CASE OF MOJSIEJEW v. POLAND
Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 2 (procedural aspect);Violation of Art. 2 (substantive aspect);Non-pecuniary damage - award;Pecuniary damage - claim dismissed
David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
5. The applicant was born in 1951 and lives in Bojszowy, Poland. 6. On 28 August 1999 the applicant’s elder son, Hubert Mojsiejew, died at the age of twenty-five in the Tychy SoberingUp Centre (Izba Wytrzeźwień), where he had been detained at 4.50 a.m. that day. 7. 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. 8. 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. 9. 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.” 10. 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. 11. 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 soberingup 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 soberingup 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. 12. 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. 13. 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. 14. On 14 March 2000 the Tychy District Prosecutor allowed the applicant’s appeal of 18 January 2000 and resumed the investigation. 15. 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. 16. 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. 17. 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. 18. 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. 19. The applicant requested to join the proceedings as an auxiliary prosecutor. 20. 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. 21. 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. 22. The Tychy District Court held its next hearing on 10 December 2004 and examined some witnesses. 23. In 2005 the trial court held eleven hearings in total and scheduled them at regular intervals. 24. 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.” 25. 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. 26. 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 soberingup 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. 27. 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. 28. 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. 29. 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. 30. The accused and the applicant appealed against the judgment. 31. 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. 32. 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. 33. 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.” 34. 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.”