AS TO THE ADMISSIBILITY OF
Application No. 23980/94
by Stanislawa JACKIEWICZ
against Poland
The European Commission of Human Rights (Second Chamber) sitting
in private on 18 October 1995, the following members being present:
Mr. H. DANELIUS, President
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
Ms. M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 15 December 1993
by Stanislawa JACKIEWICZ against Poland and registered on 26 April 1994
under file No. 23980/94;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Polish citizen, born in 1926. She is a
retired nurse, residing in Kraków.
The facts of the case, as submitted by the applicant, may be
summarised as follows:
On 19 June 1992 the applicant's 90-year-old mother was admitted
to Kraków State hospital with cardiac insufficiency. On 20 June 1992
her condition improved after she had been given an intravenous drip.
On 21 June her condition deteriorated rapidly and on 22 June 1992 she
died.
The applicant filed a complaint with the Chamber of Physicians
(Izba Lekarska) against a chief physician of the ward alleging that her
mother had died as a result of negligence, a medical experiment carried
out in the course of the treatment and of poisoning.
On 24 February 1993 the Attorney General for professional
liability (Rzecznik Odpowiedzialnosci Zawodowej) terminated the
investigations of the case considering that no professional misconduct
had been established. He stated that the applicant's mother had been
admitted to the hospital with cardiac insufficiency and generalised
arteriosclerosis. She had been given cardiac and dehydrating
medicines. In addition, she had been given an intravenous drip, as she
could not eat. The applicant had not adduced any specific evidence to
substantiate her allegations other than her mother's death. The
Attorney General considered that the lack of recovery of a 90-year-old
patient with cardiac insufficiency was a normal phenomenon which would
not in itself justify a suspicion of malpractice or poisoning. The
treatment adopted was typical of that used in similiar cases and the
allegation of a "medical experiment" could not be seriously considered.
On the applicant's request no dissection had been performed. In the
same request the applicant had stated that she did not have any
objections to the medical treatment which her mother had received.
On 16 August 1993 the Court of the National Chamber of Physicians
upheld this decision.
COMPLAINTS
The applicant complains that her mother died as a result of
negligence and poisoning by the physicians. She complains of the
unfairness and the outcome of the proceedings before the Chamber of
Physicians, which cleared the chief physician of liability for her
mother's death, disregarding all her arguments.
THE LAW
1. The applicant complains that her mother died as a result of
negligence and poisoning by the physicians. The Commission notes that
the death occurred on 22 June 1992.
The Commission recalls that Poland recognised the competence of
the Commission to receive individual applications "from any person,
non-governmental organisation or group of individuals claiming to be
a victim of a violation of the rights recognised in the Convention
through any act, decision or event occurring after 30 April 1993". The
Commission is not competent to examine complaints relating to
violations of the Convention by acts, decisions or events that have
occurred prior to this date.
Therefore, even assuming that the death of the applicant's mother
due to allegedly wrong treatment in a State hospital could raise an
issue under Article 2 (Art. 2) of the Convention, the Commission
observes that the facts alleged, as they occurred before 30 April 1993,
are outside its competence ratione temporis and therefore the
applicant's complaints in this respect must be rejected as being
incompatible with the provisions of the Convention within the meaning
of its Article 27 para. 2 (Art. 27-2).
2. The applicant complains of the unfairness and the outcome of the
proceedings before the organs of the Chamber of Physicians, which
cleared the chief physician of all liability for her mother's death,
disregarding all her arguments. As the final decision was given after
the date from which Poland has recognised the right of individual
petition, the Commission cannot reject this complaint as being outside
its competence ratione temporis. The Commission has therefore examined
whether the impugned procedure comes within the scope of Article 6
para. 1 (Art. 6-1) of the Convention, which states, insofar as
relevant:
"In the determination of his civil rights and obligations or of
any criminal charge against him, everyone is entitled to a fair
hearing... "
However, the Commission notes that the applicant did not choose
to institute proceedings before a civil court in order to claim
compensation. Instead, she instituted proceedings concerning the
professional liability of the physician. The Commission considers that
these proceedings were by their nature disciplinary in character and
did not concern the determination of the applicant's civil rights and
obligations or of any criminal charge against her. Therefore Article 6
(Art. 6) of the Convention is not applicable to the proceedings at
issue.
It follows that this part of the application is incompatible
ratione materiae with the provisions of the Convention within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(M.-T. SCHOEPFER) (H. DANELIUS)
Full & Egal Universal Law Academy