[This is the official text of the decision published by the European Court of Human Rights regarding the application against Italy for refusing to safeguard the Right to Life, under article 2 of the Convention. In this motivation of its decision, the Court provided a narrative of the events of the case. This narrative left out essential bits – facts and arguments – which were presented to it in the original application. These omissions served to justify its refusal of the application. These facts and arguments were not considered, and refuted, but simply airbrushed out, and ignored. These bits have been re-inserted into the text here, in red font. Readers can thereby see a complete overview of the Court’s operation, and decide for themselves whether it operated with honesty and justice, or not. 

We have divided the text into four parts, to be published on consecutive days, starting today with Part 1

There are three other articles already published which give the  general background to the case:

  • A summary of the medical facts of the case, and an indication of how the general confidence of the public in the ECHR is an important basis for the acceptability of the European Arrest Warrant – see here;
  • a summary account of the investigation into the homicide by the Florentine judiciary, the steps taken by the victim’s son, in his application to the European Court of Human Rights, how that Court itself violated two of his own Human Rights, and his appeals for help to the Foreign Office – see here;
  • some details about the victim – the applicant’s mother, a British citizen who had lived in Florence for 25 years – her life and work, and what she went through when her life was ended – see here.] 

 

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FIRST SECTION 

DECISION 

AS TO THE ADMISSIBILITY OF 

Application no. 37900/97 by Torquil Dick ERIKSON against Italy The European Court of Human Rights (First Section) sitting on 26 October 1999 as a Chamber composed of 

Mrs E. Palm, President,  Mr J. Casadevall,  Mr B. Conforti,  Mr L. Ferrari Bravo,  Mr C. Bîrsan, Mrs W. Thomassen, Mr T. Pantîru, Judgeswith Mr M. O’Boyle, Section Registrar

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Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms; 

Having regard to the application introduced on 25 March 1997 by Torquil Dick Erikson against Italy and registered on 25 September 1997 under file no. 37900/97; 

[In the following text, those parts of the application as received by the Court, which were omitted, “airbrushed out”, by the Court in its present narrative of the “Facts”, are here inserted in RED. The picture which emerges is very different from the one that enables the Court to reject the application. Comments are in square brackets.]

Having regard to the reports provided for in Rule 49 of the Rules of Court; 

Having regard to the observations submitted by the respondent Government on 19 November 1998 and the observations in reply submitted by the applicant on 23 December 1998; 

Having deliberated; 

Decides as follows:

THE FACTS 

The applicant is a British national, born in 1945 and living in Rome. 

The facts of the case, as submitted by the parties, may be summarised as follows. 

The applicant’s mother, born in 1906, used to live in Antella, near Florence, assisted on a daily basis at her domicile by R.O. 

On an unspecified date near the end of September 1989 the applicant’s mother telephoned to the public care doctor, Mr. G.T., requesting his assistance because her lower abdomen was painful and swelling. The doctor, allegedly without visiting her, wrote a medical prescription recommending x-rays of the applicant’s abdomen; he left the prescription with the local pharmacy, where R.O. went to fetch it on behalf of the applicant’s mother.

On 28 September 1989 the applicant’s mother went to the local public hospital Santa Maria dell’Annunziata to have x-rays of her abdomen; she was accompanied by R.O. She was made to drink barium before undergoing the examination; X-rays were taken of her stomach. She collapsed during the examination; however, despite her serious health condition, she was subsequently discharged from hospital and sent back home in a wheel-chair, pushed by  a hospital porter. This porter said to R.O. “This one has only got another day or two to live”.

[Question: who told the hospital porter? Do porters make these sorts of prognosis on their own account? So was it a doctor who made the prognosis and told the porter? And if so, why did the doctor decide to send the patient home? They must have realised they had killed her with the barium. These questions were never asked, neither by the Florentine investigators, nor by the ECHR]

The report on the x-ray plates bears the stamp of the Radiology Department but was not signed by the radiologist who carried out the examination, nor was his name indicated.

The next morning, on 29 September 1989, the applicant’s mother was seized by extremely severe pain. She was taken by ambulance to the above hospital at 13h10, where she died at 14h00 of an intestinal occlusion.

The applicant learned about his mother’s death on that same day. [At that time he did not suspect any unnatural cause of death. However he obtained the X-rays and the relative  medical report, which was unsigned though stamped with the department’s stamp.]

In February 1992 the applicant happened to discuss the circumstances of his mother’s death in detail with a doctor radiologist friend of his, who requested to examine the x-ray plates taken of the applicant’s mother on 28 September 1989. The applicant had obtained from the hospital copy of his mother’s medical file including the x-ray plates and subsequently submitted them to this doctor, who on 25 September 1992 drafted a medical report according to which the x-ray plates clearly showed that the applicant’s mother had an intestinal occlusion, which any doctor, even a non-specialist, could easily have diagnosed if he had seen her. Such report also stated that a dose of barium on top of an intestinal occlusion is likely to be very dangerous.

[It is moreover illegal for a mere laboratory technician to administer barium without the direct supervision of a doctor, although to save time they often do it. It is highly irregular that the medical report should not carry the name and signature of the doctor who wrote it and who supposedly carried out the examination; presumably whoever did write it must have known that a crime had been committed, and that is why they did not sign it, although they put the Hospital department’s official stamp on it. In fact I thought the department stamp made it an official and regular document, and so I had not been concerned about the lack of the radiologist’s name.]

The applicant obtained a second medical report from another doctor radiologist dated 31 October 1992 and supporting the findings of the first.

A third medical report was drafted by a third specialist, a specialist in forensic medicine, on 11 January 1993. He confirmed the findings of the two radiologists, and wrote that it was not only the right, but the DUTY of the applicant to lay the information before the criminal law authorities.

[Consequently,] on 23 January 1993 the applicant filed a criminal complaint with the Magistrate’s Court of Florence, claiming that Mr. G.T., the public care doctor who had [prescribed, not just] recommended, an x-ray examination of the applicant’s mother without examining her beforehand, was to be held responsible for her death and seeking that the identity of any other person responsible for his mother’s death be established and that they all be prosecuted for manslaughter. [Not true! The applicant did not demand that they be prosecuted for manslaughter, but only that the case be thoroughly investigated, and a prosecution initiated if criminal responsibilities of any kind emerged.]

Investigations were opened against G.T. and other unidentified persons under file no. 4800/93.

On 7 June 1993 the Florence Public Prosecutor interrogated G.T. in the presence of his counsel. He claimed that he had visited the applicant’s mother before recommending x-rays of her abdomen and that he had left the prescription with her. He said he had suspected a tumour but not an intestinal occlusion. He further stated that, after being informed of the applicant’s mother’s death, he had learned that she had collapsed during the x-ray examination but had not been kept in hospital, which he had found unreasonable on the part of the hospital. He stated that he did not know the identity of the radiologist who had carried out the examination.

On 27 June 1994 the Florence Public Prosecutor heard R.O. as a witness; she described the circumstances of the applicant’s mother’s death and claimed that the applicant’s mother had not been visited by the doctor G.T. on the day at issue and that she herself had gone to the pharmacy to fetch the prescription for the X-rays.

In order to back up his assertion that he had been to the house [to visit the patient in her home], [when questioned by the Prosecutor] the Doctor G.T. described it. He said “The entrance to the flat gave directly on to the living room.” This is not true., it was not a flat but a detached house with a garden, and the entrance gave onto a hall, with a door to the living-room on the left. Mrs R.O. gave this correct description to the investigating magistrate (Pubblico Ministero – P.M-, Sostituto Procuratore presso la Pretura di Firenze), Dottoressa L.P., who however failed to take any notice of this discrepancy, despite my pointing it out in a letter to her office.

[The investigating magistrate Ms L. P. was also surely aware that it was illegal for a doctor to prescribe an X-ray with barium without actually visiting the patient. She could have gone herself, if she had been acting as a detective should, or sent a policeman to the house, to look at it to see which description was correct and so who was telling the truth, but she omitted to take this step, though urged to do so by the applicant. The applicant’s mother had telephoned the doctor, describing her symptoms to him; her command of the Italian language was good but not perfect, and she must surely have used the word for “stomach”, “stomaco”, instead of the word for “belly” or “lower abdomen” (“ventre”). On this basis he wrote his erroneous and illegal prescription. This would explain why the X-ray was of the stomach and not the belly as it should have been.]

F.P., a doctor who was on duty at the hospital on 29 September 1989, was also heard as a witness on an unspecified date.

After 1 year and 10 months investigation (I should add in passing that for one year exactly during this time the official Investigator/Prosecutor put it aside and did no work on the case at all), on 10 October 1994 the Public Prosecutor requested that the investigations be discontinued on the ground that the elements gathered in the course of the investigations were insufficient and inappropriate to support an accusation in court (“gli elementi raccolti non sono sufficienti ed idonei a sostenere l’accusa in giudizio”). 

[To be continued tomorrow with Part 2]

 

 

Photo by Francis =Photography=

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