FOURTH SECTION

DECISION

Application no . 78388/12 Daniel MOLGA against Poland

The European Court of Human Rights (Fourth Section), sitting on 17 January 2017 as a Chamber composed of:

András Sajó, President, Vincent A. De Gaetano, Paulo Pinto de Albuquerque, Krzysztof Wojtyczek, Egidijus Kūris, Gabriele Kucsko-Stadlmayer, Marko Bošnjak, judges, and Andrea Tamietti, Deputy Section Registrar ,

Having regard to the above application lodged on 29 November 2012,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Daniel Molga, is a Polish national who was born in 1998 and lives in Radom. He was initially represented before the Court by his mother, and subsequently by Mr T. Rowiński, a lawyer practising in Lublin. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, of the Ministry of Foreign Affairs.

A. The circumstances of the case

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

1. Background to the case and death of the applicant ’ s father

3. The applicant ’ s father, Mr Włodzimierz Molga (“W.M.”), lived with the applicant ’ s mother, Ms R.L.

4. The applicant ’ s father sold clothes at a local market. On 31 August 1998 the Radom District Court convicted him in summary proceedings of the unauthorised use of a registered trademark. It fined him 700 Polish zlotys (PLN, approximately 175 euros (EUR)), convertible to 35 days ’ imprisonment in case of default.

5. On 22 December 1998 the court decided that W.M. could pay the fine in seven monthly instalments, starting from December 1998. According to the court ’ s records, W.M. paid PLN 600 of his fine. A court bailiff instituted enforcement proceedings to recover the outstanding PLN 100, but to no avail.

6. On 8 June 2004 the Radom District Court ordered that W.M. serve a term of five days ’ imprisonment in respect of the unpaid fine. It appears that W.M. had been summoned to the hearing but did not appear.

7. W.M. was unsuccessfully summoned to surrender himself to a remand centre. On 19 October 2004 the Radom District Court ordered that he be arrested and taken to the remand centre. On 16 November 2004 at about 5 p.m. the police arrested W.M. outside his home. On 17 November 2004 at about 9 a.m. he was taken to Radom Remand Centre to serve his five ‑ day sentence.

8. At the remand centre W.M. refused a routine examination by a nurse. He was then examined by a doctor, who cleared his admission. Subsequently, W.M. was placed in a transit cell no. 4. At about 12 noon a prison guard, M.D., noticed that W.M. was lying on the floor with his belt tied around his neck. The other end of the belt was tied to a chair. The guards, M.D. and A.R., and later the nurse tried to resuscitate W.M. He was declared dead at about 12.30 p.m. W.M. was 52 at the time. A prosecutor and the police arrived at the scene later.

2. The first investigation

9. On 22 November 2004 the Radom police opened an investigation under the heading of involuntary homicide (Article 155 of the Criminal Code, hereinafter “the CC”). The investigation was later taken over by the Radom District Prosecutor.

10. On an unspecified date a post-mortem was carried out. In his report, the forensic expert concluded that th e direct cause of death had been hanging and that it could be assumed that it had been an act of suicide.

11. The prosecutor found no evidence pointing to the involvement of third parties in the incident. With regard to a possible failure to act by the prison guards, the prosecutor questioned M.D., the guard who had been supervising W.M. at the relevant time (see paragraph 8 above). Having regard to the evidence, the prosecutor found that the prison guards responsible for W.M. ’ s safety had acted beyond reproach. The guards had not breached the applicable regulations by letting W.M. keep his belt. Furthermore, the prosecutor found no shortcomings in the prison guards ’ reaction after seeing W.M. lying on the ground. She concluded that the prison guards had not committed an offence.

12. On 28 February 2005 the Radom District Prosecutor discontinued the investigation after establishing that the actions of the prison guards had not constituted a criminal offence.

13. On 12 August 2008 the applicant ’ s mother complained to the Ministry of Justice that she had not been served with the Radom District Prosecutor ’ s decision to discontinue the investigation.

14. On 6 October 2008 the Radom District Prosecutor ordered that the applicant ’ s mother be served with a copy of the decision.

15. By a letter dated 9 October 2008 the applicant ’ s mother was informed by the Radom District Prosecutor that she had been formally notified of the opening of the investigation into her partner ’ s death on 30 November 2004. The letter said that the applicant ’ s mother had twice been summoned to the Radom police headquarters for an interview, which she had not attended. Subsequently, a police officer had visited her flat but had not been allowed to enter. Further summonses sent to the applicant ’ s mother had not been answered. On 28 December 2004 the applicant ’ s mother had gone to police headquarters and had insisted that she did not wish to be contacted in connection with W.M. ’ s death. Accordingly, the district prosecutor had served the decision to discontinue the investigation on R.L., W.M. ’ s adult son and the applicant ’ s half-brother.

16. On 9 January 2009 the applicant ’ s mother was served with the prosecutor ’ s decision to discontinue the investigation. She lodged an appeal against that decision dated 13 January 2009. Her appeal was rejected as submitted out of time. On an unspecified date the applicant ’ s mother requested the district prosecutor to grant her leave to appeal out of time. On 5 February 2009 the prosecutor refused that request. The applicant appealed. On 7 April 2009 the Radom District Court upheld the prosecutor ’ s decision. No further appeal lay against this decision. In consequence, the decision to discontinue the investigation of 28 February 2005 became final.

3. The second investigation

17. On 12 June 2012 the applicant, represented by his mother, relying on Article 327 § 1 of the Code of Criminal Procedure (hereinafter, “the CCP”), requested that the Radom-Wschód District Prosecutor open de novo ( podj ę cie na nowo ) the investigation into his father ’ s death. He requested that the prosecutor obtain the file of the civil proceedings against the State Treasury in which the courts had determined that there existed a causal link between the failures of the prison guards and his father ’ s suicide (see paragraphs 36-43 below). He pointed out the discrepancy between the findings of the district prosecutor and the civil courts. The applicant ’ s mother also produced proof of payment of all seven instalments of the fine imposed on W.M.

18. The investigation was opened de novo on 15 February 2013.

19. On 28 June 2013 the Radom-Wschód District Prosecutor discontinued the investigation into the alleged failure by the prison guards to fulfil their duties. The allegation was related to their failure to keep the applicant ’ s father under constant surveillance and to seize his belt, which he had used to commit suicide (Article 231 § 1 in conjunction with Article 155 of the CC, see paragraph 44 below). The prosecutor established that those acts did not constitute a criminal offence.

20. The prosecutor also discontinued the investigation into alleged negligence by Ms E.W., a clerk at the Radom District Court who had incorrectly credited a payment of PLN 100 by W.M. to another debtor. The prosecutor established that prosecution of the impugned offence had become time-barred.

21. With regard to the facts, the prosecutor established that during W.M. ’ s admission to the remand centre on 17 November 2004, the prison guard S.S. had noticed that W.M. had been anxious and tearful. W.M. had contested his imprisonment as unjust. Consequently, the guards S.S. and R.D. had decided to check with Radom District Court as to whether the fine had been paid and were told that that was not the case. Next, W.M. was to be examined by a male nurse, M.S. The male nurse noticed that W.M. had been agitated and tearful and had declared that he would go on a hunger strike. Having regard to those circumstances, the male nurse had requested that W.M. be taken to a medical room for examination by a doctor. At about 11 a.m. W.M. had been taken to a medical room where he was to be examined by a doctor, D.C. W.M. had been anxious, tearful and convinced that he had been wronged by the court and the police. W.M. had refused to be examined or take any medication. He had also declared that he would refuse any food and drink in protest at his imprisonment. W.M. had not revealed any suicidal thoughts. Doctor D.C. had agreed to W.M. ’ s incarceration but had recommended that he be seen by a psychiatrist at a later date.

22. At about 11.40 a.m. W.M. had been taken to transit cell no. 4 where he was to wait for his prison underwear and hygiene products. At about 12 noon the prison guard M.D. had seen through the peephole that W.M. was lying on the floor. M.D. had entered the cell and noticed that a belt was tied around W.M. ’ s neck. He had taken the belt off W.M. ’ s neck and, together with another guard, A.R., had begun resuscitation procedures. At about 12.30 p.m. an emergency services doctor had declared W.M. dead.

23. The prosecutor also had regard to the findings of the forensic expert. The expert, having carried out a post-mortem, established the presence of a slight strangulation mark on W.M. ’ s neck and a number of injuries which had likely resulted from his hitting objects while in convulsion. The expert further established that the direct cause of death had been hanging. The result of his examination allowed it to be established that it had been a suicide.

24. The prosecutor found no evidence pointing to the involvement of third parties in the impugned incident.

25. The prosecutor took a number of investigative measures aimed at determining whether the prison guards had failed to fulfil their duties. She interviewed the prison guard M.D. He testified that certain objects, such as mobile telephones, penknives and screwdrivers, were taken from prisoners. However, the applicable regulations did not require that belts or laces should also be seized. The prosecutor analysed the applicable regulations and concluded that belts and laces were not regarded as dangerous objects.

26. With regard to alleged negligence on the part of the prison, the prosecutor established that the actions of the prison guards had not disclosed any failure to fulfil their duties. The prison guards had acted with appropriate diligence in supervising W.M. Not seizing W.M. ’ s belt in the process of his admission to the remand centre had been in compliance with the relevant regulations. There had been no grounds to suspect that W.M. would make an attempt on his own life despite his strong emotional reaction to his incarceration. The doctor interviewing W.M. had not identified any suicidal tendencies. Furthermore, after seeing W.M. lying unconscious on the floor, the prison guards had reacted appropriately to the situation. In conclusion, the prosecutor found that the actions of the prison guards had not constituted any of the criminal offences prescribed in Articles 231 and 155 of the CC.

27. On 11 July 2013 the applicant ’ s mother appealed against the prosecutor ’ s decision. She argued, inter alia , that the prison guards had failed in their duties by not seizing W.M. ’ s belt. That, in consequence, had led to his suicide and death.

28. On 10 October 2013 the Radom District Court dismissed the appeal and upheld the prosecutor ’ s decision.

29. The court noted that the applicant ’ s mother had sought to have the investigation continued and for charges to be brought against specific individuals, eventually leading to their trial and conviction. However, the evidence secured in the investigation had not provided any grounds to accept such a demand.

30. The court found that the prosecutor had correctly established the facts and had properly assessed the comprehensive evidence obtained in the case. It noted that the prosecutor had carried out a number of investigative measures aimed at determining if there had possibly been negligence on the part of the prison guards. However, no such negligence had been established.

31. The court found nothing untoward in the manner in which the prison guards had carried out their duties vis-à-vis the applicant ’ s father. They had ensured, inter alia , that the applicant ’ s father had been seen by a doctor. There had been no grounds to believe that the applicant ’ s father would commit suicide, despite his strong emotional reaction to imprisonment. In accordance with the applicable regulations, the prison guards had not been required to seize the applicant ’ s father ’ s belt. Furthermore, they had attempted to resuscitate the applicant ’ s father. In conclusion, the court accepted the prosecutor ’ s finding that the actions of the prison guards had not amounted to any of the offences prescribed in Articles 231 and 155 of the CC. It noted that the findings of the civil court could not alter that conclusion and lead to attributing criminal responsibility to the prison guards. The court found that the applicant ’ s mother had not indicated any relevant circumstances which could lead to the prosecutor ’ s decision being overturned.

32. The court also accepted the prosecutor ’ s decision to discontinue the investigation with regard to the court clerk.

4. Civil proceedings against the State Treasury

33. On 11 January 2010 the applicant brought a claim against the State Treasury with the Radom Regional Court. His mother acted on his behalf since the applicant was a minor. He sought PLN 1,000,000 (approximately EUR 250,000) in compensation and a monthly allowance of PLN 3,000 (approximately EUR 750) in connection with his father ’ s death. The applicant argued that the State Treasury was liable for his father ’ s death on account of gross negligence by the prison guards who had failed to ensure his father ’ s safety. In his view, the belt had been a dangerous object and should definitely have been seized by the prison guards.

34. On 30 September 2010 the Radom Regional Court dismissed the applicant ’ s claim. It held that the prison guards had acted lawfully and in accordance with the Code of Execution of Criminal Sentences and that therefore the State Treasury could not be held liable. In addition, the court held that there had been no causal link between W.M. ’ s death and the actions of the prison guards.

35. The Regional Court established that W.M. had been agitated during his admission to the remand centre but considered that to be a standard reaction. The prison guards had checked with Radom District Court and, despite W.M. ’ s claims to the contrary, it had confirmed that one instalment of W.M. ’ s fine had not been paid. During his medical examination, W.M. had informed the doctor that he had left children at home unsupervised but he had not revealed any suicidal thoughts. The doctor had concluded that W.M. could be admitted to the remand centre and that there was no need for an immediate psychiatric consultation. Having regard to the above, the court found that there was nothing in W.M. ’ s medical history or circumstances related to the offence which would have indicated that he needed to be put under particularly close supervision or that his belt should have been seized.

36. The applicant appealed. On 8 February 2011 the Lublin Court of Appeal partly allowed his claim. It found the State Treasury liable under Article 417 § 1 of the Civil Code and awarded the applicant PLN 70,000 (approximately EUR 18,000) in compensation and a monthly allowance of PLN 500 (approximately EUR 125). The court dismissed the remainder of the applicant ’ s appeal.

37. The Court of Appeal noted that under Article 108 § 1 of the Code of Execution of Criminal Sentences, the administration of a penal institution had a duty to ensure prisoners ’ safety. It held, however, that in the case of W.M. the prison guards had failed in that duty. The Court of Appeal found that in the circumstances of the case there had been an objective need to place W.M. under constant supervision. The lower court had failed to have regard to reports drafted by the prison guards M.S. and S.S. and Doctor D.C. It transpired from those reports that W.M. ’ s behaviour could not be considered as simple agitation. His behaviour had suggested a nervous breakdown caused by a feeling of injustice as W.M. had been convinced that he had paid the fine in full. For example, the prison guard M.S. had stated in his report that W.M. had displayed disturbing behaviour (hitting the bed with his fist), had been tearful, anxious and agitated, and had declared that he would go on a hunger strike.

38. The Court of Appeal found that since W.M. ’ s behaviour had been very different from the norm and that a psychiatric consultation had been recommended for him, then the prison guards should have taken all the necessary steps to ensure his safety. They should have seized any object presenting a risk to his life or health, including his belt or, alternatively, should have put him under constant supervision. Such actions would have prevented W.M. ’ s death. The court thus held that there was a causal link between the omissions of the prison guards and W.M. ’ s death.

39. With regard to the claim for compensation, the Court of Appeal noted that under Article 446 § 3 of the Civil Code it could award an appropriate level of compensation to relatives of a deceased if their situation significantly deteriorated as a result of the person ’ s death. A significant deterioration in a claimant ’ s situation depended on the degree of adverse material and immaterial consequences resulting from the death of a relative. The Court of Appeal found that the amount of compensation sought was grossly excessive and that the claimant (the applicant) had not established that his situation had deteriorated to such a degree. For the claimant, the death of his father when he was six years old had certainly been a particularly acute loss which had limited his prospects in life and had amounted to a loss of natural support. Having regard to those and other relevant factors, the court found that the appropriate level of compensation was PLN 70,000 (approximately EUR 18,000).

40. The amount of monthly allowance sought by the applicant was also inflated, the court found. The size should not be higher than the amount W.M. would have contributed as a father. Having regard to W.M. ’ s financial situation prior to his death, the court found that a monthly allowance of PLN 500 (approximately EUR 125) was reasonable and commensurate with the applicant ’ s justified needs.

41. The applicant lodged a cassation appeal, contesting the amounts of compensation and monthly allowance as too low. The State Treasury also lodged a cassation appeal. On 22 November 2011 the Supreme Court accepted the defendant ’ s cassation appeal for examination and refused to admit that of the applicant.

42. On 22 February 2012 the Supreme Court quashed the Court of Appeal ’ s judgment in part and remitted the case. It held that the lower court had failed to examine the defendant ’ s plea that the claim was time-barred. However, it upheld the Court of Appeal ’ s findings in respect of the prison guards ’ failure to ensure the safety of the applicant ’ s father (see paragraphs 37-38 above).

43. On 31 May 2012 the Lublin Court of Appeal gave a judgment awarding the same level of compensation and monthly allowance to the applicant and dismissing the remainder of the defendant ’ s appeal. The court examined the defendant ’ s plea based on the limitation period. To that end the court heard the applicant ’ s mother. It established that in April 2012 the applicant ’ s mother had found proof of payment of all seven instalments of the fine imposed on her partner made between December 1998 and June 1999. It further established that the prosecutor had refused to consider her a party to the investigation and to grant her access to the file. It had only been after the applicant ’ s mother had complained to the Ministry of Justice that she had been served with the decision to discontinue the investigation on 9 January 2009 (see paragraph 16 above). Accordingly, the three-year limitation period should start to run on the latter date. As the claim had been brought on 11 January 2010 (see paragraph 33 above), the defendant ’ s plea had to be dismissed.

B. Relevant domestic law and practice

1. Constitutional provisions

44. Article 77 § 1 of the Constitution refers to the State ’ s civil liability in the following way:

“Everyone shall have the right to compensation for any harm done to him by any act of a public authority in breach of the law.”

45. In a judgment (no. SK 18/00) of 4 December 2001, the Constitutional Court examined the compatibility of Article 417 of the Civil Code with Article 77 § 1 of the Constitution. It held, inter alia , that:

“In accordance with Article 77 § 1 of the Constitution, the sole basis for [State civil] liability is an unlawful act by a public authority, it is of no significance whether such an act was subjectively culpable ( subiektywnie zawinione ). ...

Having regard to the conditions for [State] liability laid down in Article 77 § 1 of the Constitution previously analysed, there is no doubt that ‘ the personal culpability of a state official ’ does not form part of the list of conditions necessary for liability on the part of the public authorities.”

2. Provisions of the Civil Code

46. Article 417 § 1 of the Civil Code, as applicable from 1 September 2004, provides as follows:

“The State Treasury or [,as the case may be,] a local self-government entity or other legal person responsible for exercising public authority, shall be liable for any damage ( szkoda ) caused by an unlawful act or omission [committed] in connection with the exercise of public authority.”

3. Provisions of the Criminal Code

47. Article 155 of the Criminal Code provides as follows:

“Anyone who unintentionally causes the death of another person shall be subject to the penalty of deprivation of liberty for a term of between 3 months and 5 years.”

Article 231 § 1 of the Criminal Code reads as follows:

“A public official who, by overstepping his powers or not fulfilling his duties, acts to the detriment of public or private interests shall be liable to a sentence of imprisonment of up to three years.”

COMPLAINTS

48. In a letter dated 9 July 2013 the applicant complained about the prosecutor ’ s decision of 28 June 2013 to discontinue the investigation (see paragraphs 19-26 above). In a letter dated 24 November 2013, referring to the District Court ’ s decision of 10 October 2013 (see paragraphs 28-32 above), the applicant submitted that the authorities had been responsible for his father ’ s death and that they had not elucidated the circumstances of the case. He did not invoke any provision of the Convention in this respect.

49. Relying on Articles 6 and 13 of the Convention, the applicant complained that the Court of Appeal ’ s judgments had violated his right to a fair trial. He submitted that the Court of Appeal had rightly established the State ’ s liability for the death of his father but had set the amount of compensation too low.

50. The applicant raised new complaints in his observations of 21 May 2015. He complained in respect of the civil proceedings that damages had been awarded for the first time by the Court of Appeal (a second-instance court) and that he could not properly contest the amount of damages since the scope of review of the Supreme Court was very limited. The applicant alleged that those facts amounted to a breach of Articles 6 § 1 and 13 of the Convention. He also alleged a breach of Articles 8 and 13 in that his right to a fair trial or fair procedure had not been respected in the civil proceedings or the investigations.

THE LAW

A. The complaints under Article 2 of the Convention

51. The applicant complained that the authorities had been responsible for his father ’ s death. He alleged that the Court of Appeal had awarded an insufficient amount in compensation. In this respect, the applicant invoked Articles 6 § 1 and 13 of the Convention.

52. The applicant further complained about the prosecutor ’ s decision of 28 June 2013, upheld by the Radom District Court on 10 October 2013, to discontinue the investigation. He also alleged that the authorities had not elucidated the circumstances of his father ’ s death.

53. The Court, which is master of the characterisation to be given in law to the facts of the case and is not bound by the characterisation given by the applicant or the Government (see, among many other authorities, Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 54, 17 September 2009, and Tarakhel v. Switzerland [GC], no. 29217/12, § 55, ECHR 2014 (extracts)), finds that the above-mentioned complaints fall to be examined under Article 2 of the Convention. This provision reads as follows:

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

1. The parties ’ submissions

(a) The Government

54. The Government submitted that the applicant could no longer claim to be the victim of a violation of the Convention. Firstly, the Government argued that the domestic courts had acknowledged that there had been a breach of the applicant ’ s rights guaranteed by the Convention. They referred to the findings of the Lublin Court of Appeal and the Supreme Court. Those courts had expressly acknowledged that there had been a violation of the applicant ’ s father ’ s rights stemming from Article 2 of the Convention owing to the failure to ensure his safety in the remand centre.

55. Secondly, the domestic courts had awarded the applicant compensation of PLN 70,000 (approximately EUR 18,000) and a monthly allowance of PLN 500 (approximately EUR 125) which, in the Government ’ s view, constituted adequate redress for the damage caused by the failure to ensure the applicant ’ s father ’ s safety. Thirdly, the amount of compensation awarded to the applicant corresponded to the amounts of just satisfaction awarded by the Court in similar cases.

56. The Government referred to the case of Erkan and Others v. Turkey ((dec.), no. 41792/10, 28 January 2014) concerning the death of the applicants ’ close family member. In that case the domestic military court had acknowledged the responsibility of the public authorities and had awarded the four applicants the sum of EUR 17,200 with interest. The Court had found in its decision that the applicants could no longer claim to be victims of a violation. The Government argued that the same conclusion should be reached in the instant case. They submitted that the Court should declare the application inadmissible under Article 35 § 3 of the Convention.

57. With regard to the procedural aspect of Article 2, the Government submitted that the applicant ’ s mother had not been denied victim status in the first investigation into the applicant ’ s father ’ s death. Neither had she been denied access to the case file. The applicant ’ s mother had been informed about the initiation of the investigation by a letter of 30 November 2004. She had been summoned several times for an interview at the Radom police headquarters but she had failed to appear. Subsequently, on several occasions, a police officer had been sent to the applicant ’ s mother ’ s flat but had not been allowed to enter. The applicant ’ s mother had appeared at police headquarters on 28 December 2004 and had strongly insisted that she did not wish to be contacted in connection with W.M. ’ s death. The applicant ’ s mother had refused to testify, sign any documents or collect W.M. ’ s clothes. In those circumstances, the applicant ’ s mother had not been served with the decision of 28 February 2005 to discontinue the investigation.

58. The district prosecutor had received the applicant ’ s mother ’ s request to be served with the decision to discontinue the investigation only on 26 September 2008. On 6 October 2008 the district prosecutor had ordered that the above decision be served on the applicant ’ s mother. There was no indication in the case file that the applicant ’ s mother had previously submitted a request to that effect. After being served with the said decision on 9 January 2009, the applicant ’ s mother had made use of her rights as the injured party by submitting motions in the procedure. She had been served with the prosecutor ’ s subsequent decision to discontinue the investigation.

59. The Government concluded by saying that the application should be rejected owing to the fact that the applicant could no longer be regarded as a victim within the meaning of Article 34 of the Convention.

(b) The applicant

60. The applicant argued that his application was admissible and that he retained victim status. He submitted that the Polish authorities had not acknowledged a breach of Convention rights in his case. In addition, the level of compensation was insufficient. The applicant submitted that civil courts usually awarded PLN 250,000 (approximately EUR 64,000) in compensation for the death of a relative. That had also been the amount paid by the authorities to the relatives of the victims of the Government ’ s plane crash.

61. The applicant argued that the authorities had not secured his father ’ s right to life. He pointed out that the prison guards had not taken all the necessary steps in that regard. In particular, they had failed to seize his father ’ s belt, despite his very poor mental condition.

62. The applicant further submitted that the investigation into the death of his father had not been effective. He alleged that his mother had not been informed about the investigation and about her rights as an injured party. The applicant ’ s mother and the applicant, who was six at the relevant time, had not been represented by a lawyer during the investigation. The applicant submitted that his mother had not been served with the first decision to discontinue the investigation. That had happened only after the applicant ’ s mother had complained to the Ministry of Justice in 2008.

63. The applicant argued that in the first investigation the prosecutor had not secured all the relevant evidence in the case, namely the confirmation of the payment of all the instalments of the fine. In the second investigation the prosecutor had discontinued the proceedings into the alleged professional negligence of a clerk at Radom District Court on account of the limitation period (see paragraph 20 above).

2. The Court ’ s assessment

64. The Court will examine separately the complaints under the substantive and procedural aspects of Article 2 of the Convention.

(a) The substantive limb of Article 2

65. The applicant alleged that the authorities had been responsible for his father ’ s death.

66. The Court will first consider whether the applicant could still claim to be a victim of the alleged violation of the substantive aspect of Article 2. It will bear in mind that the instant application concerns a case of death of a person deprived of liberty by decision of the State authorities.

67. The Court reiterates that it falls firstly to the national authorities to redress any violation of the Convention. In this regard, the question of whether an applicant can claim to be a victim of the violation alleged is relevant at all stages of the proceedings under the Convention (see, inter alia , Gäfgen v. Germany [GC], no. 22978/05, § 115, ECHR 2010 ‑ IV). It notes that a decision or measure favourable to the applicant is not in principle sufficient to deprive him or her of “victim” status unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention. The issue as to whether a person may still claim to be the victim of an alleged violation of the Convention essentially entails on the part of the Court an ex post facto examination of his or her situation (see Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09 , § § 81-82 , ECHR 2012, with further references ).

68. In the instant case, the applicant instituted civil proceedings against the State Treasury (see paragraph 33 above). In those proceedings, the Lublin Court of Appeal established, and the Supreme Court confirmed, the State Treasury ’ s civil liability for omissions leading to the death of the applicant ’ s father. The domestic courts held that the prison guards had failed in their duty to ensure the safety of the applicant ’ s father by neglecting to seize all potentially dangerous objects or, alternatively, to put the applicant ’ s father under constant supervision in view of his vulnerability and psychological distress. The domestic courts found that there had been a causal link between those omissions and the death of the applicant ’ s father (see paragraphs 36-43 above). In the Court ’ s view, the findings by the civil courts constituted an implicit acknowledgment of a breach of the substantive aspect of Article 2 of the Convention.

69. As to the redress which is appropriate and sufficient to remedy a breach of a Convention right at the national level, the Court has generally considered this to be dependent on all the circumstances of the case, having regard, in particular, to the nature of the Convention violation at issue ( Gäfgen , cited above, § 116).

70. The Court notes that the Court of Appeal awarded the applicant PLN 70,000 (approximately EUR 18,000) in compensation and a monthly allowance of PLN 500 (approximately EUR 125). In fixing the amount of compensation, the Court of Appeal assessed the damage suffered by the applicant, having regard to the specific circumstances of his case. Similarly, the amount of monthly allowance was determined by reference to the earning capacity of the applicant ’ s father and the level of the applicant ’ s justified needs (see paragraphs 39-40 above). The Court finds in this connection that the domestic court considered all the pertinent circumstances and duly justified its decisions.

71. The Court further notes that the amounts awarded in the present case are comparable to those awarded by the Court in similar cases concerning a failure to protect life under Article 2 of the Convention (see Jasińska v. Poland , no. 28326/05 , § 87, 1 June 2010, EUR 16,000; Keller v. Russia , no. 26824/04 , § 132, 1 7 October 2013, EUR 11,000; and Isenc v. France , no. 58828/13 , § 51, 4 February 2016, EUR 20,000).

72. The Court observes that in cases under Article 2, when the death was not caused intentionally, an award of damages through civil or administrative proceedings may offer appropriate redress ( Drăganschi v. Romania (dec.), no. 40890/04, §§ 30-31, 18 May 2010; Yüksel v. Turkey (dec.), no. 51902/08, § 52, 9 April 2013; Alp v. Turkey (dec.), no. 3757/09, §§ 27-33, 9 July 2013; Erkan , cited above, §§ 78-84, where, as pointed out by the Government – see paragraph 53 above – the Court held that the award of damages at the domestic level in the amount of EUR 17,200 constituted an “appropriate redress” and concluded that the applicants had lost their victim status; and Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05 , § 131, 14 April 2015 ).

73. In those circumstances, and having regard to the fact that the present case concerns a death through negligence, the Court considers that the redress afforded to the applicant was sufficient and appropriate.

74. Having regard to the foregoing, the Court concludes that the applicant can no longer claim to be a victim of the alleged violation of Article 2 in its substantive aspect. Accordingly, this complaint is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

(b) The procedural limb of Article 2

75. With respect to the procedural aspect of Article 2, the applicant complained about the prosecutor ’ s decision of 28 June 2013 to discontinue the investigation (see paragraphs 19-26 above). He further alleged that the authorities had not elucidated the circumstances of his father ’ s death.

76. The Government argued that the applicant could no longer claim to be the victim of a violation of the Convention following the outcome of the civil proceedings against the State Treasury.

77. The relevant principles concerning the procedural obligation under Article 2 to carry out an effective investigation were recently restated in the case of Mustafa Tunç and Fecire Tunç (cited above, § § 169-182).

78. The Court finds that a procedural obligation arose to investigate the circumstances of the death of the applicant ’ s father. It recalls that i n cases in which a detainee dies while in the custody of State authorities , the mere fact that the authorities have been informed of the death will give rise ipso facto to an obligation under Article 2 of the Convention to carry out an effective investigation into the circumstances surrounding the death, irrespective of whether the alleged perpetrators are State agents, or are unknown, or even that the harm was self-inflicted (see, for example, Salman v. Turkey [GC], no . 21986/93, § 105, ECHR 2000 ‑ VII; Paul and Audrey Edwards v. the United Kingdom , no. 46477/99, §§ 69 and 74, ECHR 2002 ‑ II; Slimani v. France , no. 57671/00, § 30, ECHR 2004 ‑ IX; Volk v. Slovenia , no. 62120/09 , § 98, 13 December 2012; and Petrović v. Serbia , no. 40485/08 , § 74, 15 July 2014).

79. In the present case, the applicant ’ s father was a prisoner under the care and responsibility of the authorities and State agents were associated with the events leading to his death. In these circumstances, the State was under an obligation to initiate and carry out an investigation which fulfilled the procedural requirements of Article 2. Civil proceedings, which might provide appropriate redress with regard to the substantive limb of Article 2 (see paragraph 69 above), cannot satisfy the State ’ s procedural obligation to investigate the circumstances of the death of the applicant ’ s father (see Paul and Audrey Edwards , cited above, § 74; and Dzieciak v. Poland , no. 77766/01, § 80, 9 December 2008). For those reasons, the Court rejects the Government ’ s objection as to the lack of the applicant ’ s victim status with regard to the procedural aspect of Article 2.

80. With regard to the first investigation into the death of the applicant ’ s father, the Court notes that it was discontinued by the district prosecutor ’ s decision of 28 February 2005 (see paragraph 12 above). The decision to discontinue the investigation was served on the applicant ’ s mother on 9 January 2009. The applicant ’ s mother lodged an appeal against the decision. This appeal was ultimately rejecte d as submitted out of time on 7 April 2009 (see paragraph 16 above).

81. The Court notes that the present application was lodged on 29 November 2012, more than six months after the final rejection of the applicant ’ s mother ’ s appeal. The Government have not addressed that issue in their observations. However, it is not open to the Court to set aside the application of the six ‑ month rule solely because a Government have not made a preliminary objection based on it (see Walker v. United Kingdom (dec.), no. 34979/97, ECHR 2000-I, and Graban v. Poland (dec.), no. 13851/02, 5 July 2005).

83. The second investigation was opened de novo on 15 February 2013 (see paragraph 18 above), following the applicant ’ s request of 12 June 2012.

84. With regard to the effectiveness of the second investigation, the Court notes that the district prosecutor secured ample evidence concerning the incident, including the forensic report, witness statements and documentary evidence. The forensic report indicated that the applicant ’ s father had committed suicide. The evidence enabled the prosecutor to establish the factual circumstances surrounding the death of the applicant ’ s father. By a decision of 28 June 2013 the district prosecutor discontinued the investigation, finding that in the light of all the evidence the prison guards had not failed to fulfil their duties while supervising the applicant ’ s father (see paragraph 19 above). In particular, the prosecutor established that there had been no grounds to presume that the applicant ’ s father would make an attempt on his own life (see paragraph 26 above).

85. The prosecutor ’ s findings were subsequently fully endorsed by an independent court. The District Court, in its decision of 10 October 2013, shared the prosecutor ’ s conclusion that no culpable omissions had been committed by the prison guards (see paragraphs 28-32 above).

86. The Court notes that the applicant could take part in the proceedings, present his point of view and lodge an appeal against the discontinuation of the proceedings. He did not request any specific measures to be taken during the investigation. The applicant ’ s mother, acting as the applicant ’ s representative, was free to appoint a lawyer to represent her in the investigation or to request that a legal-aid lawyer be appointed for her.

87. The Court also finds that there were no delays in the second investigation. It notes that the applicant did not allege that the investigation was not independent.

89. The Court considers that the investigation succeeded in elucidating the circumstances which were relevant for addressing the issue of the alleged criminal responsibility of the prison guards for the death of the applicant ’ s father. It does not find any grounds to contest the conclusions of the investigation. They were based on a thorough, objective and impartial analysis of all the relevant elements.

90. The Court considers that the discontinuation of the investigation in respect of the negligence of the court clerk (see paragraph 20 above) had no bearing on the effectiveness of the investigation into the circumstances of the applicant ’ s father ’ s death.

91. In conclusion, the Court finds that the procedural obligation under Article 2 to carry out an effective investigation into the death of the applicant ’ s father was complied with in the present case.

92. Accordingly, the complaint under the procedural aspect of Article 2 concerning the second investigation is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B. Remaining complaints

93. The applicant raised new complaints in respect of the civil and criminal proceedings in his observations of 21 May 2015. He relied on Articles 6 § 1, 8 and 13 of the Convention.

94. The Court notes that the civil proceedings were terminated on 31 May 2012 (see paragraph 43 above) and the criminal proceedings on 10 October 2013 (see paragraph 28 above), while the applicant raised his new complaints for the first time on 21 May 2015 (see paragraph 50 above).

95. It follows that those complaints have been introduced out of time and must be rejected, in accordance with Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 9 February 2017 .

Andre a T amiett i András Sajó Deputy Registrar President