SECOND SECTION

DECISION

Application no . 29100/07 Esterina MARRO and others against Italy

The European Court of Human Rights (Second Section), sitting on 8 April 2014 as a Chamber composed of:

Işıl Karakaş , President, Guido Raimondi, András Sajó , Nebojša Vučinić , Paul Lemmens, Egidijus Kūris , Robert Spano, judges, and Stanley Naismith, Section Registrar ,

Having regard to the above application lodged on 2 July 2007,

Having regard to the formal declarations accepting a friendly settlement of the case,

Having regard to the decision of 2 July 2007,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having regard to the comments submitted by the respondent Government and the applicants ’ submissions in reply,

Having deliberated, decides as follows:

THE FACTS

1. A list of the applicants is set out in the appendix.

2. The Italian Government (“the Government”) are represented by their Agent, Mrs E. Spatafora .

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

4. The first applicant (Ms Esterina Marro ) is the mother of Mr Sergio Marra , born on 27 July 1972. The other applicants are the latter ’ s brothers and sister.

5. On an unspecified date the applicants lodged a complaint against Mr Sergio Marra , who had been taking drugs for a long time. They stated that they had taken this step in order to remove their relative from the influence of the drug addicts with whom he had been associating .

6 . On 17 August 1995 Sergio Marra was arrested and detained in Voghera Prison. On admission to the prison he said that he had taken drugs two days before his arrest. On 5 September 1995 he told the prison doctor that he had not taken any drugs for about t wo years. He died on 13 September 1995. According to the forensic doctor ’ s report, the cause of his death was an overdose of substances similar to morphine, most probably heroin.

7. On 2 July 1996 the applicants instituted proceedings against the Ministry of Justice before the Milan District Court, seeking compensation for the damage they claimed to have sustained on account of their relative ’ s death. They alleged that it was forbidden to take drugs into prison, and argued that the fact that Sergio Marra had been able to obtain them indicated that the staff responsible for surveillance in Voghera Prison had been negligent.

8. By a judgment of 24 October 1998, the Milan District Court dismissed the applicants ’ claim.

9. I n its decision, the court observed that it had been incumbent on the prison administration to prevent drugs from being brought into the prison and that the fact that drugs had nonetheless been circulating pointed to the ineffectiveness of their surveillance. It did, however, note that the authorities could only be held responsib le in cases of malice or negligence ( dolo o colpa ). In the instant case it considered that there was no basis for alleging that drugs had been brought into the prison with the consent of the prison staff and that there had therefore been no malice. Further, the court noted that there might have been negligence if the fact in issue had been foreseeable and avoidable, and considered that smuggling in drugs was foreseeable but not avoidable because such substances were eas y to conceal. It also held that the a uthorities could not be held objectively responsi ble, making it ipso facto answerable for everything that happened inside the prison.

10. The court stressed that in any event there had been no causal link between defective surveillance on the part of the administration and Sergio Marra ’ s death. It explained that according to the theory of “ adequate causality ” ( causalità adeguata ), the only “ causes ” of a given event were acts which, according to prior assessment, would probably have prevented its occurrence. It noted that in the instant case the person ’ s death had not been caused by drug-taking but by the administration of a drug dosage higher than the tolerance threshold of an individual who, having been in prison for approximately one month, had a lower tolerance for narcotics than most other drug addicts. Since the identity of the person who had smuggled the drugs into the prison was unknown, the court considered that it had been difficult to foresee that the drugs had been intended for Sergio Marra , who had been in an exceptional physiological condition. It noted that the applicants themselves had in fact accepted that their son/brother had voluntarily injected himself with the substances in question and that, given that he had been an adult in full possession of his mental capacities, the prison staff had had no particular obligations in terms of special surveillance.

11. The applicants appe a led against this jud gment. They alleged that there had been a causal link between the prison administration ’ s failure to exercise surveillance and their relative ’ s death because the smuggling of drugs into the prison could have been prevented by us ing specially trained dogs.

12. By a judgment of 6 March 2002, the Milan Court of Appe a l dismissed the applicants ’ appe a l, upholding the main thrust of the District Court ’ s analysis and noting that Sergio Marra had voluntarily injected himself with the narcotic substances. On this latter point it considered that such behaviour was a personal choice which could not be blamed on the prison administration. Furthermore, it noted that there was no provision specifically requiring the latter to prevent the use of drugs inside the prison in order to protect prisoners ’ health, and that the use of dogs was not necessarily a sure and effective way to prevent drugs from being smuggled in. The Court of Appeal held that it had not been established how, in the instant case, the drugs had been brought into the prison; in its view, therefore, the prison administration could not be accused of any specific negligence.

13. Relying, inter alia , on Article 40 of the Crimi nal Code ( “C C ” ) and Articles 28 and 32 of the Constitution (see “ Relevant domestic law ” below), the applicants appealed on points of law.

14. By a judgment of 6 February 2007, a copy of which was lodged with the R egistry on 31 March 2007, the Court of Cassation dismissed the applicants ’ appeal on points of law.

15. The Court of Cassation observed that respons ibility for failure to act was exceptional and could only be envisaged in the case of an obligation to prevent the occurrence of a specific event. It pointed out that such an obligation might be based on a legal provision or or a specific relationship between the person whose interests had been infringed and the individual responsible for such infringement. On this latter point it also added that such relationship had to be established on a case-by-case basis.

16. Moreover, the Court of Cassation departed from the position Court of Appeal ’ s position on the question whether the authorities were responsible for preventing drugs from being brought into prisons. It considered that there was indeed such an obligation in view of the requirement to protect prisoners ’ health and of the latter ’ s specific situation. It did, however, indicate that the choice of the instruments to be used to this end was at the legislature ’ s or the authorities ’ discretion and was not subject to judicial review.

17. The Court of Cassation took the view that the authorities could not be held respons ible where the harmful event would have occurred even if they had behaved appropriate ly , owing to the lack of a causal link. In the present case, the Court of Cassation noted that the drugs might have been brought into prison by methods which ruled out any breach of the authorities ’ duty to carry out checks.

18. Lastly, the Court of Cassation pointed out that the Court of Appeal had been wrong to consider that the voluntary use of the drugs had broken the causal link, but that this error had not affected the outcome of proceedings.

B. Relevant domestic law

1. Crimi nal Code

19. Article 40 C C provides:

“ No one may be punished for an act classified by law as an offence where the harmful or dangerous event constituting the offence is not a consequence of his or her action or failure to act.

Failure to prevent an event which one is legally required to prevent is tantamount to caus ing that event. ”

2. Constitution

20. The relevant provisions of the Constitution provide:

Article 28

“ Officials of the State or public agencies ( enti pubblici ) shall be directly responsible under criminal, civil, and administrative law for acts committed in violation of rights. In such cases, civil liability shall extend to the State and to such public agency. ”

Article 32 § 1

“ The Republic safeguards health as a fundamental right of the individual and as a collective interest, and guarantees free medical care to the indigent.”

COMPLAINT

The applicants complained under Article 2 of the Convention that the authorities had caused the death of their relative.

THE LAW

22. The applicants alleged that the death of their son/brother had been the outcome of a violation of Article 2 of the Convention, which provides:

“ 1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary :

a) in defence of any person from unlawful violence ;

b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained ;

c) in action lawfully taken for the purpose of q uelling a riot or insurrection. ”

23. The Government contested that argument.

A. The parties ’ submissions

1. The applicants

24. The applicants submitted that the Italian authorities had failed to prevent their relative from procuring narcotic drugs inside Voghera prison and had therefore failed in their obligation to protect his life. According to the applicants, the Court of Cassation had pointed out that the voluntary use of drugs involved risk - taking, but did not completely neutralise the causal link between death and the lack of surveillance, and that this consequently did not exempt the authorities from respons ibility. In other words, the applicants considered that such use of drugs was not in itself sufficient to determine the event at issue.

25. Furthermore, the applicants observed that under the terms of Article 40 § 2 C C, “(f ) ailure to prevent an event which one is legally required to prevent is tantamount to causing that event”. They pointed out that the Milan Court of Appeal had affirmed that there was no provision specifically requiring the latter to prevent the use of drugs by prisoners, and considered that in so doing the court had reached an “absurd” conclusion. They submitted that, to the contrary, Article 32 of the Constitution protected everyone ’ s right to health, including that of prisoners, that it was common knowledge that drugs were bad for anyone ’ s health and that the ban on taking them into prisons was therefore also geared to ensuring the health of persons deprived of their liberty.

26 . The applicants also considered untenable the Government ’ s argument that the use of dru g-detecting dogs had been banned in order to avoid intimidating families visiting their relatives in prison (see paragraph 27 below). Dogs capable of detecting the presence of narcotics were present in airports. More incisive checking methods should not be dismissed for fear of infringing the right to respect for private life, as that right was not – in their view – more important than the right to life.

28 . Lastly, the applicants affirm ed that their son/brother had recently escaped from a drug addiction centre and been place d in the same cell as a prisoner charged with drug-traf f icking. Furthermore, on the day of their relative ’ s death th at person had tested positive for drugs. They consider ed the placement of their relative in the cell in question as “ the height of ignorance and stupidity ” .

2. The Government

29. The Government pointed out that the State had positive obligations vis-à-vis the protection of life in cases of immediate, concrete and foreseeable risks to the life of an identifiable individual, provided the measures required to combat such risks we re reasonable. T hey added that this also applied to prisoners, in view of their particular vulnerability, referring, inter alia , to judgments Salman v. Turkey ([GC], no. 21986/03, ECHR 2000-VII); Trubnikov v. Russia (no. 49790/99, 5 July 2005); and Keenan v. the United Kingdom (no. 27229/95, ECHR 2001-III), but considered that an unbearable or excessive burden should not be imposed on the authorities .

30 . In the present case, the Government considered that the authorities had not shown negligence in their surveillance of Sergio Marra and that the measures taken to protect him had been reasonable and adequate. On the day of his arrest he had seemed calm and cooperative. They added that he had shown some symptoms of drug addiction and incipient withdrawal problems, and for this reason he had been subjected to a detoxification procedure. He had been placed in a collective cell and been given weekly medical examinations. The Government also affirmed that the applicants ’ relative had told the prison doctor that he had stopped taking drugs two years previously and had seemed to be in a good general state of health. Furthermore, they stated that there had been nothing to suggest that his life had been in danger, that he had shown no signs of mental disorders and that he had not been subject to any special coercive measure s . Moreover, the Government took the view that there was no reason to believe that Sergio Marra ’ s death had been the result of an accidental overdose rather than suicide, and therefore of a totally unforeseeable event.

31 . As regards the general measures to detect and prevent the circulation of narcotics in prisons, the Government pointed out that all prisons had a list of items which were allowed into the premises, and drugs were not among them. They explained that at the material time Voghera prison had banned a number of products from the premises – powder s, granul es , so a p and syringes – and that prior to any contact with prisoners, all incoming persons had been subject to body searches and all parcels had been inspected. Furthermore, visitors, prison staff and prisoners had had to pass through an electromagnetic detector and prisoners had additionally been subjected to body searches.

32 . The Government further submitted that over the years the prisoners had developed ingenious systems for gaining access to drugs, sometimes hiding them under postage stamps, among their personal effects, in shoes, in food, between sheets of paper, in impregnated pictures , and they even occasionally transmitted them by kissing. The Government considered that the authorities should not be held responsible every time one of these stratagems – which they deemed unexpected and unforeseeable – succeed ed. They also drew the Court ’ s attention to the number of drug-addicted prisoners in Italy ( on the basis of the following figures: in June 1995, 15,336 prisoners out of a total of 51,973, that is to say 29.51 % of the overall prison population, and at 31 December 2012, 15,663 prisoners out of 65,701).

33. Furthermore, the Government considered that frequent, systematic body searches in prisons could prove ineffective and infringe prisoners ’ privacy and human dignity. The prison authorities had excluded the use of drug-detecting dogs in order to avoid intimidating families visiting their relatives in prison, thus balancing the obligation to protect health with the right to respect for family life.

34. T he Government also submitted that an article published in the 28 May 1997 edition of La Repubblica mentioned that the applicants had attempted to send food to their relative and that their parcel had been returned to them because the prison authorities had considered it as a potential means of concealing drugs.

35. F urthermore, the Government stated that, as rightly pointed out by the Court of Cassation, it would have been possible for the drugs to have reached Sergio Marra even if all the prison authorities had carried out all the possible checks. They considered that the applicants were complaining of an (incorrect) interpretation of the relevant domestic provisions and that by doing so, namely by presenting before the Court grievances identical to those already set forth at the domestic level, the applicant s we re essentially lodging a complaint which should be examined by a fourth level of jurisdiction.

36 . T he Government also noted that the applicants accused the authorities of having placed their son/brother in a cell housing a person charg ed with drug-trafficking who had tested positive for drugs (see paragraph 28 above ). They considered, however, that this fact was unimportant because a whole battery of measures had been implemented to prevent the circulation of drugs in the prison and the applicants ’ relative could have procured drugs himself and shared them with the other inmate.

37 . The Government added that investigations had been instigated as soon as Sergio Marra ’ s body had been discovered, and that an autopsy had been carried out in order to establish the causes of death. No evidence had been found enabling responsibility for the death to be ascribed to any identifiable persons, and consequently, on 14 September 1996, the Voghera judge responsible for the preliminary investigations had ordered the discontinuance of the case. Similarly, the Government asserted that an administrative investigation had also been instigated immediately after the events and that it had reached the conclusion that nothing abnormal had been noticed in the period preceding Sergio Marra ’ s death. They pointed out that the applicants had been able to file a civil action for damages, which had been examined on the merits.

B. The Court ’ s assessment

1. General principles

38. T he Court reiterates that the first sentence of Article 2 § 1 of the Convention enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see L.C.B. v. the United Kingdom , 9 June 1998, § 36, Reports of Judgments and Decisions 1998-III, and Osman v. the United Kingdom , 28 October 1998, § 115, Reports 1998 ‑ VIII).

39. The Court also reiterates that the State ’ s obligation extends beyond its primary duty to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions (see Osman , cited above, ibid.). F urthermore, Article 2 of the Convention may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual (see Mastromatteo v. Italy [GC], no. 37703/97, § 67 in fine , ECHR 2002-VIII; Branko Tomašić and Others v. Croatia , no. 46598/06, § 50, 15 January 2009 ; and Opuz v. Turkey , no. 33401/02, § 128, 9 June 2009).

40. In the Court ’ s view, however, that does not mean that a positive obligation to prevent any potential violence can be derived from this provision. Bearing in mind the difficulties in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, the scope of the positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities (see Osman , cited above, § 116, and Maiorano and Others v. Italy , no. 28634/06, § 105, 15 December 2009 ).

41. The Court therefore considers that not every alleg ed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. I t has already affirmed that for a positive obligation to arise, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (see Bromiley v. the United Kingdom ( dec. ), no. 33747/96, 23 November 1999; Paul and Audrey Edwards v. the United Kingdom , no. 46477/99, § 55, ECHR 2002 – III; Mastromatteo , cited above, § 68; and Branko Tomašić , cited above, §§ 50-51).

42. In the specific case of prisoners, the Court reiterates that the Convention imposes the positive obligation on the State to ensure, inter alia , that their health and well-being are adequately secured (see, as regards Article 3 of the Convention, KudÅ‚a v. Poland [GC], no. 30210/96, § 94, ECHR 2000 ‑ XI, and Riviere v. France , no. 33834/03, § 62, 11 July 2006).

2. Application of these principles to the present case

43. The Court observes that the applicants did not allege that the authorities had had any indication that their relative might be in a particularly dangerous situation and that by taking drugs he had incurred a potentially higher risk of suffering fatal consequences than other drug-taking prisoners. It therefore considers that the instant case did not concern the requirement of personal protection for one or more individual(s) identifiable in advance as the potential target of a lethal act (see, mutatis mutandis, and by converse implication, Osman ; Paul and Audrey Edwards ; Branko Tomašić ; and Opuz , all cited above), but rather the obligation to provide general protection for a vulnerable group of individuals, that is to say drug-addicted prisoners (see, mutatis mutandis , Mastromatteo and Maiorano , both cited above).

44. The Court notes that this applies particularly in the present case because the applicants ’ relative had himself stated on 5 September 1995 that he had stopped taking drugs a time long previously and that he had shown no sign of suffering from mental disorders or being in a situation of particular vulnerability (paragraphs 6 and 30 above).

45. Under these conditions, the Court cannot conclude that the mere objective fact that a prisoner might have had access to narcotic substances constitutes a breach by the State of its positive obligations under Article 2 of the Convention. It acknowledges that while the authorities, in order to protect the health and the lives of citizens, have the duty to adopt anti-drug-trafficking measures, especially where this problem (potentially) affects a secure place such as a prison, they cannot guarantee this absolutely and have broad discretion in the choice of the means to be used. In this area they are bound by an obligation as to measures to be taken and not as to results to be achieved (see, mutatis mutandis , Giuliani and Gaggio v. Italy [GC], no. 23458/02 , § 251, ECHR 2011).

46. I n the present case, the Court notes that the applicants did not challenge the Government ’ s submissions (see paragraph 31 above) to the effect that at the material time Voghera prison banned various products from the premises – namely powder or granulated items, soap and syringes – and that prior to any contact with prisoners, all incoming persons were subject to body searches and all parcels were inspected. Furthermore, visitors, prison staff and prisoners had to pass through an electromagnetic detector. It takes the view that in adopting these measures the State was honouring its obligation to combat drug-trafficking in prisons. On the other hand, in view of the margin of appreciation enjoyed by the authorities, it is impossible to derive from Article 2 of the Convention a general obligation on the State to use drug-detecting dogs in all places, including prisons, which are potential transit points for narcotics.

47. The applicants ’ relative, of whose drug addiction the authorities had been aware, was placed in a cell with another prisoner who had been charged with drug-trafficking and had tested positive for drugs. The Court notes that the applicants rightly stressed this point (see paragraph 28 above) and that the Government did not contest the truthfulness of the allegation (see paragraph 36 above). Nevertheless, the Court takes the view that this incident cannot be considered to have been the cause of the death of the applicants ’ son/brother, because the manner in which he had procured the drugs remains unknown. This means that it is impossible to pinpoint the loophole which enabled drugs to be smuggled into Voghera prison and to be circulated there, or to know whether the inmate in question was implicated in any way in these acts. Furthermore, in the light of the information provided by the Government on the number of drug-addicted prisoners in Italy (see paragraph 32 above), the Court considers that it could prov e difficult in practice for the authorities to systematically separate occasional drug-users and drug-traffickers from drug addicts in prisons.

48. The Court also notes that criminal and disciplinary investigations were instigated as soon as the body of the applicants ’ relative was discovered and that an autopsy was conducted shortly afterwards (see paragraph 37 above). The applicants did not submit that these investigations had been insufficient or otherwise incompatible with the Convention.

49. In the light of the foregoing, the Court considers that the fact that while the applicants ’ son/brother was in prison he had been able to procure and take drug s cannot in itself vest the St at e with responsibility for the death at issue ( see , mutatis mutandis , Volk v . Slovenia , n o. 62120/09 , § 90, 13 December 2012) .

50. Under these circumstances, the Court considers that no appearance of a violation of Article 2 of the Convention can be found in the present case.

51. It follows that the application is manifestly ill-founded and must be dismissed, in pursuance of Article 35 §§ 3 a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 30 April 2014 .

Stanley Naismith Işıl Karakaş Registrar President

Appendix