Calvelli and Ciglio v. Italy

The applicants are Italian Nationals whose baby died shortly after delivery at a private clinic. The baby suffered from respiratory and neurological post-asphyxia syndrome that resulted from the position it came at the time of delivery; the baby died two days after birth on 9 February 1987. The public prosecutor’s office opened an investigation of the case the next day but failed to finalize it for which the applicants repeatedly requested for an expedited review of their case several months after the incident.  On 16 November 1988, the public prosecutor’s office requested for the report of expert witnesses. On 19 June 1989, the applicants were informed that the physician who had delivered the baby (also a joint owner of the clinic) was going to be charged.  On 7 July 1989, the applicants were joined to the proceedings as civil parties while the investigating judge failed to question witnesses on 18 July 1989. A request by the prosecution for the complaint to be filed on January 1990 was dismissed on May 1990.  Further investigations had been required by the investigating judge and made available on January 1991. On 12 June 1991, the proceedings started at the Cosenza Criminal Court with the charge of involuntary manslaughter.

Between 2 July 1992 (the first date set for the hearing) and 17 December 1993 (the date of the final hearing), the hearing had to be adjourned for 6 times due to procedural issues. The court found that the physician knew of the mother’s high risk condition and that the circumstances of her case required him to be present and take precautionary measures, which he failed to do. He wasn’t located right away after the complications and his delay to perform the required procedure on time had significantly reduced the baby’s chances of survival. On 17 December 1993, the criminal court tried the physician in absentia, found him guilty of involuntary manslaughter and sentenced him for one year of imprisonment and compensation to be assesses and paid for the applicants. The sentence, however, was suspended from execution by the criminal court itself.

On appeal, the Catanzaro Court of Appeal ruled on 3 July 1995 that the period of limitation for the offense had lapsed from 9 August 1994. Because the parties failed to attend the hearing on 16 November 1995, the civil proceeding was also struck out of the list at the domestic civil court.

Applicants claimed the European Court of Human Rights (the ECHR) to find that there had been a violation of Articles 2 and 6 (1) of the European Convention on Human Rights (the convention) due to the procedural delays that caused a time-bar against the prosecution of the responsible physician.They claimed that the damages awarded to them in civil proceedings could not compensate them for the criminal prosecution barred by limitation.

The government responded that the time-bar hadn’t prevented the applicants from claiming damages against the physician. It also argued that the rellevant domestic law had provided for civil and administrative sanctions and thus it had no obligation under Article 2 of the convention, to subject the physician to criminal courts’ sanction for involuntary manslaughter. Imposing a criminal penalty under this provision for a less serious infringement such as involuntary  manslaughter by negligence or by accident would be extreme. The Government argued that its failure not to prosecute hadn’t violated its obligation under Article 2 of the Convention and that criminal sanction in cases as this one would likely work against the purpose of deterrence.  The government cited the Committee of Ministers Resolution (75) 24 that stated “the victim’s right to compensation was under no circumstances to be prejudiced implied that it was permissible to substitute civil liability for criminal liability.” [Para. 44] Moreover, it argued that when domestic laws allow the government to choose among liabilities to be applied against less serious violations of the right to life, the question of not imposing a criminal penalty becomes irrelevant for the purpose of Article 2 of the Convention. The physician in this case had been subjected to disciplinary and civil penalties. It also added that when the period of limitation expired for the prosecution of the offensce, it meant that it was no longer reasonable to impose a sentence for purposes of criminal sanction, i.e., retribution, deterrence and rehabilitation. It also stated that judicial authorities in the area of the incident were over loaded with other serious criminal offences requiring their attention.

The ECHR held that the duty of states to take appropriate steps to safeguard the lives of those within its territories under Article 2 of the Convention applied to the health of the public. It stated that "the positive obligations require States to make regulations compelling hospitals, whether public or private, to adopt appropriate measures for the protection of their patients' lives. They also require an effective independent judicial system to be set up so that the cause of death of patients in the care of the medical profession, whether in the public or the private sector, can be determined and those responsible made accountable". [Para. 49]

The ECHR held that the effective judicial system required under Article 2 "may, and under certain circumstances must, include recourse to the criminal law".[Para. 51] However, this obligation wouldn't require states to provide criminal remedies, when the infringement to the right to life wasn't caused intentionally. "In the specific sphere of medical negligence the obligation may for instance also be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any liability of the doctors concerned to be established and any appropriate civil redress, such as an order for damages and for the publication of the decision, to be obtained. Disciplinary measures may also be envisaged". [Par. 51]

The ECHR noted that the applicants hadn't claimed the death of their child was intentional, and that the Italian system had provided mandatory civil and criminal proceedings for medical negligence claims. The physician was to be subjected to disciplinary proceedings in addition to the civil remedy available to the applicants even when the criminal prosecution was time-barred. Besides, the applicants had been compensated by the insures of the physician and the clinic and thus, waived their right to seek such civil proceedings. The ECHR reiterated that “where a relative of a deceased person accepts compensation in settlement of a civil claim based on medical negligence he or she is in principle no longer able to claim to be a victim”.[Para 55]

The ECHR concluded that there was no violation of Article 2 of the convention.

Regarding the applicant's complaint on the length of the proceedings as a violation of Article 6(1) of the Covenant, the ECHR noted that the period lasted for six years, three months and ten days. The ECHR evaluated the reasonableness of the period in light of the complexity of the case and the contribution of the conduct of the applicants and the authorities for the delay. The ECHR decided that the period was not unreasonable and thus there was no violation of Article 6(1) of the Covenant.