European Court of Human Rights

 

FIRST SECTION

CASE OF KAMIŃSKA AND OTHERS v. POLAND

(Application no. 4006/17)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

3 September 2020

 

This judgment is final but it may be subject to editorial revision.

In the case of Kamińska and Others v. Poland,

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

          Linos-Alexandre Sicilianos, President,
          Krzysztof Wojtyczek,
          Armen Harutyunyan, judges,
and Renata Degener, Deputy Section Registrar,

Having regard to:

the application (no. 4006/17) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Polish nationals, Ms Monika Kamińska (“the first applicant”), Ms Giselle Maria Kamińska (“the second applicant”) and Ms Michelle Kamińska (“the third applicant”), on 4 January 2017;

the decision to give notice of the application to the Polish Government (“the Government”);

the parties’ observations;

Having deliberated in private on 7 July 2020,

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

INTRODUCTION

1.  The case concerns the death of the applicants’ partner and father, shortly after release from prison. It concerns the alleged lack of adequate medical care in prison and the issue of the lack of diligence in the conduct of domestic proceedings instituted by the applicants in that regard.

THE FACTS

2.  The applicants, a mother and two daughters, were born in 1981, 2005 and 2006 respectively and live in Warsaw. They had been granted legal aid and were represented by Ms M. Gąsiorowska, a lawyer practising in Warsaw.

3.  The Government were represented by their Agent, Mrs J. Chrzanowska, and subsequently by Mr J. Sobczak, of the Ministry of Foreign Affairs.

4.  The facts of the case, as submitted by the parties, may be summarised as follows.

I. Background to the case

5.  The first applicant, her partner J.F. and the second and third applicants lived in Spain and only occasionally returned to Poland. One such occasion was in December 2008.

6.  On 7 January 2009 J.F. went to the local police station in relation to a summons that he had received. On the same date he was detained pursuant to a wanted notice issued by the Warsaw District Court in order to serve a forty‑day prison sentence for failing to pay a fine imposed on him (zastępcza kara pozbawienia wolności). J.F. signed a record of the arrest in which it was stated that he was healthy and had no visible injuries. He was placed in Warsaw-Grochów Remand Centre, where he remained until 15 January 2009.

II. Medical care provided to J.F. in detention

7.  On 7 January 2009 J.F. began serving a forty-day prison sentence in Warsaw-Grochów Remand Centre. On his arrival he confirmed that he had been a cocaine user and was a heavy drinker. He also stated that he had high blood pressure but had not recently received treatment for it. It was further noted that he was 175cm tall and weighing 140kg.

8.  During a medical examination carried out on the same day, he confirmed that he had received treatment for diabetes, and had had two heart attacks. The prison doctor noted in his medical records: “no ailments; drug addiction since ten years; was not beaten; does not report any surgeries; treats hypertension with Prestarium; obesity; no significant changes during a [medical] examination”. He further prescribed him medicine in order to lower his blood pressure and ordered a consultation with a specialist in internal medicine.

9.  On 12 January 2009 J.F. had a chest X-ray, which showed that his heart was enlarged and that he had pulmonary hypertension and symptoms of venous stasis. The radiologist who performed the chest X-ray recommended that J.F. consult a specialist in internal medicine.

10.  On 13 January 2009, during a consultation with a psychologist, J.F. said that he was sleeping and eating reasonably well.

11.  On 14 January 2009 J.F. informed the nurse that he had sleeping problems and slept during the day. On the same day he was examined by the prison doctor, who noted that his breathing and circulation were fine. His blood pressure was 145/80 and he had a heart rate of 70.

12.  On 15 January 2009 the nurse informed the prison doctor of J.F.’s worsening state of health. On the same day he was taken to the emergency department of the Central Clinical Hospital of the Ministry of the Interior and Administration in Warsaw (Oddział Ratunkowy Centralnego Szpitala Klinicznego MSWiA) (“the Clinical Hospital”), where examinations were carried out; he was then transferred to the Institute of Cardiology in Anin. An aneurysm was found in his thoracic aorta. On the same day he urgently underwent surgery.

13.  On 16 January 2009 the Warsaw District Court released J.F. from pre-trial detention on health grounds. On the same date the Warsaw Regional Court granted him leave from serving his sentence (przerwa w odbywaniu kary) and ordered his immediate release. The courts noted that J.F. was in intensive care, on circulatory and respiratory support, and that his medical prognosis was uncertain.

14.  On 17 January 2009 J.F. regained consciousness. As he was suffering from respiratory insufficiency, he was put on a ventilator.

15.  On 22 January 2009 he underwent further surgery. However, he was still suffering from renal and cardiac insufficiency. On 25 January 2009 he died at the Institute of Cardiology.

III. Civil proceedings for compensation

16.  On 16 December 2009 the applicants lodged a civil action for compensation and an annuity from the State Treasury by bringing a claim against the Director General of the Prison Service. They complained that J.F. had died in custody on 25 January 2009 as a result of inadequate and belated medical assistance and inadequate conditions of detention. They further noted that given his general state of health, he should not have been detained.

17.  During the proceedings, the Warsaw Regional Court ordered an expert opinion. The expert (a specialist in internal medicine) stated in his opinion of 30 January 2013 that the information on J.F.’s state of health included in his medical records from Warsaw-Grochów Remand Centre was scarce. The records did not contain any information about J.F.’s condition before his arrival at the Remand Centre. There was no medical documentation confirming that he had had two heart attacks and had been diagnosed with diabetes. The expert confirmed that J.F. had clearly been treated for hypertension. In his view, the condition suffered by him - an aneurysm and consequently aortic dissection - could have been caused by many years of inaptly treated chronic hypertension and using cocaine.

18.  The expert concluded that it was not possible to assess the quality of the medical care provided to J.F. in prison on the basis of his medical records. There was no information on whether he had received and taken any medication, or about the monitoring of his arterial hypertension. There was no indication if he had reported the deterioration of his state of health or whether his transfer to the emergency department of the Clinical Hospital had resulted from a sudden deterioration in his health or whether it had been a consequence of the chest X-ray conducted on 12 January 2009.

19.  On 28 August 2014 the expert submitted a supplementary opinion. On the basis of medical records from Costa Del Sol Hospital in Spain, the expert confirmed that J.F. had been treated for hypertension and dilated cardiomyopathy, a condition most often caused by excessive drinking. The expert also reiterated that it was impossible to determine J.F.’s state of health during the first days of his detention, given the scarce prison medical records. Most probably, J.F. had not consulted the prison doctor as he had not complained of any specific health issues.

20.  The Warsaw Regional Court also heard evidence from a number of witnesses, including J.M., who had been J.F.’s cellmate. He stated that J.F.’s health had steadily worsened and that he had probably only been given vitamins. He also stated that there had been overcrowding and inadequate living conditions in Warsaw-Grochów Remand Centre. However, according to the court, the credibility of the statements given by J.M. was not supported by any other evidence.

21 .  On 30 March 2015 the Warsaw Regional Court gave judgment and dismissed the applicants’ claim. The court found that there had been no medical negligence in the case concerned. It held, referring to the expert’s opinion that, J.F.’s heart had been damaged as a consequence of his lifestyle and inaptly treated diabetes and hypertension. As confirmed by the medical records from the Spanish hospital, J.F. had taken his medication irregularly, had been a heavy drinker and a smoker. In the expert’s opinion, J.F.’s death could have happened outside the prison facility as the aortic aneurysm had occurred suddenly. Previous heart examinations had not disclosed this condition. In any event, given the patient’s obesity, diagnostic had been very difficult.

22 .  The court dismissed the applicants’ claim under Article 445 of the Civil Code (for the protection of J.F.’s personal rights) on the grounds that they had no legal standing. Under that provision, a claim for compensation passed to the heirs only if it had been acknowledged in writing or if the court action was brought when the party was still alive. The court noted that, under Article 446 § 3 of the Civil Code, relatives of a deceased could be awarded appropriate compensation if their situation had significantly deteriorated as a result of the person’s death. However, in the present case, as the State Treasury could not be held responsible for J.F.’s death, compensation could not be awarded.

23.  The court established that J.F. had received adequate medical care in the Remand Centre. He had been examined by a doctor on his arrival, and shortly afterwards had undergone an X-ray examination. Every day a nurse had come to give him medication for his hypertension. Moreover, at the time of his arrival J.F. had not informed the prison authorities of any pains or other health issues which would have been incompatible with his detention. He had not had any medication or medical documentation on him. The court considered that J.F.’s illness had not been caused by the conditions of his detention. There was therefore no causal link between his death and the conditions of detention.

24.  The applicants appealed against this judgment. In their appeal, they submitted that the first-instance court had not justified why it had disregarded the statements given by J.M. They also claimed that the Regional Court had not analysed the actions taken by Warsaw‑Grochów Remand Centre in detail and had considered uncritically that the check‑ups done in the prison facility had been appropriate. Lastly, they were of the view that the first-instance court had violated the provisions of the Convention by finding that the State Treasury could not be held responsible for J.F.’s death.

25.  On 7 October 2016 the Warsaw Court of Appeal dismissed the applicants’ appeal. The court agreed in principle with the Regional Court’s findings of fact and conclusions. It further held that the acts of the medical staff in the prison facility fell under the State’s liability in tort. Nevertheless, in the case concerned those acts had been conducted in accordance with the law and the applicants had not proven a causal link between them and J.F.’s death. In particular, as established by the expert, there had been no irregularities in the course of his medical diagnosis and treatment. It had not been shown that an earlier chest X-ray would have enabled detection of the aneurysm. The judgment was final as a cassation appeal was not available.

IV. Criminal proceedings

26.  On 21 October 2009 the applicants lodged a criminal complaint with the Minister of the Interior complaining about J.F’s arrest on 7 January 2009. They submitted that since J.F. had been of poor health, had suffered from a serious heart condition and had had two heart attacks, he should not have been detained and sent to prison on that date.

27.  On 11 December 2019 the Warsaw District Prosecutor refused to open an investigation. The prosecutor noted that at the time of his arrest J.F. had not complained of any health problems or had any injuries. Moreover, the arrest had been ordered in accordance with the law. On the date of his arrest J.F. had been transferred to the Remand Centre. According to the record of the arrest drawn on the same day J.F. had not informed the police officers of any health issues.

28.  This decision was served on the applicants on 21 December 2009. They did not lodge an appeal within the prescribed time‑limit of seven days.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

I. Civil Code

29.  Articles 415 et seq. of the Civil Code provide for liability in tort. Under these provisions, whoever by his or her fault causes damage to another person is obliged to redress it.

30.  Article 444 provides that, in cases of bodily injury or harm to health, a perpetrator will be liable to cover all pecuniary damage resulting from such acts.

31.  Article 445 § 1, which is applicable in the event that a person suffers a physical injury or health disorder as a result of an unlawful act or omission on the part of a State agent, reads as follows:

“... the court may award the injured person an adequate sum in pecuniary compensation for the damage suffered.”

32.  Under Article 446 § 3, a civil court may award an appropriate level of compensation to relatives of a deceased if their situation has significantly deteriorated as a result of the person’s death.

II. Medical care in prison

33.  The provisions pertaining to medical care in detention facilities and the relevant domestic law and practice are set out in the Court’s judgments in the cases of Sławomir Musial v. Poland (no. 28300/06, §§ 48‑61, 20 January 2009) and Kaprykowski v. Poland (no. 23052/05, §§ 36‑39, 3 February 2009). In particular, Article 115 of the Code of Execution of Criminal Sentences (Kodeks karny wykonawczy) (“the Code”) provides:

“1.  A sentenced person shall receive medical care, medication and sanitary items free of charge.

...

4.  Medical care is provided, primarily, by healthcare establishments for persons serving prison sentences.

5.  Healthcare establishments outside the prison system shall cooperate with the prison medical services in providing medical care to sentenced persons if necessary, in particular:

(1)  to provide immediate medical care because of a risk to the life or health of a sentenced person;

(2)  to provide specialist medical examinations, treatment or rehabilitation to a sentenced person;

(3)  to provide medical services to a sentenced person who has been granted prison leave or a temporary break in ... the sentence ...”

34.  At the material time, specific rules relating to the provision of medical services to detainees were set out in the Ordinance of 31 October 2003 on the detailed rules, scope and procedure relating to the provision of medical services to persons in confinement by healthcare establishments for persons deprived of liberty, issued by the Minister of Justice (Rozporządzenie Ministra Sprawiedliwości w sprawie szczegółowych zasad, zakresu i trybu udzielania świadczeń zdrowotnych osobom pozbawionym wolności przez zakłady opieki zdrowotnej dla osób pozbawionych wolności).

35.  A person deprived of his or her liberty was subjected to preliminary and periodic medical examinations and check-ups (section 2), and had to undergo preliminary medical examinations, such as a review of his or her medical history and a physical examination as soon as he or she arrived at a detention facility (section 3). Moreover, within fourteen days of arrival a person deprived of his or her liberty had to have a chest X‑ray and a dental examination.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

36.  The applicants complained under Article 2 of the Convention that the authorities had failed to provide J.F., their partner and father, with adequate medical care while in detention. They also complained, under the same provision, that the judicial proceedings instituted by them in that regard, had not been effective. The relevant part of Article 2 of the Convention provides as follows:

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

A.    Admissibility

1.    Exhaustion of domestic remedies

37.  The Government submitted firstly that the applicants had failed to exhaust the available domestic remedies. In particular, they had not lodged a criminal complaint against the prison medical staff involved in J.F.’s treatment, alleging inadequate medical care. The complaint lodged with the Minister of the Interior had only concerned his arrest and, in any event, they had not appealed against the prosecutor’s decision refusing to open an investigation.

38.  The applicants argued that they had availed themselves of the opportunity to seek redress under the relevant provisions of the Civil Code. In their view, a civil action for damages had been an appropriate remedy as it had covered all issues relating to the alleged lack of adequate medical care in prison in their case.

39.  The Court observes that the Polish legal system provides, in principle, two avenues of recourse for victims alleging illegal acts attributable to the State or its agents, namely civil proceedings and a request to the prosecutor to open a criminal investigation. The applicants initially lodged a criminal complaint relating to the alleged irregularities at the time of J.F.’s arrest but eventually chose to bring a civil action for compensation (see paragraphs 16 and 26 above).

40.  The Court notes that the decision to institute civil proceedings in the present case does not appear unreasonable. J.F. died ten days after his release from detention (see paragraphs 13 and 15 above). Therefore, at the time of his death he was not in custody and the authorities were under no obligation to open, of their own motion, an official probe in order to establish whether medical negligence might have been at stake (see, conversely, Makharadze and Sikharulidze v. Georgia, no. 35254/07, 87, 22 November 2011).

41.  The civil proceedings instituted by the applicants, if successful, could have led to the establishment of the extent of liability for the death of the applicants’ partner and father and the award of appropriate redress (compare Kudra v. Croatia, no. 13904/07, § 95, 18 December 2012). In these circumstances, the fact that the applicants did not lodge a criminal complaint relating to the allegedly inadequate medical care provided to J.F. in prison cannot be held against them when assessing whether they exhausted domestic remedies. The Court reiterates in this connection that in the event of there being a number of domestic remedies which can be pursued, the person concerned is entitled to choose, in order to satisfy the requirement of exhaustion of domestic remedies, a remedy which addresses his or her essential grievance. In other words, when one remedy has been pursued, the use of another remedy which has essentially the same objective is not required (see Nicolae Virgiliu Tănase v. Romania [GC], no. 41720/13, § 177, 25 June 2019).

42.  In the light of the above considerations, the Court holds that the Government’s objection on the grounds of non-exhaustion of domestic remedies must be dismissed.

2.    Abuse of the right of application

43.  The Government secondly argued that the application was inadmissible for abuse of the right of application. They submitted that the applicants had attempted to mislead the Court by claiming that no criminal proceedings had been instituted in the present case. The Government stressed that the applicants’ representative stated in her letter to the Court of 20 February 2017 that “the [first] applicant [had] not instituted criminal proceedings as civil proceedings [had been] an adequate remedy in her and her daughters’ situation”.

44.  The Court reiterates in that regard that an application may only be rejected as an abuse of process in extraordinary circumstances, in particular, when it is knowingly based on untrue facts, or when incomplete and thus misleading information concerning the very core of the case has been submitted to the Court (see Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014).

45.  The Court finds that it would have been appropriate for the applicants to inform it of their criminal complaint as pointed out by the Government. However, those proceedings do not concern the core issue of the instant case, namely the failure of the domestic authorities to provide J.F. with adequate medical care while in detention and the lack of diligence in the conduct of the domestic proceedings (see paragraph 36 above). The applicants’ criminal complaint related only to J.F’s arrest on 7 January 2009 and the irregularities which had allegedly occurred on that day (see paragraph 26 above).

46.  Having regard to its case-law and the above considerations, the Court finds that the fact that in the present case the applicants did not submit information about their criminal complaint cannot be considered to constitute an abuse of the right of application within the meaning of Article 35 § 3 (a) of the Convention.

47.  It follows that the Government’s objection as to the alleged abuse of the right of petition must be dismissed.

3.    Conclusion

48.  It follows that the application is neither manifestly ill‑founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

B.     Merits

1.    The substantive aspect

(a)    The parties’ submissions

49.  The applicants argued that the domestic authorities had not provided J.F. with adequate medical care in prison. They stressed that it was undisputable that he had been a cocaine user and a heavy drinker, and that prior to his detention he had had two heart attacks. Despite the fact that he had been ill, he had been sent to prison in order to serve a forty‑day sentence. They noted that he had not undergone a chest X-ray until several days later. In the applicants’ view, given J.F.’s general state of health, this examination should have been carried out immediately after his arrest.

50.  Moreover, they stressed that on 15 January 2009, when his condition had worsened, J.F. had been transferred between hospitals - from the Remand Centre to the Clinical Hospital and eventually to the Institute of Cardiology, which had had a further serious impact on his health.

51.  Lastly, the applicants stressed that the medical records relating to J.F.’s treatment in prison were scarce and lacked important information. In that regard, they referred to the expert’s opinion of 30 January 2013 and the conclusions reached therein. In particular, they noted that it was unclear whether J.F. had received any medication in prison and whether his blood pressure had been regularly monitored.

52.  The Government submitted that the domestic authorities had taken all available measures in order to protect J.F.’s life and provide him with adequate healthcare during the whole period of his imprisonment. Immediately after his arrest he had been consulted by a doctor, had had a chest X‑ray and had been prescribed blood pressure medication. He had been visited by a nurse every day. After complaining of not being able to sleep at night, he had been urgently examined by a prison doctor, outside the doctor’s working hours.

53.  They further stressed that J.F.’s death had not been the result of the actions or negligence of the prison staff or prison medical staff but had occurred suddenly on account of his generally poor state of health (obesity and untreated hypertension). Moreover, as soon as J.F.’s health had deteriorated he had been immediately provided with medical assistance and had had two operations at one of the best cardiology hospitals in Poland ‑ the Institute of Cardiology in Anin.

54.  Lastly, the Government stressed that at the time of his death on 25 January 2009, J.F. had not been in detention, it having been revoked on 16 January 2009. Consequently, the responsibility of the State authorities could not be engaged in this regard.

(b)    The Court’s assessment

(i) General principles

55.   The Court reiterates that the first sentence of Article 2 § 1 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 L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports of Judgments and Decisions 1998-III, and Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, § 29, 19 December 2017).

56.  Those principles apply in the public-health sphere too. The aforementioned positive obligations therefore require States to make regulations compelling hospitals, whether public or private, to adopt appropriate measures for the protection of their patients’ lives. They also require an effective independent judicial system to be set up so that the cause of death of patients in the care of the medical profession, whether in the public or the private sector, can be determined and those responsible made accountable (see Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 49, ECHR 2002‑I with further references, and Fernandes de Oliveira v. Portugal [GC], no. 78103/14, § 105, 31 January 2019).

57.  In the context of prisoners, the Court has had previous occasion to emphasise that persons in custody are in a vulnerable position and the authorities are under a duty to protect their health and well‑being (see Naumenko v. Ukraine, no. 42023/98, § 112, 10 February 2004, and Dzieciak v. Poland, no. 77766/01, § 91, 9 December 2008). This implies an obligation on the authorities to provide detainees with the medical care necessary to safeguard their life (see Taïs v. France, no. 39922/03, § 98, 1 June 2006, and Huylu v. Turkey, no. 52955/99, § 58, 16 November 2006). A sharp deterioration in a person’s state of health in detention facilities inevitably raises serious doubts as to the adequacy of medical treatment there. Thus, where a detainee dies as a result of a health problem, the State must offer a reasonable explanation as to the cause of death and the treatment administered to the person concerned prior to his or her death (see Makharadze and Sikharulidze, cited above §§ 71-72, and the cases cited therein).

(ii) Application of the general principles to the present case

58.  The Court notes that from his arrest on 7 January 2009 until his release on 16 January 2009 (shortly before his death) J.F. was in the custody of the authorities, and in circumstances that could engage their responsibility. In this regard the Government submitted that since J.F. had died after his detention had been revoked the responsibility of State could not be engaged (see paragraph 54 above). The Court observes that at the time of his admission to prison J.F. was in a generally good condition (see paragraph 8 above). However, on his release he was in intensive care, on circulatory and respiratory support and his medical prognosis was uncertain (see paragraph 13 above). He died several days later and the applicants alleged that absence of proper medical care in detention had led to his death (see paragraph 49 above). Moreover, while the domestic authorities found that the applicants had not proven a causal link between the allegedly inadequate medical care in detention and J.F.’s death they confirmed that the acts of medical staff in prison had fallen under the State’s liability in tort (see paragraph 25 above).

59.  It is further not disputed that J.F. suffered from hypertension, was significantly overweight and that prior to his detention had two heart attacks (see paragraphs 8 and 49 above). The Government did not deny that the authorities had been aware of these facts. In order to establish whether or not the respondent State complied with its obligation to protect J.F’s life under Article 2 of the Convention, the Court must examine whether the relevant domestic authorities did everything that could have been required of them, in good faith and in a timely manner, to try to avert a fatal outcome (see Makharadze and Sikharulidze, cited above, § 74 and Rudevits v. Latvia (dec.), no. 47590/06, §48, 26 June 2012).The Court will thus examine whether the medical treatment received in detention by the applicants’ relative was timely and adequate (see Tarariyeva v. Russia, no. 4353/03, §§ 77-89, ECHR 2006‑XV (extracts) and compare Salakhov and Islyamova v. Ukraine, no. 28005/08, § 166, 14 March 2013).

60.  The Court observes that at the time of his arrival at Warsaw‑Grochów Remand Centre J.F. informed the authorities that he suffered from hypertension, was a heavy drinker, had been a cocaine user, had received treatment for diabetes and had had two heart attacks (see paragraphs 7 and 8 above).

61.  The Court further notes that on 12 January 2009, within several days of his arrival, J.F. underwent an X-ray examination (see paragraph 9 above). The applicants argued that given his poor state of health, this examination had been carried out too late. However, the Court does not consider the waiting period of five days for an X-ray examination to be exceptionally long. It notes in that regard that, under the relevant domestic provisions, a detainee should undergo an X-ray examination within fourteen days of arriving at prison (see paragraph 35 above). There is no information in the medical records to suggest that J.F. had submitted any complaints about his health before the date of his examination. Consequently, in the circumstances of the present case, it does not appear that the X‑ray examination should have been carried out earlier. Moreover, as established by the domestic courts it had not been demonstrated that an earlier X‑ray examination would have enabled detection of the aneurysm (see paragraph 25 above).

62.  As regards the question whether J.F.’s transfer to a civilian hospital was sufficiently prompt, the Court observes that on 12 January 2009 it was recommended that he consult a specialist in internal medicine. Subsequently, on 14 January 2009 he was examined by a prison doctor, who noted that his condition had not changed (see paragraphs 9 and 11 above). However, the following day, when J.F.’s condition worsened, he was immediately transferred, firstly to the emergency department of the Clinical Hospital in order to undergo examinations and then to a specialist hospital ‑ the Institute of Cardiology in Anin (see paragraph 12 above). The material in the case file contains nothing to indicate that J.F. himself asked for his transfer to be expedited, or that there were any objective reasons to do so. There is no basis to conclude that the doctors misjudged or disregarded the extent of the deterioration in his health. In his opinion of 30 January 2013, the expert concluded that, given the incomplete medical records, it was not possible to establish whether J.F.’s transfer to the emergency department had resulted from a sudden deterioration of his health or from the analysis of the chest X-ray carried out on 12 January 2009 (see paragraph 18 above). In view of the above, the Court cannot speculate as to whether an earlier transfer to a civilian hospital would have prevented J.F.’s death.

63.  Having regard to the above considerations, the Court does not find any manifest omission on the part of the domestic authorities allowing a finding that J.F. was not provided with adequate medical care in prison.

64.  Accordingly, there has been no violation of Article 2 of the Convention in its substantive aspect.

2.    The procedural aspect

(a)    The parties’ submissions

65.  The applicants submitted that the civil proceedings instituted by them concerning the lack of adequate medical care provided to J.F. had not been effective. They confirmed that they had not pursued the criminal proceedings resulting from their complaint concerning the irregularities at the time of J.F.’s arrest. In their view, civil proceedings had been an appropriate remedy in the circumstances of their case.

66.  The Government contended that the civil proceedings in the present case, as well as the criminal proceedings, had been effective within the meaning of Article 2 of the Convention. They had been adequate, thorough, impartial, independent and prompt and there had been a sufficient element of public scrutiny. All facts concerning the medical care provided to J.F. had been examined and an expert opinion had been obtained. Consequently, there had been no violation of Article 2 of the Convention in its procedural aspect.

(b)    The Court’s assessment

(i) General principles

67.  The Court has held on many occasions that where lives have been lost in circumstances potentially engaging the responsibility of the State, Article 2 entails a duty for the State to ensure, by all means at its disposal, an adequate investigative response, judicial or otherwise. 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 (see Calvelli and Ciglio, cited above, § 49 and Öneryıldız v. Turkey [GC], no.  48939/99 , § 91, ECHR 2004‑XII).

68.  The Court, however, reiterates that in cases where the infringement of the right to life or to personal integrity was not caused intentionally, the procedural obligation imposed by the Convention to set up an effective and independent judicial system does not necessarily require the provision of a criminal law remedy. The choice of means for ensuring the positive obligations under the Convention is in principle a matter that falls within the Contracting State’s margin of appreciation. There are different avenues for ensuring Convention rights, and even if the State has failed to apply one particular measure provided by domestic law, it may still fulfil its positive duty by other means. However, for this obligation to be satisfied, such proceedings must not only exist in theory but also operate effectively in practice (see, Calvelli and Ciglio, cited above, § 51; Byrzykowski v. Poland, no. 11562/05, § 105, 27 June 2006, and Lopes de Sousa Fernandes, cited above, §§ 21‑216 with further references).

69.  A requirement of promptness and reasonable expedition is implicit in the context of the effectiveness of the domestic proceedings set up to elucidate the circumstances of the patient’s death. Even where there may be obstacles or difficulties which prevent progress in an investigation or a trial in a particular situation, a prompt response by the authorities is vital in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in, or tolerance of, unlawful acts (see Kudra v. Croatia, no. 13904/07, § 105, 18 December 2012).

(ii) Application of the general principles to the present case

70.  The Court notes that the present case concerns the death of the applicants’ partner and father, nine days after his release from detention. It further observes that J.F’s health seriously deteriorated in detention and the applicants alleged that his death had resulted from the lack of prompt and adequate medical care provided to him in prison. The Government did not challenge the applicability of Article 2 of the Convention in the present case.

71.  In such circumstances, given the fundamental importance of the right to life guaranteed under Article 2 of the Convention and the particular weight the Court has attached to the procedural requirement under this provision, it must determine whether the domestic system provided an appropriate remedy which satisfied all of the guarantees required by the Convention (see Powell v. the United Kingdom (dec.), no. 45305/99, 4 May 2000).

72.  In that connection, the Court firstly notes that J.F. died in January 2009 and that the applicants lodged their civil action concerning his death on 16 December 2009. On 30 March 2015 the Warsaw Regional Court dismissed their claim. The proceedings came to an end on 7 October 2016 when the Warsaw Court of Appeal adopted its judgment.

73.  During the proceedings, the prison medical staff who had been involved in treating J.F. were heard. Statements were taken from J.F.’s fellow inmates and prison staff. The courts also obtained J.F.’s medical records and an expert opinion was prepared (see paragraphs 17, 19 and 20 above).

74.  The Court observes that the applicants did not challenge the independence and impartiality of the domestic authorities. The first applicant had the opportunity to participate in the proceedings and availed herself of her procedural rights. It remains to be ascertained whether the proceedings were effective in terms of being thorough and concluded within a reasonable time (see Lopes de Sousa Fernandes, cited above § 226).

75.  The Court notes that in the present case the civil proceedings lasted a total of nearly seven years (see paragraphs 16, 21 and 25 above). It took the first-instance court more than five years to deliver a judgment on the merits and the court of second instance another fifteen months to examine the applicants’ appeal. Admittedly, the determination of the question whether J.F. received adequate medical care in the Remand Centre required special knowledge in the field of medicine. At the same time no explanation has been given why the expert’s opinion was submitted to the Regional Court three years after the institution of the proceedings (see paragraphs 16 and 17 above). Furthermore, a supplementary expert opinion was only submitted a year and seven months later (see paragraph 18 above).

76.  The Court reiterates in that connection that in Article 2 cases concerning proceedings instituted to elucidate the circumstances of an individual’s death, delays such as these are a strong indication that the proceedings were defective to the point of constituting a violation of the respondent State’s positive obligations under the Convention, unless the State has provided highly convincing and plausible reasons to justify such a course of proceedings (see Kudra, cited above, § 113; Bilbija and Blažević v. Croatia, no. 62870/13, § 107, 12 January 2016, and Lopes de Sousa Fernandes, cited above, § 219). However, in the present case, the Government merely stated that the proceedings had been prompt, but failed to specify any details in that regard and did not provide any convincing and plausible reasons justifying their overall length.

77.  In these circumstances, the Court finds that the relevant mechanisms of the domestic legal system, taken as a whole, did not secure in practice an effective and prompt response on the part of the authorities consistent with the State’s obligations under Article 2 of the Convention.

78.  There has therefore been a violation of Article 2 of the Convention under its procedural limb.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

79.  Article 41 of the Convention provides:

“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

80.  The applicants claimed 150,000 Polish zlotys (PLN) (approximately 35,000 Euros) in respect of non-pecuniary damage.

81.  The Government argued that the claim was exorbitant and asked the Court to assess the issue of compensation on the basis of its recent case‑law in respect of similar cases.

82.  Taking into account all the circumstances of the present case, the Court accepts that the applicants have suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicants jointly EUR 10,000 in respect of non‑pecuniary damage.

B.     Costs and expenses

83.  The applicants, who received legal aid from the Court, did not claim any additional amount for the costs and expenses incurred before the Court.

C.    Default interest

84.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the application admissible;

2.      Holds that there has been no violation of Article 2 of the Convention in respect of its substantive limb;

3.      Holds that there has been a violation of Article 2 of the Convention in respect of its procedural limb;

4.      Holds

(a)   that the respondent State is to pay the applicants jointly, within three months, EUR 10,000 (ten thousand euros) to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable, in respect of non‑pecuniary damage;

(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;

5.      Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 3 September 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

  Renata Degener                                                          Linos-Alexandre Sicilianos
Deputy Registrar                                                                       President

 

Appendix

No.	Applicant’s Name	Birth year		Nationality	Place of residence
1	Monika KAMIŃSKA		1981	Polish	Warszawa
2	Giselle Maria KAMIŃSKA		2005	Polish	Warszawa
3	Michelle KAMIŃSKA		2006	Polish	Warszawa