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You are here: BAILII >> Databases >> European Court of Human Rights >> DZIECIAK v. POLAND - 77766/01 [2008] ECHR 1653 (9 December 2008) URL: http://www.bailii.org/eu/cases/ECHR/2008/1653.html Cite as: [2008] ECHR 1653

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FOURTH SECTION

CASE OF DZIECIAK v. POLAND

(Application no. 77766/01)

JUDGMENT

STRASBOURG

9 December 2008

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Dzieciak v. Poland,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

Nicolas Bratza, President,
Lech Garlicki,
Giovanni Bonello,
Ljiljana Mijović,
David Thór Björgvinsson,
Ledi Bianku,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,

Having deliberated in private on 18 November 2008,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

A.  The criminal proceedings against the applicant

B.  The applicant's state of health during his detention

“In the instant case, [the applicant] was arrested on 17 September 1997 and detained on remand on 18 September 1997 by the decision of the Warsaw District Court.

On 9 May 2001 the pre-trial detention of 22 co-accused was extended until 11 October 2001. The procedural grounds therefore justify the extension of detention also with respect to [the applicant] until 11 October 2001. Moreover, there are no grounds for lifting his pre-trial detention under Article 259 of the Code of Criminal Procedure.

As [the applicant's] pre-trial detention has lasted for over 3 years and 6 months, it is necessary to schedule the date of the hearing and to plan the trial so that the provisions of the [Polish Code of Criminal Proceedings] and Article 6 of the [Convention] are respected - that is, the right to a trial within a reasonable time.”

C.  The events of September and October 2001

“16. The Panel's decision -

It is necessary to change the preventive measure.

17. The grounds for the decision -

The patient requires surgical treatment at the Anin Institute of Cardiology. The date of admittance to the Institute is scheduled for 26 October 2001. Further ... detention is a threat to the patient's health.”

This decision of the Medical Panel was not sent to the trial court until a later date (see paragraph 44 below).

“The prisoner's complaints:

Has been treated for many years for coronary thrombosis, hypertension. Had suffered heart attacks. Recent effort-related chest pain.

Established during examination:

Conscious, sound blood circulation and respiration ...

Diagnosis:

Ischaemic heart disease, has had heart attacks, currently has relatively sound blood circulation. Had pneumonia.

Conclusions:

At present he can participate in the court's hearings. The patient was examined by the Medical Panel on 1 October 2001.”

D.  The events of 22 October 2001 and the death of the applicant

1.  The account of the applicant's representative

2.  The Government's account

3.  Uncontested facts

E.  The investigation into the applicant's death

On the same date the prosecutor questioned a doctor working at the prison hospital, who was consulted by the applicant in 1997, on two occasions in 1998, on one occasion in 1999 and on 2 July 2001.

“On 27 June 2001 a letter was sent to the detention centre with a request to stop administering aspirin to Mr Dzieciak; it also set the date of his admittance to the Institute for 6 July 2001. The patient did not show up. Again the patient was invited for 21 September 2001 – he did not turn up. The third summons was for 26 October 2001 – he did not show up. We received information that the patient had died on 25 October 2001 (we received this information from a judge). As far as I know the patient did not show up because he had not obtained leave from the detention centre, and we had not agreed to conduct the operation in the presence of guards as we had no conditions for that (moreover, we had repair work going on at that time).”

The witness also stated that the applicant's wife, who had apparently learned about the planned date of the operation, had informed the hospital administration about the difficulties experienced by the applicant in obtaining leave from the detention centre. The hospital's administration had contacted the Mokotów Detention Centre and learned that the decision on whether or not to grant the leave would be taken before 26 October 2001. The doctor also confirmed that a judge from the Regional Court had called the hospital on 22 October 2001, enquiring whether the applicant had an operation scheduled and saying that a fax with this information had been sent to the court.

“1.  Was the death of Zbigniew Dzieciak a consequence of:

- unsuccessful medical treatment for which nobody can be held responsible (niezawinione niepowodzenie lekarskie),

- medical malpractice,

- failure to apply due diligence during his medical treatment at the Mokotów Detention Centre and hospital in Lindley Street,

- other circumstances, different from the above?

2.  Did the state of health of Zbigniew Dzieciak allow him to remain in the detention centre and to participate in the trial, including lengthy court hearings?”

“...in answer to question no. 1, we consider that [the applicant's] death was the consequence of unsuccessful medical treatment for which nobody could be held responsible. Having analysed the file, we find that there was no medical malpractice during the period between the applicant's arrest and his death. On the basis of the submitted documents we cannot perceive any lack of diligence during his treatment in the detention centre and in hospital in Lindley Street. We have, however, reservations about the fact that the date of the applicant's cardio-surgical intervention was rescheduled twice (a conclusive elucidation of the grounds for this 'postponing' is not within the competence of the undersigned experts). Nevertheless, the type and extent of changes in the heart muscle, as established by the post-mortem examination, do not allow [us] to conclude if, and to what extent, the surgery would have led to improvement in the functioning of the applicant's left ventricle of the heart.

Ad 2.

In response to the second question, it should be noted that when the applicant's health was clearly deteriorating and in connection with the approaching surgery, the Medical Panel gave a decision on the necessity of changing the preventive measure, as a continued stay in detention constituted a threat to the patient's health. On the basis of the documents collected, it is not possible to establish the period when medical indications appeared indicating a need to change the preventive measure.

We believe that it is impossible to establish beyond doubt a causal link between the deterioration in the applicant's health and his participation in the trial.”

“On 12 November 2001 the Helsinki Committee informed the District Prosecutor of the possibility that an offence had been committed under Article 231 or 160 of the Criminal Code. It appears from the request that on 22 October 2001 the applicant was called from his cell for transferral to the court hearing, and that his state of health subsequently deteriorated. Attempts were made until evening to resuscitate him in the hospital of the detention centre. In the evening he was taken to hospital in Lindley Street where, on 24 October 2001, he died.

Following the post-mortem examination the expert from the Warsaw Medical Academy established that the cause of [the applicant's] death had been acute coronary insufficiency, given the advanced stage of [his heart disease]. In the expert's opinion there was no evidence that would allow [him] to establish that the applicant's pneumonia had had a bearing on his death. [The Head of the Prison Hospital] testified that [the applicant] had been on her ward once – he was admitted on 8 August 2001 with symptoms of pneumonia and was released on 10 September 2001 in good condition. He was again admitted to the hospital on 22 October 2001 and he was transferred to hospital in Lindley Street after 5.20 p.m.

An expert opinion from the Gdańsk Medical Academy was ordered for the purpose of establishing the circumstances of [the applicant's] death.

From the submitted expert opinion it appears that the applicant's death was a consequence of unsuccessful medical treatment for which nobody could be held responsible. Having analysed the file the experts were unable to find evidence of medical malpractice during the period between the applicant's arrest and his death, could not perceive any [missing: lack of diligence] during his treatment in the detention centre and subsequently in hospital in Lindley Street. In the experts' view it had not been possible to establish beyond doubt a causal link between the deterioration in the applicant's health and his participation in the trial.

In the light of the above it must be established that the evidence gathered does not allow the conclusion that [the applicant's] death was a consequence of the actions or omissions of third persons.

Accordingly it has been decided as above.”

“Taking into account the above circumstances, and the fact that it was not possible to establish a causal link between the applicant's participation in the trial [and the deterioration in his health] or to establish whether, and to what extent, the surgery would have led to an improvement in the functioning of the applicant's left ventricle of the heart, it must be concluded that the prosecutor was right in finding no evidence in the circumstances of the instant case pointing to the commission of an offence, and that the prosecutor's decision was based on Article 7 of the Code of Criminal Procedure. Accordingly, the impugned decision shall be upheld.”

F.  The civil proceedings for compensation

II.  RELEVANT DOMESTIC LAW

Preventive measures, including detention on remand

The Code sets out the margin of discretion as to the continuation of a specific preventive measure. In so far as relevant, Article 257 provides:

“1.  Pre-trial detention shall not be imposed if another preventive measure is sufficient.”

The relevant part of Article 259 provides:

“1.  If there are no special reasons to the contrary, pre-trial detention shall be lifted, in particular if depriving an accused of his liberty would:

(1)  seriously jeopardise his life or health; or

(2)  entail excessively harsh consequences for the accused or his family.”

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

After his death, the applicant's wife complained that her husband had died in custody as a result of inadequate and belated medical assistance and that the authorities had contributed to his death. The Court will examine the complaints from the standpoint of Article 2 of the Convention, the first sentence of which provides:

“1.  Everyone's right to life shall be protected by law.”

A.  Admissibility

B.  Merits

1.  The alleged failure to protect the applicant's life

(a)  The parties' submissions

(b)  The Court's assessment

i.  General principles

Although the Convention cannot be construed as laying down a general obligation to release detainees on health grounds, it nonetheless imposes an obligation on the State to protect the physical well-being of persons deprived of their liberty, for example by providing them with the requisite medical assistance (see, under Article 3 of the Convention, Hurtado v. Switzerland, 28 January 1994, § 79, Series A no. 280-A).

ii.  Application of the general principles in the present case

Finally, the third notification for surgery, scheduled for 26 October 2001, was transmitted to the detention centre directly by the applicant's lawyer. However, the applicant died before the date in question.

As regards the days preceding 22 October 2001, the Court observes that it does not seem to be contested by the Government that on 16, 18 and 19 October 2001 the applicant attended the hearings in his case and therefore had no access to a doctor, as he had remained outside the detention centre during the duty hours of the doctors from the hospital wing (see paragraph 85 above).

The Court concludes that the grounds given by the domestic authorities were particularly unsatisfactory given the serious state of the applicant's health, and could not justify the overall period of the applicant's detention, which exceeded four years. Moreover, in the light of the circumstances of the case the Court considers that the applicant's health was found to be providing more and more cause for concern and to be increasingly incompatible with detention.

There has accordingly been a violation of Article 2 of the Convention on account of the Polish authorities' failure to protect the applicant's life.

2.  The alleged inadequacy of the investigation

(a)  The parties' submissions

(b)  The Court's assessment

“...on 22 October 2001 the applicant was called from his cell for transferral to the court hearing, and his state of health subsequently deteriorated. Attempts were made until evening to resuscitate him in the hospital of the detention centre. In the evening he was taken to hospital in Lindley Street where, on 24 October 2001, he died.”

However, such a course of the events is in contradiction with the evidence given by the witnesses during the investigation (see paragraph 57 above). The prosecutor failed to establish whether the applicant was taken to the court room that morning, what exactly happened in the court building, why the ambulance brought him back to the detention centre and finally what happened before the applicant was brought unconscious from his cell at 3.45 p.m. The prosecutor failed to refer to the witness statements and to assess their accuracy, or to hear other witnesses such as prison guards, the applicant's cell mates or the ambulance team. The Court reiterates that the failure to establish the events of the last hours before the applicant lost consciousness on 22 October 2001 was crucial for an adequate assessment of whether the applicant received proper medical care on that day and whether the authorities had contributed to his death on 25 October 2001.

There has accordingly been a violation of Article 2 of the Convention in that respect.

II.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION

A.  Articles 3 and 5 § 3 of the Convention

B.  Article 6 of the Convention

“1.  The Court may only deal with the matter ... within a period of six months from the date on which the final decision was taken...”

It follows that this part of the application has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

III.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A.  Damage

B.  Costs and expenses

C.  Default interest

FOR THESE REASONS, THE COURT

(a)  that the respondent State is to pay the applicant's wife, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 20,000 (twenty thousand euros) in respect of non-pecuniary damage, to be converted into Polish zlotys at the rate applicable at the date of settlement, plus any tax that may be chargeable;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Done in English, and notified in writing on 9 December 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Lawrence Early Nicolas Bratza
Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the dissenting opinion of Judges Garlicki and David Thór Björgvinsson is annexed to this judgment.

N.B.
T.L.E.

PARTLY DISSENTING OPINION OF JUDGES GARLICKI AND DAVID THÓR BJÖRGVINSSON

We fully concur with the finding of a violation of the substantive aspect of Article 2. It is obvious that when the State decides to keep a sick person in prison, it must provide him or her with proper medical care.

We have more problems with the procedural aspect of Article 2. In particular, it is difficult for us to accept that there was no effective investigation into the applicant's death.

The investigation took place promptly, was carried out by an authority independent from the Prison Department and involved some participation of family members.

We do not share the opinion that “the domestic authorities failed to establish the exact course of the events” (paragraphs 99 and 107). In our view, the investigation allowed most of the facts to be established, particularly those relevant to the events of 22 October 2001. The description of those facts contained in paragraphs 9 to 48 of the judgment – that had to be based upon the investigation file – is fairly comprehensive. The investigating authorities acted with sufficient diligence: all those who could contribute to the establishment of facts had been heard by the prosecutor and expert opinions had been ordered and examined. It is true that other witnesses could also have been summoned (see paragraph 107 in fine), but we are not convinced that their testimony could have adduced relevant information. Prison guards and cell mates could confirm that the applicant had been very sick, but this was also established by other witnesses as well as by experts.

Article 2 requires that an effective investigation should be carried out in all situations where there has been a substantive violation of Article 2. But it cannot be interpreted in such a way that an investigation is only effective when it results in a criminal charge against individual State agents. Criminal responsibility on the part of individual State agents may of course rightly be ruled out on the basis of principles differing from those applying to the international-law responsibility of the Convention States. This is particularly true in the circumstances of this case where State responsibility is not engaged on the basis of the actions of identifiable individual State agents but rather by reference to the lack of quality and promptness of the medical care provided, the lack of cooperation and coordination between the various State authorities and other factors engaging different authorities and many individuals contributing to the breach (see paragraph 101 for further details). Although such reasons are sufficient to engage State responsibility under the Convention they may not be sufficient to charge and convict any individual person. We have the impression that in this case the majority have forgotten about this difference.