FOURTH SECTION
Application no 34215/11
Bożenna KOŁACZYK and Maciej KWIATKOWSKI
against Poland
lodged on 24 May 2011
STATEMENT OF FACTS
THE FACTS
The applicants, Ms Bożenna Kołaczyk and Mr Maciej Kwiatkowski, are Polish nationals who live in Lodz. They are represented before the Court by Ms M. Wentlandt-Walkiewicz, a lawyer practising in Łodź.
The facts of the case, as submitted by the applicants, may be summarised as follows.
On 4 October 2001 A. Kwiatkowska, the first applicant’s daughter and the second applicant’s wife, was admitted to H. Jordan Hospital in Łódź as her waters had broken. She was examined at the hospital and concerns arose about the baby’s condition. She was examined again on the morning of 5 October 2001. It was then established that the baby was seriously distressed. She was taken into the operating theatre before 9 a.m. At 10 a.m. she gave birth to a dead baby boy T. Attempts to resuscitate him failed.
After the delivery it was established that A. Kwiatkowska suffered from shock caused by haemorrhage and serious blood loss during the birth. Her condition was assessed by an anaesthesiologist as serious.
At 8.30 p.m. the same day she was taken again to the operating room as she had been bleeding heavily. Her condition worsened gradually and all efforts to stabilise it, including transfusion of blood and blood replacing products, failed. Dr M.N. did not want to operate on her as the only option that would stop bleeding would be the removal of her uterus. He was repeatedly told by his colleagues that it was the only possibility of saving her life, but he refused to proceed. Ultimately, he decided to operate at 11.30 p.m. after the bleeding had lasted for approximately three hours.
After the operation A.K. died on 19 October 2001 of various complications originating in the heavy haemorrhaging on the day of delivery.
On 18 October 2001 the second applicant submitted a complaint to the Łódź Regional Prosecutor about the manner in which the case had been handled.
The prosecuting authorities ordered that two expert reports be prepared for the purposes of the investigation. Two such reports were prepared and both indicated that there had been serious omissions in handling the birth.
On 27 March 2003 the Łódź Regional Prosecutor filed charges against M.N., the doctor responsible for handling the birth, before the Łódź District Court.
A further expert report was prepared for the purposes of the case.
After a further four years and six months the Łódź District Court, by a judgment of 12 October 2007, acquitted M.N. of the charge of causing the mother’s death and convicted him of causing the baby’s death, an offence punishable under Article 160 of the Civil Code. He was sentenced to a one year term of imprisonment, the execution of the sentence being stayed for a probationary period of one year.
The applicants, who were acting in the case as auxiliary prosecutors, appealed. They argued that the court had erred in law in that it should have convicted the doctor of an offence of inadvertently causing death, punishable under Article 155 of the Criminal Code in respect of both the mother and the baby.
On 19 February 2008 the Łódź Regional Court upheld the judgment in its part concerning responsibility for the mother’s death and quashed it and remitted the case in its part concerning responsibility for the child’s death.
By a judgment of 21 April 2010 the Łódź District Court found M.N. guilty of an offence punishable under Article 160 of the Criminal Code in that he had failed to take appropriate steps before and after the delivery in order to establish the condition of the baby and that he had failed to carry out a caesarean section in time which could have saved the baby’s life.
COMPLAINT
The applicants complain, referring to Articles 6 and 2 of the Convention, that the domestic courts erred in that they acquitted the doctor of the charges of causing their wife and daughter’s death and convicted him only in respect of the death of the second applicant’s son. They submit that the courts breached Article 2 by dealing with the case in a routine manner, failing to bear in mind that the case concerned the right to life and that it should therefore have been examined with particular diligence and thoroughness.
They argue that the courts had wrongly assessed evidence, relied on an expert report which was more lenient to the doctor, while disregarding two others which indicated his responsibility, and emphasised his failure to act correctly. In their view, the courts failed to take into consideration the evidence before them in its entirety, in particular by failing to refer to the testimonies of witnesses which were to the defendant’s detriment. They are of the view that by doing so, the courts had breached the substantive domestic law, the applicable procedural regulations and the positive
QUESTION TO THE PARTIES
Having regard to the procedural protection of the right to life (see Byrzykowski v. Poland, no. 11562/05, §§ 105 - 106, 27 June 2006), was the investigation in the present case by the domestic authorities in breach of Article 2 of the Convention?
Full & Egal Universal Law Academy