[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. For Part 1 go here.

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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On 3 February 1995 the applicant filed an objection to the request to discontinue the investigations (opposizione alla richiesta di archiviazione). He underlined that the Public Prosecutor had not sought to establish the identity of the radiologist who had carried out the x-ray examination of his mother and requested that L.T., the director of the Radiology Department of the hospital, be heard in order to ascertain which radiologists had been on duty on 28 September 1989. He further pointed out significative inconsistencies in the testimony of G.T. 

[These “inconsistencies”, given above, are crucial, indeed the Court here says they were significant (“significative”), yet they are glossed over, airbrushed out, and ignored by the European Court of Human Rights in its narrative of “the facts”, although glancingly touched on in its conclusion.. The evidence gathered showed that in all probability the doctor G.T. had written out an erroneous prescription for the wrong sort of X-ray, on the basis of the applicant’s mother’s imprecise wording when describing her symptoms over the telephone. The testimony of R.O., which contradicted the doctor’s false description of the layout of the house, showed that he had not visited the patient before writing out the prescription. This is illegal under Italian law, which is supposed to serve precisely to avoid this sort of mistake. These points were raised forcefully by the applicant in his written objection to the request to drop the investigation. He maintained that instead of asking to shelve the case, the Prosecutor should have verified which description of the house was the true one, and then confronted the doctor with the false description of the house that he had given, in a word, she should have pursued the investigation. She chose not to, but to drop the case. Quite arbitrarily.]

The judge for the Preliminary Investigation, decided to grant her request. He too had read my letter pointing out this “discrepancy” (and several other shortcomings) in the findings of the investigation, but completely ignored it when giving his reasons, in a very few lines, for deciding that the case should be dropped. 

[We can see here, instead of considering the facts and arguments produced by the applicant, and refuting them with counter-arguments, this Chamber of the ECHR preferred to massage its presentation of the facts by airbrushing them out of the narrative and ignoring them. Quite arbitrarily]

By a decision of 7 April 1995 the Florence Judge for the Preliminary Investigation ruled that the investigation be discontinued on the ground that, in the light of the investigations carried out, the elements of the alleged negligence of G.T. and of the unidentified radiologist were insufficient to support an accusation in court.

On 3 July 1995 the applicant requested the Florence Judge for the Preliminary Investigation to reopen the investigations. This request was granted on 6 October 1995 in respect of the unidentified radiologist.

I then “appealed” to the head of the investigating office of the Pretura of Florence (Capo della Procura presso la Pretura di Firenze), Dr U. N. I wrote to him repeating the reasons I had given for the case not to be dropped, and asking for the case to be re-opened on the grounds of those same reasons.

On 6 November 1995 the Florence Public Prosecutor requested the police to take evidence from all employees of the Radiology Department of the hospital who had been present on 28 September 1989, with a view to identifying the author of the medical report which was drawn up after the x-rays had been taken, and establishing which typing machine had been used.

Four of the hospital employees – T.B., F.N., R.C., M.M. – were heard by the police on 27 November 1995. They explained inter alia that in the hospital there was one computer which was used as a typing machine and an ordinary typing machine. Urgent medical reports were written by hand by the doctors immediately after the examination, whereas non-urgent ones were dictated by doctors and only subsequently typed by an employee, M.T.. Doctors would sometimes type their reports themselves, in particular the Director of the Department. The witnesses were shown the medical report on the condition of the applicant’s mother, drafted on 28 September 1989, and found it unusual; they declared that that kind of x-ray examination was always carried out by a doctor assisted by a technician. They noticed that the report lacked the indication of the name of the doctor and stated that it should not have been stamped with the name of the Department. Some of them thought that it had been typed on the ordinary typing machine and not on the computer.

M.T., the employee who used to type non-urgent medical reports, was interrogated by the police on 28 November 1995. She explained that the ordinary typing machine was kept in the doctors’ room. She further explained that she used to type the medical reports on behalf of the doctors, who would sign them at the end of the day; the reports would not be stamped with the Department’s name. She was shown the report drafted on 28 September 1989 and declared that she had not typed it and that she thought it had not been typed by any of the administrative personnel because it did not bear the name of the responsible doctor.

On 1 February 1996 M.C., a radiologist, was examined by the police. He confirmed that non-urgent reports would be dictated by the responsible doctors and typed by the administrative personnel whereas urgent reports would be immediately drafted by hand by the responsible doctors; only the Director of the Department used to type his reports himself. He was shown the report drafted on 28 September 1989 and confirmed that such kind of examination would be carried out by a doctor assisted by a technician, but could not remember whether he had carried it out himself although he thought he had not, as the report did not have the same characteristics as his usual ones. He noticed that the report did not bear the indication of the name of the responsible doctor and was not signed, and that it had been stamped with the name of the Department, which was unusual. He further said that if he had been aware of a situation similar to that described in the medical report at issue, he would have tried to contact the patient’s family or family doctor to point out the gravity of the situation.

On 15 January 1996 L.T., the Director of the Radiology Department, was interrogated by the police. He stated that he had been informed of the case of the applicant’s mother only in 1992, when the applicant had requested certain information from him which he could not provide. He explained that in September 1989 radiologists and technicians were organised in shifts; the shift tables used to be thrown away after the end of the relevant week, as they were used only for the purpose of internal organisation. He examined the report of 28 September 1989 and noticed the absence of the responsible doctor’s name and signature; he stated that doctors did not type medical reports themselves, but wrote them by hand in urgent cases.

Professor L.T., [the Director of the Radiology Department] made two statements which are at variance with other evidence.

1) He said, “Naturally the report would be written up and signed by the doctor who had carried out the examination”; he repeated this, saying that when the reports had been typed “they would be left to be signed by the doctors who had carried out the examinations”.    This statement is contradicted, not only by one of the doctors who said that sometimes one doctor would sign another’s report, but by two of the reports in our possession, where over the typed name of another doctor, we can read the (legible) signature of L.T. himself!

2) He said “The doctors did not type the reports, at the most, if they were urgent they wrote them by hand”. This statement is contradicted by no fewer than 6 (six) witnesses, who were all present on the day. They all say that the doctors did use the typewriter to type their reports. Four of them say that L.T. used the typewriter more than anyone else. One of them says he was the only doctor who used the typewriter!

These conflicts between what L.T. said and the overwhelming evidence from other witnesses as well as the documentary evidence were totally ignored by the investigating magistrate U.N.

Mr U.N., the head of the investigating office of the Pretura of Florence, did not attempt to ascertain whether Dr L.T. was subject to bouts of severe amnesia (after all he was telling untruths about his own, repeated, behaviour), or whether he was deliberately lying in order to divert attention away from his own responsibility as head of the department where a homicide had occurred, and therefore as the one with the strongest motive to create a cover-up.

 

[To be continued tomorrow with Part 3]

 

Photo by mitko_denev

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