AS TO THE ADMISSIBILITY
Application no. 37900/97
by Torquil Dick ERIKSON
Court of Human Rights (First Section) sitting on 26 October 1999 as a Chamber
Mrs E. Palm, President,
Mr J. Casadevall,
Mr B. Conforti,
Mr L. Ferrari Bravo,
Mr C. Bîrsan,
Mrs W. Thomassen,
Mr T. Pantîru, Judges,
with Mr M. O’Boyle,
Having regard to
Article 34 of the Convention for the Protection of Human Rights and Fundamental
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.
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.
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.
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.
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
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
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.
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
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
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
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.
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.
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.
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
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.”
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.
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
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.
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.
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
argues that the right to life can be effectively protected only if those
responsible for somebody’s death are duly punished.
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).
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.
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
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.
reasons, the Court, unanimously,
O’Boyle Elisabeth Palm