Moeder sterft na keizersnede; man eist tevergeefs een onderzoek naar de behandelend arts - Mensenrechtenhof veroordeelt Polen (en)
The European Court of Human Rights has today notified in writing its Chamber judgment1 in the case of Byrzykowski v. Poland (application no. 11562/05).
The Court held unanimously that there had been a violation of Article 2 (right to life) of the European Convention on Human Rights concerning the lack of an effective investigation into the death of the applicant’s wife and the serious damage to his son’s health. Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant 20,000 euros (EUR) for non-pecuniary damage and EUR 1,150 for costs and expenses. (The judgment is available only in English.)
-
1.Principal facts
The applicant, Wojciech Byrzykowski, is a 32-year-old Polish national who lives in Wroc?aw (Poland).
On 11 July 1999 the applicant’s 27-year-old wife was about to give birth to their child, H. She was admitted to a Wroc?aw Medical Academy hospital 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. She was given an epidural, 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. H. was born by a caesarean section, suffering from serious health problems, mostly of a neurological character. He requires permanent medical attention.
Following a request from the applicant, a police inquiry was opened into his wife’s death on 31 July 1999. A post-mortem was carried out on 2 August 1999. On 29 December 1999 a criminal investigation was started into the suspected offence of manslaughter. Subsequently, the proceedings were stayed, pending the submission of the forensic report, and resumed in October 2000. On 31 October 2000 the district prosecutor discontinued the investigation, considering that the medical staff involved had no case to answer. However, on the applicant’s appeal, the investigation was resumed by a decision of 5 January 2001 on the ground that it had been discontinued prematurely; all necessary evidence had not been taken and the facts relevant for the decision had not been established. The investigation was subsequently twice discontinued and twice resumed. On 24 March 2005 Wroclaw Regional Prosecutor observed that the evidence gathered so far in the case was incomplete and ordered that further evidence be taken. The criminal proceedings are still pending.
In 1999 the applicant also requested that disciplinary proceedings be brought in connection with the case. Those proceedings were stayed, resumed and then stayed on 25 April 2005. The relevant medical court found that the three-year time-limit for seeking the disciplinary liability of the doctor concerned had elapsed but also stated that, as the criminal investigations were still pending, the time-limit could be prolonged. The disciplinary proceedings are still pending.
In July 2002 the applicant lodged a compensation claim against the hospital. On 7 April 2003 those proceedings were stayed, pending the outcome of the disciplinary proceedings. The applicant’s subsequent efforts to have the proceedings resumed failed.
-
2.Procedure and composition of the Court
The application was lodged with the European Court of Human Rights on 22 March 2005.
Judgment was given by a Chamber of seven judges, composed as follows:
Nicolas Bratza (British), President,
Josep Casadevall (Andorran),
Giovanni Bonello (Maltese),
Kristaq Traja (Albanian),
Stanislav Pavlovschi (Moldovan),
Lech Garlicki (Polish),
Ljiljana Mijovi? (citizen of Bosnia and Herzegovina), judges,
and also Lawrence Early, Section Registrar.
-
3.Summary of the judgment2
Complaints
The applicant complained of the lack of an effective investigation to establish responsibility for his wife’s death and the serious damage to his son health. He also maintained that his complaints were not examined within a reasonable time. He relied on Articles 2 and 6 § 1 of the Convention.
Decision of the Court
Article 2
The Court noted that three sets of proceedings concerning the applicant’s complaint under Article 2 of the Convention had been and were pending for periods ranging from four to almost seven years and that the applicant used all the remedies available to him concerning the alleged medical malpractice. His complaint was therefore admissible.
The Court found no indication that there had been any failure on the part of the State to provide a procedure whereby criminal, disciplinary or civil responsibility could be established. It was open to the applicant to ask for a criminal investigation to be started, to bring a civil action in tort against the State Treasury seeking compensation for his wife’s death or to bring proceedings to establish the disciplinary liability of the medical practitioners concerned.
The initial measures to establish the facts of the case were taken promptly. Later on, however, the criminal investigations considerably slowed down. The investigations were discontinued three times and subsequently resumed in the light of shortcomings in the taking of evidence. The authorities examining the applicant’s appeals against the decisions to discontinue them repeatedly noted the failure of the lower authorities to elucidate all the relevant circumstances. The Court considered that, since the remittal of cases for re-examination was usually ordered as a result of errors committed by lower authorities, the repetition of such orders within one set of proceedings disclosed a serious deficiency in the operation of the judicial system.
As regards the disciplinary proceedings, the Court noted that they were still pending and that it was unclear from the medical court’s decision whether the time limit had been or just could have been prolonged, which left the applicant in a state of further uncertainty.
To sum up, the Court observed that, after almost seven years, there had been no final decision in any of the proceedings brought to establish the liability of those responsible for the death of the applicant’s son or those dealing with the birth of his son. The prosecuting authorities repeatedly criticised the prosecutors investigating the case on the grounds that the evidence gathered was incomplete and that the decisions to discontinue the investigations were premature because of shortcomings in the taking of the evidence. The applicant remained in a protracted state of uncertainty as to their outcome.
Although the Court accepted that the medical questions involved in the case might have been of some complexity, it did not find that that could justify the overall length of the investigation.
Further, the Court noted that the authorities repeatedly referred to the other sets of pending proceedings as a justification for staying them or for refusing to resume them. The Court appreciated that the evidence taken in one set of proceedings could be relevant for the decisions to be taken in other proceedings, and that the outcome of such proceedings could have an impact on the further conduct of the proceedings which were stayed. It considered that such decisions could have been dictated by reasonable considerations related to the fair and efficient administration of justice. However, having regard to the overall length of the period which had elapsed since the death of the applicant’s wife and also to the fact that the procedures instituted with a view to establishing the circumstances of her death seemed rather to have hindered the overall progress in the proceedings, the Court was of the view that it could not be said that the procedures applied in order to elucidate the allegations of medical malpractice resulted in an effective examination into the cause of the death of the applicant’s wife.
The Court also stressed the need for a prompt examination of cases concerning death in hospital settings. The knowledge gained and possible errors committed in the course of medical care should be established promptly and disseminated to the medical staff of the institution concerned to prevent the repetition of similar errors and contribute to the safety of users of all health services.
The Court concluded that there had been a violation of Article 2 concerning the inadequate investigation into the death of the applicants’ wife and serious damage to his son’s health.
Article 6 § 1
The Court considered that it was not necessary to examine whether there had been a violation of Article 6 § 1.
The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int).
Press Contacts
Emma Hellyer (telephone: 00 33 (0)3 90 21 42 15)
Stéphanie Klein (telephone: 00 33 (0)3 88 41 21 54)
Beverley Jacobs (telephone: 00 33 (0)3 90 21 54 21)
The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.
Council of Europe Press Division
Tel: +33 (0)3 88 41 25 60
Fax:+33 (0)3 88 41 39 11