Communicated on 6 October 2014

FOURTH SECTION

Application no. 50508/13 Marek PRASZKIEWICZ and El ż bieta PRASZKIEWICZ against Poland lodged on 24 July 2013

STATEMENT OF FACTS

The applicants, Mr Marek Praszkiewicz and Ms Elżbieta Praszkiewicz , are Polish nationals, who were born in 1964 and 1963 respectively and live in Bardo .

They are represented before the Court by Ms B. Słupska-Uczkiewicz , a lawyer practising in Wrocław .

The circumstances of the case

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

On 3 October 2002 the second applicant, who was at that time in the thirtieth week of her pregnancy, assessed earlier as a high-risk pregnancy, was admitted to the Wroc Å‚ aw Medical University Hospital, suffering from gestational diabetes.

In the early morning hours of 6 October 2002 she had the first signs of labour . At 7 a.m. she was taken to the labour room. At 8 a.m. the foetal heartbeat monitoring equipment broke down. As labour was not progressing and the mother ’ s and child ’ s conditions deteriorated, at 8.45 a.m. the decision was taken to perform a caesarean section which was terminated by 9.15 a.m.

The baby, a boy weighing 2 kilograms, was born alive. His condition was assessed at one point on the ten-point Apgar scale. He required urgent medical care. The child was subsequently transported to another hospital, apparently because the respirator in the birth hospital had also broken down. The doctor who examined him upon admission failed to diagnose cleft palate which was diagnosed later.

He died on 8 March 2003.

A post-mortem which was carried out on 13 March 2003 revealed that the child had died of various postnatal complications (oxygen deficiency).

Following the applicant ’ s request of 14 October 2002, the police opened a criminal inquiry into the child ’ s death.

On 27 January 2005 the bill of indictment was issued by the Wrocław District Prosecutor. The prosecutor had regard, inter alia , to two forensic opinions that the decision to proceed to a caesarean section should have been taken more promptly, especially given that the pregnancy had earlier been assessed as a high-risk pregnancy. Two doctors on duty the critical night were charged with the offence of involuntary manslaughter, punishable under Article 155 of the Criminal Code.

This bill of indictment was subsequently lodged with the Wrocław Środmieście District Court on 30 May 2005.

On 9 July 2010 the Wrocław Środmieście District Court acquitted the doctors. Referring to the medical opinions submitted to it, the court established that the medical staff handling the second applicant ’ s labour had no case to answer.

The applicants and the prosecutor appealed.

The applicants submitted, inter alia , that the court, despite two expert opinions it had commissioned, had found, contrary to the conclusions of the experts, that the defendants were innocent. This conclusion clearly contradicted the experts ’ assessment which held that the handling of the delivery had been marred by procrastination and poor clinical evaluation of the urgency of the situation. It had relied principally on a third expert opinion which had been commissioned by one of the defendants and prepared by another doctor who was also her friend. It was therefore a private document which under no circumstances could have been treated on a par with an official forensic report. The assessment of evidence was arbitrary and certain factual findings contradictory.

On 13 September 2011 the Wroclaw Regional Court quashed this judgment and remitted the case. It was of the view that the first ‑ instance court had failed to establish facts salient for the legal assessment of the case as it had failed to obtain relevant medical evidence. It also shared the objections made by the applicants as to the use made by the first ‑ instance court of the privately commissioned expert opinion. It had wrongly been treated as formal evidence, whereas under the established case-law it could only have had, at best, the status of information about evidence.

Moreover, the court had overlooked that the two other expert opinions it had ordered for the purposes of the proceedings were incomplete and partly contradictory. The court had also failed to examine whether factors other than the handling of the birth could have contributed to his later death, such as the newborn ’ s transport to another hospital just after birth or the failure to examine him properly at the time of his admission to that hospital.

On 8 October 2011 the case was assigned to a new judge rapporteur of the Wroc ław Śródmieś cie District Court.

On 29 December 2011, 19 January, 23 February, 27 March, 10 May and 28 June 2012 the court issued decisions to seek medical expert reports from six various medical universities in Poland. Apparently five of them refused to submit opinions, referring to their heavy workload. Only the Bydgoszcz Medical University agreed to prepare their opinion.

On 29 May 2012 the Wrocł aw Regional Court dismissed the applicants ’ complaint under the 2004 Act concerning the excessive length of the proceedings. The court referred to the difficulties in obtaining the medical expert reports and held that the court could not be blamed for them; the more so as it had actively sought that report by soliciting a number of medical institutions that had refused to perform this task.

On 23 April 2014 the Regional Court imposed a fine of PLN 5,000 (EUR 1,250 approx.) on the Bydgoszcz Medical University. Upon appeal, this fine was subsequently reduced to PLN 500 (EUR 125 approx.).

The proceedings are pending. No date for the submission of the medical expert opinion has been fixed.

COMPLAINT

The applicants complain under Article 2 of the Convention of the lack of an effective and prompt procedure before the domestic authorities concerning the death of their child, allegedly caused by medical negligence in handling his birth .

QUESTION tO THE PARTIES

Were the proceedings in the present case in breach of the State ’ s procedural obligations under Article 2 of the Convention?