AVIGNONE v. ITALY

FIRST SECTION

DECISION

Application no. 1017/21
Giuseppe AVIGNONE
against Italy

(see appended table)

The European Court of Human Rights (First Section), sitting on 14 December 2023 as a Committee composed of:

 Krzysztof Wojtyczek, President,
 Lətif Hüseynov,
 Ivana Jelić, judges,

and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having regard to the above application lodged on 7 January 2021,

Having regard to the declaration submitted by the respondent Government requesting the Court to strike the application out of the list of cases,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

The applicant’s details are set out in the appended table.

The applicant was represented by Ms M.R. Crocitti, a lawyer practising in Taurianova.

The applicant’s complaints under Articles 3 and 8 of the Convention concerning the alleged lack of medical treatment in prison were communicated to the Italian Government (“the Government”).

THE LAW

The Court takes note of the information regarding the death of the applicant on 26 May 2023 and the wish of his son, Mr Guerino Avignone, to continue the proceedings in his stead, as well as of the absence of an objection to that wish on the Government’s part. Therefore, and having regard to the subject matter of the complaints, the Court considers that Mr Guerino Avignone has standing to continue the proceedings in the applicant’s stead (see Cosovan v. the Republic of Moldova, no. 13472/18, § 51, 22 March 2022, with further references).

For practical reasons, the present decision will continue to refer to Mr Giuseppe Avignone as “the applicant”.

On 15 February 2023 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issues raised by these complaints. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.

The declaration provided as follows:

“The Italian Government recognize that the Applicant was subjected to the conventional violations as he claims, according to the principles expressed by the Court of Human Rights in this context.

The Italian Government, with this declaration, offer the sum of 8000 euros to the Applicant to cover any non-pecuniary damage, and the sum of 2000 euros to cover any costs and expenses.

The Government believe that this declaration, containing the acknowledgement of the abovementioned violations and the provision of a refund, represents an adequate compensation for the Applicant, according to the jurisprudence of the Court on the matter.

The Government respectfully invite the Court to declare that it is not necessary to prosecute the exam of the violations alleged by the Applicant and dismiss the case in application of Article 37 of the Convention, given that the conditions established by Article 62A of the Rules of Court are respected.

The Government will proceed to pay the sums offered with the present declaration within three months from the date of notification of the decision taken by the Court to strike the case out of its list of cases. In the event of failure to pay these sums within the said three-month period, the Government undertake to pay simple interest on them, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.”

The applicant was sent the terms of the Government’s unilateral declaration on 1 March 2023. The Court has not received a response from the applicant party accepting the terms of the declaration.

The Court observes that Article 37 § 1 (c) enables it to strike a case out of its list if:

“... for any other reason established by the Court, it is no longer justified to continue the examination of the application”.

Thus, it may strike out applications under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued (see, in particular, the Tahsin Acar v. Turkey judgment (preliminary objections) [GC], no. 26307/95, §§ 75‑77, ECHR 2003-VI).

The Court has established clear and extensive case-law concerning complaints relating to medical care in prison (see, for example, Rooman v. Belgium ([GC], no. 18052/11, §§ 144-48, 31 January 2019; Potoroc v. Romania, no. 37772/17, §§ 63-65, 2 June 2020; and Contrada v. Italy (no. 2), no. 7509/08, § 78, 11 February 2014).

Noting the admissions contained in the Government’s declaration as well as the amount of compensation proposed – which, taking into account the evidence provided by both parties on the applicant’s state of health and on the medical care provided to him, appears to be consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)).

In the light of the above considerations, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine).

Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application may be restored to the list in accordance with Article 37 § 2 of the Convention (see Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).

In view of the above, it is appropriate to strike the case out of the list.

For these reasons, the Court, unanimously,

Decides that Mr Guerino Avignone has standing to continue the present proceedings in the stead of the deceased applicant;

Takes note of the terms of the respondent Government’s declaration and of the arrangements for ensuring compliance with the undertakings referred to therein;

Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.

Done in English and notified in writing on 18 January 2024.

 Viktoriya Maradudina Krzysztof Wojtyczek
 Acting Deputy Registrar President

APPENDIX

Application raising complaints under Articles 3 and 8 of the Convention

(medical treatment in prison)

[1] Plus any tax that may be chargeable to the applicant.

[2] Plus any tax that may be chargeable to the applicant.