Communicated on 10 September 2014

FOURTH SECTION

Application no. 3529/14 Zdzis Å‚ aw PARKITNY against Poland lodged on 28 December 2013

STATEMENT OF FACTS

The applica tion was introduced by Ms Danuta Parkitna , the mother of late Sebastian Parkitny . She died o n 28 May 2014. Subsequently, Mr Zdzis ł aw Parkitny , the father of Sebastian Parkitny informed the Court that he wished to continue the proceedings. The applicant was born in 1949 and lives in D ą browa G ó rnicza . He is represented before the Court by Ms K. Dworska , a lawyer practising in Katowice .

The circumstances of the case

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

1. Detention and death of the applicant ’ s son

The applicant ’ s only son , Sebastian Parkitny (SP ) was born in 1977. He worked as a professional driver and used to undergo a medical check every year. Prior to his detention he did not have any health issues.

On an unspecified date in December 2006 the Tarnowskie G ó ry District Court remanded the applicant ’ s son in custody on suspicion of robbery committed in an organised criminal group. It appears that the investigation against the members of the alleged criminal group was subsequently discontinued for lack of evidence,

The applicant ’ s son was admitted to the Tarnowskie Góry Remand Centre ( Areszt Ś ledczy ) on 16 December 2006. On 18 December 2006 he underwent a medical check which found him to be in good health.

SP was initially placed in the cell no. 62 . On 28 December 2006 he was transferred to a 10-detainee cell no. 51 .

On 30 December 2006 after the evening assembly at 7.15 p.m. SP started feeling unwell. He complained about a pain in his stomach, spine and kidneys. He suffered from diarrhoea and vomited. He apparently asked about the possibility of seeing a doctor.

After 10 p.m. SP went to the toilet again but was unable to climb back on his upper bed. He sat down on the lo wer bed of another detainee. He stopped reacting to questions from his co-detainees. According to the applicant, a prison guard noticed this situation during a regular check of the cell but did not react.

At about 11.20 p.m. SP urinated unconsciously on the bed where he was seated. The co-detainees informed the prison guard RO of the situation and that they were unable to communicate with SP. The prison guard apparently inspected the cell through a peephole. Some of the co-detainees claimed that they had called the prison guard a few times using a cell alarm and banging on the cell door.

On 31 December 2006 at 0.58 a.m. the prison guard informed the duty officer ( dow ó dca zmiany ) about the strange behaviour of SP. The duty officer decided to check SP and called the medical emergency service. The emergency service arrived at 1.20 a.m. SP was moved to a nursing room by two co-detainees. Doctor ZZ of the emergency service found that SP was deeply unconscious but breathing normally. He considered that SP ’ s condition was life-threatening on account of his neurological condition and decided that he should be transferred to a civilian hospital. The duty officer agreed to the transfer of SP to a civilian hospital under police escort as in his view it had been necessary to protect SP, the doc tor and escorting prison guards h aving regard to the fact that SP had been charged with acting in an organised criminal group. The ambulance left the Remand Centre at 2.30 a.m.

SP was admitted to the Tarnowskie Góry District Hospital at about 3 a.m. in a serious condition. Doctors found him to be in hypovolemic shock, deeply unconscious and in the condition of respiratory and circulatory failure. At 3.30 a.m. SP was transferred to the intensive care ward due to acute respiratory failure and on suspicion of being poisoned with unknown substance. Doctors carried out a gastric lavage and took samples of SP ’ s blood and urine for toxicological tests. The tests proved negative.

SP ’ s condition deteriorated further on 1 January 2007. At 6.05 p.m. he suffered from a cardiac arrest and died at 7.10 p.m. on that day.

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

On 2 January 2007 the Tarnowskie Góry District Prosecutor opened an investigation into the case of unintentionally causing the death of SP (Article 155 of the Criminal Code).

On 3 January 2007 an autopsy was carried out. Forensic experts established important cerebral oedema but could not determine the cause of death.

On 18 July 2007 the Tarnowskie Góry District Prosecutor discontinued the investigation having found that no offence under A rticle 155 of the Criminal Code had been committed.

The prosecutor established that the autopsy carried out on 3 January 2007 had not determined the cause of death but excluded that SP had died from injuries. The tests of SP ’ s clothing and food did not permit to establish the cause of his death either. The prosecutor obtained an opinion of the forensic experts from the Silesian Medical University. According to the opinion, SP ’ s death was caused by cardiac arre st resulting from violent water ‑ electrolyte and acid-base imbalances of unknown origin. It turned impossible for the experts to determine the cause of such suddenly developing condition which led to a death within a short period of time. They considered a possibility of acute gastrointestinal infection of unknown pathogen or poisoning by undetermined substance. Alternatively, they pointed to a possibility of an illness such as diabetes.

The evidence gathered in the case did not confirm that the death of SP had been caused by criminal actions or omissions of third parties and therefore the investigation into the offence under Article 155 of the Criminal Code (CC”) had to be discontinued.

The applicant appealed to the Tarnowskie Góry District Court . She argued that the decision to discontinue the investigation was premature because the prosecutor had not gathered all relevant evidence.

On 10 October 2007 the Helsinki Foundation for Human Rights in Warsaw filed its amicus curiae brief with the District Court.

On 19 December 2007 the Tarnowskie Góry District Court quashed the prosecutor ’ s decision and remitted the case.

The court held that the prosecutor had failed to undertake many actions aimed at the proper establishment of the facts and mainly concentrated on the conclusion of the forensic experts that it had not been possible to determine the cause of death.

The court underlined that the prosecutor examined the case only from the angle of Article 155 of the CC. It was also necessary to examine the case from the angle of Articles 231 § 1 ( failure of the prison guards to act ) and 162 § 1 (failure of the co-detainees to assist a person in danger) of the CC as it had been initially envisaged.

The court noted that in the case of death of a detainee the prosecutor had a particularly stringent obligation to explain the circumstances of the case. In its view the prosecutor did not establish when SP had showed first symptoms of his illness. In this respect the testimonies of the prison guards and the co-detainees were contradictory. Co-detainees testified that SP had been unconscious at 10 p.m. or before 12 p.m. The prison guards testified that the unusual behaviour of SP had been detected at about 1 a.m. In view of these discrepancies it was necessary to establish whether the co-detainees had failed to assist SP or whether (if it were assumed that the co-detainees informed the guards earlier about SP ’ s condition) the guards called the emergency service only at 1.09 a.m. In this respect the court instructed the prosecutor to question detainees from cells neighbouring the cell no. 51.

The court also instructed the prosecutor to hear doctor ZZ and the duty officer in order establish when exactly the ambulance left the remand centre. In particular, whether it was necessary to hold the transfer to the hospital until 2.30 a.m. despite the fact that SP had been in a critical condition. It was established that the ambulance had arrived at the remand centre at 1.17 a.m. and doctor ZZ testified that the medical procedures lasted only a dozen or so minutes. Subsequently, the prosecutor should consider requesting an expert opinion to determine whether the delay in providing assistance to SP by either co-detainees or prison guards exposed him to the danger to his life.

The court further noted that according to SP ’ s mother (the applicant) the t-shirt worn by SP had not been secured. It instructed the prosecutor to elucidate this issue and request an analysis of any traces found on it.

Another point to be elucidated concerned the testimony of the prison guard MS. She apparently requested another prison guard to pay particular attention to cell no. 51 because some of the detainees there showed tendency to ill-treat others. One day before the placement of SP in the cell no. 51 MS received information that detainee W had been ill-treated by his inmates (he had been forced to drink some liquids). Detainee W denied these facts but requested an immediate transfer to a different cell. MS further testified that cell no. 51 was an exceptional in the sense that inmates were unwilling to speak about the events in the cell. The court instructed the prosecutor to question prison guard MS and detainee W.

The prosecutor should also take into account the evidence of a detainee AD who testified that he had heard about a homicide of a detainee which had taken place in the remand centre in December 2006. AD heard about it from a detainee with a nickname Miriam who worked in the prison radio. According to Miriam, who shared the cell with that detainee, a detainee (SP) died after having drunk so-called “beer”, i.e. mixture of various caustic liquids. According to Miriam, co-detainees from cell no. 51 did not call prison guards to SP. The court ordered that co-detainees of SP, AD and Miriam (once his identity was established) should be questioned by the prosecutor.

At the applicant ’ s request the investigation was assigned to the Tychy District Prosecutor ’ s Office. On 27 November 2008 the Tychy District Prosecutor discontinued the investigation into the case of SP ’ s death.

In respect of the alleged failure of the co-detainees to provide assistance to SP by having failed to timely inform the prison guards about his serious condition (Article 162 § 1 of the CC) the prosecutor questioned again all the co-detainees. The prosecutor established that co-detainees called the guards when they realised from SP ’ s behaviour (unconsciously urinating and lack of verbal communication) that his condition had deteriorated. His condition up to that moment (frequent visits to the toilet and normal communication) did not indicate that SP was exposed to a risk to his life or health. In these circumstances none of the co-detainees com mitted an offence under Article 162 § 1 of the CC.

With regard to the alleged failure of the prison guards to provide assistance to SP (Article 231 § 1 of the CC) the prosecutor considered two issues. The first question was when the prison guards learnt about the deteriorating condition of SP. The second question was whether they promptly organised a medical assistance for SP.

In respect of the first question the evidence gathered in the case did not permit to clearly determine this point. On one hand, the prison guard RO testified that during a regular check at about 1 a.m. he had noticed through a peephole that SP had staggered on a bed of his inmate. Since SP did not react to his calls, RO informed the duty officer about the situation. After 5 to 10 minutes later the guards entered the cell and the duty officer unsuccessfully attempted to communicate with SP. Subsequently he called the emergency service at 1.10 a.m. The duty officer also testified that when the cell no. 51 was being locked at 10 p.m. none of the inmates had signalled anything improper.

On the other hand, some co-detainees from the cell no. 51 testified that the guards learnt about SP ’ s serious condition earlier than 1 a.m. and that they had taken about 2 hours to react. However, the prosecutor noted that none of them could indicate the exact time when the prison guards had been notified about the problem in their cell. The testimonies of co-detainees did not permit to establish the exact time when the prison guards had been called or how much time passed between the call and the transfer of SP to the nursing room. The evidence of some co-detainees was consistent with the testimonies of the prison guards.

Doctor ZZ testified that on his arrival SP had been in the state of deep unconsciousness but with no respiratory or circulatory problems. His condition was life-threatening on account of neurological disorder. Doctor ZZ applied the necessary medical procedures and monitored SP ’ s condition which remained unchanged until hi s admission to the hospital. On the basis of Doctor ZZ ’ s evidence the prosecutor established that SP ’ s condition necessitated application of various medical procedures. The prosecutor found that the time during which the ambulance remained in the remand centre was exclusively related to the medical procedures applied by the doctor and that the prison guards had not hindered the saving of SP ’ s life.

Having regard to the above the prosecutor established that it could not be questioned that at about 1 a.m. the prison guards had learnt about the deteriorating condition of SP and at about 1.30 a.m. medical assistance had been provided to him. The prosecutor found that the prison guards had not failed in their duty to provide assistance to SP and therefore no offence under Article 231 § 1 of the CC had been committed.

With regard to allegedly causing uninten tional death of SP (Article 155 of the CC) the prosecutor found that the evidence did not indicate that third parties had been involved. The prosecutor relied on the forensic opinion of the Katowice Medical University and its conclusions.

The prosecutor noted that the evidenc e, especially testimonies of co ‑ detainees, did not permit to support the hypothesis that SP had been poisoned by third parties. In the course of the investigation a detainee AD testified that co-detainees in cell no. 51 had been ill-treating SP. The prosecutor identified Miriam as a detainee MP. The latter stated that he had never spoken to detainee AD. Subsequently, AD did not confirm his earlier testimony. The prosecutor found that there was no other evidence indicating that SP had been ill-treated by his inmates. All co-detainees denied any such allegations.

The prosecutor questioned prison guard JB. This guard received information in December 2006 that co-detainees in cell no. 51 had been giving a detainee W some liquids to drink. However, detainee W testified that the situation in cell no. 51 was normal and that no one had been forcing him to drink any liquids. Another prison guard MS testified that she had had no information about problems in cell no. 51.

The prosecutor further attempted to establish what happened to the t-shirt worn by SP on the critical day. She established that during SP ’ s transfer out of the cell he was wearing an undervest. After his transfer to the hospital his personal belongings were packed by co-detainees and handed to the prison guards. However, the questioning of co-detainees and prison guards did not permit to establish what happened to the undervest.

In conclusion, the prosecutor found that the evidence gathered in the investigation did not permit to clearly establish the SP ’ s cause of death. In the light of the forensic opinion it could not be excluded that the death occurred as a result of an illness. On the other hand, it could not be excluded either that SP died as a result of poisoning by unknown substance. However, in respect of this hypothesis no evidence indicated that the alleged intake of the poisonous substance was linked to criminal activity of third parties. Accordingly, no offence under Article 155 was committed.

The applicant appealed. She alleged that not all circumstances of the case had been elucidated by the prosecutor and pointed to inconsistencies in her findings. She also alleged that the prosecutor had not carried out all the investigative acts as ordered by the court.

On 19 March 2009 the Tarnowskie Góry District Court quashed the prosecutor ’ s decision to discontinue the investigation and remitted the case. The court held that in view of the extensive evidentiary material the prosecutor had rightly concluded that the prison guards did not commit a criminal offence and there were no grounds to question this finding. However, the prosecutor did not take all necessary steps to establish what had caused the sudden deterioration of SP ’ s health which eventually led to his death. The court had regard to evidence of some witnesses who had testified about the alleged cases ill-treatment by detainees from the cell no. 51. The materials in the case warranted a suspicion that the death of SP could have resulted from the acts of third parties, and in particular that he had been poisoned. The court held that the prosecutor was required to properly elucidate on the question of possible poisoning of SP by his co ‑ detainees. It pointed to some inconsistencies in the evidence of co ‑ detainees which supported the hypothesis of poisoning. It also noted that doctor ZZ suggested that SP could have been a victim of poisoning. In this respect the court ordered the prosecutor to question detainees from the cells adjacent to the cell no. 51 and noted that a similar instruction given in the earlier court decision had not been followed.

The court also ordered that a supplementary expert opinion be requested since the opinion of the Katowice Medical University was inconclusive. It also considered unsatisfactory the prosecutor ’ s efforts to establish what happened to the SP ’ s undervest.

On 31 December 2009 the Tychy District Prosecutor discontinued the investigation into the case of SP ’ s death.

With regard to the cause of SP ’ s d eath, the prosecutor obtained a supplementary opinion of the forensic experts from the Silesian Medical University. Without excluding other options, the experts considered that the most probable cause of death was poisoning by unknown substance. They were unable to detect the substance despite wide-ranging toxicological tests that have been carried out. The experts further considered that the exhumation would not enable them to establish the substance at issue.

The prosecutor found that there was no evidence to substantiate the hypothesis that the alleged poisoning resulted from the actions of third parties. It noted that a detainee AD claimed that SP had been forced by his co-detainees to drink caustic liquids. However, this allegation was not confirmed by the results of post-mortem examination of SP. There was no other evidence in support of the allegation that SP had been ill-treated by co-detainees from the cell no. 51. The detainees from the cell opposite to cell no. 51 did not notice anything unusual on the critical day.

The prosecutor also examined the issue o f a letter found on 29 December 2006 in the personal belongings of DT, one of the co ‑ detainees in the cell no. 51. The letter contained a passage about “organising in the cell an initiation ceremony for the two freshmen”. On 31 December 2006 the prison guards found an excessive number of pills in DT ’ s belongings. DT first denied that he had written the letter. Subsequently, confronted with the opinion of the hand-writing expert, he admitted it. However, he stated that the impugned passage was a slang term for introducing the new cellmates to the rules in the cell concerning the cleaning of the cell, collection of meals etc. and had nothing to do with ill ‑ treatment. The prosecutor found no other evidence substantiating the allegation of SP ’ s ill-treatment by his cellmates. She was further unable to determine what happened to the undervest worn by SP.

In conclusion, the prosecutor found that the evidence collected in the case did not permit to determine the cause of SP ’ s death.

The applicant appealed the prosecutor ’ s decision to discontinue the investigation in respect of the alleged offence under Article 155 of the CC.

On 30 August 2010 the Tarnowskie G ó ry District Court quashed the prosecutor ’ s decision and remitted the case. It held that the prosecutor should obtain another expert opinion in order to establish the cause of SP ’ s death.

The prosecutor obtained a n o pinion of the forensic experts from the Warsaw Medical University . The experts opined, inter alia , that they could not clearly indicate the reason for the sudden deterioration of SP ’ s health which led to his death. They indicated that the case could be related to an overdose of salt or food poisoning. The experts ’ work was hampered by the fact that they could not re-examine the specimen taken from SP.

On 26 June 2013 the Tychy District Prosecutor discontinued the investigation into the alleged offence under Article 155 of the CC. The prosecutor found that the evidence collected in the case did not permit to establish the cause of SP ’ s death. In the light of the second expert opinion, the death could have resulted from an illness or from a poisoning. However, in respect of the latter hypothesis there was no evidence of involvement of the co-detainees in the alleged poisoning.

The prosecutor found no evidence to the effect that the actions of prison guards caused the death of SP. In particular, according to the second expert opinion the delay in SP ’ s transfer to the hospital did not expose him to the risk to his life or limb. Lastly, the experts confirmed that doctor ZZ of the emergency service had carried all the necessary medical procedures. In conclusion, the prosecutor held that the re was no evidence to support a suspicion of involvement of third parties in the death of SP.

On an unspecified date in 2010 the applicant filed a private bill of indictment against the prison guards AH and RO. The proceedings are pending before the Tarnowskie G ó ry District Court.

3. Civil proceedings

On 29 December 2009 the applicant filed a civil claim for compensation against the State Treasury with the Gliwice Regional Court. The proceedings are pending.

COMPLAINTS

1. The applicant alleges a breach of Article 2 of the Convention in its substantive aspect. She asserts that the prison guards did not take appropriate measures to ensure the security of her son in the cell no. 51. They were aware of the unlawful practices in that cell and of the code of silence prevailing there, but nonetheless they placed there the applicant ’ s son who was a new inmate. The applicant further claims that the prison guards did not react promptly to the unusual behaviour of her son on 30 December 2006. She asserts that the decision to transfer her son to the hospital under police escort was unnecessary since he did not present any danger and was in critical condition.

2. The applicant complains under Article 2 of the Convention (procedural limb ) that the authorities did not carry out an effective and prompt investigation into the death of her son. She alleges that the sudden deterioration of her son ’ s health and his subsequent death had resulted from the actions of his cell-mates. The prosecutor did not duly examine this aspect of the case despite circumstanti al evidence to this effect. The applicant asserts that the initial part of the inv estigation was carried out in a routine manner without having regard to the specific prison context. The authorities did not pay sufficient regard to the evidence of the prison guards (MS and JB) indicating the existence of unlawful practices in the cell no. 51. The investigation did not explain the hypothesis of poisoning of the applicant ’ s although such hypothesis was referred to by the forensic experts.

QUESTIONS TO THE PARTIES

1 . Has the applicant ’ s son ’ s right to life, ensured by Article 2 of the Convention, been violated in the present case? In particular, did the prison authorities take all steps which could have been reasonably expected of them to ensure the safety of the applicant ’ s son in the cell no. 51?

2. 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 by the domestic authorities in breach of Article 2 of the Convention?