Communicated on 29 September 2014

FOURTH SECTION

Application no. 78388/12 Daniel MOLGA against Poland lodged on 29 November 2012

STATEMENT OF FACTS

The applicant, Mr Daniel Molga , is a Polish national, who was born in 1998 and lives in Radom . He is represented before the Court by his mother, Ms Renata Lesisz.

The circumstances of the case

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

1. Background facts and death of the applicant ’ s father

The applicant ’ s father, W ł odzimierz Molga (“W.M.”) cohabited with the applicant ’ s mother, Ms Renata Lesisz.

The applicant ’ s father used to sell clothes at a local market. On 31 August 1998 the Radom District Court convicted the applicant ’ s father in summary proceedings of unauthorised use of a registered trademark. It sentenced him to a fine in the amount of 700 Polish zlotys (PLN) convertible to 35 days of imprisonment in case of default.

On 22 December 1998 the court decided that W.M. could pay the fine in 7 equal monthly instalments starting in December 1998. According to the court records , W.M. paid 600 PLN towards his fine. A court bailiff instituted enforcement proceedings to recover the outstanding 100 PLN but to no avail.

On 8 June 2004 the Radom District Court ordered that W.M. serve five days ’ imprisonment in respect of the unpaid fine. It appears that W.M. had been summoned to the hearing but did not appear.

W.M. was unsuccessfully summoned to surrender to the Remand Centre. On 19 October 2004 the Radom District Court ordered that he be arrested and brought to the Remand Centre. On 16 November 2004 at about 5 p.m. police arrested W.M. outside his home. On 17 November 2004 at about 9 a.m. he was brought to the Rad om Remand Centre to serve his 5 ‑ day sentence.

At the Remand Centre W.M. refused a routine examination by a nurse. He was then examined by a doctor who gave him clearance for his admission. Subsequently, W.M. was placed in transitory cell no. 4. At about 12 noon a prison guard , M.D., noticed that W.M. was lying on the floor with his belt tightened around his neck. The other end of the belt was tied to a chair. The guards , M.D. and A.R., and later the nurse carried ou t resuscitation procedures on W.M . He was declared dead at about 12.30 p.m. W.M. was fifty-two years old at the time.

2. Investigation into the death of the applicant ’ s father

On 22 November 2004 the Radom Police opened an investigation into the case of unintentionally causing the death of W.M. (Article 155 of the Criminal Code). The investigation was later taken over by the Radom District Prosecutor.

On an unspecified date an autopsy was carried out. A f orensic expert found a slight strangulation mark on W.M. ’ s neck and a number of injuries which had likely resulted from hitting objects while in convulsions. The expert concluded that W.M. had died from strangulation related most likely to suicide. He established that W.M. had had 0.16 ‰ of alcohol in his blood.

The prosecutor found no evidence pointing to the involvement of third parties in the incident. With regard to the possible failure to act by the prison guards, the prosecutor questioned prison guard M.D. who was supervising W.M. at the relevant time. M.D. testified that under the applicable regulations and practice he was required to seize from a prisoner objects like a mobile phone, penknife or screwdriver but not a belt or laces.

Having regard to the evidence, the prosecutor found that the prison guards responsible for W.M. ’ s safety had acted beyond reproach. The guards did not breach the applicable regulations by letting W.M. keep his belt. Furthermore, the prosecutor found no shortcomings in the prison guards ’ reaction following the moment they noticed that W.M. appeared to be dead. He con cluded that the prison guards had not committed an offence.

On 28 February 2005 the Radom District Prosecutor discontinued the investigation having found that no offence had been committed under Article 155 of the Criminal Code.

On 12 August 2008 the applicant ’ s mother complained to the Ministry of Justice that she had not been served the Radom District Prosecutor ’ s decision to discontinue the investigation.

On 6 October 2008 the Radom District Prosecutor ordered that the applicant ’ s mother be served with a copy of the decision.

On 9 October 2008 the applicant ’ s mother was informed by the Radom District Prosecutor that by letter dated 30 November 2004 she had been notified of the opening of the investigation into her partner ’ s death. The applicant ’ s mother was twice summoned to the Radom Police Headquarters for an interview which she did not attend. Subsequently, a police officer visited her flat but was not allowed to enter. Further summonses sent to the applicant ’ s mother remained unanswered. On 28 December 2004 the applicant ’ s mother went to the Police Headquarters and insisted that she did not wish to be contacted in connection with the death of W.M . Accordingly , the District Prosecutor served his decision to discontinue the investigation on R.L., W.M. ’ s adult son and the applicant ’ s half-brother.

It appears that on 9 January 2009 the applicant ’ s mother was served the prosecutor ’ s decision to discontinue the investigation . On 13 January 2009 she filed an appeal against this decision. The applicant did not provide information about the follow-up to the appeal.

On 12 June 2012 the applicant, represented by his mother, requested the Radom-Wsch ó d District Prosecutor to reopen the investigation into the death of his father, W.M . He requested that the prosecutor obtain the file of the civil proceedings against the State Treasury in which the courts determined that there existed a causal link between the failures of the prison guards and the suicidal death of his father (see below). He pointed out the evident discrepancy between the findings of the District Prosecutor and the civil courts.

The investigation was reopened on 15 February 2013. The applicant ’ s mother submitted to the prosecutor the p roof of payment of all seven instalments of the fine imposed on her partner .

On 28 June 2013 the Radom-Wschód District Prosecutor discontinued the investigation into the case of the prison guards ’ failure to supervise prisoner W.M. and seize his belt (Article 231 § 1 in conjunction with Article 155 of the CC). The prosecutor found that the guards had not committed a criminal offence.

The prosecutor also discontinued the investigation into the case of professional negligence of Ms E.W., a clerk of the Radom District Court who had incorrectly credited the payment of 100 PLN made by W.M. to another debtor. The prosecutor found that the impugned offence had become prescribed.

With regard to the facts, the prosecutor established that during W.M. ’ s admission to the Remand Centre, prison guard S.S. had noticed that W.M. was anxious and tearful. W.M. contested his imprisonment as unjust. Consequently, guards S.S. and R.D. decided to verify with the Radom District Court whether the fine had been paid and were told that this was not the case. Next, W.M. was to be examined by a male nurse, M.S. The male nurse noticed that W.M. was agitated and tearful and declared that he would go on a hunger strike. Having regard to these circumstances, the male nurse requested that W.M. be taken to a medical room for examination by a doctor. At about 11 a.m. W.M. was brought to a medical room where he was to be examined by a doctor, D.C. W.M. was anxious, tearful and convinced that he had been wronged by the court and the police. W.M. refused to be examined or take any medication. He also declared that he would refuse any food and drink in protest against his imprisonment. W.M. did not declare suicidal thoughts. Doctor D.C. agreed to W.M. ’ s incarceration but recommended that he should be consulted by a psychiatrist at a later stage.

At about 11.40 a.m. W.M. was brought to transitory cell no. 4 where he was to wait for his prison underwear and hygiene products. At about 12 noon prison guard M.D. saw through a peephole that W.M. was lying on the floor. M.D. entered the cell and noticed that a belt was tightened around W.M. ’ s neck. He took the belt off W.M. ’ s neck and together with another guard, A.R., began to carry out resuscitation procedures. At about 12.30 p.m. a doctor of the emergency service declared W.M. dead.

With regard to the alleged failures of the prison guards, the prosecutor established that no such failures had been identified. She relied on the same arguments as invoked by the prosecutor in the earlier decision to discontinue the investigation of 28 February 2005. In addition, the prosecutor found that the prison guards had acted with due diligence in supervising W.M . The prison guards had no reason to assume that W.M. would commit suicide despite a strong emotional reaction to his incarceration. Furthermore, the doctor interviewing W.M. did not identify any suicidal tendencies. In conclusion, the prosecutor found that the prison guards had not committed an offence.

On 11 July 2013 the applicant ’ s mother appealed against the prosecutor ’ s decision. She argued, inter alia , that the prison guards had not ensured W.M. ’ s safety in prison by having failed to seize his belt.

On 10 October 2013 the Radom District Court upheld the prosecutor ’ s decision. It essentially concurred with the prosecutor ’ s findings.

3. Civil proceedings against the State Treasury

On 11 January 2010 the applicant brought a claim against the State Treasury with the Radom Regional Court. He sought PLN 1,000,000 PLN in compensation and a monthly allowance of PLN 3,000 in connection with his father ’ s death . The applicant claimed that the State Treasury was liable for his father ’ s death on account of gross negligence by the prison guards who had failed to ensure his father ’ s safety. In his view, the belt was a dangerous object and should definitely have been seized by the prison guards.

On 30 September 2010 the Radom Regional Court dismissed the applicant ’ s claim. It held that the prison guards had acted lawfully and in accordance with the Code of Execution of Criminal Sentences and therefore the State Treasury could not be held liable. In addition, the court held that there had been no causal link between W.M. ’ s death and the actions of the prison guards.

The Regional Court established that W.M. was agitated during his admission to the Remand Centre but considered this to be a standard reaction. The prison guards had checked with the Radom District Court and despite W.M. ’ s claims to the contrary, it confirmed that W.M. had not paid one instalment of his fine. During his medical examination, W.M. informed the doctor that he had lef t unsupervised children at home but he did not display suicidal thoughts. The doctor concluded that W.M. could be admitted to the Remand Centre and that there was no need for immediate psychiatric consultation. Having regard to the above, the court found that there was nothing in W.M. ’ s medical history or circumstances related to the offence which would have indicated that he had to be put under particular supervision and that his belt should have been seized.

The applicant appealed. On 8 February 2011 the Lublin Court of Appeal partly allowed his claim. It found the State Treasury liable and awarded the applicant PLN 70,000 in compensation and a monthly allowance of PLN 500. The court dismissed the remainder of the applicant ’ s appeal.

The Court of Appeal noted that under Article 108 § 1 of the Code of Execution of Criminal Sentences, the administration of a penitentiary institution had a duty to ensure prisoners ’ safety but in the case of W.M. the prison guards of the Remand Centre failed to do so. It found that in the circumstances of the case there had been an objective need to put W.M. under constant supervision. The lower court failed to have regard to reports drafted by prison guards M.S. and S.S. and doctor D.C. It transpired from them that the behaviour of W.M. could not be considered as simple agitation. His behaviour suggested a nervous breakdown caused by a feeling of injustice since W.M. was convinced that he had paid the fine in full. For example, prison guard M.S. stated in his report that W.M. had displayed disturbing behaviour (hitting a bed with his fist), was tearful, anxious and agitated, and declared that he would go on a hunger strike.

The Court of Appeal found that since W.M. ’ s behaviour was very different from the norm and he was recommended a psychiatric consultation, the prison guards should have taken all necessary steps to ensure his safety. They should have seized all objects presenting a risk to his life or health, including his belt or, alternatively, put him under constant supervision. Such actions would have prevented W.M. ’ s death. The court thus held that there was a causal link between the omissions of the prison guards and W.M. ’ s death.

With regard to the amount of compensation, the Court of Appeal found that the amount sought was grossly excessive and that the claimant (the applicant) had not established that his situation had deteriorated to such a degree. For the claimant, the death of his father when he was six years old was certainly a particularly acute loss which limited his prospects in life and amounted to a loss of natural support. Having regard to this and other relevant factors, the court found that the appropriate level of compensation was PLN 70,000.

The amount of monthly allowance sought by the applicant was also inflated. Its level could not be higher than the amount which W.M. would have contributed as a father. Having regard to W.M. ’ s financial situation prior to his death, the court found that the monthly allowance in the amount of PLN 500 was reasonable and commensurate to the applicant ’ s needs.

The applicant filed a cassation appeal, contesting the amount s of compensation and monthly allowance as too low. The State Treasury also filed a cassation appeal. On 22 November 2011 the Supreme Court accepted the defendant ’ s cassation appeal for examination and refused to entertain that of the applicant.

On 22 February 2012 the Supreme Court quashed the Court of Appeal ’ s judgment in part and remitted the case. It held that the lower court had failed to examine the defendant ’ s plea that the claim was time-barred. However, it upheld the Court of Appeal ’ s findings in respect of the prison guards ’ failure to ensure the safety of the applicant ’ s father.

On 31 May 2012 the Lublin Court of Appeal gave judgment awarding the same level of compensation and monthly allowance to the applicant and dismissing the remainder of the defendant ’ s appeal. The court examined the defendant ’ s plea based on the limitation period. To this end the court heard the applicant ’ s mother. It established that in April 2012 the applicant ’ s mother had found proof of payment of all seven instalments of the fine imposed on her partner made between December 1998 and June 1999. It further established that the prosecutor had refused to consider her a party to the investigation and to grant her access to the file. It was only after the applicant ’ s mother complained to the Ministry of Justice that she had been served the decision to discontinue the investigation on 9 January 2009. Accordingly, the three-year limitation period should start to run on the latter date. Having regard to the fact that the claim was lodged on 11 January 2010, the defendant ’ s plea had to be dismissed.

COMPLAINTS

1. In his letter dated 9 July 2013 the applicant complains about the prosecutor ’ s decision of 28 June 2013 to discontinue the investigation. In his letter dated 24 November 2013, referring to the District Court ’ s decision of 10 October 2013 the applicant asserts that the authorities were responsible for the death of his father and that they did not wish to elucidate the case. He does not invoke any provision of the Convention in this respect.

2. Relying on Articles 6 and 13 of the Convention, the applicant complains that the Court of Appeal ’ s judgment violated his right to a fair trial. He submits that the Court of Appeal rightly established the State ’ s liability for death of his father but set the amount of compensation at an insufficient level.

QUESTIONS TO THE PARTIES

1. May the applicant still claim to be a victim of a violation of the Convention, within the meaning of Article 34? Reference is made to the Lublin Court of Appeal ’ s judgments of 8 February 2011 and 31 May 2012 (see Erkan v. Turkey (dec.), no. 41792/10, 28 January 2014).

2 . Was the applicant ’ s father ’ s right to life, ensured by Article 2 of the Convention, violated in the present case? In particular, did the prison guards take all steps which could have been reasonably expected of them to ensure the safety of the applicant ’ s father ?

3. Having regard to the procedural protection 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 in breach of Article 2 of the Convention? Was the applicant ’ s mother denied victim status and access to the case file in the first investigation? Was she informed of the first decision to discontinue the investigation into the death of the applicant ’ s father?