FOURTH SECTION

Application no. 19974/12 Maria and Zdzislaw DRZEWIECCY against Poland lodged on 27 March 2012

STATEMENT OF FACTS

The applicants, Maria and Zdzisław Drzewieccy , are Polish nationals, who were born in 1952 and 1950 respectively and live in Trzebiel .

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

On 16 May 1998 their son, Mr Piotr Drzewiecki , was involved in a road traffic accident. On 20 May 1998 he died from his injuries.

A. The events of 16 May 1998

In the evening of 16 May 1998 a police car was parked on the side of the road near the town of Przewóz controlling the traffic. One of the police officers signalled to a car driving down the road, an Audi 200, to pull in. The driver of the car slowed down when approaching the police car but did not stop. Instead, he accelerated and began driving away with his headlights switched off. The police went in pursuit of the car. They lost sight of the car at a bend in the road after about 1 km. The police later lo cated the car on a side road. It was burning and lying on its side. One of the officers began to put out the fire while the other called the emergency services.

Four persons were taken out of the car during the rescue operation, MŁ, the applicants ’ son (PD), RC and SH.

MŁ was pronounced dead at the scene. A postmortem examination was carried out on 18 May 1998.

The applicants ’ son was transported to the hospital in Zielona Góra with numerous traumatic injuries to his head. He died there on 20 May 1998. No postmortem examination of the applicants ’ son was carried out.

RC and SH sustained only light injuries.

All persons found in the car were tested for the presence of alcohol in their blood. The results showed that SH had 0.9 ‰ of alcohol in his blood, RC 1,6 ‰, PD 2,2 ‰ and MŁ 2,48 ‰.

B. The criminal proceedings

On an unspecified date the Żary District Prosecutor opened an investigation into the accident. The applicants had the status of victims in the proceedings.

The investigation was stayed on 3 0 October 1998 and resumed on 5 January 1999.

The prosecutor established that the car was owned by MŁ and did not have rear seats. All persons involved in the accident had drunk considerable amounts of alcohol. None of them had put their seat belts on. The prosecutor established that the accident had been caused by excessive speed and the driver ’ s loss of the control of the car. At the road bend the car had swerved to the side and hit a telephone pole.

RC, questioned directly after the accident stated that SH had driven the car and MŁ had been in the passenger seat. He had been with PD in the back. When heard on 19 May 1998 RC changed his testimony, stating that MŁ had driven the car and PD had b een in the passenger seat. On 9 February 1998 RC was heard by the prosecutor and reverted to his first testimony, confirming that SH had driven the car. He explained the change of his initial testimony by the fact that he had been asked to do so by the family of PD. Subsequently, he explained that he had been in shock.

Having regard to RC ’ s statements, the prosecutor charged SH with breaching road traffic regulations thus causing the accident resulting in death (Article 177 § 2 of the Criminal Code).

SH was heard as a suspect. He stated that MŁ had been driving the car and that he had sat behind him, while PD had been in the passenger seat.

In order to determine the contradictory versions with regard to the position of the persons in the car the prosecutor ordered an expert report to be prepared by a panel of two specialists (forensic doctor and road traffic engineer). In their report the experts excluded that either SH or RC had driven the car. Their injuries had not corresponded to the kind of injuries usually sustained by drivers. On the other hand, the nature of the injuries sustained by PD and MŁ indicated that they had been in the front of the car and that MŁ had most probably been the driver.

The prosecutor then referred to the presence of SH ’ s partly burnt shoe in the area of the accelerator and brake pedals. She found that this fact did not indicate conclusively that SH had been driving the car since at the moment of impact there had been the sudden forward movement of all the persons and objects in the car. The prosecutor did not consider credible the evidence of RC who had presented different versions about the position of the persons in the car.

On 16 June 1999 the prosecutor discontinued the investigation, finding that SH had no case to answer. She found that in accordance with the experts ’ findings MŁ had most probably been driving the car. However, it could not be excluded that PD had been the driver. In consequence, it was not possible to determine who had caused the accident and the investigation in this respect was also discontinued.

On 28 June 1999 the applicants filed an appeal against the discontinuation. They contested the finding that in the light of the evidence SH could not be held to have caused the accident. In their view, the prosecutor had solely relied on the findings of the expert report, notwithstanding the fact that the report had been qualified and inconclusive. In addition, the applicants argued that the prosecutor had erred in her findings in respect of SH ’ s shoe. They also disagreed with the prosecutor ’ s assessment of RC ’ s credibility and averred that she had not taken into account the statements of persons participating in the rescue operation.

On 26 August 1999 the Zielona Góra Regional Prosecutor allowed the applicants ’ appeal and remitted the case to the Żary District Prosecutor.

On 30 August 1999 the prosecutor requested the Institute of Forensic Research to prepare an expert opinion on the position of the persons in the car at the time of the accident.

On 31 August 1999 the prosecutor suspended the investigation on the ground that the date of preparation of the opinion could not be determined. On an unspecified later date the investigation was resumed.

On 31 March 2000 the opinion prepared by a panel of three experts was submitted to the prosecutor. The experts concluded that on the basis of the available evidence they could not determine precisely who had driven the car. It could not be excluded that SH had been the driver.

On 14 April 2000 the prosecutor again discontinued the investigation against SH.

On 21 April 2000 the applicants appealed against that decision. They submitted that according to the recent expert opinion it could not be excluded that SH had driven the car. They also objected to the assessment made of the statements given by RC. According to the applicants, RC had changed his initial statement after he had been threatened by persons related to SH. They also submitted that SH had admitted to the father of MŁ that he had been driving the car.

It appears that the Regional Prosecutor quashed the decision to discontinue the investigation.

On 30 June 2000 the Żary District Prosecutor filed a bill of indictment with the Żary District Court. The prosecutor charged SH with having caused a road traffic accident as a result of which MŁ and PD had died (Article 177 § 2 of the Criminal Code). The prosecutor stated that SH had been driving the car and that MŁ had been in the passenger seat. PD had been sitting behind the driver. According to an expert opinion the accident had been caused by SH ’ s reckless driving.

The applicants acted as auxiliary prosecutors in the proceedings.

The trial court held hearings on 9 Feb ruary, 16 March, 22 October, 19 November 2001, 18 December 2002, 3 January and 27 February 2003.

It ordered two more expert opinions to be prepared. On the basis of the car ’ s movement and the nature of the injuries the experts concluded that MŁ had most probably been in the driver ’ s seat and PD in the passenger seat, while SH and RC had been seated in the back. They also found that the position of the shoe in the car had not proved who had been driving the car.

On 6 March 2003 the Żary District Court acquitted SH. It relied on the findings of the experts. The first panel of experts had not determined who had been driving the car and the second opinion had excluded that SH had been the driver. The court held that there was no credible evidence in the case to incriminate SH. In particular, the statements of RC could not serve to this effect. It noted that no credible findings could be made with regard to the shoe since it had not been clear who and when had found it and why this fact had not been immediately reported to the police.

On 30 May 2003 the Żary District Prosecutor filed an appeal against the trial court ’ s judgment.

On an unspecified later date the Zielona Góra Regional Court quashed the judgment and remitted the case. The applicants did not submit a copy of this judgment.

In the meantime SH changed his surname and became SK.

On 18 January 2007 the Żary District Court convicted SK of having caused a road traffic accident under the influence of alcohol as a result of which two persons had died. He was sentenced to 2 years ’ imprisonment. The court further banned him from driving for a period of six years and ordered him to surrender his driving licence.

The court established that SK had driven the car, having regard to the statements of RC, which it had thoroughly analysed. It noted that RC had changed his testimony; however the version indicating SK as the driver had been supported by other evidence in the case. It also relied on the first expert opinion and explained that the findings of the second group of experts had not been credible. The court further found that there had been too many doubts about the shoe found in the car to consider it as a relevant piece of evidence.

The prosecutor and SK appealed against the judgment.

On 15 April 2008 the Zielona Góra Regional Court upheld the first-instance judgment.

On an unspecified date SK filed a cassation appeal with the Supreme Court.

On 4 May 2009 the Supreme Court quashed the Regional Court ’ s judgment and remitted the case. It found that the lower court had not responded to all of the arguments raised in SK ’ s appeal. In particular, the lower court had considered the first statements made by RC shortly after the accident to be credible notwithstanding the fact that he had been intoxicated at the time. The lower court was instructed to assess whether those statements could at all be taken into account as evidence.

It appears that on an unspecified later date the Zielona Góra Regional Court quashed the District Court ’ s judgment of 18 January 2007 and remitted the case.

On 20 May 2011 the Żary District Court convicted SK of the same offence and sentenced him to the same penalty. The applicants did not provide a copy of the judgment.

SK and the prosecutor appealed. In his appeal, SK argued that the trial court had wrongly relied on the first statements of RC since they had been given when he had been intoxicated.

On 12 January 2012 the Zielona Góra Regional Court dismissed both appeals. It found that the trial court could rely on the first statements of RC because he had been responsible for his state of intoxication. In such cases the evidence given by an intoxicated person should be assessed with particular diligence and with due regard to other evidence obtained in the case. The trial court had complied with these requirements in the case.

On 5 March 2012 SK filed a cassation appeal with the Supreme Court. On 15 August 2012 the applicants informed the Court that the Supreme Court had dismissed the cassation appeal.

COMPLAINT

The applicants complain that the investigation and judicial proceedings concerning their son ’ s death were not conducted diligently. They further complain about considerable delays in the proceedings. They do not invoke any provision of the Convention.

QUESTION TO THE PARTIES

Having regard to the procedural protection of the right to life, was the investigation into and judicial examination of the death of the applicants ’ son by the domestic authorities in breach of Article 2 of the Convention (see, for example, Anna Todorova v. Bulgaria , no. 23302/03 , 24 May 2011) ? Reference is made in particular to the requirement of promptness and reasonable expedition.