CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 1 décembre 2009

.s800EAC49 { font-size:12pt } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s29100277 { font-family:Arial; font-weight:bold } .sA678F94A { margin-top:0pt; margin-bottom:0pt; text-align:right; font-size:11pt } .s7ED160F0 { text-decoration:none } .s2F5E426D { font-family:Arial; font-size:6pt; font-weight:bold; vertical-align:super; color:#0069d6 } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sEABE4E75 { font-family:Arial; font-size:11pt; font-style:italic; text-decoration:underline; color:#0069d6 } .s1F6AC3E7 { font-family:Arial; font-size:11pt; font-style:italic } .sA36B60A1 { font-family:Arial; font-style:italic } .sBB9EE52A { font-family:Arial } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .s365FF37E { margin-top:0pt; margin-bottom:12pt; font-size:11pt } .s757EE3D { margin-top:12pt; margin-bottom:12pt; font-size:11pt } .s4C5A13DE { margin-top:12pt; margin-bottom:0pt; font-size:11pt } .s99A63BFE { margin-top:0pt; margin-bottom:0pt; text-align:left; font-size:11pt } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s4BAE41EE { font-family:Arial; font-size:11pt } .sBACB3E60 { font-family:Arial; font-size:11pt; text-decoration:underline; color:#800080 } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .s9FE28126 { margin-top:0pt; margin-right:42.5pt; margin-bottom:0pt; text-align:left; font-size:11pt } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .sB853CD26 { font-family:Arial; font-size:8pt }   903 01.12.2009   Press release issued by the Registrar   Chamber judgment [1] G.N. and Others v. Italy (application no. 43134/05)     DISCRIMINATORY TREATMENT IN CONTAMINATED BLOOD CASES   Unanimously:   No violation of Article 2 (right to life) regarding the obligation to protect the lives of the applicants and their relatives Violation of Article 2 regarding the conduct of the civil proceedings Violation of Article 14 (prohibition of discrimination) in conjunction with Article 2 of the European Convention on Human Rights     (The judgment is available only in French)     Principal facts   The applicants, Mr G.N., Mrs G.S., Mr D.C., Mrs G.D.M., Mr S.C., Mrs E.S. and Mrs D.C., are Italian nationals who were born in 1950, 1957, 1937, 1938, 1965, 1920 and 1973 respectively and live in Italy.   The first six applicants are the relatives of persons now deceased who contracted human immunodeficiency virus (HIV) or hepatitis C in the 1980s following blood transfusions carried out by the State health service. The same thing happened to the seventh applicant, Mrs D.C., who is the only surviving member of the infected group. The persons concerned had thalassaemia, a hereditary disorder whose sufferers need to be given blood and blood products in order to survive. In 1993 a group of about a hundred persons commenced proceedings (the so-called “ Emo uno ” case) against the Ministry of Health (“the Ministry”), seeking compensation for damage sustained in similar cases. On various dates the applicants intervened in those proceedings. Following an appeal against the first-instance judgment, the Ministry was ordered to provide compensation only in respect of cases occurring after certain key dates in terms of the understanding of the viruses. As the applicants and their relatives had been infected before those dates, they did not obtain compensation. The Court of Cassation upheld that decision in 2005, taking the view that before hepatitis C and HIV had been identified by the global scientific community, no causal link had existed between the Ministry’s conduct and the damage sustained. A decree enacted in November 2003 enabled the Ministry to conclude out-of-court settlements with haemophiliacs infected in this manner. Because they suffered from thalassaemia, the applicants were unable to benefit. All the persons involved in the “ Emo uno ” case, with the exception of the applicants and ten others, settled out of court. Two other groups of persons infected in the same circumstances brought actions for damages against the Ministry. These cases, known as “ Emo bis ” and “ Emo ter ”, are still pending. In these proceedings the courts did not follow the guidelines established in “ Emo uno ” with regard to the starting dates from which the Ministry’s responsibility was engaged vis-à-vis infected persons.     Complaints, procedure and composition of the Court   Relying on Article 2 (right to life), the applicants complained that the authorities had not carried out the necessary checks to prevent infection. They also complained of shortcomings in the subsequent conduct of the civil proceedings and of the refusal to award them compensation. Under Article 8 (right to respect for private and family life) and Article 3 (prohibition of inhuman or degrading treatment), they complained of the suffering endured as a result of their infection or that of their relatives. They further complained under Article 6 § 1 (right to a fair hearing within a reasonable time) of the length of the domestic proceedings. Lastly, relying on Article 14 (prohibition of discrimination), they alleged that they had been discriminated against compared to other groups of infected persons.   The application was lodged with the European Court of Human Rights on 28 November 2005.   Judgment was given by a Chamber of seven judges, composed as follows:   Françoise Tulkens (Belgium), President , Vladimiro Zagrebelsky (Italy), Danutė Jočienė (Lithuania), Dragoljub Popović (Serbia), András Sajó (Hungary), Nona Tsotsoria (Georgia), Kristina Pardalos (San Marino), judges , and also Sally Dollé , Section Registrar .     Decision of the Court   Article 2   It had not been established that at the material time the Ministry had known or should have known about the risk of transmission of HIV or hepatitis C via blood transfusion, and the Court could not determine from what dates onward the Ministry of Health had been or should have been aware of the risk. Nor could the assessment of the Ministry’s responsibility by the domestic courts in the “ Emo uno ” case be regarded as arbitrary or unreasonable. Accordingly, the Italian authorities could not be said to have failed in their duty to protect the life of Mrs D.C. and the other applicants’ relatives. The Court therefore held that there had been no violation of Article 2 on this point.   The Court observed that while the Italian system, by offering the applicants the possibility of a civil remedy, had in theory satisfied the procedural requirements of Article 2, in practice the proceedings in question had lasted for periods ranging from three and a half years to over ten years depending on the applicant, despite the fact that exceptional diligence was called for in compensation proceedings brought by persons infected following blood transfusions. While the Court accepted that the proceedings had been complex, it observed that there had been delays and periods of inactivity, and noted that the subsequent proceedings before the Court of Cassation had lasted for three years and ten months. Lastly, the remedy provided by the “Pinto Act” in order to complain of the excessive length of proceedings would not have been suitable in the applicants’ case. Accordingly, the Court considered that the authorities had not provided them with an adequate and prompt response and held that there had been a violation of Article 2 in this respect.   Article 14   The Court examined the applicants’ complaint concerning discriminatory treatment under Article 14 in conjunction with Article 2.   With regard to the alleged discrimination against the applicants in relation to the infected persons who had brought the “ Emo bis ” and “ Emo ter ” proceedings, the Court considered that the difference between the findings of the Italian courts in these two cases and in the “ Emo uno ” case stemmed from a change in the case-law and did not provide sufficient basis for concluding that the first set of proceedings had been arbitrary and had given rise to discriminatory treatment. This part of the complaint was therefore rejected as being manifestly ill-founded.   As to the discrimination claimed by the applicants as thalassaemia sufferers or their heirs in relation to the haemophiliacs who had benefited from out-of-court settlements, the Court observed that there had been a difference in treatment between persons in similar situations. The distinction had been based on the type of hereditary disorder from which Mrs D.C. and the other applicants’ relatives suffered and on the fact that, under the law, the Italian Government could only conclude out-of-court settlements with haemophiliacs. The Court therefore considered that the applicants had been subjected to discriminatory treatment and ruled in this regard that there had been a violation of Article 14 taken in conjunction with Article 2.   Article 3   As to the inhuman and degrading treatment alleged by the applicants on account of their infection, the Court noted that it had not been established that the risk of infection was known to the Italian authorities at the time, nor had there been any intention on their part to humiliate or debase the applicants or their relatives. This complaint was therefore declared inadmissible as being manifestly ill-founded.   Article 8   The applicants had not lodged a complaint with the Italian Court of Cassation concerning their right to respect for their private and family life and had therefore not exhausted domestic remedies. The Court also noted that the case did not disclose any appearance of an infringement of the applicants’ rights in this regard. Accordingly, it declared the complaint inadmissible as being manifestly ill-founded.   Article 6 § 1   The Court did not consider it necessary at this stage to examine the complaint concerning the length of the proceedings in the “ Emo uno ” case.   Article 41 (just satisfaction)   The Court awarded 39,000 euros (EUR), each, in respect of non-pecuniary damage to: -Mrs D.C., -Mr D.C. and Mrs G.D.M. jointly, -Mr G.N. and Mrs G.S. jointly, -Mrs E.S. and Mr S.C. jointly.   It made a joint award of EUR 8,000 for costs and expenses.   The Court ruled that the question of application of Article 41 in respect of pecuniary damage was not ready for decision and reserved it for later consideration.   *** This press release is a document produced by the Registry. It does not bind the Court. The judgments are available on its   website ( http://www.echr.coe.int ).     Press contacts Céline Menu-Lange (tel: + 33 (0)3 90 21 58 77) or Stefano Piedimonte (tel: + 33 (0)3 90 21 42 04) Tracey Turner-Tretz (tel: + 33 (0)3 88 41 35 30) Kristina Pencheva-Malinowski (tel: + 33 (0)3 88 41 35 70) Frédéric Dolt (tel: + 33 (0)3 90 21 53 39) Nina Salomon (tel: + 33 (0)3 90 21 49 79)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. [1] Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer.