Abstract
Enthusiasm for nature is bringing more and more people to the mountains. Although this trend is very welcome, it also leads to an increase in alpine accidents. Complex questions of criminal liability arise, mainly due to the unpredictability of nature and the tendency of people to overestimate their ability to keep risk under control. For these reasons, the research project "Natural hazards in mountain environments: Risk management and Responsibility" (led by the University of Innsbruck and funded by the call for tender Research Südtirol 2019) focuses on the legal assessment of these liability issues.
Specifically, the project aims to explore how the inherent residual risk and the lack of legally binding precautionary rules can be better addressed. Indeed. In order to analyze these issues, we have used an interdisciplinary empirical research design. In particular, we thought to construct a questionnaire aimed at analysing risk perception and awareness in general and, in particular, perceptions, preparation, equipment and information methods while practicing seven different sports activities, both summer and winter ones. To do so, we first consulted some technical stakeholders, who have been also supporting us in triangulating the results obtained from the empirical research. Due to the covid19 emergency and the impossibility to reach people while doing winter sport activities, we then decided to administered two different questionnaires: a face-to-face questionnaire addressed to tourists in a hotspot area, the area of Sesto Pusteria (in South Tyrol, Italy), one of the most tourist areas with the highest number of accidents among hikers; in summer 2021 we reached 300 hikers while they were hiking at different levels of difficulty. The main questionnaire was instead administered online, mainly to members of the main mountain sports associations in Trentino, South Tyrol (Italy) and Tyrol (Austria). In autumn 2021 we reached 3841 sportsmen and women living in the three areas.
The results of the two surveys show a complex picture. First of all, among the interviewees, a good general preparation, transversal between disciplines and very good use of weather reports. With regard to risk awareness, namely with reference to the causes of mountain rescue operations, the respondents put more blame on inadequate equipment and bad weather than on reality. The risk of experiencing an accident while mountain biking seems to be somewhat underestimated in relation to the number of rescue interventions. Furthermore, in terms of perceived responsibility within a group, the majority of the respondents attribute transversal responsibility to the most experienced member of the group, who should check that the route is suitable for everyone (but also the weather and the equipment of everyone - less so in mountain biking).
To give some more examples, among the winter disciplines, a big distinction emerges between snowshoers and ski mountaineers, especially in the use of ARTVA, in having skills to prevent avalanches and in the impact of accidents. In the summer disciplines, for example, the practice of climbing routes is usually learned through personal experience.
Regarding residual risk perception, a clear difference between tourists and sportsmen emerges: among sportsmen, unlike tourists, there is a perception that zero risk does not exist. Furthermore, the level of experience in sports, age, fear of something going wrong, and experience of past accidents seem to have a significant influence on the risk perception of having an accident.
The empirical research thus provided crucial findings for a criminal law analysis of mountain accidents. Several components need to be considered in this regard. First, a residual risk can never be totally excluded in the mountains. Second, the victim's own behaviour can play an important role, too: it is often the victim that actually brought him-/herself into a dangerous situation. Therefore, the role of self-responsibility should play a pivotal role in criminal law.
However, not all European States recognise self-responsibility as an important component of criminal law. Consequently, the project currently aims to analyse the role of self-responsibility in Austria and Italy. Several questions have arisen in this context. For instance, when can we refer to a ‘self-responsible’ behaviour? Does the victim have to perfectly know the risk s/he is exposing her-/himself? What kind of risk do hikers and mountaineers perceive? The empirical research provided important insights to answer these questions. On a more juridical level, at what point can self-responsibility play a role in the analysis of criminal law carried out by the courts? Being culturally influenced, this question is answered differently in the two countries
By linking empirical research and comparative criminal law, this project try to offer crucial insights into the behaviour of people in the mountains. It analyses the different European legal systems and argues for giving the victim's self-responsibility a more central role in criminal law. The ultimate goal is also to promote an appropriate risk culture among the population, improving everyone's awareness and safety in the mountains.