CEDH · CASELAW;CLIN;ENG — 24 octobre 2002

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Italy - 37703/97 Judgment 24.10.2002 [GC] Article 2 Positive obligations Murder committed by convicts on prison leave or under semi-custodial regime: no violation Facts – The applicant’s son was shot dead when three bank robbers tried to take control of his car. Two of the men were serving prison sentences for violent offences. One had been granted a short period of prison leave and had absconded a few days before the murder; the other had been granted a semi-custodial regime which allowed him to work outside prison but required him to return there in the evening. The two men were convicted of the murder of the applicant’s son and given long prison sentences. They were also ordered to pay the applicant damages in an amount to be determined by the civil courts. However, the applicant did not bring proceedings in the civil courts, considering that the perpetrators would in any event be unable to pay damages. Law – Article 2 ( obligation to protect life ): At issue in the case was the State’s obligation to afford general protection to society against the potential acts of persons serving a prison sentence for violent crime and the determination of the scope of that obligation. The Court recognised the legitimate aim of a policy of progressive social reintegration of convicted prisoners and the merit of measures permitting such reintegration, even when it related to persons convicted of violent crimes. It considered that the Italian system, which contained a number of safeguards in connection with the assessment of whether a prisoner should be granted prison leave, provided sufficient protective measures for society and that, accordingly, there was nothing to suggest that the system had to be called into question under Article 2. It remained to be seen whether the adoption and implementation of the decisions granting prison leave and semi-custodial treatment disclosed a breach of the duty of care required by Article 2. In that respect, the fact that the murder would not have taken place if the perpetrators had been in prison did not suffice to engage the responsibility of the State; it had to be shown that the death of the applicant’s son resulted from a failure on the part of the authorities to do all that could reasonable be expected of them to avoid a real and immediate risk to life of which they had or ought to have had knowledge. In that connection, the respective decisions had been taken on the basis of reports which had given a positive assessment of the behaviour and reintegration of the two prisoners and there was nothing in the material before the national authorities to alert them to the fact that their release would pose a real and immediate threat to life, still less that it would lead to the tragic death of the applicant’s son as a result of the chance sequence of events which occurred. Consequently, it had not been established that the measures had given rise to any failure on the part of the judicial authorities to protect the life of the applicant’s son. Conclusion : no violation (unanimously). Article 2 ( procedural obligations ): A procedural obligation arose to determine the circumstances of the death and an adequate investigation was carried out, resulting in the conviction of the perpetrators and an order that they pay compensation. In these circumstances, the State had satisfied the obligation to guarantee a criminal investigation. As to whether the procedural obligations under Article 2 extended to requiring a remedy by which a claim could be lodged against the State, two remedies were available to the applicant: an action against the State and an action against the judges responsible for the execution of sentences. While these remedies required proof of fault, Article 2 does not impose on States an obligation to provide compensation on the basis of strict liability and the fact that the liability of judges depended on proof of malice or gross negligence was not such as to render the procedural protection afforded by domestic law ineffective. This was the more so in the present case, since the effectiveness of the remedies could not be assessed, as the applicant had not used them. The procedural requirements of Article 2 had therefore been satisfied. Conclusion : no violation (sixteen votes to one).   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes