SECOND SECTION

DECISION

Application no . 26118/07 Claudio DI PAOLO and Cinzia BENEDETTI against Italy

The European Court of Human Rights (Second Section), sitting on 2 5 June 2013 as a Committee composed of:

Dragoljub Popović , President, Paulo Pinto de Albuquerque, Helen Keller, judges, and Françoise Elens-Passos , Acting Deputy Section Registrar ,

Having regard to the above application lodged on 15 June 2007,

Having deliberated, decides as follows:

THE FACTS

1. The applicants, Mr Di Paolo Claudio and Ms Cinzia Benedetti, are Italian nationals, who were born in 1955 and 1960 respectively and live in Castellalto ( Teramo ). They are represented before the Court by Ms Gabriella Di Cesare , lawyer practising in Teramo .

The circumstances of the case

2. The facts of the case, as submitted by the applicants, may be summarised as follows.

3. The applicants are the parents of a child, born in 1998, affected from a severe form of congenital heart disease. The child had to undergo a long series of surgeries and hospitalizations since birth.

4. On 14 January 2006, the child was operated in order to improve his quality and prospect of life. Before the operation the applicants were duly informed of the fact that the operation foreseen (called “ Fontan ”) could in any case be subject to changes during the intervention depending on the actual conditions of the patient, as well as about the risks linked to the said intervention. The day before the operation, the mother of the child, (”the first applicant”), signed her written consent in that respect.

5. In the course of the intervention the doctors realized that the Fontan intervention was not practicable and decided to place a systemic pulmonary shunt on the patient.

6. The postoperative period turned out extremely difficult for the child and his conditions deteriorated significantly. He had to be transferred twice to intensive care and had to undergo several weeks of medical treatments and surgeries.

7. On 11 April 2006 the applicants lodged a criminal complaint alleging that they hadn ’ t been duly informed about the postoperative risks of the operation, that the intervention finally carried out was wrong and complained about the negligence and malpractice of the medical staff.

8. On 14 April 2006 the public prosecutor ordered a medical inquiry on the case and appointed a panel of two medical experts.

9. Eventually, since despite all the medical efforts the child ’ s conditions had not improved, on 5 May 2006 the hospital set up a meeting of several different specialists (among which, surgeons, cardiologists, microbiologists and radiologists) in order to assess the clinical situation and to decide which further steps to take. The final decision, taken with the applicants ’ consent, was to remove the pulmonary shunt and replace it with a venous shunt in the elbow.

10. On 22 June 2006, the applicants lodged a supplementary complaint reiterating the arguments they raised in their complaint of 11 April 2006 and claiming that the doctors should have removed the shunt earlier.

11. On 30 June 2006 the experts submitted a report excluding all medical malpractice or negligence and attesting of the information provided to the applicants before the operation was carried out as well as of their consent in order to remove the pulmonary shunt.

12. The public prosecutor having requested to dismiss the case, the applicants filed their opposition. They also filed a medical expert ’ s report alleging that, even if the choice of placing a shunt was compatible with the clinical situation of the patient at that time, the doctors failed to execute a proper pre-operative diagnosis as well as any alternative medical procedure in order to possibly execute the Fontan operation. Accordingly, they requested that further investigations be carried out.

13. On 21 November 2006 and 20 February 2007 the applicants attended two hearings before the pre-trial judge during which the asserted medical malpractice formed the subject-matter of an adversarial discussion.

14. On 20 March 2007 the pre-trial judge decided to dismiss the case.

15. He argued that both parents had been duly informed about the different types of surgery at disposal and the potential risks of complications and that the first applicant had provided her formal written consent. Furthermore, both experts ’ reports (including the one filed by the applicants) agreed that the diagnosis as well as the medical decision to place a shunt on the child had been appropriate, falling within the range of potential clinical choices; that the surgery had been correctly performed; that the arisen complications had been properly treated by the doctors and that the final decision to replace the shunt had been reasonable and appropriate to the circumstances of the case.

16. The judge dismissed the applicants ’ expert opinion that the placing of the shunt in itself was the only real cause of the subsequent complications, the expert having failed to produce any evidence in this respect.

17. Eventually, the judge observed that, even in the light of the investigations further carried out, in the circumstances of the case, the causal link between the decision to place the shunt and the subsequent complications could not been showed with a sufficient degree of certainty in order to indict the medical staff for medical malpractice.

COMPLAINTS

18. Under article 6 § 1 of the Convention, the applicants allege that the procedure was unfair and that the judges in charge of the case were not impartial. They claim that the latter should have ordered further investigations and a new medical expertise, especially in the light of the supplementary complaint they filed on 22 June 2006. They also state that due to investigative shortcomings, they were prevented from filing a civil claim for damages following the doctors ’ indictment.

19. The applicants further invoke articles 2 and 3 of the Convention “in conjunction with article 6 § 1 of the Convention”, stating that, because of the medical malpractice and since the doctors had waited so long before taking the decision to remove the pulmonary shunt, the life of the child had been endangered and the latter went through unnecessary suffering amounting to ill-treatment.

THE LAW

20. The applicants invoke articles 2, 3 and 6 § 1 of the Convention, complaining about different procedural aspects of the criminal proceedings at stake. Such provisions, in so far as relevant, provide as follows:

Article 2 of the Convention

“Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life ... ”

Article 3 of the Convention

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 6 § 1 of the Convention

“1. In the determination of his civil rights and obligations [ ... ], everyone is entitled to a fair [ ... ] hearing [ ... ] by an [ ... ] impartial tribunal established by law. [ ... ] ”

21. It has to be noted from the outset that the criminal proceeding at stake did not determine any “criminal charge” against the applicants. Nor did these proceedings determine their “civil rights and obligations” because, the applicants didn ’ t join it as a civil party, according to the domestic law the internal proceedings having not reach the stage where the applicants could do so.

22. Accordingly, the applicants ’ complaint under article 6 § 1 of the Convention has to be declared inadmissible as incompatible ratione materiae with the Convention ’ s provisions and must be rejected under article 35 §§ 3 and 4 of the Convention (see , among many others, Perez v. France [GC], no. 47287/99, § 70, ECHR 2004 ‑ I Yuriy Kholodov and Zoya Kholodova v. Russia, no. 30651/0 ( dec. ) 14 September 2006; Sergey Vasilyevich Chizhov , no. 6962/02, ( dec. ) of 6 May 2003 and Asociacion de Victimas de Terrorismo v. Spain , no. 54102/00, ( dec. ) of 29 March 2001) .

23. The Court further notes that the applicants invoke articles 2 and 3 of the Convention “in conjunction with article 6 § 1”. Being master of the characterisation to be given in law to the facts of the case, it does not consider itself bound by the characterisation given by an applicant (see , among other many others, Guerra and Others v. Italy, no. 14967/89, § 44, 19 February 1998 and E.M. and others v. Romania, no. 20192/07, dec. of 12 June 2012 ), it then considers that the complaints raised by the applicants under article 6 § 1 if the Convention as well as the other complaints should be examined under the procedural limbs of articles 2 and 3 of the Convention and will proceed accordingly.

24. The Court recalls having interpreted articles 2 and 3 of the Convention as containing a procedural obligation to carry out an effective investigation into alleged breaches of the substantive limb of these provisions ( Ergi v. Turkey , 28 July 1998, § 82, Reports 1998 ‑ IV and Mastromatteo v. Italy [GC], no. 37703/97, § 89, ECHR 2002 ‑ VIII ). Those principles apply in the public-health sphere too. The aforementioned positive obligations require an effective independent judicial system to be set up so that effective and thorough investigations could be carried out into alleged breaches of the substantive aspects of those provisions in the hands of health professionals (see Å ilih v. Slovenia [GC], no. 71463/01, § 153-159, 9 April 2009 and Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 48-49, ECHR 2002 ‑ I ; V.C. v. Slovakia, no. 18968/07, § 123-125, ECHR 2011 (extracts) ).

25. The Court reiterates that this procedural obligation is not an obligation of result but of means only. The failure of any given investigation to produce conclusions does not, by itself, mean that it was ineffective.

26. As far as the applicability of article 2 in the instant case is concerned, the Court has emphasised that if no death of a victim as a result of actions attributable to the State or its agents has occurred, then such actions will be analysed from the angle of Article 2 only in exceptional circumstances (see Karchen and Others v. France ( dec. ), no. 5722/04 , 4 March 2008 and Mitkus v. Latvia , no. 7259/03 , § 62, 2 October 2012 ).

27. Even assuming that the said article is applicable, given that the applicants ’ child has eventually recovered after the operation, the present application shall be in any event be rejected for the following reasons.

28. The Court notes that the applicants were duly informed of the fact that the Fontan operation previously foreseen could be subject to changes during the intervention as well as about the risks linked to the latter. Moreover, the day before the operation, the first applicant had signed her written consent in that respect. These circumstances are not disputed by the applicants.

29. The Court considers also that an investigation into the alleged medical malpractice started soon after the applicants lodged their complaint. In fact, a panel of two medical experts was appointed; on the basis of their report, no criminal responsibility of the medical staff could be established.

30. In addition, the applicants ’ expert report itself, as correctly noted by the pre-trial judge dismissing the case, stated that the choice of placing a shunt was compatible with the clinical situation of the patient at that time and, in any case, didn ’ t reveal any evidence in order to show a casual link between the placing of the shunt and the complications faced by the applicants ’ child . The Court notes that the pre-trial judge decision to discontinue the proceeding appears duly motivated, not arbitrary and shows a critical and thorough analysis of both experts ’ reports.

31. The Court finally observes that the applicants had the possibility to discuss the asserted medical malpractice during two hearings held before the pre-trial judge.

32. The Court holds that in the present case there was an adequate procedural response on the part of the State to the alleged infringement of the applicants ’ rights. The investigations were prompt and effective and the pre-trial judge justifiably decided to discontinue the proceeding given the unfavourable judgement in regards to the possibility to ascertain a criminal offence.

33. It follows that the complaint of the applicants under the procedural limb of article 2 of the Convention is manifestly ill-founded and must be rejected under article 35 §§ 3 and 4 of the Convention.

34. Furthermore, the Court notes that, contrary to the applicants ’ assertion, the latter had the possibility to bring a civil action for damage compensation against the doctors and the hospital. The civil remedy available to the applicants could have led to the establishment of any responsibility of the medical personnel and the award of any appropriate civil redress. ( Calvelli and Ciglio v. Italy , cited above, § 53). Therefore, this part of the application must be dismissed as manifestly ill-founded under article 35 §§ 3 and 4 of the Convention.

35. In the light of the conclusions reached above under article 2 of the Convention, the Court considers that the manner in which the investigations have been dealt with in the present case has not attained the minimum level of severity to be considered an inhuman treatment within the meaning of Article 3 of the Convention.

36. Therefore the Court concludes that this part of the application must also be rejected as manifestly ill-founded under article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

             Françoise Elens-Passos Dragoljub Popović Acting Deputy Registrar President