CASE OF BYRZYKOWSKI v. POLAND
Preliminary objection joined to merits (non-exhaustion of domestic remedies);Violation of Art. 2 (procedural aspect);Not necessary to examine Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
Nicolas Bratza
4. The applicant was born in 1974 and lives in Wroclaw. 5. On 11 July 1999 the applicant’s 27-year-old wife was about to give birth to their child. She was admitted to a hospital of the Wrocław Medical Academy at 8 p.m. As there was no progress in the delivery and the child showed signs of heart distress, on 12 July 1999 at 10 a.m. a decision was taken to perform a caesarean section. Epidural anaesthesia was administered, as a result of which she went into a coma. All resuscitation efforts failed. The applicant’s wife was subsequently transported to the intensive therapy unit, where she died on 31 July 1999. 6. A child H. was born by a caesarean section, suffering from serious health problems, mostly of a neurological character. He requires permanent medical attention. 7. On 31 July 1999 the applicant, represented by his father, requested that an investigation of the causes of his wife’s death be instituted. His request was complied with on the same day. On 2 August 1999 a post mortem was carried out. A medical opinion prepared immediately thereafter noted, among others, the necessity of obtaining a medical expert opinion as to the circumstances which had led to her death. 8. On 11 August 1999 the Wrocław-Krzyki District Prosecutor requested that the medical records of the applicant’s wife should be submitted to the prosecuting authorities. 9. On 19 August 1999 the applicant was interviewed by the Wrocław-Krzyki District Prosecutor. 10. On 6 October 1999 the Wrocław-Krzyki District Court, at the request of the District Prosecutor, released the physicians who had dealt with the delivery from their obligation to respect professional secrecy in order to obtain their testimony. 11. On 15, 17, 18, 19 November 1999 the District Prosecutor questioned medical staff dealing with the delivery and treatment of the applicant’ s wife as to the circumstances of her death. 12. In a letter submitted on 15 December 1999 the applicant requested the District Prosecutor to hear additional witnesses. On 17 December 1999 the Wroclaw-Krzyki District Prosecutor questioned three other witnesses. 13. On 29 December 1999 the District Prosecutor, having regard to the results of the inquiry, instituted a criminal investigation into a suspected offence of manslaughter, punishable under Article 155 of the Criminal Code. 14. On 30 December 1999 the District Prosecutor decided to obtain a medical expert opinion from the Lublin Institute for Forensic Medicine as to the treatment administered to the applicant’s wife. 15. On 4 and 10 February and 17 March 2000 the District Prosecutor heard further witnesses. 16. In a letter of 10 February 2000 the Lublin Institute of Forensic Medicine returned the case-file, explaining that it would not be able to prepare the opinion. On 30 March 2000 the District Prosecutor decided to obtain a medical expert opinion from the Kraków Institute of Forensic Medicine. Apparently the investigations were later stayed. 17. In October 2000 the District Prosecutor resumed the investigations, having obtained an expert opinion prepared by four medical experts of the Kraków Institute of Forensic Medicine. 18. By a decision of 31 October 2000 the District Prosecutor discontinued the investigations considering, in the light of the medical records, the testimony of the witnesses and the medical expert opinion, that the medical staff concerned had no case to answer. However, on the applicant’s appeal, the investigations were subsequently resumed by a decision of 5 January 2001. The Wroclaw Regional Prosecutor considered that the investigations had been discontinued prematurely, without all necessary evidence having been taken and without the facts relevant for the decision having been sufficiently established. He decided that the anaesthesiologists dealing with the delivery should be questioned again in order to elucidate discrepancies between their testimony and that further experts should be appointed with a view to establishing whether the conditions of the delivery could have had a negative impact on the health condition of the applicant’s son. 19. On 7 and 19 February 2001 the District Prosecutor questioned again the two anaesthesiologists involved in the treatment of the applicant’s wife. 20. On 20 February 2001 the District Prosecutor decided to obtain another expert opinion from the Łódź Institute of Forensic Medicine. 21. Four experts of the Łódź Institute for Forensic Medicine prepared an opinion dated 28 June 2001 and submitted it to the District Prosecutor on 23 August 2001, noting, inter alia, that the applicant’s son had died as a result of the damage he suffered during the delivery. The experts concluded, referring to the medical records of the case, that no criminal offence had been committed, the failure to reverse the result of anaesthesia not being a consequence of medical negligence. 22. In a letter dated 29 August 2001 the Łódź Institute of Forensic Medicine informed the District Prosecutor about an editorial error in its opinion in so far as it contained a reference to the death of the applicant’s son. 23. On 10 September 2001 the District Prosecutor questioned another witness. In a letter submitted on the same day the applicant and his father contested the medical expert opinion of 28 June 2001 containing among other things the wrong information about the death of the applicant’s son as a result of damage he had suffered during the delivery. They submitted that this error indicated that the opinion had not been prepared with the requisite care and attention to detail. 24. On 17 September 2001 the District Prosecutor decided to obtain an additional expert opinion from the Poznań Institute of Forensic Medicine. On 30 November 2001 this opinion was submitted. It further contained answers to the 32 questions posed by the applicant. 25. On 6 December 2001 the Wrocław District Prosecutor discontinued the investigations. In his decision he relied on the medical expert opinion which stated that the treatment of the applicant’s wife and the handling of the delivery, i.e. the caesarean section, epidural anaesthesia and reanimation had been carried out properly and had been adequate given her state of health and the circumstances. They could not have contributed to the deterioration of her condition or led to her subsequent death. 26. On 21 January 2002 the applicant appealed against the decision of 6 December 2001. 27. On 23 May 2002 the Wrocław-Krzyki District Court upheld the contested decision. It considered that the evidence obtained during the investigation had not provided any grounds on which to bring charges against the medical staff. It also referred to four medical expert opinions (from Wrocław, Poznań, Kraków and Łódź) according to which the medical treatment of the applicant’s wife during and after the delivery of birth was not improper. Consequently, no action or omission of a criminal character could have caused her death. 28. On 25 July 2002 the Wrocław-Krzyki District Court rejected the applicant’s appeal of 17 July 2002 against the decision of 23 May 2002. 29. On 10 December 2002 the District Prosecutor, at the applicant’s request, questioned a new medical expert in connection with the circumstances of the death of the applicant’s wife. 30. On 1 March 2003 the District Prosecutor resumed the investigations, which had been terminated by the decision of 6 December 2001. 31. On 26, 28 March, 24, 28 April, 29 May and 3 June 2003 the District Prosecutor questioned the medical staff involved in the dealing with the delivery. 32. On 4 April 2003 the Dolny Sląsk Chamber of Physicians submitted to the prosecuting authorities two expert opinions prepared for the purposes of disciplinary proceedings which were pending at that time (see §§ 39 and 40 below). 33. On 9 June 2003 the District Prosecutor ordered another expert opinion from the Białystok Institute of Forensic Medicine. Subsequently, it urged the Institute several times to accelerate the preparation of the opinion. On 14 October 2004 the opinion, prepared by four experts, was submitted to the District Prosecutor. The opinion also contained answers to the 32 questions posed by the applicant. 34. On 3 December 2004 the District Prosecutor interviewed one witness. 35. On 1 December 2004 the applicant submitted an unsolicited expert opinion prepared by two physicians. 36. On 8 December 2004 the District Prosecutor discontinued the investigations. He had regard, inter alia, to the medical expert opinion prepared by experts from the Białystok Institute for Forensic Medicine, which had stated that the caesarean section, epidural anaesthesia and reanimation had been adequate, given to the condition of the applicant’s wife and the circumstances. 37 On 23 December 2004 the applicant appealed against this decision. 38. On 24 March 2005 the Wrocław Regional Prosecutor decided to quash the contested decision. The Prosecutor observed that the evidence gathered so far in the case was incomplete in that it did not allow for the establishment of the relevant facts. Certain facts relevant for the assessment of the case had to be established, in particular the kind and exact amounts of medication administered to the applicant’s wife before the caesarean section. Further, certain discrepancies between various depositions of the anaesthesiologist F. M. had to be elucidated. It also seemed that there might have been some errors in the medical records which should be further investigated. 39. On 14, 29 April and 13 May 2005 the District Prosecutor heard witnesses. On 13 May 2005 experts from Warsaw who had prepared the opinion for the purposes of the disciplinary proceedings pending before the Regional Chamber of Physicians were also questioned. On 24 May and 28 July 2005 other witnesses were heard. 40. On an unspecified date in autumn of 2005 the prosecuting authorities requested that an additional expert opinion be prepared by the Institute of Forensic Medicine of the Białystok Medical Academy. This opinion is currently being prepared and the file of the investigations has been sent to the Institute. 41. The proceedings are pending. 42. On 30 August 1999 the applicant submitted a request to the Regional Chamber of Physicians to initiate disciplinary proceedings against the anaesthetist, F.M. On 26 October 1999 the Dolny Śląsk Chamber of Physicians started an inquiry concerning the causes of death of the applicant’s wife. 43. On 10 November 1999 the inquiry was stayed, the Chamber having regard to the parallel criminal investigations which were being conducted at that time by the District Prosecutor. 44. On 16 October 2002, after the decision of the District Prosecutor of 6 December 2001 concerning the discontinuance of the criminal proceedings had become final, the proceedings were resumed. 45. On 11 December 2002 the Dolnośląska Chamber of Physicians requested additional expert opinions from two experts from Warsaw. The opinions were submitted on 7 February 2003. 46. On 25 February 2003 the Supreme Chamber of Physicians decided to transmit the disciplinary case concerning the death of the applicant’s wife to the Poznań Regional Chamber of Physicians. 47. On 3 June 2004 the Wielkopolska Chamber of Physicians transmitted the case-file to the Dolny Śląsk Regional Medical Court. 48. On 25 April 2005 the Regional Medical Court in Wroclaw stayed the proceedings against F.M. pending the outcome of the further criminal investigations concerning the death of the applicant’s wife. It had regard to the fact that on 24 March 2005 the Wroclaw-Krzyki District Prosecutor had allowed the applicant’s appeal against a decision of 8 December 2005 to discontinue the proceedings (see § 38 above). The court further observed that a motion to impose disciplinary sanctions had been submitted to that court by the Agent for Disciplinary Matters only on 17 February 2005. The court noted that the disciplinary liability of the physician concerned had become prescribed under the relevant provisions of the Chamber of Physicians Act. However, as the criminal investigations were still pending, the period of prescription “could be prolonged”, pursuant to the provisions of Article 51 (2) of that Act. 49. The proceedings are pending. 50. On 11 July 2002 the applicant, acting also on behalf of his son H., lodged a compensation claim against the hospital and against the hospital’s insurance company with the Wroclaw Regional Court. He claimed a monthly pension for the child, just satisfaction for non-pecuniary damage they had suffered as a result of death of their mother and wife, and compensation for the funeral costs. He argued that his wife’s death and his son’s health problems had resulted from negligence in the handling of the anaesthesia administered to his wife during the birth. In passing, he observed that the experts who had prepared the opinion for the criminal investigation had stated that his son had also died; this was an example, in his view, of how badly the opinion had been prepared. 51. On 9 September 2002 the applicant was partly exempted from a court fee. 52. At a hearing held on 20 December 2002 the Wroclaw Regional Court ordered that the full medical records of the applicant’s wife’s case be submitted in evidence and that the file of the criminal investigations which were pending at that time be also submitted. 53. On 24 January 2003 the Wrocław Regional Court held a hearing. The applicant informed the court that the disciplinary proceedings were pending before the Regional Chamber of Physicians. The court decided to request information about the state of the proceedings and any possible expert opinions from the Chamber. 54. In February 2003 the applicant requested the court to admit in evidence an expert opinion he had privately commissioned before the lodging of the civil case (see § 35 above). This request was apparently refused. 55. By a decision of 7 April 2003 the Wrocław Regional Court stayed the proceedings until the end of the disciplinary proceedings. The court referred to two opinions which had been prepared in these proceedings and which indicated that it was likely that certain irregularities had indeed taken place when handling the delivery. The court considered that in these circumstances it was reasonable to stay the proceedings until the disciplinary proceedings had come to an end as their outcome was relevant for the further conduct and, possibly, the outcome of the civil case. 56. The applicant appealed, arguing, inter alia, that the disciplinary court of the Chamber of Physicians which could eventually be called upon to give a ruling in this case, was composed of four physicians and just one judge, which rendered these proceedings inherently unfair in that it was unlikely that it would be fully impartial. 57. By a decision of 25 April 2003 the Wroclaw Regional Court rejected the appeal as having been lodged outside the applicable time-limit. 58. By a letter of 9 September 2003 the applicant applied for the resumption of the stayed proceedings, arguing that in any event the civil court was not bound by the conclusions of the organs of the professional association of physicians. 59. By a decision of 9 October 2003 the Regional Court refused to resume the stayed proceedings on the ground that a team of specialists had been charged with the preparation of the opinion for the purpose of the disciplinary proceedings in order to assess the medical procedures followed in the case and such opinions had already been partly prepared. Their conclusions indicated possible negligence on the part of the medical staff involved; in addition, the medical records of the applicant’s late wife had been included in the files of the disciplinary proceedings, which were already well advanced. Hence, a decision of the disciplinary court could influence the judgment to be given in the civil proceedings. 60. On 2 March 2004 the applicant requested the civil court to take measures in order to have the disciplinary proceedings accelerated. In a letter of 1 April 2004 the Chamber of Physicians in Wroclaw informed the Wroclaw Regional Court that the proceedings were still pending, that on 15 April 2004 charges would be brought against F.M. and that the files of the case would be sent, together with a motion for the imposition of a disciplinary penalty, to the Disciplinary Court of the Regional Chamber. 61. On 16 April 2004 the Regional Court informed the applicant that the civil proceedings would be resumed after the disciplinary proceedings had come to an end. 62. On 3 June 2004 a motion to have a disciplinary penalty imposed on F.M. was submitted to the Regional Disciplinary Court. 63. By a letter of 23 November 2004, in reply to a query submitted by the civil court on 8 November 2004, the Regional Agent for Disciplinary Matters of the local Chamber of Physicians reiterated that on 3 June 2004 the case had been submitted to the disciplinary court. 64. By a letter of 21 February 2005 the applicant requested the civil court to resume the proceedings. The applicant emphasised that there had been no progress whatsoever in the disciplinary proceedings since June 2004, when the disciplinary case had been brought to the court. This delay could only be attributed to the unwillingness of the Chamber of Physicians to conduct an effective investigation into the medical negligence which was arguably involved in his case. He invoked the possibility that any disciplinary liability would be prescribed as a result of the lapse of time. 65. On 7 June 2005 the Wroclaw Regional Court dismissed the applicant’s request for the proceedings to be resumed, considering that they should remain stayed until the criminal proceedings pending before the Wrocław-Krzyki District Prosecutor were completed. 66. The proceedings are pending. 67. The Chambers of Physicians’ Act of 17 May 1989 established Chambers of Physicians as a professional organisation of physicians. Membership of a local Chamber is mandatory. The disciplinary responsibility of physicians for professional misconduct may be determined in proceedings before the organs of the Chambers, i.e. agents for disciplinary matters and disciplinary courts. Agents and members of the courts for each region are elected by members of a local chamber. The Chief Agent for Disciplinary Matters and the Principal Court are elected by the National Congress of Physicians, composed of delegates of local chambers. 68. Pursuant to Article 42 of the Act, the following penalties may be imposed in disciplinary proceedings: a warning, a reprimand, suspension of the right to practise medicine for a period from six months to three years and striking off the register of physicians. 69. The procedure to be followed in disciplinary proceedings is governed by the Order on Procedure in Disciplinary Proceedings issued by the Minister of Health on 26 September 1989. 70. Under this Order, the agent for disciplinary matters must investigate the matter if he obtains credible information that the rules of professional conduct have been infringed. When investigating such a complaint, the agent may question a physician charged with professional misconduct, may appoint experts and question witnesses, and take such other evidence as he or she sees fit. A physician charged with professional misconduct is entitled to make any submissions which in his or her opinion are relevant. 71. If information existing at the time when investigations are instituted, or gathered in the course of an investigation, is sufficient to charge a physician with professional misconduct, an agent shall draw up a motion to the court for a disciplinary penalty to be imposed, containing a detailed description of the alleged offence and written grounds. 72. Pursuant to Article 26 of the Order, the agent shall discontinue proceedings if he concludes that the material gathered in the case does not suffice for drawing up a motion for a penalty to be imposed. 73. A complainant may lodge an appeal against this decision with the Chief Agent for Disciplinary Matters. A further refusal of the Chief Agent may be appealed against to the Principal Court. 74. Under Article 29 of the Order, if the court, having received a motion for a penalty to be imposed, decides that the case is ready for examination at a hearing, it orders that a hearing be held. A physician is summoned to a hearing, whereas his defence counsel and the agent are informed of its date. 75. Under Article 18 of the Order, in disciplinary proceedings the complainant is entitled to: submit a request for evidence to be taken, lodge with the disciplinary court an appeal against the agent’s decision to discontinue the proceedings, and lodge an appeal against a decision of a first-instance court on the merits, but only on the question of responsibility. The complainant is entitled to have access to the case-file, but the agent can limit this access to documents which are not covered by medical secrecy. 76. Pursuant to Article 5 of the Order, the proceedings before the court are public for members of the Chambers of Physicians. 77. Under Article 417 of the Polish Civil Code, the State is liable for damage caused by its agents in the exercise of their functions. There is established case-law of the Polish courts to the effect that this liability of the State includes also liability for damage caused by medical treatment in a public system of medical care, run either by the State or by the municipalities. 78. Article 155 of the Criminal Code of 1997 provides that a person who unintentionally causes the death of a human being shall be sentenced to imprisonment for between three months and five years. 79. On 17 September 2004 the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Law”) entered into force. Under Article 2 read in conjunction with Article 5(1) of the 2004 Law, a party to pending proceedings may ask for the proceedings to be speeded up and/or request just satisfaction for their unreasonable length . 80. The Law lays down various legal means designed to counteract and/or provide redress for undue delays in judicial proceedings. The relevant part of Article 2 of the 2004 Law reads: 81. The relevant parts of Article 4 provide: “1. The complaint shall be examined by the court immediately above the court conducting the impugned proceedings.” 82. Article 5, in its relevant part, reads: “1. A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending. ...” 83. Article 12 provides for measures that may be applied by the court dealing with the complaint. The relevant part provides: “1. The court shall dismiss a complaint which is unjustified. 2. If the court considers that the complaint is justified, it shall find that there was an unreasonable delay in the impugned proceedings. 3. At the request of the complainant, the court may instruct the court examining the merits of the case to take certain measures within a specified time. Such instructions shall not concern the factual and legal assessment of the case. 4. If the complaint is justified the court may, at the request of the complainant, grant ... just satisfaction in an amount not exceeding PLN 10,000 to be paid by the State Treasury. If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings.” 84. Article 15 provides for an additional compensatory remedy: “1. A party whose complaint has been allowed may seek compensation from the State Treasury ... for the damage it suffered as a result of the unreasonable length of the proceedings.” 85. Article 16 further specifies: “A party which has not lodged a complaint about the unreasonable length of the proceedings under Article 5(1) may claim – under Article 417 of the Civil Code ... – compensation for the damage which resulted from the unreasonable length of the proceedings after the proceedings concerning the merits of the case have ended.”