Communicated on 26 May 2014

FOURTH SECTION

Application no. 73311/12 Janina GNIADEK against Poland lodged on 18 October 2012

STATEMENT OF FACTS

The applicant, Ms Janina Gniadek , is a P olish national, who was born in 1939 and lives in Krakow.

A. The circumstances of the case

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

1. The background

In 1994 the applicant ’ s husband, Aleksy Gniadek , suffered a heart attack. Afterwards he was treated for various cardiologic problems.

His health deteriorated. In February 2002 he went to a hospital in Nowa Huta because he was complaining of difficulty in breathing and had other worrying symptoms. However the head of the Internal Medicine Ward, Dr A.S., refused to admit him to the hospital.

On 29 March 2002 the applicant ’ s husband, at that time 67 years old, was feeling unwell at home and was taken by his family to the same hospital. The applicant submits that doctor A.S. and other staff of the ward did not treat her husband correctly. An electrocardiogram had been made which, as it was later established, had been inconclusive thus other procedures should had been carried out to rule out another heart attack. However the patient was only given medication that proved inefficient. After doctor T. C.-P. had finished her duty the applicant ’ s husband was left on his own although his state had not been stable. Two hours after being admitted to the hospital the applicant ’ s husband died.

The applicant complained about medical malpractice to the Krakow Regional Attorney for Professional Liability ( Okręgowy Rzecznik Odpowiedzialności Zawodowej ). Afterwards disciplinary proceedings were pending in the course of which Dr A.S. was heard and expert medical opinion was ordered.

2. The criminal proceedings

On an unspecified date the public prosecutor indicted Dr A.S. and two other doctors before the Krakow District Court ( SÄ…d Rejonowy ).

The trial court held six hearings in 2006 and five hearings in 2008. However between 19 June 2006 and 29 May 2008 there was a two ‑ year ‑ long period of inactivity of the trial court.

On 6 November 2009 the Krakow District Court convicted Dr A.S and Dr R.F. of exposing the applicant ’ s husband to danger in breach of Article 160 § 2 of the Criminal Code (II K 2064/05/N). The first accused was sentenced to one year and six months ’ imprisonment suspended on probation and the second accused to one year ’ suspended sentence. Another doctor, T. C.-P., was acquitted. The court established that both doctors when dealing with the applicant ’ s husband had failed to carry out some standard medical procedures which had been necessary given the patient ’ s condition. The court relied on two expert opinions provided by the Warsaw and Silesian Medical Academy Institutes of Forensic Medicine.

Both accused and the prosecutor appealed against the judgment.

On 4 March 2010 the Krakow Regional Court allowed the appeals and remitted the case (IV Ka 87/10). The court considered that both expert opinions had been unsatisfactory and the trial court had failed to clarify inconsistences between the opinions.

On 29 November 2011 the Krakow District Court again convicted Dr A.S. and Dr R.F. of unintentionally exposing the applicant ’ s husband to danger in breach of Article 160 § 3 of the Criminal Code (VIII K 555/10/N). The first accused was sentenced to 3,000 Polish zlotys (PLN) fine and the second to PLN 2,000 fine.

The accused, the prosecutor, and the applicant acting as an auxiliary prosecutor, appealed. The applicant in her appeal complained about legal qualification of the offence committed by the accused. She argued that taking into account the gravity and extent of errors committed by both accused their failure to act should not be considered as unintentional. Both accused were experienced doctors, Dr A.S. was the head of the ward, therefore their actions fulfilled the description of the offence prohibited by Article 160 § 2 of the Criminal Code.

The court scheduled a hearing for 23 March 2012 but it was postponed due to the absence of the first accused.

On 10 May 2012 the Krakow Regional Court quashed the judgment and discontinued the case. The court considered that the period of prescription for the offence prohibited by Article 160 § 3 of the Criminal Code was ten years if criminal proceedings had been instituted. Thus, in the instant case the offence had become time-barred on 29 March 2012. The judgment was final.

3. The medical evidence

On 29 August 2003 the Silesian Medical Academy Institute of Forensic Medicine submitted an expert medical opinion to the Krakow District Prosecutor. The experts concluded that the applicant had been correctly diagnosed but incorrectly treated. In particular given ineffectiveness of the pharmacological treatment other standard medical procedures should have been carried out. Moreover, a possibility of him having a new heart attack should have been ruled out.

This opinion was supplemented on 26 March 2004. The experts considered that the head of the ward, Dr A.S., should be considered responsible for shortcomings in organisation of the ward. After Dr T. C.-P. had finished her duty the patient was left on his own, untreated.

On 24 June 2005 this opinion was further supplemented taking into account the explanations submitted by the accused doctors. The experts considered that the applicant ’ s husband had not been treated in accordance with the standards recognised at the material time as a correct response to a possible heart attack. Finally, on 26 February 2009 the experts reiterated that all their previous findings remained valid also in the light of newly acquired evidence.

On 28 May 2007 the Warsaw Medical Academy Institute of Forensic Medicine submitted its opinion to the Krakow District Court. The experts considered that it had been a mistake not to rule out that the patient had been having a new heart attack. This lack of correct diagnosis influenced subsequent treatment of the patient. They also criticised the choice of medicine given to the applicant ’ s husband.

This opinion was supplemented on 9 April 2008. The experts again pointed to the series of medical errors which had led to the death of the applicant ’ s husband.

B. Relevant domestic law

Article 160 of the Criminal Code provides, in so far as relevant, as follows:

Ҥ 1. Whoever exposes a human being to an immediate danger of loss of life, a serious bodily injury, or a serious impairment of health shall be subject to the penalty of deprivation of liberty for up to 3 years.

§ 2. If the perpetrator has a duty to take care of the person exposed to danger he shall be subject to the penalty of the deprivation of liberty for a term of between 3 months and 5 years.

§ 3. If the perpetrator of an act specified in §1 or 2 acts unintentionally he shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to one year.”

COMPLAINT

The applicant complains that due to the length of the proceedings the doctors responsible for the death of her husband were not punished. The proceedings before the courts lasted seven years although all necessary evidence had been collected early. It led to prescription of the offences which were committed by both doctors.

QUESTION TO THE PARTIES

Was the investigation into and judicial examination of the death of the applicant ’ s husband thorough and effective, as required by Article 2 of the Convention ?

The Government are invited to provide copies of the Krakow District Court ’ s judgments of 6 November 2009 and 29 November 2011 with reasoning.