Communicated on 9 May 2018

FIRST SECTION

Application no. 57916/16 Hubert NOWAK against Poland lodged on 29 September 2016

STATEMENT OF FACTS

The applicant, Mr Hubert Nowak, is a Polish national who was born in 1986 and lives in Warsaw. He is represented before the Court by his father Mr A. Nowak, a lawyer practising in Warsaw.

A. The circumstances of the case

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

1. The applicant ’ s accident

At around 11.30 p.m. on 2 January 2006 the applicant was involved in a road accident in Warsaw. He lost control of his car, which overturned and hit an electricity pylon. The pylon broke in half and fell onto the wreckage of the car, with one electricity cable dangling overhead.

The emergency services were informed by a witness and the first ambulance arrived within five minutes. The electricity company was notified of the need to cut the power. Ten minutes later the police and firefighters arrived.

They and the doctor at the scene, A.M., waited for an electrical engineer to arrive. They did not approach the car because of the risk of electrocution. During this period of about thirty-five minutes, no medical attention was given to the applicant, who was unconscious and trapped in the car.

An ambulance carrying resuscitation equipment arrived. The engineer also arrived and the electricity supply was cut off at around midnight.

A.M. examined the applicant through a smashed car window. He found that the applicant had no pulse, was not breathing and that his pupils were not reacting to light. He informed the police and firefighters that the applicant was dead.

Afterwards the ambulance left and a prosecutor was informed that an accident had taken place in which a person had died. A.M. stayed with the police officers and firefighters , who were preparing the equipment and light needed to cut open the car to extract the body.

While they were waiting for the prosecutor, a police officer who had recently arrived looked inside the car with a torch in order to retrieve the applicant ’ s identity documents. At 12.30 a.m. on 3 January 2006 he noticed that the applicant was moving his lips and eyes slightly. He immediately ordered the firefighters to remove him from the car. A.M. approached the police officers and stated: “he is dead, I have examined him”. The ambulance was called back to the scene.

The applicant was removed from the car at 12.50 a.m. and medical attention was provided to him. He was unconscious, breathing and had minor injuries. The prosecutor, who arrived at around that time, ordered that A.M. be tested to check whether he had been under the influence of alcohol.

The applicant was transported to a hospital in Warsaw. He was in a coma for a month after the accident. He was then diagnosed with severe brain damage.

According to a disability certificate dated 8 April 2015 (valid for four years), the applicant ’ s disability is significant in that he needs permanent care and has a very limited ability to live independently.

2. Disciplinary proceedings

Following the findings in an opinion issued by an internal team of doctors on 9 January 2006 (see below), A.M. ended his employment with the Warsaw Regional Emergency Service by mutual agreement.

On 7 April 2006 the Warsaw Regional Agent for Professional Liability ( Okręgowy Rzecznik Odpowiedzialności Zawodowej ) discontinued an investigation into A.M. ’ s conduct. The agent relied on conclusions made by A.Z., the Regional Consultant in Emergency Medicine (see below).

On 14 March 2007, following an appeal by the applicant, the Warsaw Chief Agent for Professional Liability ( Naczelny Recznik Odpowiedzialnosci Zawodowej ) quashed the challenged decision and remitted the case.

On 30 May 2007 the Warsaw Regional Agent for Professional Liability again discontinued the preliminary proceedings. The agent again agreed with the conclusions of the Regional Consultant in Emergency Medicine and reiterated that at the material time there had been no standard medical procedure in place for such cases.

The applicant, who was represented by his father, appealed against that decision. On 7 November 2007 the Chief Agent dismissed his appeal and the decision became final.

3. Criminal proceedings against the doctor

On an unspecified date in 2006 the Warsaw Praga Południe District Prosecutor ( Prokurator Rejonowy ) opened an investigation into the events.

On 12 December 2007 the prosecutor stayed the proceedings. Following an appeal by the applicant this decision was quashed on 12 February 2008 by the Warsaw Praga Południe District Court ( Sąd Rejonowy ).

On 12 April 2008 the applicant lodged a criminal complaint with the Warsaw Praga Południe District Prosecutor ’ s Office ( Prokuratura Rejonowa ) against A.M. (the doctor) and W.K. (the firefighter who had been in charge of the rescue operation). His complaint was joined to the pending investigation.

On 3 September 2009 the prosecutor discontinued the proceedings on the grounds that A.M. had complied with his duty to provide the applicant with the necessary first aid. The applicant appealed. On 29 October 2009 the District Court quashed the decision. On 17 December 2009 the prosecutor again discontinued the proceedings.

On 29 January 2010 the applicant lodged a subsidiary bill of indictment ( subsydiarny akt oskarżenia ) with the Warsaw District Court against A.M. and W.K.

On 25 May 2010 the Warsaw District Court (case no. IV K 108/10) discontinued the proceedings, arguing that W.K. was not a person of interest for the investigation and that A.M. had not committed an offence.

The applicant lodged an appeal against this decision.

On 26 August 2010 the Warsaw Regional Court ( Sąd Okręgowy ) quashed the part of the decision concerning A.M. and remitted the case. It upheld the decision to discontinue the investigation against W.K.

Hearings took place in the Warsaw District Court (case no. IV K 108/10) on 21 December 2011, 30 March, 25 April, 18 July and 29 October 2012, 7 January, 14 March and 21 May 2013, 12 March, 26 May, 24 June, 5 September and 28 November 2014 and 29 January and 27 February 2015.

On 6 March 2015 the court convicted A.M. of exposing the applicant to immediate danger under Article 160 §§ 2 and 3 of the Criminal Code and sentenced him to six months ’ imprisonment, suspended for two years.

The court established, based on an expert opinion dated 13 January 2014, that A.M., despite having medical knowledge, had chosen not to extract the applicant from the car to perform a full general examination and had pronounced his death based on a superficial examination through a smashed car window. The court dismissed the opinions prepared in the course of the investigation by A.Z., the Regional Consultant in Emergency Medicine, on the grounds that they were contrary to the evidence collected, full of contradictions and contained statements that an expert should not have made.

The prosecutor, A.M. and his lawyer appealed against the judgment of 6 March 2015.

On 22 February 2016 the Warsaw Regional Court quashed the challenged judgment and discontinued the proceedings because the offence had become time-barred (the ten-year limitation period had expired).

On 29 April 2016 the applicant ’ s lawyer lodged a cassation appeal.

On 24 November 2016 the Supreme Court dismissed it as manifestly ill ‑ founded.

4. Proceedings under the 2004 Act

On 25 October 2011 the applicant lodged two complaints with the Warsaw District Court under section 5 of the Law of 17 June 2004 on complaints about breach of the right to have a case examined in an investigation conducted or supervised by a prosecutor and in judicial proceedings without undue delay ( 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”).

On 8 December 2011 the Warsaw Regional Court refused to consider his complaint concerning the length of the investigation on the grounds that it had been lodged out of time (case no. VI S 126/11).

On 16 December 2011 the court partially allowed his second complaint concerning the length of the proceedings before the District Court, and awarded him 2,000 Polish zlotys (PLN) (case no. VI S 124/11).

5. Medical evidence

On 9 January 2006 an internal team of doctors supervised by the Director of the Warsaw Regional Emergency Service prepared an opinion on the event. They stated that A.M. had not complied with the correct medical procedure for pronouncing the death of a person trapped in wreckage. In the case of a young man who had not been removed from his car during night time, the death could not be established from a lack of signs of life like breathing or having a pulse. The correct approach would involve removing the victim and commencing resuscitation. The death could be pronounced on the basis of the results of an electrocardiogram (EKG), which ambulances carried as standard equipment.

In the course of the disciplinary proceedings and investigation in 2006 several opinions were prepared by A.Z., the Regional Consultant in Emergency Medicine. He considered that A.M. had acted correctly as there were no generally accepted standards in similar circumstances.

On 12 September 2006 and 7 August 2007 the prosecutor obtained expert opinions which found that there had been no medical malpractice in the way A.M. had handled the rescue operation following the applicant ’ s accident. The second expert also confirmed that the applicant had suffered serious brain damage as a consequence of his accident which had been made worse by his prolonged exposure to low temperatures and an electrical current.

On 14 July 2009 an expert supplemented his opinion concerning the electrical aspects of the accident dated 30 June 2009 and stated that the threat of electrocution had been possible, but if there had been a properly equipped person skilled in removing electrical hazards, he or she could have limited the danger by removing the possible current from the car body.

On 9 December 2009 another expert opinion was issued which concentrated on clear shortcomings in the organisation of the emergency operation, for which A.M. had not been directly responsible. The opinion also stated that the doctor should have been more determined in recommending that the applicant be pulled out of the car for examination.

On 13 January 2014 experts of the Jagiellonian University Collegium Medicum Forensic Medicine Institute issued an opinion. They established that A.M. ’ s actions had not been correct as such an important medical conclusion as pronouncing a person ’ s death could only be made following a direct examination of the victim. However, the doctor had failed to carry out such an examination, even though there had been no visible severe external injuries that could justify not performing an examination (for instance limb amputation, serious crush injuries to the body, visible head/brain injuries). Establishing the victim ’ s death and refraining from providing medical attention to him on the basis of a lack of pulse and the non-reaction of pupils to light had been a mistake. In the circumstances of the case the victim should have been immediately removed from the car, stabilised, and his life functions checked, which would have included the use of an EKG monitor. Refraining from providing the applicant with emergency first aid amounted to exposing him to immediate danger of loss of life or serious body injury.

6. Civil proceedings

Civil proceedings for compensation initiated by the applicant on an unspecified date have not yet terminated.

B. Relevant domestic law

The relevant provisions of the Criminal Code provide as follows:

Article 160 (exposure to immediate danger)

“1. Anyone who exposes a human being to an immediate danger of loss of life, serious bodily injury, or a serious impairment of health shall be subject to the penalty of deprivation of liberty for up to 3 years.

2. If the perpetrator has a duty to take care of the person exposed to danger, he shall be subject to the penalty of deprivation of liberty for a term of between 3 months and 5 years.

3. If the perpetrator of an act specified in § 1 or 2 acts unintentionally he shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to one year.”

Article 101 (statute of limitations)

“Punishment for an offence shall be subject to limitation if, from the time of commission of the offence, the [following] period has expired:

1) 30 years – if an act constitutes a serious offence ( zbrodnia ) of homicide;

2) 20 years – if an act constitutes another serious offence;

2a) 15 years – if an act constitutes an offence making the offender liable to a sentence of imprisonment exceeding 5 years;

3) 10 years – if an act constitutes an offence making the offender liable to a sentence of imprisonment exceeding 3 years;

4) 5 years – in respect of other offences.

...”

180. Pursuant to Article 102, ”

Pursuant to Article 102, if during the limitation-periods referred to in the above provision, an investigation against a person has been opened, punishment for offences specified in § 1 (1-3) shall be subject to limitation after the expiry of 10 years and for other offences after the expiry of five years after the end of the relevant periods.

COMPLAINTS

1. The applicant complains under several Articles of the Convention that the proceedings aimed at clarifying the doctor ’ s responsibility for putting his life and health in danger were excessively long. As a result, the authorities were incapable of promptly deciding on the matter before the expiry of the limitation period. He also complains that the investigation into medical malpractice during the emergency operation of 2 and 3 January 2006 was not effective and thorough.

2. Lastly, the applicant alleges a breach of his right to life, under Article 2 of the Convention, in that the doctor and firefighters failed to provide him with adequate medical assistance after his accident.

QUESTIONS TO THE PARTIES

As regards Article 2 of the Convention

1. Do the facts of the case give rise to a breach of Article 2 of the Convention?

In particular, has the respondent State complied with its positive obligation to set up an effective regulatory framework designed to provide effective and timely assistance to persons whose life is in danger as a result of an emergency (see Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13 , §§ 162-205 , ECHR 2017)?

2. Having regard to the procedural protection of the right to life (see Salman v. Turkey [GC], no. 21986/93, ECHR 2000-VII, § 104), were the criminal proceedings conducted by the domestic authorities in the present case in breach of Article 2 of the Convention?

As regards Article 3 of the Convention

1. Do the facts of the case give rise to a breach of Article 3 of the Convention?

2. Having regard to the procedural protection from torture, inhuman or degrading treatment (see Labita v. Italy [GC], no. 26772/95, ECHR 2000 ‑ IV, § 131), was the investigation conducted by the domestic authorities in the present case in breach of Article 3 of the Convention?

The Government are invited to submit a copy of the medical opinion of 13 January 2014 issued by the Jagiellonian University Collegium Medicum Forensic Medicine Institute.