CICHOŃ v. POLAND
Inadmissible
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva
1. The applicant, Ms Justyna Cichoń, is a Polish national, who was born in 1972 and lives in Plewiska. She was represented before the Court by Mr A. Zielonacki, a lawyer practising in Poznań. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska of the Ministry of Foreign Affairs. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. In 2007 the applicant’s mother, who was born in 1943, bought an apartment from I.K. Shortly afterwards serious technical flaws in the apartment came to light. The applicant’s mother intended to institute civil proceedings against the seller for compensation. 4. She became depressed as a result of the substantial pecuniary loss she had suffered because of the transaction, which she considered fraudulent. In June 2007 she attempted to commit suicide. She was admitted to hospital on 28 June and discharged on 3 July 2007. The hospital records indicate that she was diagnosed with “a depressive reaction”. 5. On 9 August 2007 I.K. informed the prosecuting authorities that the applicant’s mother had phoned her and uttered threats against her. She had allegedly told I.K. that she would kill her as she had ruined her life by selling her a worthless apartment which she had paid for with her life savings. On the same day I.K.’s father was questioned. He confirmed that the applicant’s mother had uttered threats against I.K. 6. The case file contains a note drawn up by the police and dated 9 September 2007 to the effect that a police officer tried to serve a summons for questioning on the applicant’s mother at G. Street, but to no avail. He was informed by persons living at that address that she had sold that apartment. 7. By a bill of indictment dated 25 September 2007 the Gostyń District Prosecutor charged the applicant’s mother with the offence of uttering threats. The bill was subsequently lodged with the Gostyń District Court. 8. On 1 October 2007 the Gostyń District Court ordered, having regard to the applicant’s mother’s attempt to commit suicide, that a psychiatric expert opinion be prepared on the question of whether she could be held criminally responsible. 9. On 11 October 2007 the Gostyń District Court appointed a legal-aid lawyer to represent the applicant’s mother in the proceedings. On the same day the entire criminal case file was forwarded to the psychiatric clinic that was to carry out the psychiatric examination of the defendant. 10. Subsequently, by letters dated 15 and 20 October one of the experts at the clinic sent summonses to the applicant’s mother at the address at G. Street where she no longer lived (see paragraph 9 above) for examinations to be carried out at the clinic on 24 October and 7 November 2007. The summonses were not served either on her or on any member of her family. The service confirmation slips (potwierdzenie odbioru) were not returned either to the court or to the experts. 11. On 19 November 2007 one of the experts informed the Gostyń District Court by phone that the applicant’s mother had twice failed to attend the psychiatric examination on the dates fixed. On 22 November 2007 the experts informed the court in writing of the applicant’s mother’s failure to attend the examination. They requested the court to arrange for her to be taken to the clinic under police escort for the examination on 30 November 2007. 12. On 22 November 2007 the court, having regard to the applicant’s mother’s failure to comply with the summonses and being unaware of the fact that they had not been served on her, ordered the police to arrest her and escort her to the clinic for the purposes of the examination. 13. At 6.30 a.m. on 30 November 2007 the applicant’s mother was arrested by two police officers at her correct address at O. Street. She was subsequently escorted to the clinic. She was examined by two psychiatrists several hours later and discharged on the same day. 14. On 2 December 2007 the applicant’s mother was found dead in a basement of her house. She had committed suicide by hanging herself. 15. In a psychiatric opinion dated 3 December and served on the court on 6 December 2007, psychologist M.K.S. and psychiatrist T.J. summarised the interview held with the applicant’s mother on 30 November 2007. They noted that she had not had psychotic symptoms and had not reported suicidal thoughts or tendencies. They diagnosed her as suffering from an adjustment disorder (zaburzenia adaptacyjne). The experts further declared that at the material time she had been able to understand the significance of her actions and that, regard being had to her general mental health, she was fit to stand trial. 16. On 6 December 2007 the Gostyń police discontinued an investigation concerning a suspicion that third parties might have assisted the applicant’s mother in committing suicide, having regard to the opinion of the doctor who had declared her dead that there was no indication that any third parties had been involved. The decision concluded that the most likely cause of the suicide was nervous breakdown (załamanie nerwowe). 17. On 18 March 2008 the applicant requested the Poznań Appellate Prosecutor to verify whether the investigation and proceedings in respect of her mother had been conducted properly. She submitted that the attempted suicide in June 2007 and her fragile mental state should have prompted the authorities to conduct the proceedings with particular diligence. Instead, summonses had twice been sent by psychiatrists to the wrong address and they had never been served on her. The court had ordered that she be arrested and taken to the psychiatric clinic. She had been seriously traumatised by the arrest, as indicated by the fact that she had committed suicide on the day after the examination. 18. That complaint was forwarded to the President of the Poznań Regional Court, who replied on 21 April 2008. The relevant part of his letter reads: “It is true that the experts, apparently by mistake, sent the summonses to the wrong address, but the court was not aware of this and that is why it ordered that she should be escorted to the examination [by the police]. There are no grounds on which to conclude that the court’s decision was wrong, but there can be no doubt that it was based on a wrong premise [nie ma zatem podstaw do przyjęcia, że postępowanie sądu było błędne, natomiast niewątpliwie opierało się na błędnych przesłankach].” 19. On 22 September 2008 the applicant requested the Poznań Regional Prosecutor to institute a criminal investigation in order to identify the persons responsible for her mother’s arrest which, in her opinion, had led to her suicide. She submitted that her mother had already tried to commit suicide in June 2007; that at the material time her mental condition had been precarious; and that the psychiatrists had sent the summonses to the wrong address despite the fact that the correct address had been available in the file. The judge had also failed to check whether the summonses had been sent to the correct address and whether they had been duly served on her. As a result, she had been arrested by the police in the early hours of 30 November. Her neighbours had told the applicant that during the arrest her mother had been crying. The applicant submitted that her mother had been an elderly, fragile person on the brink of a nervous breakdown and that the manner in which the case had been handled had driven her to commit suicide. 20. On 13 October 2008 the request was forwarded to the Gostyń District Prosecutor. 21. On 18 November 2008 the Gostyń District Prosecutor refused to institute an investigation, having examined the case under Articles 231 and 151 of the Criminal Code (see paragraphs 31-33 below). It was confirmed that the summonses to attend the psychiatric examination had twice been sent to the wrong address and had never been served on the applicant’s mother. The prosecutor was of the view that the court could not be held responsible for that error. It had not known the defendant’s correct address as the entire case file had already been forwarded to the experts at that time. The applicant’s submission that there was a causal link between the defendant’s arrest on 30 November 2007 and her suicide two days later was too categorical. There were no grounds on which to accept that the prosecuting authorities, the police or the court had failed to perform their duties properly or that the applicant’s mother had been driven to suicide as a result of such failure. 22. The written grounds of that decision did not refer to any evidence other than the file of the criminal case against the applicant’s mother. 23. The applicant appealed. She argued that her mother had suffered from depression caused by the transaction she considered fraudulent and that the authorities had been well aware of this. The court had relied on her earlier attempt to commit suicide when ordering the psychiatric examination. Appropriate regard had not been had to the fact that she was psychologically fragile. The authorities had failed to conduct the criminal case against her properly. No steps had been taken by the court to establish her correct address, although it had been available in the case file, in order to serve the summonses correctly. As a result of that failure, her mother had been arrested on 30 November 2007. The arrest had been tremendously traumatic for her. In the applicant’s opinion, the fact that her mother had committed suicide just after the examination was proof that the opinion prepared by the experts after her death to the effect that she was fit to stand trial was worthless. 24. On 13 March 2009 the Leszno District Court examined the appeal. The applicant did not attend the hearing. In a decision rendered on the same day the District Court dismissed the appeal. The relevant parts of the written grounds of this decision, numbering one-and a half page read as follows: “The appellant’s submission that there was a well-founded suspicion that a criminal offence had been committed could not be shared [by the court] in respect of: - the prosecutor, because ... he had a right to draw up a bill of indictment within fourteen days of the investigation being closed and he did so in the present case; - the judge conducting the proceedings, as he was entitled to appoint psychiatrists to the case with a view to checking whether the defendant could stand trial and to order that the defendant be taken to the psychiatric examination under police escort; he did so as he had been informed in writing that the defendant had twice failed to comply with summonses; - the experts in so far as they failed to foresee that [the applicant’s mother] would make another suicide attempt, this time a successful one, as they gave their opinion in accordance with their best knowledge and conscience; ... It is true that the police escort order given by the court failed to take into consideration that the experts had sent the summonses to the wrong address, but the court could not know that, given that at the time the case file had already been forwarded to the experts. This, however, cannot change the assessment of the events from the point of view of criminal responsibility, in particular as to the presence of a causal link between the [applicant’s mother] being taken to the examination by police escort and her subsequent attempt to commit suicide.” 25. Subsequently the applicant requested the Regional Agent for Disciplinary Matters (Okręgowy Rzecznik Odpowiedzialności Zawodowej) of the Wielkopolska Chamber of Physicians (Izba Lekarska) to institute disciplinary proceedings against the psychiatrists. By a decision of 18 December 2009 the Agent discontinued the investigation, having questioned the psychiatrists. He referred to the fact that the service confirmation slips sent to the applicant’s mother had not been served on the psychiatrists. This suggested that the summonses had been properly served on her. As she had failed to comply with the summonses, they had no choice but to inform the court accordingly. The defendant had subsequently been arrested by the police for the purposes of the examination. The psychiatrists had explained that the defendant’s conduct during the examination was not such as to justify her immediate psychiatric internment. Their opinion had therefore been well-founded and they had no case to answer. 26. The applicant appealed. She reiterated that information about her mother’s accurate address had been in the case-file which the psychiatrists had had at their disposal. They had failed to act diligently by establishing her address correctly. They were aware of her earlier attempt to commit suicide but still they had found her able to stand trial. She reiterated that the arrest and taking her to the clinic under the police escort were traumatising and dishonourable for her mother who felt belittled thereby in the eyes of her friends and neighbours. 27. By a decision of 6 February 2010 the Regional Court for Disciplinary Matters of the Wielkopolska Region (Okręgowy Sąd Lekarski), sitting in camera, upheld the contested decision. It was of the view that the fact that the psychiatrists had sent the summonses to the wrong address amounted to a formal shortcoming, but it did not have an impact on or had not caused the later tragic events. Similarly, in so far as the applicant had complained about her mother’s arrest by the police, this could not be held against the doctors. The arrest had been ordered by the court in the context of the criminal proceedings, not by the doctors. It was further stated that the psychiatric opinion drawn up by the two psychiatrists was correct, and the diagnosis they had made not open to criticism. 28. Article 151 of the Criminal Code reads: “Whoever by persuasion or by rendering assistance induces a human being to take his or her life shall be subject to the penalty of the deprivation of liberty for a term of between 3 months and 5 years.” 29. Article 231 of that Code provides: “§ 1. A public official who, exceeding his authority or failing to perform his or her duty, acts to the detriment of a public or individual interest, shall be subject to the penalty of deprivation of liberty for up to 3 years. § 2. If the perpetrator commits the act specified in § 1 with the purpose of obtaining financial or personal gain, he or she shall be subject to the penalty of deprivation of liberty for a term of between 1 and 10 years. § 3. If the perpetrator of the act specified in § 1 above acts unintentionally and causes substantial damage, he or she shall be subject to a fine or restriction of personal liberty or deprivation of liberty for a period not exceeding 2 years.“ 30. The Supreme Court, in a decision of 25 February 2003 (WK 3003), held that only a public official acting intentionally and with intent to act to the detriment of the victim could be charged with the offence stipulated in Article 231 § 1 of the Criminal Code.