PERICOLO v. ITALY

FIRST SECTION

DECISION

Application no. 42565/19
Alessandro PERICOLO
against Italy

The European Court of Human Rights (First Section), sitting on 23 January 2024 as a Committee composed of:

 Péter Paczolay, President,
 Gilberto Felici,
 Raffaele Sabato, judges,
and Attila Teplán, Acting Deputy Section Registrar,

Having regard to:

the application (no. 42565/19) against the Italian Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 30 July 2019 by an Italian national, Mr Alessandro Pericolo, who was born in 1972 and lives in Bibione (Venice) (“the applicant”) and was represented by Mr A. Saccucci and Mr L. Brienza, lawyers practising in Rome;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1.  The application concerns the issue of whether the domestic legal system’s response to the life-threatening injuries, suffered by the applicant on account of acts of medical negligence ascertained by the competent domestic courts, was appropriate and timely.

2.  On 18 October 1994 the applicant had a car accident. He suffered multiple fractures, as well as neurological and vascular disfunctions of the lower limbs. He was therefore repeatedly subjected to surgery at the Udine hospital.

3.  Following these procedures, and after having been hospitalised at the Latisana hospital, the applicant contracted an infection, which was not immediately diagnosed. This infection eventually led to the need of additional surgery and, on 6 May 2008, to the amputation of part of his under-knee left leg.

4.  In the meanwhile, on 20 March 2002 and 28 April 2003 the applicant instituted civil proceedings before the Udine District Court, claiming compensation of the damages suffered on account of the allegedly negligent conducts of the Udine and Latisana hospitals and their doctors. The proceedings were subsequently joint.

5.  On 11 October 2006 the Udine District Court requested an expert assessment on the nature and seriousness of the injuries suffered by the applicant, on the causal link between those and the alleged medical negligence, and on the expenses already occurred and to be possibly sustained in the future by the applicant on account of the said injuries. The expert found that all the doctors in charge of the applicant had been negligent and were responsible for the injuries that he had suffered.

6.  On 10 October 2007 the proceedings were suspended due to the suppression, as a legal entity, of the Udine hospital.

7.  On 26 January 2008 the Udine District Court ordered a second expert assessment.

8.  On 30 June 2009 the newly appointed experts concluded that no negligence could be attributed to the doctors of the Udine hospital, while the Latisana hospital was to be held liable for the delayed diagnosis of the applicant’s infection.

9.  By a judgment of 4 October 2010, the Udine District Court partially upheld the applicant’s claims, and awarded him 468,043 euros (EUR) in respect of non-pecuniary damages, and EUR 60,000 in respect of pecuniary damages, plus interest, as well as the costs and expenses of the proceedings. It found, in particular, that the doctors of the Latisana hospital had negligently failed to diagnose the infection contracted by the applicant and to prescribe him the necessary treatment. Moreover, the District Court noted that there was a causal link between those omissions and the worsening of the infection, which led to the need to proceed to an amputation. By contrast, the applicant’s action against the Udine hospital was dismissed.

10.  On 18 April 2011 the applicant appealed against the judgment before the Court of Appeal of Trieste, complaining of the dismissal of his action against the Udine hospital and of the allegedly erroneous application of the criteria for determining the amount of compensation awarded. He argued, inter alia, that the costs he would possibly sustain in case of future issues caused by the contracted infection had not been duly considered.

11.  The Court of Appeal ordered a supplementary expert assessment on the responsibility of the Udine hospital, as well as on the possible future risks for the applicant’s health on account of the contracted infection.

12.  On 14 February 2013 the expert confirmed that no negligence could be attributed to the Udine hospital and observed that the probability of future risks for the applicant’s health was low.

13.  By a judgment of 27 November 2013, the Court of Appeal partially upheld the applicant’s claims and awarded him the total amount of EUR 1,121,346, in respect of pecuniary and non-pecuniary damages, as well as the costs and expenses of the proceedings.

14.  The applicant lodged an appeal on points of law, complaining of the allegedly erroneous application of the criteria for determining the damages suffered.

15.  By an order of 31 January 2019, the Court of Cassation dismissed the applicant’s appeal on points of law. It observed that his compensation had been determined on the basis of criteria which were well-established in the domestic case-law and that, in addition, those criteria had been applied in a favourable way in the applicant’s case.

16.  The applicant complained of the allegedly insufficient compensation awarded to him by the domestic courts. He relied on the substantive limb of Article 2 of the Convention, Article 6 § 1 of the Convention (fairness of the proceedings and principle of legal certainty), the substantive limb of Article 8 of the Convention (right to private and family life), and Article 1 of Protocol No. 1 to the Convention.

17.  The applicant further complained of the inappropriate response of the domestic legal system to the alleged acts of medical negligence, given that the civil proceedings lasted seventeen years. He invoked in this respect the procedural limbs of Article 2 and Article 8 of the Convention.

THE COURT’S ASSESSMENT

18.  As regards the applicant’s complaint concerning the allegedly insufficient amount of compensation awarded to him, the Court, being master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 114, 20 March 2018), finds it appropriate to examine it solely under the applicant’s right to a fair trial, protected by Article 6 § 1 of the Convention.

19.  The Court observes that in the civil proceedings instituted by the applicant, several expert assessments were undertaken (see paragraphs 5, 7 and 11 above). They led to the finding of medical negligence, as well as to the conclusion that the probability of future risks due to the infection contracted by the applicant was low (paragraphs 9 and 13 above). The domestic courts based their conclusions on the cited medical assessments.

20.  The Court further notes that, as stipulated by the Court of Cassation, the amount of compensation awarded to the applicant was determined on the basis of criteria which were well-established in the domestic case-law and that, in addition, those criteria were applied in a favourable way in the applicant’s case (paragraph 15 above).

21.  The Court reiterates that it is not its role to deal with alleged errors of law or fact committed by the national courts unless and in so far as they may have infringed rights and freedoms protected by the Convention, for instance where it can, exceptionally, be said that they are constitutive of “unfairness” incompatible with Article 6 of the Convention (see Yüksel Yalçınkaya v. Türkiye [GC], no. 15669/20, § 302, 26 September 2023).

22.  In the present case, the Court does not see any reason to conclude that the domestic courts’ assessment was arbitrary or manifestly unreasonable.

23.  Accordingly, the Court concludes that this complaint is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

24.  As regards the complaint concerning the allegedly inappropriate response of the domestic legal system due to the unreasonable length of the civil proceedings, the Court notes that the applicant suffered life-threatening injuries (paragraph 3 above), and considers that this is sufficient to entail the applicability of Article 2 of the Convention (see Nicolae Virgiliu Tănase v. Romania [GC], no. 41720/13, §§ 139 and 144-45, 25 June 2019, with further references).

25.  The Court finds it appropriate to examine the applicant’s complaint solely under the procedural limb of Article 2 of the Convention (see paragraph 18 above).

26.  The general principles concerning medical negligence have been summarised in Lopes de Sousa Fernandes v. Portugal ([GC], no. 56080/13, §§ 214-21, 19 December 2017). In particular, as regards the procedural aspect of Article 2, the Court reiterates that, in the event of life-threatening physical injury, the State’s duty to safeguard the right to life must be considered to involve having in place an effective independent judicial system capable of promptly establishing the facts, holding accountable those at fault and providing appropriate redress to the victim (see Nicolae Virgiliu Tănase, cited above, § 157). This procedural obligation is not an obligation of result but of means only. However, Article 2 of the Convention will not be satisfied if the protection afforded by domestic law exists only in theory and does not operate effectively in practice (see Cevrioğlu v. Turkey, no. 69546/12, § 53, 4 October 2016).

27.  In the present case, the Court considers that the State’s response was appropriate, as it led to the proper establishment of the facts (see paragraph 19 above) and to the award of sufficient redress to the applicant (see paragraph 20 above).

28.  It further reiterates that the procedural obligation under Article 2 of the Convention in the context of health care requires, inter alia, that the proceedings be completed within a reasonable time (Lopes de Sousa Fernandes, cited above, § 218). However, compliance with the procedural requirement of Article 2 is assessed on the basis of several essential parameters. These elements are inter-related and each of them, taken separately, does not amount to an end in itself, as is the case in respect of the requirements for a fair trial under Article 6. They are criteria which, taken jointly, enable the degree of effectiveness of the investigation to be assessed. It is in relation to this purpose of an effective investigation that any issues, including that of promptness and reasonable expediency, must be assessed (Nicolae Virgiliu Tănase, cited above, § 171). Thus, in contrast to a situation where solely the excessive length of the proceedings is examined under Article 6 § 1 of the Convention, it is not merely the reasonableness of the length of the proceedings which is in issue here. The main question is instead whether, in the circumstances of the case viewed as a whole, the State could be said to have complied with its procedural requirements under Article 2 of the Convention (see Kornicka-Ziobro v. Poland, no. 23037/16, § 81, 20 October 2022).

29.  Although the Court finds regrettable that the proceedings lasted seventeen years, it considers that, in the light of the complexity of the case, the fact that the proceedings had to be suspended (see paragraph 6 above), and the three expert assessments undertaken (see paragraphs 5, 7 and 11 above), this is not an issue which, taken alone, may lead to finding a breach of the procedural obligation of Article 2.

30.  Moreover, the Court notes that by 2010 the Udine District Court adequately responded to the applicant’s allegation of medical malpractice. The District Court namely clarified the relevant events and awarded compensation (see paragraph 9 above). The proceedings up to that stage were therefore effective from the standpoint of Article 2 of the Convention (see, mutatis mutandis, Kornicka-Ziobro, cited above, §§ 76-77).

31.  The Court also points out that, insofar as the applicant’s complaint may be understood as concerning the length of the civil proceedings per se, under Article 6 § 1 of the Convention, the applicant should have exhausted the remedy provided for by Law no. 84 of 24 March 2001 (“Pinto Act”). The Court notes that the complaint, as raised by the applicant, did not indeed concern the issue of whether in the circumstances of the case, seen as a whole, the State could be said to have complied with its procedural requirements under Article 2 of the Convention, but the mere issue of the length of the proceedings (see, a contrario, G.N. and Others v. Italy, no. 43134/05, § 101, 1 December 2009, with further references).

32.  Having regard to the overall assessment of the proceedings, the Court concludes that it cannot be said that the legal system, as applied in the present case, had failed to deal adequately with the applicant’s case (see, mutatis mutandis, E.M. and Others v. Romania (dec.), no. 20192/07, § 56, 3 June 2014).

33.  In the light of the above, the Court concludes that this complaint is likewise manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 15 February 2024.

 Attila Teplán Péter Paczolay
 Acting Deputy Registrar President