CASE OF CALVELLI AND CIGLIO v. ITALY
Preliminary objections rejected (victim);No violation of Art. 2;No violation of Art. 6-1
Luzius Wildhaber;Paul Mahoney
9. Immediately following its birth in a private clinic, “La Madonnina”, in Cosenza the applicant's new-born 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, two days after birth. 10. On 10 February 1987 the applicants lodged a complaint. The Cosenza public prosecutor's office started an investigation that same day. 11. On 12 February 1987 Ms Ciglio was questioned as a witness. A team of three expert witnesses was named. 12. As nothing further happened in the proceedings, the applicants made several requests, notably on 16 October 1987, and 12 April and 30 June 1988, for the investigation to be expedited. On 16 November 1988 the public prosecutor's office itself requested the expert witnesses to lodge their report. 13. On 19 June 1989 the applicants were informed that at the request of the public prosecutor's office, the investigating judge had notified E.C. – the doctor responsible for delivering the baby and the joint owner of the clinic – that charges would be brought against him. 14. Subsequently, the scheduled questioning of certain witnesses on 18 July 1989 did not take place, as the judge dealing with the case was on holiday. 15. Meanwhile, on 7 July 1989, the applicants were joined to the proceedings as civil parties. 16. On 19 January 1990 the prosecution applied for the complaint to be filed away without further action. That application was dismissed on 24 May 1990. 17. On 3 October 1990 the investigating judge instructed the public prosecutor's office to make further inquiries. Consequently, on 29 November 1990 the deputy public prosecutor ordered forensic tests. The results were made available on 5 January 1991. 18. On 12 June 1991 E.C. was committed for trial before the Cosenza Criminal Court on a charge of involuntary manslaughter and the applicants renewed their application to be joined to the proceedings as civil parties. 19. The first hearing was set down for 2 July 1992 but had to be adjourned because of a lawyers' strike. The next hearing on 15 October 1992 was also adjourned due to a delay in service of a summons on the accused to appear. 20. A new hearing date was fixed for 15 January 1993. On that date an order was made for the accused's trial in absentia. The trial did not begin, however, until 19 March 1993, as meanwhile the accused had changed lawyers. The hearing scheduled for 29 April 1993 was adjourned until 3 June 1993 as the composition of the bench was not the same as that to which the case had been allocated. The trial thereafter continued with hearings on 27 May, and 10 and 17 June (the latter hearing being adjourned as one of the expert witnesses appointed by the court had to be replaced). A hearing on 15 July 1993 was adjourned to 16 September 1993, again owing to the fact that the composition of the bench was not the same as that to which the case had been allocated. There were further hearings on 14 and 26 October 1993. On the latter date the order for the accused's trial in absentia was revoked, but the hearing had to be adjourned as the expert witnesses failed to attend without due cause (they were ordered to pay a fine and to attend the next hearing on 14 December). A final hearing took place on 17 December 1993. The accused, who had attended the hearings on 26 October and 14 December 1993, was not present at that hearing. 21. At the hearing on 17 December the Cosenza Criminal Court found the accused guilty in absentia of involuntary manslaughter. Its judgment was lodged with the registry on 19 February 1994. The Criminal Court sentenced the accused to one year's imprisonment and ordered him to pay the civil parties' costs together with compensation to be assessed at a later date. 22. It found firstly 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 made no arrangements for precautionary measures, such as an external examination of the mother, to assess whether the foetus was too large for a natural birth. Above all, he had absented himself during the birth. When the complications had occurred, it had taken the nursing staff six or seven minutes to locate E.C., who was busy seeing patients in another part of the clinic. The intervening delay before E.C. was able to perform the manipulation necessary to extract the foetus had significantly reduced the new-born's chances of survival. 23. The Criminal 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. 24. On 17 March 1994 E.C. appealed to the Catanzaro Court of Appeal. 25. In a judgment of 3 August 1994, which was delivered in absentia and lodged with the registry on 17 August 1994, the Court of Appeal declared the appeal inadmissible. Noting that he had been tried in absentia at first instance, the Court of Appeal held that E.C. had failed to give his lawyer the authority to act required under the rules applicable in such cases. It ordered him to reimburse the costs incurred by the civil parties in the proceedings. 26. On 7 October 1994 E.C. appealed to the Court of Cassation. In a judgment of 22 December 1994, which was lodged with the registry on 23 January 1995, the Court of Cassation overturned the decision of the Catanzaro Court of Appeal, to which it remitted the case for a retrial. It held that the Court of Appeal had erred in treating E.C. as being absent, as he had been present at the start of the trial and had accordingly to be regarded as having left the court during the trial and not as liable to trial in absentia. 27. In a judgment of 3 July 1995, which was lodged with the registry on 10 July 1995, the Catanzaro Court of Appeal ruled that the prosecution of the offence was time-barred. 28. In so doing, it noted that the limitation period for the offence of which E.C. was accused had expired on 9 August 1994, in other words, even before the Court of Cassation had delivered its judgment. 29. Following E.C.'s conviction at first instance by the Cosenza Criminal Court on 19 February 1994 (see paragraphs 21-22 above), the applicants served a summons requiring E.C. to appear before the civil court of that town. 30. However, on 27 April 1995 the applicants entered into an agreement with the insurers of the doctor and the clinic under which the insurers were to pay 95,000,000 Italian lire (ITL) for any damage sustained by the applicants. Of that sum, ITL 15,000,000 were designated as reparation for the special loss sustained by Ms Ciglio. At that time, the criminal proceedings were pending in the Catanzaro Court of Appeal following the Court of Cassation's judgment of 22 December 1994 (see paragraph 26 above). 31. Subsequently, as the parties failed to attend a hearing on 16 November 1995, the case was struck out of the civil court's list. At that stage, the criminal proceedings had only just ended, the Court of Appeal's ruling that the prosecution of the offence was time-barred having become final on 17 October 1995. 32. Article 112 of the Italian Constitution provides: “The public prosecutor's office has a duty to prosecute.” 33. Article 589 of the Criminal Code lays down that the penalty for involuntary manslaughter is imprisonment of between six months and five years. 34. Furthermore, Article 157 § 1, sub-paragraph 4, of the Criminal Code provides that the limitation period for involuntary manslaughter is five years. That period may be extended by one half as a result of any interlocutory matters arising, but may under no circumstances exceed seven and a half years from the date of the offence. 35. Lastly, Article 120 of the Code of Civil Procedure provides: “In cases in which publishing the decision on the merits may contribute to providing reparation for the damage, the court may, on application by an interested party, order the losing party to publish the decision at its own expense in one or more newspapers determined by the court. If the decision is not published within the period fixed by the court, the interested party may arrange for publication and shall retain the right to recover the costs from the losing party.” 36. In the resolution cited above, adopted on 18 September 1975, the Committee of Ministers of the Council of Europe recommended that in their internal legislation and practice the governments of the member States be guided by the following principles: “1. Criminal proceedings should not be instituted or, if appropriate, sanctions shall not be imposed for manslaughter or accidental bodily injury resulting from a minor traffic offence, that is to say, a driving offence that was not such that its author must have been aware of the danger to which he exposed himself or others; 2. The same should apply, subject to the inexcusable character of the fault committed, in respect of a person who has caused manslaughter or accidental bodily injury if he himself or someone dear to him has been so badly injured that a sanction would be pointless, if not inhuman; 3. Application of the above-mentioned recommendations should in no way prejudice the rights of the victims to obtain compensation.”