Communicated on 22 September 2017

FIRST SECTION

Application no. 24913/15 Teres a JABŁOŃSKA against Poland lodged on 12 May 2015

STATEMENT OF FACTS

The applicant, Ms Teres a Jabłońska, is a Polish national, who was born in 1954 and lives in Warsaw. She is represented before the Court by Mr L. Brydak, a lawyer practising in Warsaw.

The circumstances of the case

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

1. Events of 18 June 2013

In the evening of 18 June 2013 the applicant ’ s son, D.J., was driving his car with a certain M.S. They were stopped at a police checkpoint for a random search of the car. During the search the officers found two small packets containing white powder (later identified as amphetamine).

The officers decided to arrest D.J., who refused to comply with their orders and began walking away from the car. Two officers (W.J. and M.K.) attempted to overpower D.J. and handcuff him, however due to his heavy build and height (about 140 kg and 190cm) they failed. Shortly afterwards, six more officers arrived at the scene. During the struggle D.J. fell on the ground face down. The officers allegedly hit him with a truncheon, kicked him in the head (at least once), used tear gas and attempted to strangle him.

Eventually, they managed to subdue and handcuff him. He was lying face down on the ground and his head was bleeding. After a while the officers turned D.J. on his back and realised that he was not breathing. Allegedly, they did not attempt to resuscitate D.J. Two passing paramedics offered help and began resuscitation. Subsequently, an ambulance arrived and continued carrying out resuscitation which ended unsuccessfully forty minutes later when D.J. was pronounced dead.

2. Proceedings against the police

(a) Evidence gathered by the prosecutor

On 19 June 2013 a post-mortem examination and an inspection of D.J. ’ s body ( ogl ę dziny zw ł ok ) were carried out. The forensic expert established that D.J. ’ s death had been caused by acute cardiorespiratory failure related to chronic circulatory insufficiency. The expert noted that D.J. ’ s neck injuries might also have had an impact on his death.

During the investigation into the circumstances of D.J. ’ s death, the applicant together with her two daughters submitted numerous evidentiary applications to the Warsaw-Wol a District Prosecutor. In particular they asked to have the recordings from the security cameras secured, to have D.J. ’ s car examined in order to establish whether there had been any traces of blood, to have evidence taken from certain witnesses and also to have the details of other potential witnesses established.

On 7 February 2014 experts from the Department of Forensic Medicine at Warsaw Medical University (“the Forensic Institute”) submitted a toxicology report to the Warsaw District Prosecutor. According to the report there were traces of cocaine in D.J. ’ s body, which indicated that he had been a cocaine user.

On 28 May 2014 the Warsaw District Prosecutor asked the Forensic Institute to prepare an expert report and reply to the following seven questions:

“1. How did D.J. ’ s injuries originate?

2. Establish how D.J. ’ s neck injuries can be classified with reference to the provisions of the criminal code and also determine whether these injuries could have occurred in the circumstances as described by the police officers.

3. What impact on the victim ’ s death did his neck injuries have?

4. In view of the post-mortem results and the reconstruction of the incident, can it be concluded whether tear-gas spray was used on D.J., and if yes, did it have an impact on his death?

5. State, if possible, within what time (how soon) did D.J. ’ s death occur?

6. Did the actions of any of the police officers expose the victim to a direct risk of death or grievous bodily harm?

7. What was the direct cause of D.J. ’ s death?”

On 6 August 2014 the forensic expert submitted a report answering the questions put by the prosecutor. With reference to D.J. ’ s neck injuries (questions nos. 1, 2 and 3) the expert stated that they had been inflicted by a hard blunt object impacting with considerable force. According to her, those injuries could have occurred when the Officer M.K. had attempted to restrain D.J. by applying a type of a neck-hold from behind. Since M.K. was much smaller than D.J., he had been in fact hanging on D.J. ’ s neck. This strong pressure on D.J. ’ s neck had exposed him to a direct risk of death or grievous bodily harm. However, in view of the dynamics of the incident the expert could not confidently indicate which person had been directly responsible (question no. 6).

The expert further stated (question no. 7) that D.J. ’ s death had been caused by acute cardiorespiratory failure related to chronic circulatory insufficiency. The results of the post-mortem did not indicate that his death had been caused by mechanic injuries. Most of his injuries had been superficial. It had not been established that the neck injuries had caused him to choke. This theory was confirmed by the results of the reconstruction, as the neck injuries had occurred at the beginning of the incident.

Lastly, the expert was of the opinion that the applicant ’ s son ’ s death could have occurred as a result of so-called “excited delirium syndrome” (“EDS”). She stated that such a condition could not be identified anatomically during a post-mortem but only afterwards on the basis of the victim ’ s characteristics and when other causes of death were excluded. Deaths often occurred during police intervention and the individuals who suffered EDS were often heavy-set men. During the arrest they demonstrated extraordinary physical strength and resistance to pain. Death happened in the first hour of the incident. T hese cases were most frequently associated with cocaine abuse. D.J. was found to have been a cocaine user and to have been suffering from a chronic circulatory insufficiency.

(b) Prosecutor ’ s decision

On 3 September 2014 the Warsaw District Prosecutor discontinued the investigation into the applicant ’ s son ’ s death which related to offences defined in Article 155 of the Criminal Code (manslaughter) in conjunction with Article 231 § 1 of the Criminal Code (abuse of powers). The prosecutor based his decision in particular on the following documents: the record of D.J. ’ s belongings ( protokó ł ogl ę dzin rzeczy ), a record of the reconstruction of the incident ( protokó ł eksperymentu procesowego ), the security-camer a footage, medical documents including toxicology results, and photographs from the scene of the incident. The prosecutor also took statements from the police officers involved and from other witnesses. A post-mortem examination was conducted and the prosecutor obtained an additional forensic report.

The prosecutor established that on 18 June 2013 two police officers, W.J. and M.K., had stopped the car driven by the applicant ’ s son to search it. There had also been a passenger, M.S. Officer W.J. had recognised one of them as the man he had arrested few years ago in connection with breaking into cars. D.J. had been asked to open the car boot. In his wallet the officers had found two small packets containing, as later established, 0.82 g and 0.62 g of amphetamine. Consequently, the officers had decided to arrest D.J. However, he had refused to comply with their orders and had begun walking away from the car. They had managed to bring him back but he still resisted their attempts to handcuff him. W.J. and M.K. had tried various holds on him, such as an armlock with a truncheon ( d ź wigni a n a r ę k ę z u ż yciem pa ł ki ), and also tear gas. During the struggle which evolved, D.J. had hit his head on the triangular window pane of the police car and had kicked the right rear bumper. Consequently, he had lost his balance and fallen on his back. At that time W.J. and M.K. had called for back-up. D.J. had again attempted to flee but the officers had managed to catch him. During the struggle that had erupted, he had fallen down and had been pinned to the ground by one of the officers (M.K.). The officers had at that point managed to handcuff one of his hands. D.J. had been left lying face down, and he had also been bleeding heavily from a cut in his forehead (which had occurred when had hit the car). Six more officers had arrived on the scene and had continued the attempts to handcuff D.J. The applicant ’ s son had been very aggressive and agitated. He had shouted vulgar words towards the officers and had tried to kick them. He had also inflicted injuries on himself by repeatedly hitting his head on the pavement. Despite the fact that the officers had outnumbered him they had not been able to handcuff him. Eventually when D.J. had been trying to get up, he had hit one of the officers – A.T. – in his stomach. A.T. had thought that D.J. had posed a serious threat and had hit him twice with a truncheon. However, D.J. had been resistant to the pain and had still been very forceful. At last after some time four police officers had managed to restrain and handcuff him. They had also called an ambulance.

At that time, two people had approached the group: U.M. and R.S. They had informed the officers of their status as paramedics and that they had been able to give medical aid. Shortly before they had begun the resuscitation procedure, D.J. had been in verbal contact and had attempted to free himself. When the paramedics had turned him on his back they had realised that he had not been breathing. They had begun administering CPR, which had been performed in turns by the paramedic R.S. and Officers W.J. and A.O. At 8.53 p.m. an ambulance had arrived and its crew had continued performing CPR. The resuscitation attempts had ended unsuccessfully at 9.33 p.m. when the applicant ’ s son had died.

The prosecutor further considered that the police action had been justified in the circumstances of the case. There had been a reasonable suspicion that D.J. had committed an offence (he had been in possession of two packets containing what had looked like intoxicants) and he had attempted to flee. He further noted that the officers had not hit him but had only used restraint techniques ( techniki obezw ł adniaj ą ce ). The prosecutor did not consider as credible evidence given by M.S. (D.J. ’ s passenger), who had testified that one of the officers had kicked D.J. three times in his head. He further did not consider as credible evidence given by three other witnesses, who had claimed that D.J. had been hit by the officers. These witnesses had arrived at the scene when CPR had already commenced.

The prosecutor further held that D.J. ’ s death had been caused by acute respiratory and circulatory failure related to chronic circulatory insufficiency. Referring to the forensic opinion he stated that D.J. ’ s neck injuries had no connection with his death, which had resulted from “ excited delirium syndrome”. This condition, often related to stress caused by police actions, was associated with excessive hormonal stimulation resulting in acute respiratory failure. The prosecutor considered that D.J. ’ s situation was a typical example of such condition. During the attempted arrest D.J. had displayed extraordinary strength and resistance to pain. It had also been demonstrated that he had been using cocaine and other stimulants.

The prosecutor concluded that even if, as stated by the forensic expert, some of the neck injuries suffered by D.J. had exposed him to a direct risk of death or grievous bodily harm, it was not possible to blame any of the intervening officers, taking into account the dynamics of the events and D.J. ’ s resistance.

(c) The applicant ’ s appeal

The applicant and her two daughters appealed against that decision on 4 September 2014. They submitted that the police officers had not been able to apply the restraint techniques correctly. In the final moments of the struggle eight police officers had not been able to handcuff D.J., who although tall and heavily built had not been particularly athletic. In the applicant ’ s view the intervention on that day had been wholly unprofessional and had resembled a common tussle rather than a police operation.

They further stressed that D.J. had had two large haematomat a on the front side of his body, in particular on the right lower coastal margin. It had not been explained why Officer A.T. had hit D.J. when the victim had already been lying on the ground. Likewise, the officers had used tear gas on D.J. when he had already been lying face down on the ground and had been heavily bleeding from his head wound. In the applicant ’ s view this use of force had clearly been disproportionate.

The appellants also submitted that the police officers had been completely unprepared to administer emergency medical assistance to the victim. When R.S. ( a paramedic and a witness), had asked if anyone could help performing CPR only one of eight officers had stated that he had known how to do it. Furthermore, it had been R.S. ’ s personal first-aid kit that had been used during the incident. Consequently, it could not be said that the officers had provided the requisite emergency medical assistance to D.J.

Lastly, the applicant stressed that the prosecutor had failed to deal with numerous inconsistencies in the testimonies of the police officers and other witnesses. The cause and consequences of D.J. ’ s neck injuries had not been properly explained. Furthermore, in order to explain the discrepancies between witness statements, a witness confrontation should have been organised in order to establish the course of events.

(d) District Court ’ s decision

On 13 November 2014 the Warsaw District Court, in a briefly reasoned decision, dismissed the applicant ’ s appeal and upheld the prosecutor ’ s decision. The court shared the prosecutor ’ s conclusions. It further stressed that in view of the dynamics of the incident it had not been necessary to organise a witness confrontation. In particular, the court stressed that only M.S. had testified that D.J. had been kicked by one of the officers. However that testimony had been contradicted by the other testimony. The court stated:

“In view of the collected evidence, it cannot be established that actions of a certain person/people caused D.J. ’ s death. In other words there is no cause and effect connection. D.J. ’ s death was caused by acute respiratory and circulatory failure related to a chronic circulatory insufficiency. The injuries which he sustained had no relevance on his death and the circulatory failure was most probably caused by ‘ excited delirium syndrome ’ . At the time of his arrest D.J. fulfilled all the attributes of a person suffering from ‘ excited delirium syndrome ’ and since other causes of death had been eliminated this one remained highly probable. ”

The decision was final as no appeal lay against it.

COMPLAINTS

1. The applicant complains under Article 2 of the Convention that her son had died as a result of an incompetently conducted police operation and an excessive and disproportionate use of force by the police officers. She further claims that the officers did not provide emergency medical assistance to him as they did not attempt resuscitation.

2. She further alleges, under Article 2 and 6 of the Convention, that the authorities failed to conduct an effective investigation into D.J. ’ s death. In particular she alleges that the prosecutor and the court failed to act with due diligence in examining the circumstances of the event. The authorities failed to order a confrontation of witnesses, not all witnesses gave statements and the investigation was conducted with the aim of clearing the police officers.

QUESTIONS TO THE PARTIES

1. Has the applicant ’ s son ’ s right to life, guaranteed by Article 2 of the Convention, been violated in the present case? In particular, did the applicant ’ s son ’ s death result from a use of force which was absolutely necessary (see Saoud v. France , no. 9375/02, §§ 88-90, 9 October 2007)?

2. Having regard to the procedural protection of the right to life (see § 104 of Salman v. Turkey [GC], no. 21986/93, ECHR 2000-VII; Armani D a Silv a v. the United Kingdom [GC], no. 5878/08, §§ 233 - 234 , ECHR 2016, with further references), was the investigation in the present case by the domestic authorities in breach of Article 2 of the Convention?