Resolution CM/ ResDH ( 2013)208 Byrzykowski against Poland

Execution of the judgment of the European Court of Human Rights

(Application No. 11562/05, judgment of 27/06/2006, final on 27/09/2006)

(Adopted by the Committee of Ministers on 16 October 2013 at the 1181st meeting of the Ministers ’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Having regard to the final judgment transmitted by the Court to the Committee in the above case and to the violation established;

Recalling the respondent State ’ s obligation , under Article 46, paragraph 1, of the Convention , to abide by all final judgments in cases to which it has been a party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with the above-mentioned obligation;

Having examined the action report provided by the government indicating the measures adopted in order to give effect to the judgment including the information provided regarding the payment of the just satisfaction awarded by the Court (see document DH-DD(2013)818 );

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted,

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination thereof.

A ction report [1]

Information on measures aiming at execution of the judgment

in the case of Byrzykowski against Poland

Case description

Byrzykowski , Application N o. 11562/05, judgment of 27/06/2006, final on 27/09/2006.

The case concerns a violation of the right to life due to the deficiencies of the investigation into the death of the applicant ’ s wife while giving birth in a hospit al (procedural violation of Article 2 of the Convention).

In July 1999 , the applicant ’ s wife was about to give birth to their child and was admitted to the Wrocław Medical Academy Hospital. The physicians decided to perform a caesarean section and gave her an epidural, as a result of which she went into a coma. All resuscitation efforts failed and she died on 31/07/1999. Their son, born by caesarean section, suffers from serious health problems, mostly of neurological character, and requires permanent medical attention.

At the applicant ’ s request, a police inquiry was opened and led to the opening on 29/12/1999 of a criminal investigation into the suspected offence of manslaughter. These proceedings were three times discontinued and subsequently resumed.

In August 1999 , the applicant also requested the Regional Medical Chamber to bring disciplinary proceedings against the anaesthesiologist who had taken part in his wife ’ s surgery. Those proceedings were stayed twice because of the pending criminal proceedings.

In July 2002 , the applicant also lodged a compensation claim against the hospital before a Wrocław Regional Court. On 07/04/2003 , those proceedings were stayed, pending the outcome of the disciplinary proceedings.

All of those three proceedings were still pending when the E uropean Court of Human Rights (“ the Court”) issued the judgment in the case.

The Court considered that it cannot accept that matters such as error of judgment on the part of a health professional or negligent co-ordination among health professionals in the treatment of a particular patient are sufficient in themselves to call a Contracting State to account from the standpoint of its positive obligations under Article 2 of the Convention to protect life . [2] However, the positive obligations require an effective independent judicial system to be set up 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.

In the opinion of the Cou rt, despite the fact that proceedings were instituted in which the applicant sought to ascertain the relevant facts and to establish the liability of persons responsible for the handling of his wife ’ s delivery and death, after almost seven years no final decision in any of these proceedings has been given. Prosecution authorities many times criticis ed prosecutors carrying on criminal proceedings on the grounds that the evidence was incomplete and decisions on discontinuation of the investigation were premature because of shortcomings in taking of the evidence. Moreover, the authorities repeatedly referred to other pending proceedings in order to justify staying them or refusal to resume them.

According to t he Court, more general considerations also call for a prompt examination of cases concerning death in a ho spital setting. Knowledge of the facts and possible errors made during the medical care should be quickly established in order to be disseminated among medical staff of a given institution and avoid repetition of similar faults and to ensure safety of the patients under the medical care.

1. Just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Amount

-

20 000 EUR

1 150 EUR

21 150 EUR

Paid on 19/10/2006

2. Individual measures

The European Court awarded just satisfaction in respect of non-pecuniary damage.

The three sets of proceedings that were pending at the time of the Court ’ s judgment have since become final.

In the light of the above, no other individual measure seems necessary.

The European Court found no indication of any failure on the part of the S tate in its obligation to provide a procedure to determine the criminal, disciplinary or civil responsibility of pers ons who might be held liable (§ 106 of the judgment). The finding of a violation in this case resulted from the Court ’ s assessment of how this procedure had worked in the concrete circumstances.

In order to avoid similar violations , the Polish authorities undertook numerous actions aiming at legislative reforms as well as changing of national organs ’ practice.

By an amendment dated 20/02/2009 (in force from 1/05/2009) , the Act on a complaint of breach of the right to a trial by the court with out undue delay of 17/06/2004 was amended. The amended Act provides for the possibility of a complaint in case of excessive length of investigations, if by the action or inactivity of a prosecutor conducting or supervising such proceedings, the infringement of parties ’ right to have a case heard in preparatory proceedings without undue delay took place. According to the amended Act, if the complaint against excessive length of preparatory proceedings is well ‑ founded , the court allowing it may address the court or the prosecutor conducting or supervising such proceedings with binding recommendations as to the conduct of particular proceedings.

The remedy against excessive length of criminal proceedings, with regards to a right to have a case heard within a reasonable time, is currently supervised by the Committee of Ministers in the Kudla group of cases (30210/96) where the Court found violations of Article 6 and 13.

According to the provisions of 29/03/2007 r. (in force from 12/07/2007), in order to simplify and accelerate criminal proceedings, an appeal against the decision to refuse an investigation or to discontinue it shall be lodged directly to the court not via the prosecutor (Article 465 § 2 Code of Criminal Proceedings).

It should also be recalled that , according to relevant provisions of the Code of Criminal Proceedings, a victim of crime, in case when a prosecutor decides to refuse opening of the investigation or to discontinue it, may initiate proceeding s acting as an “auxiliary prosecutor”, follow ing the procedure described in A rticles 329-330 of the Code of Criminal Proceedings.

Prosecutors ’ decisions on non-initiation of the investigation or on its discontinuation, in cases in which a victim may become an auxiliary prosecutor, are subject to the close scrutiny of their superiors, in line with guidelines issued by the Prosecutor ’ s General Office on 30 November 2012. The aim of the guidelines is also to prevent irregularities similar to those found in the judgment Byrzykowski v. Poland.

On 2/12/2009 , the new Chambers of Physicians Act, which regulates the professional responsibility of doctors, was adopted. The Act contains several provisions designed to broaden victims ’ rights in disciplinary proceedings. Article 56 provides a victim with a right to participate in the disciplinary proceedings as a party (before a victim acted only as a witness). Art icle 57 contains the definition of a victim, determines the number of attorneys that the victim may have and provides for a victim ’ s right to access to the case file, that can be restricted only to the extent provided in statutes.

A victim may lodge an appeal against the decision refusing to institute disciplinary proceedi ngs or on its discontinuation (A rticle 68). The new law provides also for the possibility of lodging a cassation appeal to the Supreme Court against a final judgment terminating a disciplinary proceeding before the Chamber.

The amendment dated 9/05/2007 (in force from 20/06/2007) broadened the scope of instruments at the courts ’ disposal for disciplining persons participating in particular criminal proceedings, in t er alia , experts . The amended Article 285 , paragraph 1 , of the Code of Criminal Proceedings provides for the possibility of imposing a penalty of up to 10,000 zlotys for the unexcused absence of the court expert.

The Court pointed to a number of mistakes made by the national authorities in the context of this case. Consequently, in order to avoid similar violations, it seems necessary to publish and disseminate the judgment.

In this context , it should be noted that the judgment was translated and published on the website of the Ministry of Justice ( www.ms.gov.pl ). In addition, in 2011, the Ministry of Justice prepared a special publication containing analysis of the leading jurisdiction concerning Poland – “Standards for the protection of human rights in the law of the European Convention on Human Rights” ( “ Standardy ochrony praw człowieka w prawie Europejskiej Konwencji Praw Człowieka ” ), containing a reference to this judgment, which was distributed free of charge to all judges and prosecutors.

A special publication was also prepared and published on the website of the Ministry of Justice ( www.ms.gov.pl ) – “Obligation of criminali s ation and conduct of effective investigation explaining circumstances of a crime which constitutes a severe violation of human rights” ( “ Obowiązek kryminalizacji i przeprowadzenia skutecznego postępowania wyjaśniającego okoliczności popełnienia przestępstwa stanowiącego poważne naruszenie praw człowieka ” ) . This publication refers , inter alia , to the judgment in the case of Byrzykowski v. Poland.

Additionally information on the judgment in the case of Byrzykowski v. Poland was published at the Public Prosecutor ’ s Office ’ s website . [3]

In March 2012 , the Prosecutor ’ s Office disseminated among prosecutors the Polish translation of the Guidelines of the Committee of Ministers of the Council of Europe on eradicating impunity for serious human rights violations ( “ Wytyczne Komitetu Ministrów Rady Europy ws . zwalczania bezkarności poważnych naruszeń praw człowieka ”). The covering letter to prosecutors underlined the standards of effective investigation elaborated by the Court ’ s case law. A list of the Court ’ s judgments in which the Court found that Polish authorities did not conduct effective investigation included , inter alia , the judgment in the case of Byrzykowski , and indicated the most common failures of investigations.

Taking these circumstances into consideration, additional measures of a general nature do not seem necessary.

The g overnment consider s that no further individual measures are necessary in this case and that the measures adopted of a general nature, in particular the legislative changes and the publication and dissemination of the judgment of the European Court of Human Rights , will be sufficient to be said that Poland fulfilled its obligations under Article 46 , paragraph 1 of the Convention.

[1] Information submitted by the Po lish authorities on 9 July 2013.

[2] §104 of the judgment .

[3] http://www.pg.gov.pl