Last Updated on April 28, 2020 by LawEuro
FIRST SECTION
DECISION
Application no. 39415/15
Elżbieta ARENDARCZUK
against Poland
The European Court of Human Rights (First Section), sitting on 4 February 2020 as a Committee composed of:
Pere Pastor Vilanova, President,
Krzysztof Wojtyczek,
Pauliine Koskelo, judges,
and Renata Degener, Deputy Secion Registrar,
Having regard to the above application lodged on 4 August 2015,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Elżbieta Arendarczuk, is a Polish national who was born in 1947 and lives in Wrocław. She was represented before the Court by Mr A. Pietryka, a lawyer practising in Warsaw.
2. The Polish Government (“the Government”) were represented by their Agent, Mrs J. Chrzanowska, and subsequently by Mr J. Sobczak, of the Ministry of Foreign Affairs.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Medical care provided to the applicant’s son in detention
4. The applicant’s son, P.A., was born in 1980. As a child P.A. was hospitalised on several occasions on account of rheumatoid arthritis. When he turned eighteen he was also diagnosed with nephritis.
5. On 16 February 2012 P.A. began serving a prison sentence in Wrocław Detention Centre no. 2. At the time of his arrival he informed the authorities that he suffered from rheumatoid arthritis and nephritis. He also stated that he had been in remission for three years and generally felt well.
6. On 20 February 2012 P.A. had a consultation with an ophthalmologist, owing to a suspected eye infection. On the same date he had an X-ray examination, which did not reveal any pathological changes.
7. On 25 April 2012 P.A. complained of back pain. He was prescribed medication.
8. In September 2012 P.A. began to complain of pain in his legs and a swollen knee.
9. On 6 September 2012 P.A. underwent a standard medical check. He was interviewed and examined by a prison doctor, who prescribed him antibiotics and painkillers. The following day, he was examined by a neurologist and was given antibiotics and painkillers.
10. On 12 September 2012 P.A. asked to have a consultation with a rheumatologist, but his request was refused.
11. On 13 September 2012 P.A. was transported to Detention Centre no. 1 in Wrocław, where he was examined by a specialistin internal medicine. The doctor recommended that P.A. consult a rheumatologist, an ophthalmologist and a nephrologist. He was ordered to have a knee X‑ray, a heart ultrasound and blood and urine analysis.
12. On 14 September 2012 a prison doctor obtained an appointment for P.A. for a medical consultation with a civilian rheumatologist. The appointment was scheduled for 20 November 2012.
13. Subsequently, P.A. saw the prison doctor on several occasions, complaining of knee pain and fever.
14. On 18 September 2012 P.A. complained to the prison division of the Wrocław District Court of inadequate medical treatment. He stated that he had suffered from rheumatoid arthritis since childhood and, in his view, the symptoms had returned, however the treatment he had been receiving was not adequate. In his reply of 25 October 2012, the Director of Detention Centre no. 2 in Wrocław found that the allegations about inadequate medical care were unfounded.
15. On 19 September 2012 P.A had a consultation with an orthopaedist, who ordered treatment: “in accordance with the rheumatologist’s recommendations”.
16. On 26 September 2012 P.A had a knee X-ray.
17. On 2 October 2012 P.A. was again examined by a specialist in internal medicine from Detention Centre no. 1. That doctor noted that the swelling on the knee was “smaller than it had been previously, and less painful”.
18. On 3, 5 and 8 October 2012 P.A. was again examined by a prison doctor.
19. On 23 October 2012 the prison medical services had a telephone consultation with a specialist about P.A.’s condition. It was noted that he was swollen.
20. On the evening of 26 October 2012 an ambulance was called out to assist P.A. An emergency doctor examined P.A., diagnosed him with swelling of the lower leg, and noted that he had previously undergone nephrological treatment. P.A. was transported to the prison hospital in Detention Centre no. 1, and was diagnosed with swelling, nephritis and rheumatoid arthritis. He underwent several medical tests.
21. On 30 October 2012 the director of the prison hospital had a consultation with the head of the neurological ward of a civilian hospital about P.A.’s case. It was decided that he should continue to receive treatment for his skin inflammation in the prison hospital. It was also decided that he should have a consultation with a laryngologist and a dentist, and subsequently be transferred to the nephrology ward of a civilian hospital in order to have a biopsy and further specialist treatment.
22. On 31 October 2012 prison medical staff attempted, unsuccessfully, to obtain a date for P.A. to have a consultation with a nephrologist.
23. On 7 November 2012 P.A. had a consultation with a laryngologist.
24. On 8 November 2012 P.A.’s condition deteriorated and anuria was observed. On the same day he was transferred to a civilian hospital in Wrocław. He was diagnosed with acute renal failure, sepsis and cardiorespiratory failure. Despite medical attention, P.A. died on 12 November 2012.
2. Investigation into the applicant’s son’s death
25. On 12 November 2012 the Wrocław Psie Pole District Prosecutor opened an investigation into the death of the applicant’s son. On the same date an autopsy was carried out.
26. On 29 November 2012 the applicant herself filed a criminal complaint, alleging that her son had died as a result of negligence and medical errors committed by the prison staff and doctors at Detention Centre no. 1 and Detention Centre no. 2 in Wrocław.
27. Subsequently, the prosecutor heard evidence from the doctors and medical staff who had provided care to P.A. in both detention centres and the civilian hospital in Wrocław. He took evidence from P.A.’s fellow inmates and the prison staff. The prosecutor also obtained P.A.’s medical records from the prison hospitals and the civilian hospital in Wrocław, and records concerning his previous treatment which dated back to his early childhood.
28. On 4 April 2013 the prosecutor obtained the autopsy report in respect of P.A. According to its conclusions, P.A. had died of multiple organ failure with features of haemorrhagic diatheses most probably caused by sepsis.
29. On 28 June 2013 the prosecutor stayed the proceedings and decided to obtain a medical opinion from an institute of forensic medicine. Despite the decision to stay the proceedings, four witnesses were questioned.
30. On 21 August 2013 the prosecutor asked experts from the Department of Forensic Medicine at Katowice Medical University to prepare an opinion with regard to the quality of the diagnosis and treatment afforded to P.A.
31. On 24 July 2014 the experts submitted their opinion to the prosecutor. They noted that P.A.’s death had been caused by multiple organ failure. The whole chain reaction of his pathological problems had been caused by the recurrence of his rheumatoid arthritis and the aggravation of his nephritis. They noted that there had been a delay in scheduling a consultation with a nephrologist and a rheumatologist. At the same time, they acknowledged that the date of 20 November 2012 for a consultation with a rheumatologist had not been unreasonable, given the general situation of the Polish health services. They were of the opinion that it would have been more beneficial for the patient if he could have been treated in the rheumatological ward of a specialist hospital from the moment when the first symptoms had appeared. Owing to the particular form which his illness had taken, treatment by an experienced team of specialists from a civilian hospital would have been optimal, and might perhaps have provided him with a better chance of healing. At the same time, the experts noted that P.A. had not required any specific equipment or procedures which had not been available in a prison hospital. In their view, only the decision to discontinue the treatment with immunosuppressants on 29 October 2012 was questionable. They concluded that while the ambulatory treatment which P.A. had received in Detention Centre no. 2 and the treatment which he had received in the prison hospital of Detention Centre no. 1 had not been optimal, it had been in accordance with standard procedures and had guaranteed the correct solutions appropriate to his condition.
32. On 28 July 2014 the prosecutor resumed the investigation.
33. Subsequently, on 31 July 2014 the Wrocław District Prosecutor decided to discontinue the investigation. Referring to the experts’ opinion, the prosecutor considered that the death of the applicant’s son had been a consequence of simultaneous chronic conditions. The doctors who had provided care for him in Detention Centre no. 2, the prison hospital of Detention Centre no. 1 and the Wrocław Specialist Hospital had not exposed him to a direct risk of death or grievous bodily harm, and had not caused his death. The prosecutor concluded that P.A’s death had been caused by his illness, and not by the doctors’ negligence.
34. On 18 August 2014 the applicant’s lawyer filed an appeal. He alleged in particular that the prosecutor had failed to examine why P.A. had not had a consultation with a rheumatologist, despite his complaints that he was suffering from rheumatoid arthritis. He also referred to the fact that on 13 September 2012 the prison doctor had advised that P.A. should have a consultation with a nephrologist, and only on 31 October 2012 had prison medical staff attempted to obtain a date for such an appointment. In addition, he complained of a number of procedural errors on the part of the prosecutor.
35. On 5 February 2015 the Wrocław District Court dismissed the appeal, reiterating the prosecutor’s findings that there were no circumstances indicating that an offence of exposing a person to a direct risk of death, grievous bodily harm, or unintentional homicide had been committed. The court established that the applicant’s son had received adequate medical care in all three institutions, and concluded that the prosecutor’s decision should be upheld. This decision was final and not subject to any other appeal.
B. Relevant domestic law and practice
1. Civil remedies
36. Articles 415 et seq. of the Civil Code provide for liability in tort. Under these provisions, whoever by his or her fault causes damage to another person is obliged to redress it.
37. Pursuant to Article 444 of the Civil Code, in cases of bodily injury or harm to health, a perpetrator will be liable to cover all pecuniary damage resulting from such acts.
38. Under Article 448 of the Civil Code, a person whose personal rights have been infringed may seek compensation.
2. The Criminal Code
39. Article 155 of the Criminal Code provides that a person who unintentionally causes the death of another human being shall be liable to a sentence of imprisonment of between three months and five years
COMPLAINTS
40. The applicant complained under Article 2 of the Convention that the authorities had failed to provide her son with adequate medical care while he had been in detention. She also complained under the same provision of the Convention that the investigation into his death had been neither effective nor prompt.
THE LAW
A. The Government’s preliminary objection
41. The Government argued that the applicant had failed to exhaust the available domestic remedies. In particular, she had not availed herself of the opportunity to seek redress under the relevant provisions of the Civil Code. In their view, a civil action for damages could have covered all issues related to the alleged medical malpractice.
42. The applicant replied that the present case was not merely a dispute over medical negligence, but concerned a death in detention and allegations of inadequate medical care in prison. In such situations, the authorities had an obligation to conduct a thorough criminal investigation which would satisfy the Convention’s standards.
43. The Court notes that the Government’s objection concerning the applicant’s failure to exhaust available domestic remedies is closely linked to the substance of her complaint relating to the conduct of the criminal investigation (see Nicolae Virgiliu Tănase v. Romania [GC], no. 41720/13, § 103, 25 June 2019). However, the Court does not consider it necessary to decide whether the applicant exhausted domestic remedies, because the application is in any event inadmissible for the following reasons.
B. Alleged failure of the domestic authorities to protect P.A.’s right to life
1. The parties’ submissions
(a) The Government’s submissions
44. The Government submitted that the domestic authorities had taken all available measures in order to protect the applicant’s son’s life and provide him with adequate healthcare. In their view, P.A. had received adequate medical care during the whole period of his imprisonment. He had had consultations with doctors specialising in various areas, within both the prison health service and the civilian healthcare system. His stay in the prison hospital between 30 October and 7 November 2012 had been a result of a decision taken by several medical specialists. However, as soon as his condition had deteriorated, he had been immediately transferred to a civilian hospital.
45. The Government concluded by stating that the prison staff and prison medical staff had acted in accordance with the standard procedures, and had provided P.A. with solutions appropriate to his condition.
(b) The applicant’s submissions
46. The applicant argued that the domestic authorities had not provided her son with adequate medical care in prison. She stressed that it was undisputable that during his imprisonment her son had been deprived of access to specialist consultations with a nephrologist and a rheumatologist. In her view, decisions regarding his treatment had been inappropriate and had been taken too late. In particular, P.A. had been transferred to a civilian hospital only when his condition had deteriorated to the extent that he could not be guaranteed any efficient treatment. The applicant referred to the experts’ opinion of 24 July 2014 and the conclusions which they had reached.
47. The applicant concluded by stating that while P.A. had had consultations with several doctors on numerous occasions, none of these consultations had reflected his actual needs.
2. The Court’s assessment
(a) General principles
48. The Court has emphasised on many occasions that people in custody are in a vulnerable position, and that authorities are under a duty to protect them (see Dzieciak v. Poland, no. 77766/01, § 90, 9 December 2008). Thus, the national authorities have an obligation to protect the health and well‑being of persons who have been deprived of their liberty by providing them with the medical care necessary to safeguard their lives (see Makharadze and Sikharulidze v. Georgia, no. 35254/07, § 71, 22 November 2011). In cases where a detainee dies as a result of a health problem, in addition to satisfying the above-mentioned obligation to show that prior to his or her death it provided the inmate with the necessary medical care to safeguard his or her life, the State must also offer a reasonable explanation as to the cause of death (see Kats and Others v. Ukraine, no. 29971/04, § 104, 18 December 2008).
(b) Application of the general principles to the present case
49. Turning to the present case, the Court notes that from 16 February 2012 until his death in November 2012 the applicant’s son was serving a prison sentence, and accordingly was under the control of the Polish authorities. It is not disputed that he had suffered from rheumatoid arthritis and nephritis since childhood. The Government did not deny that the authorities had been aware of his disease. The Court will thus examine whether the medical treatment which the applicant’s son received in detention during the final months of his life was adequate (see Tarariyeva v. Russia, no. 4353/03, §§ 77-89, ECHR 2006‑XV (extracts)).
50. The Court observes that at the time of his admission to Wrocław Detention Centre no. 2 the applicant’s son informed the authorities that he suffered from rheumatoid arthritis and nephritis and was in remission (see paragraph 5 above). Subsequently, between February and September 2012 P.A. saw the prison doctor on several occasions, complaining of various health issues. On each occasion he was examined and prescribed treatment (see paragraphs 6 and 9 above).
51. The Court notes that on 12 September 2012 P.A. asked to have a consultation with a rheumatologist, and on that day his request was refused (see paragraph 10 above). Nevertheless, on the following day, a specialist from Detention Centre no. 1 recommended that P.A. should consult a rheumatologist, and this consultation was scheduled for 20 November 2012 (see paragraph 11 above). The applicant argued that the waiting period for the consultation had been excessive. However, the Court does not consider the waiting period of two months for a consultation with a medical specialist to be exceptionally long. As acknowledged by the experts in their opinion of 24 July 2014, this delay was not unreasonable, given the general situation of the Polish health services (see paragraph 31 above). In this regard, the Court reiterates that medical treatment provided within prison facilities must be adequate, that is, at a level comparable to that which the State authorities have committed themselves to provide to the population as a whole. Nevertheless, this does not mean that every detainee must be guaranteed the same level of medical treatment that is available in the best health establishments outside prison facilities (see Cara-Damiani v. Italy, no. 2447/05, § 66, 7 February 2012).
52. The Court further observes that in the two months preceding his death P.A. had consultations with several specialists from the prison hospital in his detention centre. During that time he also had consultations with various specialists from another detention facility located in the same city (see paragraphs 13, 15, 17-19 above) and received comprehensive treatment for his various medical problems. As noted by the experts in their opinion of 24 July 2014, this treatment was in accordance with the standard procedures and guaranteed the correct solutions appropriate to P.A.’s condition (see paragraph 31 above). In this regard, the Court reiterates that in the assessment of the adequacy of the treatment, it must be guided by the due diligence test, since the State’s obligation to cure a seriously ill detainee is one of means, not of result (see Goginashvili v. Georgia, no. 47729/08, § 71, 4 October 2011).
53. Lastly, as to whether the applicant’s son’s transfer to a civilian hospital was sufficiently prompt, the Court observes that an ambulance was called out to assist P.A. on 26 October 2012, and on that day he was transferred from his prison to the prison hospital in Detention Centre no. 1 (see paragraph 20 above). Following consultations between medical specialists, it was also decided that, given his overlapping medical conditions, he should remain in that prison hospital. He was eventually transferred to a civilian hospital on 8 November 2012 (see paragraph 24 above). The material in the case file contains nothing to indicate that P.A. himself asked for his transfer to be expedited, or that there were any objective reasons to do so. There is no basis to conclude that the doctors misjudged or disregarded the extent of the deterioration in his health. In their opinion of 24 July 2014, the experts merely concluded that it would have been more beneficial for him to have been treated in the rheumatological ward of a specialist hospital from the moment when the first symptoms had appeared (see paragraph 31 above). At the same time, they confirmed that he had not required treatment involving any specialist equipment, or procedures which had not been available in a prison hospital. In view of the above, the Court cannot speculate as to whether an earlier transfer to a civilian hospital would have prevented P.A.’s death.
54. Having regard to the above considerations, the Court concludes that the authorities discharged their positive obligations under Article 2 of the Convention in providing the applicant’s son with adequate medical treatment.
55. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
C. Alleged failure to carry out an adequate investigation into P.A.’s death
1. The parties’ submissions
(a) The Government’s submissions
56. The Government submitted that the investigation in the present case had been effective in the light of the Court’s standards. It had been adequate, thorough, impartial, independent, and prompt and there had been a sufficient element of public scrutiny. The prosecutor had questioned numerous witnesses and ordered appropriate medical examinations, had collected P.A.’s medical records and obtained an independent medical opinion.
57. The Government noted that the investigation had been instituted on 12 November 2012 and terminated on 31 July 2014. However, as the case had concerned allegations of medical negligence, it had required many additional procedural steps. In particular, in order to question the medical staff, the prosecutor had had to obtain authorisation from a domestic court. Moreover, P.A.’s medical history had been extremely voluminous, as it had related to thirty years of treatment in various institutions. It was true that the proceedings had been stayed during the period when the medical opinion had been prepared, yet the prosecution authorities had not remained idle, and during that time four witnesses had been questioned.
(b) The applicant’s submissions
58. The applicant submitted that the domestic authorities had not ensured a proper investigation into the circumstances of her son’s death. She stressed that the investigation had lasted two and a half years in total. It had also been stayed for thirteen months, as the experts had been preparing a medical opinion.
59. The applicant argued that the medical opinion had not provided clear conclusions, had contained contradictory statements, and had been incomplete. In particular, it had not concerned: the adequacy of the treatment provided by the prison doctor in Detention Centre no. 2; the delay in scheduling the consultation with a nephrologist; the administration of antibiotics; or the discontinuation of treatment involving certain types of medication. Lastly, she stressed that the experts had not consulted a rheumatologist about their opinion.
2. The Court’s assessment
(a) General principles
60. The Court has held on many occasions that, where lives have been lost in circumstances potentially engaging the responsibility of the State, Article 2 of the Convention entails a duty on the part of the State to ensure, by all means at its disposal, an adequate investigative response, judicial or otherwise. The essential purpose of such an investigation is to establish the facts, secure the effective implementation of domestic laws which protect the right to life and, in those cases involving State agents or bodies, identify any persons at fault and thus ensure their accountability (see Pearson v. the United Kingdom (dec.), no. 40957/07, § 67, 13 December 2011, with further references). That is the case, for instance, where a person dies in custody in suspicious circumstances (even where the apparent cause of death is a medical condition), which, as a rule, raises the question of whether the State has complied with its positive obligation to protect that person’s right to life (see Slimani v. France, no. 57671/00, § 30, ECHR 2004‑IX (extracts); Kats and Others, cited above, § 115; Geppa v. Russia, no. 8532/06, § 71, 3 February 2011; and Makharadze and Sikharulidze v. Georgia, no. 35254/07, § 87, 22 November 2011). A requirement of promptness and reasonable expedition is implicit in this context. Any deficiency in the investigation which undermines its capability of establishing the circumstances of the case or the person responsible is liable to fall foul of the required standard of effectiveness (see, for example, Dzieciak v. Poland, no. 77766/01, § 105, 9 December 2008, with further references).
(b) Application of the general principles to the present case
61. In the present case, the applicant’s son’s death took place while he was in the custody of the authorities, and in circumstances that could engage their responsibility. It therefore called for an official investigation. Indeed, the prosecution service opened a criminal investigation without delay, on 12 November 2012 (see paragraph 25 above).
62. Subsequently, a post-mortem examination was conducted. The autopsy report established that the applicant’s son had died of multiple organ failure with features of haemorrhagic diatheses most probably caused by sepsis (see paragraph 28 above).
63. During the investigation a number of doctors who had been involved in treating P.A. were heard. Statements were also taken from P.A.’s fellow inmates and the prison staff. In addition, the prosecutor obtained P.A’s medical records, and an expert opinion was prepared. On 31 July 2014 the investigation was discontinued by the prosecutor, who found that no offence had been committed. That decision was upheld by the Wrocław District Court on 5 February 2015 (see paragraphs 27, 29, 33 and 35 above).
64. It is clear to the Court that the initial reaction of the prosecution services was prompt, as the investigation commenced on the very day of the applicant’s son’s death. The Court further observes that the applicant did not contest the independence and impartiality of the domestic authorities. She had the opportunity to participate in the proceedings, and availed herself of her procedural rights. It remains to be ascertained whether the investigation was effective in terms of being thorough and concluded within a reasonable time (see Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, § 226, 19 December 2017).
65. The Court observes that in his decision to discontinue the proceedings, the prosecutor relied on the experts’ opinion, which concluded that while the treatment provided to P.A. had not been optimal, it had guaranteed the correct solutions appropriate to his condition (see paragraph 33 above). There is also no indication that the authorities did not thoroughly evaluate the medical evidence before them. The Court does not find any other grounds to contest the findings of the investigation.
66. As regards the applicant’s allegations regarding the excessive length of the investigation, the Court observes that the only delay in the investigation occurred while the experts were preparing their opinion (see paragraphs 30, 31 above). It is true that between 28 June 2013 and 28 July 2013 the proceedings were stayed. However, during that time the prosecutor did not remain inactive, and he heard evidence from several witnesses (see paragraph 29 above). The Court accepts that the medical questions in the case were of some complexity and required thorough analysis. Consequently, in the circumstances of the present case the total length of the investigation – two years and eight months – does not seem to be unreasonable.
67. The foregoing considerations are sufficient to enable the Court to conclude that the domestic authorities carried out an adequate and effective investigation into the circumstances surrounding the death of the applicant’s son.
68. Having regard to the above considerations, the Court concludes that the procedural obligation to carry out an effective investigation under Article 2 of the Convention was complied with in the present case.
69. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 27 February 2020.
Renata Degener Pere Pastor Vilanova
Deputy Registrar President
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