MOLGA v. POLAND
Inadmissible
András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
1. The applicant, Mr Daniel Molga, is a Polish national who was born in 1998 and lives in Radom. He was initially represented before the Court by his mother, and subsequently by Mr T. Rowiński, a lawyer practising in Lublin. 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. The applicant’s father, Mr Włodzimierz Molga (“W.M.”), lived with the applicant’s mother, Ms R.L. 4. The applicant’s father sold clothes at a local market. On 31 August 1998 the Radom District Court convicted him in summary proceedings of the unauthorised use of a registered trademark. It fined him 700 Polish zlotys (PLN, approximately 175 euros (EUR)), convertible to 35 days’ imprisonment in case of default. 5. On 22 December 1998 the court decided that W.M. could pay the fine in seven monthly instalments, starting from December 1998. According to the court’s records, W.M. paid PLN 600 of his fine. A court bailiff instituted enforcement proceedings to recover the outstanding PLN 100, but to no avail. 6. On 8 June 2004 the Radom District Court ordered that W.M. serve a term of five days’ imprisonment in respect of the unpaid fine. It appears that W.M. had been summoned to the hearing but did not appear. 7. W.M. was unsuccessfully summoned to surrender himself to a remand centre. On 19 October 2004 the Radom District Court ordered that he be arrested and taken to the remand centre. On 16 November 2004 at about 5 p.m. the police arrested W.M. outside his home. On 17 November 2004 at about 9 a.m. he was taken to Radom Remand Centre to serve his fiveday sentence. 8. At the remand centre W.M. refused a routine examination by a nurse. He was then examined by a doctor, who cleared his admission. Subsequently, W.M. was placed in a transit cell no. 4. At about 12 noon a prison guard, M.D., noticed that W.M. was lying on the floor with his belt tied around his neck. The other end of the belt was tied to a chair. The guards, M.D. and A.R., and later the nurse tried to resuscitate W.M. He was declared dead at about 12.30 p.m. W.M. was 52 at the time. A prosecutor and the police arrived at the scene later. 9. On 22 November 2004 the Radom police opened an investigation under the heading of involuntary homicide (Article 155 of the Criminal Code, hereinafter “the CC”). The investigation was later taken over by the Radom District Prosecutor. 10. On an unspecified date a post-mortem was carried out. In his report, the forensic expert concluded that the direct cause of death had been hanging and that it could be assumed that it had been an act of suicide. 11. The prosecutor found no evidence pointing to the involvement of third parties in the incident. With regard to a possible failure to act by the prison guards, the prosecutor questioned M.D., the guard who had been supervising W.M. at the relevant time (see paragraph 8 above). Having regard to the evidence, the prosecutor found that the prison guards responsible for W.M.’s safety had acted beyond reproach. The guards had not breached the applicable regulations by letting W.M. keep his belt. Furthermore, the prosecutor found no shortcomings in the prison guards’ reaction after seeing W.M. lying on the ground. She concluded that the prison guards had not committed an offence. 12. On 28 February 2005 the Radom District Prosecutor discontinued the investigation after establishing that the actions of the prison guards had not constituted a criminal offence. 13. On 12 August 2008 the applicant’s mother complained to the Ministry of Justice that she had not been served with the Radom District Prosecutor’s decision to discontinue the investigation. 14. On 6 October 2008 the Radom District Prosecutor ordered that the applicant’s mother be served with a copy of the decision. 15. By a letter dated 9 October 2008 the applicant’s mother was informed by the Radom District Prosecutor that she had been formally notified of the opening of the investigation into her partner’s death on 30 November 2004. The letter said that the applicant’s mother had twice been summoned to the Radom police headquarters for an interview, which she had not attended. Subsequently, a police officer had visited her flat but had not been allowed to enter. Further summonses sent to the applicant’s mother had not been answered. On 28 December 2004 the applicant’s mother had gone to police headquarters and had insisted that she did not wish to be contacted in connection with W.M.’s death. Accordingly, the district prosecutor had served the decision to discontinue the investigation on R.L., W.M.’s adult son and the applicant’s half-brother. 16. On 9 January 2009 the applicant’s mother was served with the prosecutor’s decision to discontinue the investigation. She lodged an appeal against that decision dated 13 January 2009. Her appeal was rejected as submitted out of time. On an unspecified date the applicant’s mother requested the district prosecutor to grant her leave to appeal out of time. On 5 February 2009 the prosecutor refused that request. The applicant appealed. On 7 April 2009 the Radom District Court upheld the prosecutor’s decision. No further appeal lay against this decision. In consequence, the decision to discontinue the investigation of 28 February 2005 became final. 17. On 12 June 2012 the applicant, represented by his mother, relying on Article 327 § 1 of the Code of Criminal Procedure (hereinafter, “the CCP”), requested that the Radom-Wschód District Prosecutor open de novo (podjęcie na nowo) the investigation into his father’s death. He requested that the prosecutor obtain the file of the civil proceedings against the State Treasury in which the courts had determined that there existed a causal link between the failures of the prison guards and his father’s suicide (see paragraphs 36-43 below). He pointed out the discrepancy between the findings of the district prosecutor and the civil courts. The applicant’s mother also produced proof of payment of all seven instalments of the fine imposed on W.M. 18. The investigation was opened de novo on 15 February 2013. 19. On 28 June 2013 the Radom-Wschód District Prosecutor discontinued the investigation into the alleged failure by the prison guards to fulfil their duties. The allegation was related to their failure to keep the applicant’s father under constant surveillance and to seize his belt, which he had used to commit suicide (Article 231 § 1 in conjunction with Article 155 of the CC, see paragraph 44 below). The prosecutor established that those acts did not constitute a criminal offence. 20. The prosecutor also discontinued the investigation into alleged negligence by Ms E.W., a clerk at the Radom District Court who had incorrectly credited a payment of PLN 100 by W.M. to another debtor. The prosecutor established that prosecution of the impugned offence had become time-barred. 21. With regard to the facts, the prosecutor established that during W.M.’s admission to the remand centre on 17 November 2004, the prison guard S.S. had noticed that W.M. had been anxious and tearful. W.M. had contested his imprisonment as unjust. Consequently, the guards S.S. and R.D. had decided to check with Radom District Court as to whether the fine had been paid and were told that that was not the case. Next, W.M. was to be examined by a male nurse, M.S. The male nurse noticed that W.M. had been agitated and tearful and had declared that he would go on a hunger strike. Having regard to those circumstances, the male nurse had requested that W.M. be taken to a medical room for examination by a doctor. At about 11 a.m. W.M. had been taken to a medical room where he was to be examined by a doctor, D.C. W.M. had been anxious, tearful and convinced that he had been wronged by the court and the police. W.M. had refused to be examined or take any medication. He had also declared that he would refuse any food and drink in protest at his imprisonment. W.M. had not revealed any suicidal thoughts. Doctor D.C. had agreed to W.M.’s incarceration but had recommended that he be seen by a psychiatrist at a later date. 22. At about 11.40 a.m. W.M. had been taken to transit cell no. 4 where he was to wait for his prison underwear and hygiene products. At about 12 noon the prison guard M.D. had seen through the peephole that W.M. was lying on the floor. M.D. had entered the cell and noticed that a belt was tied around W.M.’s neck. He had taken the belt off W.M.’s neck and, together with another guard, A.R., had begun resuscitation procedures. At about 12.30 p.m. an emergency services doctor had declared W.M. dead. 23. The prosecutor also had regard to the findings of the forensic expert. The expert, having carried out a post-mortem, established the presence of a slight strangulation mark on W.M.’s neck and a number of injuries which had likely resulted from his hitting objects while in convulsion. The expert further established that the direct cause of death had been hanging. The result of his examination allowed it to be established that it had been a suicide. 24. The prosecutor found no evidence pointing to the involvement of third parties in the impugned incident. 25. The prosecutor took a number of investigative measures aimed at determining whether the prison guards had failed to fulfil their duties. She interviewed the prison guard M.D. He testified that certain objects, such as mobile telephones, penknives and screwdrivers, were taken from prisoners. However, the applicable regulations did not require that belts or laces should also be seized. The prosecutor analysed the applicable regulations and concluded that belts and laces were not regarded as dangerous objects. 26. With regard to alleged negligence on the part of the prison, the prosecutor established that the actions of the prison guards had not disclosed any failure to fulfil their duties. The prison guards had acted with appropriate diligence in supervising W.M. Not seizing W.M.’s belt in the process of his admission to the remand centre had been in compliance with the relevant regulations. There had been no grounds to suspect that W.M. would make an attempt on his own life despite his strong emotional reaction to his incarceration. The doctor interviewing W.M. had not identified any suicidal tendencies. Furthermore, after seeing W.M. lying unconscious on the floor, the prison guards had reacted appropriately to the situation. In conclusion, the prosecutor found that the actions of the prison guards had not constituted any of the criminal offences prescribed in Articles 231 and 155 of the CC. 27. On 11 July 2013 the applicant’s mother appealed against the prosecutor’s decision. She argued, inter alia, that the prison guards had failed in their duties by not seizing W.M.’s belt. That, in consequence, had led to his suicide and death. 28. On 10 October 2013 the Radom District Court dismissed the appeal and upheld the prosecutor’s decision. 29. The court noted that the applicant’s mother had sought to have the investigation continued and for charges to be brought against specific individuals, eventually leading to their trial and conviction. However, the evidence secured in the investigation had not provided any grounds to accept such a demand. 30. The court found that the prosecutor had correctly established the facts and had properly assessed the comprehensive evidence obtained in the case. It noted that the prosecutor had carried out a number of investigative measures aimed at determining if there had possibly been negligence on the part of the prison guards. However, no such negligence had been established. 31. The court found nothing untoward in the manner in which the prison guards had carried out their duties vis-à-vis the applicant’s father. They had ensured, inter alia, that the applicant’s father had been seen by a doctor. There had been no grounds to believe that the applicant’s father would commit suicide, despite his strong emotional reaction to imprisonment. In accordance with the applicable regulations, the prison guards had not been required to seize the applicant’s father’s belt. Furthermore, they had attempted to resuscitate the applicant’s father. In conclusion, the court accepted the prosecutor’s finding that the actions of the prison guards had not amounted to any of the offences prescribed in Articles 231 and 155 of the CC. It noted that the findings of the civil court could not alter that conclusion and lead to attributing criminal responsibility to the prison guards. The court found that the applicant’s mother had not indicated any relevant circumstances which could lead to the prosecutor’s decision being overturned. 32. The court also accepted the prosecutor’s decision to discontinue the investigation with regard to the court clerk. 33. On 11 January 2010 the applicant brought a claim against the State Treasury with the Radom Regional Court. His mother acted on his behalf since the applicant was a minor. He sought PLN 1,000,000 (approximately EUR 250,000) in compensation and a monthly allowance of PLN 3,000 (approximately EUR 750) in connection with his father’s death. The applicant argued that the State Treasury was liable for his father’s death on account of gross negligence by the prison guards who had failed to ensure his father’s safety. In his view, the belt had been a dangerous object and should definitely have been seized by the prison guards. 34. On 30 September 2010 the Radom Regional Court dismissed the applicant’s claim. It held that the prison guards had acted lawfully and in accordance with the Code of Execution of Criminal Sentences and that therefore the State Treasury could not be held liable. In addition, the court held that there had been no causal link between W.M.’s death and the actions of the prison guards. 35. The Regional Court established that W.M. had been agitated during his admission to the remand centre but considered that to be a standard reaction. The prison guards had checked with Radom District Court and, despite W.M.’s claims to the contrary, it had confirmed that one instalment of W.M.’s fine had not been paid. During his medical examination, W.M. had informed the doctor that he had left children at home unsupervised but he had not revealed any suicidal thoughts. The doctor had concluded that W.M. could be admitted to the remand centre and that there was no need for an immediate psychiatric consultation. Having regard to the above, the court found that there was nothing in W.M.’s medical history or circumstances related to the offence which would have indicated that he needed to be put under particularly close supervision or that his belt should have been seized. 36. The applicant appealed. On 8 February 2011 the Lublin Court of Appeal partly allowed his claim. It found the State Treasury liable under Article 417 § 1 of the Civil Code and awarded the applicant PLN 70,000 (approximately EUR 18,000) in compensation and a monthly allowance of PLN 500 (approximately EUR 125). The court dismissed the remainder of the applicant’s appeal. 37. The Court of Appeal noted that under Article 108 § 1 of the Code of Execution of Criminal Sentences, the administration of a penal institution had a duty to ensure prisoners’’s behaviour could not be considered as simple agitation. His behaviour had suggested a nervous breakdown caused by a feeling of injustice as W.M. had been convinced that he had paid the fine in full. For example, the prison guard M.S. had stated in his report that W.M. had displayed disturbing behaviour (hitting the bed with his fist), had been tearful, anxious and agitated, and had declared that he would go on a hunger strike. 38. The Court of Appeal found that since W.M.’s behaviour had been very different from the norm and that a psychiatric consultation had been recommended for him, then the prison guards should have taken all the necessary steps to ensure his safety. They should have seized any object presenting a risk to his life or health, including his belt or, alternatively, should have put him under constant supervision. Such actions would have prevented W.M.’s death. The court thus held that there was a causal link between the omissions of the prison guards and W.M.’s death. 39. With regard to the claim for compensation, the Court of Appeal noted that under Article 446 § 3 of the Civil Code it could award an appropriate level of compensation to relatives of a deceased if their situation significantly deteriorated as a result of the person’s death. A significant deterioration in a claimant’s situation depended on the degree of adverse material and immaterial consequences resulting from the death of a relative. The Court of Appeal found that the amount of compensation sought was grossly excessive and that the claimant (the applicant) had not established that his situation had deteriorated to such a degree. For the claimant, the death of his father when he was six years old had certainly been a particularly acute loss which had limited his prospects in life and had amounted to a loss of natural support. Having regard to those and other relevant factors, the court found that the appropriate level of compensation was PLN 70,000 (approximately EUR 18,000). 40. The amount of monthly allowance sought by the applicant was also inflated, the court found. The size should not be higher than the amount W.M. would have contributed as a father. Having regard to W.M.’s financial situation prior to his death, the court found that a monthly allowance of PLN 500 (approximately EUR 125) was reasonable and commensurate with the applicant’s justified needs. 41. The applicant lodged a cassation appeal, contesting the amounts of compensation and monthly allowance as too low. The State Treasury also lodged a cassation appeal. On 22 November 2011 the Supreme Court accepted the defendant’s cassation appeal for examination and refused to admit that of the applicant. 42. On 22 February 2012 the Supreme Court quashed the Court of Appeal’s judgment in part and remitted the case. It held that the lower court had failed to examine the defendant’s plea that the claim was time-barred. However, it upheld the Court of Appeal’s findings in respect of the prison guards’ failure to ensure the safety of the applicant’s father (see paragraphs 37-38 above). 43. On 31 May 2012 the Lublin Court of Appeal gave a judgment awarding the same level of compensation and monthly allowance to the applicant and dismissing the remainder of the defendant’s appeal. The court examined the defendant’s plea based on the limitation period. To that end the court heard the applicant’s mother. It established that in April 2012 the applicant’s mother had found proof of payment of all seven instalments of the fine imposed on her partner made between December 1998 and June 1999. It further established that the prosecutor had refused to consider her a party to the investigation and to grant her access to the file. It had only been after the applicant’s mother had complained to the Ministry of Justice that she had been served with the decision to discontinue the investigation on 9 January 2009 (see paragraph 16 above). Accordingly, the three-year limitation period should start to run on the latter date. As the claim had been brought on 11 January 2010 (see paragraph 33 above), the defendant’s plea had to be dismissed. 44. Article 77 § 1 of the Constitution refers to the State’s civil liability in the following way: “Everyone shall have the right to compensation for any harm done to him by any act of a public authority in breach of the law.” 45. In a judgment (no. SK 18/00) of 4 December 2001, the Constitutional Court examined the compatibility of Article 417 of the Civil Code with Article 77 § 1 of the Constitution. It held, inter alia, that: “In accordance with Article 77 § 1 of the Constitution, the sole basis for [State civil] liability is an unlawful act by a public authority, it is of no significance whether such an act was subjectively culpable (subiektywnie zawinione). ... Having regard to the conditions for [State] liability laid down in Article 77 § 1 of the Constitution previously analysed, there is no doubt that ‘the personal culpability of a state official’ does not form part of the list of conditions necessary for liability on the part of the public authorities.” 46. Article 417 § 1 of the Civil Code, as applicable from 1 September 2004, provides as follows: “The State Treasury or [,as the case may be,] a local self-government entity or other legal person responsible for exercising public authority, shall be liable for any damage (szkoda) caused by an unlawful act or omission [committed] in connection with the exercise of public authority.” 47. Article 155 of the Criminal Code provides as follows: “Anyone who unintentionally causes the death of another person shall be subject to the penalty of deprivation of liberty for a term of between 3 months and 5 years.” Article 231 § 1 of the Criminal Code reads as follows: “A public official who, by overstepping his powers or not fulfilling his duties, acts to the detriment of public or private interests shall be liable to a sentence of imprisonment of up to three years.”