Autor: Alina Teacă
Publicat în: Revista Universul Juridic nr.3/2019
Disponibil online: aici.
Abstract: In the recent jurisprudence, due to the identity of the intellectual factor that characterizes the
both forms of culpability, meaning the specific intent and recklessness in the matter of fatal traffic
accidents, considering, on the one hand, the ex ante conduct, respectively, (excessive speed, bad
weather, the psychophysical condition of the driver due to the consumption of alcoholic beverages
above the legal limit or forbidden substances, intense traffic, the time of the event), and on the other
hand, ex-post behavior (leaving the place of the incident), opinions appeared, that were accepted also
by doctrine, according to which, the criminal offence envisages the constitutive elements of the
homicide, committed with specific intent and not recklessness, as it has been established so far by
specialized writings.
Unlike the homicide offence committed with specific intent, in the case of recklessness, the
actions of the agent are not based on luck, hazard, but on the exaggerated confidence in itself that he
will be able to avoid the occurrence of the event, while in the homicide offence, the desire to produce
the result extends to the desire of the action, in the sense that it consciously accepts the result and is
not making any effort to stop the immediate consequence for it to occur.
„Untrustworthy hope” can not be confused with the hope that the event will not occur, which
characterizes the specific intent, as this hypothesis is the acceptance of the risk, or in the case of
recklessness, the agent does not accept the hypothesis that the result will take place, the latter defense
seems impossible to him.
In this article, starting from the hypothesis that the delimitation between the specific intent and
the recklessness could be done exclusively by voluntary factor, taking into consideration the Italian
doctrine and jurisprudence, I will try to justify my opinion that the driver’s vehicle offence to cause a
fatal traffic accident, without guiding his conscience and willingness to produce the result, should
remain in the territory of recklessness, even in relation to ex ante conduct, because even if we have
the predictability of occurrence of the event, knowing the imperfect reality of the agent, which will
also cause the alteration for the foresight process to occur, although the agent, by using his abilities,
could have avoided it.
Keywords: specific intent, recklessness, homicide, involuntary manslaughter, traffic fatalities.
