[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.
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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The Court considers that it is not necessary to examine the question of whether or not the applicant exhausted the remedies which were available to him under Italian law, as the application is at any rate inadmissible for the following reasons.
The Court points out that the first sentence of Article 2 obliges the States not only to refrain from “intentionally” causing death, but also to take adequate measures to protect life. [Indeed so].
The Court considers that Article 2 of the Convention imposes that, even in cases like the present one, in which the deprivation of life was not the result of the use of lethal force by agents of the State but where agents of the State potentially bear responsibility for loss of life, the events in question should be subject to an effective investigation or scrutiny which enables the facts to become known to the public and in particular to the relatives of any victims [indeed so] (see Kaya v. Turkey judgment of 19 February 1998, Reports of judgments and decisions for 1998, § 86 ; Ergi v. Turkey judgment of 18 July 1998, Reports 1998, § 82 and Yasa v Turkey judgment of 2 September 1998, Reports 1998, §§ 98-100); see also, mutatis mutandis, Eur. Comm. HR, no. 23412/94, dec. 30/08/1994, D.R. 79, p. 127).
In particular, the positive obligations a State has to protect life under Article 2 of the Convention include the requirement for hospitals to have regulations for the protection of their patients’ lives and also the obligation to establish an effective judicial system for establishing the cause of a death which occurs in hospital and any liability on the part of the medical practitioners concerned [indeed so] (see Eur. Comm. HR, No. 20948/92, Dec. 22.5.95, D.R. 81, p. 40).
With reference to the first limb of these obligations, the Court observes that the hospital does not appear to have had any particular reaction to the death of the applicant’s mother, despite the fact that she had been discharged therefrom only a few hours before. No enquiry was made into the events, no explanation was sought from the doctors or persons who had visited her on the day before her death. [Indeed so] This failure appears to be even more regrettable, considering that, admittedly, radiologists and technicians’ 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.
The Court observes however that, after the applicant had filed the complaint against the practitioners whom he deemed responsible for his mother’s death, the judicial authorities carried out a thorough investigation into the events. [Not thorough at all. They deliberately stopped the investigation just as the trail was getting warm.] It is true that, as a consequence of the long period of time which had already elapsed, these investigations could not lead to any committal for trial and that the applicant, as the injured party, enjoyed only a limited scope of action in the proceedings [Yes indeed. So they appear here to acknowledge that he had exhausted all possibilities within the Italian system, and the Italian State Advocate was therefore making an untrue representation to the Court?]. The Court recalls however in the first place that the Convention does not guarantee a right to secure a conviction in criminal proceedings [This argument is quite spurious – the applicant did NOT request a conviction of the suspects, but only that the evidence of their untrue statements be considered and examined and that the investigation therefore should not have been dropped before this was done.] (see Eur. Comm. HR, no. 22998/93, dec. 14.10.1996, D.R. 87, p. 24). Furthermore, the Court observes that neither the applicant nor the prosecuting authorities can be held responsible for the delay in the beginning of the investigations.
With reference to the applicant’s allegations that the prosecuting authorities wilfully ignored the discrepancies in the witnesses’ testimonies, the Court stresses that, in accordance with Article 19 of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties in the Convention. [This can only mean that the Convention does NOT require a signatory State to ensure that investigations be conducted with proper thoroughness and diligence. If so, the Convention becomes a mere statement of hopeful aspiration. It purports however to be a binding agreement imposing practical obligations on the signatories. This is evidently not the case.]
In particular, the assessment of evidence and its probative value are primarily a matter for the domestic authorities: the Court is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention. [This is exactly the case here, the wilful “errors” or rather omissions of the Florentine authorities in this case undeniably did involve a violation of the Right to Life, or it could be said, enabled those responsible for its violation to remain immune from a proper investigation.]
In the present case, the Court finds no indication that the prosecuting authorities arbitrarily assessed the evidence before them. [This is incredible. The Court itself appears to have noted the claims by the applicant that the prosecuting authorities decided not to investigate whether the untrue statements made to the investigators were or were not deliberate lies, told to cover up their responsibilities. No reasons were given for this decision, which was therefore quite arbitrary. The investigation was stopped in its tracks, just as the trail was getting warm.]
The Court further observes and stresses that it was open to the applicant to bring an action for negligence against the hospital. The Court underlines in this respect that the criminal investigations had only aimed at establishing the identity of the practitioners concerned, and not also at assessing whether there had been any negligence in treating the applicant’s mother: this question has therefore remained open. In civil proceedings, the applicant would have enjoyed the possibility of seeking and adducing further evidence and his scope of action would not have been limited as in criminal proceedings. [Ah, so they admit here, once again, that the applicant’s scope of action was limited, and that therefore the Italian State Advocate had made an untrue representation as to the unused possibility of appeal that was supposedly open to the applicant, when in effect it was not.]
In the light of the above, the Court finds no indication that the facts of this case have not been sufficiently investigated or that there has been any failure to provide a mechanism whereby those with criminal or civil responsibility may be held answerable. [The mechanism was there. The problem was that the Florentine authorities decided not to use it. And, additionally, as recognised by the Under-Secretary of the Italian Minister of Justice, the Italian judicial system offered no remedy to the injured party, or route of appeal against this arbitrary decision.]
The Court concludes that the present application does not disclose any failure by the respondent State to comply with the positive obligations, including any procedural requirements, imposed by Article 2 of the Convention. It follows that it must be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 and rejected by application of Article 35 § 4 of the Convention.
For these reasons, the Court, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Michael O’Boyle, Registrar – Elisabeth Palm, President
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