DISSENTING OPINION OF JUDGE BOÅ NJAK

1. I respectfully disagree with the majority in their finding that there has been a violation of Article 2 of the Convention in the present case on account of allegedly insufficient protection of the life of the applicants’ relative, C.C., during his custody.

2. It was undisputed between the parties that the death of C.C. had not resulted from police violence or from the commission of any other act by the State authorities. As had been established in the domestic proceedings, he had died from acute cocaine intoxication, since he had ingested a lethal dose very shortly before his death, while he had been in the bathroom. According to the findings of the Milan Court of Appeal, it was at that time that C.C. had been able to use his free hand to swallow the cocaine previously hidden somewhere on his person (see paragraph 36 of the judgment).

3. The applicants asserted that C.C.’s death had been caused by a number of omissions on the part of the authorities. Firstly, instead of taking him into custody, the arresting officers should have taken him to a hospital. In any event, C.C. had not received adequate medical attention while in custody. Secondly, the authorities should have searched him, which would have enabled them to find and seize the drugs which he had later ingested. Thirdly, C.C. had not been adequately supervised by police officers while in detention.

4. The majority in the Chamber agree, albeit cautiously, with the above. They observe that C.C. was not given any form of medical attention. Furthermore, they note that C.C.’s person was not checked for the presence of drugs upon his arrival at the Milan police headquarters. Finally, the majority point out that the police officers in charge failed to pay continuous attention to C.C., despite the fact that there ought to have been an officer present at all times (see paragraphs 60-63 of the judgment).

5. While the events of the present case are undoubtedly tragic, they should not overshadow the need for a thorough legal analysis of the applicants’ complaint. To my understanding, the Court has yet to rule on the question of when an alleged omission by State authorities constitutes a failure to comply with the High Contracting Party’s positive obligation to protect a person’s right to life and should therefore lead to a finding of a violation of Article 2 of the Convention. To my regret, the Chamber in this case has missed an opportunity to do so.

6. The purpose of this dissenting opinion is not to offer a fully fledged set of principles and methodology for examining complaints like the one in the present case. Nevertheless, I wish to underscore that there is a long and winding legal path from alleging an omission to concluding that such an omission has indeed occurred and was the cause of the tragic outcome for which the respondent State should be held accountable. At the very least what should be established is (a) whether the State authorities had a duty to act in a specific way in the circumstances under review, (b) whether the State authorities failed to act in accordance with such a duty and (c) whether, in the event that the State authorities had fulfilled that duty, the death would not have occurred.

7. Bearing the above in mind, I find the majority’s position unconvincing. Firstly, with regard to the alleged lack of medical attention, I note that the expert reports which were accepted by the Milan Court of Appeal dismissed the applicants’ contention that C.C.’s medical condition required immediate medical attention (see paragraph 34 of the judgment). I therefore find the majority’s position in paragraph 60 of the judgment to be inconsistent with the domestic findings of fact, with no reasons given for disregarding those findings. Above all, the finding by the Milan Court of Appeal does not support the applicants’ allegation that there had been a duty to hospitalise C.C. (instead of taking him into police custody) or that at the very least he should have received medical attention while in police custody. Even assuming that there had been a duty to provide medical assistance during custody in the present case, it is difficult to see how such assistance per se could have prevented C.C. from ingesting the lethal dose of cocaine which he had kept hidden and which, according to the findings of the domestic courts, he had consumed while in the bathroom.

8. Secondly, with regard to the alleged lack of a search, it is difficult to understand what kind of search the applicants or the majority are referring to. Putting this lack of clarity aside, it appears that Italian law does not impose any duty to search an arrested person. Furthermore, one may reasonably assume that C.C. was at least frisked, since, inter alia , a folded banknote containing a substance resembling cocaine was taken from his wallet, which was located in the back pocket of his trousers. Such a frisk or a “check of items worn or carried on the person” (see paragraph 52) was obviously insufficient to detect another dose of cocaine which he had most likely kept hidden in a way that only an intimate body search could have revealed. But in my reading, the majority expressly (and rightly) reject the idea that there is a duty to subject all arrested individuals, as a basic precaution and therefore as a matter of routine, to intimate body searches in order to prevent tragic events like the one in the instant case, as such intimate body searches could give rise to issues under other Articles of the Convention (see paragraph 62 of the judgment). Instead, the majority emphasise the failure to check C.C. for the presence of drugs upon his arrival at the Milan police headquarters, but it is difficult to see how such a “check” could have revealed more than the frisk, which was performed at an earlier point, immediately after his arrest, and during which a substance resembling cocaine was in any event found. In brief, I do not see any legal duty to search C.C. that the authorities failed to fulfil in the present case.

9. Finally, the majority doubt whether C.C. was continuously monitored and emphasise the statement of the officer in charge of the holding room to the effect that one of them (i.e. the officers) must always be present on the control post. While there may well be a duty for an officer to be present on the control post monitoring the holding room at all times and this duty may not have been fully complied with, I struggle to see how this is relevant to the present case. In particular, in line with the Court of Appeal’s factual finding, C.C. most likely ingested the lethal dose of cocaine in the bathroom and not in the holding room, where both of his hands were handcuffed. Therefore, in line with criterion (c) outlined in paragraph 6 of this dissenting opinion, it is impossible to conclude that had an officer been constantly present on the control post, C.C. could not have consumed the hidden drugs and his death would therefore not have occurred.

10. On the basis of the above, with all my profound respect for the applicants who lost a close relative, I cannot conclude that there are convincing arguments for holding the respondent State accountable for the death of C.C.

APPENDIX

List of applicants:

No.

Applicant’s name

Year of birth

Nationality

Place of residence

1.

Rosalba AINIS

1974

Italian

Milan

2.

Nancy CALOGERO

1994

Italian

Milan

3.

Giuseppa DAMMICELA

1946

Italian

Milan