FOURTH SECTION

DECISION

Application no . 73311/12 Janina GNIADEK against Poland

The European Court of Human Rights ( Fourth Section ), sitting on 20 January 2015 as a Committee composed of:

Päivi Hirvelä , President, Nona Tsotsoria , Faris Vehabović , judges,

and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 18 October 2012 ,

Having regard to the formal declarations accepting a friendly settlement of the case,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

The applicant, Ms Janina Gniadek , is a Polish national, who was born in 1939 and lives in Kraków . She was represented before the Court by Ms M. Kowacz , a lawyer practising in Kraków .

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

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

On 29 March 2002 the applicant ’ s husband, at that time 67 years old, was feeling unwell at home and was taken by his family to a hospital in Nowa Huta . Two hours after being admitted to the hospital the applicant ’ s husband died.

On an unspecified date the public prosecutor indicted Dr A.S. and tw o other doctors before the Krakó w District Court ( Sąd Rejonowy ).

The trial court held six hearings in 2006 and five hearings in 2008. However , between 19 June 2006 and 29 May 2008 there was a two ‑ year ‑ long period of inactivity of the trial court.

On 6 November 2009 the Kraków District Court convicted Dr A.S and Dr R.F. of exposing the applicant ’ s husband to danger in breach of Article 160 § 2 of the Criminal Code (II K 2064/05/N). The first accused was sentenced to one year and six months ’ imprisonment suspended on probation and the second accused to one year ’ suspend ed sentence. Another doctor, T. C.-P., was acquitted. The court established that both doctors when dealing with the applicant ’ s husband had failed to carry out some standard medical procedures which had been necessary given the patient ’ s condition. The court relied on two expert opinions provided by the Warsaw and Silesian Medical Academy Institutes of Forensic Medicine.

Both accused and the prosecutor appealed against the judgment.

On 4 March 2010 the Kraków Regional Court allowed the appeals and remitted the case (IV Ka 87/10). The court considered that both expert opinions had been unsatisfactory and the trial court had failed to clarify inconsistences between the opinions.

On 29 November 2011 the Krakó w District Court again convicted Dr A.S. and Dr R.F. of unintentionally exposing the applicant ’ s husband to danger in breach of Article 160 § 3 of the Criminal Code (VIII K 555/10/N). The first accused was sentenced to 3,000 Polish zlotys (PLN) fine and the second to PLN 2,000 fine.

The accused, the prosecutor, and the applicant acting as an auxiliary prosecutor, appealed. The applicant in her appeal complained about legal qualification of the offence committed by the accused. She argued that taking into account the gravity and extent of errors committed by both accused their failure to act should not be considered as unintentional. Both accused were experienced doctors, Dr A.S. was the head of the unit , therefore their actions fulfilled the description of the offence prohibited by Article 160 § 2 of the Criminal Code.

On 10 May 2012 the Krakó w Regional Court quashed the judgment and discontinued the case. The court considered that the period of prescription for the offence prohibited by Article 160 § 3 of the Criminal Code was ten years if criminal proceedings had been instituted. Thus, in the instant case the offence had become time-barred on 29 March 2012. The judgment was final.

COMPLAINT

The applicant complained about lack of effective and thorough investigation into the death of her husband. Due to the length of the proceedings the doctors responsible for the death of her husband had not been punished.

THE LAW

On 16 October 2014 the Court received the following d eclaration from the Government:

“ I, Justyna Chrzanowska, Agent of the Government, declare that the Government of Poland offer to pay Janina Gniadek, with a view to securing a friendly settlement of the above-mentioned case pending before the Euro pean Court of Human Rights, PLN 40,000 (forty thousand Polish zlotys ) to cover any and all pecuniary and non-pecuniary damage as well as costs and expenses, plus any tax that may be chargeable to the applicant.

This sum will be payable within three months from the date of notification of the decision taken by the Court to strike the case out of its list of cases. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from 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 payment will constitute the final resolution of the case. ”

On 27 October 2014 the Court received the following declaration signed by the applicant:

“ I, Janina Gniadek , note that the Government of Poland are prepared to pay me, with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights, PLN 40,000 ( forty thousand Polish zlotys ) to cover any and all pecuniary and non ‑ pecuniary damage as well as costs and expenses, plus any tax that may be chargeable to me.

This sum will be payable within three months from the date of notification of the decision taken by the Court to strike the case out of its list of cases. From the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

I accept the proposal and waive any further claims against Poland in respect of the facts giving rise to this application. I declare that this constitutes a final resolution of the case. ”

The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of the application.

In view of the above, it is appropriate to strike the case out of the list.

For these reasons, the Court, unanimously,

Decides to strike the application out of its list of cases in accordance with Article 39 of the Convention.

Done in English and notified in writing on 12 February 2015 .

FatoÅŸ Aracı Päivi Hirvelä              Deputy Registrar President