FOURTH SECTION

DECISION

Application no . 3148/14 Krystian IWANOWICZ against Poland

The European Court of Human Rights (Fourth Section), sitting on 11 October 2016 as a Chamber composed of:

András Sajó, President, Vincent A. De Gaetano, Nona Tsotsoria, Krzysztof Wojtyczek, Iulia Motoc, Gabriele Kucsko-Stadlmayer, Marko Bošnjak, judges, and Marialena Tsirli, Section Registrar ,

Having regard to the above application lodged on 24 December 2013,

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 Krystian Iwanowicz, is a Polish national who was born in 1985 and lives in G ł ucho ł azy. He is represented before the Court by Ms D. Gembara, a lawyer practising in Z ą bkowice Ś l ą skie. The Polish Government (“the Government”) are 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.

3 . The applicant ’ s mother, Ms G.I., who was born in 1963, suffered from schizophrenia. She received psychiatric treatment over a period of more than twenty years. In 2011 she was diagnosed with epilepsy.

4 . The applicant was his mother ’ s carer. Since her condition had been deteriorating for some time, on 24 September 2012 the applicant called an ambulance and requested that his mother be taken to a psychiatric hospital. However, she refused to undergo treatment. On 25 September 2012 the applicant filed an application with the Prudnik District Court seeking an order for the involuntary medical treatment of his mother.

5 . On 28 September 2012 at about 3.20 p.m. the applicant ’ s mother was admitted to the psychiatric ward of the Głuchołazy Hospital.

6 . According to the applicant, on the same day at about 5 p.m. he brought his mother ’ s personal belongings to the hospital. He was told by the hospital staff that his mother was being bathed and was asked to leave her belongings.

7 . On 30 September 2012 the applicant was given the information that his mother had died on 28 September 2012.

8 . On an unspecified date the hospital carried out an autopsy.

9 . A record card documenting his mother ’ s death ( karta zgonu ) was drawn up on 4 October 2012 and signed by Dr E.S. It did not specify the exact time of death. The stated cause of death was schizophrenia, h ypertrophic cardiomyopathy ( kardiomiopatia przerostowa ) and sudden cardiac arrest.

10 . On 5 October 2012 the applicant filed a criminal complaint with the Prudnik District Prosecutor ’ s Office. The applicant submitted that his mother had been hospitalised in 2011 in connection with her epilepsy but had not been diagnosed with any other condition. She had never been diagnosed or treated for any heart-related condition and medical examinations carried out by a GP and the emergency medical service in the days directly preceding her admission to hospital did not indicate any irregularities. The applicant claimed that between 1 and 3 October 2012 he was given contradictory information by the hospital with regard to the circumstances, timing and cause of his mother ’ s death. The applicant also claimed that Dr E.S., who signed the record card, had been unsure about the cause of death stated on that document.

11 . On 8 October 2012 the Prudnik District Prosecutor instituted an investigation into involuntary homicide (Article 155 of the Criminal Code).

12 . On 8 October 2012 the prosecutor ordered that a post-mortem be carried out and that a report be prepared by a forensic expert, H.S., with a view to determining the cause of death. On the same date the prosecutor ordered that forensic experts examine samples of body liquids and tissues removed from the applicant ’ s mother ’ s body.

13 . On 9 October 2012 the prosecutor ordered the hospital to produce the applicant ’ s mother ’ s medical records. On the same date, the prosecutor questioned the applicant. The applicant stated that he had received conflicting answers from several doctors regarding the cause and circumstances of his mother ’ s death and it was for that reason that he had filed a criminal complaint.

14 . On 12 October 2012 a post-mortem was carried out. The forensic expert secured samples of body liquids and tissues for further examination.

15 . On 31 October 2012 the prosecutor ordered that another forensic expert should examine samples of tissues and prepare a report.

16 . On 17 December 2012 the forensic expert H.S. submitted his report to the prosecutor. On the basis of the hospital records and the autopsy carried out at the hospital, the forensic expert established that the applicant ’ s mother had been admitted to the hospital on 28 September 2012 at 3.23 p.m. Shortly after, she had suffered an epileptic seizure and a cardiac arrest. A doctor was called to help at about 4 p.m. The applicant ’ s mother was lying unconscious in bed. Resuscitation was carried out first by nurses and then by a doctor. At about 4.30 p.m. the doctor pronounced the applicant ’ s mother dead.

17 . The forensic expert noted that the autopsy carried out at the hospital established that the applicant ’ s mother had suffered from a therosclerosis ( miażdżyca tętnic ), hypertrophic cardiomyopathy and oedema, amongst other complaints.

18 . On the basis of the post-mortem and other examinations, together with the hospital records, the forensic expert concluded that the applicant ’ s mother ’ s death had been caused by respiratory and circulatory failure. The origin of this failure could not be conclusively determined. The forensic expert found no grounds for contradicting the assumption that the failure could have been related to the epileptic seizure.

19 . The applicant submitted that the post-mortem had been carried out too late. He also claimed that the medical records concerning his mother ’ s condition contained a number of discrepancies. The hospital ’ s autopsy report mentioned a therosclerosis, whereas his mother ’ s medical records did not state that she was suffering from this condition. The applicant submitted that there was no mention in the medical records of the autopsy carried out at the hospital and the hospital had not sought his consent for this procedure.

20 . The prosecutor heard evidence from several witnesses, including doctors, nurses and other hospital employees as well as the applicant ’ s mother ’ s former husband.

21 . On 25 April 2013 the applicant and his lawyer consulted the case file of the investigation.

22 . On 16 May 2013 the Prudnik District Prosecutor discontinued the investigation. He found that there were no grounds for suspecting that the offence of involuntary homicide had been committed.

23 . The prosecutor established the following facts . The applicant ’ s mother was diagnosed with schizophrenia twenty-seven years ago. In 2011 she was also diagnosed with epilepsy. On 24 September 2012, having observed his mother ’ s worsening condition, the applicant called the emergency medical service to have his mother taken to hospital, but the personnel who responded to the call refused to do as he asked. T he condition of the applicant ’ s mother continued to deteriorate. She refused to take her medication, became aggressive, and started suffering from delusions. The same situation prevailed two days later. On 28 September 2012 at about 3.20 p.m., at the applicant ’ s insistence, the emergency service transported the applicant ’ s mother to Głuchołazy Hospital. At about 5 p.m. on the same day the applicant brought his mother ’ s personal belongings to the hospital. He was told that his mother was being bathed. On 30 September 2012 the applicant learnt that his mother had died two days earlier.

24 . The prosecutor secured the medical records and the body of the applicant ’ s mother for the purposes of forensic examination. As regards the results of the post-mortem and further medical examinations, the forensic expert did not establish any cause of death other than cardiac arrest related to the epileptic seizure. He also established that the applicant ’ s mother had some broken ribs but that this injury had been sustained after her death.

25 . The prosecutor noted that the forensic expert ’ s report clearly indicated the cause of death of the applicant ’ s mother and did not point to any negligence in her treatment after admission to the hospital.

26 . The prosecutor heard evidence from medical personnel and doctors at the hospital. Those witnesses confirmed that the applicant ’ s mother had been pronounced dead at 4.30 p.m. on 28 September 2012. She had been admitted to the hospital at about 3.30 p.m. and was then bathed and changed. After being transferred to a hospital room, the applicant ’ s mother started to have a seizure. The medical personnel immediately reacted and began resuscitation. However, the resuscitation was not successful and after about 30 minutes of efforts the applicant ’ s mother was pronounced dead.

27 . The prosecutor sought to clarify when the applicant had come to the hospital on the day in question. The hospital staff testified that the applicant had come to the hospital before 4 p.m. Other witnesses, including the applicant, asserted that he had come to the hospital at 5 p.m. In the light of evidence provided by mobile phone traffic records, the prosecutor found that the applicant ’ s assertion that he had come to the hospi tal at 5 p.m. ‑ when his mother was already dead − was not credible.

28 . In conclusion, the prosecutor decided to discontinue the investigation, having found no evidence to indicate that the treatment given to the applicant ’ s mother was in any way inappropriate.

29 . The applicant appealed. He argued that the evidence gathered in the investigation was not sufficient to justify the impugn ed decision and that a number of the prosecutor ’ s findings had been incorrect.

30 . The applicant submitted that even assuming – as was accepted by the prosecutor – that his mother had died from cardiac arrest related to an epileptic seizure the prosecutor had not looked into what had caused the cardiac arrest. His mother was a relatively young person (forty-nine years old). She had suffered from schizophrenia but never complained of any other health issues (in particular heart-related) and had never been treated for anything other than her psychiatric illness. Prior to her admission to the hospital she had had only two epileptic seizures. The applicant also argued that the prosecutor did not investigate the cause of his mother ’ s broken ribs. He proposed that a team of experts be appointed in connection with the case in order to investigate the cause of his mother ’ s death.

31 . The applicant argued that he had been misled by the hospital staff from the outset and that the information he had been given by the hospital had been inaccurate. He alleged that when he arrived at the hospital on 28 September 2012 at 5 p.m., his mother was already dead but he had not been informed of this.

32 . On 27 June 2013 the Prudnik District Court dismissed the applicant ’ s appeal and upheld the prosecutor ’ s decision. The applicant was present at the hearing.

33 . The court noted that the investigation had been aimed at clarifying the circumstances of the applicant ’ s mother ’ s death, in particular – in view of the conflicting information concerning the cause of death – the time at which it occurred, and the deceased ’ s prior state of health.

34 . The court found that the prosecutor had correctly established the facts and properly assessed the ample evidence gathered in relation to the case. In the court ’ s view, the analysis of the evidence did not suggest that the offence of involuntary homicide had been committed.

35 . The court agreed with the results of the post-mortem and the forensic expert ’ s report, which was clear in its conclusion that the applicant ’ s mother had died as a result of respiratory and cardiac failure connected to an epileptic seizure. There was no need to prepare another expert report since the initial one was comprehensive, thorough and unambiguous. In addition, the medical records indicated that the applicant ’ s mother had previously suffered from epileptic seizures and that in 2011 she had been diagnosed with epilepsy. As regards the forensic report, the court observed that it stated that the damage to the applicant ’ s mother ’ s ribs could have resulted from the resuscitation efforts.

36 . On the basis of the medical records and the evidence provided by the medical personnel, the court found that the applicant ’ s mother had been adequately treated by the hospital. It noted that the applicant ’ s mother had received treatment immediately after her epileptic seizure.

37 . The court observed that the prosecutor had investigated the question of the exact timing of the applicant ’ s visit to the hospital, which was, in any event, not the most relevant factor in determining the circumstances surrounding the death of the applicant ’ s mother.

38 . The court held that the death of the applicant ’ s mother had not resulted from the actions of third parties. The court also found that no offence under Article 162 § 1 of the Criminal Code (failure to render assistance to a person in a life-threatening situation) had been committed.

B. Relevant domestic law

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

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

COMPLAINT

40 . The applicant complained under Article 6 of the Convention that the investigation had not properly explained the circumstances surrounding the death of his mother.

THE LAW

41 . The applicant alleged that the investigation into the death of his mother had been deficient. He relied on Article 6 of the Convention.

42 . The Court considers that this complaint falls to be examined under the procedural limb of Article 2 of the Convention. This provision reads as follows:

“1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. ( ... ).”

A. The Government ’ s submissions

43 . The Government submitted that the investigation carried out in the present case had been effective, according to the Court ’ s standards. The domestic authorities had not only investigated the circumstances surrounding the death of the applicant ’ s mother but had also investigated whether there had been any malpractice.

44 . The District Prosecutor had carried out all necessary activities promptly. Shortly after receiving the applicant ’ s complaint, the prosecutor had issued the decision to open the investigation and had appointed forensic experts to prepare the relevant reports. These reports were duly prepared without delay. The prosecutor also heard numerous witnesses and obtained other evidence, such as medical records and mobile phone traffic records.

45 . The investigation into involuntary manslaughter was discontinued after it was established by the prosecutor on the basis of the evidence − including witness testimonies and expert reports − that the applicant ’ s mother had died as a result of cardiac arrest related to epileptic seizure. The prosecutor ’ s findings allowed it to be established beyond reasonable doubt that no third parties had been involved in the death of the applicant ’ s mother.

46 . The Government maintained that the investigation had been carried out by an independent and impartial prosecutor who had obtained all the relevant evidence promptly. The applicant and his lawyer actively had taken part in the proceedings before the prosecutor and the court. The prosecutor ’ s findings had been subsequently examined and approved by a domestic court. The Government underlined that the investigation together with the judicial phase of the proceedings had lasted only nine months.

47 . In conclusion, the Government submitted that the investigation in the present case had been thorough, impartial and prompt. It had also involved a sufficient element of public scrutiny.

B. The applicant ’ s submissions

48 . The applicant argued that the authorities had failed to conduct an efficient and independent investigation since the cause of death of his mother had not been determined in a rigorous and objective manner, and the persons responsible had not been made to face the consequences.

49 . With regard to the forensic expert report, the applicant submitted that the prosecutor M. Ł., who had been present during the post-mortem examination, had not signed the report. This report had been filed with the Office of the District Prosecutor on 17 December 2012, that is to say two months and five days after the post-mortem had been carried out. The report stated that the origin of the respiratory and circulatory failure which caused the applicant ’ s mother ’ s death could not be conclusively determined. The cause of death had therefore not been identified and the prosecutor was required to attempt to resolve these doubts by all means necessary, such as appointing a panel of experts with different specialisms relevant to determining the cause of death. However, the prosecutor and the district court had refused to appoint such a panel of experts.

50 . The applicant maintained that he had arrived at the hospital at about 5 p.m. on the day in question, and the prosecutor had established that the applicant ’ s mother had been pronounced dead at 4.30 p.m. In this connection, the applicant alleged that he had not been informed of his mother ’ s death whilst at the hospital. In addition, the record card issued by the hospital did not state the exact time of the applicant ’ s mother ’ s death.

51 . The applicant alleged that he had not been able to appeal against the decision of the Prudnik District Court and that the defective investigation had undermined the possibility of pursuing civil claims.

52 . The applicant argued that the Prudnik District Prosecutor had failed to explain numerous discrepancies in the accounts concerning the circumstances of his mother ’ s death. In his view, the judicial system had failed to determine the exact circumstances surrounding his mother ’ s death.

C. The Court ’ s assessment

53 . The Court reiterates that the procedural obligation of Article 2 requires States to set up an effective independent judicial system 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 held accountable (see, among other authorities, Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 49, ECHR 2002 ‑ I; Vo v. France [GC], no. 53924/00, § 89, ECHR 2004 ‑ VIII; and Å ilih v. Slovenia [GC], no. 71463/01, § 192, 9 April 2009). The Court reiterates that this procedural obligation is not an obligation of result but of means only ( Paul and Audrey Edwards v. the United Kingdom , no. 46477/99, § 71, ECHR 2002 ‑ II).

54 . The requirements of promptness and reasonable expedition are implicit in this context (see Šilih , cited above, § 195). Furthermore, the State ’ s obligation under Article 2 of the Convention will not be satisfied if the protection afforded by domestic law exists only in theory: above all, it must also operate effectively in practice (see, among other authorities, Byrzykowski v. Poland , no. 11562/05, § 105 in fine , 27 June 2006).

55 . In the instant case, the Court notes that the applicant filed a criminal complaint on 5 October 2012 and that shortly afterwards the prosecutor instituted an investigation into the possible involuntary homicide of the applicant ’ s mother.

56 . In the course of the investigation the prosecutor heard evidence from a number of witnesses, including doctors, nurses and other employees of the hospital, and secured the medical records concerning the applicant ’ s mother. It also ordered the preparation of a forensic expert report. The forensic expert report, based on the post-mortem ’ s results and other forensic examinations along with analysis of the medical notes, established that the death of the applicant ’ s mother had been caused by respiratory and circulatory failure connected to epileptic seizure. Furthermore, the forensic expert had not identified any negligence in the treatment of the applicant ’ s mother. With regard to the broken ribs, the expert observed that this injury had been sustained after death.

57 . A decision of 16 May 2013 issued by the Prudnik District Prosecutor discontinued the investigation, since in the light of all the evidence and, in particular, the conclusions of the expert report, there were no grounds for suspecting that involuntary homicide had been committed. The prosecutor ’ s findings were subsequently fully endorsed by the Prudnik District Court on 27 June 2013. The district court examined the applicant ’ s allegation that the prosecutor had not properly clarified the cause of death and that a team of experts should have been appointed to that end. It found that the forensic expert appointed by the prosecutor had clearly identified the cause of death. The court held that there was no need for the additional expert report sought by the applicant in view of the comprehensive and detailed nature of the report obtained by the prosecutor. The court also noted that the prosecutor had clarified the issues of the exact time at which the death occurred and of the time of the applicant ’ s visit to the hospital.

58 . The Court finds that the investigation succeeded in clarifying all the circumstances relevant to addressing the issue of the alleged responsibility of the hospital personnel for the death of the applicant ’ s mother. It does not find any grounds for contesting the findings of the investigation; nor was there any lack of diligence on the part of the authorities. The findings at issue were cogent and based on a comprehensive body of evidence. In these circumstances there was no need for additional evidence to be obtained.

59 . With regard to the applicant ’ s allegation that the prosecutor who had been present at the post-mortem had not signed the forensic expert report, the Court finds that this alleged shortcoming does not affect the soundness of the report ’ s conclusions. Moreover, the applicant did not raise this issue in his appeal against the prosecutor ’ s decision to discontinue the investigation.

60 . Furthermore, as the criminal proceedings lasted just under nine months, it cannot be said that the authorities failed to respect the requirement of promptness and reasonable expedition (see Byrzykowski , cited above, § 117).

61 . In conclusion, it has not been shown that the investigation into the death of the applicant ’ s mother was ineffective or therefore that it undermined, as the applicant claimed, the possibility of him pursuing a civil action (see paragraph 51 above).

62 . Accordingly, the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 3 November 2016 .

Marialena Tsirli András Sajó Registrar President