FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 42265/98

by Władysław WARWAS

against Poland

The European Court of Human Rights ( Fourth Section) sitting on 20 April 1999 as a Chamber composed of

Mr M. Pellonpää, President ,

Mr A. Pastor Ridruejo,

Mr L. Caflisch,

Mr J. Makarczyk,

Mr V. Butkevych,

Mr J. Hedigan,

Mrs S. Botoucharova, 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 14 December 1997 by Władysław WARWAS  against Poland and registered on 20 July 1998 under file no. 42265/98;

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

Having deliberated;

Decides as follows:

THE FACTS

The applicant was a Polish national, born in 1930.

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

In March and April 1996 the applicant underwent an operation in the Wrocław Medical Academy hospital. He was discharged on 22 April 1996. Subsequently he repeatedly complained to the hospital that following the surgery his health was very poor, and that as a result of medical negligence of the doctors who had operated him he suffered from continuous acute pains in abdomen.

He subsequently requested that criminal proceedings be instituted against the doctors on charges of bribery, uttering threats and gross medical negligence.

On 30 November 1996 the Wrocław police discontinued the investigation of the applicant’s allegations of bribery and uttering threats, allegedly committed by one of the doctors who had treated him in the hospital, considering that no criminal offence had been committed. Apparently the applicant later lodged an appeal against this decision with the Wrocław District Prosecutor.

On an unspecified later date the prosecutor decided that the case concerning the allegations of medical negligence should be examined separately.

On 6 March 1997 the Wrocław District police headquarters appointed a medical expert in order to examine whether the applicant’s medical treatment had been properly conducted.

On 6 May 1997 the Wrocław-Środmiescie District Prosecutor discontinued the investigations of the charges of medical negligence. The prosecutor had regard to the testimony given by the applicant and to the testimony of two doctors J.K. and A.K.A. who had treated him in March 1996. The court also took into consideration the expert medical opinion drawn up by the experts from the Poznań Medical Academy, and the applicant’s medical files. The court decided that in the light of the evidence gathered in the investigations, the applicant’s allegations of medical negligence were ill-founded. The applicant’s pains of which he had been complaining were not related to the operation, which he had had in March 1996, but to another ailment which required a separate treatment.

The applicant lodged an appeal against this decision.

On 8 September 1997 the Wrocław Regional Prosecutor upheld the decision under appeal, considering that there were no grounds on which to accept that the lower prosecutor had failed to establish the circumstances relevant for the appraisal of the applicant’s complaint and that he had wrongly assessed the evidence gathered in the investigation of the applicant’s allegations.

In a letter of 10 October 1997 to the Wrocław Appellate Prosecutor, the applicant submitted that all the decisions to discontinue the proceedings were utterly wrong, taken in a complete disregard to his bitter suffering, that the medical expert opinion was entirely erroneous and that the prosecutors reached untenable conclusions. He insisted that the investigations be resumed.

In reply of 3 November 1997, the Appellate Prosecutor stated that following the applicant’s letter of 10 October 1997, the case-file had been examined and that in the light of the analysis of the evidence gathered in the case, his complaints had proved to be ill-founded.

On 25 December 1997 the Wrocław-Śródmieście District Prosecutor discontinued the investigations of the applicant’s allegations of bribery and uttering threats. The prosecutor considered, having regard to the testimony given by the applicant and by the same two physicians, that the allegations that one of them had taken bribes from the applicant lacked any factual basis and that the alleged threats uttered on the phone by an unknown person did not amount to a criminal offence.

COMPLAINTS

The applicant complained that his medical treatment was inadequate; that as a result of the operation which had not been carried out correctly, he had been incessantly suffering, that no therapy could soothe his pains, that the doctors had failed to take any reasonable steps to alleviate his suffering, that the conclusions of the medical expert opinion were utterly erroneous, that the prosecutors were wrong in discontinuing the investigations and that he was a victim of flagrant lack of professional medical competence. The applicant invoked Articles 3, 5, 6 and 8 of the Convention.

THE LAW

The Court notes that the applicant died on an unspecified date between 5 October 1998 and 2 November 1998 and that no request has been submitted by his legal successors to pursue the examination of the case.

In these circumstances the Court concludes, in accordance with Article 37 § 1 (c) of the Convention, that it is no longer justified to continue the examination of the present application.

The Court also considers that the facts before it do not appear to disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, the Court finds no reasons of a general character, affecting respect for human rights, as defined in the Convention, which require the further examination of the case by virtue of Article 37 § 1 in fine of the Convention.

For these reasons, the Court, unanimously,

DECIDES TO STRIKE THE APPLICATION OUT OF ITS LIST OF CASES .

Vincent Berger Matti Pellonpää Registrar President