Formula di Frank e dolo eventuale in Cass., S.U., 24 aprile 2014 (ThyssenKrupp)

Frank's Formula and Oblique Intention \r\nin the ruling by the Italian Supreme Court in Joint Session of 24th April 2014 (ThyssenKrupp case). - In line with the ruling of the Italian Supreme Court (Corte di Cassazione) in the ThyssenKrupp case, the author points out that, in order to find oblique intention, it is necessary to ascertain a precise state of mens rea, thus rejecting any description of criminal intent of regulatory nature. This article explains that Frank’s (first) formula – whereby a person would act even if he/she were sure that he/she would cause an unwanted event – is the only possible definition of this psychological state. Consequently, Frank’s formula is not an assessment criterion, although Italian Justices consider it as the main indicator, among many, of oblique intention. The indicators listed in the judgment are rather the necessary criteria to ascertain whether there is, beyond any reasonable doubt, what Frank’s formula defining oblique intention requires - indeed, no definition can be applied unless it is supplemented with relevant verification criteria. In other words, such criteria are not equivalent, but functional to Frank’s formula. Moreover, if they were applied independently, they would lead to regulatory descriptions of criminal intent. This article also examines the limits that apply when finding oblique intention in crimes of omission. On the base of this background, the essay argues against the strict necessity to resort to the concept of oblique intention in criminal law and highlights the irrational elements in the current criminal law approach to harmful events caused by conducts which were not predetermined in order for them to occur, both in cases of negligence and of oblique intention.