Article 2 – The positive obligations incumbent on States require that they make regulations compelling both public and private hospitals to adopt appropriate measures for the protection of patients’ lives. They also require an effective independent judicial system to be set up allowing for the cause of a patient’s death to be determined and for those responsible to be held accountable. Article 2 was therefore applicable. Although the Convention does not guarantee a right to have criminal proceedings brought against third parties, the effective judicial system required by Article 2 may, and in certain circumstances must, include recourse to the criminal law. Accordingly, the Government’s preliminary objection that the applicants could not claim to be victims in that respect had to be dismissed. However, in the case of unintentional infringement of the right to life, the obligation to set up an effective judicial system does not necessarily require the provision of a criminal law remedy in every case, and in the specific sphere of medical negligence it may be satisfied if victims have a remedy in the civil courts, whereby liability can be established and appropriate redress obtained. The Italian legal system affords injured parties both mandatory criminal proceedings and the possibility of bringing a civil action, and disciplinary proceedings may also be brought if a doctor is held liable in civil proceedings. Consequently, the Italian system offers litigants remedies which, in theory, meet the requirements of Article 2. However, that protection must also operate effectively in practice within a time-span that allows the courts to complete their examination of the merits of each individual case.

In the present case, the criminal proceedings became time-barred because of procedural delays. However, the applicants were also entitled to bring civil proceedings, and did so. The fact that no finding of liability was ever made against the doctor by a civil court was due to the intervening settlement which they reached with the insurers. The applicants thus voluntarily waived their right to pursue the proceedings, which could have led in particular to an award of damages against the doctor. In this way, they denied themselves access to the best means of elucidating the extent of the doctor’s responsibility for the death of their child, which in the special circumstances of the case would have satisfied the positive obligations arising under Article 2. That conclusion made it unnecessary to examine whether the operation of the time-bar in the criminal proceedings was compatible with Article 2.

Conclusion: no violation (14 votes to 3)

Article 6(1) (length of proceedings) – Although the criminal proceedings concerned only the determination of the criminal charge against the doctor, they were apt to have repercussions on the claims made by the applicants as civil parties. Article 6 applied to the criminal proceedings, the decisive factor being that, from the moment the applicants were joined as civil parties until the conclusion of those proceedings, the civil limb of the proceedings remained closely linked to the criminal limb. The proceedings lasted more than six years and three months. However, they were undeniably complex and, despite regrettable delays, such a period for proceedings at four levels of jurisdiction could not be regarded as unreasonable.

Conclusion: no violation (16 votes to 1).