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JACKIEWICZ v. POLAND

Doc ref: 23980/94 • ECHR ID: 001-2351

Document date: October 18, 1995

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JACKIEWICZ v. POLAND

Doc ref: 23980/94 • ECHR ID: 001-2351

Document date: October 18, 1995

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 23980/94

by Stanislawa JACKIEWICZ

against Poland

The European Commission of Human Rights (Second Chamber) sitting

in private on 18 October 1995, the following members being present:

Mr. H. DANELIUS, President

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

Ms. M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 15 December 1993

by Stanislawa JACKIEWICZ against Poland and registered on 26 April 1994

under file No. 23980/94;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Polish citizen, born in 1926. She is a

retired nurse, residing in Kraków.

The facts of the case, as submitted by the applicant, may be

summarised as follows:

On 19 June 1992 the applicant's 90-year-old mother was admitted

to Kraków State hospital with cardiac insufficiency. On 20 June 1992

her condition improved after she had been given an intravenous drip.

On 21 June her condition deteriorated rapidly and on 22 June 1992 she

died.

The applicant filed a complaint with the Chamber of Physicians

(Izba Lekarska) against a chief physician of the ward alleging that her

mother had died as a result of negligence, a medical experiment carried

out in the course of the treatment and of poisoning.

On 24 February 1993 the Attorney General for professional

liability (Rzecznik Odpowiedzialnosci Zawodowej) terminated the

investigations of the case considering that no professional misconduct

had been established. He stated that the applicant's mother had been

admitted to the hospital with cardiac insufficiency and generalised

arteriosclerosis. She had been given cardiac and dehydrating

medicines. In addition, she had been given an intravenous drip, as she

could not eat. The applicant had not adduced any specific evidence to

substantiate her allegations other than her mother's death. The

Attorney General considered that the lack of recovery of a 90-year-old

patient with cardiac insufficiency was a normal phenomenon which would

not in itself justify a suspicion of malpractice or poisoning. The

treatment adopted was typical of that used in similiar cases and the

allegation of a "medical experiment" could not be seriously considered.

On the applicant's request no dissection had been performed. In the

same request the applicant had stated that she did not have any

objections to the medical treatment which her mother had received.

On 16 August 1993 the Court of the National Chamber of Physicians

upheld this decision.

COMPLAINTS

The applicant complains that her mother died as a result of

negligence and poisoning by the physicians. She complains of the

unfairness and the outcome of the proceedings before the Chamber of

Physicians, which cleared the chief physician of liability for her

mother's death, disregarding all her arguments.

THE LAW

1. The applicant complains that her mother died as a result of

negligence and poisoning by the physicians. The Commission notes that

the death occurred on 22 June 1992.

The Commission recalls that Poland recognised the competence of

the Commission to receive individual applications "from any person,

non-governmental organisation or group of individuals claiming to be

a victim of a violation of the rights recognised in the Convention

through any act, decision or event occurring after 30 April 1993". The

Commission is not competent to examine complaints relating to

violations of the Convention by acts, decisions or events that have

occurred prior to this date.

Therefore, even assuming that the death of the applicant's mother

due to allegedly wrong treatment in a State hospital could raise an

issue under Article 2 (Art. 2) of the Convention, the Commission

observes that the facts alleged, as they occurred before 30 April 1993,

are outside its competence ratione temporis and therefore the

applicant's complaints in this respect must be rejected as being

incompatible with the provisions of the Convention within the meaning

of its Article 27 para. 2 (Art. 27-2).

2. The applicant complains of the unfairness and the outcome of the

proceedings before the organs of the Chamber of Physicians, which

cleared the chief physician of all liability for her mother's death,

disregarding all her arguments. As the final decision was given after

the date from which Poland has recognised the right of individual

petition, the Commission cannot reject this complaint as being outside

its competence ratione temporis. The Commission has therefore examined

whether the impugned procedure comes within the scope of Article 6

para. 1 (Art. 6-1) of the Convention, which states, insofar as

relevant:

"In the determination of his civil rights and obligations or of

any criminal charge against him, everyone is entitled to a fair

hearing... "

However, the Commission notes that the applicant did not choose

to institute proceedings before a civil court in order to claim

compensation. Instead, she instituted proceedings concerning the

professional liability of the physician. The Commission considers that

these proceedings were by their nature disciplinary in character and

did not concern the determination of the applicant's civil rights and

obligations or of any criminal charge against her. Therefore Article 6

(Art. 6) of the Convention is not applicable to the proceedings at

issue.

It follows that this part of the application is incompatible

ratione materiae with the provisions of the Convention within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber President of the Second Chamber

(M.-T. SCHOEPFER) (H. DANELIUS)

LEXI

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