Posizioni di garanzia «originarie» e «derivate» nel diritto penale del lavoro: i punti aperti in un microsistema costituzionalmente organico

Abstract

The essay addresses the topic of guarantee positions in labour criminal law, beginning with some methodological premises, relating, for example, to the role played in this field by pre-understanding, to the fortunately increasing dialogue between case law and legal scholarship, and to the primacy of the textual provision. It then sets out an overall framework concerning, inter alia, the meaning of the principle of effectiveness and the notion of mesocriminality. The analysis of the «original» guarantee positions places emphasis on the most controversial figures: namely the works director, the worker, the workers’ safety representative, and the head of the prevention and protection service. In examining the «derivative» guarantee positions, greater attention is devoted to the issue of the residual duty of supervision incumbent upon the employer: it is argued that the adoption and effective implementation of the verification and control model referred to in Article 30, paragraph 4, of Legislative Decree 81/2008 corresponds to an absolute presumption of fulfilment of that duty.