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Olivier Leclerc et Alessandra Galluccio
p. 243-250

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1Les experts sont irresponsables, dit-on parfois : investis d’un quasi-pouvoir de décision, ils n’en assumeraient pas la responsabilité. Pour d’autres, les experts sont soumis aux règles de responsabilité civile, pénale, voire disciplinaire, de droit commun ; le fait que ces règles soient peu mobilisées ne changeant rien à cet égard. Ainsi engagée, la discussion est sans doute vouée à l’impasse. Car, en définitive, l’appréciation de la responsabilité des experts est indissociable de l’analyse que l’on fait de la contribution qu’ils apportent à la prise de décision.

2Dans ce débat, l’affaire de L’Aquila fait partie des références incontournables. Des experts italiens – géologues, volcanologues, sismologues – avaient été condamnés pénalement en première instance, suite à la diffusion d’avis rassurants qui avaient conduit la population de L’Aquila, dans les Abruzzes, à cesser de prendre des précautions face à une secousse sismique meurtrière qui devait finalement se produire quelques jours plus tard, le 6 avril 2009. D’aucuns ont vu dans cette décision le signe de ce que les experts n’étaient pas exemptés de toute responsabilité dans le cadre de leur activité. Pour d’autres, il y avait là une très mauvaise nouvelle, susceptible de décourager les scientifiques de participer à des expertises, et ne tenant nullement compte du fait que les experts ne font que donner l’avis qui leur est demandé, et ne décident en aucun cas.

3La décision rendue par les premiers juges a finalement été infirmée en appel le 14 novembre 2014. L’occasion méritait d’être saisie pour examiner en détail cette affaire. Car, pour en saisir la signification et la portée, il est indispensable de comprendre exactement les incriminations en jeu en droit italien, les procédures suivies et la teneur des décisions en cause. Alessandra Galluccio, doctorante en droit pénal à l’université de Milan, revient ici sur ces deux décisions.

4Olivier Leclerc

Expert’s Liability and Risk Management – Lessons from L’Aquila Trial

I. Introduction: The seismic swarm and the destructive earthquake that hit L’Aquila the 6 April 2009

5Since December 2008, the Italian city of L’Aquila, in the region of Abruzzo, had been experiencing a series of earth tremors. As the frequency of seismic swarm increased, the inhabitants of L’Aquila were becoming more and more anxious. In particular, the population was looking for a reliable scientific explanation of the phenomenon, an explanation that local experts of the Civil Protection Department – which is the Italian organism that deals with the prevention of risks and coordinates the response to natural disasters – were not able to provide.

6Moreover, during the month of March, the local media gave great visibility to a laboratory technician, Giampaolo Giuliani, that claimed to be able to forecast a strong earthquake from the raising levels of radon gas in the area. The reliability of that method, however, was widely disputed and most of the scientific community considered it completely unsound. For those reason the technician was accused of causing false alarms and for terrifying the population.

7On March 30, 2009, a sizeable earthquake (4.1 in the moment magnitude scale) hit the city and the population, acting out of fear, gathered in the streets. Many people refused to come back home after the shock and spent the night outdoors, in their cars. That very day, the authorities of the Civil Protection Department understood that the situation was getting out of hand and decided to take the lead on the issue. On the following day, they called an emergency meeting of the National Commission for the Forecast and Prevention of Major Risks (Commissione Grandi Rischi). The Commission is one of the central boards of the Civil Protection Department : it has the role to advice the Head of the Department on technical-scientific matters and it provides directions on how to improve evaluation capability and prediction and prevention of various risks. Some of Italy’s most prominent and internationally respected seismologists and geological experts were members of that Commission and they joined the meeting together with other scientists and with an exponent of the Head of the Civil Protection Department.

8To be more specific, four of the seven people who participated in the meeting were members of the Commission : the volcanologist Franco Barberi (University of Roma Tre), the geophysicist Enzo Boschi (then president of Italian National Institute of Geophysics and Volcanology), the seismologist Claudio Eva (University of Genova) and the seismic engineer Gian Michele Calvi (University of Pavia) ; the others three participants were : the seismologist Giulio Selvaggi (Italian National Institute of Geophysics and Volcanology), the seismic engineer Mauro Dolce (Civil Protection Department) and the deputy head of the Civil Protection Department Bernardo de Bernardinis.

9In order to maximize both its visibility and impact, the meeting was held in L’Aquila and not in Rome, as is customary. The intent of the Head of the Civil Protection Department was to discredit Giuliani’s assessments on the imminence of a major earthquake by reasserting that earthquakes are impossible to predict. That message, spreading from the most prominent experts in the field, was supposed to reassure the population and reduce the risk of unjustified panic. For all those reasons the meeting was given high visibility and some of the participants granted interviews to the local medias. Bernardo de Bernardinis, in particular, few minutes before entering the meeting held a hurried press briefing in reassuring tones ; he said that the seismic swarm “pose no danger” and that the “scientific community” had confirmed to him that the situation was “favorable’ ; he added that it was positive that the seismic activity was going on, because minor tremors were “discharging energy” from the fault, lowering the probability of a major shock ; finally, prompted by the interviewer, he encouraged the public to rise a glass of wine instead of being worried.

10The meeting started at six p.m. and lasted more or less one hour. According to the minutes, the scope of the brief consideration of the experts was to reassess that there is no accepted scientific method for earthquake prediction that can be reliably used – given the current scientific understanding of the earthquakes, it was impossible to predict if and when a strong shock would hit L’Aquila in the near future.

11The mayor of L’Aquila and a member of the local council, that had joined the meeting, granted some interviews immediately after the reunion. They essentially told the press that they were now able to reassure the population, because the analysis of the seismic swarm, according to the scientists, did not permit to say that a major earthquake was on the way.

12Nevertheless, less than a week later – on 6 April 2009 – a devastating earthquake struck the city. The main shock occurred at night, it was rated 5.9 in the Richter scale and 6.3 in the moment magnitude scale and it was felt throughout central Italy. L’Aquila and the villages around were ravaged : 309 people died and more than 1500 were injured. Most of the L’Aquila’s medieval structures collapsed, especially in the city center, but even many modern buildings suffered great damages : much of those buildings were declared unsafe and at least 60.000 people were forced to abandon their homes.

  • 1   Tribunale dell’Aquila, 22 ottobre 2012, n. 380, giudice Billi, imputati Barberi e altri

13During the months immediately after the disaster, the Public Prosecutor at the Court of L’Aquila had pursued criminal investigation against the members of the Commission, claiming that the reassuring outcome of the meeting caused some of L’Aquila’s residents death. In particular, some people stayed indoors on the night of the devastating earthquake instead of seeking shelter outside – as they had been doing since the seismic swarm began – their decision based on the basis of reassurance provided by the scientists. As a result 29 people were killed in the collapse of their houses. In September 2011, “the L’Aquila seven” – as the international press called them – went on trial, charged with multiple manslaughter and grievous bodily harm. The trial ended in October 2012 : each of the seven defendants was given a six-year prison sentence and perpetual interdiction from public offices1. The sentence against the “L’Aquila seven” stunned the scientific community worldwide and became the subject of headlines around the world. The American Geophysical Union and the American Association for the Advancement of Science (AAAS) issued statements in support of the Italian defendants, saying that it was “unfair and naïve” of local prosecutors to charge the men for failing “to alert the population of L’Aquila of an impending earthquake”. Around 5,000 scientists signed an open letter of protest addressed to the Italian president Giorgio Napolitano, stating that “there is no accepted scientific method for earthquake prediction that can be reliably used to warn citizens of an impending disaster […] to expect more of science at this time is unreasonable”. The general feeling was that not the scientists, but the science itself was put on trial and condemned by a sentence often held to be medieval. Bewilderment if not even strong disapproval arose from the statements of prominent scientists from all over the world, see for all the words of Prof Lord May of Oxford (former president of the Royal Society) : “the sentence handed down to six Italian scientists is truly shocking, revealing appalling ignorance of the basic nature of scientific inquiry within the Italian legal system. The verdict might have been understandable in the Dark Ages, standing alongside the persecution of Galileo, but in today’s world it simply is an embarrassment to the Italian Government and anyone associated with it”. The conviction also triggered outcry from the journal Nature, that claimed that “the verdict is perverse and the sentence ludicrous” and warned about the chilling effect on the ability of scientists to serve in public risk assessments. According to most of the international press, the conviction of the “L’Aquila seven” could turn to be a very dangerous precedent, having a significant impact on the way scientists deal with the media. As a matter of fact – although the trial has been widely described as one against scientists who were unable to predict the earthquake and to alert the people – the sentence makes it clear that the trial was not about the scientists’ possibility to predict earthquakes, but rather about their inability to communicate risk effectively.

II. What the scientist were charged for? The structure of the formal accusation and the Court of first instance verdict

14To understand exactly what the members of the Commission were charged of, it is essential to analyze the formal accusation made by the Public Prosecutors. The defendants were accused of an act – and not of an omission – , consisting in spreading reassuring statements concerning the risk of an imminent destructive shock. According to the prosecution, those statements were such as to induce the population to abandon the precautionary measures normally adopted in case of fear of an imminent earthquake. In particular, the message of the Commission – made up of imprecise and contradictory information on the nature, causes, hazard and future developments of the seismic activity – had interfered with the local earthquake culture : the combination of the age-old precautionary rules traditionally followed by people living in a seismic zone. The first of those rules is the one that prescribes to go out of the houses and spend the night outdoors after the occurrence of a noticeable shock. It was a customary rule that 29 of the 309 victims of the devastating earthquakes had meticulously followed until they heard the assurances spreading from the scientists and that they abandoned immediately after. The reassuring statements coming from the members of the Commission – the prosecutors maintained – “anesthetized” the fear of the earthquake and induced the victims to stay in their homes the night between the 5 and the 6 of April 2009, despite the fact that, that night, two noticeable shock were felt in L’Aquila before the devastating one. The causal link between the message and the victims’ decision to stay home – decision that brought them to death or to suffer body injury because of the collapsing of their houses – is explained, according to the prosecution, by the “social representation theory’. This theory arose from an analysis of the witnesses’ depositions during the trial made by Antonello Ciccozzi, an anthropologist at the University of L’Aquila. According to that theory, the closer the source of the message is, the stronger is the message ; moreover, the greater the scientific credibility of that source is, the more the message is perceived as reliable by mainly educated people. The combination of those two circumstances with the fear and the hunger for information of L’Aquila’s population during the seismic swarm had led, as a result, to convince some of them to stay home. The victims, therefore, would not have stayed home the night of the earthquake but for the defendants conduct. The Court of first instance was persuaded by such a causal connection, although the defendants’ lawyer argued that it is impossible to prove that the only reason why some people stayed at home the night of 6 April was the statements of the Commission. How can ever be held that the defendants caused the victims to act in that way ? L’Aquila people were not lacking in rational capacity, so – according to the defendants’ lawyers – they must be considered causally responsible for their conduct on the general principle of individual autonomy.

15Once it has been established that the scientists are causally responsible for the act specified in the formal accusation, it must also be shown that they fulfilled the fault requirements for the offence. With regard to the fault-based liability of the scientists, the statements issued by the Commission were considered – by the prosecution – contrary both to the normative duty of risk assessment imposed on the members of the commission and to the general duty of prudence required for communicating the results of risk analysis. According to the Court of first instance – which subscribes to the Prosecutors’ arguments – , the scientists provided incomplete, imprecise and contradictory information to the public. The basis of the charge – the Court reassess it thousands of times in the first instance sentence – is not that the members of the Commission did not predict that a major earthquake was on the way, because the task of predicting the devastating shock occurred in the night of the 6 April 2009 was impossible, acknowledged the Court. Nevertheless the defendants, as functionaries of the state, had certain duties imposed by law : first of all they had to evaluate and characterize the risks that were present in L’Aquila. The assertions they made concerning the assessment of risks connected to the seismic activity in the area around L’Aquila turned out to be completely vague, generic and ineffective. According to the Court, the scientists completely downplayed the importance of the evaluation of the density of urban population, for example, or of the fragility of many ancient buildings in the city center.

16The fault the defendants are charged of was neither to have minimized the likelihood of a major shock, nor to have failed to give adequate warnings to the population. The task the scientists had to accomplish in the meeting of March 31 was to make a complete analysis of the seismic risk in L’Aquila – an analysis that members of the Commission, according to the Court, failed to do.

17In addition, according to the prosecution, the defendants issued an overly optimistic message, that turned to be misleadingly reassuring about the dangers that the city faced. The thesis of the Prosecution was that during the meeting – fairly short, it lasted just one hour – the members of the commission have not tried at all to accomplish their prevention duties. Such an observation was suggested by some wiretap evidence that emerged in January 2012 in an unrelated trial. The wiretap was about the phone conversation between Guido Bertolaso – then head of the Civil Protection Department – and a local official from L’Aquila. They were talking about the forthcoming meeting and Bertolaso said clearly that the meeting has been called because he wanted to reassure the public. More specifically, the then head of The Civil Protection Department – which is, as already mentioned, an institution directly depending on the government – said : “I told him [De Bernardinis] to schedule a meeting in L’Aquila about this story of this seismic swarm […] to immediately silence any imbecile’s allegations, concerns and so on”. He continued : “That is more like a media operation, you understand ? So they, […] the leading experts of earthquakes, they will say : it is normal, these are phenomena that often occur, it is better to have one hundred shocks of the 4th grade on the Richter scale rather than silence, because one hundred shocks release energy and so there will never be a shock that really hurts”. According to the Prosecution, therefore, one might suspect that the meeting was simply a way to supply a prearranged reassuring message instead of an occasion to provide a proper characterization of the seismic risk impending over the city.

18The Court of first instance embraces the prosecutors’ assumption. In the grounds of the judgment (which ran for more than 900 pages) the Court was at pains to say the experts had not been sentenced for failing to predict the earthquake, a task it acknowledged was impossible. But the advice they gave to the authorities and the populations was excessively vague, generic and ineffective. “Science” is not being put on trial for not having succeeded in predicting the earthquake of April 6th 2009,” the Court wrote. “The task of the accused […] was certainly not to predict the earthquake and indicate the month, day, hour and magnitude, but rather, more realistically, to go ahead (...) with the “prediction and prevention of the risk”. Such an analysis would have lead the defendants to pronounce different statements and would not have reassured the population inducing them to stay home instead of running out when sensible shocks hit the city.

III. Something doesn’t work: the scientists win appeal

  • 2   Corte d’Appello dell’Aquila, sent. 10 novembre 2014 (dep. 6 febbraio 2015), n. 3317, Presidente (...)

19On November 10, 2014 the L’Aquila’s Court of Appeal upheld the appeals of the scientists against their conviction for the negligent reassurances they had given to the population of the city of L’Aquila before the earthquake2. The panel of three judges announced that the six scientists involved in the meeting were absolved on the grounds that evidence for their crimes “does not exist.” However, the deputy head of civil protection department (Bernardo De Bernardinis) remains convicted, although his six-year sentence has been reduced to two years and suspended (which means he will not serve time unless he commits another crime or his sentence is changed in a later appeal).

20The grounds of the judgment had been released and deposited on February 6, 2015.

21With regard to the responsibility of the “specialists” – those of the defendants that during the meeting evaluated the risk – the Court of Appeal believes that the extensive discussion held during the first trial does not suffice to demonstrate the reality of the facts ascribed to six defendants.

22First of all, according to the Court, the meeting held in L’Aquila before the earthquake did not qualify as an official meeting of the Commission, for the latter was not properly constituted (10 members are required for a quorum, but only four of those present in L’Aquila had been appointed to service). The reunion held on March 31, 2009, then, was nothing more than a meeting called for the Head of the Civil Protection Department to discuss the ongoing seismic swarm, as it can be deduced from the letter sent to the invited scientists. The members of the Commission were asked to evaluate the risk of a potential earthquake : the main goal of the meeting, thus, was not to reassure the population, but to counter the effect of Giuliani’s statements reasserting that earthquakes are impossible to predict, as their declarations clearly showed.

23As regard, second, the quality of the evaluations performed in the meeting, the Court maintains that no blame can be thrown on the scientists as far as their statements were scientifically correct.

24According to public minutes, the scientists repeatedly stressed the high risk and long seismic history of L’Aquila but they stated that “there is no reason” the ongoing seismic activity in L’Aquila should be considered “a precursor to a major event” and that it was “unlikely” that an earthquake similar to the last major event in 1703 would occur, even if the possibility “cannot be excluded absolutely.” Well, the scientific community generally agrees with those statements and none of the declaration of the defendants can be considered improperly reassuring – the scientists did not say that no major earthquake could happen. Moreover, the duty to communicate with the populations did not behove them : according to the normative, the task to talk with the public falls upon the Civil Protection Department, as far as it represents a political matter.

25Conversely, the statements of De Bernardinis in the interview released before entering the meeting is held to be negligently reassuring. As we have already stressed, De Bernardinis was not a technician, but the deputy of Bertolaso and for that reason he joined the meeting. So, on March 31, he did not participate in the evaluation of the seismic risk but he just asked some questions ; even though he was not a specialist – and without checking the reliability of his own evaluations asking the most prominent scientists in the field he was about to meet – he told a journalist that the tremors posed “no danger” but were in fact “favourable” because they discharged energy from the fault that could otherwise have contributed to a strong earthquake. This theory is, in fact, considered unreliable by most of the scientific community.

26The statements spreading from De Bernardinis had an impact on the behavior of some of the victims of the earthquake and, according to the Court, the existence of a causal connection between De Bernardinis’s statements and the decision of some of the victims to stay home can be proved without making reference to the so called “theory of the social representations” (widely used by the first degree judge), whose scientific value could not be demonstrated.

27According to the victims’ friends and relatives, the declarations of De Bernardinis had indeed a great role in the decision of the victims to remain inside their houses during the night of April 6, 2009 and not to seek shelter outside, as they would normally have done after the foreshocks that preceded the main shock of 3.32 a.m. This effect of reassurance could easily be explained by using the so called “massime di esperienza’ : generalizations deriving from common sense that can be used to explain human behavior in fields where scientific explanations are not available.

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1   Tribunale dell’Aquila, 22 ottobre 2012, n. 380, giudice Billi, imputati Barberi e altri

2   Corte d’Appello dell’Aquila, sent. 10 novembre 2014 (dep. 6 febbraio 2015), n. 3317, Presidente Francabandera, imputati Barberi e altri.

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Olivier Leclerc et Alessandra Galluccio, « Expertise »Cahiers Droit, Sciences & Technologies, 5 | 2015, 243-250.

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Olivier Leclerc

Chargé de recherche au CNRS, CERCRID (UMR 5137), Université de Lyon, Université Jean Monnet (Saint-Étienne)

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Alessandra Galluccio

Doctorante en droit penal, Università degli Studi di Milano

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