PARTLY DISSENTING OPINION OF JUDGE COSTA

(Translation)

I agree with the majority of my colleagues that there has been no violation of Article 2 of the Convention in this sad case. However, I do not share their opinion with regard to Article 6 § 1.

The complaint was a familiar one, especially in applications against Italy, namely that the proceedings were unreasonably lengthy. Despite the defects of the Italian judicial system, which it is to be hoped the recent Pinto law will help to remedy domestically, personally I have always been opposed to resorting to a sort of presumption of a violation of Article 6 that would lead to complaints of this type being upheld “automatically” (I refer on this subject to my dissenting opinion annexed to Di Mauro v. Italy [GC], no. 34256/96, ECHR 1999-V). The Court must examine each case on its facts using the criteria long since established in its case-law as a yardstick: the complexity of the case, the conduct of the parties (particularly of the applicant or applicants) in the domestic proceedings, the failings or delays attributable to the judicial authorities themselves and, lastly, what was at stake in the dispute.

It seems to me that if the facts of the instant case are examined using those criteria the conclusion must be that the proceedings were unduly long. In my opinion, the case did not give rise to any clearly complex issues (even though the majority categorically affirm the contrary at the beginning of paragraph 65 of the judgment): this was a tragic – but unfortunately all too common – case of post-natal complications leading to a child's death two days after birth. Even though expert witnesses were appointed, as is usual in such cases, the issue of the doctor's liability for involuntary manslaughter does not appear to me to have been complicated either factually or in law. There is no suggestion in the judgment that the parties were responsible for any of the delays (the subject is not even mentioned), but the majority accept, in paragraph 65, that the proceedings were affected by “regrettable delays” attributable to the judicial authorities both directly (an almost thirteen-month gap between the accused's committal and the first hearing and other culpable delays – see paragraphs 18-19 of the judgment) and indirectly (a three-and-a-half-month adjournment because of a lawyers' strike on the date originally scheduled for the hearing). Lastly, a great deal was at stake in the litigation: the applicants sought the doctor's conviction together with an order for damages. For the parents, who lost their child when, according to the domestic courts, the accused had been aware that the birth had to be regarded as high risk in view of the mother's past history, what was at stake was of no small consequence.

I might nonetheless have been able, at a pinch, to accept that the length of the proceedings was not unreasonable, as, if the starting-point is deemed to be the date the parents were joined as civil parties (7 July 1989) and not the date they lodged their criminal complaint (10 February 1987) – and here I agree with paragraph 66 of the judgment – the proceedings lasted “only” six years, three months and ten days for four levels of jurisdiction (compare with Di Mauro , cited above).

However, one factor, which in my view is decisive, tilts the balance. At the end of that period, the court of appeal hearing the case on remittal from the Court of Cassation, held that the prosecution of the offence was time-barred . It is not a question of examining in the abstract whether the Italian rules of limitation in criminal proceedings are compatible with the Convention, although it is worth observing that under most systems time ceases to run when steps have been taken to prosecute, and a fortiori when the criminal proceedings themselves have been instituted. Be that as it may, the practical consequence in the instant case was that the delays in the proceedings proved favourable to the accused and above all extinguished the applicants' right of access to a court, even though that right is afforded no less protection by Article 6 § 1 than the right to proceedings within a reasonable time. That aggravating – and inevitably frustrating – factor, a perverse effect of a system that makes the pursuit of criminal proceedings conditional on their being conducted expeditiously when it is well-known that the procedure is too slow generally, leads me to find that Article 6 § 1 of the Convention was violated in the instant case to the applicants' detriment. This explains why my vote placed me in a (very small) minority on this point.