CEDH · PRESS;GENERAL;ENG — 17 janvier 2002

.s800EAC49 { font-size:12pt } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .sBB9EE52A { font-family:Arial } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s94935B0F { width:389.85pt; display:inline-block } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s6B505E72 { margin:0pt; padding-left:0pt } .s4060989B { margin-left:10.52pt; text-align:justify; padding-left:7.48pt; font-family:serif } .sA36B60A1 { font-family:Arial; font-style:italic } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB8109D06 { width:29.94pt; display:inline-block } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sCB27B9E { width:16.66pt; display:inline-block } .sC5412BEF { width:51.05pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s3133A7C8 { font-family:Arial; color:#0069d6 }   EUROPEAN COURT OF HUMAN RIGHTS     017   17.1.2002     Press release issued by the Registrar   JUDGMENT IN THE CASE OF CALVELLI & CIGLIO v. ITALY     The European Court of Human Rights has today notified in writing a Grand Chamber judgment (which is final) in the case of Calvelli & Ciglio v. Italy (application no. 32967/96). The Court held:   By 14 votes to three, that there had been no violation of Article 2 (right to life) of the European Convention on Human Rights; By 16 votes to one, that there had been no violation of Article 6 § 1 (right to a determination of civil rights within a reasonable time) of the Convention.   (The judgment is available in English and in French.)     1.     Principal facts   The applicants, Pietro Calvelli and Sonia Ciglio, are both Italian nationals, whose baby was born in a private clinic, “La Madonnina”, in Cosenza (Italy) on 7 February 1987. Immediately following its birth, their baby was admitted to the intensive care unit of Cosenza Hospital suffering from serious respiratory and neurological post-asphyxia syndrome induced by the position in which it had become lodged during delivery. The baby died on 9 February 1987.   On 10 February 1987 the applicants lodged a complaint and the Cosenza Public Prosecutor’s Office started an investigation.   The applicants were informed that charges would be brought against E.C., the doctor responsible for delivering their baby and the joint owner of the clinic, and, on 7 July 1989 they were joined as civil parties to the proceedings. On 17 December 1993 Cosenza Criminal Court found E.C. guilty in absentia of involuntary manslaughter and sentenced him to one year’s imprisonment and ordered him to pay the civil parties’ costs and compensation.   The court found that the accused knew that the birth had to be regarded as high risk since the mother was a level A diabetic and had a past history of confinements that had been equally difficult because of the size of the foetus. The risks inherent in deliveries in such circumstances, which the expert witnesses appointed by the Criminal Court described as readily foreseeable, meant that precautionary measures should have been taken and that the doctor in charge should have been present. The Criminal Court found, however, that E.C., whom the applicant had consulted during the pregnancy, had taken no precautionary measures and had been absent during the birth, seeing patients in another part of the hospital. When the complications had occurred, it had taken the nursing staff six or seven minutes to locate him and the intervening delay, before he was able to perform the manipulation necessary to extract the foetus, had significantly reduced its chances of survival. The court nevertheless suspended the sentence and ordered that the conviction should not appear on E.C.’s criminal record. In addition, it dismissed the civil parties’ application for a provisional award of compensation. E.C. appealed. In a judgment of 3 July 1995 the Catanzaro Court of Appeal ruled that the prosecution of the offence was time-barred and the time limit for the offence of which E.C. was accused had expired on 9 August 1994.   In the meantime the applicants had also brought civil proceedings against E.C.   However, on 27 April 1995, while the criminal proceedings were still pending before Catanzaro Court of Appeal, they entered into an agreement with the doctor and the clinic’s insurers under which the insurers were to pay 95,000,000 Italian lire (ITL) for any damage sustained by the applicants. Subsequently, as the parties failed to attend a hearing on 16   November 1995, the case was struck out.     2.     Procedure and composition of the Court   The application was lodged with the European Commission of Human Rights on 29 December 1995 and transmitted to the European Court of Human Rights on 1 November 1998. On 6 April 2000 the case was declared admissible by a chamber of the Second Section of the Court and on 10 July 2001 it was relinquished to the Grand Chamber.   Judgment was given by the Grand Chamber of seventeen judges, composed as follows:   Luzius Wildhaber (Swiss), President , Christos Rozakis (Greek), Jean-Paul Costa (French), Georg Ress (German), Benedetto Conforti (Italian), Giovanni Bonello (Maltese), Elisabeth Palm (Swedish), Riza Türmen (Turkish), Viera Strážnická (Slovakian), Peer Lorenzen (Danish), Willi Fuhrmann (Austrian) Marc Fischbach (Luxemburger), Volodymyr Butkevych (Ukrainian),   Boštjan Zupančič (Slovenian), Nina Vajić (Croatian), John Hedigan (Irish), Egils Levits (Latvian), judges . and also Paul Mahoney , Registrar ..             3.     Summary of the judgment [1]   Complaints   The applicants complained, under Article 2, that, owing to procedural delays, a time-bar had arisen making it impossible to prosecute the doctor responsible for the delivery of their child, who died shortly after birth. They also complained, under Article 6 § 1, about the length of the proceedings, which lasted six years, three months and 10 days (from 7 July 1989, when the applicants were first joined as civil parties to the criminal proceedings, until 17 October 1995, when the Catanzaro Court of Appeal’s judgment of 3 July 1995 became final).   Decision of the Court   Article 2   The Court observed that, under Article 2, Italy was required to make regulations compelling hospitals, whether public or private, to adopt appropriate measures for the protection of patients’ lives. It was also required to provide an effective independent judicial system so that the cause of death of patients in the care of the medical profession, whether in the public or the private sector, could be determined and those responsible made accountable. The Court therefore considered that Article 2 was applicable.   The Court then went on to determine what judicial response was required in the specific circumstances.   The Court noted that the criminal proceedings instituted against the doctor concerned had become time-barred because of procedural shortcomings that had led to delays, particularly during the police inquiry and judicial investigation. However, the applicants were also entitled to issue proceedings in the civil courts and had done so. It was true that no finding of liability had ever been made against the doctor by a civil court. However, the applicants had entered into a settlement agreement and voluntarily waived their right to pursue those proceedings. This could have led to an order against the doctor for the payment of damages and possibly to the publication of the judgment in the press. A judgment in the civil court could also have led to disciplinary action against the doctor.     The Court accordingly considered that the applicants had denied themselves access to the best means – and one that, in the special circumstances of the instant case, would have satisfied the positive obligations arising under Article 2 – of elucidating the extent of the doctor’s responsibility for the death of their child.   The Court reiterated that where a relative of a deceased person accepted compensation in settlement of a civil claim based on medical negligence, he or she could in principle no longer claim to be a victim. It was therefore not necessary for the Court to examine whether the fact that a time-bar prevented the doctor being prosecuted for the alleged offence was compatible with Article 2.     The Court therefore held that there had been no violation of Article 2.       Article 6 § 1   The Court noted that the proceedings concerned were undeniably complex. Further, although after the applicants were initially joined as civil parties to the proceedings on 7 July 1989, the proceedings at first instance had been affected by regrettable delays, there had not been any further significant periods of inactivity attributable to the authorities (apart from the adjournment of the first hearing, which was caused by a lawyers’ strike).   The Court therefore considered that a period of six years, three months and ten days for proceedings before four levels of jurisdiction could not be regarded as unreasonable. Consequently, there had been no violation of Article 6 § 1.   Judge Zupančič expressed a concurring opinion, Judge Costa a partly dissenting opinion and Judge Rozarkis, joined by Judge Bonello, a dissenting opinion, all of which are annexed to the judgment.     ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Contacts:   Roderick Liddell (telephone: (0)3 88 41 24 92)   Emma Hellyer (telephone: (0)3 90 21 42 15) Fax: (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court. [1] .     This summary by the Registry does not bind the Court.