FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 43457/98

by Józef LEWANDOWSKI

against Poland

The European Court of Human Rights ( Fourth Section) sitting on 15 June 1999 as a Chamber composed of

Mr M. Pellonpää , President ,

Mr G. Ress

Mr A. Pastor Ridruejo ,

Mr L. Caflisch ,

Mr J. Makarczyk ,

Mr V. Butkevych ,

Mr J. Hedigan , Judges ,

with Mr V. Berger, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 17 November 1997 by Józef LEWANDOWSKI  against Poland and registered on 14 September 1998 under file no. 43457/98;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Polish national, born in 1952 and living in Gryfino , Poland .

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

On 29 January 1996 the applicant’s flat was visited by two bailiffs accompanied by an employee of a private security agency. The bailiffs informed the applicant’s wife, who was present in the flat together with her two minor children and two adult members of her family, that they had a warrant for seizure of the movable property located in the flat. They also stated that the warrant had been issued after the applicant, who had been running a small business, had failed to pay social security contributions. The applicant’s wife refused to surrender any property since the outstanding social security contributions had already been paid up and she telephoned her husband. After being informed by his wife about the bailiffs’ attempt to execute the warrant, the applicant spoke on the telephone to one of them and confirmed that he had paid all outstanding social security contributions. Subsequently the bailiffs and the security agent left the flat.

On 30 January 1996 the applicant visited the Gryfino Tax Office ( UrzÄ…d Skarbowy ). After he presented a receipt proving that he had paid all outstanding social security contributions on 10 March 1994, the employee responsible for his account admitted that the warrant had been erroneously issued and apologised to him.

On 31 January 1996 the applicant complained to the Gryfino District Prosecutor ( Prokurator Rejonowy ) about the actions of the bailiffs. He alleged that they had behaved in a threatening manner and one of them was armed. As a result the state of health of the applicant’s wife deteriorated and his children would not stay alone at home. The applicant contended that the bailiffs had breached the peace and abused their powers.

On 25 February 1996 the applicant’s wife died. On an unspecified date the applicant informed the Gryfino District Prosecutor that in his opinion his wife’s death had resulted from the stress caused by the actions of the bailiffs.

On 14 March 1996 the Gryfino District Prosecutor decided to discontinue the investigation of the applicant’s complaint relating to the breach of the peace. He considered that the bailiffs had acted in good faith and had not committed any offence, which was subject to public prosecution. He also advised the applicant that he could bring a private indictment seeking a conviction of breach of peace. On an unspecified date the applicant’s appeal against the decision of 14 March 1996 was dismissed.

On 22 November 1996 the Gryfino District Prosecutor decided to discontinue the investigation of the applicant’s complaint concerning the alleged abuse of powers by the bailiffs. He pointed out that they had refrained from the execution of the warrant as soon as they had been informed that the social security contributions had been paid up. The District Prosecutor further noted that the bailiffs had behaved in a peaceful manner during the incident and that they were always armed with gas pistols during the execution of warrants. With respect to the applicant’s allegation that his wife’s death had resulted from the stress caused by the actions of the bailiffs, the District Prosecutor observed that she had suffered from neurasthenia and had been treated in a psychiatric clinic. He also noted that although she had had problems with blood pressure, she had been satisfied with the treatment she had been receiving and had felt better before her death. The District Prosecutor concluded that there was no causal link between the death of the applicant’s wife, which had taken place almost one month after the incident, and the actions of the bailiffs. On 2 December 1996 the applicant appealed to the Szczecin Regional Prosecutor against the decision of 22 November 1996.

On 19 December 1996 the applicant complained to the Ministry of Finance about the actions of the bailiffs during the incident which had taken place on 29 January 1996. On 29 January 1997 the complaint was transferred to the Szczecin Tax Chamber ( Izba Skarbowa ). On 25 February 1997 the Director of the Szczecin Tax Chamber informed the applicant that the investigation of his complaint had showed that it had been unfounded. He pointed out that the bailiffs had left the applicant’s flat after the applicant had declared that the outstanding social security contributions had been paid up. Moreover, during his visit to the Tax Office on the following day the applicant had not raised any complaints about the behaviour of the bailiffs. The Director also informed the applicant that disciplinary measures had been taken against the employee responsible for the erroneous warrant.

On 28 February 1997 the Szczecin Regional Prosecutor dismissed the applicant’s appeal against the District Prosecutor’s decision to discontinue the investigation considering that there was no causal link between the bailiffs’ actions and the death of the applicant’s wife. He pointed out that the bailiffs had behaved well during the incident and that although the applicant’s wife had become agitated as a result of their attempt to execute the warrant, she had been calm already in the evening following the incident.

On 10 March 1997 the applicant complained to the Poznań Appellate Prosecutor ( Prokuratura Apelacyjna ) about the decision of 28 February 1997. He pointed out that the District Prosecutor had not taken evidence from a certain witness and had not requested an expert medical opinion as to the existence of a causal link between the bailiffs’ actions and his wife’s death. In a letter of 2 April 1997 the Appellate Prosecutor informed the applicant that he had instructed the subordinate prosecutor to reopen the investigation.

On 24 April 1997 the Gryfino District Prosecutor reopened the investigation of the applicant’s complaint concerning the abuse of powers by the bailiffs. On 27 May 1997 the District Prosecutor requested the Medical Academy in Szczecin to prepare an expert opinion on whether there was a causal link between the actions of the bailiffs during the incident in the applicant’s flat on 29 January 1996 and the death of the applicant’s wife on 25 February 1996 and whether her agitation caused by the bailiffs’ actions could have had a negative impact on her state of health.

On 8 July 1997 the Medical Academy issued an expert opinion. It stated that it was impossible to establish the existence of a causal link between the bailiffs’ actions and the death of the applicant’s wife as there was no sufficient medical evidence leading to such conclusion. Furthermore, the opinion stated that although it was possible that the bailiffs’ actions could have had a negative impact on the state of health of the applicant’s wife, there was no evidence supporting such conclusion.

On 21 July 1997 the Gryfino District Prosecutor decided to discontinue the investigation of the applicant’s complaint. He considered that the evidence showed that there was no causal link between the bailiffs’ actions and the death of the applicant’s wife. In particular, the District Prosecutor referred to the depositions of the applicant and his children, who had witnessed the bailiffs’ actions, according to which the incident on 29 January 1996 had not involved the use of force, threats or insults. Although the applicant’s wife and the bailiffs spoke in raised voices, the latter had left the flat after talking on the telephone with the applicant. The District Prosecutor also recalled the conclusions of the expert opinion prepared by the Medical Academy in Szczecin .

On 28 July 1997 the applicant appealed against the decision of 21 July 1997. On 29 August 1997 the Szczecin Regional Prosecutor dismissed the appeal considering that the District Prosecutor had correctly concluded on the basis of the evidence in the case-file that there had been no causal link between the bailiffs’ actions and the death of the applicant’s wife.

On 17 September 1997 the applicant complained to the Prosecutor General about the decision to discontinue the investigation. On 2 October 1997 his complaint was transmitted to the Poznań Appellate Prosecutor. On 31 October 1997 the Poznań Appellate Prosecutor informed the applicant that after inspecting the case-file he had concluded that all the circumstances of the case had been properly investigated and, as there had been no evidence that any crime had been committed by the bailiffs, the District Prosecutor had rightly decided to discontinue the investigation.

COMPLAINTS

The applicant complains under Articles 1 and 2 of the Convention about the actions of the bailiffs which took place on 29 January 1996 and allegedly resulted in the death of his wife, and the subsequent refusal of the authorities to prosecute the bailiffs. Furthermore, he alleges a breach of Article 6 with respect to the investigation of his complaints by the prosecution. The applicant also invokes Article 5 of the Convention.

THE LAW

1. The applicant complains about the actions of the bailiffs which took place on 29 January 1996 and allegedly resulted in the death of his wife and the subsequent refusal of the authorities to prosecute the bailiffs. He relies on Articles 1 and 2 of the Convention which read:

Article 1

“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.”

Article 2

“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.”

With respect to the applicant’s complaint that his wife’s death on 25 February 1996 resulted from the actions of the bailiffs who on 29 January 1996 had visited his flat and had tried to execute a seizure warrant, the Court notes that the expert medical opinion prepared on 8 July 1997 by the Medical Academy in Szczecin and signed by two professors of medicine and a doctor of medicine stated that it had been impossible to establish a causal link between those two events. The Court further notes that the applicant did not challenge the accuracy of the opinion or the integrity of its authors, either in the domestic proceedings or before the Court. Moreover, it observes that the applicant’s allegations were investigated by the prosecution on two occasions since his appeal against the decision to discontinue the first investigation was allowed by the Poznań Appellate Prosecutor on 2 April 1997. However, the second investigation, which allowed for questioning of the applicant’s son, who had witnessed the incident, and obtaining an expert medical opinion, also resulted in the conclusion that there was no causal link between the actions of the bailiffs and the death of the applicant’s wife.

Furthermore, with regard to the applicant’s complaint about the refusal of the authorities to prosecute the bailiffs, the Court recalls that the obligation to protect the right to life under Article 2, read in conjunction with the State’s general duty under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms in [the] Convention”, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alia , agents of the State (see the Kaya v. Turkey judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, § 86). The Court notes that although the present case did not involve the killing resulting from the use of force, but the death of an individual which occurred 27 days after the actions of the agents of the State had taken place, the national authorities conducted an official investigation of the circumstances relating to the death of the applicant’s wife. The evidence collected in the course of the two aforesaid investigations, including the depositions of the applicant and his children, who had witnessed the incident, as well as an expert medical opinion, did not show the existence of a causal link between the actions of the bailiffs and the death of the applicant’s wife. This finding obliged the prosecution to refuse to lay charges against the bailiffs.

It follows that, as there is no appearance of a violation of either Article 2 or Article 2 in conjunction with Article 1 of the Convention, this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

2. The applicant also complains about the breach of Article 6 of the Convention in relation to the investigation undertaken by the prosecution. However, the Court observes that since those proceedings did not concern the determination of the applicant’s civil rights and obligations or a criminal charge against him, Article 6 is not applicable in the instant case. Accordingly, this part of the application is incompatible ratione materiae with the Convention within the meaning of Article 35 § 3.

3. Insofar as the applicant refers to the breach of Article 5 of the Convention, the Court notes that he did not provide any details of the alleged violation of that provision. In particular, it has not been shown that anyone was deprived of liberty within the meaning of Article 5 of the Convention. The Court considers that no separate issue arises under this provision of the Convention. It follows that this part of the application is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

Vincent Berger Matti Pellonpää Registrar President