Communicated on 8 September 2017

FIRST SECTION

Application no. 23037/16 Krystyna KORNICKA-ZIOBRO against Poland lodged on 16 April 2016

STATEMENT OF FACTS

The applicant, Ms Krystyna Kornicka-Ziobro , is a Polish national who was born in 1940 and lives in Krynica Zdrój .

The circumstances of the case

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

On 2 July 2006 the applicant ’ s husband, Mr J. Z., died in the Cracow University Cardiology Clinic.

On 1 August 2006 one of the deceased ’ s sons, Mr W. Z., informed the prosecution service of a possibility that an offence had been committed in the course of the medical treatment of his father. He indicated several events from the period directly preceding the death of Mr J. Z. allegedly showing the doctors ’ incompetence and wrong method of treatment which had led to the death of his father. Subsequently the applicant and another of the deceased ’ s sons, Mr Z. Z., joined the proceedings. They had victim status.

The Cracow District Prosecutor opened an investigation into the death of Mr J. Z. A post-mortem examination was carried out and a medical opinion submitted to the prosecutor. The prosecutor heard witnesses, including the family members and ordered the preparation of an expert medical opinion by the Silesian Medical Academy; it was submitted on 7 February 2007. Afterwards the investigation was transferred to a different prosecution service in Ostrowiec Swietokrzyski .

On 19 March 2008 another expert medical opinion from the Lodz Medical Academy was submitted to the prosecutor.

On 14 April 2008 the Ostrowiec Swietokrzyski District Prosecutor decided to discontinue the investigation, finding that no medical malpractice or other offence had been committed. In its well-reasoned decision, which was 73 pages long, the prosecutor analysed all the medical evidence at his disposal.

The applicant appealed against this decision.

On 4 May 2008 a medical opinion from the Cardiothoracic Surgery Department at Uppsala University was submitted to the prosecutor.

On 5 September 2008 the Cracow District Court quashed the prosecutor ’ s decision and remitted the case for the purpose of supplementing the investigation. In particular the court instructed the prosecutor to seek a complex and interdisciplinary expert opinion.

On 10 January 2011 the applicant l odged a complaint under section 5 of the Law of 17 June 2004 on complaints about a breach of the right to an investigation conducted or supervised by a prosecutor and to a trial within a reasonable time ( 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 10 March 2011 the Cracow Regional Court dismissed the complaint. The court considered that the prosecutor had faced a difficult task in obtaining a complex medical expert opinion issued by a n interdisciplinary team of experts.

On 22 February 201 1 the Ostrowiec Swietokrzyski District Prosecutor issued a decision dismissing the applicant ’ s request for a further medical opinion from foreign experts.

On 15 June 2011 the Ostrowiec Swietokrzyski District Prosecutor discontinued the investigation, finding that no offence had been committed.

On 21 June 2011 the applicant lodged a subsidiary bill of indictment against four doctors ( subsydiarny akt oskarzenia ).

On 24 February 2012 the Cracow District Court discontinued the proceedings against all four doctors.

On 26 March 2012 the applicant lodged an appeal.

On 28 June 2012 the Cracow Regional Court upheld the impugned decision in respect of three of the doctors but quashed it in respect of the charges against the doctor D. D. and remitted it for reconsideration by the lower court.

On 21 December 2012 the Prosecutor General lodged an extraordinary cassation ap peal against the decision of 28 June 2012.

On 14 March 2013 the Supreme Court examined the appeal and quashed the impugned decision, upholding the discontinuation of the proceedings against the three doctors. The case was remitted to the Cracow Regional Court. The Supreme Court noted inconsistences in the replies to some of the 277 questions which had been put to the experts of different specialisations.

On 25 June 2013 the Cracow Regional Court quashed the decision of 24 February 2011 as regards the part which had been upheld by Cracow Regional Court on 28 June 2012 (against the three doctors). At this stage the applicant and her two sons had been participating in the proceedings as auxiliary prosecutors ( oskarzyciel posilkowy ) since the public prosecutor had joined the case.

On 27 October 2014 the Cracow District Court decided to seek a complex medical opinion bringing together experts from seven Medical University Clinics in Poland and a further three professors of medicine.

On 8 May 2015 the Cracow District Court decided to amend the above decision by specifying additional questions to put to the experts.

On 11 February 2017 the Cracow District Court pronounced its judgment, finding all four doctors innocent. The judgment is not final.

COMPLAINTS

The applicant complains under Article 2 of the Convention that her husband ’ s right to life was breached on account of various instances of medical negligence which caused his death. She argues that the doctors dealing with him were not competent to treat a patient in this condition interdependently or to carry out the medical procedures which they unilaterally decided to take, that they acted contrary to so-called “gold standards” of cardiology, made many flagrant errors when choosing the type of treatment and medication, and made mistakes during the resuscitation of her husband. In addition the applicant complains about a procedural breach of Article 2 of the Convention in that the investigation into death of her husband was not effective and thorough. The prosecutors dealing with the case made several mistakes and the case was not examined within a reasonable time.

QUESTIONS TO THE PARTIES

1. Has the applicant ’ s husband ’ s right to life, ensured by Article 2 of the Convention, been violated in the present case?

2. Having regard to the procedural protection for the right to life (see paragraph 104 of Salman v. Turkey [GC], no. 21986/93, ECHR 2000-VII), was the inquiry in the present case by the domestic authorities into the alleged medical malpractice in breach of Article 2 of the Convention?

3. The Government are invited to submit the reasoned judgment of the Cracow District Court of 10 February 2017.