CONCURRING OPINION OF JUDGE ZUPANČIČ

I agree with the majority's opinion albeit not for wholly identical reasons.

The issue could also be defined as one of standing, that is to say, whether the de facto victim of an act of criminal negligence may claim the right to have the alleged perpetrator of the criminal act prosecuted, convicted, sentenced and punished. The days when criminal prosecutions were conducted in order to satisfy private appetites for retribution are over.

Under the Convention, however, the victim may still have standing to allege that the State has failed to satisfy its positive obligation to protect life under Article 2. If the State's judicial system – intentionally or inadvertently – fails to react to life-endangering criminal acts it may be seen to be wanting in its duty to provide special and general deterrence of such acts. In such circumstances the victim of a life-endangering act will have standing before our Court. This does not imply any personal right to retribution.

It follows, logically, that the issue in this case is not whether the State is generally obliged to prosecute cases of medical negligence that result in death. The real issue is narrower: Has Italy's judicial system shown sufficient assiduousness?

The ruling in this, as in every case, is strictly limited to its own factual confines. To say that there was no violation in this case does not mean that medical negligence is hence somehow immune from criminal prosecution.

It only means that there is no violation of the Convention in a case in which medical negligence has resulted in death and the State has duly investigated, prosecuted and convicted the doctor, if for procedural reasons the conviction never became final.

PARTLY DISSENTING OPINION OF JUDGE ROZAKIS JOINED BY JUDGES BONELLO AND Strážnická

While I have voted in favour of finding no violation of Article 6 § 1 of the Convention on the issue of the length of proceedings, I am unable to follow the majority in finding that there has been no violation of Article 2 in this case. As clearly transpires from paragraph 54 of the judgment, the majority reached the conclusion of a non-violation on the basis that, although the criminal proceedings instituted against the doctor ended unsatisfactorily through the application of the statute of limitations (prescription), the Italian State did not fail in its obligation to provide effective means to discharge its positive obligation to provide effective recourse to establish the cause of death of the child, as required by Article 2 of the Convention (procedural limb of the protection of the right to life). According to the majority, the applicants had at their disposal the procedural instrument of civil proceedings to establish the responsibility of the doctor. The fact that the applicants opted for a financial settlement of their grievances with the doctor's insurance company, a matter which finally led to the termination of the civil proceedings after the criminal action against the doctor had lapsed through prescription, cannot be attributed to the Italian State, which had provided them with proceedings satisfying the requirements of Article 2.

With all due respect to the majority, I am obliged to depart from such a conclusion for the following reasons.

First of all, and as a matter of principle, criminal proceedings are, par excellence , the most suitable remedy for satisfying the procedural requirements of Article 2 of the Convention. The Strasbourg case-law clearly demonstrates that a positive obligation exists for the States parties to the Convention to provide a procedure for effectively investigating deaths and establishing what responsibility, if any, the person(s) had in the taking of human life. Although this rule may not limit the nature of this recourse to criminal proceedings, it is difficult for one to deduce that the existing case-law equates criminal proceedings with civil proceedings as being remedies which both satisfy the requirements of Article 2 of the Convention with equal force (see paragraph 51 of the judgment); that remark holds good quite independently of the fact that the taking of life may be intentional or unintentional, a matter which after all must definitely be decided during and by the proceedings.

Indeed, it is difficult for one to accept that respect for the right to life, as provided for by Article 2, can, in principle, be satisfied by proceedings, which by their nature, are not designed to protect the fundamental values of society, to show public disapproval of the taking of life or – on the other side of the coin – to establish any liability through a thorough

examination of the circumstances which led to the death. Criminal proceedings contain exactly these safeguards. While, in contrast, civil proceedings are basically intended to satisfy private interests, material aspects of human transactions, they do not satisfy the requirement of expressing public disapproval of a serious offence, such as the taking of life, and do not usually guarantee a complete and exhaustive investigation into the cause of death, and the full factual background. Under these circumstances, considering civil proceedings as a satisfactory means of recourse satisfying the requirements of Article 2 amounts to a debasement of the protection of the right to life provided for by this Article; it amounts to a “privatisation” of the protection of the right to life.

A second argument militating in favour of a violation of Article 2 in this case is that the Italian legal system, in compliance with the overriding public concern for the protection of the right to life, does provide for recourse to criminal proceedings to establish responsibility for the taking of life, intentional or unintentional. For the Italian legal system this is the correct reading of the protection of the right to life and of Article 2 of the Convention. Ought then the European Court of Human Rights, applying minimal standards of protection, suggest to the Italian State that civil proceedings (which obviously fulfil a distinct function in the Italian legal system in so far as the protection of life is concerned) satisfy the requirements of Article 2? Can the European Court of Human Rights implicitly say to Italy and to all other States which provide for criminal proceedings in cases of the taking of life, that their procedural rules are luxuriously redundant, in so far as unintentional taking of life is concerned, and that their civil proceedings concerning compensation to the victims satisfy fully the needs of the Convention? I do not think so; and for these reasons I consider that the fact that the Italian courts have failed to deal effectively with the establishment of the doctor's liability through the criminal proceedings instituted against him, amounts to a violation of Article 2 of the Convention.