Communicated on 14 April 2014

FOURTH SECTION

Application no. 14426/13 Zofia JOŁKIEWICZ against Poland lodged on 7 February 2013

STATEMENT OF FACTS

The applicant, Ms Zofia Jołkiewicz , is a P olish national, who was born in 1938 and lives in Łódź . She is represented before the Court by Ms M. Wentlandt-Walkiewicz , a lawyer practising in Łódź .

The circumstances of the case

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

In the evening of 10 June 2001 the applicant ’ s husband (BJ) returned from his allotment garden, having spent there a whole day. He complained about pain in his chest. The applicant cared for her husband the whole night. At about 5.00 a.m. on 11 June 2011 she decided to call the emergency service as she noticed no improvement in her husband ’ s condition.

The emergency team was comprised of doctor JF, paramedic GL, nurse MW and driver JI. Doctor JF performed e lectrocardiography test ( ECG). He administered an injection of some medication and informed the applicant that her husband ’ s condition should improve shortly. However, 15 minutes later BJ died. The applicant called the emergency service again. The second team declared BJ dead. Shortly after, employees of a funeral company arrived at the applicant ’ s home although she had not called them.

1. Disciplinary proceedings

On 12 July 2001 the applicant filed a complaint with the Łódź Regional Attorney for Professional Liability ( O kręgowy Rzecznik Odpowiedzialności Zawodowej – “the Regional Attorney”). She alleged that the medical treatment of her husband had been inadequate and led to his death. She submitted that her husband had not consulted a doctor in the three years prior to the incident. The Regional Attorney instituted disciplinary proceedings.

The Regional Attorney requested that an expert opinion be prepared on the treatment provided to BJ. In his opinion of 7 January 2002, doctor MK established the following facts on the basis of documentary evidence. The ambulance crew led by doctor JF arrived at BJ ’ s home on 11 June 2001 at 5.45 a.m. Doctor JF examined the patient and performed ECG test. The result of ECG was normal. BJ was diagnosed with coronary artery disease (CAD) and osteoarthritis. He was administered nitroglycerin and pain killers. The condition of BJ improved and the emergency team left.

According to the applicant, her husband lost consciousness about 15 minutes later. She called ambulance again and a second team arrived at 6.55 a.m. They declared BJ dead and noted in the intervention card ( karta wyjazdu ): “Sudden death. Cause unknown.”

Doctor MK established that the most likely cause of death was acute myocardial infarction. The result of ECG test was an important element in determining the adequacy of treatment applied by doctor JF. The expert underlined that the chest pain had lasted many hours prior to the death and therefore the ECG result should have reflected that.

The expert expressed the following doubts with regard to the actions of the first emergency team. Firstly, the intervention card was filled out in two stages and the most important facts (description of ECG results and administration of nitroglycerin ) were added later with a different pen. Secondly, the question of ECG results was very unclear. The results were found only 4 months after the incident and the name of the patient was added in a different ink. The expert recommended that the proceedings be continued and that further questions needed to be elucidated (what was the procedure for securing the ECG results, why the intervention card and ECG results were filled out with different pens, compare the earlier ECG results of the patient with the one performed on the critical day).

On 16 September 2002 the Regional Attorney discontinued disciplinary proceedings against doctor JF for lack of evidence of his guilt. The Regional Attorney accepted the facts as established by the expert MK. He noted that the results of ECG tests carried out by doctor JF had been normal, while they should have indicated some anomalies having regard to BJ ’ s condition. The Regional Attorney carried out some unspecified evidentiary activities with a view to explaining the above divergence. However, his efforts were unsuccessful and he concluded that the results of ECG adduced by doctor JF on 8 October 2001 were the results of the test carried out on the applicant ’ s husband on the critical day.

On 27 September 2002 the applicant appealed. She requested that the doubts expressed in the opinion of expert MK be clarified. She stated that she had been present during her husband ’ s treatment and that he had not been administered nitroglycerin . The applicant could not comprehend why doctor JF administered nitroglycerin if the ECG results had not indicated any anomaly.

On 6 November 2002 the Chief Attorney for Professional Liability quashed the decision to discontinue the proceedings. He ordered the Regional Attorney to examine again the question of adequacy of treatment provided by doctor JF to the applicant ’ s husband and to explain the issue of lost and found results of ECG test.

On 14 April 2003 the Regional Attorney suspended the disciplinary proceedings in view of the investigation into the incident which was carried out by the Appellate Prosecutor ’ s Office. The file of the disciplinary proceedings was transmitted to the prosecutor.

The Regional Attorney resumed the proceedings on 6 February 2008. He obtained some materials from the investigation. Having regard to these unspecified materials, the Regional Attorney concluded that the treatment provided by doctor JF to the applicant ’ s husband had been appropriate and discontinued the proceedings on 27 February 2008. No reasons were provided to substantiate this finding.

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

On 29 January 2002 the applicant filed a criminal complaint with the Łódź Appellate Prosecutor ’ s Office. She alleged that there was a reasonable suspicion that an offence specified in Article 160 § 2 of the Criminal Code has been committed. The applicant claimed that the first doctor had left her husband in a situation directly endangering his life. It could not be excluded that the death was related to the injection ordered by the doctor.

The applicant also submitted that shortly after the departure of the second emergency team employees of a funeral company arrived at her home although she had not called them. She suggested that the case of her husband could be related to the widely reported allegations concerning the work of the emergency service in Łódź .

It appears that the applicant ’ s criminal complaint was first examined by the Łódź Appellate Prosecutor ’ s Office. However, no decisions appear to have been given.

On an unspecified date in 2007 the case was transferred to the Łódź Regional Prosecutor. The Regional Prosecutor began an investigation into a case of homicide and numerous cases concerning the lack of adequate treatment of patients by the employees of the Łódź Emergency Service.

On 21 June 2012 the Regional Prosecutor severed to a separate investigation cases of 108 patients, including the case of the applicant ’ s husband, in which it was alleged that they had received no or inadequate treatment by the employees of the Łódź Emergency Service. She examined whether the alleged facts constituted an offence under Article 160 § 2 of the Criminal Code. The prosecutor examined cases stretching between 24 December 1991 and 26 January 2002.

With regards to the applicant it was alleged that an inadequate treatment provided by the employees of the emergency service on two occasions had exposed him to direct danger to his life or risk of serious impairment of his health.

The prosecutor established the following facts. On 11 June 2001 at 5.33 a.m. the applicant called an ambulance for her husband because of “strong pressure and pain in his chest”. Later on the same day at 6.45 a.m. she called the emergency service again because her husband was “unconscious”.

BJ had been treated for hypertension in his local health establishment and was in receipt of an invalidity pension on this account. His treatment was successful and at one point BJ stopped taking medication and consulting his doctor. In the morning of 10 June 2001 BJ left for his allotment garden and returned home at about 7 p.m. He complained about pain in his chest. At about 5.00 a.m. in the following morning the applicant called an emergency service because her husband ’ s condition did not improve.

A doctor who arrived interviewed BJ and performed an ECG test. He decided to administer an injection and said that BJ ’ s condition should improve in one hour. The applicant stated that BJ died 15 minutes after the ambulance had left. Initially, she suspected that it was a loss of conscience and called again the emergency service. A doctor who arrived declared BJ dead. He did not attempt to resuscitate BJ. The applicant alleged that the first doctor should have recognised myocardial infarction and transfer her husband to the hospital.

The intervention card of the first emergency team recorded that BJ had complained about pain in his heart area and noted, inter alia , the following symptoms: blood pressure 120/80, regular, breathing normal, breath sounds normal, reaction of pupil normal, in pain when pressed, ECG no traits. The intervention card recorded the diagnosis of chest pain ( stenocardia ) and osteoarthritis. Some medication was administered.

The intervention card of the second emergency team recorded that the patient had complained about extensive chest pain. In the morning he lost consciousness, started wheezing and then stopped giving signs of life. The following symptoms were noted: Glasgow scale 3, no blood pressure, no pulse, skin cold and blue, no breath, no breath sounds, wide pupils without reaction. No signs of life were noted. The recorded diagnosis was sudden death before the arrival of the team, cause unknown.

The prosecutor established the composition of the two emergency teams. She did not analyse any other aspect of the case. The prosecutor found that the alleged offence under Article 160 § 2 became prescribed since the prescription period stood at 10 years and the events at issue had occurred on 11 June 2001.

On 21 June 2012 the Łódź Regional Prosecutor discontinued the investigation into the case of the applicant ’ s husband on the ground that the impugned offence became prescribed.

The applicant appealed. She raised two main points in her appeal. Firstly, she alleged that the prosecutor did not establish all relevant circumstances of the case since she had failed to secure opinions of experts in anaesthesiology, cardiology and emergency medicine as well as evidence of telephone traffic concerning the members of the emergency team. She argued that the decision to discontinue was taken before all the circumstances of the case had been elucidated. The evidence of the experts suggested by the applicant would have clarified what medication had been administered to BJ and whether the treatment had been adequate. In this respect, the applicant referred to the shortcomings indicated in the opinion of expert MK. The prosecutor also failed to establish whether the staff of the first emergency team had contacted the employees of the funeral company despite a suspicion that the former could have been paid for providing information about the cases of death.

Secondly, the applicant alleged that the prosecutor had erred in classifying the offence at issue under Article 160 § 2 of the Criminal Code, while the facts of the case indicated that the impugned incriminating act should have been classified as homicide under Article 148 § 1 of the Criminal Code. In that case the period of prescription would have been extended to 30 years. The behaviour of BJ after the departure of the first team indicated that he could have been administered Pavulon . His symptoms, namely wheezing, choking and difficulty in catching breath were similar to those which were displayed by a person who was administered Pavulon . The circumstances indicated that BJ died of asphyxiation. In addition, an empty syringe with remains of some drug which was not used by emergency services at the time was found on the spot.

On 27 September 2012 the Łódź – Ś r ó dmie ś cie District Court upheld the prosecutor ’ s decision. It noted that the applicant could have had some misgivings about the death of her husband in the light of the criminal activity of certain paramedics and doctors of the Łódź Emergency Service of whom some had been convicted of killing patients by injecting the drug Pavulon . However, a thorough and logical analysis of the case of BJ led to the conclusion that there had been no suspicion of homicide in the present case.

The court referred to the prosecutor ’ s letter of 16 August 2012 which indicated that the relevant documentation did not indicate any abnormal increase in the use of Pavulon by the first medical emergency team. The sole fact of decease following the intervention of an emergency team did not constitute a proof of homicide. Neither the reappearance after 4 months of the ECG results constituted such a proof. The court agreed with the applicant that there had been doubts about the professionalism and diligence of doctor JF, however they did not justify a suspicion that a homicide had been committed. Furthermore, the applicant ’ s doubts were not supported by the fact of the arrival of the funeral company because they had been contacted by the second and not the first emergency team.

The court agreed with the applicant that serious doubts had arisen with regard to the diagnosis made by doctor JF, the treatment applied and the failure to transport her husband to the hospital. There was a reasonable suspicion that the members of the first emergency team committed an offence under Article 160 § 2 of the Criminal Code; however, the proceedings in the case were lengthy and the prosecution became prescribed on 11 June 2011. In view of the above, the proceedings had to be discontinued pursuant to Article 17 § 1 (6) of the Code of Criminal Procedure.

COMPLAINTS

1. The applicant complains under Article 2 of the Convention (procedural limb) that the investigation was carried out in a routine and protracted manner and resulted in the discontinuation while a number of irregularities in the actions of the emergency team had been established. The investigation was not effective and did not establish all the relevant circumstances of the case. At the time of the investigation the authorities were aware of the practice of killing of patients by employees of the Łódź Emergency Service and providing information about the cases of death to funeral companies against payment of a fee.

The applicant alleges that the District Court ’ s review of the prosecutor ’ s decision was not thorough. The court relied on the letter of the prosecutor who stated that no irregularities had been established in the distribution of Pavulon in respect of the first emergency team.

The totality of the circumstances of the case indicated that the actions of the emergency team should have been classified as homicide, and if that was the case, the offence would not have become prescribed. She relies on the opinion of expert MK who noted that the relevant documentation could have been forged. She alleges that the prosecutor did not secure evidence from telephone traffic between the emergency team and the funeral company.

2. The applicant further complains under Article 6 § 1 of the Convention that the case of BJ ’ s death was not duly examined. The prosecutor failed to establish all relevant circumstances of the case and did not secure all evidence concerning the incident, in particular he failed to obtain opinions from experts in anaesthesiology, cardiology and emergency medicine. These opinions would have determined what medication was administered to BJ and whether the medical treatment was appropriate. These failings resulted in the erroneous legal classification of the offence committed against BJ and subsequent discontinuation of the proceedings. The investigation was not carried out promptly.

QUESTION TO THE PARTIES

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?

Reference is made to the fact the prosecutor did not establish whether the care provided to the applicant ’ s husband was adequate, did not secure any expert evidence to this effect and did not examine any of the alleged shortcomings indicated in the opinion of the expert MK obtained in the disciplinary proceedings.