Communicated on 22 June 2017

FIRST SECTION

Application no. 32361/16 Waldemar PRYGIEL against Poland lodged on 1 June 2016

STATEMENT OF FACTS

The applicant, Mr Waldemar Prygiel , is a Polish national who was born in 1945 and lives in Marki . He is represented before the Court by Mr P. Osik , a lawyer practising in Warsaw.

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

The applicant is a diabetic. At the relevant time he was employed as a guard in a private security company.

A. The events of 17 February 2014

The applicant was on duty between the evening of 16 February and the morning of 17 February 2014 .

At 7. 17 a.m. on 17 February 2014 a passer-by found him lying on the ground in the vicinity of Warsaw-Stadium train station. The person made an emergency call, stating that the applicant was conscious but could not stand up, that he had probably consumed alcohol, had no visible injuries and did not require medical assistance.

At some unspecified time before 7.50 a.m. two police officers, M.B. and S.R ., arrived at the scene. As they later testified, the applicant had sat up and had handed them his wallet with his identification documents. He had had difficulty speaking but had explained to them that he had been drinking; he might have had a bottle of some alcoholic drink on him. He told the police officers that he did not want an ambulance. The police officers did not test the applicant, but agreed that he smelled of alcohol and was therefore intoxicated. They called municipal guards ( Straż Miejska ) to take the applicant to a sobering-up centre . While waiting for transport, the police officers checked the applicant ’ s clothes and searched his bag, which showed that he was a security guard and was licensed to carry a weapon. However, they did not find one on him.

At 7.50 a.m. two municipal guards, A.B. and W.F ., arrived to take the applicant away. As they later testified, the police officers had informed them that the applicant was drunk but that he was not ill or injured. According to the same testimony, the applicant had said that he had drunk a small amount of alcohol and had lain down on the ground. W.F. also submitted that the applicant had smelled of alcohol, had talked unintelligibly and had had difficulty walking and moving. Together with the two police officers, they carried the applicant to a car and at 8.25 a.m. they dropped him off at the sobering-up centre .

Once there, the applicant was given a routine medical examination by a doctor, P.S. In accordance with a decision by the doctor and the head of the sobering up centre , the applicant was committed to stay at the centre .

At 1.30 p.m. the applicant ’ s daughter arrived at the sobering-up centre and informed Dr P.S. that the applicant suffered from diabetes and heart problems. The doctor immediately re-examined the applicant and at 2. 04 p.m. called an ambulance.

The ambulance arrived at 2.14 p.m.

The ambulance medics transferred the applicant to a nearby public hospital with a suspected stroke. A subsequent examination at the hospital revealed that he had indeed had a stroke, which had affected the left part of his brain ( udar niedokrwienny lewej półkuli mózgu ), leading to partial paralysis ( niedowład połowiczny prawostrony ) and motor aphasia ( afazja ruchowa ).

B. Appeal against the applicant ’ s committal to the sobering-up centre

It appears that on 24 February 2014 the applicant ’ s wife lodged an interlocutory appeal against the decision to have the applicant placed in the sobering-up centre as unlawful and unjustified.

It also appears that on 18 February 2015 the Warsaw District Court ( Sąd Rejonowy ) held that the applicant ’ s placement in the centre had been lawful, justified and not marked with any irregularities. A copy of that document has not been submitted to the Court.

C. Criminal investigation

On 19 February 2014 the applicant ’ s wife filed a crime report with the prosecution service.

On 4 March 2014 the Warsaw District Prosecutor ( Prokurator Rejonowy ) opened an inquiry into allegations that the municipal guards had denied medical assistance to the applicant; of a failure by the staff at the sobering-up centre to diagnose the applicant ’ s health problems; and of the making of untrue statements in the applicant ’ s medical chart at the sobering-up centre.

On 9 July 2015 the prosecutor severed the inquiry concerning the municipal guards.

On 15 July 2015 he discontinued that inquiry owing to a lack of the statutory features of a criminal offence ( brak znamion czynu zabronionego ). The prosecutor ’ s decision was based on the premise that the municipal guards had not neglected their duties ( niedopełnienie obowiązków ) by taking the applicant to the sobering-up centre instead of calling him an ambulance (1Ds. 182/15).

The prosecutor observed that the police officers and municipal guards, who had been questioned as witnesses, might have described the events in question in a way that had diminished their own responsibility for the erroneous assessment of the applicant ’ s condition. Consequently, the prosecutor decided to assess their testimony with caution. He also took note of the fact that diabetics suffering a glycaemic episode could appear to smell of alcohol. The evidence obtained in the course of the inquiry had not led to a clear conclusion about whether or not the applicant had consumed alcohol on the critical day and, if so, whether or not he had told the officers about it. The prosecutor accepted that the officers might well have reported that the applicant had smelled of alcohol because of the nature of their intervention and the surrounding circumstances. The prosecutor dismissed as highly unlikely the submission that the applicant had had a bottle of alcohol on him. That information had not been corroborated by the municipal guards and no such item had been deposited with the authorities.

Irrespective of the above, the prosecutor considered that the recordings of the radio communications between the officers, copies of their notebooks, the sequence of events and the time-line indicated that the impugned intervention had not been marked by irregularities.

As to the guards ’ omitting to test the applicant for alcohol, the prosecutor made the following observations. Municipal guards and police officers, with the exception of the traffic police, were not usually equipped with the equipment necessary to test for alcohol. Any criticism to that effect related to the way the police and municipal guards were organised, but not to the actions of any individual officers. Consequently, the guards under investigation could not be blamed for failing to carry out a breathalyser test when they had attended the applicant and for not being able to give the applicant such a test without running the risk of making their intervention at the scene overly long. In fact, taking the applicant to the sobering-up centre, where he could have an alcohol test, had been the best solution.

As to the guards ’ omitting to call an ambulance, the prosecutor made the following remarks. The municipal guards had submitted that they had made sure that the applicant was not injured. He had also stated specifically that he was fine and had instructed them not to call an ambulance. It was impossible to scrutinise the veracity of those statements but looking for visible injuries and engaging in conversation were actions that were routinely undertaken by intervening officers. Admittedly, a lack of intelligibility, loss of balance and problems with coordination (in particular, weak limbs on one side of the body) typically accompanied a stroke. Recognising such symptoms, however, required specialised medical knowledge. Moreover, it was impossible to establish if the applicant had shown those symptoms at the time of the guards ’ intervention in the street. The prosecutor also took note of an expert report, which had been prepared in the course of the inquiry. The experts had concluded that it was impossible to determine the exact time of the applicant ’ s stroke, although it had certainly happened before his admission to the sobering-up centre. Lastly, the prosecutor observed that the guards had known that the applicant would be given a medical examination upon his admission to the sobering-up centre.

In view of the above, in particular the elements which had been known to the municipal guards at the time of the impugned events, the prosecutor considered that the officers had been justified in their suspicion that the applicant was inebriated and had not been suffering from any medical condition. Their judgment could only be considered erroneous in the light of information that had been available ex post facto .

On 27 July 2015 the applicant ’ s lawyer appealed against the prosecutor ’ s decision to discontinue the inquiry. He argued that: (1) the investigation had been marked by five omissions in respect of collecting and securing evidence and in respect of obtaining witness statements and a report from a medical expert; (2) that the reasons given for the decision had been inadequate, and (3) that the municipal guards had failed to provide adequate assistance to the applicant, limiting themselves to carrying out a routine intervention.

On 13 October 2015 the Warsaw District Court dismissed the applicant ’ s appeal, observing essentially that the evidence in question could either not be produced or was unnecessary for the case. The decision was served on the applicant on 2 December 2015.

Meanwhile, on 31 August 2015 the applicant ’ s lawyer was informed that an indictment against Dr P.S. had been registered with the Warsaw District Court.

COMPLAINTS

1. The applicant complains under the subs tantive limbs of Articles 2 and 3 of the Convention that the denial of medical assistance by the police officers and the municipal guards breached the State ’ s positive obligation to protect his life and health, and amounted to inhuman and degrading treatment. In particular, the applicant submits that the negative effects of his stroke could have been minimised if medical assistance had been provided for him in a timely manner. That failure, in turn, had stemmed from shortcomings in the way the work of the police and the municipal guards was organised, especially the structural omission to train agents in first aid, and from the fact that none of the officers who had been involved in the impugned events had been equipped with a breathalyser.

2. The applicant also complains under the procedural limb of Article 3 of the Convention that the authorities failed to carry out an effective investigation into his complaints, as described above.

3. Lastly, the applicant complains that his detention in the sobering-up centre, despite the fact that he was not inebriated, was not in accordance with domestic law and was in breach of Article 5 (e) of the Convention.

QUESTIONS TO THE PARTIES

In view of the applicant ’ s health condition and the circumstances surrounding his committal to the sobering-up centre on 17 February 2014,

1. Has the applicant ’ s right to life, ensured by Article 2 of the Convention, been violated in the present case? In particular, did the State authorities fail to fulfil their duty to not place the applicant ’ s life at risk?

2. Was the applicant subjected to inhuman or degrading treatment in breach of Article 3 of the Convention?

3. Having regard to the procedural protection of the right to life and protection from torture, inhuman or degrading treatment, was the investigation in the present case by the domestic authorities in breach of Article 2 or Article 3 of the Convention?

4. Was the applicant deprived of his liberty in breach of Article 5 § 1 (e) of the Convention? In particular, was his detention “in accordance with a procedure prescribed by law”?

5. The parties are invited to submit copies of the following documents: ( i ) interlocutory appeal against the decision to have the applicant committed to the sobering-up centre, presumably lodged on 24 February 2014; (ii) the Warsaw District Court ’ s decision issued on 18 February 2015 in response to the above appeal; and (iii) the crime notice which the applicant ’ s wife presumably filed with the police on 19 February 2014.