The cousin cannot appeal before the Court for the death of her relative. Recognition of her as a political claimant by national courts does not constitute her as the victim

JUDGMENT

Fabris and Parziale v. Italy 19.03.2020 (no. 41603/13)

see here

SUMMARY

The cousin of the deceased sister and her appeal to Court as a victim of a violation of the procedural aspect of the right to life. Her application as a non-victim is inadmissible. Death of a prisoner during his detention and investigation.

The first applicant was the uncle and second cousin of the deceased, who, according to a medical examiner, had died after voluntarily inhaling gas from the gas provided to the detainees for cooking.

The Court, in view of the lack of information to show that the second applicant’s deceased cousin had a legitimate interest in bringing an individual action, held for the most part that it could not claim that she was a victim.

The Court then went on to find, in particular, that it had not been shown that the authorities were aware or should have known that there was a real and immediate danger to the death of the deceased or that they failed to take any measures reasonably expected of them. Finally, it held that the delays observed during the investigation were not capable of establishing the Italian State’s responsibility for a breach of the procedural aspect of the right to life (Article 2), while the first applicant and the deceased’s uncle had participated in the procedural stages of the investigation. and had the opportunity to oppose the prosecutor’s request for the case to be filed.

Non-infringement of the right to life (Article 2 of the ECHR) with regard to its substantive (protection of life) but also its procedural (effective investigation) aspect.

PROVISION

Article 2

PRINCIPAL FACTS

The applicants, Gian Paolo Fabris and Carmela Parziale, are Italian nationals who were born in 1940
and 1963 respectively and live in Abano Terme (Italy).

In May 2005 the applicants’ relative – a drug addict who used drugs and alcohol and suffered from
physical and mental disorders – was found dead in his cell by a fellow inmate on cell cleaning and
meal distribution duty. According to a report drawn up by the prison authorities, when attempting
to revive the patient in the cell the doctors had noticed a smell of gas coming from his mouth. A gas
canister was also found on the floor near the body, on which an autopsy was performed two days
later.

In December 2005 an initial expert report stated that the death had been the result of acute
cardiorespiratory insufficiency caused by an electric shock, and that the electrocution could have
been caused by another person using an electrical stun gun. The report added that it could not be
ruled out that the death might have been caused by the deliberate inhalation of gas.

A few days later the investigating judge commenced criminal proceedings against persons unknown
for death resulting from the commission of another offence. The applicants and other members of
the victim’s family were invited to join the proceedings as civil parties.

In July 2006 the public prosecutor’s office ordered a second expert assessment, which concluded
that the injuries on the deceased’s body were incompatible with electrocution and that the death
had been caused by the deliberate inhalation of gas from the canisters provided to prisoners for
cooking.

In March 2009 the public prosecutor’s office sought to have the case discontinued, but the
investigating judge dismissed the request. The following year the public prosecutor’s office added
the names of the prison director, the prison medical officer and the director of prison services to the
list of persons suspected of causing the death. The offence in question was classified as
manslaughter and the suspects were interviewed. The applicants twice requested that the
preliminary investigations be closed and the suspects committed for trial.

In July 2012 the public prosecutor’s office again sought to have the case discontinued. The applicants
objected. The investigating judge set the case down for hearing on 29 November 2012. The
applicants requested an earlier date owing to the imminent statutory limitation of the offence, but
their request was dismissed on the grounds that the parties had already been officially notified of
the date.

In December 2012 the investigating judge discontinued the proceedings on the grounds that the
offence had become statute-barred on 30 November 2012.

THE DECISION OF THE COURT…

Article 2 (right to life)

1. As regards the victim status of Ms Parziale, the deceased’s cousin

A cousin’s victim status was not automatically recognised by the Court, and the only evidence
presented by Ms Parziale in support of her close relationship with the deceased – apart from kinship
– was the fact that the Italian authorities had granted her civil-party status in the criminal
proceedings relating to the death. However, the conditions governing the lodging of individual
applications under the Convention did not necessarily coincide with national criteria. Thus, in the
absence of information demonstrating that Ms Parziale held a legitimate interest as a relative, the
Court held, by a majority, that she could not claim to be a victim.

Consequently, only Mr Fabris could claim victim status in the present case.

2. As regards the State’s positive obligation to protect life

The Court noted that the deceased had been under constant supervision by the medical staff at
Venice Prison, which, as soon as he had been placed in custody, had initiated both pharmacological
and psychological detoxification therapies. Medication had also been administered in order to treat
the victim’s various conditions.

As regards the myocardial fibrosis which had most likely caused the heart failure, it had first been
diagnosed during the expert assessment in 2007, and had not been discovered before the death. The
authorities had therefore lacked any evidence to suggest that the victim had run a potentially higher
risk than other drug addicts of suffering the fatal consequences of using drugs and other substances.
As regards the behavioural precedents on the deceased’s part between March and May 2005, the
prison authorities had taken immediate action to determine the circumstances under which the
incidents in question had occurred, and had adopted precautionary measures concerning, in
particular, the procedure for administering medication. The deceased had also received immediate
treatment by a medical officer after a previous incident involving inhalation of gas, and an
investigation had been carried out by the Disciplinary Board.

Furthermore, the deceased had shown no signs of physical or mental distress in the days leading up
to his death, and his canister gas inhalation levels, which had always been comparable to that of the
other prisoners, had not increased over that period.

Consequently, bearing in mind that the State’s positive obligation should be interpreted in a way
which did not impose an impossible or disproportionate burden on the authorities, the Court
concluded that it had not been established, firstly, that the authorities had known known or ought
to have known that there had been a real and immediate danger to the deceased’s life, or secondly,
that they had failed to take the steps which they could reasonably have been expected to take.
There had therefore been no violation of the substantive limb of Article 2 of the Convention.

3. As regards the investigation into the death

The Court considered that the Italian authorities had acted with the necessary diligence and that Mr Fabris had been sufficiently closely involved in the investigation, given in particular that he had taken part in a number of procedural steps and had had the opportunity to object to the publicprosecutor’s requests for the case to be discontinued.  The Court also held that the delays observed in the investigation were insufficient to engage the responsibility of the Italian State in terms of its procedural obligation under Article 2 of the Convention. There had therefore been no violation on that account.


ECHRCaseLaw

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