[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.; for Part 2 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 12 March 1996 the Public Prosecutor [Mr U.N.] requested that the investigations be discontinued on the ground that the elements gathered in the course of the “extremely accurate” investigations carried out by the police had not led to the precise but only to the “probable” identification of the radiologist who had carried out the examination of the applicant’s mother without realising her serious medical condition. The Public Prosecutor considered, however, that the gathered elements, although credible, were insufficient to support an accusation in court which could only be based on logical deductions not supported by precise documentary evidence. On the other hand, the Public Prosecutor considered that the testimonies did not entirely support the deductions of the police.

On 9 April 1996 the applicant filed an objection to the request to discontinue the investigations. He requested in the first place that further investigations be carried out in respect of G.T. He further underlined certain inconsistencies in the testimony of L.T. The main reasons I gave were that the untrue statement made by Dr G.T. in the first investigation had still not been considered; and that the untrue statements by Professor L.T. had also not been considered.  He requested that investigations be carried out about who was in possession of the stamp which had been put on the report at issue, given that it was obviously unusual to stamp medical reports with the name of the Department and about the characteristics of the reports drafted by L.T. He finally requested that further investigations be carried out with a view to establishing whether the report had been drafted by a technician instead of a doctor.

By a decision dated 17 October 1996, the Florence Judge for the Preliminary Investigations ruled that the investigations against unknown persons for the manslaughter of the applicant’s mother be discontinued. The judge pointed out in the first place that, by decision of 6 October 1995, the investigations had been reopened only in respect of unknown persons and not also in respect of G.T.. The judge further held that the elements gathered in the course of the investigations were insufficient to support an accusation in court and that the further investigations requested by the applicant would not have helped establish the truth.

The applicant appealed [not exact, he complained], to the Procurator General at the Court of Cassation against this decision. By a decision dated 24 December 1996, the Court of Cassation rejected the request on the ground that it was not within its competence to review a matter pertaining to the competent Public Prosecutor’s [P.M.’s] margin of appreciation. This reply misses, or rather sidesteps, the point: in fact I was criticizing above all the decision to drop the case. This had been requested by the P.M. [the investigating public prosecutor], but the decision had actually been taken by the the G.I.P. [judge of the preliminary investigations]. However the Procurator General’s reply makes no mention of the role of the G.I.P.

 

COMPLAINT

The applicant complains that his mother’s right to life was violated on account of the failure of the Italian authorities to exercise their best efforts to identify those responsible for her death. The applicant invokes Article 2 of the Convention.

 

PROCEDURE

The application was introduced on 25 March 1997 and registered on 25 September 1997. 

On 7 September 1998 the European Commission of Human Rights decided to communicate the application to the respondent Government.

The Government’s written observations were submitted on 19 November 1998. The applicant replied on 23 December 1998.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

 

THE LAW

The applicant alleges that the failure of the Italian authorities to investigate effectively into his mother’s death amounts to a breach of Article 2 of the Convention, which, insofar as relevant, provides that “everyone’s right to life shall be protected by law.”

The Government argue in the first place that the applicant failed to exhaust the domestic remedies which were available to him under Italian law. He failed to lodge a further request to reopen the investigations. He could also have lodged a request pursuant to Article 412 § 2 of the code of criminal procedure, seeking that the investigations be taken over by the Public Prosecutor attached to the Court of appeal. Further, the Government point out that the discontinuance of criminal proceedings against an individual does not affect the latter’s civil responsibility: the applicant could thus have sued his mother’s public care doctor. He could also have brought an action for negligence against the Local Sanitary Unit (Unità Sanitaria Locale – USL), on which the public hospital Santa Maria dell’Annunziata depends, for damages; the hospital would have been liable by operation of Article 2049 of the civil code, which provides that employers are liable for the torts committed by their employees. In the proceedings for negligence, it would have been possible to seek more evidence and to have witnesses examined and cross-examined; the new evidence might even have justified a fresh request to reopen the criminal investigations against the medical practitioners concerned.

On the merits, the Government maintain that the investigations carried out by the police were as accurate as possible, [really?! See above] bearing in mind that more than three years had already elapsed from the facts. They argue therefore that no breach of Article 2 of the Convention can be found in this case.

The applicant contests the Government’s objection as to the non-exhaustion of domestic remedies. He relies in this respect on the content of a letter which the under-secretary of the Ministry of Justice addressed to him on 24 April 1997, acknowledging that the applicant’s rights had been trampled upon, as he, as the injured party, is not entitled to appeal against the discontinuance of the criminal proceedings against the practitioners concerned. In the applicant’s opinion, this statement is a very clear indication that no other remedies existed.

[In other cases the ECHR has, where appropriate, recommended that the State in question should amend its laws. In this case it could have adopted the suggestion of the Italian Under-Secretary of the Ministry of Justice to recommend that Italy should introduce a law to allow an injured party to appeal to a higher court against a decision to shelve an investigation. It is not known why this Chamber of the ECHR failed to do this. They did not even consider the suggestion.]

The applicant, in connection with the possibility of seeking the reopening of the criminal investigations, alleges that in the present case no further investigations were necessary, as the evidence which had already been gathered by the prosecuting authorities would have been sufficient, had it been rightly interpreted [the complaint was not that the evidence had been misinterpreted, but that it had been completely IGNORED!], to lead to the relevant practitioners’ committal for trial. With regard to the request that the investigations be taken over by the Public Prosecutor attached to the court of appeal, the applicant argues that such a request can only be lodged by the judge for the preliminary investigations and not by the injured party. [Indeed so.]

The applicant finally contends that an action for damages would have had no prospects of success, given that the criminal investigations had been discontinued. At any rate, he argues that the right to life should be afforded a stronger protection than the mere possibility of instituting civil actions.

[The applicant did not bring a civil case for “damages” against the hospital, also because to bring a civil case he would have had to advance considerable funds to cover the legal costs, which he could not afford. And it is well known that in Italy civil cases take an average of 10 years to reach a solution. And he did not think that the loss of his mother by criminal negligence could be compensated by any monetary payment.]

The applicant submits that the two main suspects lied to the prosecuting authorities, [the applicant actually submitted that the two main suspects made untrue statements to the authorities which they should have investigated further to verify if they were, or were not, deliberate lies, told to divert attention from their own responsibilities] which however “deliberately ignored” this and did not take any further steps in order to ascertain the truth; the investigation was thus not conducted with due diligence and reasonable thoroughness. nor is the delay with which the authorities were informed attributable to him: he had confidence in the hospital and it was only by chance that he was made aware that there were unclear circumstances surrounding his mother’s death. On the contrary, the applicant points out a delay of a year in the investigations – between 14 June 1993 and 14 June 1994 – which he considers inexplicable. Further, the witnesses were identified at the beginning of the investigations but were only questioned in November 1995.

[These were indeed the submissions of the applicant to the Court, which remained, and indeed remain to this day, unanswered.]

The applicant argues that the right to life can be effectively protected only if those responsible for somebody’s death are duly punished. 

 

[To be continued tomorrow with the final Part 4]

 

Photo by Francis =Photography=

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