Communicated on 22 August 2016

FOURTH SECTION

Application no. 49210/15 Barbara KLAK against Poland lodged on 30 September 2015

STATEMENT OF FACTS

The applicant, Ms Barbara Klak , is a Polish national who was born in 1968 and lives in Pozna ń . She is represented before the Court by Mr A. Zielonacki , a lawyer practising in Poznań .

A. The circumstances of the case

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

1. D. ’ s medical condition

The applicant ’ s son D. was born in 1990. He suffers from cerebral palsy ( pora żenie mózgowe ). Thanks to physiotherapy, by the age of 15 he was able to sit, stand (if leaning against an object) and walk with the aid of another person. He attended school. Around that time four doctors the family had consulted recommended an operation to release contractures in his legs, which had gradually increased throughout his life. Surgery was viewed as the first stage of his multi-stage treatment.

On 30 March 2005 D. underwent surgery on his knee, groin and other muscles and tendons at Degi State Hospital in Poznań .

Prior to surgery he was not examined by a neurologist. The applicant, who had been informed of the possible side effects, gave permission for D. to have an epidural . He was given two injections of anaesthetic , before and during the procedure. He left theatre with both his legs in a cast. Immediately after surgery he complained of backache and the fact that his spine felt unnaturally bent and his body more contracted than it had before surgery.

D ’ s surgeon, who examined him the next day and again two and six weeks after surgery, could not explain those side effects given that the surgery had been successful.

Around that time D. was also examined by a neurologist, who could not provide any explanation as to his condition.

Some months after surgery the doctor in charge of D. ’ s treatment confirmed that the contractures in the spinal area were more severe than they had been prior to surgery. He recommended further neurological examinations and rehabilitation.

On 21 September 2005 a meeting of senior staff of Degi State Hospital took place to discuss D. ’ s condition after surgery and plan his further treatment.

D. and the applicant twice refused any further hospital or surgical treatment.

Since surgery D. ’ s condition has improved thanks to physiotherapy, which has for the most part been privately arranged. He still cannot sit, stand or walk. He can only lie on his back or stomach. He requires round-the-clock assistance and care.

Since 2011 the applicant has been completely blind. She takes care of her son with her mother and brother.

2. Disciplinary proceedings into allegations of medical malpractice

On 18 January 2006 the Poznań Regional Agent for Disciplinary Matters ( Okręgowy Rzecznik Odpowiedzialności Zawodowej Lekarzy ) refused to open disciplinary proceedings, ruling that no errors had been committed during D. ’ s surgery and that the applicant had been uncooperative in refusing further hospital treatment.

3. Criminal proceedings into the allegations of medical malpractice

On an unspecified date the applicant lodged a criminal complaint with the local police, alleging that D. had been exposed to a direct danger to life and limb ( narażenie na bezpośrednie niebezpieczeństwo utraty życia albo wystąpienia ciężkiego uszczerbku na zdrowiu ) on account of the hospital ’ s malpractice during surgery.

On 24 January 2007 the Poznań district prosecutor ( Prokurator Rejonowy ) opened an inquiry (case no.2 Ds 303/07). On 30 July 2007 it was suspended.

On 2 February 2009 the proceed ings were resumed (case no.2 Ds 716/09). On 1 June 2009 the inquiry was suspended again because the main case file had been lost.

On 3 September 2013 the Poznań district prosecutor opened proceedings to reconstruct the case file (case no.2 Ds 3416/13/10). On 21 November 2013 D. was questioned by the prosecutor. On an unspecified date the applicant was also questioned in the course of those proceedings. On 9 December 2013 they were completed.

On 10 December 2013 the inquiry was resumed for a second time (case no. 2 ds 4854/13/1).

On 19 December 2013 the Prosecutor General ( Prokurator Generalny ) transferred the case to the Szczecin appeal prosecutor ( Prokurator Apelacyjny ) for further examination.

On an unspecified date the Szczecin appeal prosecutor assigned the inquiry to the Gorzów Wielkopolski regional prosecutor ( Prokurator Okręgowy ) (case no. V Ds 7/14).

Around that time D. and the applicant were again questioned as witnesses.

D. ’ s surgeon, other doctors and medical staff who had been present during surgery and the doctors who had participated in D. ’ s diagnosis and treatment were also questioned as witnesses. On 3 March 2014 eight were questioned, on 4 March 2014 six were questioned and on 14 and 20 March 2014 two were questioned.

At various dates around that time the prosecutor also questioned three members of the applicant ’ s family.

Medical records were obtained. They comprised various certificates, charts and the report of the 2005 meeting of senior staff of Degi State Hospital.

On 14 April 2014 the prosecutor ordered a medical report from the Warsaw Forensic Medicine Institute to assess whether or not there had been irregularities in D. ’ s treatment at Degi State Hospital between 29 March and 22 September 2005.

On 2 October 2014 the report, which was prepared by six experts in forensic medicine, orthopaedics , neurology and anaesthesiology, was submitted to the prosecutor. On the basis of the prosecutor ’ s case file and D. ’ s scan and X-ray images, the experts concluded that his diagnosis, preparation for surgery, anaesthesia , operation and post-surgical care had been adequate and had complied with the standards of modern medicine. In particular, prior to the surgery he had not needed to be examined by a neurologist, because his neurological condition had been stable. No problems had occurred as regards his anaesthesia. The increased contractures in the spinal area had been caused by movement of the chest, which, in turn, resulted from the successful surgical elongation of D. ’ s leg muscles. That side effect had been predicted by the doctors prior to D. ’ s surgery as his further multi-stage treatment was being planned.

On unspecified dates all the experts were questioned by the prosecutor.

On 31 October 2014 the Gorzów Wielkopolski ‎ regional prosecutor discontinued the enquiry, concluding that no criminal offence had been committed.

On 25 March 2015 the Poznań Regional Court ( Sąd Okręgowy ) quashed that decision following an interlocutory appeal by the applicant and returned the case to the prosecutor for further inquiry. In particular, the court considered it necessary to obtain a report of an expert in neurology, assessing D. ’ s condition prior to surgery.

On 26 March 2015 the Gorzów Wielkopolski ‎ regional prosecutor decided to obtain such a report. Four questions were therefore put to Dr J.W., an expert in neurology, to assess whether or not D. ’ s preparation for surgery and the operation itself had been marked by flaws as regards the patient ’ s neurological condition.

The report was produced the very same day. The expert concluded that D. ’ s medical treatment before and during surgery had fully complied with the standards of modern medicine. Because his cerebral palsy had been diagnosed with certainty and the surgery had been of a purely orthopaedic nature, it had not been necessary to consult a neurologist or the patient ’ s neurological records beforehand.

On 27 March 2015 the Gorzów Wielkopolski ‎ regional prosecutor discontinued the enquiry, concluding that no criminal offence had been committed. That decision was served on the applicant on 2 April 2015.

No further interlocutory appeal against that decision was available to the applicant.

The applicant submitted that she had not lodged a subsidiary indictment ( subsydiarny akt oskarżenia ) because by the time she had been served with the prosecutor ’ s decision, the punishment of the offence had become time-barred.

B. Relevant domestic law

Article 55 of the Code of Criminal Procedure describes the remedy of subsidiary indictment and reads, in so far as relevant, as follows:

“1. In the event that the public prosecutor again refuses to institute proceedings or discontinues the proceedings, in the case referred to in Article 330 § 2 the aggrieved party may, within one month of the date that decision is served, lodge an indictment with the court. A copy should be given to each accused and the public prosecutor. ...

2. The indictment lodged by the aggrieved party shall be prepared and signed by a lawyer in compliance with the conditions specified in Articles 332 and 333 § 1. If the aggrieved party is a public, local government or social institution, the indictment may also be prepared by legal counsel. ”

Article 160 of the Criminal Code provides as follows:

“1. Anyone who exposes a human being to an immediate danger of loss of life, serious bodily injury, or serious impairment of health shall be sentenced to up to three years ’ imprisonment.

2. If the perpetrator has a duty of care over the person exposed to the danger, he shall be sentenced to between three months and five years ’ imprisonment.”

Article 101 § 1 of the Criminal Code sets out the time-limits for punishment of various criminal offences – ten years for offences punishable by imprisonment of more than three years and five years in respect of other offences.

Under Article 102, the time-limit for punishment is to be extended by five years if a criminal inquiry has been instituted against the suspect before the end of the period as defined in Article 101 § 1.

COMPLAINTS

The applicant complains, relying on Articles 6 and 13 of the Convention, that the criminal inquiry into alleged medical malpractice was ineffective.

In particular, she complains that the proceedings were not prompt or thorough, in that the expert reports were obtained too long after the alleged incident, rendering any examination of her son futile and meaning that they were drawn up only using historical medical records.

In addition, she complains that the closure of the criminal inquiry ten years after the alleged offence made the remedy of subsidiary indictment unavailable to her.

QUESTIONS TO THE PARTIES

1. Can the applicant claim to be a victim of a violation of the Convention, within the meaning of Article 34?

2. Having regard to the procedural protection from inhuman or degrading treatment, in so far as it is also applicable in the context of allegations of medical malpractice resulting in serious health damage, was the inquiry in the present case by the domestic authorities in breach of Article 3 of the Convention?