FIRST SECTION
DECISION
Application no. 41130/18
Francesca VERRI and Emanuele VERRI
against Italy
The European Court of Human Rights (First Section), sitting on 26 November 2019 as a Committee composed of:
Aleš Pejchal, President,
Tim Eicke,
Raffaele Sabato, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to the above application lodged on 24 August 2018,
Having deliberated, decides as follows:
THE FACTS
1. The applicants, Ms Francesca Verri and Mr Emanuele Verri, are Italian nationals, who were born in 1988 and 1974 respectively and live in Molinella. They are, respectively, the daughter and son of Valerio Verri (“the applicants’ father”), now deceased. Their application was lodged on 24 August 2018. They were represented before the Court by Mr F. Anselmo, a lawyer practising in Ferrara.
The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
1. The factual background
3. On 30 March 2017, at 2.30 a.m., a private security guard, P.D.M., while patrolling in Argenta, was threatened by a man armed with a rifle and forced to hand over his service gun. P.D.M. reported the incident to the police and described the man as a tall and portly individual, dressed in military clothing, and having an Eastern European accent.
4. On the same day the Ferrara public prosecutor registered the complaint and started an investigation against persons unknown (contro ignoti).
5. On 31 March 2017, at a pre-planned technical meeting regarding coordination (riunione tecnica di coordinamento) of the different law enforcement agencies held at the Ferrara Prefecture, the participants were informed of, inter alia, the events of 30 March 2017. No specific measures were taken.
6. On 1 April 2017, at 10 p.m., D.F., the owner of a bar in Budrio, was murdered while trying to prevent a robbery at his place of business. Thanks to video monitoring, it was possible to identify the killer as a man with a foreign accent, armed with a rifle and a gun (the latter being similar to the one taken in the 30 March 2017 robbery) and dressed in military clothing.
7. On 2 April 2017 the Bologna carabinieri sent an email to all the provincial carabinieri stations in the Emilia-Romagna region, which contained an information sheet showing the possible identity of a suspect in the killing of D.F. The identity was that of N.F., a man of Serbian nationality who employed several aliases, a former soldier, and a previous offender.
8. Starting from 2 April 2017, the Portomaggiore carabinieri commenced search operations in the municipality in order to search for explosives and arms.
9. On 3 April 2017 the Argenta carabinieri found an abandoned campfire in Argenta. Material found at the site was seized. A record of the seizure was drafted on 17 April 2017, after the death of the applicants’ father (see paragraph 12 below) and in the context of the investigation into his death.
10. On 4 April 2017 a Ferrara provincial police officer, M.R., sent a message to an internal provincial police WhatsApp group. The message contained a picture of N.F. M.R. warned his colleagues and identified the man as the one who had most probably murdered D.F. The head of the Ferrara provincial police, C.C., also warned his colleagues in the same WhatsApp chat.
11. On 7 April 2017 a pre-planned meeting of the Ferrara Provincial Committee for Public Order and Safety (Comitato provinciale Ordine e Sicurezza Pubblica) was held. The deputy chief of the Ferrara section of the national police, the carabinieri provincial commander, the guardia di finanza (revenue police) provincial commander, and the President of the Province took part in that meeting. The carabinieri did not inform the other participants that N.F. had absconded or that a campfire had been found, and accordingly no specific measures were taken in that regard.
2. Incident on 8 April 2017 and subsequent events
12. On 8 April 2017, at approximately 6.30 p.m., the applicants’ father, a volunteer environmental guard, was shot and killed in Portomaggiore. He had been carrying out his supervisory tasks (to combat poaching) together with the provincial police officer M. R. (see paragraph 10 above), who survived the incident despite suffering major injuries. The survivor recognised the killer as N.F.
13. On 9 April 2017 the Ferrara Provincial Police Commander suspended the operation of the environmental guard service.
14. On an unspecified date the Ferrara public prosecutor initiated criminal proceedings against N.F. for the murder of the applicants’ father.
15. On 10 May 2017 DNA found on the objects recovered on 3 April 2017 from the abandoned campfire (see paragraph 9 above) was discovered to be consistent with that found at the crime scene in Budrio on 1 April 2017.
16. On 10 July 2017 the proceedings opened by the Ferrara public prosecutor were joined to those pending before the Bologna Tribunal, which related, inter alia, to the killing of D.F. on 1 April 2017 (see paragraph 6 above).
17. It appears that, after the application was lodged with the Court, N.F. was sentenced to life imprisonment on 25 March 2019 by the Bologna Tribunal (as the court of first instance) for, inter alia, the murder of the applicants’ father. The applicants were awarded 400,000 euros (EUR) each for non-pecuniary damage, since they had joined the proceedings as civil parties.
3. Criminal proceedings instituted by the applicants
18. On 10 May 2017 the applicants lodged a complaint with the Ferrara public prosecutor’s office. They asked the prosecutor’s office to assess whether the law enforcement agencies had acted with diligence and whether their father’s death could have been avoided. They complained, in particular, about the delay in analysing the biological material recovered at the campfire site on 3 April 2017 (see paragraph 9 above) and the fact that on 7 April 2017 the carabinieri had not informed their colleagues that N.F. had absconded or of the risks that that had posed (see paragraph 11 above). The complaint was supplemented on 24 May, 26 May and 7 July 2017.
19. On 10 October 2017 the public prosecutor sought to have the charges dropped. During the investigation the public prosecutor heard evidence from M.R., who stated that he had not received any news about N.F.’s possible location, nor he had ever imagined that N.F. could be in his patrol zone. Moreover, the public prosecutor’s office had obtained all the information that had been available to the carabinieri, the prefecture, the national police headquarters, the municipality and the Province in relation to N.F.’s presence in that zone in the days leading up to the killing. The data confirmed that, as at the date of 8 April 2017, there had been no definitive evidence that N.F. had been responsible for the previous crimes and no evidence at all that he had been in a specific area. The prosecutor concluded that it had not been proved that the authorities had been aware that N.F. had been in the area of the murder on that date.
20. On 30 October 2017, the applicants objected to the discontinuation of the case under Article 410 of the Code of Criminal Procedure (“CCP”), alleging that all the elements for the crime of dereliction of duty (rifiuto di atti di ufficio) under Article 328 of the Criminal Code appeared to be present. They also invited the investigating judge to order an extension of the investigation and requested that the prosecutor’s office secure the acquisition of, inter alia, N.F.’s telephone records. That evidence was required in order to establish the date on which the public authorities had become aware of N.F.’s presence in the area where the murder had occurred.
21. A hearing in camera was held on 13 February 2018.
22. On 27 February 2018 the Ferrara investigating judge (giudice per le indagini preliminari) dismissed the applicants’ request for an extension of the investigation, granted the public prosecutor’s request and discontinued the proceedings. In particular, the judge ruled out the possibility that there had been any criminal responsibility on the part of the authorities. Indeed, the information available to the authorities had been the result of an investigation, and as such, had been protected by privilege under Article 329 of the Criminal Code (a provision stating that a rule of secrecy covers all the acts made by the public prosecutor or the police during the investigations). An obligation to communicate such information to the public security authorities would have arisen only if it had been established that there was a real and concrete risk for the lives of other individuals.
23. In this connection, the judge stated that it would have been impossible to establish a causal link between the alleged negligence of the authorities and the death of the applicants’ father. Among other things, it had not been scientifically proved, as the applicants had argued, that a fugitive would prefer to abscond to open territory such as the area where the applicants’ father had been killed. It would have been unreasonable, and have imposed a disproportionate burden on the authorities, to suspend the environmental guard service, even if the authorities had known that N.F. had absconded to that specific area, as he had not had a specific target and could potentially have attacked anyone. For this reason, the judge also concluded that the requested evidence would be superfluous.
24. The decision to discontinue the proceedings taken by the Ferrara investigating judge was final. It could have been appealed against under Article 410-bis § 2 of the CCP solely on the grounds of nullity provided for by Article 127 § 5 of the CCP (in particular, failure to comply with the procedural provisions concerning the holding of hearings in camera), a remedy which clearly was not applicable in the instant case.
COMPLAINTS
25. The applicants complained under Article 2 of the Convention that there had been a breach of the State’s positive obligation to protect their father’s life in that the relevant State authorities had not taken all measures in their power. In particular, they should have informed the environmental guard service of the danger posed by N.F. or suspended its operations in the days before the murder took place, as they knew that N.F. had most likely absconded to a patrol zone under its authority.
26. Under the procedural limb of Article 2 they complained that the investigation carried out by the State into the criminal responsibility of the State officials involved had not been adequate.
27. Finally, they alleged a violation of Article 13 in that the investigation had not been effective and had undermined the effectiveness of any other remedy that might have existed.
THE LAW
28. The applicants complained under Articles 2 and 13 of the Convention that the State had failed to protect their father’s right to life and that the criminal investigation into the circumstances of their father’s death had been ineffective.
29. The Court, being master of the characterisation to be given in law to the facts of the case (Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 124, 20 March 2018), considers that the applicants’ complaints fall to be examined under Article 2 of the Convention, which, in so far as relevant, reads as follows:
“1. Everyone’s right to life shall be protected by law ...”
A. Positive obligations under Article 2 of the Convention
1. General principles
30. The Court reiterates that the first sentence of Article 2 § 1 of the Convention enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see, among many authorities, Mastromatteo v. Italy [GC], no. 37703/97, § 67, ECHR 2002‑VIII, Osman v. the United Kingdom, 28 October 1998, § 115, Reports of Judgments and Decisions 1998‑VIII, and L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports of Judgments and Decisions 1998‑III).
31. The State’s obligation extends beyond its primary duty to secure the right to life by putting in place effective criminal-law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and punishment of breaches of such provisions. Article 2 may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual (see Bljakaj and Others v. Croatia, no. 74448/12, § 104, 18 September 2014).
32. However, bearing in mind the difficulties in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, the scope of the positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities.
33. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. A positive obligation will arise where it has been established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (see Osman v. the United Kingdom, cited above, § 116 and Mastromatteo v. Italy [GC], cited above, § 68).
2. Application to the present case
34. In applying these principles to the present case, the Court must be satisfied that the death of the applicants’ father resulted from a failure on the part of the national authorities to “do all that could reasonably be expected of them to avoid a real and immediate risk to life of which they had or ought to have had knowledge” (see, among many authorities, Mastromatteo [GC], cited above, § 74 and Choreftakis and Choreftaki v. Greece, no. 46846/08, § 47, 17 January 2012).
35. The applicants alleged that the national authorities knew, or should have known, if they had acted with diligence, the danger posed by N.F. to their father. In particular, the applicants alleged that by 3 April 2017, after the incident in Budrio (see paragraph 6 above), the authorities had already concentrated their suspicions on N.F. The lack of concrete evidence identifying N.F. as a dangerous criminal at large had been imputable solely to the State, which had been extremely slow in analysing the biological material found on the objects recovered at the campfire on 3 April 2017 (see paragraph 9 above). Finally, the specific characteristics of the volunteer environmental guards had not been taken into account. The applicants submitted that such guards usually operated in isolated areas in order to combat poaching. Such areas were ideal for an absconding fugitive. In addition, the guards were not armed and not prepared to face such dangerous individuals. Therefore the authorities should have, according to the applicants, suspended the operation of the environmental guard service as a precautionary measure.
36. In assessing the facts of the present application, the Court must be cautious about revisiting the events with the wisdom of hindsight (see Bubbins v. the United Kingdom, no. 50196/99, § 147, ECHR 2005‑II (extracts)). It would to this extent agree with the findings of the public prosecutor’s office and of the investigating judge and observe that, at the time of the incident, the domestic authorities did not have an exact idea of the location of N.F. Even assuming that the authorities had immediately analysed the biological material found at the abandoned campfire, the Court is not convinced that that would have triggered a positive obligation on the State to suspend the operation of the environmental guard service or even to inform them of the fact that the fugitive had absconded, as N.F. could have hidden anywhere and could potentially have attacked anyone. The Court also notes that the previous incidents occurred a week before the applicants’ father was killed, 40 kilometres away from the scene of the crime.
37. The provincial police agent M.R., who was with the applicants’ father on 8 April 2017, confirmed that he had not received any news on the possible location of N.F. nor had he ever imagined that N.F. might be in his patrol zone (see paragraph 19 above). Had he had such information, he would have immediately alerted the carabinieri and requested their assistance. The Court notes that, as pointed out by the investigating judge, the area to which the fugitive could potentially have absconded was very large and extended for hundreds of square kilometres. Finally, the investigating judge stated that it had not been scientifically proved that a fugitive would prefer to abscond to an open territory (see paragraph 23 above). It therefore would have been unreasonable to expect that the local law enforcement agencies had an obligation to suspend the operation of the environmental guard service on the basis of mere suspicions that a dangerous individual might abscond to a zone over which it had authority, in particular as the fugitive had apparently had no specific target. Consequently, the risk posed by N.F. was a risk to the lives of members of the public at large rather than of one or more identified individuals.
38. To conclude, the Court finds no reason to depart from the Ferrara investigating judge’s finding that the applicants’ father lost his life as a result of the criminal act of an individual and that the State authorities did not have an obligation to suspend the operation of the environmental guard service nor to inform them, as they had not known, nor should they have known, of the existence of a real and immediate risk to the life of an identified individual or individuals.
39. The applicants’ complaint under the substantive limb of Article 2 of the Convention must therefore be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
B. Procedural aspect of Article 2 of the Convention
40. The Court reiterates that the positive obligations laid down in the first sentence of Article 2 of the Convention also require by implication that an efficient and independent judicial system should be set in place by which the cause of a murder can be established and the guilty parties punished (see mutatis mutandis, Armani Da Silva v. the United Kingdom [GC], no. 5878/08, § 229, 30 March 2016 and Mastromatteo [GC], cited above, § 89).
41. The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, §§ 69 and 71, ECHR 2002‑II).
42. Turning to the present case, the Court notes that it appears that the Italian authorities swiftly began and completed a criminal investigation satisfying the above criteria, and that N.F. was convicted at first instance of the applicants’ father’s murder and sentenced to life imprisonment. In addition, he was obliged to compensate the applicants for non-pecuniary damage (see paragraph 17 above).
43. The next question which arises in the instant case is whether, in addition to punishing the perpetrator, the State had a further positive obligation to investigate whether there was criminal responsibility on the part of any of the State officials involved (see Branko Tomašić and Others v. Croatia, no. 46598/06, § 64, 15 January 2009, and Maiorano and Others v. Italy, no. 28634/06, § 127, 15 December 2009).
44. In this regard, the applicants alleged that, despite the death of their father having occurred under the responsibility of State agents, the investigation into their responsibility had not been effective, as the investigating judge had disregarded clear and fundamental sources of evidence that could have led to the identification of the responsible authorities. In particular, they claim that the investigating judge refused to secure the acquisition, by the public prosecutor’s office, of N.F.’s telephone records. In their view (see paragraph 20 above), those records could have helped to establish the date on which the public authorities had become aware of N.F.’s presence in the area where the murder occurred.
45. The Court reiterates that it assesses compliance with the procedural requirement of Article 2 on the basis of several essential parameters: the adequacy of the investigative measures, the promptness and reasonable expedition of the investigation, the involvement of the deceased person’s family and the independence of the investigation. These elements are inter-related and each of them, taken separately, does not amount to an end in itself. They are criteria which, taken jointly, enable the degree of effectiveness of the investigation to be assessed (see mutatis mutandis Armani Da Silva v. the United Kingdom [GC], no. 5878/08, §§ 229-239, 30 March 2016, and Mazepa and Others v. Russia, no. 15086/07, § 70, 17 July 2018).
46. Turning to the present case, the Court notes that the prosecuting authorities did not remain passive and a criminal investigation was initiated promptly as soon as the applicants filed their complaint on 10 May 2017. The public prosecutor’s office secured evidence from M.R. and collected all the information available to the law enforcement agencies and to the local governments in relation to the perpetrator’s presence in the zone (see paragraph 19 above). The applicants had the chance to challenge the findings of the public prosecutor’s office and to ask for new evidence to be secured.
47. The Court observes that the investigating judge thoroughly analysed the evidence collected by the public prosecutor’s office and concluded that, even if the authorities had known that N.F. had absconded to the area of the murder, since the perpetrator had been on the run and had had no specific target, it would have been unreasonable to expect from them to suspend the environmental guard service. With an extensively reasoned decision, the investigating judge therefore concluded that the proposed evidence was irrelevant (see paragraph 23 above).
48. The Court finds that the investigating judge’s decision, in particular with regard to the irrelevance of the requested evidence, was based on a thorough, objective and impartial analysis of all relevant elements (see Armani Da Silva v. the United Kingdom [GC], cited above, § 234). The Court is not persuaded by the applicants’ submission that there have been significant oversights or omissions nor that the domestic authorities failed to follow an obvious line of inquiry, which undermined to a decisive extent the investigation’s ability to establish the circumstances of the case and the identity of those responsible.
49. In the light of these considerations, the Court considers that the procedural requirements under Article 2 of the Convention have been satisfied.
50. The applicants’ complaint under the procedural limb of Article 2 must therefore be rejected as manifestly ill-founded, pursuant to 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 19 December 2019.
Renata DegenerAleš Pejchal
Deputy RegistrarPresident
Full & Egal Universal Law Academy