AS TO THE ADMISSIBILITY OF
Application no. 37900/97
by Torquil Dick ERIKSON
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. Panţîru, Judges,
with Mr M. O’Boyle, Section Registrar;
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;
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;
Decides as follows:
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. The x-ray plates bear the stamp of the Radiology Department but were 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.
In February 1992 the applicant happened to discuss the circumstances of his mother's death in detail with a doctor friend of his, who requested to examine the x-ray plates taken of the applicant's mother on 28 September 1989. The applicant obtained from the hospital copy of his mother's medical file including the x-ray plates and subsequently submitted them to the 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. Such report also stated that a dose of barium on top of an intestinal occlusion is likely to be very dangerous.
The applicant obtained a second medical report from another doctor, dated 31 October 1992 and supporting the findings of the first.
A third medical report was drafted by a third specialist on 11 January 1993.
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 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.
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.
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.
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").
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.
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.
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.
On 12 March 1996 the Public Prosecutor 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. 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 to 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 margin of appreciation.
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.
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 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, 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.
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, 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.
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 submits that the two main suspects lied to the prosecuting authorities, 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.
The applicant argues that the right to life can be effectively protected only if those responsible for somebody’s death are duly punished.
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. 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 (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 (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. 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. 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. The Court recalls however in the first place that the Convention does not guarantee a right to secure a conviction in criminal proceedings (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. 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. In the present case, the Court finds no indication that the prosecuting authorities arbitrarily assessed the evidence before them.
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.
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 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.
O’Boyle Elisabeth Palm
37900/97 - -
- - 37900/97