Communicated on 16 March 2015

FOURTH SECTION

Application no. 46536/14 Marianna PONIEWIERSKA against Poland lodged on 16 June 2014

STATEMENT OF FACTS

The applicant, Ms Marianna Poniewierska , is a Polish national, who was born in 1945 and lives in Warsaw . She is represented before the Court by Mr M. Pietrzak , 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.

The applicant ’ s daughter, Anna Pobiar ż yn (A.P.) was born in 1966.

On 28 November 2003 AP was arrested on suspicion of attempted fraud. On 30 November 2003 a district court remanded A.P. in custody. On the same day she was transferred to the Warsaw- Groch ó w Remand Centre.

On 1 December the applicant ’ s granddaughter, Agnieszka Pobiar ż yn went to see the Director of the Remand Centre and informed him that her mother suffered from duodenal ulcer ( choroba wrzodowa dwunastnicy ). She also brought AP ’ s medication which the Director refused to receive. He informed the applicant ’ s granddaughter that medical care in the detention centre was appropriate.

On 2 December 2003 A.P. underwent a standard medical check. She was interviewed and examined by W.T., a doctor of the Remand Centre. She remained passive and contact with her was difficult. She indicated that she suffered from duodenal ulcer and spoke about pains in her stomach. Doctor W.T. prescribed her a course of medication ( Riflux ).

On 3 December 2003 at 10.55 a.m. doctor W.T. was called to A.P. ’ s cell. She was lying on the floor and some liquid was coming out of her mouth. A.P. was taken to the doctor ’ s room and examined there. Again, contact with her was difficult as she did not answer questions. However, “with the slightest touch of her stomach she was groaning and giving a grimace”. Doctor W.T. concluded that A.P. ’ s behaviour resulted from the stress related to her detention and decided to administer her sedative and Riflux .

In the afternoon of 3 December 2003 an ambulance was called to A.P. Doctor Z.S. of the emergency service examined A.P. He diagnosed her with peptic ulcer ( choroba wrzodowa ż o łą dka ) and administered her various medications.

On 4 December 2003 A.P. was examined by doctor W.T. She remained unresponsive but gave a grimace when touched in the stomach. Doctor W.T. recommended a consultation by an internist.

In the morning of 5 December 2003 inmates from A.P. ’ s cell informed the prison guards that she was unwell and remained in bed. It was decided to take A.P. to the hospital of the Warsaw- Mokot ó w Remand Centre for consultation. An internist diagnosed A.P. with symptoms pointing to peritonitis ( zapalenie otrzewnej ) and recommended an urgent examination by a surgeon. The surgeon examined AP shortly after. He diagnosed A.P. with peritonitis and ordered her transfer to an intensive care unit of the Hospital of the Remand Centre.

A.P. was admitted to the intensive care unit in a serious condition. The diagnosis of peritonitis was confirmed. In the early afternoon of 5 December 2003 A.P. underwent a surgery. Her condition was considered to be very serious.

I n the night of 8-9 December 2003 A.P. ’ s condition deteriorated in connection with acute renal failure. On 9 December 2003 A.P. was transferred unconscious to a civilian hospital in Warsaw since the hospital of the Remand Centre could not provide her with adequate care.

A.P. underwent a surgery at the civilian hospital. She was in a very serious condition. On 16 December 2003 results of further examinations indicated that she suffered from stomach cancer. On 17 December 2003 A.P. suffered from further complications. On 20 December 2003 she underwent a scan of her head which disclosed an intracranial hemorrhage . She underwent a surgery with a view to removing the hemorrhage . A.P. died at 3.30 a.m. on 21 December 2003.

On 22 December 2003 the hospital informed the Warsaw- Ochota District Prosecutor ’ s Office about the death of A.P. It indicated that the death resulted from peritonitis , septic shock and c erebral edema .

On an unspecified date the Warsaw- Ochota District Prosecutor opened an investigation into the death of the applicant ’ s daughter.

On 30 December 2003 an autopsy w as carried out. A forensic expert established that A.P. ’ s death resulted from intracranial hemorrhage leading to irreparable damage to the central nervous system. Furthermore, A.P. was already in a very serious condition on account of peritonitis related to a perforation of the peptic ulcer.

The applicant was granted a victim status in the investigation. The prosecutor heard 14 witnesses, including doctors and nurses who had provided care to A.P. He further took evidence from the applicant, her granddaughter and the Director of the Remand Centre.

The prosecutor obtained an opinion of the forensic experts from the Bia ł ystok Medical University with regard to the quality of diagnosis and treatment afforded to A.P . According to the opinion, the symptoms of painful stomach established during examinations on 3 and 4 December 2003 should have indicated for every doctor a case of possible peritonitis. This was so in particular with regard to a person suffering from peptic ulcer who could have suffered from complications related to a perforation of the ulcer. The forensic experts opined that the morning of 3 December, or 4 December at the latest, was the appropriate time for urgent surgical consultation or further examination. Having regard to the medical evidence and witnesses ’ statements, the experts concluded that a perforation of the abdomen had been diagnosed too late. An earlier diagnosis of peritonitis would have allowed a prompter surgical intervention which could have given a chance to avoid the tragic consequences of septic shock and to save the life of A . P.

On 19 September 2005 the prosecutor filed a bill of indictment against doctor W.T. with the Warsaw District Court. Doctor W.T. was charged under Article 160 § 2 in conjunction with Article 160 § 3 of the Criminal Code with having exposed A.P. to an immediate danger of loss of life or a serious impairment of health. The charge was related to A.P. ’ s examination on 4 December 2003 during which doctor W.T. had failed to diagnose A . P . ’ s obvious peritonitis and to urgently recommend surgical consultation.

The applicant had the status of auxiliary prosecutor in the proceedings.

The daughter of A.P. committed suicide upon receipt of an anonymous letter which informed her that AP had been lying on the floor of her cell in terrible pain for three hours and that nobody had reacted to her plight.

The trial court obtained an opinion of the forensic experts from the Łó d ź Medical University . They indicated that the examination carried out by doctor W.T. on 4 December 2003 should have prompted further consultations and tests.

On 29 May 2009 the Warsaw District Court gave judgment and acquitted doctor W.T. Having regard to the forensic opinions and medical documentation, it found that there was no evidence indicating that on 4 March 2003 A.P. had suffered from peritonitis and therefore it could not have been alleged that the defendant had failed to diagnose it. With regard to the defendant ’ s alleged failure to recommend an urgent consultation, the trial court found that his decision to recommend a standard consultation had reflected his experience and the circumstances of the case.

The applicant and the prosecutor appealed.

On 10 February 2010 the Warsaw Regional Court quashed the trial court ’ s judgment and remitted the case. It found that the prosecutor had committed fundamental errors in formulating the charge against doctor W.T. by having limited it to an examination carried out on 4 December 2003 instead of referring to the entire diagnostic process between 2 and 4 December 2003. The Regional Court also noted that the trial court had followed that erroneous approach while it could and should have examined the entire diagnostic process . The trial court had further erroneously assessed the forensic opinions which led to incorrect factual findings. The Regional Court referred, in particular, to the opinion prepared by the experts from the Bialystok Medical University which identified a number of errors in W.T. ’ s diagnosis. It also found that the trial court had not addressed certain divergences between the two forensic opinions.

The case was returned to the trial court on 7 April 2010. The trial court decided to obtain supplementary opinions from the two teams of forensic experts. Subsequently, it decided to hear the experts. In their supplementary opinion the experts from the Bia ł ystok Medical University indicated that they were unable to determine whether doctor W.T. had acted promptly when making the diagnosis. The experts from the Łó d ź Medical University concluded in their supplementary opinion that the prolonged and worrying condition of A.P. had justified a decision to urgently undertake further consultations and tests.

On 10 June 2013 the Warsaw District Court gave judgment. It convicted doctor W.T. of having inadvertently exposed A.P. to an immediate danger of loss of life or a serious impairment of health. The trial court held that the defendant failed to make a proper diagnosis and to recommend urgently further consultations and tests. The defendant was sentenced to a suspended t erm of eight months ’ imprisonment and a fine . The trial court further prohibited the defendant to practise as a doctor for one year . The trial court noted that the opinion of experts from the Białystok Medical Academy was inconsistent and contradictory and for that reason it decided not to have regard to it. It decided to rely on the opinion of experts from the Łó d ź Medical University which it considered thorough and comprehensive.

Doctor W.T. appealed.

On 29 July 2013 the case file reach ed the Warsaw Regional Court. A hearing was scheduled for 17 October 2013. The defendant did not appear at the hearing and produced a medical certificate attesting to his illness. The appellate court adjourned the hearing. A hearing scheduled for 31 October 2013 was adjourned until 25 November 2013 on the same ground. The court requested an opinion of cardiology expert as to whether the accused could participate at the appellate hearing. The expert found that the accused was unable to participate.

On 16 December 2013 the Warsaw Regional Court gave judgment. It quashed the District Court ’ s judgment and discontinued the proceedings since the criminal liability of the accused had become prescribed . No further appeal lay against this judgment.

On 12 December 2013 the applicant lodged a complaint with the Warsaw Court of Appeal under the Law of 17 June 2004 on comp laints about a breach of the right to a trial within a reasonable time . On 21 January 2014 the Court of Appeal found that there had been delays in the proceedings before the Warsaw District Cour t. It awarded the applicant PLN 10,000 in compensation.

COMPLAINTS

1. The applicant alleges a breach of Article 2 of the Convention in its substantive aspect. In her view, the authorities failed in their positive duty to provide to her daughter proper medical care in detention. The forensic opinions in the case indicate that the failures of the remand centre ’ s doctor rendered the subsequent medical treatment belated and ineffective.

2. The applicant complains under the procedural limb of Article 2 of the Convention that the authorities did not carry out an effective and prompt investigation into the death of her daughter. As a result of procedural errors and delays in the investigation and subsequent judicial proceedings, the authorities were unable to determine the question of criminal responsibility of doctor W.T. and the proceedings against him were finally discontinued as time-barred.

QUESTIONS TO THE PARTIES

1 . Has the applicant ’ s daughter ’ s right to life, ensured by Article 2 of the Convention, been violated in the present case? Reference is made to the alleged inadequacy of medical treatment provided to the applicant ’ s daughter by doctor W.T.

2. Having regard to the procedural prote ction of the right to life (see Šilih v. Slovenia [GC], no. 71463/01, §§ 192-196, 9 April 2009) was the investigation in the present case by the domestic authorities in breach of Article 2 of the Convention , in particular with regard to the requirement of promptness ?