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FOURTH
SECTION
CASE OF MOJSIEJEW v. POLAND
(Application
no. 11818/02)
JUDGMENT
STRASBOURG
24 March
2009
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 Mojsiejew v.
Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Giovanni Bonello,
Ljiljana
Mijović,
David Thór Björgvinsson,
Ledi
Bianku,
Mihai Poalelungi, judges,
and Fatoş
Aracı, Deputy Section
Registrar,
Having
deliberated in private on 3 March 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 11818/02) 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 Władysława
Mojsiejew (“the applicant”), on 21 July 1999.
- The
applicant, who had been granted legal aid, was represented by
Mr J. Gałkowski, a lawyer practising in Bielsko-Biała.
The Polish Government (“the Government”) were represented
by their Agent, Mr J. Wołąsiewicz of the Ministry
of Foreign Affairs.
- The
applicant alleged, in particular, that her son Hubert Mojsiejew had
been killed in a sobering-up centre and that the subsequent
investigation and criminal proceedings had been ineffective.
- On
26 April 2005 the Court declared the application partly inadmissible
and decided to communicate the complaints about a breach of Article 2
of the Convention to the Government. It also decided to examine the
merits of the application at the same time as its admissibility
(Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1951 and lives in Bojszowy,
Poland.
- On 28 August 1999 the applicant's elder son, Hubert
Mojsiejew, died at the age of twenty-five in the Tychy Sobering Up
Centre (Izba Wytrzeźwień), where he had been
detained at 4.50 a.m. that day.
- On
the same day the Tychy District Prosecutor and a forensic expert
examined Hubert Mojsiejew's body. The prosecutor ordered an autopsy
to be carried out by experts from the Śląska Medical
Academy.
- After
an autopsy had been carried out on 30 August 1999 an opinion was
submitted to the prosecutor on 3 September 1999. The expert
established that a possible cause of death was asphyxiation resulting
from pressure on the victim's neck and that Mr Mojsiejew had a blood
alcohol level of 1.70 per mille.
- The
death certificate (karta zgonu) signed by Dr J.S., a forensic
expert from the Śląska Medical Academy in Katowice, gave
the following cause for Hubert Mojsiejew's death:
“Numerous effusions of blood in the soft tissue of
the neck.”
- On
30 August 1999 the Tychy District Prosecutor opened an investigation
in order to establish whether an offence prohibited by Article 155
of the Criminal Code (unintentional homicide) had been committed. The
prosecutor interviewed several witnesses and ordered an examination
of blood and other samples and the preparation of an expert opinion.
- On
30 December 1999 the Tychy District Prosecutor discontinued the
investigation. The prosecutor observed that Hubert Mojsiejew had been
examined by a doctor at the time of his admission to the sobering up
centre. The examination showed that he had been intoxicated and that
he had no injuries to his body. As Hubert Mojsiejew had uttered
threats and had been aggressive, he had been tied up to a bed with
belts. The room in which he had been detained had been inspected by
an employee of the sobering up centre at 7 a.m. and 7.45 a.m.
When the same employee had come to the room at 8.45 a.m. he had
noticed spots on Hubert Mojsiejew's skin and had called the doctor on
duty. The doctor had examined Hubert Mojsiejew and had called an
ambulance. The doctor who had arrived in the ambulance had examined
Hubert Mojsiejew and had declared him dead. Furthermore, the
prosecutor referred to an expert opinion prepared by the Śląska
Medical Academy, which stated that Hubert Mojsiejew had died of
asphyxiation. The prosecutor concluded that the evidence collected in
the course of the investigation did not show that third persons had
caused the death of Hubert Mojsiejew.
- On
18 January 2000 the applicant lodged an appeal with the Tychy
District Prosecutor against the decision to discontinue the
investigation. She also requested that the prosecution service carry
out a reconstruction of the crime scene, with the assistance of a
medical expert. On 20 January 2000 the Tychy District Prosecutor
informed the applicant that her request had been granted.
- On
14 March 2000 a medical expert opinion was prepared by the Silesian
Medical Academy in Katowice. The expert established that the possible
cause of Hubert Mojsiejew's death had been asphyxiation due to
immobilisation of his chest by belts which might have obstructed his
breathing. However, the expert was unable to establish the origin of
the injuries to Hubert Mojsiejew's neck.
- On
14 March 2000 the Tychy District Prosecutor allowed the applicant's
appeal of 18 January 2000 and resumed the investigation.
- In
May 2000 the prosecutor charged Z.K., an employee of the Centre, with
the unintentional homicide of Hubert Mojsiejew. Three other employees
of the centre were charged by the prosecutor in July 2000. On 14 July
2000 Z.K. was suspended from his duties at the Tychy Sobering-Up
Centre.
- On
28 September 2000 the prosecutor ordered the preparation of another
expert medical opinion by the Śląska Medical Academy in
Katowice. The opinion was inconclusive and did not rule out either
the exertion of pressure on Hubert Mojsiejew's neck or his incorrect
immobilisation by belts as possible causes of his death. The expert
was also unable to establish precisely the time of his death.
- In
a supplementary expert opinion prepared in November 2000 the expert
established that Mr Mojsiejew should have been released from the
belts after an hour since he had ceased to be aggressive. Moreover,
the staff had failed to supervise his state of health. The expert
concluded that the death could have been caused by strong pressure on
his chest and his lack of direct supervision for many hours.
- On
11 December 2000 the Tychy District Prosecutor indicted four
employees of the sobering-up centre before the Tychy District Court.
They were indicted under Article 155 of the Criminal Code for the
unintentional homicide of Hubert Mojsiejew. In particular, Mr Z.K.
was accused of having incorrectly immobilised Hubert Mojsiejew on the
bed and, in doing so, having exerted pressure on his neck. In
consequence the respiratory movements of his chest had been limited
to a large extent, which had led to his death by asphyxiation. Three
other employees of the sobering-up centre were charged with
unintentional homicide by failing in their duty to care for and
supervise Mr Mojsiejew.
- The
applicant requested to join the proceedings as an auxiliary
prosecutor.
- The
hearing scheduled for 24 July 2001 was adjourned as the parties had
not been properly summoned to it. Afterwards, the trial could not
start as on three occasions new reporting judges had to be assigned
to the case. In consequence, the Tychy District Court held the first
hearing on 17 April 2003. Subsequently, two hearings were
scheduled for 9 June 2003 and 24 February 2004 but they were
adjourned.
- The
trial court held a hearing on 10 May 2004, at which it examined the
accused. Some hearings scheduled afterwards were adjourned for
various procedural reasons. On 16 August 2004 an attempt by the
applicant to challenge judges trying the case was dismissed.
- The
Tychy District Court held its next hearing on 10 December 2004 and
examined some witnesses.
- In
2005 the trial court held eleven hearings in total and scheduled them
at regular intervals.
- In
2006 the court held only two hearings, on 23 January and 4 April. On
28 April 2006 the court requested a new expert medical opinion from
the Wrocław Medical Academy. The experts submitted their opinon
on 15 November 2006. The opinion reads as follows:
“The above observations [from photographs and an
inspection of the room in which Hubert Mojsiejew died] lead to a
conclusion that the injuries to the deceased's neck most probably did
not occur prior to his arrival at the sobering-up centre, or as a
result of his being tied to the bed by belts. In consequence, another
means by which these injuries occurred needed to be examined.
The absence of external skin injuries and the presence
of extensive internal injuries in the soft tissue of the neck
indicate that a large amount of direct pressure had been applied with
a blunt object of a substantial surface area. Such an object could
have been, for example, an arm, or alternatively the elbow area
between the forearm and arm, if somebody had applied the
immobilisation technique called a headlock (krawat). In this
hold the person applying it normally stands behind the person to be
immobilised and forcefully puts his arm around the neck [...
simultaneously pushing the head with the other hand ...]. This hold
blocks breathing and hinders the access of blood to the brain, which
in a short time leads to fainting. At the same time, if [the
headlock] lasts long enough it may lead to death by strangulation or
cardiac arrest. ... Cardiac arrest or respiratory failure occurs
either immediately after [the headlock] has been applied or it can
occur some time afterwards if the hold was applied for a long enough
time to cause brain damage ...
It appears from medical and forensic practice that the
[headlock] is sometimes used on intoxicated and aggressive patients
at sobering-up centres. Such actions, where they do not cause death,
expose the person to a direct danger of loss of life or serious
bodily injury within the meaning of Article 160 of the Criminal Code.
The absence of any external signs of injuries on the
chest which could indicate that strong pressure had been applied by
narrow belts limiting the respiratory movements of the chest ...,
taking into account the above considerations, makes it very doubtful
that the immobilisation of the chest was the cause of [Hubert
Mojsiejew's] death.
While the cause of death advanced by the Śląska
Medical Academy cannot be totally ruled out, it is much more probable
that the cause of the sudden death of [Hubert Mojsiejew] was
strangulation (uduszenie przez zadławienie) by applying
strong pressure with a blunt object to the neck, in the manner and
circumstances described above.
It should be added that such extensive injuries to the
front side of his neck could not have happened if [Hubert Mojsiejew]
was trying to free himself from the belts while lying on his stomach.
It is also impossible that such injuries occurred during
convulsions...
A forensic examination of the body (obdukcja
sądowo-lekarska), in the place in which it had been found,
was not conducted, which makes it impossible to establish the exact
time of death. Analysing livor mortis (plamy pośmiertne)
[and other factors], one can only advance the hypothesis that about
one to two hours had elapsed between his death and the time at which
his body was found.”
- The
Tychy District Court held a hearing on 23 January 2007 and on 30
January 2007 it gave its judgment. The court changed the
classification of the offence and found all the accused guilty of
having exposed Hubert Mojsiejew to an immediate danger of loss of
life within the meaning of Article 160 § 2 of the Criminal Code.
They were sentenced to two years' imprisonment, suspended for a
probationary period of three years.
- As
regards the course of the events of 28 August 1999, the court
established that during his arrest by the police, his transfer to the
sobering up centre and his stay in the centre, Hubert Mojsiejew
had been calm and had not shown aggression. In the sobering-up
centre, however, he refused to undress and became verbally abusive,
which led the centre's staff to decide to put him in the special room
with immobilising belts. At 4.55 a.m. Hubert Mojsiejew was put
on the bed, on his stomach, and Z.K. tied his hands, legs and chest
with the belts. During this, Mr Mojsiejew was calm and did not put up
a struggle; he was mumbling incomprehensibly. After having been tied
to the bed and examined by a doctor, Hubert Mojsiejew was left in his
room. He was examined 20 minutes later but afterwards no employee
from the shift that finished at 7 a.m., or from the following shift,
came into the room in which Mr Mojsiejew had been immobilised and
examined him. The employees occasionally observed him, looking mostly
through a spy-hole in the door without entering the room, and were
able to see his sides moving, from which they had concluded that he
was still breathing.
At
8.45 a.m. one employee of the centre noticed through the glass in the
door that the skin on Hubert Mojsiejew's hands was of an unnatural
colour. He called a doctor on duty and together they came into the
room. They untied Mr Mojsiejew. At 9.06 an ambulance came and the
doctor established that Hubert Mojsiejew was dead.
- As
regards the cause of his death, the court noted that all medical
opinions had found that Hubert Mojsiejew had died of asphyxiation.
The court considered that the experts from the Śląska
Medical Academy had avoided answering the question of the origin of
the injuries to Mr Mojsiejew's neck. Thus, the court accepted
the conclusions reached by the experts from the Wrocław Medical
Academy, who dismissed as highly improbable the hypothesis that the
belts had been tied too tight and had obstructed the movement of his
chest, since Mr Mojsiejew had not had any marks on his body
indicating that pressure had been exerted by the chest belt. The
court thus concluded that his death had been caused by strangulation
(zadławienie) as pressure had been applied to Hubert
Mojsiejew's neck. It had most probably happened when someone had put
Mr Mojsiejew in a headlock. This immobilisation technique, if applied
for a longer time, could lead directly to death, but if applied for a
shorter period of time could cause brain damage, which affected
breathing and after a certain time could also lead to death.
- The
court also considered that the failure to conduct a forensic
examination of the body narrowed the evidence concerning the state of
the body, its temperature and the state of livor mortis. Thus,
the precise time of death could not be established.
- Although
the court was unable to establish beyond doubt who had applied the
headlock on the applicant's son, it considered that all the accused
had failed in their duty of care for Hubert Mojsiejew by having
exposed him to an immediate danger of loss of life. In particular,
the employees of the centre had been obliged to carry out constant
supervision of the rooms in which intoxicated persons were detained.
Under domestic law, patients immobilised by belts should be examined
and checked every 15 minutes. If patients stayed calm and there were
no other indications for the use of belts, they should be released;
it should also be ensured that the patient did not need to use the
toilet. However, Hubert Mojsiejew had not been examined every 15
minutes. He had been properly examined only once, about 20 minutes
after he had been immobilised by the belts. Moreover, immobilisation
by belts should not have been applied to him in the first place. The
accused had thus deliberately failed in their obligation to protect
Hubert Mojsiejew's life. Moreover, they had been completely unaware
of the rules governing the manner in which care was to be provided to
immobilised patients. In particular one of the accused, who was a
doctor, had believed that a patient could be kept immobilised for 24
hours without being released.
- The
accused and the applicant appealed against the judgment.
- On
13 November 2007 the Katowice Regional Court quashed the judgment and
remitted the case to the lower court. The court considered premature
the first-instance court's conclusions relating to the manner in
which Mr Mojsiejew's death had occurred. It found that the accused
had been correct in submitting that the exact time of the events and
Mr Mojsiejew's death should have been specified since the
accused had been responsible for providing care to him at different
times. It also indicated that other evidence needed to be taken, in
particular from the expert witnesses from the Wrocław Medical
Academy who had prepared the most recent opinion.
- The
case was transferred to the Tychy District Court which held a first
hearing on 10 December 2007. In May 2008 the case was still pending
before that court.
II. RELEVANT DOMESTIC LAW
- 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 3 years.
2. If the perpetrator has a duty to take care of the
person exposed to danger, he shall be subject to the penalty of
deprivation of liberty for a term of between 3 months and 5 years.”
- Section
16 of the Ordinance of the Minister for Health and Social Welfare of
23 October 1996 on the procedure for dealing with intoxicated
persons, the organisation of sobering-up centres and the scope of
health care and rules on assessing the fees connected with admittance
to and stays in sobering-up centres (Rozporządzenie Ministra
Zdrowia i Opieki Społecznej w sprawie trybu doprowadzania osób
w stanie nietrzeźwości organizacji izb wytrzeźwień
i zakresu opiekli zdrowotnej oraz zasad ustalania opłat
związanych z doprowadzeniem i pobytem w izbie wytrzeźwień)
states that direct coercion may be applied in accordance with the
rules laid down in section 18 of the 1994 Protection of Mental Health
Act, which provides in particular that direct coercion can consist of
immobilisation, among other methods. Section 16 of the
above-mentioned Act further refers to the Ordinance of the Minister
for Health and Social Welfare of 23 August 1995 on the form of
application of direct coercion (w sprawie sposobu stosowania
przymusu bezpośredniego), which determines the manner in
which direct coercion may be applied.
The latter ordinance provides, in so far as relevant:
“9 (2) A doctor shall recommend application
of direct coercion in the form of immobilisation or isolation for a
period of no longer than four hours. If necessary, the doctor, after
personal examination of the patient, may extend the use of
immobilisation for subsequent periods of six hours.
13 A nurse on duty shall check the state of the
immobilised or isolated person no less frequently then every 15
minutes, including when the person is asleep. The state of the person
shall be recorded on the [patient's] card without delay.”
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 2 OF THE CONVENTION
- The applicant submitted that her son Hubert Mojsiejew
had been unjustifiably killed by State agents and that there had been
no effective investigation into the circumstances of his death. She
relied on Article 2 of the Convention, which provides:
“1. Everyone's right to life shall be
protected by law. No one shall be deprived of his life intentionally
save in the execution of a sentence of a court following his
conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded
as inflicted in contravention of this article when it results from
the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful
violence;
(b) in order to effect a lawful arrest or to
prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose
of quelling a riot or insurrection.”
- The
Government contested that argument.
A. Admissibility
- The
Government first submitted that the applicant had not exhausted the
remedies available under Polish law in that she had lodged the
application with the Court without waiting for the outcome of the
criminal proceedings concerning her son's death, thus the application
was premature. Secondly, they argued that if the applicant considered
that the criminal proceedings against the persons allegedly
responsible for her son's death had been unduly protracted, it was
open to her to lodge a complaint with a domestic court about their
unreasonable length. The Government also maintained that it had been
open to the applicant to join the criminal proceedings as a civil
party in order to seek compensation. A claim for compensation could
also be lodged by her after the end of the criminal proceedings.
- The
applicant submitted that she had used all existing remedies in order
to obtain the prosecution and punishment of those responsible for her
son's death. However, the authorities had been trying to conceal the
truth and had failed to conduct a thorough and effective
investigation into her son's killing. Thus, the existing remedies had
proved to be ineffective.
- The
Court firstly observes that the Polish legal system provides, in
principle, two 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.
- The
Court notes that the applicant is actively involved in the criminal
proceedings brought against four employees of the Sobering-up Centre.
Those proceedings are still pending. In so far as the Government
argue that the applicant's Article 2 complaint is premature, the
Court considers that that contention is a matter which is
indissociable from the applicant's allegation that the State has
failed to comply with its procedural obligations under Article 2, in
particular to carry out an effective investigation into the
circumstances surrounding the death of Hubert Mojsiejew. The
Government's objection should therefore be joined to the merits of
the case.
- As
regards the Government's argument that the availability of civil
proceedings provided the applicant with a remedy of which she has yet
to avail herself for the purposes of Article 35 § 1 of the
Convention the Court recalls in this connection that the obligations
of the State under Article 2 of the Convention to conduct an
investigation capable of leading to the identification and punishment
of that responsible cannot be satisfied merely by awarding damages
(see Kaya v. Turkey, 19 February 1998, § 105,
Reports 1998 I). The Court further reiterates that, even
assuming that the applicant had brought a civil claim and had been
successful in recovering civil damages from a State body on account
of negligent acts or omissions leading to Mr Mojsiejew's death, this
would still not resolve the issue of the procedural obligations
arising under Article 2 of the Convention.
Consequently,
the applicant was not required to bring the civil proceedings in
question and the preliminary objection concerning proceedings of that
nature is unfounded (see Yaşa v. Turkey, 2 September
1998, § 75, Reports 1998-VI).
- Finally, in so far as the Government invoke the
provisions of the Law of 17 June 2004 on complaints about a breach of
the right to a trial within a reasonable time (“the 2004 Act”)
in the context of the complaint made under Article 2 of the
Convention, the Court observes in this connection that the 2004 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 of criminal proceedings 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. The Court reiterates that the
requirement of promptness is implicit in the procedural limb of
Article 2 of the Convention and the authorities are required to
conduct of their own motion a thorough and effective investigation
into potential breaches of Article 2.
- In
the light of the above, the Court joins the Government's plea of
inadmissibility based on the premature nature of the applicant's
application to the merits of the case and dismisses the remainder of
the Government's preliminary objections.
It
further notes that the application is not manifestly ill-founded
within the meaning of Article 35 § 3 and is not inadmissible on
any other grounds. It must therefore be declared admissible.
B. The merits
1. The submissions made to the Court
(a) The applicant
- The
applicant submitted that her son, Hubert Mojsiejew, had been killed
in the sobering-up centre and that his right to life protected by
Article 2 of the Convention had therefore been violated. The
legal regulations in force had proved to be ineffective and
theoretical as they had not afforded effective protection of Hubert
Mojsiejew's life. It was beyond doubt that Mr Mojsiejew had died at
the hands of employees of the sobering-up centre, who had abused
their power by using an immobilisation technique or otherwise causing
his death. Therefore, the employees of the sobering-up centre should
have been prosecuted for murder and not unintentional homicide.
- As
regards the investigation into these allegations, the applicant
maintained that there had been obvious errors and omissions on the
part of the prosecuting authorities. The authorities had failed to
investigate speedily and diligently. The bill of indictment and
judgments of the courts indicated that the authorities had not been
interested in discovering the truth and punishing those who had
killed Hubert Mojsiejew.
(b) The Government
- The
Government maintained that the authorities had complied with their
positive obligation under Article 2 of the Convention to secure the
applicant's son's right to life and that they could not be held
responsible for his death, which had been a tragic incident. They
referred to legal regulations which had been put in place in order to
ensure the safety of patients in sobering-up centres. The manner and
circumstances in which means of physical coercion could be applied to
patients were also specified by domestic law. The employees of the
Tychy Sobering-Up Centre had received relevant training, the centre
was properly equipped and there was a continuous presence of a
doctor. No evidence of intentional killing had so far been disclosed.
Since the criminal proceedings against four employees were still
pending before the domestic courts it would be premature to assess
the conduct of the employees of the centre during the events in
question.
- The
Government further argued that the prosecuting authorities had
initiated an investigation of their own motion immediately after the
applicant's son's death had been discovered. Thus, in the
Government's opinion, the authorities had complied with the
procedural obligation stemming from Article 2 of the Convention. The
Government pointed to the diligence and expedition of the
prosecutor's investigation, which had resulted in the bringing
against four employees of the centre of serious charges of
unintentional homicide and failure in their duty of supervision.
Nevertheless, the Government conceded that there had been delays at
the judicial stage of the proceedings owing to the resignation of one
of the judges and the heavy workload of the Tychy District Court
during the material time. Moreover, there had been other events, such
as illnesses of witnesses and the accused, which had caused the
hearings to be rescheduled. The criminal proceedings had guaranteed
the necessary element of public scrutiny in that the applicant had
been involved as a party in both the investigative and the judicial
stage.
- In
sum, the Government submitted that the investigation and the criminal
proceedings had been effective and thorough. The Convention did not
provide for a right to have someone convicted on a specific charge
and the outcome of the proceedings would depend on the ruling of the
domestic courts.
2. The Court's assessment
(a) General principles
- Article
2 ranks as one of the most fundamental provisions in the Convention.
It enshrines one of the basic values of the democratic societies
making up the Council of Europe. The object and purpose of the
Convention as an instrument for the protection of individual human
beings require that Article 2 be interpreted and applied so as to
make its safeguards practical and effective (see, among many other
authorities, Anguelova v. Bulgaria, no. 38361/97, §
109, ECHR 2002 IV).
- The
Court reiterates that the first sentence of Article 2 § 1
enjoins the State not only to refrain from the intentional and
unlawful taking of life, but also to take appropriate steps to
safeguard the lives of those within its jurisdiction (see L.C.B.
v. the United Kingdom, 9 June 1998, § 36, Reports 1998-III;
Osman v. the United Kingdom, 28 October 1998, § 115,
Reports 1998 VIII; and Paul and Audrey Edwards,
no. 46477/99, § 71, ECHR 2002 II).
- In
the light of the importance of the protection afforded by Article 2,
the Court must subject deprivations of life to the most careful
scrutiny, taking into consideration not only the actions of State
agents but also all the surrounding circumstances. Persons in custody
are in a vulnerable position and the authorities are under a duty to
protect them. Consequently, where an individual is taken into custody
in good health and is found to be injured on release, it is incumbent
on the State to provide a plausible explanation of how those injuries
were caused (see, among other authorities, Selmouni, cited
above, § 87). The obligation on the authorities to account for
the treatment of an individual in custody is particularly stringent
where that individual dies (see Keenan v. the United Kingdom,
no. 27229/95, § 91, ECHR 2001 III, and Salman
v. Turkey [GC], no. 21986/93, §99, ECHR 2000-VII).
- In
assessing evidence, the Court has generally applied the standard of
proof “beyond reasonable doubt” (see Ireland v. the
United Kingdom, 18 January 1978, § 161, Series A no.
25). However, such proof may follow from the coexistence of
sufficiently strong, clear and concordant inferences or of similar
unrebutted presumptions of fact. Where the events in issue lie
wholly, or in large part, within the exclusive knowledge of the
authorities, as in the case of persons within their control in
custody, strong presumptions of fact will arise in respect of
injuries and death occurring during such detention. Indeed, the
burden of proof may be regarded as resting on the authorities to
provide a satisfactory and convincing explanation (see Salman,
cited above, § 100, and also Çakıcı,
cited above, § 85, and Ertak v. Turkey, no.
20764/92, § 32, ECHR 2000-V).
- The Court also considers it necessary to reiterate the
principles which govern the authorities' duty to investigate deaths
occurring in the State's custody or as a result of use of force (see
Nikolova and Velichkova v. Bulgaria, no. 7888/03,
§ 57, 20 December 2007):
(a) Article
2 imposes a duty on the State to secure the right to life by putting
in place effective criminal law provisions to deter the
commission of offences against the person, backed up by
law enforcement machinery for the prevention, suppression and
punishment of breaches of such provisions (see Osman, cited
above, § 115; Mastromatteo v. Italy [GC], no.
37703/97, §§ 67 and 89, ECHR 2002 VIII; and
Menson v. the United Kingdom (dec.), no. 47916/99, ECHR
2003 V).
(b) Compliance
with the State's positive obligations under Article 2 requires the
domestic legal system to demonstrate its capacity to enforce criminal
law against those who have unlawfully taken the life of another (see
Nachova and Others v. Bulgaria [GC], nos. 43577/98 and
43579/98, § 160, ECHR 2005 VII).
(c) The
effective investigation required under Article 2 serves to maintain
public confidence in the authorities' maintenance of the rule of law,
to prevent any appearance of collusion in or tolerance of unlawful
acts, to secure the effective implementation of the domestic laws
which protect the right to life and the right not to be subjected to
ill treatment and, in those cases involving State agents or
bodies, to ensure their accountability for deaths occurring under
their responsibility (see, among many other authorities, McKerr v.
the United Kingdom, no. 28883/95, §§ 111 and 114, ECHR
2001 III; and Paul and Audrey Edwards, cited above, §§
69 and 72).
(d) The requirements of Article 2 go beyond the stage of
the official investigation, where this has led to the institution of
proceedings in the national courts: the proceedings as a whole,
including the trial stage, must satisfy the requirements of the
positive obligation to protect lives through the law. While there is
no absolute obligation for all prosecutions to result in conviction
or in a particular sentence, the national courts should not under any
circumstances be prepared to allow life-endangering offences to go
unpunished (see, mutatis mutandis, Öneryıldız
v. Turkey [GC], no. 48939/99, § 96, ECHR 2004 XII;
Okkalı v. Turkey, no. 52067/99, § 65, ECHR
2006 XII; and Türkmen v. Turkey, no. 43124/98,
§ 51, 19 December 2006).
(e) A
requirement of promptness and reasonable expedition is implicit in
this context (see Yaşa v. Turkey, 2 September 1998, §§
102-04, Reports 1998-VI; Çakıcı v. Turkey
[GC], no. 23657/94, §§ 80, 87 and 106,
ECHR 1999-IV; Tanrıkulu v. Turkey [GC], no.
23763/94, § 109, ECHR 1999 IV; and Mahmut Kaya v.
Turkey, no. 22535/93, §§ 106-07, ECHR 2000-III). 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 Kelly and Others v. the United Kingdom, no.
30054/96, §§ 96-97, 4 May 2001, and Anguelova,
cited above, § 139).
(b) Application of the general principles
in the present case
(i) Concerning the procedural obligation
under Article 2 of the Convention
- Turning
to the circumstances of the instant case, the Court notes that the
applicant's son died in the State's custody, in the Tychy Sobering-Up
Centre, on 28 August 1999. Following this incident the public
prosecutor ordered that a post-mortem examination be conducted,
witnesses be interviewed and other investigative steps be taken. The
investigation into Hubert Mojsiejew's death was opened on 30 August
1999 and concluded on 11 December 2000, when the prosecutor
indicted four employees of the centre for unintentional homicide (see
paragraphs 10 and 18 above). The applicant took part in the
investigation and appealed against the prosecutor's decision to
terminate the investigation. Following the indictment, the trial
court remained practically inactive during 2001 and 2002; thus, the
trial started on 17 April 2003, over two years after the bill of
indictment had been submitted to the court. After a single hearing on
the latter date the trial court adjourned two subsequent hearings
scheduled for 9 June 2003 and 24 February 2004. It remained
inactive between these dates. The applicant was examined for the
first time at the next hearing held on 10 May 2004, almost five
years after the events of 28 August 1999. In spite of this
extraordinary delay, and notwithstanding the particularly serious
subject matter of the case, the court displayed only limited activity
up until 10 December 2004, when it started holding hearings at
regular intervals (see paragraphs 20–23 above).
- The
circumstances of the case show that there were a number of other
delays, in particular between 4 April 2006 and 23 January 2007, while
the trial court waited for an expert opinon to be prepared by the
Wrocław Medical Academy. In the context of the case, which
required promptness, this period should be considered substantial, in
particular since there is no appearance that the court took any
action to discipline the experts. The trial court failed to examine
these experts, although they came to important conclusions regarding
the cause of Hubert Mojsiejew's death, a shortcoming which was the
major ground for the quashing of the judgment by the Regional Court
on 13 November 2007. Lastly, the Court notes that the case has again
been pending before the Tychy District Court since 13 November 2007
and no judgment has been delivered yet. In consequence, four
employees of the centre were charged with unintentional homicide;
however, only at first instance were they convicted of having exposed
Hubert Mojsiejew to an immediate danger of loss of life, and
sentenced to two years' imprisonment, suspended for two years.
- Moreover,
it appears from the expert's and the District Court's findings that
the failure to examine Hubert Mojsiejew's body at the place where it
had been found made it impossible for the experts to establish the
time of his death, a circumstance which in the present case might
have had a decisive impact on establishing the personal
responsibility of each of the accused (see paragraphs 24 and 28
above).
- Regard
being had to the overall length of the period which has elapsed since
the death of the applicant's son and other shortcomings discerned
above, the Court is of the view that it cannot be said that the
procedures applied in order to elucidate the applicant's allegations
that the State had been responsible for the death of Hubert Mojsiejew
resulted in an effective examination into the cause of death in the
present case.
- The
Court concludes that the authorities did not take the measures
required in the circumstances of the case and they failed to carry
out a prompt and effective investigation into the circumstances
surrounding Hubert Mojsiejew's death.
There
has therefore been a procedural violation of Article 2 of the
Convention. It follows that the Government's preliminary objection
based on the premature nature of the application (see paragraphs 40
and 43 above) must be dismissed.
(ii) Concerning the alleged responsibility
of the State for the death of Hubert Mojsiejew
- It
is undisputed that Hubert Mojsiejew died in the Tychy Sobering Up
Centre, and thus in the custody of the State authorities. The parties
disagreed on the issue whether Mr Mojsiejew's death was merely a
tragic incident or an intentional killing by agents of the State
(see paragraphs 44 and 46 above).
- It
appears from the facts, in so far as they had been established by the
domestic authorities, that Hubert Mojsiejew was arrested by the
police and taken to the Tychy Sobering-Up Centre in good health,
without pre existing injuries or obvious illnesses. He was under
the influence of alcohol. At about 9 a.m. on 28 August 1999 he
was found dead in a room in which he had been immobilised by belts
four hours before. The only injury established by experts was an
internal injury to the soft tissues of his neck. The cause of Hubert
Mojsiejew's death was asphyxiation. As regards the origin of Hubert
Mojsiejew's internal injuries to his neck the Court notes that two
groups of experts advanced different hypotheses. The first one,
submitted by the Śląska Medical Academy, considered that
the immobilising belt across Mr Mojsiejew's back could have been tied
too tight, limiting his breathing and leading to his asphyxiation.
The second medical opinion prepared by the Wrocław Medical
Academy provided another explanation, noting that there had been no
detection of any injury which could indicate that substantial
pressure had been exerted on the area where the chest belt had been
tied. They considered that Hubert Mojsiejew had been held in a
headlock, probably while somebody had been tying him up with the
belts, which could explain the injuries to his neck that had led to
his death.
- The
criminal proceedings against the employees of the centre are pending
before the domestic authorities and the issue of their guilt is a
matter for the jurisdiction of the Polish criminal court alone (see
Avşar v. Turkey, no. 25657/94, § 404, ECHR
2001 VII (extracts), and Nikolova and Velichkova, cited
above, § 61). However, whatever the outcome of the domestic
proceedings, the conviction or acquittal of the centre's employees
does not absolve the respondent State from its responsibility under
the Convention (see Ribitsch v. Austria, 4 December 1995,
§ 34, Series A no. 336).
- As
in other cases regarding death in custody, the burden rests on the
State to provide a satisfactory and plausible explanation of how
Hubert Mojsiejew's death was caused (see Hugh Jordan v. the
United Kingdom, no. 24746/94, § 113, ECHR 2001 III).
- In
this connection the Court notes that the Government considered that
Hubert Mojsiejew's death was a tragic event and referred to the
criminal proceedings which would establish the criminal
responsibility of each of the accused. Such an account can hardly be
considered a satisfactory explanation of the injuries and death of
Hubert Mojsiejew in the Tychy Sobering-Up Centre. In the particularly
grave circumstances of the case, in which the applicant's son died
under the exclusive control of the Polish authorities, the obligation
on the Government to provide plausible explanations was particularly
stringent.
Moreover,
the Court considers that the Government's explanations should have
been provided within a reasonable time. Postponing them further until
the resolution of the criminal case, even though over nine years have
elapsed since the events in question, shows that the State is unable
to provide a plausible explanation in the present case and to satisfy
the burden of proof.
The
Government also failed to provide a convincing explanation as to
whether the centre's employees had carried out periodic checks on
Mr Mojsiejew and had complied with domestic regulations aimed at
protecting the health and life of persons admitted to sobering-up
centres, particularly those immobilised by belts (see paragraph 34
above, and contrast Douglas-Williams v. the United Kingdom (dec.),
no. 56413/00, 8 January 2002).
- The
Court's examination of whether the circumstances of a case engage the
State's responsibility under the material limb of Article 2 of the
Convention can be precluded by an ongoing investigation before the
domestic authorities. However, it has already established that there
had been serious delays and shortcomings in the investigation and the
judicial stage of the proceedings, giving rise to the finding that
the authorities failed to carry out a prompt and effective
investigation into the circumstances surrounding Hubert Mojsiejew's
death (see paragraph 58 above). The Court reiterates that, on that
account, the applicant is dispensed from awaiting the conclusion of
the proceedings and her application cannot therefore be considered
premature.
At
the same time the Court would emphasise that its decision is limited
to the circumstances of this case and must not be interpreted as a
general statement to the effect that a criminal investigation and
trial is never a remedy which must be used in the event of an
allegation of death or ill treatment of an individual within the
custody of the State (see Selmouni, cited above, § 81).
Consequently,
this part of the Government's preliminary objection based on the
premature nature of the application should also be rejected.
- Having
regard to the overall length of the period which has elapsed since
the death of the applicant's son and also to the conclusion above
that the Government failed to satisfy the burden of proof lying on
them to provide a satisfactory and convincing explanation as regards
Hubert Mojsiejew's death, the Court finds that he was deprived of his
life in circumstances engaging the responsibility of the respondent
State under the Convention.
There
has accordingly been a substantive breach of Article 2 of the
Convention on account of Hubert Mojsiejew's death.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 51,198 Polish zlotys (PLN) in respect of pecuniary
and PLN 400,000 in respect of non-pecuniary damage.
- The
Government contested those claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore dismisses this claim.
On the other hand, it awards the applicant 20,000 euros (EUR) in
respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant, who was represented by a lawyer and was granted legal aid
from the Council of Europe, did not claim reimbursement of any costs
and expenses.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Joins to the merits the Government's preliminary
objection that the application is premature and declares the
application admissible;
- Holds that there has been a violation of
Article 2 of the Convention in that the authorities failed to
carry out a prompt and effective investigation into the circumstances
of Hubert Mojsiejew's death;
- Holds that there has been a substantive
violation of Article 2 of the Convention in respect of the death of
Hubert Mojsiejew;
- In consequence of the above dismisses the
Government's preliminary objection;
- Holds
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the
Convention, EUR 20,000 (twenty thousand euros), plus any tax that may
be chargeable, in respect of non-pecuniary damage, to be converted
into Polish zlotys at the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 24 March 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy
Registrar President
