Last Updated on October 20, 2022 by LawEuro
The case concerns allegations of a breach of procedural obligations under Article 2 of the Convention, in that the investigation into the death in hospital of Mr J.Z. was not effective, thorough and prompt.
FIRST SECTION
CASE OF KORNICKA-ZIOBRO v. POLAND
(Application no. 23037/16)
JUDGMENT
STRASBOURG
20 October 2022
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Kornicka-Ziobro v. Poland,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Marko Bošnjak, President,
Péter Paczolay,
Erik Wennerström,
Raffaele Sabato,
Lorraine Schembri Orland,
Ioannis Ktistakis, judges,
MichałBalcerzak, ad hoc judge,
and LivTigerstedt, Deputy Section Registrar,
Having regard to:
the application (no. 23037/16) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Ms Krystyna Kornicka-Ziobro (“the applicant”), on 16 April 2016;
the decision to give notice to the Polish Government (“the Government”) of the application;
the decision of the President of the Section to appoint Mr MichałBalcerzak to sit as an ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1(a) of the Rules of Court), Mr Krzysztof Wojtyczek, the judge elected in respect of Poland, having withdrawn from sitting in the case (Rule 28 § 3);
the parties’ observations;
the factual update submitted by the applicant on 5 March 2022 and by the Government on 5 April 2022;
Having deliberated in private on 25 January 2022 and on 13 September 2022,
Delivers the following judgment, which was adopted on the latter date:
INTRODUCTION
1. The case concerns allegations of a breach of procedural obligations under Article 2 of the Convention, in that the investigation into the death in hospital of Mr J.Z. was not effective, thorough and prompt.
THE FACTS
2. The applicant was born in 1940 and lives in KrynicaZdrój. She was represented by Professor I. Kamiński,from the Institute of Legal Studies, Polish Academy of Sciences, Cracow.
3. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska and, subsequently, by Mr J. Sobczak, of the Ministry of Foreign Affairs.
4. The facts of the case, as submitted by the parties, may be summarised as follows.
I. The background
5. On 15 June 2006 the applicant’s husband, Mr J.Z., who was at that time seventy years old, felt unwell after a hiking trip. He subsequently undertook medical examinations, which found indications for urgent heart surgery, namely a coronary angiography. The date of the operation was brought forward, given that the patient’s health did not improve. Dr D.D., practicing in the Cracow University Cardiology Clinic (“the Clinic”), was recommended to the applicant and her husband as a leading specialist in the field.
6. The applicant’s husband was admitted to the Clinic on 22 June 2006 for emergency treatment. On the same day a coronary angiography was performed by Dr D.D. and his team. Further immediate medical intervention proved necessary and Mr J.Z. underwent a coronary angioplasty and the implantation of stents.
7. On 23 June 2006 the medical team met with the applicant and her two sons for a 90-minute discussion, during which Mr J.Z.’s state of health, the course of the two operations, and a plan for future treatment was explained. On 26 June 2006 a second coronary angioplasty was performed. Since the patient’s condition did not improve, another medical procedure was performed on 27 June 2006. Most of the interventions were performed by Dr D.D. and a team of three to four other specialists. After each operation Mr J.Z. was placed under close observation and treated with various medication, including nitro-glycerine and antibiotics.
8. From the morning of 1 July 2006 the patient’s condition began to deteriorate rapidly. A series of medical examinations and treatments were carried out, at which the full team of doctors who had operated on him were present. The patient was intubated and heart massage was performed. The applicant and her two sons, Mr W.Z. and Mr Zbigniew Ziobro, also arrived.
9. At 2 a.m. on 2 July 2006 Mr J.Z., died in the Clinic from heart failure and pulmonary oedema resulting from irreversible heart damage.
10. Between 2005 and November 2007 Mr Zbigniew Ziobro was a Member of Parliament and held the office of Minister of Justice. During that period the office of Minister of Justice was combined with that of the Prosecutor General (the two functions were separated in 2010). Since 16 November 2015 Mr Zbigniew Ziobro has again been the Minister of Justice. On 4 March 2016 he became Prosecutor General following an amendment to the law which again unified the two positions.
II. The criminal investigation
11. On 1 August 2006 one of the deceased’s sons, Mr W.Z., informed the prosecution service of the possibility that an offence had been committed in the course of his father’s medical treatment. He referred to several events from the period directly preceding the Mr J.Z.’s death which allegedly demonstrated the doctors’ incompetence and wrong method of treatment and had led to his father’s death. Subsequently the applicant and the second of the deceased’s sons, Mr Zbigniew Ziobro, joined the proceedings. They were granted victim status.
12. On the same date the Cracow District Prosecutor opened an investigation into the possibility that an offence proscribed by Article 160 § 2 of the Criminal Code had been committed in connection with the death of Mr J.Z.
13. In the period until November 2007 various prosecutors carried out multiple investigative actions. A post-mortem examination was carried out and a medical opinion submitted to the prosecutor. The prosecutor heard witnesses, including the family members, collected medical evidence from the Clinic, and ordered searches in the Clinic on at least six occasions with a view to retrieving further documentation. The prosecutor requested an expert medical opinion from the Cracow Forensic Institute and sought technical expertise in analysing computer hard discs seized from the Clinic. A mobile phone operator was ordered to provide billing data and lists of the communications from Dr D.D.’s mobile phone in the period under investigation. The prosecutor from OstrowiecŚwiętokrzyski to whom the case was transferred on 15 March 2007 ordered that a joint medical opinion be drawn up. However, the Łódź Medical University Forensic Institute and, later, the Gdańsk University Forensic Institute informed the prosecutor that they would not be able to prepare the opinion for various objective reasons. Finally, the Silesian Medical University Forensic Institute was ordered to draw up the opinion; it was submitted on 7 February 2007. The prosecutor also requested an expert graphological opinion on the signature on the patient’s pre-operation agreement.
14. On 19 March 2008 another expert medical opinion, from the Łódź Medical University Forensic Institute, was submitted to the prosecutor.
15. On 14 April 2008 the OstrowiecŚwiętokrzyski District Prosecutor decided to discontinue the investigation, finding that no medical malpractice or other offence had been committed. In his reasoned decision, which was 73 pages long, the prosecutor analysed all the evidence at his disposal. The medical evidence consisted of ten expert opinions in various fields of medicine.
16. The applicant and her two sons all appealed against this decision. They submitted further medical evidence, including a medical opinion from the Cardiothoracic Surgery Department at Uppsala University.
17. On 5 September 2008 the Cracow District Court quashed the prosecutor’s decision and remitted the case for a supplementary investigation. In particular, the court instructed the prosecutor to seek a joint and interdisciplinary expert opinion. As regards the expert opinion from the Łódź Medical University Forensic Institute, the court stated “from first glance its ambiguity, incompleteness, and most strikingly, its inconsistency and lack of clarity, are visible – none of which were noticed by the prosecutor”.
18. On 25 June 2009 the prosecutor summoned a team of experts from various departments in the Silesian Medical University. In a written order (zarządzenie) 240 various questions were put to them. On several occasions the prosecutor supplemented the above order, indicating that new medical university centres, or individual specialists, were to replace those experts who had abstained from participation in the team of experts in this case. In view of the number of abstentions, the prosecutor requested the Minister of Health to indicate competent specialists. The prosecutor also reformulated the questions to the experts and added new ones, in line with requests from the applicant and her sons (the total number of questions was 277). Due to the complexity of the questions in the order the partial opinion was not submitted until 18 November 2010. The final medical opinion by eleven experts was completed in May 2011.
19. On 10 January 2011 the applicant lodged a complaint under section 5 of the Law of 17 June 2004 on complaints about a breach of the right to an investigation conducted or supervised by a prosecutor and to a trial within a reasonable time (Ustawa o skardzenanaruszenieprawastrony do rozpoznaniasprawy w postępowaniuprzygotowawczymprowadzonymlubnadzorowanymprzezprokuratoraipostępowaniusądowym bez nieuzasadnionejzwłoki) (“the 2004 Act”) alleging that the investigation was unduly lengthy.
20. On 10 March 2011 the Cracow Regional Court dismissed the complaint. The court considered that the prosecutor had faced a difficult task in obtaining a joint medical opinion, drawn up by a team of fifteen experts from seven disciplines of medicine. The experts had been given over 270 questions to answer, some 250 of which came from the applicant and her two sons. It had proved to be time-consuming to assemble such an interdisciplinary team of national experts, given the fact that many experts had avoided involvement in the task of preparing the opinion, on the basis of their workload or for other reasons.
21. On 22 February 2011 the OstrowiecŚwiętokrzyski District Prosecutor issued a decision dismissing the applicant’s request for a further medical opinion from foreign experts.
22. On 15 June 2011 the OstrowiecŚwiętokrzyski District Prosecutor discontinued the investigation, finding that no offence had been committed.
23. On 21 June 2011 the applicant and her two sons lodged a subsidiary bill of indictment (subsydiarnyaktoskarżenia) against four doctors, including Dr D.D. They alleged that the doctors were guilty of the offences proscribed by Articles 155 and 160 § 2 of the Criminal Code (see paragraph 47 below). The bill of indictment was based on some 400 documents, already collected in the file, and on eight private medical opinions from various specialist centres in the USA, Israel, Sweden, and Italy. Furthermore, the applicant requested that the medical evidence be analysed by an international team of experts. The allegations made by the applicant concerned the choice of treatment by the four accused doctors and also shortcomings as regards technical and organisational matters in the Clinic.
24. On 22 January 2012 the public prosecutor joined the proceedings in the applicant and her two sons case; in consequence, they became auxiliary prosecutors (oskarżycielposiłkowy).
25. On 24 February 2012 the Cracow District Court discontinued the proceedings against all four doctors, finding that no offence had been committed. Although the court found it impossible to establish why an anticoagulant medicine had not been administered to Mr J.Z. for a longer period, it nonetheless considered that the diagnosis made by the doctors, and their choice of treatment, had been correct. In reaching its conclusions the court relied to a large extent on the most recent expert opinion from the Silesian Medical University.
26. On 26 March 2012 the applicant and her sons lodged an appeal. In particular, they contested the expert opinion, pointing to inconsistencies and mistakes.
27. On 28 June 2012 the Cracow Regional Court upheld the impugned decision in respect of three of the doctors but quashed it in respect of the charges against Dr D. D., remitting the case to the lower court.
28. On 21 December 2012 the Prosecutor General, Mr A.S., on a request from the applicant, lodged an extraordinary cassation appeal (kasacjaProkuratoraGeneralnego) against the decision of 28 June 2012. In particular, the prosecutor pointed to inconsistencies in the expert opinion between the answers to particular questions, admitting that clear errors had been committed but concluding that no medical malpractice had taken place. For instance, they had admitted that withdrawing anticoagulant medicines had been a mistake and that the patient had not been receiving this and other medications in spite of clear indications that this would have been appropriate treatment.
29. On 14 March 2013 the Supreme Court examined the extraordinary cassation appeal and quashed the impugned decision. The case was remitted to the Cracow Regional Court. The Supreme Court underlined that while expert conclusions were a valuable element in the assessment by the court seeking the opinion, the latter could not be absolved from analysing whether there was a correlation between the statements made by the experts and their conclusions. The experts’ work had to be assessed by the trial court, which was required to examine whether the opinion relied on was coherent and logical. In this connection, the Supreme Court pointed to inconsistences in the replies to some of the 277 questions which had been put to the various experts. Finally, the court indicated that the lower court should give some consideration to the possibility of using the “private expert opinions” submitted by the parties in any forthcoming trial.
30. On 25 June 2013 the Cracow Regional Court quashed the decision of 24 February 2011 as regards the part which had been upheld by the Cracow Regional Court on 28 June 2012 (against the three doctors; see paragraph 27 above). The case was transferred to the Cracow District Court, which subsequently held many hearings.
31. On 27 October 2014 the Cracow District Court decided to seek a joint medical opinion, bringing together experts from seven Medical University Clinics in Poland and a further three professors of medicine. On 8 May 2015 the Cracow District Court decided to amend the above decision by specifying additional questions to be put to the experts. The expert opinion of some fifteen medical specialists was submitted to the court in April 2016. The final version of the medical expert opinion was prepared in January 2017.
32. On 10 February 2017 the Cracow District Court gave judgment, acquitting all four doctors.
33. The court established that at the material time Dr D.D. had been deputy director of the hemodynamic unit at the Clinic, worked for the Board of the Invasive Cardiology Section of the Polish Cardiology Society and had been a member of the Board of the European Cardiology Society since 2006. He had been certified to carry out all cardiologic interventions and had defended a doctoral and post-doctoral thesis in cardiology. He was the author of many books and other publications in this field. The three other doctors involved, including the Director of the Cracow University Cardiology Clinic, had been also recognised specialists. The court concluded that the treatment provided to Mr J.Z. had not been incorrect or inconsistent with best European practices at the material time. In particular, it was not possible to conclude that the procedure for placing stents had been incorrect or that Mr J.Z. had not knowingly agreed to that treatment. The court relied in particular on the two main medical opinions prepared by the court-appointed experts from the Silesian Medical University in 2011 and 2017 and dismissed the “private expert opinions” submitted by the applicant from various centres abroad as irrelevant. The court concluded that Mr J.Z.’s death had occurred as a result of treatment-linked and post-operational complications.
34. The prosecutor and the auxiliary prosecutors, including the applicant, appealed against the judgment.
35. In November 2017 the Cracow Regional Court requested the Supreme Court to transfer the case to another court. The court justified its motion by the fact that the Minister of Justice, Mr Zbigniew Ziobro, had recently dismissed the President and Vice-Presidents of the Cracow Regional Court. In its view, that decision could be interpreted as a way of exercising pressure on the Cracow Regional Court and on the judges assigned to deal with the case, in which the Minister and his family were parties, that is to say, auxiliary prosecutors.
36. On 30 January 2018 the Supreme Court refused the request and considered that the Cracow Regional Court should deal with the appeal. The Supreme Court considered that transfer of the case to another court for the reasons invoked would not be “to the benefit of the justice system”. It considered that in reality the Cracow Regional Court wished to rid itself of a well-publicised and burdensome case; while understandable, this request could not be granted.
37. On 11 April 2018 the Cracow Regional Court held the first hearing. At the next hearing, held on the following day, the court decided, of its own motion, to proceed with taking evidence from four experts. Furthermore, it accepted a request by one of the defendants to hear the fifth expert and a request by the public prosecutor to hear further two experts. It appears that all seven experts had previously prepared opinions in the case.
38. On the whole, in the appellate proceedings the court scheduled fifty-one hearings, of which nine were cancelled. Some of those hearings were cancelled for unknown reasons and two were cancelled at the beginning of 2020 at the request by the applicant, as she was unable to participate on account of her stays in hospital. According to the applicant, she subsequently stopped attending hearings in person; she requested the court to proceed in her absence, in order not to cause further delays.
Between 23 May 2018 and 8 November 2019, the court held twenty-one hearings, during which it took evidence from four experts who were admitted of the court’s own motion. It then heard one expert, proposed by the prosecutor and started questioning witness C.C., proposed by the defendants. The court heard expert C.C. at thirteen hearings held between 10 June 2020 and 15 December 2021.
According to the applicant, on 2 October 2020 she wrote to the court, stating that although she was no longer able to attend the hearings in person, she had followed closely the examination of the witnesses. She asked the court to invite the expert C.C. to answer questions succinctly, as he had been giving lengthy responses that were not linked to the merits of the case. This contributed to the costs of the proceedings and their length. During the appellate proceedings, the applicant did not request the court to hear any new witnesses or to admit fresh expert evidence.
39. On 11 January 2022 the court agreed to grant the defendant’s motion for inclusion in the case file of an expert opinion prepared by foreign experts in another set of proceedings related to the experts’ work and reliability of the joint expert opinion referred to in paragraph 31 above (case no. PK IV WZ Ds.34.2016 see also paragraph 45 below).
40. In sum, from 11 April 2018 until 15 March 2022 (the date of the most recent hearing, as submitted by the parties in their factual update), the appellate court held forty-two hearings, dedicated almost exclusively to taking evidence from five expert witnesses.
41. The proceedings are pending before the Cracow Regional Court.
III. Other sets of proceedings
42. On three occasions, in 2009, 2012 and 2015, the applicant approached the Clinic with proposals for a friendly settlement. All negotiations failed, as the hospital expressed no interest in reaching a settlement and paying compensation.
43. No disciplinary proceedings were brought in connection with the above events against the four doctors in question.
44. In June 2015 the prosecutor began investigating allegations of forgery of medical documents in connection with Mr J.Z.’s case. On 28 September 2017 the Cracow Regional Prosecutor lodged a bill of indictment against a third person and the relevant criminal proceedings are pending before a first-instance court.
45. On an unspecified date in 2016 the prosecution service opened an investigation into an allegation of extortion by the experts from the Silesian Medical Academy, in that they had supposedly overstated the costs of preparing an expert medical opinion requested by the court (case no. PK IV WZ Ds.34.2016 see also paragraph 39 above). In the framework of this investigation the prosecutors also examined reliability of the supplementary joint expert opinion (see paragraph 31 above). Considering that there were various discrepancies in that opinion, the prosecutors decided to obtain an opinion from foreign medical experts. On an unknown date in 2021 the prosecution service obtained an expert opinion which, according to the Government, confirmed that the joint expert opinion of the Polish medical experts indeed contained certain discrepancies. The proceedings are pending.
46. On an unspecified date in 2006 the prosecution service began an investigation into alleged “abnormalities in the clinical trials of a certain type of stents”. This investigation is also pending.
RELEVANT LEGAL FRAMEWORK AND PRACTICE
47. The relevant provisions of the Criminal Code provide as follows:
Article 155
“Anyone who unintentionally causes the death of a human being shall be subject to the penalty of deprivation of liberty for a term of between 3 months and 5 years.”
Article 160
“1. Anyone who exposes a human being to an immediate danger of loss of life, serious bodily injury, or a serious impairment of health shall be subject to the penalty of deprivation of liberty for up to three 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 deprivation of liberty for a term of between three months and five years.”
48. Article 55 § 1 of the Code of Criminal Procedure (Kodekspostępowaniakarnego) provides:
“If the public prosecutor again issues a decision refusing to initiate or to discontinue proceedings in the case referred to in Article 330 § 2, the victim may, within one month of being notified of that decision, lodge a bill of indictment with the court, enclosing a copy for each accused person and for the public prosecutor.”
49. A detailed description of the relevant domestic law and practice concerning remedies for excessive length of proceedings – in particular the applicable provisions of the 2004 Act – are presented in the Court’s pilot judgment in Rutkowski and Others v. Poland (nos. 72287/10, 13927/11 and 46187/11, §§ 75-107, 7 July 2015).
THE LAW
I. PRELIMINARY REMARKS – SCOPE OF THE CASE
50. With respect of the scope of the case, it should be noted that in her application to the Court the applicant raised two complaints under Article 2 of the Convention. The applicant complained that her husband’s right to life had been breached on account of various instances of medical negligence which had caused his death. Secondly, she complained of a procedural breach of Article 2 of the Convention in that the investigation into her husband’s death had not been effective and thorough.
51. In her further submissions made in the proceedings before the Court, the applicant decided however “to limit her application lodged with the Court to the procedural limb of Article 2 only”.
Consequently, the Court concludes that it is not called upon to examine the complaint about a breach of Article 2 of the Convention in its substantive aspect.
II. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
52. The applicant complained of a breach of her right to a thorough and effective investigation into her husband’s death. She relied on Article 2 of the Convention, which, in so far as relevant, reads as follows:
“1. Everyone’s right to life shall be protected by law….”
A. Admissibility
53. The Government submitted, firstly, that the application was premature, as the criminal proceedings against the doctors were still pending before the Cracow Regional Court. They also informed the Court about other sets of criminal proceedings related to this case which were pending before the domestic bodies (see paragraphs 44-46 above). According to the Government, those proceedings could influence the outcome of the proceedings at hand.
54. The Government further maintained that the applicant should have lodged a civil claim for compensation, since civil proceedings were in principle better suited to examining issues of alleged medical malpractice. They submitted examples of domestic case-law pointing to the effectiveness of the civil remedy. Moreover, the Government argued that the applicant had clearly envisaged using a civil remedy, as on three occasions she had approached the hospital with attempts to settle the case. In accordance with the domestic law, such procedural steps had stopped the limitation period for lodging a civil claim from running, and this move was thus clearly part of the applicant’s litigation strategy.
55. Finally, the Government contended that in so far as the applicant considered that the criminal investigation into the circumstances of her husband’s death had not been prompt, she should have lodged a second complaint under the 2004 Act during the judicial phase of the proceedings.
56. The applicant contested the Government’s submissions and argued that the application was admissible. She emphasised that in Poland there existed in principle two avenues, civil and criminal, capable of determining the cause of death following a medical procedure, for the purpose of holding those responsible to account. The criminal-law avenue that had been chosen by the applicant was the most commonly used in Poland in cases concerning medical malpractice. Moreover, a simultaneous civil-law remedy would not be effective in such circumstances, as the civil court would normally stay the proceedings for the duration of the criminal investigation and trial. The criminal remedy chosen by the applicant should therefore be considered as effective and the applicant should not have been expected to lodge an additional civil action for damages. The applicant relied on numerous cases against Poland in which the applicants had recourse only to a criminal-law remedy and the Court had either delivered a judgment or had accepted a unilateral declaration by the Government. She also submitted that, under the Court’s case-law, if there existed a number of domestic remedies which an individual could pursue, that person was entitled to choose a remedy which addressed his or her essential grievances.
57. Finally, the applicant underlined that her allegations under Article 2 of the Convention were not to be understood as concerning solely the unreasonable length of the proceedings. Therefore, the remedy under the 2004 Act, which the applicant had used on one occasion, was not to be considered an effective one for complaints made under Article 2 of the Convention.
58. The Court firstly observes that, in so far as the Government invoke the provisions of the 2004 Act in the context of the complaint made under Article 2 of the Convention, this Act introduced remedies, of both a remedial and compensatory character, concerning specifically the right to have one’s case examined within a reasonable time within the meaning of Article 6 § 1 of the Convention. It has held that these remedies are effective in respect of the excessive length of pending judicial proceedings (see Charzyński v. Poland (dec.), no. 15212/03, 1 March 2005). However, in the present case it is not merely the excessive length ofcriminalproceedings which is in issue, but the question whether in the circumstances of the case seen as a whole, the State can be said to have complied with its procedural requirements under Article 2 of the Convention (see Byrzykowski v. Poland, no. 11562/05, § 90, 27 June 2006).
59. Secondly, as regards the Government’s argument that the applicant should have also lodged a civil claim for compensation and their reliance on the fact that the criminal proceedings concerning the applicant’s allegations of medical malpractice are still pending, the Court considers that the issues raised should more appropriately be dealt with at the merits stage in the context of Article 2 of the Convention.
60. The Court thus notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
61. The applicant submitted that the criminal investigation into the alleged medical malpractice which had caused her husband’s death begun on 1 August 2006 and that the proceedings were still pending. She underlined that the allegations against the doctors and the Clinic were serious and concerned, in particular, the personal liability of the four doctors for the choice of treatment and its progression. Specifically, she considered that the decisions to implant stents and to withdraw crucial medication (in particular the anticoagulant) had been incorrect, having regard to medical knowledge at the time and the patient’s state of health. Furthermore, she made serious allegations in respect to the Clinic’s organisation and equipment. In particular, she submitted that the Clinic allowed doctors without sufficient specialisation to perform complex heart surgery and to monitor patients. The Clinic lacked equipment for the safe transportation of a patient in a critical state to the hemodynamic laboratory (the lift was too small for both the patient and a doctor and lacked portable life-saving equipment). Among the organisational shortcomings, the applicant cited the lack of an intensive cardiac-care unit.
62. The applicant considered that these serious allegations had not been thoroughly examined and that successive prosecutors had discontinued the proceedings. She stressed that the procedural obligations under Article 2 of the Convention in the context of health care required, among other requirements, that the proceedings be completed within a reasonable time. The present case, however, had been pending since 2006. The investigation was discontinued by prosecutors on three occasions and subsequently resumed because of shortcomings in the process of taking evidence. Such remittals disclosed serious deficiencies in the operation of the judicial system.
63. In particular, the Cracow District Court had been highly critical in its decision on 5 September 2008 of the prosecutor’s decision to discontinue the proceedings, and on several occasions the district court had repeated its assessment that the expert opinion had been defective, in that it was unclear and incoherent. Moreover, the authorities’ refusals to attach any evidential value to the medical opinions obtained privately by the applicant had been considered erroneous by the Supreme Court. In the applicant’s view, the case showed that the prosecutors in Poland had been unable to deal effectively with a medical malpractice case, i.e. to conduct the investigation without delay and to assess properly the expert medical opinions. She underlined that the improvements indicated by the Government (see paragraph 66 below), providing for the establishment of specialised units within the prosecution service, had been implemented only as from 2016.
64. In respect of the possibility of seeking expert evidence abroad, the applicant submitted that there existed a legal framework allowing for international co-operation in the field. She had presented the domestic authorities with twelve international opinions, prepared by recognised specialists. The need to obtain foreign expert opinions had been particularly clear in this case, as the domestic expert opinions had been contradictory, unclear and incomplete. However, the prosecutors and the courts had given no consideration to those opinions and had not regarded them as evidence.
65. The Government considered that the investigation and the judicial proceedings into the allegations of medical malpractice had been effective and thorough and that there had been no violation of Article 2 of the Convention. In particular, the prosecuting authorities had carried out an autopsy, collected medical documentation, sought expert opinions, and secured further evidence. The expert material was particularly complex in that it reflected a dispute in the field of invasive cardiology and cardiac surgery as to whether patients with coronary artery disease should be treated with stents or instead through bypass surgery. Thus, the authorities’ task in establishing whether – having regard to medical knowledge at the material time – Mr J.Z.’s treatment could be regarded as medical malpractice, had been particularly complex.
66. The Government further noted that since the lodging of the applicant’s subsidiary bill of indictment the case had been pending before the criminal courts. The particularly lengthy period of examination of the case could be explained by the extraordinary complexity of the case and its significance for Polish society. In addition to the expert opinions prepared on the courts’ initiative, the applicant had adduced private opinions by various experts, including foreign specialists. The task of collecting the expert evidence was particularly difficult, as many experts had been required to withdraw on account of their personal connection with the applicant and her husband, both of whom were doctors, or with the accused doctors from the Clinic. Moreover, the opinions sought by the authorities covered many fields of medicine, which made the authorities’ task particularly difficult and time-consuming. The Government underlined that the experts were obliged by law, subject to a fine for non-compliance, to prepare opinions, and they had testified before the authorities under oath. Given the particular complexity of cases concerning alleged medical malpractice, such cases were now entrusted to special units created as of 2016 in the Regional Prosecutor’s Offices. Furthermore, in 2012 obligatory civil-liability insurance had been introduced for hospitals and medical practitioners.
2. The Court’s assessment
(a) General principles
67. The Court has interpreted the procedural obligation of Article 2 in the context of health care as requiring States to set up an effective and independent judicial system so that the cause of death of patients in the care of the medical profession, whether in the public or the private sector, can be determined and those responsible held accountable (see, among other authorities, Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, § 214, 19 December 2017, and Šilih v. Slovenia [GC], no. 71463/01, § 192, 9 April 2009).
68. The form of investigation required by this obligation varies according to the nature of the interference with the right to life. While, in some exceptional situations, where the fault attributable to the health-care providers went beyond a mere error or medical negligence, the Court has considered that compliance with the procedural obligation must include recourse to criminal law, in all other cases where the infringement of the right to life or to personal integrity is not caused intentionally, the procedural obligation imposed by Article 2 to set up an effective and independent judicial system does not necessarily require the provision of a criminal-law remedy. In cases concerning unintentional infliction of death and/or lives being put at risk unintentionally, the Court reiterates that the requirement to have in place an effective judicial system will be satisfied if the legal system affords victims (or their next-of-kin) a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any responsibility to be established and any appropriate civil redress to be obtained. Where agents of the State or members of certain professions are involved, disciplinary measures may also be envisaged (see, among other authorities,Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 51, ECHR 2002‑I;Vo v. France [GC], no. 53924/00, § 90, ECHR 2004‑VIII; Šilih, cited above, § 194;Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 132, ECHR 2014; and Lopes de Sousa Fernandes, cited above, §§ 137 and 215).
69. Moreover, the compliance with the procedural requirement of Article 2 is to be assessed on the basis of several essential parameters. These elements are inter-related and each of them, taken separately, does not amount to an end in itself, as is the case in respect of the requirements for a fair trial under Article 6. They are criteria which, taken jointly, enable the degree of effectiveness of the investigation to be assessed. It is in relation to this purpose of an effective investigation that any issues, including that of promptness and reasonable expediency, must be assessed(see Nicolae VirgiliuTănase v. Romania [GC], no. 41720/13, § 171, 25 June 2019, with further references). The essential parameters include the following (ibid. §§ 166-68):
a) the investigation must be thorough, which means that the authorities must take all reasonable steps available to them to secure the evidence concerning the incident, always make a serious attempt to find out what happened and not rely on hasty or ill-founded conclusions to close their investigation or to use as the basis of their decisions;
b) even where there may be obstacles or difficulties preventing progress in an investigation, a prompt response by the authorities is vital for public safety and in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in, or tolerance of, unlawful acts. The proceedings must also be completed within a reasonable time;
c) is generally necessary that the domestic system set up to determine the cause of death or serious physical injury be independent. This means not only a lack of hierarchical or institutional connection but also a practical independence implying that all persons tasked with conducting an assessment in the proceedings for determining the cause of death or physical injury enjoy formal and de facto independence from those implicated in the events.
70. In a case such as the present one, where various legal remedies, civil as well as criminal, are available, the Court will consider whether the remedies taken together as provided for in law and applied in practice, could be said to have constituted legal means capable of establishing the facts, holding accountable those at fault and providing appropriate redress to the victim. The choice of means for ensuring the positive obligations under Article 2 is in principle a matter that falls within the Contracting State’s margin of appreciation. There are different avenues for ensuring Convention rights, and even if the State has failed to apply one particular measure provided for by domestic law, it may still have fulfilled its positive duty by other means (see Tănase, cited above, § 169, and Lopes de Sousa Fernandes, cited above, § 216).
71. The Court reiterates that in medical malpractice cases the Court’s role is to assess whether, in the concrete circumstances of the case, given the fundamental importance of the right to life guaranteed under Article 2 of the Convention, and the particular weight the Court has attached to the procedural requirement under that provision, the legal system as a whole dealt adequately with the case at hand (see Lopes de Sousa Fernandes, cited above, § 225, with further references).
(b) Application of those principles to the instant case
72. The applicant’s husband, who was seventy years old, died on 2 July 2006 from heart failure at the Cracow University Clinic. He had been admitted to the Clinic for emergency treatment on 22 June 2006 and underwent several procedures, including coronary angiography and coronary angioplasty with implantation of stents. He was treated by four leading specialists from the Clinic. Although medication was administered and resuscitation attempts were made, J.Z. nevertheless died. The applicant considered that her husband’s death had been result of medical negligence; she did not allege that it had been intentional.
73. The Court observes that the Polish legal system provides, in principle, two main avenues of recourse for victims alleging illegal acts attributable to the State or its agents, namely a civil procedure and a request to the prosecutor to open a criminal investigation (see, among many other authorities, Z v. Poland, no. 46132/08, § 70, 13 November 2012).Moreover, the applicant could also institute proceedings in order to establish the disciplinary liability of the medical practitioners concerned by initiating a procedure provided for by the laws governing the professional liability of physicians (see Byrzykowski, cited above, § 106).
On this basis the Court concludes that the Polish legal system offers litigants remedies which, in theory, meet the requirements of the procedural obligations under Article 2. The applicant has not argued otherwise.
74. In the case at hand the applicant used only the criminal-law remedy. The Court will therefore begin by examining, in the concrete circumstances of the case, the manner in which the criminal proceedings were conducted. In this respect the Court discerns two principal stages of the proceedings.
75. The first began in August 2006 with the launch of the criminal investigation into the events, following notification by the applicant and her family. The prosecuting authorities dealt with the investigation until 15 June 2011, when they ultimately discontinued the proceedings, concluding that no offence had been committed (see paragraphs 11-22 above). The applicant had an opportunity to participate actively in the proceedings and availed herself of her procedural rights to influence their course. There is nothing in the case file to demonstrate – nor has the applicant argued before the Court – that she was placed at a procedural disadvantage vis-à-vis the medical institutions or doctors.It therefore remains to be ascertained whether the domestic proceedings were effective in terms of being thorough, prompt and concluded within a reasonable time (see Lopes de Sousa Fernandes, cited above, § 226).
76. The Court notes that the case was clearly complex and involved an assessment of whether the medical treatment chosen by J.Z.’s doctors had been adequate. In the course of the proceedings the authorities collected numerous and extremely voluminous medical opinions and other extensive evidential material (see paragraph 23 above). By the time the prosecutor discontinued the proceedings for the first time on 14 April 2008, ten opinions had been collected (see paragraph 15 above). The district prosecutor to whom the case was remitted subsequently ordered that a joint opinion be prepared; this brought together experts from multiple fields, to whom 277 questions were put. It took about two years to prepare this opinion, as many academic centres in Poland refused to participate (see paragraph 18 above). In this connection it should be noted that some 250 of the 277 questions put to the interdisciplinary team of experts had been posed by the applicant and her two sons (see paragraph 20 above). Overall, the Court does not discern any substantial periods of inactivity or other failures attributable to the investigative authorities. The prosecuting authorities discontinued the proceedings on three occasions, concluding, in extensively reasoned decisions, that no medical malpractice or other offence had been committed. Apart from continually disagreeing with this assessment and contesting the quality and adequacy of medical expert evidence, the applicant did not allege any other concrete shortcomings, for instance missing procedural steps, or other failures on the part of the prosecuting authorities.
77. In view of the above, the Court considers that as regards this stage of the proceedings, they were thorough and concluded within a reasonable time. By 2011 the authorities responded adequately to the applicant’s allegation, made in criminal proceedings, that medical malpractice had occurred and clarified the events surrounding the death of her husband. The proceedings up to that stage were therefore also effective from the standpoint of Article 2 of the Convention.
78. The applicant nevertheless decided to pursue her allegations of medical malpractice by lodging a subsidiary bill of indictment against four doctors on 21 June 2011 (see paragraph 23 above). This marks the beginning of the second stage of the proceedings, which is still pending (see paragraph 41 above). Over the first two years, multiple decisions were issued. In 2012 the Cracow District Court and, subsequently, the Cracow Regional Court discontinued the proceedings. The Supreme Court then examined the extraordinary cassation appeal, and on 25 June 2013 the Cracow Regional Court remitted the case to the Cracow District Court (see paragraph 30 above). The Cracow District Court gave its judgment on the merits on 11 February 2017, in which it acquitted the four doctors involved; the applicant lodged a further appeal.
79. The Court observes that the course of the proceedings has been influenced by the sustained efforts made by the applicant and her sons to prove their allegations that Mr J.Z.’s death was caused by medical malpractice by four doctors of the Cracow University Clinic. They used their procedural rights as a victim party and, later, auxiliary prosecutors, appealed against decisions and adduced international private medical opinions seeking to disprove the medical evidence already obtained. In consequence, new and more extensive medical evidence had to be adduced on each occasion; the preparation of a second interdisciplinary expert opinion, ordered on 27 October 2014 by the Cracow District Court, took until the beginning of 2017 (see paragraph 31 above). At the applicant’s request, the Prosecutor General holding that office prior to her son lodged an extraordinary cassation appeal, which led to the case being remitted for reconsideration (see paragraph 28 above). The Court also notes the Cracow Regional Court’s apparent difficulty in dealing with the case, in which one member of the victim party was an active politician, since he has been the Minister of Justice since 2015 (a post he also held in the period 2005-2007), and since March 2016 has held simultaneously the office of Prosecutor General (see paragraph 35 above).
80. It is further to be noted that since 2018 the case has been pending at the appellate stage before the Cracow Regional Court (see paragraphs 37‑41above). Up to 15 March 2022 the court has so far scheduled fifty-one hearings, of which nine were cancelled. It held forty-two hearings at which it heard evidence from five expert witnesses. While at this stage the applicant made no requests for additional evidence to be taken or for further experts to be heard, it must be noted that throughout the entire appellate proceedings the court was confronted with an exceptionally difficult task of taking and hearing inordinately complex – and seemingly partly inconsistent – medical expert evidence. On some occasions that evidence was taken of the court’s own motion (see paragraph 45 above). However, some more recent evidentiary motions were made by the defendants and, despite that they inevitably resulted in prolonging the proceedings, their procedural rights in respect of defence and ability to examine witnesses had also to be respected by the court. There was also an overlap with various pending criminal investigations instituted by the public prosecution against the experts involved in the applicant’s case (see paragraph 39 above). In view of the foregoing and considering that the authorities conducting criminal proceedings must ensure the equality of rights of the victim and the defendants in criminal proceedings, the Court cannot see any marked failure to carry out an “effective and thorough investigation” on the part of the authorities on account of the duration of the proceedings before the Cracow Regional Court.
81. The Court thus finds that the domestic courts did provide the applicant with answers based on an in-depth assessment and clarified the events surrounding the alleged medical malpractice (see paragraphs 77 and 80 above). It observes that the criminal proceedings were not marked with inactivity; rather, huge efforts were made by the prosecutors, experts, and courts dealing with this case, complexity of which has grown exponentially with every passing year. The Court reiterates that compliance with the procedural obligation under Article 2 requires a joint assessment of several essential parameters (see paragraph 69 above). Thus, in contrast to a situation where solely the excessive length of the proceedings is examined under Article 6 § 1 of the Convention, it is not merely the reasonableness of the length of the proceedings which is in issue here. The main question is instead whether, in the circumstances of the case viewed as a whole, the State could be said tohave complied with its proceduralrequirements under Article 2 of the Convention (see Bilbija and Blažević v. Croatia, no. 62870/13, § 110, 12 January 2016, with further references).
In the absence of any apparent lack of thoroughness in the authorities’ examination of the circumstances surrounding the death of J.Z. in hospital, the overall length of the criminal proceedings against the doctors does not suffice to find the respondent State liable under its procedural obligation arising from Article 2 of the Convention.
82. The Court further notes that the applicant has not attempted to make use of the civil remedy available under Polish law. Civil proceedings, if successful, could have led to the establishment of the extent of liability for her husband’s death and the award of appropriate redress (compare Kudra v. Croatia, no. 13904/07, § 95, 18 December 2012). The fact that criminal proceedings were pending should not prevent the applicant from lodging a civil claim in connection with J.Z.’s death. Under Polish law, nothing prevents the victim of a criminal offence or his/her relatives from claiming damages before a civil court concurrently with the criminal proceedings or after a decision has been given in such a case, regardless of its outcome (see Rajkowska v. Poland (dec),no. 37393/02, 27 November 2007; Karpisiewicz v. Poland (dec), no. 14730/09, 11 December 2012; and Kolaczyk and Kwiatkowski v. Poland, no. 34215/11, § 48, 22 October 2013).
83. It should be noted that the applicant and her sons were clearly aware of the possibility of lodging a civil claim and that she approached the hospital on several occasions with settlement proposals (see paragraph 42 above). The applicant did not contest the Government’s submissions that such settlement attempts stopped the limitation period from running, a fact which might – as emphasised by the Government – suggest that they were part of a litigation strategy (see paragraph 54 above). The Court notes that no answer was provided by the applicant as to why the civil-law avenue would have been ineffective in her case.
The Court reiterates that in such type of cases the civil proceedings are, in principle, capable of providing the most appropriate redress (see Lopes de Sousa Fernandes, cited above, § 235). Nor were any proceedings instituted concerning the medical practitioners’ disciplinary liability (see paragraph 43 above).
84. Lastly, the Court would stress that the procedural obligation under Article 2 of the Convention is not an obligation of result but of means only. Thus, the mere fact that proceedings concerning medical negligence have ended unfavourably for the person concerned does not in itself mean that the respondent State has failed in its positive obligation under Article 2 of the Convention (see Lopes de Sousa Fernandes, cited above, § 221).
85. Consequently, in view of the above finding that the domestic authorities had already thoroughly and effectively examined the applicant’s medical malpractice case by 2011 and the fact that the applicant did not attempt to use other legal avenues provided by the domestic legal system – which would have allowed the Court to examine the State’s response as a whole – it cannot be said that the legal domestic system in the present case failed to deal adequately with the applicant’s case.
In the particular circumstances of the case, although the criminal proceedings against the doctors have not yet been concluded, the Court finds that the respondent State fulfilled its positive obligation under Article 2 of the Convention.
86. Accordingly, there has been no violation of that provision in the present case.
FOR THESE REASONS, THE COURT
1. Declares, unanimously, the application admissible;
2. Holds, by six votes to one, that there has been no violation of Article 2 of the Convention.
Done in English, and notified in writing on 20 October 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Liv Tigerstedt Marko Bošnjak
Deputy Registrar President
_____________
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the party dissenting opinion of JudgeBalcerzak is annexed to this judgment.
M.B.
L.T.
PARTLY DISSENTING OPINION OF JUDGE BALCERZAK
1. I agree that the case is admissible; however, I arrived at a different conclusion from the majority in respect of the merits. Having regard to the overall length of the proceedings in this case (exceeding sixteen years), and in view of the case-law developed by the Court on alleged medical malpractice, I do not find the overall response by the State’s legal system to the demands of Article 2 of the Convention, under its procedural limb, to have been fully adequate and satisfactory.
2. The reasons for my dissent are based on an interpretation of the procedural requirements of Article 2 of the Convention which (a) perceives the time factor as a criterion that heavily influences the assessment of the effectiveness of criminal proceedings; and (b) takes into account the particular significance of promptness in health-care-related cases examined under this provision. Another reason why I did not vote with the majority is that I drew different conclusions from the fact that the applicant had not used other legal avenues available in the domestic legal system, that is, a civil remedy or an attempt to initiate disciplinary proceedings.
A. Did the criminal proceedings meet all the inter-related elements of procedural protection of the right to life?
3. I have no difficulty in accepting that the elements of assessment of the proceedings under Article 2 of the Convention “are inter-related and each of them, taken separately, does not amount to an end in itself, as in the case in respect of the requirements of a fair trial under Article 6” (see paragraph 69 of the judgment). As established in the Court’s case-law, these elements include thoroughness, promptness, and independence of the investigation, as well as the adequacy of investigative measures and the involvement of the deceased person’s family (see Mustafa Tunç and FecireTunç v. Turkey [GC], no. 24014/05, 14 April 2015, § 225). In my estimation, all but one of these criteria (namely, promptness) were generally fulfilled in the proceedings under consideration, although the level of thoroughness and adequacy of investigative measures varied, depending on the phase of the proceedings.
4. That being said, in a joint assessment of the applicable criteria, I respectfully disagree with downgrading the legal significance of the requirement of promptness. It is also through the lens of reasonable time and speediness that the effectiveness of any criminal investigation must be assessed. A period of over sixteen years of proceedings does not pass this test, even in a clearly complex case such as that under consideration.
5. The first phase of the criminal proceedings lasted from August 2006 to June 2011. During that period, the first decision to discontinue the investigation was quashed by the Cracow District Court (on 5 September 2008), which expressed criticism as to the quality of one of the expert opinions. The next medical opinion was completed – not without difficulties – in May 2011. In June 2011 the investigation was discontinued (for a second time) by the OstrowiecŚwiętokrzyski District Prosecutor, who found that no offence had been committed. This part of the proceedings could be considered as having been concluded within a reasonable time (see paragraph 77 of the judgment), though I am not convinced – for the reasons outlined below – that the case had already been “thoroughly and effectively examined” as of 2011 (see paragraph 85). In any event, it was in the second phase of the proceedings that compliance with the requirement of promptness and reasonable time became problematic.
6. On 21 June 2011 the applicant and her two sons lodged a subsidiary bill of indictment (subsydiarnyaktoskarżenia) – a procedural action that they were fully entitled to pursue under Polish law. It is of relevance in the overall assessment of the case that the State authorities manifested their interest in investigating the case further: firstly, through the public prosecutor’s decision to join the proceedings on 22 January 2012 (roughly seven months after the case was discontinued), and, secondly, through the Prosecutor General’s decision to lodge an extraordinary cassation appeal against the third discontinuation of the case on 21 December 2012. On 14 March 2013 the Supreme Court quashed the impugned decision on discontinuation and the case was remitted to the Cracow Regional Court.
7. Had the proceedings been completed, that is, finally discontinued, in 2012 or 2013, one could have assumed that the domestic authorities regarded the allegations as sufficiently explained, at least in their view. Apparently, however, the domestic authorities themselves considered that the procedural obligations under Article 2 of the Convention were not yet fulfilled as of 2012 or 2013, seven years after Mr J.Z.’s death.
8. The proceedings in the present case, viewed from the perspective of the procedural guarantees of Article 2, constituted a continuum, in that both the first (2006-2011) and the second phase (initiated by the subsidiary act of indictment in 2011 and pending as of 2022) were aimed at establishing whether or not Mr J.Z.’s death had resulted from medical malpractice. In both phases of the proceedings, the applicant used her procedural rights very actively, as a victim party and an auxiliary prosecutor. This inevitably had a bearing on the course of the proceedings. Nevertheless, even in such an extremely complex case as the one under consideration here, with dozens of medical opinions and hundreds of questions, the overall time required by the criminal-justice system to reach final and conclusive closure of the case was disproportionately long.
B. The particular significance of promptness in health-care-related cases examined under Article 2 of the Convention
9. The requirement of promptness constitutes an integral element of the standard of effective investigation in all Article 2 cases. However, in those related to health care, there are particularly vital reasons why the proceedings need to be completed within a reasonable time. As the Court held in Šilih v. Slovenia [GC], no. 71463/99, 9 April 2009:
“196. [A]part from the concern for the respect of the rights inherent in Article 2 of the Convention in each individual case, more general considerations also call for a prompt examination of cases concerning death in a hospital setting. Knowledge of the facts and of possible errors committed in the course of medical care are essential to enable the institutions concerned and medical staff to remedy the potential deficiencies and prevent similar errors. The prompt examination of such cases is therefore important for the safety of users of all health services (…).”
10. Further, as stressed by the Court in its established case-law (see Fernandes de Oliveira v. Portugal [GC], no. 78103/14, 31 January 2019; Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, 19 December 2017; and Bilbija and Blažević v. Croatia, no. 62870/13, 12 January 2016, § 107):
“Particularly in those cases concerning proceedings instituted to elucidate the circumstances of an individual’s death in a hospital setting, length of proceedings is a strong indication that the proceedings were defective to the point of constituting a violation of the respondent State’s positive obligations under the Convention, unless the State has provided highly convincing and plausible reasons to justify the length [of the proceedings].”
11. The criterion of “highly convincing and plausible reasons” justifying the length of the proceedings sets a very high threshold. I do not find the reasons provided by the respondent Government to justify the sixteen-year period of proceedings to be either plausible or convincing, even taking into account the indisputable complexity of the case, the difficulty in obtainingexpert opinions and other obstacles. There are reasonable limits as to how long criminal proceedings can last until they fall below the standard of “effective investigation” required for the purposes of Article 2 of the Convention.
12. It is noteworthy that in other, no less complicated, cases concerning deaths in hospital settings the Court has previously found violations of Article 2 in respect of proceedings which took considerably less time. Violations of the procedural requirements of Article 2 due to the length of proceedings were found in the above-mentioned cases of: Bilbija and Blažević(criminal proceedings lasting nine years, and administrative proceedings lasting eleven years); Lopes de Sousa Fernandes (criminal proceedings lasting for over six years with significant periods of inactivity; civil proceedings lasting almost ten years; the Court considered that “such a lengthy time prolongs the ordeal of uncertainty not only for the claimants but also for the medical professionals concerned” – ibid., § 236); and Fernandes de Oliveira (over eleven years).
13. In the case of Zafer Öztürkv. Turkey (no. 25774/09, 21 July 2015), proceedings which lasted almost eight yearswere found not to meet the standards of Article 2 of the Convention. In the case of SüleymanEge v. Turkey (no. 45721/09, 25 June 2013), the criminal proceedings took seven years and the administrative proceedings lasted twelve years. The overall length of criminal investigation (seven years), taken together with the way in which the case was investigated, led the Court to find a violation of Article 2 in Arskaya v. Ukraine (no. 45076/05, 5 December 2013), and in ValeriyFuklev v. Ukraine (no. 6318/03, 16 January 2014) (six years). The problem of promptness in proceedings aimed at explaining the circumstances of an individual’s death in a hospital setting was also crucial in the case of Byrzykowski v. Poland (no. 11562/05, 27 June 2006) (criminal proceedings lasting over seven years).
14. The above cases illustrate that the requirement of promptness in investigating and conducting proceedings concerning health-care-related cases has been considered seriously. In some of them, the domestic proceedings to explore deaths in hospital settings were found to fall below the expected standard well below half of the length of the proceedings being examined by the Court in the present case.
15. The special significance of promptness in health-care-related cases remains intrinsically linked with other procedural requirements of Article 2. I am far from considering that criminal proceedings automatically breach these requirements once they exceed a certain period, irrespective of other criteria. Nevertheless, “the call for a prompt examination of cases concerning death in a hospital setting” (see Šilih, cited above, § 196)must not become a second-tier requirement. The “joint assessment” approach to the examination of the effectiveness of domestic proceedings does not alter my assessment of all stages of the proceedings into Mr. J.Z.’s death as being – as a whole – overly lengthy and thus casting a shadow over fulfilment of procedural guarantees under Article 2 of the Convention.
16. In assessing the effectiveness of the investigation and proceedings in the case at hand, the majority applied the logic of the Nicolae VirgiliuTănase v. Romania [GC] judgment (no. 41720/13, 25 June 2019). That case concerned a car accident, as a result of which the applicant had to undergo three surgical operations. The accident was life-threatening but, fortunately, there were no fatalities. The Grand Chamber found that there had been no violation of Article 2 or Article 6 § 1 of the Convention, in rather complex criminal proceedings which lasted from 2004 until 2012. I am not implying that the Article-2 standards applicable to investigating cases of life-threatening injuries inflicted unintentionally differ fundamentally from those applicable in cases of unintentional deaths of hospitalized patients. However, it would be more appropriate if the determination of the present case corresponded to the logic of the judgments mentioned in paragraph 9 of this opinion, and, in particular, the Grand Chamber judgment in Lopes de Sousa Fernandes. The latter case constitutes, in my book, a leading and convincing precedent concerning the assessment of investigations and proceedings into unintentional deaths in hospital settings. The fulfilment of the procedural guarantees of Article 2 in the present case, assessed as a whole, appears far from obvious when considered from the perspective of Lopes des Sousa Fernandes.
C. Should the applicant have used other remedies in pursuit of her claims?
17. In paragraphs 82-83 of the present judgment, the Court noted that the applicant had not used the civil remedy or sought to institute disciplinary proceedings aimed at establishing the medical practitioners’ professional liability. I wish to address this issue, given that the absence of an attempt to use other legal avenues offered in the domestic legal system has been considered by the Court as preventing it – at least in part – from examining the State’s response as a whole (see paragraph 85).
18. As was noted in paragraph 73 of the present judgment, the Polish legal system provides, as a rule, two principal legal avenues for those alleging medical malpractice: a civil action and a request to the prosecutor to open a criminal investigation. The latter can be triggered even after a refusal to initiate criminal proceedings or its discontinuation by the prosecutor, if the alleged victim files a subsidiary act of indictment (subsydiarnyaktoskarżenia). Another possibility is to demand the institution of proceedings to establish a physician’s disciplinary or professional liability.
19. The Court observed that “the Polish legal system offers litigants remedies which, in theory, meet the requirements of the procedural obligations under Article 2” (ibid.). I share this view; however, I would not infer from the applicant’s lack of recourse to civil or disciplinary proceedings such far-reaching conclusions as the majority. My point of reference in this regard is the Kudra v. Croatia judgment of 18 December 2012 (no. 13904/07), in which the Court held:
“92. (…) [B]efore bringing their complaints to the Court, applicants alleging a violation of the positive obligation contained in Article 2 of the Convention in cases of alleged medical negligence or unintentional death, must avail themselves of the best means available in the domestic system to identify the extent of liability of the individuals concerned for the death of their relative (see, mutatis mutandis, Calvelli and Ciglio, cited above, § 55).
93. Consequently, if the domestic system allows for more remedies which could in principle, if pursued successfully, be considered as the best way in which to determine the extent of the liability of the individuals concerned for the death of their relative, the applicants are obliged to exhaust a remedy which addresses their essential grievance. Use of another remedy which has essentially the same objective and which would not necessarily result in a more effective examination of the case is not required (see Jasinskis, cited above, §§ 52-53).” (emphasis added)
20. One could argue that the objective of criminal and civil remedies is different when viewed from the domestic perspective. From the standpoint of the Convention, however, the aim of pursuing a civil or criminal remedy in cases concerning unintentional death in hospital settings remains essentially the same: to examine the circumstances of a patient’s death in a thorough, prompt and independent way, in full compliance with the procedural requirements of Article 2. And then to draw the appropriate conclusions as to possible criminal responsibility or civil liability, depending on the type of proceedings.
21. In assessing similar cases in the past, the Court considered its task to be an examination of whether there was “an adequate procedural response on the part of the State to the infringement of the right to life …, irrespective of the particular procedure carried out” (see Kudra, §104, and Biblija and Blažević, § 102, both cited above). Indeed, the Court has referred in this context to an assessment of “available legal remedies, taken together, as provided in law and applied in practice” (ibid.). In numerous cases, however, the Court has proceeded with its assessment and found a violation of procedural obligations under Article 2 of the Convention, irrespective of whether or not the applicants had recourse to a civil action. Examples include the above-mentionedBilbija and Blaževićcase,or that of Starčević v. Croatia (no. 80909/12, 13 November 2014) (investigation following a road accident).
22. Had the applicant failed to use both criminal and civil remedies, then the case would have been inadmissible under Article 2 of the Convention, due to non-exhaustion of domestic remedies. This would also have been the result had she attempted to establish only disciplinary or professional liability. Where an applicant had recourse to a judicial avenue (be it civil or criminal), however, it should be assumed that the State was given every opportunity to take the appropriate steps and to ensure that a thorough, effective and prompt procedure or investigation was implemented.
23. I see no particular reason to assume that, had the applicant in the present case initiated a civil action (either instead of or in parallel to criminal proceedings), the standards of Article 2 of the Convention would have been served better. In all probability, a civil court would have stayed the proceedings until a final judgment by a criminal court was obtained. Nonetheless, even if both civil and criminal proceedings were pending simultaneously, there is no guarantee that the thoroughness or promptness of the criminal proceedings – central to the case under consideration – would be in any way influenced or improved.
24. If assessed from the perspective of the applicant’s interest in previous cases concerning unintentional death in hospital settings, the instituting of civil proceedings could be considered rational or even advisable. I would tend to agree with the view expressed by the Court in Lopes de Sousa Fernandes (cited above, § 235) and reiterated by the majority in paragraph 83 of the present judgment, to the effectthat “in such type of cases the civil proceedings are, in principle, capable of providing the most appropriate redress”. However, the assessment of the applicant’s motivation or litigation strategy should not be decisive in determining whether or not the domestic proceedings, and in this case the criminal proceedings as a whole, corresponded to the requirements of Article 2 of the Convention.
25. I am therefore unable to accept that the lack of recourse by the applicant in this case to civil or disciplinary proceedings might have any decisive influence on the Court’s determination of whether the criminal proceedings fulfilled all the procedural requirements under Article 2 of the Convention.
Conclusion
26. Having regard to the overall length of the criminal proceedings in this case, which exceeded sixteen years, and taking into account the Court’s established case-law on effective investigation and proceedings in cases involving unintentional death in hospital settings, I conclude that the required standard of promptness has not been complied with. This seriously affected the overall quality of the proceedings, as seen from the perspective of Article 2 of the Convention. In consequence, the threshold of a procedural violation of this provision has been reached.
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