CEDH · CASELAW;CLIN;ENG — 24 février 2005

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Italy (dec.) - 26775/02 Decision 24.2.2005 [Section III] Article 6 Criminal proceedings Article 6-1 Fair hearing Equality of arms Complainant’s rights during the pre-trial investigation: inadmissible   The applicant’s wife, who was suffering from acute leukaemia, died in hospital. The medical examination indicated that she had died of acute bronchopneumonia. The applicant lodged a complaint. On the basis of an expert report, the public prosecution service ordered that the complaint be filed without further action. The investigating judge commissioned an expert report to establish whether the drug cited by the applicant had been administered to the latter’s wife in accordance with established professional practice. The report concluded that there had been no error, carelessness or negligence in the patient’s treatment. The complaint was set aside as requiring no further action. The applicant lodged a second complaint. This too was set aside as requiring no further action on the strength of another expert report. Following a third complaint by the applicant, the doctors concerned were committed for trial, on a charge of murder as a result of the acts complained of by the applicant. A preliminary hearing was held, and enabled the applicant to apply to join the proceedings as a civil party. It was eventually held that there was no case to answer. It had not been demonstrated with certitude that the drug concerned had caused the death; in addition, the public prosecutor had not ordered an autopsy at the time of the investigation immediately after the death, which had occurred eleven years previously, so that it was no longer possible to ascertain the exact causes of death.   Inadmissible under Article   2: The applicant complained that the public prosecutor had not ordered an autopsy at the time of the first investigation. During the first investigation, there had been no evidence suggesting that a crime had been committed, and no evidence to that effect had been submitted in the expert report drawn up at the time; it had not therefore been “necessary” for the public prosecutor to order an autopsy for the purposes of Article   116 of the Enforcement Provisions of the Code of Criminal Procedure: manifestly ill-founded. Inadmissible under Article   6 § 1: The applicant complained that, under Article   394 of the Code of Criminal Procedure, only the public prosecutor could directly request an investigating judge to order an autopsy, and alleged that this was contrary to the principle of equality of arms. It was true that, under Italian law, injured parties could not apply to join the proceedings as a civil party until the preliminary hearing. However, they could exercise the rights and powers expressly recognised by law during the pre-trial investigation. Those rights included, for example, the power to ask the public prosecutor to ask the investigating judge for immediate production of evidence and the right to appoint a legal representative to exercise the rights and powers that they enjoyed. In addition, exercise of those rights could prove essential in order to be able to join the proceedings as a civil party effectively, particularly when, as in the present case, the case involved evidence liable to deteriorate over time and which would be impossible to obtain in later stages of the proceedings. In addition, injured parties were entitled to submit memoranda at any stage of the proceedings and, with the exception of appeals on points of law, could refer to evidence.   In the present case, the applicant ought to have applied to the public prosecutor’s office, asking it to request the investigating judge to produce a particular item of evidence, namely an autopsy, immediately. As the applicant had failed to make use of a remedy afforded by national law, this complaint had to be dismissed for failure to exhaust domestic remedies.   © 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