FOURTH SECTION

DECISION

Application no . 75749/13 Jolanta BUKSA against Poland

The European Court of Human Rights (Fourth Section), sitting on 31 May 2016 as a Committee composed of:

Iulia Motoc , President, Krzysztof Wojtyczek , Gabriele Kucsko-Stadlmayer , judges, and Fatoş Aracı, Deputy Section Registrar ,

Having regard to the above application lodged on 21 November 2013,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Ms Jolanta Buksa , is a Polish national, who was born in 1983 and lives in Kasina Wielka .

The circumstances of the case

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

1. Background

3. The applicant became pregnant in July 2009. She felt unwell during her pregnancy on several occasions. In February and March 2010 she was examined by a doctor who did not identify any serious medical problems.

4. On 22 March 2010 the applicant gave birth in the Limanowa hospital to a girl who was diagnosed with abdominal non-malignant tumour in her liver. The baby ’ s condition was critical. On 26 March 2010 the child died during the operation in the Kraków Medical University Hospital.

2. Criminal investigation

5. On an unspecified date shortly after the baby ’ s death, prior to 22 November 2010, the applicant notified the public prosecutor about the alleged offence of manslaughter.

6. On 28 December 2012 the Nowy Targ District Prosecutor decided to discontinue the investigation, being of the view that no criminal offence had been committed. It referred to the experts ’ report of 28 February 2012 by the Kraków Medical University and to a subsequent complementary report opinion by the same University. The experts (gynaecologist and pathomorphologist ) found that there had been no causal link between the doctors ’ negligence during the pregnancy and the baby ’ s death. The experts were of the view that, the doctors had monitored the pregnancy essentially correctly although there had been some negligence. The experts admitted also that there had been no certainty that the ultrasound system in the Limanowa hospital had been in working order. Both the quality of the image obtained and the echogenicity of the abdominal non ‑ malignant tumour in the liver could be the cause of the failure to diagnose the pathology in question. They concluded that the death had essentially been caused by a serious developmental condition, namely the tumor .

7. The applicant appealed, challenging the conclusions reached by the experts. On 10 April 2013 the Limanowa District Court upheld the decision of 28 December 2012 fully sharing the conclusions of the prosecuting authorities and having explained in detail why the prosecution ’ s decision was lawful. The applicant does not provide the exact date when the decision of 10 April 2013 was served on her.

3. Disciplinary proceedings

8. The applicant lodged a complaint with the Kraków Regional Agent for Disciplinary Matters (the Disciplinary Agent). After consulting the experts ’ report and hearing witnesses, the Disciplinary Agent concluded that there had been no evidence of medical malpractice. During the proceedings the applicant was heard. The proceedings were discontinued by the decision of 16 September 2013.

COMPLAINT

9. The applicant complains under Articles 2 and 6 of the Convention that her baby died due to inadequate medical care during her pregnancy on account of outdated equipment used in the Limanowa hospital and that the proceedings in the case cannot be considered fair and impartial.

THE LAW

10. Under Article 2 of the Convention, the application falls to be examined as regards the State ’ s alleged failure to make adequate provision for securing sufficient quality of medical diagnostic equipment in hospitals and the protection of the lives of patients (positive substantive limb of Article 2); the obligation to put in place 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 made accountable (positive procedural limb of Article 2).

11. Even though the applicant didn ’ t pursue a civil remedy in addition to the criminal and disciplinary proceedings, the application cannot be declared inadmissible for non-exhaustion of domestic remedies as the Court ’ s case-law in medical negligence cases against Poland is not categorical on the matter (see a number of cases against Poland where this issue has been left open ( Trzepałko v. Poland ( dec. ), no. 25124/09, § 23, 13 September 2011; Karpisiewicz v. Poland ( dec ), no. 14730/09, 11 December 2012; see also the recently communicated case of Jorgensen and others v. Denmark , no. 30173/12).

12. The first sentence of Article 2 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see, among other authorities, Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 48, ECHR 2002 I, and Wiater v. Poland ( dec. ), no. 42290/08, § 33, 15 May 2012). The Court has previously held that it cannot be excluded that acts and omissions of the authorities in the field of health care policy may in some circumstances engage the State ’ s responsibility under Article 2 (see Powell v. the United Kingdom ( dec. ), no. 45305/99, ECHR 2000 V; Nitecki v. Poland ( dec. ), no. 65653/01, 21 March 2002; and Wiater , cited above, § 34). Where a Contracting State has made adequate provision for securing high professional standards among health professionals and the protection of the lives of patients – which was not contested in the present case – it cannot accept that matters such as an error of judgment on the part of a health professional or negligent co-ordination among health professionals in the treatment of a particular patient, assuming such to have been established, are sufficient of themselves to call a Contracting State to account from the standpoint of its positive obligations under Article 2 of the Convention to protect life (see Powell ( dec. ) , cited above; Byrzykowski v. Poland , no. 11562/05, § 104, 27 June 2006; TrzepaÅ‚ko v. Poland ( dec. ), no. 25124/09, 13 September 2011; and Z. v. Poland , no. 46132/08, § 76, 13 November 2012). It has also held that, with respect to the scope of the State ’ s positive obligations in the provision of health care, an issue may arise under Article 2 where it is shown that the authorities have put an individual ’ s life at risk through the refusal of health care which they have undertaken to make available to the general population (see Cyprus v. Turkey [GC], no. 25781/94, § 219, ECHR 2001 ‑ IV; Nitecki ( dec. ) , cited above; Pentiacova and Others v. Moldova ( dec. ), no. 14462/03, ECHR 2005– I; Gheorghe v. Romania ( dec. ), no. 19215/04, 22 September 2005).

14. If the infringement of the right to life is not caused intentionally, the positive obligation imposed by Article 2 of the Convention to set up an effective judicial system does not necessa rily require the provision of a criminal-law remedy in every case. In the specific sphere of medical negligence the obligation may for instance also be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any liability of the doctors concerned to be established and any appropriate civil redress, such as an order for damages and for the publication of the decision, to be obtained. Disciplinary measures may also be envisaged. However, this obligation will not be satisfied if the protection afforded by domestic law exists only in theory: above all, it must also operate effectively in practice within a time-span such that the courts can complete their examination of the merits of each individual case.

15. In the instant case, the applicant initiated criminal investigation into the events of the case and instituted proceedings in order to establish the disciplinary liability of the medical practitioners concerned under procedure provided for by the laws governing the professional liability of physicians. It was further open to her to bring a civil action in tort against the State Treasury, seeking compensation for her child ’ s death. Hence, there is no indication that there has been any failure on the part of the State to pro vide a procedure whereby the criminal, disciplinary or civil responsibility of persons who may be held answerable could be established.

16. Examining how this procedure worked in the concrete circumstances, it must be noted that the criminal investigation started on an unspecified date, but earlier than 22 November 2010, and came to end on 10 April 2013. The proceedings therefore lasted three years on the whole which does not appear excessive (in contrast Byrzykowski v. Poland , no. 11562/05, 27 June 2006, where seven years after the death the investigation was still pending). The applicant does not complain about any procedural shortcomings, she had access to the file, was informed by the prosecutor of her procedural rights, could participate in the court hearing, she does not allege any failure to take other relevant evidence. Therefore, the applicant ’ s complaint about procedural failure to investigate into the circumstances of her child ’ s death properly should be declared inadmissible as manifestly ill-founded.

17. The Court notes that the applicant ’ s Article 6 complaint is linked to the one examined above (see paragraph 16) and must therefore likewise be declared inadmissible (see Byrzykowski , cited above, §§ 120 ‑ 121).

18. It follows that the applicant ’ s complaint is manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these re asons, the Court unanimously

Declares the application inadmissible.

Done in English and notified in writing on 23 June 2016 .

Fatoş Aracı Iulia Motoc Deputy Registrar President