PARTLY DISSENTING OPINION OF JUDGE BONELLO

1. The novelty and complexity of the issues raised by this case make it difficult for me to assert definitive views. Exiting the labyrinth was arduous, and I pay tribute to the majority who suffered less in finding the way.

2. The facts of the case are virtually undisputed. On 8 November 1989 the applicant's son was murdered by a gang of four criminals following the hold up of a bank. The marksman who actually shot the victim dead, and two of the members of the armed band, carried out the bank robbery during special prison leave, or while benefiting from a regime of semi-liberty which enabled them to leave prison where they were serving long terms of incarceration for violent crime.

3. In particular, the prisoner M.R., who actually killed A. Mastromatteo, was at the material time undergoing a sentence of over fifteen years for attempted murder, armed robbery and other offences. The court, in condemning him, had considered him as “socially dangerous”. A.C., previously convicted of murder, was, at the material time, serving an eleven-year prison sentence for armed robbery committed in league with M.R. G.M. was (better: should have been) in prison for six years for aiding and abetting armed robbery and other offences. G.B., the last comrade in the pack, had assembled a portfolio of excellent convictions for armed robbery and other delights, but was not in detention at the relevant time.

4. I followed the majority in finding no “substantive” violation of the right to life for which the State is responsible, solely because of the impossibility of locating, in accordance with the Court's case-law as it stands today, the compelling causal link between the failures by the State and the death of the victim, which would justify a finding of a “substantive” breach of Article 2.

5. I parted with the comity of the majority, however, in that I voted for a “non-substantive” violation of that Article. I believe the Court could, and should, have held that the “procedural obligations” inherent in Article 2 include a duty by the State to offset harm suffered by the victims of murder in cases where a State's “strict” (or objective) liability is engaged.

6. To avoid misunderstandings, let me emphasise at the outset my unswerving support for any system that aims at the reintegration of convicts into the fold of society. I applaud Italy's brave measures directed at the re-socialisation of prisoners, including regimes of semi-liberty and controlled temporary releases from prison. It would be at least foolish to suggest that, because of a minimal incidence of failures, measures as rewarding as these should be scrapped.

7. These “rehabilitation” programmes are seen to serve a dual range of interests: those of the State, which benefits from a compression of criminality, and those of the delinquents themselves, who are introduced to alternatives to a life of crime. The fundamental question, to me, is, however another: must the State promote only two interests, as the majority suggests, or three ? Must it only aim at protecting its own concerns and at the same time fostering those of criminals – or, must it aspire to complementing these two admittedly hallowed values with those of the (sporadic) victims of the system?

8. It is my view that the Italian legal framework has been particularly generous in advancing its own, and the criminals', interests and particularly uncaring of those of the victims when the system fails. My colleagues have, rightly, given a loud voice to the concerns of society and to those of criminals. At the risk of dissonating the choir, I ask for the victims of this class of crimes to have voices too.

9. A State, I submit, does not adequately ensure to everyone the enjoyment of the right to life when it puts in place machinery which benefits society and criminals if it works properly and, when it does not, overlooks the fate of its victims. For the balancing of appropriate values to have any equitable meaning at all, I would want the re-socialisation of the criminal to go hand in hand with the socialisation of the risk.  Even when no liability attaches to the State in tort, one surely arises from the inherent hazards of social measures such as those at issue.

10. Italy has acknowledged in various areas and in a concrete manner an enlightened deference to the exigencies of “strict liability”, independently of tortious liability. Italy recognises a legal obligation to compensate, among others, the victims of organised crime, of compulsory inoculations, of terrorism and of contaminated blood transfusions. In these spheres the State's liability in tort is far, but far, more tenuous than it is in the case of felonies committed by prisoners recklessly released from detention through official errors of judgement. I find it at least arbitrary, if not discriminatory, that compensation is available when the State's culpability can be perceived as minute, and denied when it is the consequence of fatal aberrations of the system. A humanising spirit of solidarity, translated into legal norms, drives the Italian State – a spirit which then sadly grinds to a halt on the doorstep of innocent victims of shoot-outs by convicts on parole.

11. In my view, the obligation to protect life extends to interfacing the State's  own advantages in safeguarding society and rehabilitating offenders with a corresponding duty to make damage good, when the promotion of the first values – exceptionally – results in the harm of those sacrificed in the pursuit of those interests.

12. The issue of state liability not based on fault, but solely on “social risk” in case of crimes committed by convicts who are temporarily out of prison in pursuance of re-socialisation measures, has rarely come up for determination by the courts. I am aware of two decisions – both by tribunals in France – where coverage for objective liability of the State seems to have been built into the system by case-law. In the first, three convicts on temporary release from prison carried out a successful hold up of a bank [1] ; in the other, a prisoner committed a murder six months after absconding, having abused of temporary prison leave [2] .

13. In the first case the court found the State liable for the damage suffered by the bank, precisely because measures to re-socialise convicts necessarily entail risks to third parties and the State steps in as the insurer of social hazards. In the second case no damages were awarded, but only because the interval of six months between the prisoner's premature release and the murder had considerably weakened the link of causation.

14. I find it rather distressing that a bank's right to its money found more sympathy in a court of ordinary law than a man's right to his life found in a court of human-rights law.

15. I underscore that I joined the majority in finding no “substantive” violation of Article 2 without any enthusiasm. I am well aware that, at this early stage of the Court's case-law, a finding of a substantive breach would appear unwarranted and, possibly, audacious. I consider the reasoning of the Court, if taken in the wake of its own previous rulings, sufficiently compelling. My grudging agreement with the majority on this issue is, however, qualified by various considerations which I feel I have to place on record.

16. There is hardly any doubt in my mind that the granting of temporary licences to leave prison, and the benefit of semi-liberty, to three of the convicted delinquents who coalesced to pirate the life of young Mastromatteo was nothing but a fatal blunder on the part of the judges charged with the execution of sentences. The constraints of civilised society had temporarily deprived these three wrongdoers of their freedom of malefaction; the guardians of justice had, after due process, held their grievous and repeated propensity to violent crime against them. In fact, the court that jailed M.R. awarded him a gilt-edged diploma of “socially dangerous” as a testimonial of his past achievements. This was known to the judges who authorised their untimely release. The gates of prison were then opened for them.

17. An authority which reaches the conclusion that a sentence of confinement meted out by the court of the land to a convicted criminal ought to be temporarily put aside does so assuming the responsibilities inherent in that decision. If the ruling turns out to be misinformed and causes mischief to innocent third parties, the onus of establishing justification should, in my view, shift to the State. It is not for the victim to prove the State's liability. It is for those organs of the State responsible for the premature liberation of criminals to disprove it.

18. In the present case I perceive it particularly difficult for the State to whitewash the error of judgement committed by the judges who authorised the release of reoffenders already convicted of murder, attempted murder, complicity in attempted murder, and armed robbery, one a card-carrying member of the elite league of “socially dangerous”. This is the more so since the judge who authorised the release of M.R. (“socially dangerous”) did so at a time when A.C., his historic accomplice in crime previously convicted for murder, had already absconded, having abused his prison leave, and was at large, compliments of the State. That this combination of red alerts flashed no warning lights points to an insouciance as injudicious as it was short-sighted.

19. The stark killing of young Mastromatteo goes some way to confirming that the judges who authorised the release of the criminals made shabby use of the discretion which Italian law entrusted them to exercise. They judged that the State owed faith and credit to those who deserved diffidence and scepticism. The law subjects the temporary release of convicts from prison to the judge's informed persuasion that the person to benefit from that measure displayed no “social danger”. In the present case the judge so believed. A judgmental fiasco carrying the price tag of one human life.

20. The murder was committed some time after the authorised period of leave had elapsed, without the convicts returning to jail. No substantial effort appears to have been invested by the police to recapture the “socially dangerous” prisoners on the run, before gunshot and the spent cadaver of a young man attracted some attention.

21. I believed it to be an indisputable axiom of law that in case of fault or negligence from which harm results, it is the lapser who pays. It seems however that the Court's case-law can be made to justify other, more nonconformist, solutions. In the present murder, the one who paid for the failings of the State was not their author, but their victim. Perhaps because it was not a case of fault or negligence, but one of fault and negligence. It is with overwhelming rational bewilderment and considerable legal perplexity that I have found myself identifying with this.

[1] . Garde des Sceaux , Minister for Justice v. Banque populaire de la région économique de Strasbourg – Conseil d’Etat 29 April 1987.

[2] . Garde des Sceaux v. Henry – Conseil d’Etat, 27 March 1985. See also Minister for Justice v. Thouzellier (damage caused by minors who had escaped from a secure reform school, Conseil d’Etat , 3 February 1956, and Garde des Sceaux v. Theys (damage caused by convicts on prison leave) - Conseil d’Etat , 2 December 1981.