FOURTH SECTION

DECISION

Application no . 50508/13 Marek and El ż bieta PRASZKIEWICZ against Poland

The European Court of Human Rights (Fourth Section), sitting on 13 October 2015 as a Committee composed of:

Faris Vehabović, President, Krzysztof Wojtyczek, Yonko Grozev, judges, and Fatoş Aracı, Deputy Section Registrar ,

Having regard to the above application lodged on 24 July 2013 ,

Having regard to the declaration submitted by the respondent Government on 24 July 2015 requesting the Court to strike the application out of the list of cases and the applicants ’ reply to that declaration,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

The applicants, Mr Marek Praszkiewicz and Ms Elżbieta Praszkiewicz, are Polish nationals, who were born in 1964 and 1963 respectively and live in Bardo. They were represented before the Court by Ms SÅ‚upska ‑ Uczkiewicz, a lawyer practising in WrocÅ‚aw.

The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, of the Ministry of Foreign Affairs.

The application had been communicated to the Government .

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

On 3 October 2002 the second applicant, who was at that time in the thirtieth week of her pregnancy, assessed earlier as a high-risk pregnancy, was admitted to the Wrocław Medical University Hospital. The labour started in the early hours of 6 October 2002. At 8 a.m. the foetal heartbeat monitoring equipment broke down. As labour was not progressing and the mother ’ s and child ’ s conditions deteriorated, at 8.45 a.m. the decision was taken to perform a caesarean section which was terminated by 9.15 a.m.

The baby, a boy weighing 2 kilograms, was born alive. His condition was assessed at one point on the ten-point Apgar scale. He required urgent medical care and was subsequently transported to another hospital, apparently because the respirator in the birth hospital had also broken down. The child died on 8 March 2003.

A post-mortem examination, which was carried out on 13 March 2003, revealed that the child had died of various postnatal complications.

Following the applicants ’ request of 14 October 2002, the police opened a criminal inquiry into the child ’ s death.

On 27 January 2005 the bill of indictment was issued by the Wrocław District Prosecutor. The prosecutor had regard, inter alia , to two forensic expert opinions concluding that the decision to proceed to a caesarean section should have been taken earlier. Two doctors on duty the critical night were charged with the offence of involuntary manslaughter, punishable under Article 155 of the Criminal Code.

This bill of indictment was subsequently lodged with the Wrocław District Court on 30 May 2005.

On 9 July 2010 the Wrocław District Court acquitted the doctors relying on the medical expert opinions.

The applicants and the prosecutor appealed.

On 13 September 2011 the Wrocław Regional Court quashed this judgment and remitted the case. In particular the court shared an objection made by the applicants as to the use by the first-instance court of a privately commissioned expert opinion.

On 8 October 2011 the case was assigned to a new judge rapporteur of the Wrocław District Court.

On 29 December 2011, 19 January, 23 February, 27 March, 10 May and 28 June 2012 the court issued decisions to seek medical expert opinions from six various medical universities in Poland. Apparently five of them refused to submit opinions, referring to their heavy workload. Only the Bydgoszcz Medical University agreed to prepare their opinion.

On 29 May 2012 the Wrocław Regional Court dismissed the applicants ’ complaint under the 2004 Act concerning the excessive length of the proceedings. The court referred to the difficulties in obtaining the medical expert opinions and held that the court could not be held responsible for such delay.

On 23 April 2014 the Regional Court imposed a fine of 5,000 Polish zlotys (PLN) on the Bydgoszcz Medical University. Upon appeal, this fine was reduced to PLN 500 (equivalent to 125 euros (EUR)).

The parties failed to inform the Court of the following course of the proceedings. They are pending.

COMPLAINT

The applicants complain under Article 2 of the Convention of the lack of an effective and prompt procedure before the domestic authorities concerning the death of their child, allegedly caused by medical negligence in handling his birth.

THE LAW

The applicants complained under the procedural aspects of Article 2 of the Convention about the authorities ’ failure to investigate the circumstances of the death of their baby and to bring the perpetrators to justice.

After the failure of attempts to reach a friendly settlement, by a letter of 24 July 2015 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.

The declaration provided as follows:

“The Government hereby wish to express – by way of the unilateral declaration – their acknowledgement of the violation of Article 2 of the Convention due to the lack of an effective and prompt procedure before the domestic authorities concerning the death of the applicants ’ child.

Simultaneously the Government declare that they are ready to pay to the applicants jointly the sum of PLN 50,000, which they consider to be reasonable in the light of the individual circumstances of the case at issue.

The sum referred to above, which is to cover any pecuniary and non-pecuniary damage, as well as costs and expenses, will be free from any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the Convention. In the event of failure to pay this sum within the three-month period, the Government undertake to pay simple interest on it, from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

The Government respectfully suggest that the above declaration might be accepted by the Court as ‘ any other reason ’ justifying the striking out of the case of the Court ’ s list of cases, as referred to in Article 37 § 1 (c) of the Convention.”

By letter of 18 August 2015, the applicants indicated that they were not satisfied with the terms of the unilateral declaration.

The Court re iterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.

It also re iterates that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicants wish the examination of the case to be continued.

To this end, the Court has examined the declaration carefully in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment ( Tahsin Acar v. Turkey [GC ], no. 26307/95, §§ 75-77, ECHR 2003-VI; WAZA Spółka z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.), no. 28953/03, 18 September 2007 ).

The Court is satisfied that the Government did not dispute the allegations made by the applicants and explicitly acknowledged the breach of Article 2 of the Convention as claimed by them.

As to the intended redress to be provided to the applicants, the Government have undertaken to pay PLN 50,000, equivalent to about 12,000 euros (EUR) in respect of non-pecuniary damage. The Court notes that even if that amount does not exactly correspond to the awards made by the Court in similar cases, what is important is that the proposed sum is not unreasonable in comparison with them (see Cocchiarella v. Italy [GC], no. 64886/01, § 105, ECHR 2006 ‑ V). The Government have committed themselves to paying that sum within three months from the Court ’ s decision, with default interest to be due in case of late payment.

The Court notes that it has repeatedly found violations of Article 2 on account of inadequate investigations into deaths of applicants or their close relatives; including in cases involving alleged medical malpractice (see Tarariyeva v. Russia , no. 4353/03, ECHR 2006 ‑ XV (extracts), Weber and Others v. Poland , no. 23039/02 , 27 April 2010; CiechoÅ„ska v. Poland , no. 19776/04 , 14 June 2011 ; Byrzykowski v. Poland , no. 11562/05, 27 June 2006; Mojsiejew v. Poland , no. 11818/02, 24 March 2009 ). It follows that the complaints raised in the present application are based on the clear and extensive case ‑ law of the Court.

The Court further notes that the Committee of Ministers remains competent to supervise, in accordance with Article 46 § 2 of the Convention, the implementation of judgments concerning similar issues (see Žarković v. Croatia (dec.), no. 75187/12, § 22, 9 June 2015). Therefore, the Court is satisfied that respect for human rights as defined in the Convention (Article 37 § 1 in fine) does not require it to continue its examination of this part of the application. In any event, the Court ’ s decision is without prejudice to any decision it might take to restore, pursuant to Article 37 § 2 of the Convention, this part of the application to its list of cases should the Government fail to comply with the terms of their unilateral declaration (see Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008, and Aleksentseva and 28 Others v. Russia (dec.), nos. 75025/01 et al., 23 March 2006).

The Court thus considers that it is no longer justified to continue its examination of the application.

In view of the above, it is appropriate to strike the application out of the list of cases. This decision is without prejudice to the Government ’ s continuing obligation to conduct an investigation in compliance with the requirements of the Convention (see Žarković, cited above, § 23).

For these reasons, the Court, unanimously,

Takes note of the terms of the respondent Government ’ s declaration under Article 2 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.

Done in English and notified in writing on 5 November 2015 .

Fatoş Aracı Faris Vehabović Deputy Registrar President