FOURTH SECTION

DECISION

Application no . 50504/09 Justyna CICHOŃ against Poland

The European Court of Human Rights ( Fourth Section ), sitting on 4 November 2014 as a Chamber composed of:

Ineta Ziemele , President, George Nicolaou , Ledi Bianku , Nona Tsotsoria , Zdravka Kalaydjieva , Paul Mahoney , Krzysztof Wojtyczek , judge s, and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 9 September 2009 ,

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, Ms Justyna Cichoń , is a Polish national, who was born in 1972 and lives in Plewiska . She was represented before the Court by Mr A. Zielonacki , a lawyer practising in Pozna ń .

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.

3 . In 2007 the applicant ’ s mother, who was born in 1943, bought an apartment from I.K. S hortly after wards serious technical flaws in the apartment came to light. The applicant ’ s mother intended to institute civil proceedings against the seller for compensation.

4. She became depressed as a result of the substantial pecuniary loss she had suffered because of the transactio n, which she considered fraudulent. In June 2007 she attempted to commit suicide. She was admitted to hospital on 28 June and discharged on 3 July 2007. The hospital records indicate that she was diagnosed with “a depressive reaction ” .

5. On 9 August 2007 I.K. informed the prosecuting authorities that the applicant ’ s mother had phoned her and uttered threats against her. She had allegedly told I.K. that she would kill her as she had ruined her life by selling her a worthless apartment which she had paid for with her life saving s . On the same day I.K. ’ s father was questioned. He confirmed that the applicant ’ s mother had uttered threats against I.K.

6 . The case file contains a note dra wn up by the police and dated 9 September 2007 to the effect that a police of f icer tried to serve a summons for questioning on the applicant ’ s mother at G. Street, but to no avail. He was informed by persons living at that address that she had sold that apartment.

7 . By a bill of indictment dated 25 September 2007 the Gostyń District Prosecutor charged the applicant ’ s mother with the offence of uttering threats . The bill was subsequently lodged with the Gostyń District Court.

8 . On 1 October 2007 the Gostyń District Court ordered, having regard to the applicant ’ s mother ’ s attempt to commit suicide, that a psychiatric expert opinion be prepared on the question of whether she could be held criminally responsible.

9 . On 11 October 2007 the Gostyń District Court appointed a legal - aid lawyer to represent the applicant ’ s mother in the proceedings. On the same day the entire criminal case file was forwarded to the psychiatric clinic that was to carry out the psychiatric examination of the defendant.

10 . Subsequently, by letters dated 15 and 20 October one of the experts at the clinic sent summonses to the applicant ’ s mother at the address at G.

Street where she no longer lived (see paragraph 9 above) for examinations to be carried out at the clinic on 24 October and 7 November 2007 . The summonses were not served either on her or on any member of her family. The service confirmation slips ( potwierdzenie odbioru ) were not returned either to the court or to the experts .

11 . On 19 November 2007 one of the experts informed the Gostyń District Court by phone that the applicant ’ s mother had twice failed to attend the psychiatric examination on the dates fixed. On 22 November 2007 the experts informed the court in writing of the applicant ’ s mother ’ s failure to attend the examination. They requested the court to arrange for her to be taken to the clinic under police escort for the examination on 30 November 2007.

12. On 22 November 2007 the court, having regard to the applicant ’ s mother ’ s failure to comply with the summonses and being unaware of the fact that they had not been served on her, ordered the police to arrest her and escort her to the clinic for the purposes of the examination .

13. At 6.30 a.m. on 30 November 2007 the applicant ’ s mother was arrested by two police officers at her correct address at O. Street. She was subsequently escorted to the clinic . She was examined by two psychiatrists several hours later and discharged on the same day .

14. On 2 December 2007 the applicant ’ s mother was found dead in a basement of her house. She had committed suicide by hanging herself.

15. In a psychiatric opinion dated 3 December and served on the court on 6 December 2007, psychologist M.K.S. and psychiatrist T.J. summarised the interview held with the applicant ’ s mother on 30 November 2007. They noted that she had not had psychotic symptoms and had not reported suicidal thoughts or tendencies. They diagnosed her as suffering from an adjustment disorder ( zaburzenia adaptacyjne ). The experts further declared that at the material time she had been able to understand the significance of her act ion s and that, regard being had to her general mental health, she was fit to stand trial.

16 . On 6 December 2007 the Gostyń police discontinued an investigation concerning a suspicion that third parties might have assisted the applicant ’ s mother in committing suicide, having regard to the opinion of the doctor who had declared her dead that there was no indication that any third parties had been involved . The decision concluded that the most likely cause of the suicide was nervous breakdown ( załamanie nerwowe ) .

17. On 18 March 2008 the applicant requested the Poznań Appellate Prosecutor to verify whether the investigation and proceedings in respect of her mother had been conducted properly. She submitted that the attempted suicide in June 2007 and her fragile mental state should have prompted the authorities to conduct the proceedings with particular diligence. Instead, summonses had twice been sent by psychiatrists to the wrong address and they had never been served on her. The court had ordered that she be arrested and taken to the psychiatric clinic. She had been seriously traumatised by the arrest, as indicated by the fact that she had committed suicide on the day after the examination.

18 . Th at complaint was forwarded to the President of the Poznań Regional Court , who replied on 21 April 2008. The relevant part of his letter read s:

“It is true that the experts, apparently by mistake, sent the summonses to the wrong address, but the court was not aware of this and that is why it ordered that she should be escorted to the examination [by the police]. There are no grounds on which to conclude that the court ’ s decision was wrong, but there can be no doubt that it was based on a wrong premise [ nie ma zatem podstaw do przyjęcia , że postępowanie sądu było błędne , natomiast niewątpliwie opierało się na bł ę dnych przesłankach ].”

19 . On 22 September 2008 the applicant requested the Poznań Regional Prosecutor to institute a criminal investigation in order to identify the persons responsible for her mother ’ s arrest which, in her opinion, had led to her suicide. She submitted that her mother had already tried to commit suicide in June 2007; that at the material time her mental condition had been precarious; and that the psychiatrists had sent the summonses to the wrong address despite the fact that the correct address had been available in the file. The judge had also failed to check whether the summonses had been sent to the correct address and whether they had been duly served on her. As a result, she had been arrested by the police in the early hours of 30 November. Her neighbours had told the applicant that during the arrest her mother had been crying. The applicant submitted that her mother had been an elderly, fragile person on the brink of a nervous breakdown and that the manner in which the case had been handled had driven her to commit suicide.

20 . On 13 October 2008 the request was forwarded to the Gostyń District Prosecutor .

21. On 18 November 2008 the Gostyń District Prosecutor refused to institute an investigation, having examined the case under Article s 231 and 151 of the Criminal Code (see paragraphs 31-33 below). I t was confirmed that the summonses to attend the psychiatric examination had twice been sent to the wrong address and had never been served on the applicant ’ s mother. The prosecutor was of the view that the court could not be held responsible for th at error. It had not known the defendant ’ s correct address as the entire case file had already been forwarded to the experts at that time. The applicant ’ s submission that there was a causal link between the defendant ’ s arrest on 30 November 2007 and her suicide two days later was too categorical. There were no grounds on which to accept that the prosecuting authorities, the police or the court had failed to perform their duties properly or that the applicant ’ s mother had been driven to suicide as a result of such failure .

22 . The written grounds of that decision did not refer to any evidence other than the file of the criminal case against the applicant ’ s mother.

23 . The applicant appealed. She argued that her mother had suffered from depression caused by the transaction she considered fraudulent and that the authorities had been well aware of this. The court had relied on her earlier attempt to commit suicide when ordering the psychiatric examination. Appropriate regard had not been had to the fact that she was psychologically fragile. The authorities had failed to conduct the criminal case against her properly . No steps had been taken by the court to establish her correct address, although it had been available in the case file, in order to serve the summonses correctly. As a result of th at failure, her mother had been arrested on 30 November 2007. The arrest had been tremendously traumatic for her . In the applicant ’ s opinion, t he fact that her mother had committed suicide just after the examination was proof that t he opinion prepared by the experts after her death to the effect that she was fit to stand trial was worthless.

24. On 13 March 2009 the Leszno District Court examined the appeal. The applicant did not attend the hearing. In a decision rendered on the same day the District Court dismissed the appeal. The relevant parts of the written grounds of this decision, numbering one-and a half page read as follows:

“The appellant ’ s submission that there was a well-founded suspicion that a criminal offence had been committed could not be shared [by the court] in respect of:

- the prosecutor, because ... he had a right to draw up a bill of indictment within fourteen days of the investigation being closed and he did so in the present case;

- the judge conducting the proceedings, as he was entitled to appoint psychiatrists to the case with a view to checking whether the defendant could stand trial and to order that the defendant be taken to the psychiatric examination under police escort; he did so as he had been informed in writing that the defendant had twice failed to comply with summonses;

- the experts in so far as they failed to foresee that [the applicant ’ s mother] would make another suicide attempt, this time a successful one, as they gave their opinion in accordance with their best knowledge and conscience; ...

It is true that the police escort order given by the court failed to take into consideration that the experts had sent the summonses to the wrong address, but the court could not know that, given that at the time the case file had already been forwarded to the experts. This, however, cannot change the assessment of the events from the point of view of criminal responsibility, in particular as to the presence of a causal link between the [applicant ’ s mother] being taken to the examination by police escort and her subsequent attempt to commit suicide.”

25. Subsequently the applicant requested the Regional Agent for Disciplinary Matters ( Okręgowy Rzecznik Odpowiedzialności Zawodowej ) of the Wielkopolska Chamber of Physicians ( Izba Lekarska ) to institute disciplinary proceedings against the psychiatrists.

By a decision of 18 December 2009 the Agent discontinued the investigation, having questioned the psychiatrists. He referred to the fact that the service confirmation slips sent to the applicant ’ s mother had not been served on the psychiatrists. This suggested that the summonses had been properly served on her. As she had failed to comply with the summonses, they had no choice but to inform the court accordingly. The defendant had subsequently been arrested by the police for the purposes of the examination. The psychiatrists had explained that the defendant ’ s conduct during the examination was not such as to justify her immediate psychiatric internment. Their opinion had therefore been well-founded and they had no case to answer.

26. The applicant appealed. She reiterated that information about her mother ’ s accurate address had been in the case-file which the psychiatrists had had at their disposal. They had failed to act diligently by establishing her address correctly. They were aware of her earlier attempt to commit suicide but still they had found her able to stand trial. She reiterated that the arrest and taking her to the clinic under the police escort were traumatising and dishonourable for her mother who felt belittled thereby in the eyes of her friends and neighbours .

27. By a decision of 6 February 2010 the Regional Court for Disciplinary Matters of the Wielkopolska Region ( Okręgowy Sąd Lekarski ), sitting in camera , upheld the contested decision. It was of the view that the fact that the psychiatrists had sent the summonses to the wrong address amounted to a formal shortcoming, but it did not have an impact on or had not caused the later tragic events. Similarly, in so far as the applicant had complained about her mother ’ s arrest by the police, this could not be held against the doctors. The arrest had been ordered by the court in the context of the criminal proceedings, not by the doctors. It was further stated that the psychiatric opinion drawn up by the two psychiatrists was correct, and the diagnosis they had made not open to criticism.

B. Relevant domestic law and practice

28. Article 151 of the Criminal Code reads:

“Whoever by persuasion or by rendering assistance induces a human being to take his or her life shall be subject to the penalty of the deprivation of liberty for a term of between 3 months and 5 years.”

29 . Article 231 of that Code provides:

Ҥ 1. A public official who, exceeding his authority or failing to perform his or her duty, acts to the detriment of a public or individual interest, shall be subject to the penalty of deprivation of liberty for up to 3 years.

§ 2. If the perpetrator commits the act specified in § 1 with the purpose of obtaining financial or personal gain, he or she shall be subject to the penalty of deprivation of liberty for a term of between 1 and 10 years.

§ 3. If the perpetrator of the act specified in § 1 above acts unintentionally and causes substantial damage, he or she shall be subject to a fine or restriction of personal liberty or deprivation of liberty for a period not exceeding 2 years.“

30 . The Supreme Court, in a decision of 25 February 2003 (WK 3003) , held that only a public official acting intentionally and with intent to act to the detriment of the victim could be charged with the offence stipulated in Article 231 § 1 of the Criminal Code.

COMPLAINT

31. The applicant complained that the State had treated her mother in an inhuman manner which led to her suicide and that it had failed in its obligation to investigate the circumstances of her death in accordance with the standards of fair hearing. She relied on Articles 3 and 6 of the Convention.

THE LAW

32. The applicant complained under Articles 3 and 6 of the Convention that the State had treated her mother in an inhuman manner which led to her suicide and that it had failed in its obligation to carry out investigation into the circumstances of her death.

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, finds that these complaints fall to be examined under the procedural limb of Article 2 of the Convention (see, among many other authorities, Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 54, 17 September 2009; Ruszkowska v. Poland , no. 6717/08 , § 37, 1 July 2014 ) which 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.

2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”

33 . The applicant submitted that the experts had twice sent summonses to the wrong address. Her mother ’ s arrest had been decided while the entire case file had been in the possession of the experts; the file had not even been on the premises of the court at the time. The Gostyń District Court when giving its decision had failed to check whether the summonses had been properly served or whether they had been sent to the correct address . Her mother had been arrested at 6.30 a.m., but she had been examined only several hours later. She had been held in custody throughout that time and her mental condition during that time remained unknown.

34 . The applicant further submitted that her mother had been found dead on 2 December 2007 and she was assumed to have died on that date. However, it was highly likely that she had committed suicide immediately after the examination, that is, on 1 December 2007. The applicant was convinced that there was a causal link between the criminal proceedings instituted against her mother, the manner in which they were conducted, and her subsequent suicide. Her mental state had been fragile and the court had been well aware of that. The ill-founded decision to arrest her had led to her mental breakdown and therefore to her death by suicide.

35. The applicant averred that her efforts to obtain redress for her mother ’ s suicide had been unsuccessful. The authorities had wrongly sought to establish criminal responsibility on the basis of intent to act to the victim ’ s detriment. This, in itself, was incompatible with the State ’ s obligations under Article 2 of the Convention. The applicant acknowledged that under that provision the State was not obliged to find that the public officials were responsible for the death; however, she considered that an effective procedure should have been provided by the legal system. In the present case, not only had the court erred in deciding that her mother should be arrested, but other authorities had subsequently wrongly endorsed that decision. They had erroneously relied on the fact that the case file had not at the material time been on the premises of the court. The investigation could therefore not be regarded as effective.

36 . The Government were of the view that there was no causal link between the actions of the public officials in the case and the applicant ’ s mother ’ s suicide. The first suicide attempt had already occurred in June 2007, before the authorities had instituted the criminal investigation against her. It was therefore not open to doubt that the authorities could not be held responsible for her suicide in December 2007.

37. In so far as the applicant argued that the authorities had failed to have due regard to her mother ’ s fragility, the Government stressed that the court had ordered the psychiatric examination precisely with a view to establishing whether her mental state was such that she could be held criminally responsible. Further, bearing in mind her previous suicide attempt, the court had appointed a legal-aid lawyer in the case to assist her. Her arrest had been carried out in accordance with the applicable legal procedure. It could further be seen from the expert opinion of 3 December 2007 that after the arrest the applicant ’ s mother had not shown any signs that would support a conclusion that she presented a suicide risk. There was therefore no basis to accept that the arrest had indeed shocked or traumatised her.

38. They further argued that it was doubtful that the applicant ’ s mother had indeed suffered from depression. She had been diagnosed merely with a “depressive reaction” (see paragraph 4 above). At the time of her death she had not been in the hands of the State authorities. She had hanged herself two days after the examination. She had directly and intentionally brought about her own death. The Government concluded that the applicant ’ s mother ’ s death could not be attributed to any acts or omissions on the part of the authorities.

39 . The Government further argued that the mere fact that the authorities had refused to institute criminal proceedings in respect of the applicant ’ s allegations did not suffice for a finding that the investigation had been ineffective. The prosecution had examined the case under Articles 231 and 151 of the Criminal Code . For the former offence a direct intention on the part of the public official to act to the victim ’ s detriment was necessary. They referred to the relevant case-law of the Supreme Court (see paragraph 30 above). No such intent had been established in the case of the public officials concerned. There had been no grounds on which to bring charges against them. The prosecution had examined the case seriously, without any preconceived ideas. In the exercise of his functions the prosecutor had been supervised by an impartial court, which had subsequently upheld his decision not to prosecute.

40. The Government concluded that there had been no breach of the Convention in the present case.

41. The Court observes that the procedural obligation to carry out an effective investigation under Article 2 has evolved into a separate and autonomous duty (see Å ilih v. Slovenia [GC], no. 71463/01, § 159, 9 April 2009) . Further, that procedural obligation has not been considered dependent on whether the State was ultimately found to be responsible for the death. When an intentional taking of life is alleged, the mere fact that the authorities are informed that a death has taken place gives rise ipso facto to an obligation under Article 2 to carry out an effective official investigation (see YaÅŸa v. Turkey , 2 September 1998, § 100, Reports of Judgments and Decisions 1998-VI, and Süheyla Aydın v. Turkey , no. 25660/94, § 171, 24 May 2005). In cases where the death was caused unintentionally and to which the procedural obligation is applicable, this obligation may come into play upon the institution of proceedings by the deceased ’ s relatives (see Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 51, ECHR 2002 ‑ I, and Vo v . France [GC], no. 53924/00, § 94, ECHR 2004-VIII). What is more, on several occasions a breach of a proc edural obligation under Article 2 has been alleged in the absence of any complaint as to the substantive aspect of Article 2 ( Calvelli and Ciglio , cited above, § 41-57, and Byrzykowski v. Poland , no. 11562/05, §§ 86 and 94-118, 27 June 2006).

42. The absence of any direct State responsibility for the death of an individual does not exclude the applicability of Article 2. The procedural obligations flowing from that Article require that there should be some form of effective official investigation when there is reason to believe that an individual has sustained life-threatening injuries in suspicious circumstances. The investigation must be, inter alia , thorough, impartial and careful. The investigation must also be effective in the sense that it is capable of leading to the identification and punishment of those responsible. This is not an obligation of result, but of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death. Any deficiency in the investigation which undermines its ability to establish the cause of death or the person responsible will risk falling foul of this standard (see, among many other authorities, Anguelova v. Bulgaria , no. 38361/97, §§ 136 ‑ 39, ECHR 2002 ‑ IV with further references). In all cases the next of kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interest (see, for example, Byrzykowski v. Poland , cited above, § 95 ).

43. Turning to the circumstances of the present case, t he Court notes that the applicant ’ s mother was found dead in her apartment on 2 December 2007 and that ultimately it was decided to discontinue the investigation.

44. In so far as the applicant contested the findings of the domestic authorities with regard to the existence of causal link between the conduct of the proceedings, in particular her mother ’ s arrest on 30 November 2007 and her being taken to the psychiatric examination under escort and her subsequent suicide, the Court has no reason to question those findings .

45. The Court further notes that shortly after the applicant ’ s mother death, on 6 December 2007, the police discontinued an investigation, finding no third party involvement in her suicide.

46. Subsequently the applicant requested the appellate prosecutor to check whether this first set of investigation had been conducted properly. Approximately six months later she requested that a criminal investigation concerning the circumstances of her mother ’ s death and, in particular, possible responsibility for her suicide of persons acting in their official capacity in the criminal proceedings previously conducted against her mother be instituted. The Court observes that her request was promptly complied with as on 13 October 2008 her request was forwarded to the Gostyń District Prosecutor. The prosecutor discontinued the proceedings on 18 November 2008, having examined the case-file.

47. The prosecuting authorities were of the view that no causal link could be established between the acts of persons acting in their official capacity and the applicant ’ s mother ’ s suicide. The prosecutor held that no one had a case to answer and that there were no grounds on which to find that any person involved in the criminal case against the applicant ’ s mother had failed to perform their duties or that the applicant ’ s ’ mother had been driven to suicide as a result of such failure. The prosecutor disagreed with the applicant ’ s arguments to the effect that there had been a causal link between the conduct of the persons dealing with the criminal case against the applicant ’ s mother and her subsequent suicide.

48. In so far as the applicant argued that the authorities had failed to show appropriate regard to her mother ’ s fragile psychological state, the Court observes, firstly, that the court conducting criminal proceedings against her appointed a lawyer under legal aid scheme with a view to assisting her in the proceedings. Furthermore, that court had ordered that expert witnesses prepared a report in the case precisely with a view to establishing her mental state and to check whether she could be held criminally liable.

49. The Court notes that the applicant could take part in the proceedings, present her point of view and lodge an appeal against the discontinuation of the proceedings. She did not request any specific measures to be taken during the investigation. In such circumstances, it cannot be said that the authorities disregarded her requests concerning the taking of the evidence.

50. The Court finds that the conclusions of the prosecuting authorities are not arbitrary or otherwise open to criticism.

51. The prosecutor ’ s findings were subsequently fully endorsed by an independent court. The District Court, in its decision of 13 March 2009, shared the prosecutor ’ s conclusion about the absence of a causal link between the applicant ’ s mother ’ s suicide and the earlier events linked to the criminal proceedings against her. Having regard thereto, the Court sees no reason to doubt the thoroughness and correctness of the investigation.

52. The Court considers that the investigation succeeded in elucidating the circumstances which were relevant to the issue of the determination of responsibility of the persons involved in the conduct of criminal proceedings against the applicant ’ s mother for her subsequent suicide. It does not find any grounds to contest the findings of the investigation. It further notes that there were no delays in the investigation.

53. The Court also notes that in disciplinary proceedings against the psychiatrists were conducted at the applicant ’ s request before the Wielkopolska Disciplinary Agent and the Regional Disciplinary Court of the Chamber of Physicians. Both the Agent and the court concluded that there was no evidence of medical malpractice. The Court notes that the disciplinary court questioned both psychiatrists involved in the case. It sees no reason to doubt the thoroughness and correctness of the disciplinary proceedings.

54. Having regard to the above background, the Court considers that the domestic authorities dealt with the applicant ’ s claim arising out of her mother ’ s death with the level of diligence required by Article 2 of the Convention.

55. It follows that 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.

Fatoş Aracı Ineta Ziemele Deputy Registrar President