertion arose the issue that makes the case more than a tragic road-traffic story: a deceased victim, no longer able to defend himself, entered the criminal judgment through the attribution to him of conduct deemed to have been a concurrent cause of the accident.

This must be stated without distortion. Mimmo was not found criminally guilty: the quotation marks are essential. Article 589-bis(7) of the Italian Criminal Code, introduced by Law No. 41 of 2016 on road traffic homicide, provides that, where the event is not the sole consequence of the offender’s act or omission, the sentence may be reduced by up to one half. In the Crisafulli case, that reduction was applied by giving weight to the victim’s driving conduct. The issue, therefore, is not a posthumous conviction, which has no legal existence, but the weight assigned to the victim in determining the sentence without his family being able, in those proceedings, to challenge the reconstruction of events.

The procedural history explains the paradox. Following an initial request for the case to be dismissed - which the family opposed, leading to the continuation of the investigation - on 13 September 2018 the public prosecutor and the defendant submitted a joint request for the application of an agreed sentence during the preliminary investigation, pursuant to Article 447 of the Italian Code of Criminal Procedure. The calculation preserved in the case file began with two years’ imprisonment; this was reduced to one year under Article 589-bis(7), then to eight months by virtue of general mitigating circumstances and finally, following the reduction attached to the chosen procedure, to five months and ten days, with suspension of the sentence and the benefit of non-disclosure in criminal-record certificates. The judge for preliminary investigations at the Court of Catania approved the agreement on 8 January 2019.

The Italian negotiated-sentence procedure, governed by Articles 444 et seq. of the Code of Criminal Procedure, is not a private bargain insulated from judicial scrutiny. The agreement is reached between the defendant and the public prosecutor, but the judge must review the legal classification of the offence, the application and balancing of the relevant circumstances, the appropriateness of the sentence and the absence of grounds for acquittal or dismissal. It is, however, a procedure designed to resolve the defendant’s criminal position swiftly. Neither the victim nor the civil claimant has a power of veto over the sentence and, at the hearing provided for by Article 447 during the preliminary investigation, they do not participate in the adversarial exchange between the parties to the agreement.

It is within this framework that the Crisafulli case reveals a fault line. If the hearing concerned only the length of the agreed sentence, excluding the civil claimant would follow the logic of the procedure. Here, however, reaching that sentence required a judgment to be made about the conduct of the deceased. The reduction did not fall from the sky: it also depended on the proposition that the event had not been caused exclusively by the defendant’s driving. Can proceedings assess the victim’s conduct, use it to halve the starting sentence and, at the same time, deny the family any opportunity to submit rebuttal evidence? This is the question that the case places before the law. Not whether the family should have been allowed to choose the sentence, but whether they should at least have been permitted to speak about conduct attributed to someone who could no longer speak for himself.

Pietro Crisafulli, Mimmo’s father, and the Associazione Italiana Familiari e Vittime della Strada - the Italian Association of Families and Road Victims - brought the matter before the Court of Cassation. Their appeals challenged the finding of contributory causation, the appropriateness and lawfulness of the sentence, the failure to allow the victims to be heard and the award of legal costs. The association also requested that a question concerning the constitutionality of Article 589-bis(7) of the Criminal Code and Article 447 of the Code of Criminal Procedure be referred for review in the light of Articles 3 and 24 of the Italian Constitution. It further relied on Directive 2012/29/EU concerning victims’ rights.

Meanwhile, as is well known, Crisafulli has not confined his struggle to legal proceedings. For years, he has sought to transform the wounds that have marked his family into public denunciation and active remembrance. He has done so through voluntary associations, road-safety campaigns and independent cinema, as demonstrated by La voce negli occhi (The Voice in the Eyes), a work devoted to the story of his brother Salvatore. After Mimmo’s death, that commitment acquired an even greater urgency. His son’s name has been carried into public squares, memorial events and initiatives addressed to institutions; more recently, the same demand for justice has found musical expression in Giustizia per Mimmo (Justice for Mimmo) e N'ergastolo e dolore di Agatino Crisafulli, songs produced by Seamusica Official in which Pietro personally gives voice to his appeal. This is neither a merely emotional appendix to the case file nor an attempt to replace law with sentiment. It is, rather, the civic extension of a legal battle: where procedural rules and legal codes denied the family the opportunity to challenge the judgment made about their deceased son’s conduct, cinema and music restored a public voice to Mimmo. Private grief thus became collective memory, rescued from oblivion and placed before public institutions as a matter of responsibility.

Returning to the legal and procedural history, the Fourth Criminal Division of the Court of Cassation ruled on 11 February 2020; Judgment No. 10685/2020 was filed on 27 March. This must be reported accurately, because oversimplification creates a false narrative. The Court of Cassation did not reopen the determination of how the accident had occurred, nor did it set aside the negotiated-sentence judgment. It declared the grounds challenging the substance of the agreement inadmissible, holding that a victim who had suffered damage had no standing to appeal those parts of the judgment and that, under Article 445(1-bis) of the Code of Criminal Procedure, a judgment delivered pursuant to Article 444 has no effect in civil or administrative proceedings. It also found the reliance on the European directive manifestly unfounded: according to the line of authority it cited, the directive safeguards victims’ rights to information and protection, as well as their civil interests, but does not grant them the right to be heard on the appropriateness of the sentence.

Only one ground succeeded. The Court set aside the judgment solely with respect to the award of legal costs in favour of the civil claimants, because the award of nine hundred euros to each claimant was inadequately reasoned and fell below the minimum amounts established under Ministerial Decree No. 55 of 2014. The case was remitted to the Court of Catania for a fresh ruling on that issue. It is difficult not to perceive the bitterness of the disproportion: the only procedural door left open concerned counsel’s fees, not the possibility of challenging the finding that the victim had made a causal contribution to the accident.

Once domestic remedies had been exhausted, the battle moved beyond Italy’s borders. The application form addressed to the European Court of Human Rights identifies Pietro Crisafulli and the association as the applicants, represented by lawyer Davide Tirozzi, and Italy as the respondent State. It was signed on 17 December 2020; the documentation also includes a postal receipt bearing a Council of Europe stamp dated 4 January 2021. The application was lodged in exercise of the right of individual application provided for by Article 34 of the European Convention on Human Rights and states that domestic remedies were exhausted with the Court of Cassation’s ruling.

At the heart of the complaint lies Article 10 of Directive 2012/29/EU, implemented in Italian law by Legislative Decree No. 212 of 2015. This provision requires Member States to ensure that victims may be heard during criminal proceedings and may provide evidence, while leaving national law to determine the applicable procedural rules. The application argues that Article 447 of the Code of Criminal Procedure seriously impairs that right when it excludes the civil claimant from the hearing at the very moment the decision gives weight to conduct attributed to the victim. At its strongest, the application does not ask that the family be given the power to determine the sentence. It asks that they not be reduced to silence when that sentence is constructed partly upon a judgment concerning their deceased relative.

Here, precision matters more than emphasis. Strasbourg is not a court of fourth instance: it does not recalculate the speed of the vehicles or replace the Italian court’s sentence with one of its own. Nor does it rule directly on the violation of a European Union directive: the European Court of Human Rights applies the Convention and its Protocols. Reliance on Article 10 of the directive may reinforce the broader European context of the protection sought, but the complaint must fall within the rights guaranteed by the Convention - beginning with Article 6 where a civil claim is at stake - and must satisfy the admissibility requirements of Article 35.

There is, moreover, an inconvenient precedent that no serious analysis can conceal. In its decision in Mihova v. Italy of 30 March 2010, the European Court of Human Rights held that the Convention does not confer upon victims a right to “private revenge” or to secure a harsher sentence; in that case, it considered the opportunity to bring separate civil proceedings sufficient. The Crisafulli case must therefore be distinguished rigorously. The point is not to demand an exemplary sentence, but to denounce the impossibility of challenging an assertion about the deceased’s conduct that was used in the reasoning by which the sentence was determined. Whether that distinction is sufficient is for the Court alone to decide.

For the same reason, it would be inaccurate to state that the application has been “declared admissible” or that it is currently pending. The available documents establish that it was drafted, signed and dispatched; they contain neither an admissibility decision nor a ruling on the merits. Hope must not be nourished by news that does not exist. It must rest upon the force of the question itself: can a State treat the victim’s voice as formally irrelevant while simultaneously treating his alleged conduct as relevant for the purpose of reducing the sentence?

Pietro Crisafulli has described his condition as “a life sentence of pain.” It is a harsh expression, but it does not ask for revenge. It reminds us that justice is not measured solely by the length of a prison sentence: it also means recognition, being heard, the opportunity to challenge, and trust in the transparency of public institutions. A procedure may be formally correct and yet leave a substantive wound when those who have lost a son discover that the deceased’s procedural voice carries less weight than the judgment pronounced upon him.

The European avenue guarantees no particular outcome; it guarantees that a claim, if admissible, may be measured against a supranational standard of human rights. That is what occurred in Giorgioni v. Italy, application no. 43299/12. On 15 September 2016, Strasbourg found that, during the period from 2006 to 2010, Italy had violated Article 8 of the Convention because its authorities had failed to make adequate and sufficient efforts to render a father’s contact rights effective. It was a different case, and that must be made clear; the dividing line, however, was the same: the distance between a right written on paper and protection made effective in practice. Giorgioni teaches us that, at times, what remains merely a hope in Italy finds beyond the peninsula the more exacting name of justice. It is the last door upon which the Crisafulli case, too, now knocks.

Bibliographical, Legislative and Case-Law Note

Legislative Sources

Consiglio d’Europa. (1950). Convenzione per la salvaguardia dei diritti dell’uomo e delle libertà fondamentali (Roma, 4 novembre 1950; in particolare artt. 6, 8, 34 e 35). Corte europea dei diritti dell’uomo.

Costituzione della Repubblica italiana. (1947). Gazzetta Ufficiale della Repubblica Italiana, edizione straordinaria, n. 298, 27 dicembre 1947 (in particolare artt. 3 e 24). Senato della Repubblica.

Decreto del Presidente della Repubblica 22 settembre 1988, n. 447. (1988). Approvazione del Codice di procedura penale (in particolare artt. 444, 445, comma 1-bis, e 447). Gazzetta Ufficiale della Repubblica Italiana, Serie generale, n. 250, Supplemento ordinario n. 92, 24 ottobre 1988. Normattiva.

Decreto legislativo 15 dicembre 2015, n. 212. (2015). Attuazione della direttiva 2012/29/UE del Parlamento europeo e del Consiglio, del 25 ottobre 2012, che istituisce norme minime in materia di diritti, assistenza e protezione delle vittime di reato e che sostituisce la decisione quadro 2001/220/GAI. Gazzetta Ufficiale della Repubblica Italiana, Serie generale, n. 3, 5 gennaio 2016. Gazzetta Ufficiale.

Direttiva 2012/29/UE del Parlamento europeo e del Consiglio. (2012, 25 ottobre). Direttiva che istituisce norme minime in materia di diritti, assistenza e protezione delle vittime di reato e che sostituisce la decisione quadro 2001/220/GAI (in particolare art. 10). Gazzetta ufficiale dell’Unione europea, L 315, 57–73. EUR-Lex.

Legge 4 agosto 1955, n. 848. (1955). Ratifica ed esecuzione della Convenzione per la salvaguardia dei diritti dell’uomo e delle libertà fondamentali, firmata a Roma il 4 novembre 1950, e del Protocollo addizionale firmato a Parigi il 20 marzo 1952. Gazzetta Ufficiale della Repubblica Italiana, n. 221, 24 settembre 1955. Normattiva.

Legge 23 marzo 2016, n. 41. (2016). Introduzione del reato di omicidio stradale e del reato di lesioni personali stradali, nonché disposizioni di coordinamento. Gazzetta Ufficiale della Repubblica Italiana, Serie generale, n. 70, 24 marzo 2016. Gazzetta Ufficiale.

Ministero della Giustizia. (2014). Decreto 10 marzo 2014, n. 55: Regolamento recante la determinazione dei parametri per la liquidazione dei compensi per la professione forense. Gazzetta Ufficiale della Repubblica Italiana, Serie generale, n. 77, 2 aprile 2014. Gazzetta Ufficiale.

Ministero della Giustizia. (2018). Decreto 8 marzo 2018, n. 37: Regolamento recante modifiche al decreto 10 marzo 2014, n. 55. Gazzetta Ufficiale della Repubblica Italiana, Serie generale, n. 96, 26 aprile 2018. Gazzetta Ufficiale.

Regio decreto 19 ottobre 1930, n. 1398. (1930). Approvazione del testo definitivo del Codice penale (in particolare art. 589-bis, introdotto dalla legge 23 marzo 2016, n. 41). Gazzetta Ufficiale del Regno d’Italia, n. 251, Supplemento straordinario, 26 ottobre 1930. Normattiva.

Documents and Decisions in the Crisafulli Proceedings

Procura distrettuale della Repubblica presso il Tribunale di Catania. (2018, 13 settembre). Richiesta di applicazione della pena nel corso delle indagini preliminari ai sensi dell’art. 447 c.p.p. (proc. pen. n. 3014/2017 R.G.N.R.).

Tribunale di Catania, Giudice per le indagini preliminari. (2019, 8 gennaio). Sentenza di applicazione della pena ai sensi dell’art. 444 c.p.p. nei confronti di Anastasia Conti (proc. pen. n. 3014/2017 R.G.N.R.–n. 9690/2017 R.G. GIP).

Corte suprema di cassazione, Sezione IV penale. (2020, 27 marzo). Sentenza n. 10685/2020 (decisione dell’11 febbraio 2020; R.G.N. n. 27972/2019; sent. sez. n. 159/2020).

Crisafulli, P., & Associazione Italiana Familiari e Vittime della Strada. (2020, 17 dicembre). Ricorso individuale contro la Repubblica italiana ai sensi dell’art. 34 CEDU.

Case Law of the European Court of Human Rights

Corte europea dei diritti dell’uomo, Sezione II. (2010, 30 marzo). Mihova c. Italia (dec.), ricorso n. 25000/07. HUDOC. https://hudoc.echr.coe.int/eng?i=002-1029.

Corte europea dei diritti dell’uomo, Sezione I. (2016, 15 settembre). Giorgioni c. Italia, ricorso n. 43299/12. HUDOC.

Film and Musical Work

La voce negli occhi [Film]. (2016). Sicilia Risvegli Onlus–SRO Film.

Crisafulli, P. (2026, 19 luglio). Giustizia per Mimmo [Brano musicale]. Seamusica.

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