Last Updated on May 16, 2021 by LawEuro
Information Note on the Court’s case-law 251
May 2021
Penati v. Italy – 44166/15
Judgment 11.5.2021 [Section I]
Article 2
Article 2-1
Effective investigation
Effective criminal proceedings concerning the killing of a child during a meeting with his father organised by the authorities: no violation
Article 34
Victim
Victim status recognised in respect of the complaint concerning the ineffectiveness of the investigation into a child’s killing, despite a friendly-settlement award in the civil proceedings
Facts – The applicant’s son, who was eight years old at the time of the events, was killed by his father during a “protected” contact session between father and son on public premises belonging to the municipal authority. The child was at that time in the care of the social welfare department, which was responsible for arranging the contact sessions, in a context of heightened conflict between the child’s parents.
Law – Article 2 (procedural):
(a) Admissibility:
Having accepted a friendly-settlement award of EUR 100,000 in the civil proceedings against the cooperative which employed S.P., the supervisor present when the child was killed, and against the municipality, and having waived any type of action against the other parties to the friendly‑settlement agreement, the applicant could no longer claim victim status in respect of her complaint under the substantive limb of Article 2.
The particularity of the present case lay in the fact that at the time of the killing the applicant’s child had been in the care of a State agency, the municipal authority, which was responsible for arranging the contact sessions between father and son in a protected environment and for providing the requisite supervision to prevent any harm occurring. The contact session in question, having taken place on public premises, had therefore resulted from a decision taken by the public authority alone and had been arranged exclusively by it.
The Court’s case-law in this sphere required strict application of the obligation to conduct an official criminal investigation meeting the minimum threshold of effectiveness. In previous cases the Court had attached crucial importance to the fact that the victims were under the responsibility of the State, notwithstanding the award made in the civil proceedings, which concerned only the substantive aspect of the complaint.
The present case therefore concerned a situation in which the judicial response required was criminal in nature, and the applicant had not lost her victim status with regard to the procedural aspect of the Article 2 complaint.
Furthermore, the applicant’s victim status had to be assessed in the light of her complaint under the procedural limb of Article 2. She did not allege that a particular individual or entity had been responsible for the death of her son, but complained of the ineffectiveness of the investigation in the wider sense, in so far as it had failed to reconstruct the events and to identify the persons responsible.
Viewed from that perspective, the subject matter of the friendly-settlement agreement – the only other parties to which had been the cooperative employing S.P., who had been acquitted at every stage of the proceedings, and the municipal authority – did not correspond to the applicant’s complaints before the Court. Moreover, in point 4 of the agreement the applicant had reserved the right to apply to the courts outside Italy “regarding the possible responsibility of individuals, entities or institutions other than those that [were] parties to the agreement”.
Against that background, even if they had continued on a contentious basis it was unlikely that the civil proceedings brought by the applicant, in which her claims had already been rejected at first instance and which had been pending on appeal, would have elucidated all the facts of the case and identified the persons responsible, as required by Article 2.
Lastly, the Government had specified that the fact that the applicant had waived any right to compensation following the agreement did not in itself entail a loss of victim status.
(b) Merits:
The applicant had been able to submit her complaints to the courts via the remedies available to her in domestic law in order to shed light on the causes of her child’s death. She had lodged her complaint with the District Court in March 2009. During the investigation the police had questioned numerous witnesses at the prosecutor’s request. Those interviews had been followed by a report in October 2009 and had been supplemented by the testimony obtained by the applicant’s counsel. Furthermore, the applicant had given evidence in person during the proceedings and had been able to supplement her complaint.
In the light of all the evidence obtained, the first-instance court, in a judgment of February 2012, had acquitted the three individuals identified by the applicant as the persons mainly responsible for the events. The court took the view that the materialisation of the risk had not been foreseeable in this case and that the responsibility of the social services employees had been confined to ensuring the child’s proper development and had not extended to his physical safety.
Following the Court of Appeal judgment of July 2013 which found just one person criminally liable, the Court of Cassation had quashed that judgment without ordering a rehearing and, on the basis of essentially the same arguments as the first-instance court, had acquitted the individual concerned.
The criminal proceedings in issue had lasted for four years across three levels of jurisdiction and thus satisfied the requirement of promptness under Article 2.
As to the effectiveness of the investigation, the authorities had taken the reasonable steps available to them to secure the evidence concerning the events. Evidence had been taken from numerous witnesses, an autopsy had been performed on the bodies of the child and the father as well as a toxicological examination in the latter’s case, and the authorities had had the reports necessary for an assessment of the facts, including reports from the social services and psychological expert reports concerning the applicant and the child’s father.
In so far as the obligations incumbent on the respondent State were an obligation of means, not of result, the fact that the three defendants had been acquitted did not suffice in itself to find that the criminal proceedings concerning the child’s death had failed to satisfy the requirements of Article 2.
Furthermore, the civil proceedings brought by the applicant had ended with the signing of a friendly-settlement agreement between the parties in October 2017, and a substantial sum had been awarded to her.
Conclusion: no violation (unanimously).
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