CASE OF FRANČIŠKA ŠTEFANČIČ  v. SLOVENIA
Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)
Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque
5. The applicant was born in 1933 and lives in Ajdovščina. She is the mother of Branko Štefančič, born in 1961. Mr Štefančič suffered from paranoid schizophrenia and depression and had been admitted to the Idrija Psychiatric Hospital on several occasions. In 2007 he lodged an extensive criminal complaint, alleging that he had suffered various injustices at the hands of his work colleagues, acquaintances, the police and other organisations. Upon examining the complaint, the Nova Gorica State Prosecutor’s Office decided not to pursue it. In June 2008 Mr Štefančič started to telephone the Prosecutor’s Office and go there in person on an almost daily basis. He made various delusional accusations regarding murders that had gone unpunished “since the age of Christ”. 6. On 19 June 2008 Mr Štefančič appeared at the Nova Gorica State Prosecutor’s Office, and was told by the receptionist that the office was closed that day. He replied that he would come back the next day, armed, and that nobody would be able to hide from him. Having been told about Mr Štefančič’s threats, the Head of the Nova Gorica State Prosecutor’s Office, B.O., telephoned the Idrija Psychiatric Hospital and told the staff what had happened. She was told that Mr Štefančič was mentally ill and had already been treated in the hospital several times. She was further advised to contact the Ajdovščina Community Health Centre and suggest that a referral be made for Mr Štefančič’s involuntary confinement. In addition, B.O. was warned by Mr Štefančič’s consulting psychiatrist that over the past few weeks his patient had threatened to kill several people, including his doctor, mother and sisters. In view of this, the psychiatrist had assessed that Mr Štefančič was dangerous and in need of treatment, and added that he should be taken seriously due to his physical strength. B.O. also called the Nova Gorica police and told them about Mr Štefančič’s visits to the Prosecutor’s Office. 7. At 5.30 p.m. a doctor from the health centre telephoned the Ajdovščina police station to request police assistance with Mr Štefančič’s involuntary confinement on the grounds that he could become aggressive. She later took the request for his police-assisted transport and the order for his confinement to the police station in person. 8. At 5.55 p.m. the duty officer submitted the request to the commander of the police station, who granted it immediately. 9. At 6 p.m. officer J.T. from the Ajdovščina police station set off to the applicant’s house and found her son, who was living there, at home. He informed officers at the Nova Gorica police communications centre, and they informed the health centre staff that they could proceed with the involuntary confinement. Police officer J.T. remained at the scene until health centre medical staff consisting of B.A., the doctor on duty, and S.M. and I.P., medical technicians, arrived. Also sent to the scene were D.K., a second officer from the Ajdovščina police station, police officer dog handler J.K., and two traffic officers of the Nova Gorica traffic police. 10. According to the police report of 31 July 2008 based on the statements made by the police officers and medical staff, upon their arrival at around 8 p.m. the police officers and medical technicians first talked to the applicant, who was sitting on a bench at the back of her house. They asked her whether her son was in the house and whether he was armed. She replied that her son was indeed in the house and was on the telephone. She further explained that she was not aware of him possessing any firearms. The medical team informed the applicant why they were there and then entered the house, while the police officers remained at the front door. 11. Dr B.A. informed Mr Štefančič that they were going to take him to a psychiatric hospital, but he refused to go with them. The medical team attempted to persuade him, but he became agitated and verbally aggressive. The police officers warned him that he would be taken to the hospital by force if he refused to go of his own free will. 12. The medical technicians attempted to take hold of Mr Štefančič’s arms, but he pushed them off and started to scream. Dr B.A. then instructed the police officers to handcuff him, but when J.T. and D.K. attempted to restrain him, he resisted forcefully and pushed them off. In response, the police officers used physical force in order to push him to the ground, and J.K. ordered a muzzled dog on a leash to jump at him. As Mr Štefančič did not seem to react to the dog jumping at his chest, J.K. took it back to the police car. J.T. and D.K. meanwhile continued to use physical force and managed to wrestle Mr Štefančič to the ground onto his back. 13. The two police officers were then joined by dog handler J.K., who used the “rear chokehold” technique on Mr Štefančič. Together they managed to put him into the recovery position and medical technician S.M. injected Haldol (an antipsychotic drug with tranquilising effects) into his buttocks. As Mr Štefančič continued to resist, they could not administer the full dose of medication to him. The police officers then turned him onto his stomach, and J.T. handcuffed his hands behind his back. Medical technician I.P. injected him with Akineton, medication used on psychiatric patients to reduce the tremors caused by antipsychotic drugs. 14. Mr Štefančič calmed down as soon as he received the second dose of medication. A few moments later, the police officers and medical technicians noticed that there was a brown palm-sized pool of liquid under his head. They alerted Dr B.A., who established that Mr Štefančič had vomited and assessed that it could have been attributed to exertion. However, when one of the medical technicians checked Mr Štefančič again, he detected an irregular heartbeat, and again called out to the doctor. The medical team began to resuscitate him at 8.10 p.m. The police officers attempted to unlock his handcuffs, but only managed to free one of his hands, before the key broke. 15. The applicant, who was waiting outside during the intervention, was heading to the front of the house when she heard loud noises and a dog barking. When she approached the front door, she saw Dr B.A. massaging her son’s chest. She asked the police officers what was going on, to which one of them replied that they were resuscitating her son. Another ambulance arrived at the scene at 8.42 p.m., and an electrocardiogram was performed on Mr Štefančič, but to no avail. At 8.45 p.m. Dr B.A. pronounced him dead. He attributed the death to a heart attack or stroke. 16. Immediately after Mr Štefančič’s death, the officers from the Ajdovščina police station notified the Nova Gorica police communications centre of the incident and secured the area. The duty State prosecutor and the duty investigating judge of the Nova Gorica District Court were also notified of the death. The investigating judge attended the scene and ordered a forensic examination of the body. The medical file and equipment used in his resuscitation were also seized. 17. On 20 June 2008 police officers D.K., J.T. and J.K. made records of the methods of restraint they had used on Mr Štefančič (physical force, handcuffs and the police dog), which were confirmed by their superior officers to have been lawful. 18. In the days after the incident, an officer of the Nova Gorica police took statements from the police officers and medical staff involved in the incident, as well as from the applicant. 19. The applicant stated that on the evening of 19 June 2008 several police cars and an ambulance drove to the house and an officer asked her whether her son was keeping firearms. She replied that he was not, as far as she was aware. The applicant remained outside during the intervention and could not remember exactly how the events unfolded. She heard screaming, but was afraid to go inside. Sometime later she looked into the hallway and saw her son lying on the floor, surrounded by Dr B.A. and the medical technicians. She asked them what was going on, and they replied that they were resuscitating her son. She noticed that he had vomited. 20. D.K. and J.T., police officers, stated that upon entering the house, Mr Štefančič, who appeared to be talking on the telephone, told the medical technicians that he would not go with them, and D.K. and J.T. then warned him that they would use force if necessary. Dr B.A. also tried to convince him to go with them without success and he then instructed the officers to handcuff him. D.K. and J.T. took him by the arms to lead him to the ambulance but he resisted strongly. Dog handler J.K. attempted to calm him down by ordering the police dog to jump at him but Mr Štefančič did not react to the dog’s attack. The officers struggled to wrestle him to the ground and eventually succeeded in pushing him to the ground on his back; they then turned him onto his stomach, but he continued to resist forcefully. Dog handler J.K. then used the so-called “rear chokehold” technique on him, and together they managed to turn him onto his side. One of the medical technicians then administered the first dose of medication to him, whereupon he was again turned onto his stomach and handcuffed with his hands behind his back. The second dose of medication was then administered to him and he calmed down. 21. After Mr Štefančič received the second dose of medication, D.K. noticed a brown palm-sized pool of liquid under his head. Somebody mentioned that it was vomit and D.K. then asked if that was right. Dr B.A. was on the telephone arranging for Mr Štefančič’s transport to the psychiatric hospital but upon hearing D.K.’s question checked Mr Štefančič and said that the vomiting was due to exertion. J.T. confirmed that Dr B.A. initially said that Mr Štefančič was okay and vomited from exertion but added that the doctor did not check Mr Štefančič’s pupils or pulse. Then one of the medical technicians looked at Mr Štefančič again and checked his pulse. He called out to the doctor, saying that something was not right as he was breathing irregularly. Officer J.T. then attempted to unlock the handcuffs, and managed to get the one on his right hand off before the key broke. The medical staff started to resuscitate him. The whole incident, from the beginning of the police intervention until the beginning of the resuscitation procedure, only lasted a few minutes, five at the most. 22. J.K., a police dog handler, confirmed that he had first joined the intervention by ordering the police dog, which was muzzled, to jump at Mr Štefančič, who, however, made no attempt to shake the dog off or to withdraw from the attack. Therefore J.K. took the dog back to his car and then returned to the house, where officers D.K. and J.T. were not able to turn Mr Štefančič onto his stomach. J.K. helped them by holding him in a rear chokehold and together they managed to turn him onto his stomach and handcuff him. As this was going on, one of the medical technicians injected medication into his buttocks. J.K. also confirmed his colleagues’ accounts as to how the resuscitation of Mr Štefančič proceeded after it was discovered that he had vomited. 23. I.P., a medical technician, stated that on his arrival, he first asked the applicant a few questions and then entered her house with his colleague S.M. According to both medical technicians, Mr Štefančič pretended to be speaking on the telephone. I.P. explained to him that he was being taken to the psychiatric hospital to see a psychiatrist. Mr Štefančič refused to go and Dr B.A. ordered him to be handcuffed. As regards the events that ensued concerning the use of force by the police officers, I.P.’s statement matched the statements of police officers D.K., J.T. and J.K. (see paragraphs 2022 above), while S.M. did not pay much attention to the police operation, as he was preparing a syringe of Haldol. 24. As soon as the police officers managed to wrestle Mr Štefančič to the ground and turn him onto his side, S.M. injected him with Haldol. S.M. added that because Mr Štefančič forcefully resisted, he could not administer the full dose of medication to him. He then left the house. While the police officers turned Mr Štefančič onto his stomach, I.P. administered the second injection into his buttocks and he calmed down. I.P. then noticed that he was not breathing or was struggling to breathe. As far as he could remember, he called out that Mr Štefančič was not breathing. Dr B.A. approached him and saw him take a breath, concluding that he was breathing. S.M., standing outside, stated that he had not seen when and how Mr Štefančič had started to vomit, but heard the exchange between his colleague and Dr B.A. The doctor then left the house and started to arrange Mr Štefančič’s transport to the hospital. I.P. checked Mr Štefančič again and exclaimed that he was not breathing. Together with the police officers they turned Mr Štefančič onto his back and I.P. noticed that he was cyanotic. He also noticed traces of vomit on Mr Štefančič’s face, so he first protected his airways. The police officers had by then removed the handcuffs from him. His colleague S.M., who confirmed that Mr Štefančič looked grey and had traces of vomit on his face, fetched the resuscitation kit from the ambulance. Together with Dr B.A. they had intubated him; however, even at the beginning of resuscitation, his pupils were dilated, which was also a bad sign. I.P. also stated that the whole incident, from the use of physical force on Mr Štefančič until the beginning of the resuscitation procedure, only lasted a few minutes, five at the most. I.P.’s account was confirmed in substance by traffic officer M.D., who together with his colleague A.K. guarded the back entrance to the applicant’s house and thus only heard part of the incident. 25. Medical technician S.M. expressed the view that the police officers might have used excessive force in dealing with Mr Štefančič. He added that though Mr Štefančič had refused to go to the psychiatric hospital, he had not been particularly aggressive, and above all, had not physically attacked anyone. 26. Dr B.A., a general practitioner, stated that Mr Štefančič’s psychiatrist expected that he might behave aggressively so he received instructions to give him an injection of two ampoules of Haldol and one ampoule of Akineton. Although in the beginning of the intervention Mr Štefančič appeared agitated, but not aggressive, he started to resist forcefully when the police officers attempted to handcuff him. 27. According to Dr B.A., after Mr Štefančič was handcuffed and calmed down, he came out of the applicant’s house and started to arrange his transport. One of the police officers then called out to him that something was not right, that Mr Štefančič had vomited and was having trouble breathing. He was immediately turned onto his back. Dr B.A. noticed that Mr Štefančič had turned blue in the face and that he was wheezing. The medical team then started the resuscitation procedure, massaging his heart and intubating him, as well as administering 1 mg of adrenaline and 3 mg of atropine to him. However, as they did not have an electrocardiogram monitor or a defibrillator, another ambulance was called. By the time the second ambulance arrived at 8.42 p.m., they could only establish that Mr Štefančič had died. 28. On 21 July 2008 a criminal investigations officer of the Nova Gorica police obtained an oral preliminary report from the forensic pathologist who had performed the autopsy of Mr Štefančič. According to him, the deceased had most likely died of asphyxiation from inhaling gastric contents (choking on his own vomit). With regard to the question of potential liability for Mr Štefančič’s death, he took the view that the asphyxiation occurred during the police intervention, and that the presence of a doctor could not have altered the course of events. He added that the doctor could only be accused of negligence if the death had occurred during the resuscitation, which in his opinion had not been the case. 29. On 31 July 2008 the head of the Nova Gorica police criminal investigations unit submitted a report of the incident to the Nova Gorica State Prosecutor’s Office. Based on a statement provided by the forensic pathologist who conducted the forensic examination, the report stated asphyxiation from inhaling gastric contents as the cause of Mr Štefančič’s death. As to the events leading to the death, the police report summarised the statements given by the intervention team and stated that Mr Štefančič had resisted the police officers who had tried to take him to the psychiatric hospital, whereupon physical force had been used on him. After Mr Štefančič had been restrained and had calmed down, the police officers and medical technicians had noticed that he had vomited. After Dr B.A. had initially assessed that this could be attributed to exertion, he had been found to have an irregular heartbeat and the medical team had tried to resuscitate him, but to no avail. As regards the question of potential liability for Mr Štefančič’s death, the police report followed the forensic pathologist’s opinion that he had died during the police intervention and that his death could not have been prevented by any medical assistance. The report concluded by saying that no facts had been established giving rise to a suspicion that a criminal offence had been committed in connection with the death of Mr Štefančič which warranted criminal prosecution. 30. On 10 September 2008 the completed forensic report was submitted to the investigating judge of the District Court, confirming asphyxiation from inhaling gastric contents as the immediate cause of Mr Štefančič’s death. In addition to the trauma consistent with the cause of death, the examination revealed a number of blunt injuries to various parts of his body. 31. These included contusions on the outer edge of the shoulder blade, the left of the back and the back of the right thigh, swelling on the right of the hairline and the squamous part of the temporal bone, contusions on the inside of the upper right arm and left forearm and on the front of the left thigh. Several haematomas were recorded around the left shoulder blade, on the outer edge of the right shoulder blade, on the right of the thorax and on the scalp, as well as a pulmonary oedema, an oblique fracture of the fifth rib, bruising around the lumbar spine, and brain swelling. 32. According to the report, these injuries had either been caused by Mr Štefančič’s body being struck by an object, by part of his body being pressed against something, by him falling, or by his body being pressed between two hard surfaces. As regards the injuries to the back of his body, hairline and front left thigh, the forensic pathologist concluded that they had most likely occurred by him falling or falling after being struck, and that the bruises were caused by the body being pulled to the ground. 33. The toxicology report revealed a low concentration of haloperidol (an antipsychotic drug with strong calming effects) in Mr Štefančič’s blood. The forensic report concluded that the substance had been consumed either as a prescription medicine or administered during the intervention in order to calm him down, but could not be linked to his death or identified as the cause of his vomiting. 34. No particularities or disease-related changes had been found in Mr Štefančič’s system which could have directly contributed to his death. 35. With regard to enquiries made by the investigating judge as to whether Mr Štefančič’s death could have been prevented by prompt and adequate medical assistance, the forensic report stated: “Disregarding the particular circumstances surrounding the incident, this question could be answered in the affirmative; however, one cannot neglect the exceptional circumstances in which the incident occurred. Prompt and adequate medical assistance could have saved the life of [Mr Štefančič], even in the event that no ambulance with resuscitation equipment was immediately available. It is likely that [Mr Štefančič] was thrown or pushed to the ground where, prior to being handcuffed, his body was pushed down by applying body weight or some other pressure. [Being struck or pushed in] the stomach most likely induced the vomiting. In so far as the medical staff or the officers assisting them in the involuntary confinement had noticed in due course that [Mr Štefančič] began to vomit, they could have prevented him from inhaling gastric contents either by lifting his body into a vertical position or by turning him onto his side and mechanically clearing his oral cavity by using their fingers or an aspirator (if an aspirator was at the disposal of the medical staff). However, it was not possible to apply any of these measures to an aggressive patient resisting hospitalisation; it is only possible to apply such measures after the patient has calmed down or lost consciousness as a result of disruption in the exchange of gases following the aspiration of gastric contents. Having regard to the agitation and aggressiveness of the patient, as well as the circumstances of the incident, such measures almost certainly could not have been applied. The deceased only lost consciousness when his breathing was disrupted by inhaling massive amounts of gastric contents. Only then was it possible to apply more aggressive medical intervention (mechanical clearing of the oral cavity, suction of gastric contents from the oral cavity and respiratory tract, removal of potentially larger foreign objects and insertion of a tube with a balloon to prevent continuing aspiration of gastric contents, ventilation of the patient), which could not be performed on a conscious person, in particular on an aggressive person, due to the unpleasant feelings such an intervention induces. In the present case, the aspiration of gastric contents was particularly massive and aggressive, which is indicated by the pieces of food found by the histological analysis to be present even in the alveoli, the final branching of the respiratory system. In the present case it was not possible, once the deceased lost consciousness, to apply those methods and to suck the gastric contents from the respiratory passages and alveoli; considering the quantity and force of the aspiration of gastric contents, medical assistance probably would not have saved the life of [Mr Štefančič].” 36. On 18 September 2008 the investigating judge of the Nova Gorica District Court sent the statements of the persons involved in the incident, a record of the examination of the scene, the order for a forensic examination of Mr Štefančič’s body and the forensic report to the State Prosecutor’s Office. 37. On 23 September 2008 the Head of the Nova Gorica State Prosecutor’s Office, B.O., informed the District Court that the conditions had not been met for the institution of criminal proceedings, and that the case file had been archived. 38. On 20 January 2009 the applicant, through her representative, lodged a criminal complaint against police officers J.T., D.K. and J.K., whereby she stated that her son had been strangled and had died as a result of an unnecessary and unprofessional police intervention. The applicant also stated that the forensic report was misleading and there were doubts as to its accuracy. In addition, an anonymous criminal complaint was lodged against E.G., the head of the Nova Gorica uniformed police unit. The complainant alleged that E.G. had abused his position by giving a statement at a press conference in which he had covered up the actual cause of Mr Štefančič’s death in order to prevent criminal prosecution of Dr B.A. 39. After having reviewed the Nova Gorica State Prosecutor’s Office’s case file, on 2 June 2009 a State prosecutor from the Group of State Prosecutors for Special Matters (Skupina državnih tožilcev za posebne zadeve – hereinafter “the Special Matters Group”), which had exclusive jurisdiction over the prosecution of criminal offences committed by police officers, rejected both criminal complaints on the basis of the police and forensic reports and the media reports from the press conference on Mr Štefančič’s death. 40. The decision to reject the criminal complaints summarised the information included in the police and forensic reports, as well as the statements given to the police by Dr B.A. and medical technicians S.M. and I.P. 41. The State prosecutor, relying on the forensic report, concluded that Mr Štefančič’s death could have been prevented if someone had been noticed in time that he had started to vomit. However, in the case in question Mr Štefančič had been aggressive and resisted hospitalisation, and no assistance could be provided until he had calmed down. Therefore, in the State prosecutor’s opinion there was no is reasonable suspicion that the actions of J.T., D.K. and J.K., the three police officers who had restrained Mr Štefančič, constituted a criminal offence. Moreover, as regards the anonymous criminal complaint, the State prosecutor established that, according to the reports in the media, the head of the Nova Gorica uniformed police unit had stated neither that Mr Štefančič had died as a result of being administered sedatives, nor that the medical team had immediately begun resuscitation after his condition had deteriorated. Therefore, no reasonable suspicion existed that E.G. had committed a criminal offence liable to prosecution ex officio. 42. No appeal was available to the applicant against the decision to reject her criminal complaint. However, she could take over the conduct of criminal proceedings as a “subsidiary prosecutor”.