FIRST SECTION

DECISION

Application no. 49210/15 Barbara KLAK against Poland

The European Court of Human Rights (First Section), sitting on 6 April 2021 as a Committee composed of:

Erik Wennerström, President, Krzysztof Wojtyczek, Lorraine Schembri Orland, judges, and Liv Tigerstedt , Deputy Section Registrar ,

Having regard to the above application lodged on 30 September 2015,

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 Barbara Klak, is a Polish national, who was born in 1968 and lives in Poznań. She was represented before the Court by Mr W. Zielonacki, a lawyer practising in Poznań.

2 . The Polish Government (“the Government”) were represented by their Agents, Ms J. Chrzanowska and subsequently, Mr J. Sobczak of the Ministry of Foreign Affairs.

3 . The applicant ’ s son, D.K. was born in 1990. He suffers from cerebral palsy ( porażenie mózgowe ).

4 . D.K. and the applicant lived together with the applicant ’ s family. In 1994 the applicant moved out of the family home.

5 . D.K. was subsequently taken care of by his maternal grandmother. When D.K. was a minor, from 1998 to 2008, the grandmother held the status of foster parent to D.K.

6 . As an adult, D.K. has a full legal capacity but he continues living with his foster family.

7 . On an unspecified date, the applicant (who has been blind since 2011) joined her mother in taking care of D.K.

8 . By virtue of physiotherapy, by the age of fifteen, D.K. was able to sit, stand (if leaning against an object) and walk aided by another person. He attended school.

9 . Around that time, four doctors that the family had consulted recommended an operation to release contractures in D.K. ’ s legs, which had gradually increased. Surgery was viewed as the first stage of a multi-stage treatment.

10 . On 30 March 2005 D.K. underwent surgery on his knee, groin and other muscles and tendons at Degi State Hospital in Poznań.

11 . This procedure bent D.K. ’ s spine unnaturally and left his body more contracted than before surgery.

12 . Some months after surgery, the doctor in charge of D.K. ’ s treatment recommended further neurological examinations and rehabilitation.

13 . D.K. and the applicant twice refused any further in-patient hospital or surgical treatment.

14 . According to a letter from the local Ombudsman for Patients dated 30 January 2006, the applicant had been actively asking for continued out-patient rehabilitation for her son. Three monthly sessions of such rehabilitation were provided to D.K. by the day-ward of Degi State Hospital (from 29 August through December 2005).

15 . Presently, D.K. cannot sit on his own, stand or walk. He can only lie on his back or stomach or sit in a wheelchair. He requires round-the-clock assistance and care.

16 . On 16 November 2005 the Poznań Regional Agent for Disciplinary Matters ( Okręgowy Rzecznik Odpowiedzialnosci Zawodowej ) registered the applicant ’ s complaint that the administration of Degi State Hospital had concealed medical errors committed during the treatment of her son and that they had been refusing to offer him post-surgery physiotherapy.

17 . On 18 January 2006 the Poznań Regional Agent for Disciplinary Matters ( Okręgowy Rzecznik Odpowiedzialności Zawodowej Lekarzy ), having examined the case material, refused to open disciplinary proceedings. He ruled that no errors had been committed during D.K. ’ s surgery and that the applicant had been uncooperative by refusing further hospital treatment.

18 . The applicant appealed against that decision two weeks after the statutory deadline of which she had been informed in the standard instruction attached to the decision.

19 . On an unspecified date the applicant lodged a criminal complaint with the local police, alleging that D.K. had been exposed to direct danger to life and limb ( narażenie na bezpośrednie niebezpieczeństwo utraty życia albo wystąpienia ciężkiego uszczerbku na zdrowiu ) on account of the hospital ’ s malpractice during surgery.

20 . On 24 January 2007 the Poznań District Prosecutor ( Prokurator Rejonowy ) opened an inquiry (case no. 2 Ds 303/07). On 30 July 2007 the inquiry was suspended.

21 . On 2 February 2009 the proceedings were resumed (case no.2 Ds 716/09). On 1 June 2009 the inquiry was suspended again because the main case file had been lost.

22 . On 3 September 2013 the Poznań District Prosecutor opened proceedings to reconstruct the case file (case no. 2 Ds 3416/13/10). On 17 October 2013 the prosecutor sought D.K. ’ s medical records from Degi State Hospital. On 21 November 2013 D.K. was questioned by the prosecutor. On an unspecified date the applicant was also questioned in those proceedings. On 9 December 2013 the proceedings for the file reconstruction were completed.

23 . On 10 December 2013 the inquiry was resumed for a second time (case no. 2 ds 4854/13/1). Various actions were taken by the prosecutor from December 2013 onwards. On 19 December 2013 the Prosecutor General ( Prokurator Generalny ) transferred the case to the Szczecin Appellate Prosecutor ( Prokurator Apelacyjny ) for further examination. On 14 January 2014 the Szczecin Appellate Prosecutor assigned the inquiry to the Gorzów Wielkopolski Regional Prosecutor ( Prokurator Okręgowy ).

24 . Around that time D.K. and the applicant were questioned as witnesses.

25 . On 30 January 2014 the prosecutor ordered that additional medical records concerning D.K. be produced by various health care establishments. Those were obtained on an unspecified later date.

26 . D.K. ’ s surgeon, other doctors and medical staff who had been present during surgery and the doctors who had participated in D.K. ’ s diagnosis and treatment were also questioned as witnesses. On 3 March 2014 eight, on 4 March 2014 six, and on 14 and 20 March 2014 two were questioned.

27 . At various dates around that time the prosecutor also questioned three members of the applicant ’ s family.

28 . On 6 March 2014 the prosecutor ordered a report from a multidisciplinary team of medical experts of the Silesia Medical University. On 19 March 2014, the case-file was returned to the prosecutor. No report was produced because a multidisciplinary team could not be constituted.

29 . On 14 April 2014 the prosecutor ordered a medical report from the Warsaw Forensic Medicine Institute to assess whether or not there had been irregularities in D.K. ’ s treatment at Degi State Hospital between 29 March and 22 September 2005.

30 . On 2 October 2014 the report, which was drawn up by six experts in forensic medicine, orthopaedics, neurology and anaesthesiology, was submitted to the prosecutor.

31 . On 8 October 2014 D.K. formally authorised the applicant to act as his proxy in the criminal proceedings in question. On 24 and 29 October all the experts were questioned by the prosecutor in the presence of the applicant.

32 . On 31 October 2014 the Gorzów Wielkopolski Regional Prosecutor discontinued the enquiry, concluding that no criminal offence had been committed.

33 . On 25 March 2015 the Poznań Regional Court ( Sąd Okręgowy ) quashed that decision following an interlocutory appeal by D.K. and returned the case to the prosecutor for further inquiry.

34 . On 27 March 2015 the Gorzów Wielkopolski Regional Prosecutor discontinued the enquiry, concluding that no criminal offence had been committed. That decision was served on the applicant on 2 April 2015.

35 . No further interlocutory appeal against that decision was available.

36 . The applicant submitted that she had not filed a subsidiary indictment ( subsydiarny akt oskarżenia ) because by the time she had been served with the prosecutor ’ s decision, the punishment of the offence had become time-barred.

37 . As established by the Poznań Regional Court in the proceedings under the 2004 Act (see point 6 below), the applicant had, throughout the entire investigation, monitored its course and made numerous requests to the prosecutor, seeking to have the proceedings timely completed.

38 . On 5 December 2014 the Gorzów Wielkopolski Regional Prosecutor filed a motion asking to have the prosecutor, who had originally overseen the investigation, prosecuted for losing the investigation-file.

39 . On 29 December 2015 the investigation was discontinued. On 11 March 2016 the Poznan District Court upheld that decision, following an appeal lodged by the applicant ’ s lawyer.

40 . On 11 June 2014 the applicant ’ s lawyer lodged a complaint under the Law of 17 June 2004 on complaints about a breach of the right to an investigation conducted or supervised by a prosecutor and to a trial within a reasonable time ( Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu przygotowawczym prowadzonym lub nadzorowanym przez prokuratora i postępowaniu sądowym bez nieuzasadnionej zwłoki ) (“the 2004 Act”) about the unreasonable length of the criminal proceedings into the allegations of medical malpractice.

41 . By letter of 15 October 2014, D.K. formally stated that he supported that action.

42 . On 23 January 2015 the Poznan District Court found that the impugned proceedings had lasted unreasonably long and awarded D.K. compensation in the amount of 20,000 Polish zlotys (PLN - approximately 5,000 euros, EUR).

43 . The court explained that, under the 2004 Act, any unreasonableness of investigations was examined in view of several criteria, namely: (i) how timely and how adequate the prosecutor ’ s actions were; (ii) what the character of the case was; (iii) how complex it was, in fact and in law; (iv) what was at stake for the alleged victim; and (v) what the conduct of the parties was.

44 . The court accepted that the complaint under the 2004 Act had been lodged by a party who had been entitled to do so, namely D.K., in so far as he had confirmed that he had supported the lawyer ’ s application.

45 . The court then specified that it had jurisdiction to examine the course of the investigation from 2009 onwards.

46 . On the merits, the court examined in detail the conduct of the prosecutor and found it negligent in many aspects. In particular, in the court ’ s view the prosecutor had failed to ensure that the investigation file had been dispatched correctly to the forensics experts; lost the file; made unsuccessful attempts to find it; failed to take actions that would have advanced the investigation on the merits; failed to inform the superiors about the loss of the investigation file; and had allowed the inactivity to last many years. Only when the loss of the file had come to light in 2013, had the authorities become active. At this stage, activities were undertaken both to reconstruct the investigation-file and to make progress in the investigation. As of 27 August 2013 the investigation had been conducted without delays.

47 . As to the compensation, the court observed that, as a result of the unreasonable length of the investigation, D.K. had suffered harm because he had felt helpless about the prosecutor ’ s inactivity. The court also took note of the great stakes that D.K. had had in the investigation, as well as of his exceptionally difficult life circumstances.

48 . Section 2 of the Law of 17 June 2004 on complaints about a breach of the right to an investigation conducted or supervised by a prosecutor and to a trial within a reasonable time ( Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu przygotowawczym prowadzonym lub nadzorowanym przez prokuratora i postępowaniu sądowym bez nieuzasadnionej zwłoki ) (“the 2004 Act”) which applies also to pre-trial proceedings, reads, in so far as relevant:

“1. A party to proceedings may lodge a complaint that their right to a trial within a reasonable time has been breached [in the proceedings] if the proceedings in the case last longer than is necessary to examine the factual and legal circumstances of the case ... or longer than is necessary to conclude enforcement proceedings or other proceedings concerning the execution of a court decision (unreasonable length of proceedings).”

Pursuant to section 3 of the 2004 Act:

“A complaint may be lodged: ...

in criminal proceedings – by a party or a victim even if he is not a party ... .”

49 . The highest amount that can be awarded for a breach of the right to an investigation conducted or supervised by a prosecutor and to a trial within a reasonable time, is PLN 20,000.

COMPLAINTS

50 . The applicant complained, relying on Articles 6 and 13 of the Convention, that the criminal inquiry into the alleged medical malpractice had been ineffective. In particular, she complained that the proceedings had not been prompt or thorough, because the expert reports were obtained too long after the alleged incident, rendering any examination of her son futile and meaning that they had been drawn up only using historical medical records. In addition, she complained that the closure of the criminal inquiry ten years after the alleged offence had made the remedy of subsidiary indictment unavailable to her.

THE LAW

51 . The applicant complained about the ineffective character of the investigation into her son ’ s medical malpractice claims. She invoked Articles 6 and 13 of the Convention.

52 . Being master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 124, 20 March 2018), the Court considers that this case falls to be examined under Article 3 of the Convention which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

53 . The Government asserted, among other things, that the applicant lacked the status of a victim within the meaning of Article 34 of the Convention. They argued that, in so far as the applicant had complained that the criminal investigation into the alleged medical malpractice committed during the treatment of her son, D.K., had been ineffective, the applicant could not claim to be directly affected by the facts in question. They submitted that the present application was to be distinguished from the cases in which the Court had accepted the standing of the close relatives of victims who had died during the medical procedures complained of (see Lopes de Sousa Fernandes v. Portugal , no. 56080/13, 15 December 2015). In the present case, the applicant ’ s son was alive and, since turning 18, he enjoyed full legal capacity (see paragraph 6 above). Beforehand, his legal guardian was his grandmother (see paragraph 5 above).

54 . Moreover, in the impugned criminal proceedings, it was D.K. and not the applicant who had had the status of the victim. The fact that from 8 October 2014 onwards, he had formally been represented by the applicant in line with Article 51 § 3 of the Code of Criminal Procedure, was irrelevant in this respect. Despite his undeniably vulnerable status, D.K. had been perfectly able to pursue his legal affairs and take procedural actions.

55 . In addition, although the applicant was D.K. ’ s next ‑ of ‑ kin, in the Government ’ s view, she had not had the required proximity of her family tie with her son. In particular, D.K. had not been in the applicant ’ s custody as a child and she had not lived with him until relatively recently. As a result, it could not be said that the applicant had had suffered any emotional distress or damage, or that she had otherwise been personally affected on account of the mere fact that she was D.K. ’ s mother.

56 . Lastly, the Government pointed out that, under the applicable law, the applicant could not have and had not been a party to the proceedings under the 2004 Act. The action lodged by her lawyer had been entertained only because D.K. had formally declared that he had authorised it. Compensation was awarded to D.K. in those proceedings. It follows that it was D.K. and not the applicant who had been a party to those proceedings.             

57 . The applicant argued that D.K. had always required constant care and had been unable to take care of his affairs on his own. The applicant was his closest relative and she had been involved in his medical treatment and in various sets of proceedings related to the impugned medical malpractice. She had obviously been emotionally affected by the fact that her son ’ s condition had deteriorated after the surgery and that there were little or no prospects for improvement.

58 . The principles on the next-of-kin ’ s victim status before the Court are set out in the Court ’ s judgment in the case of Lambert and Others v. France [GC], no. 46043/14, §§ 89 -95, ECHR 2015 (extracts ) .

59 . In summary, to be considered a victim within the meaning of Article 34 of the Convention, the individual concerned must be able to show that he or she was “directly affected” by the measure complained of. Where the application is not lodged by the victims themselves, it is essential for representatives to demonstrate that they have received specific and explicit instructions from the alleged victim on whose behalf they purport to act before the Court. By way of exception from the above-mentioned general rules, the Court has accepted that, if the alleged direct victim is alive, an individual may act on behalf of another where the following criteria are met: (i) the case concerns alleged breaches of Articles 2, 3 and 8 of the Convention at the hands of the national authorities; (ii) the alleged victim is considered vulnerable on account of his or her age, sex or disability, which renders him or her unable to lodge a complaint on the matter with the Court due regard also being paid to the connections between the person lodging the application and the alleged victim; (iii) a risk exists that the direct victim will be deprived of effective protection of his or her rights if the case is not brought on his or her behalf; and (iv) and there is no conflict of interests between the victim and the applicant (see Lambert , cited above, §§ 89-92 and 102).

60 . The Court clarifies at the outset that the present application raises an issue under the procedural limb of Article 3 in so far as it concerns the allegations of shortcomings of the criminal investigation into an alleged medical malpractice during D.K. ’ s medical treatment.

61 . The Court also notes that the applicant lodged the present application without producing any power of attorney or written authority from D.K. and without indicating that she was acting on behalf of her son.

62 . The Court further observes that D.K. can certainly be considered vulnerable on account of his severe physical disability. D.K. suffers from cerebral palsy which makes him physically dependent on others. In fact, all his life, D.K. has been living with and has been taken care of by his maternal grandmother. Nevertheless, D.K. is not in a state of complete dependency (compare and contrast L.R. v. North Macedonia , no. 38067/15, § 48, 23 January 2020). He does not suffer from any mental condition and, since turning 18, he enjoys full legal capacity (see paragraph 6 above). In fact, D.K. was twice questioned by the prosecutor in the criminal investigation which is the subject of the present application (see paragraphs 22 and 24 above). He also expressed his wish to pursue the criminal investigation, thus giving formal consent for the applicant to act as his proxy (paragraph 31 above). Lastly, in the proceedings under the 2004 Act, the applicant communicated with the court by letter, stating that he wished to pursue the length complaint (see paragraph 41 above).

63 . In light of the above, the Court is satisfied that D.K. was mentally and legally fit to make decisions and to take legal actions in respect of the alleged medical malpractice.

64 . The Court also observes that even though the applicant is D.K. ’ s mother, she was not his primary or formal caregiver when D.K. was a minor; and she did not live with him. On the other hand, the Court will take into account the fact that the applicant was actively involved in the impugned investigation (see paragraph 37 above) and that the investigating authorities allowed for her involvement. This element, in turn, may be indicative of the fact that no conflict of interests existed between the applicant and D.K. Overall, however, the Court is not convinced that the applicant had suffered emotional distress or damage or that she had otherwise been personally affected – even indirectly or by association – on account of the mere fact that she was D.K. ’ s mother and that she pursued the impugned criminal proceedings (compare and contrast Belli and Arquier-Martinez v. Switzerland , no. 65550/13, § 97, 11 December 2018).

65 . The Court acknowledges that D.K. would have surely encountered certain practical difficulties if he had wished to formulate and introduce his application with the Court. He could have nevertheless availed himself of the option of acting through the applicant as proxy in order to lodge his application with the Court on his own behalf. In this regard, the Court notes that the applicant did not demonstrate that she had received specific and explicit instructions from D.K. (see, mutatis mutandis , Post v. the Netherlands , (dec.), no. 21727/08, 20 January 2009). Moreover, the Court notes that D.K. was a party to the proceedings before national courts.

66 . Lastly, as to the risk that D.K. would be deprived of effective protection of his rights if the case is not brought on his behalf, the Court reiterates that the present application concerns procedural aspects of Article 3 of the Convention, namely an alleged shortcoming in the criminal investigation into the notice of medical malpractice. In this connection, the Court finds that the impugned investigation appears to have indeed been marked by several flaws – all stemming from delays and lack of diligence on the part on the first prosecutor. In particular, in 2007, six months into the investigation, the proceedings were suspended. They were resumed in 2009 only to be suspended again because the case file had been lost. The file was reconstructed, and the investigation was resumed only in late 2013. At that time, the investigation picked up speed but, because of the initial inactivity, the expert reports on D.K. ’ s medical treatment and other testimony ultimately obtained by the prosecutor, could indeed be of a lesser probative value since years had passed since the events under investigation. When the investigation was at last, completed in March 2015, the statutory time-limit for the prosecution of the offence in question had lapsed.

67 . Against these elements, the Court notes that on 23 January 2015 the Poznań District Court awarded D.K. compensation for the sum of EUR 5,000 on account of the first prosecutor ’ s professional failures. The court considered not only the overall unreasonable length of the investigation, but also the prosecutor ’ s negligent conduct and the lack of progress on the merits (see paragraphs 43 and 46 above). The court acknowledged that the protracted investigation would have further consequences for D.K. and that the stakes were very high for him, given the subject matter and D.K. ’ s exceptionally difficult condition (see paragraph 47 above). It is true that that court did not have jurisdiction to examine the prosecutor ’ s conduct between 2007 and 2009 (see paragraph 45 above), but it nonetheless awarded D.K. the highest possible amount for a breach his right to a timely and effective investigation (see paragraphs 42 and 49 above).

68 . In view of the above, the Court considers that, in the circumstances of the present application, the grievance which is at its core could be regarded as fully redressed for D.K. This means that he would not be deprived of the effective protection of his rights if the application that has been brought by the applicant were not examined on the merits by the Court.

69 . The Court therefore concludes that the applicant does not have locus standi in the present case to act on behalf of her son, D.K. It follows that the application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 29 April 2021 .

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Liv Tigerstedt Erik Wennerström Deputy Registrar President