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THE FACTS

The applicant, Mr Giovanni Sottani, is an Italian national who was born in 1950 and lives in Scandicci (Florence). He was represented before the Court by Mr Di Donato, Ms Costantini and Mr De Stefano, lawyers practising in Florence.Note

A.  The circumstances of the case

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

On 4 March 1991 the applicant’s wife, B.C., who had been suffering from acute leukaemia, died at Careggi Hospital in Florence. After carrying out a hospital autopsy (autopsia amministrativa) on 5 March 1991 to determine the cause of death, the doctors indicated in the medical record that the applicant’s wife had died of acute bronchopneumonia.

1.  The first set of criminal proceedings

On 3 April 1991 the applicant lodged a criminal complaint with the public prosecutor’s office at Florence Magistrate’s Court (“the prosecutor’s office”), claiming, inter alia, that certain delays had contributed to his wife’s death, especially delays in performing a chest X-ray and in recording the results of a platelet test. In addition, the applicant stated that one of the doctors who treated his wife had described a “French drug” used in her treatment as “dreadful” and “directly attacking the DNA cells”. The applicant thus complained that he had not been informed that the drug was dangerous and asked whether it had already passed the trial stage or was still undergoing trials.

On an unspecified date and on the basis of an expert report, the public prosecutor, considering that the delays indicated by the applicant had no causal link with the death of B.C. and that her leukaemia had reached a terminal phase, requested that the investigating judge discontinue the proceedings. On 24 September 1991 the applicant lodged an objection, indicating, inter alia, that the “question concerning the amsacrine-based drug administered to his wife” had not been addressed.

On 7 October 1991, on the basis of a medical certificate, the investigating judge found that B.C.’s leukaemia had not reached the terminal phase as the expert had indicated. He dismissed the request for discontinuation and ordered a new expert report. The investigating judge questioned in particular whether the amsacrine-based drug had been administered to the applicant’s wife “in accordance with the knowledge of specialised medical science in that field”.

In a report dated 4 February 1992, the expert indicated that the doctors had not committed any error, carelessness or negligence in the treatment of B.C.’s illness. Having analysed the medical literature, the expert also expressed the opinion that the amsacrine-based drug had been administered to her in accordance with technical knowledge in the relevant field.

On 20 February 1992 the public prosecutor again requested that the case be discontinued, and the applicant lodged an objection on 12 March 1992.

On 13 April 1992 the investigating judge dismissed the objection and discontinued the proceedings.

On 22 July 1992 the applicant applied for the reopening of the preliminary investigation, but his application was rejected on 28 July 1992.

2.  The second set of criminal proceedings

On 28 January 1994 the applicant again lodged a criminal complaint with the prosecutor’s office. He complained that morphine, which is contra-indicated in cases of respiratory disorders, had been administered to his wife and that certain doctors had fabricated the time of her death on the medical record in order to avoid liability for manslaughter.

According to an expert report dated 28 December 1994, the therapy chosen for the treatment of the applicant’s wife was adequate and there was no causal link between the administration of the morphine and her death.

On 14 March 1995 the prosecutor’s office accordingly called for the discontinuance of the proceedings. The applicant lodged an objection on 27 March 1995.

On 31 March 1995 the investigating judge discontinued the proceedings.

On an unspecified date the applicant learnt from an article in the New England Journal of Medicine of 26 January 1995 that F.L., a colleague of P.R.F., the doctor in charge of the haematology department of Careggi Hospital, had worked on trials involving the amsacrine-based drug “A.”, used to treat leukaemia.

In a parliamentary question of 4 May 1998, M.B., a member of parliament, requested that the Minister of Justice and the Minister of Health conduct an inquiry at the haematology department of Careggi Hospital to ascertain, in particular, details of any trials of the drug “A.”.

In a letter of 10 June 1998, the Health Minister therefore requested that Careggi Hospital provide him promptly with any information about any such trials.

That request, which went unanswered, was repeated on 23 June and 9 July 1998.

In a note of 16 July 1998, Careggi Hospital informed the Health Minister that no further trials involving the drug “A.” had been carried out since 1993.

On 6 August 1998 the Health Minister requested that the Rome carabinieri find out whether there had been any trials of the drug “A.” at Careggi Hospital during the period preceding the death of the applicant’s wife and, if so, to obtain details of any such trials.

In a report of 26 October 1998, the carabinieri informed the Health Minister that, according to the information provided by P.R.F., no trials of the drug “A.” had been conducted at Careggi Hospital. However, P.R.F. had indicated that the drug in question had been administered to the applicant’s wife as part of her leukaemia treatment and that she had died following an acute infection that had been an adverse effect of the drug. In addition, P.R.F. asserted that the patient’s relatives had been informed that the drug had been administered.

3.  The third set of criminal proceedings

In the meantime, on 5 September 1998, the applicant had again lodged a criminal complaint with the prosecutor’s office. He claimed, inter alia, that the drug “A.”, whilst still undergoing trials, had been administered to his wife without her knowledge and without the consent of her family. On 15 September 1998 the prosecutor’s office ordered an expert report.

On 29 October 1999 the prosecutor ordered the carabinieri to add to the case file the documents attesting to the participation of the applicant’s wife in the trials.

In an undated report based on the article from the New England Journal of Medicine, the expert observed that international trials of treatment for acute leukaemia had been under way during the period when the applicant’s wife was being treated in hospital. The medication used in that treatment included the drug “A.”, which had not been registered in Italy. According to the article, the patients who participated in the trials had given their consent in accordance with the regulations of each hospital. On the basis of the documents provided by the carabinieri, the expert went on to indicate that B.C. had been included in the trials without her knowledge and that she had died not from acute bronchopneumonia but from a heart attack following the administration of the drug “A.”.

On 24 April 2001 the doctors who had treated B.C. were committed for trial on a charge of manslaughter. They were accused of giving the applicant’s wife a drug that had not been registered in Italy without informing her either of the risks incurred or of her inclusion in the trials.

The case was listed for a preliminary hearing on 6 November 2001. On that date the applicant joined the proceedings as a civil party.

On 7 January 2002 the preliminary hearings judge found that there was no case to answer. He considered that it had not been established with certainty that the drug administered to B.C. could lead to heart complications or that her death had been caused by a heart attack, since the initial medical report had indicated acute bronchopneumonia as the cause of death. In addition, he noted that the public prosecutor had not ordered a judicial autopsy in the course of the initial investigation. Because of that omission in the judicial investigation, the exact cause of B.C.’s death could no longer be established.

B.  Relevant domestic law

The relevant Articles of the Code of Criminal Procedure (“the CCP”) provide:

Article 79

“Applications to join the proceedings as a civil party shall be made from the preliminary hearing stage ...”

Article 90

“Injured parties shall exercise the rights and powers expressly afforded to them by law, and may, furthermore, at any stage of the proceedings, submit pleadings and, except in cassation proceedings, request the inclusion of evidence.”

Article 101

“Injured parties may appoint a statutory representative for the exercise of the rights and powers afforded to them ...”

Article 392

“1.  In the course of the preliminary investigation, the public prosecutor and the person being investigated [persona sottoposta alle indagini] may apply to the judge for the immediate production of evidence [incidente probatorio] ...”

Article 394

“1.  Injured parties may request that the public prosecutor apply to the investigating judge for the immediate production of evidence [incidente probatorio] in the course of an investigation.

2.  In the event that the public prosecutor fails to grant that request, he shall give reasons for his decision and notify the same to the injured party.”

Article 116 of the implementing provisions of the CCP, pertaining to investigations into deaths that appear to have occurred as a result of a crime, provides:

“Where it is suspected that a person died as a result of a crime, the public prosecutor shall verify the cause of death and, should he consider it necessary, order an autopsy ...”

COMPLAINTS

1.  The applicant complained under Article 2 of the Convention that there had been a violation of the right to life, on the grounds that his wife’s death had been caused by unlawful experimentation and the public prosecutor had failed to order a judicial autopsy during the initial investigation.

2.  The applicant also complained under Article 6 § 1 and Article 13 of the Convention that the public prosecutor had failed to order a judicial autopsy during the initial investigation. Relying on the “equality of arms” principle, he moreover complained that, under Article 394 of the CCP, only the public prosecutor could apply directly to the investigating judge for such an autopsy to be performed.

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THE LAW

1.  The applicant complained under Article 2 of the Convention that there had been a violation of the right to life, on the grounds that his wife’s death had been caused by unlawful experimentation and the public prosecutor had failed to order a judicial autopsy during the initial investigation. That Article provides as follows:

“1.  Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2.  Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:

(a)  in defence of any person from unlawful violence;

(b)  in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c)  in action lawfully taken for the purpose of quelling a riot or insurrection.”

The Government first contended that the applicant, in failing to appeal against the decision of the preliminary hearings judge of 7 January 2002, had not exhausted domestic remedies.

With regard to the State’s positive obligation under Article 2 of the Convention, the Government observed that the applicant had initiated three sets of criminal proceedings and that in each one the judicial authorities had acted irreproachably in carrying out their investigations. The Government further noted that the applicant had not raised the question of his wife’s inclusion in a course of treatment undergoing trials until the third set of criminal proceedings and that this was “a marginal issue, which did not concern the right to life as protected by the Convention ... but stemmed exclusively from a choice of treatment that had been made in the patient’s interest”.

The applicant pointed out that the prosecutor’s office should have ordered a judicial autopsy, which would have enabled him to appoint a doctor of his choosing to participate in the investigation. Moreover, he observed that, contrary to the Government’s contention, doubts as to the use of the amsacrine-based drug had already been raised during the first set of criminal proceedings.

The Court first notes that, according to the judgment of 7 January 2002, as no judicial autopsy had been ordered during the initial investigation, a causal link between the administration of the drug “A.” and the death of the applicant’s wife had not been established.

The Court further observes that during the initial investigation there was no evidence to suggest that a crime had been committed. Nor could such evidence be found in the expert report of 4 February 1992. It was not therefore “necessary” for the public prosecutor to order a judicial autopsy, within the meaning of Article 116 of the implementing provisions of the CCP.

The Court accordingly considers that it is unnecessary to examine the objections raised by the Government and that this complaint should be dismissed as manifestly ill-founded, in accordance with Article 35 §§ 3 and 4 of the Convention.

2.  The applicant also complained under Article 6 § 1 and Article 13 of the Convention that the public prosecutor had failed to order a judicial autopsy during the initial investigation. Relying on the “equality of arms” principle, he moreover complained that under Article 394 of the CCP only the public prosecutor could apply directly to the investigating judge for such an autopsy to be performed. The Court considers that this complaint should be examined in the light of Article 6 § 1 of the Convention, which provides:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

The Government first argued that the application had been lodged too late, as it was over six months after the date on which an autopsy could have been performed (that is to say, in the few days following the death of the applicant’s wife) and, in any event, over six months after the discontinuance of the first set of criminal proceedings on 13 April 1992. They thus contended that this part of the application should be dismissed.

The Government observed, moreover, that, under Article 394 of the CCP, the applicant could have requested that the public prosecutor apply to the investigating judge for the immediate production of evidence. Furthermore, they pointed out that the applicant had also failed to apply to the prosecutor for urgent expert evidence (accertamento tecnico non ripetibile) under Article 360 of the CCP.

According to the applicant, the fact that the injured party was precluded from applying directly to the investigating judge for the immediate production of evidence had undoubtedly breached his right of access to a court. During the preliminary investigation stage, certain findings were made that were indeed decisive for the subsequent criminal proceedings. It might also be necessary at that stage to gather evidence that was likely to deteriorate over time and might be impossible to obtain at subsequent stages of the proceedings.

Turning first to the objection raised by the Government, the Court notes that the complaint about the failure to perform a judicial autopsy is strictly related to the outcome of the third set of criminal proceedings, since they resulted in a decision of 7 January 2002 that there was no case to answer precisely because there had been no such autopsy. The Court therefore considers that this finding of no case to answer constitutes the final domestic decision for the purposes of Article 35 § 1 of the Convention and that the Government’s objection must be dismissed.

The Court next observes that the part of this complaint concerning the fact that the public prosecutor did not order a judicial autopsy during the initial investigation has already been examined under Article 2 of the Convention and has been declared inadmissible.

Regarding the second part of the complaint, the Court observes that, under Article 392 of the CCP, only the public prosecutor and the person being investigated may apply to the investigating judge for the immediate production of evidence. The injured party is only entitled to request that the public prosecutor apply to the judge for such production and, if the prosecutor considers that he does not have to grant that request, his decision is notified to the injured party (Article 394 of the CCP).

The Court has previously stressed the “need to safeguard victims’ rights and their proper place in criminal proceedings” and has pointed out that “[s]imply because the requirements inherent in the concept of a ‘fair trial’ are not necessarily the same in disputes about civil rights and obligations as they are in cases involving criminal trials, as evidenced by the fact that for civil disputes there are no detailed provisions similar to those in Article 6 §§ 2 and 3 ... does not mean that the Court can ignore the plight of victims and downgrade their rights” (see Perez v. France [GC], no. 47287/99, § 72, ECHR 2004-I).

In the Court’s view, the statutory rules laid down in Articles 392 and 394 of the CCP may cast doubt on whether the rights of the injured party to equality of arms and access to a court, as guaranteed by Article 6 § 1 of the Convention, are respected.

Turning now to the applicability of Article 6 § 1 in the instant case, the Court reiterates that it may be applicable even in the absence of a claim for financial reparation: it suffices if the outcome of the proceedings is decisive for the “civil right” in question (see Moreira de Azevedo v. Portugal, judgment of 23 October 1990, Series A no. 189, pp. 16-17, § 66, and Perez, cited above, § 65). Furthermore, “[w]hether or not a right is to be regarded as civil within the meaning of that term in the Convention must be determined by reference not only to its legal classification but also to its substantive content and effects under the domestic law of the State concerned. Moreover, the Court, in the exercise of its supervisory function, must also take account of the object and purpose of the Convention” (see Perez, cited above, § 57).

Whilst it is admittedly true that under Italian law injured parties cannot join the proceedings as a civil party until the preliminary hearing (Article 79 of the CCP), at the preliminary investigation stage they can exercise the rights and powers expressly recognised by law (Article 90 of the CCP).

Those rights include, by way of example, the possibility of requesting that the prosecutor apply to the investigating judge for the immediate production of evidence (Article 394 of the CCP) and the right to appoint a statutory representative for the exercise of the rights and powers enjoyed by the injured party (Article 101 of the CCP). Moreover, the exercise of those rights may prove to be essential for effective participation in the proceedings as a civil party, especially where, as in the instant case, certain evidence is likely to deteriorate over time and will no longer be obtainable at later stages in the proceedings. In addition, the injured party is entitled to submit pleadings at all stages of the proceedings and, except in cassation proceedings, may request the inclusion of evidence (Article 90 of the CCP).

Accordingly, the Court considers that, in view of the foregoing, Article 6 § 1 of the Convention is applicable in the present case.

However, in terms of whether this complaint fulfils the conditions of admissibility, the Court notes that, in accordance with Article 394 of the CCP, the applicant should have requested that the public prosecutor apply to the investigating judge for the immediate production of evidence, namely a judicial autopsy. As the applicant failed to make use of the remedy available to him under domestic law, the Court considers that this part of the application must be rejected for failure to exhaust domestic remedies, in accordance with Article 35 §§ 1 and 4 of the Convention.

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For these reasons, the Court unanimously

Declares the application inadmissible.

Check with original text. If the applicant’s name is not mentioned in the original, put his name in square brackets without commas (e.g. The applicant [Mr John Bloggs] is an Irish national…).


SOTTANI v. ITALY DECISION


SOTTANI v. ITALY DECISION