FOURTH SECTION
DECISION
Application no. 17716/09
by Zofia LEIMERT
against Poland
The European Court of Human Rights (Fourth Section), sitting on 11 May 2010 as a Chamber composed of:
Nicolas Bratza, President,
Lech Garlicki,
Ljiljana Mijović,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 27 March 2009,
Having regard to the formal declarations accepting a friendly settlement of the case,
Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,
Having deliberated, decides as follows:
THE FACTS
The applicant, Ms Zofia Leimert, is a Polish national who was born in 1937 and lives in Łask. She was represented before the Court by Mr W. Osiecki, a lawyer practising in Lodz. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 16 March 2007 at 1.25 p.m. the police arrested the applicant's son, Tomasz Zegan, because of his aggressive behaviour at a tram stop. As he was clearly drunk, the police officers took Mr Zegan to the police station to sober up.
At Pabianice police station the applicant's son was examined by a doctor who, in spite of the hostile attitude of Mr Zegan, established that he was drunk, did not have any injuries and did not require hospitalisation. He was thus considered fit to remain in the police station.
Mr Zegan was searched and placed in a cell together with two other persons.
On the same day at 8.30 p.m. the two persons sharing the cell with the applicant's son were released. From then on Mr Zegan remained in his cell alone.
On 17 March 2007 at 3.50 a.m. the police officer who checked the cell noticed that Mr Zegan was not breathing. An ambulance was called.
A doctor who arrived at 4.10 a.m. pronounced the applicant's son dead.
The applicant did not discover that her son had died until 20 March 2007, when she went to his flat and was told by his neighbour about his death. She complained to the police about their failure to inform her promptly about the death of her son, although her son's neighbour had provided them with her name and address. On 7 May and 15 June 2007 the heads of the Pabianice district police and the Lodz regional police respectively dismissed her complaints as manifestly ill-founded. They stated that on 17 March 2007 police officers had gone to the applicant's son's place of residence to ask about any living relatives. His neighbour had told them that the applicant was his mother but he did not know her exact address and gave them the applicant's name without specifying the correct spelling. Since the police officers had noted down her name with a spelling mistake, they could not find her address in the database. Consequently, the police concluded that there had been no lack of diligence in their attempts to inform the applicant of the death of her son.
On 12 July 2007 the Pabianice district prosecutor discontinued the investigation into the applicant's son's death under Article 155 of the Criminal Code, which prohibited manslaughter. The prosecutor based his decision on the following documents: a record of the arrest (protokół zatrzymania), the record drawn up by the doctor who examined Mr Zagan on his arrival at the police station, and the police station records (książka wydarzeń). The prosecutor also made a tour of inspection of the police station and took statements from the police officers involved. A post-mortem examination was also conducted. The prosecutor stated as follows in his decision:
“...The post-mortem examination and the inspection of the body (ogledziny) carried out by a forensic expert showed:
1. Fracture of the bones of the cranium and the base of the skull (pokrywy i podstawy czaszki); subdural haematoma on the left side of the base of the brain (krwiak podtwardowkowy); extensive injury, with partial crushing and haemorrhaging, to the left frontal lobe (rozległe ztłuczenie z częściowym zmiażdżeniem); cerebral oedema (obrzęk mózgu); herniation of cerebellar tonsils ...
2. [Mr Zegan] died a sudden death from injuries to the skull and brain.
3. In the blood sample taken from the body of Mr Zegan there was an alcohol concentration of 0.74 per mille.
4. [Mr Zegan's] head injury occurred as a consequence of his being hit with or hitting himself against a blunt object with a large, flat surface, for example, as a result of his falling and hitting his head against the hard ground. The location of the injuries on the occipital area (okolice potyliczne) is quite characteristic of falling and hitting one's head against the hard ground.
On the basis of the findings reached in the course of the investigation there is no evidence whatsoever that the injuries sustained by [Mr Zegan] occurred as the result of an offence. [Taking into account] the expert's opinion, which established that the injuries were characteristic of falling down and hitting the hard ground, it should be concluded that no third party contributed to the death of Tomasz Zegan and that therefore the investigation should be discontinued.”
The applicant appealed against the decision. She submitted that her son had been beaten up at the police station. The applicant complained that the prosecutor had failed to hear evidence from her or from the detainees who had shared the cell with her son and to assess whether the injuries could have occurred as the result of a simple fall.
On 8 January 2008 the Pabianice District Court (Sąd Rejonowy) allowed the appeal as clearly well-founded and remitted the investigation to the district prosecutor. The court held as follows:
“It should be stressed that it is apparent from the case file that the victim sustained many very serious and extensive head injuries. The prosecutor found that they had occurred as a result of a fall to the ground. The files show that [Mr Zegan] was found lying on his stomach on the bed.
In the first place it should be established whether the extent of the injuries would have allowed him to get up after the fall and lie down on the bed, or whether death was instantaneous.
It should also be examined whether such extensive head injuries could have occurred solely due to a fall onto the floor of the police station, without the involvement of third parties .... Although there is an expert opinion in the case file, it is rather perfunctory and unconvincing. In particular, the expert found that the location of the injuries in the occipital area was characteristic of falling down and hitting one's head against a hard floor. However, the victim also sustained injuries to the frontal lobe of the brain. The mechanism by which this injury occurred was not established. It may have resulted from strong pressure being exerted to the back of the victim's head which also caused crushing of the frontal part against the bones of the skull. It should, however, be noted that if that is the case it should be established whether the force applied due to a fall onto the back of the head was sufficient to cause such injuries to the frontal part of the brain.
In the course of the preparatory proceedings the prosecutor should include photographic documentation (it has apparently been prepared), adduce evidence from another forensic opinion (if necessary by experts in several fields or from an institute) who will be asked to establish if the victim could have sustained the injuries in question solely as a result of the fall without the involvement of a third party and whether in spite of such injuries he could have got up and lain on the bed. If the answer to any of these questions is negative, [the prosecutor should] once again hear evidence from all the persons on duty at the time of the events.
On the basis of the above it should be decided as specified in the operative provisions.”
On 21 August 2008 the Lodz University Forensic Institute submitted an expert opinion to the prosecutor. The experts answered two questions put by the prosecutor. The part of the opinion entitled “Conclusions” stated as follows:
“1. Did the injures found on Mr Zegan's body in the course of the post-mortem examination occur solely as the result of a fall, or in consequence of the actions of third parties?
As the case file shows, it was established in the course of the post-mortem examination that Mr Zegan had sustained, inter alia, extensive haematomas on the external surface of the head in the occipital area, a fracture of the base of the skull on the right side, a subdural haematoma located on the base of the skull, crushing of the left frontal lobe and cerebral oedema. In addition he had several bruises on his arms and his left knee which occurred at different times. On the basis of the nature of the head injuries described above it was not possible to determine unequivocally whether they occurred as a result of Mr Zegan's being hit on the head with a blunt, hard object or as the result of his falling and hitting his head against, for example, a hard floor.
2. Could Mr Zegan have got up on his own and lain on his bed in spite of the injuries sustained?
Head injuries of the kind sustained by Mr Zegan, in particular the subdural haematoma, can increase in intensity at different rates. Subdural haematomas of this severity can intensify at different rates over a period of 2-3 days following the injury. During this time there may be no symptoms and the person concerned may function relatively normally. Consequently, it should be assumed that Tomasz Zegan, in spite of his subdural haematoma, could have got up on his own and afterwards lain down on the bed.”
On 30 September 2008 the Pabianice district prosecutor again discontinued the proceedings. The decision, in so far as relevant, reads as follows:
“In accordance with the District Court's instructions an expert opinion was requested from the Lodz University Forensic Institute.
In its opinion the Institute took the position that it was not possible to unequivocally determine whether the injuries had occurred as a result of Mr Zegan's being hit on the head with a blunt, hard object or as the result of his falling and hitting his head against, for example, a hard floor.
At the same time it was established that a subdural haematoma, as well as other internal head injuries discovered in the course of the victim's post-mortem examination, can increase in intensity at different rates over a period of 2-3 days following the injury. During this time there may be no symptoms and the person concerned may function relatively normally.
The expert opinion therefore excludes the possibility that the death of Mr Zegan occurred immediately after the injury; moreover, it gives justifiable grounds for considering whether the head injuries might not have occurred earlier, in totally unknown circumstances.
The fact that the victim was under the influence of alcohol means that this possibility cannot be ruled out.
It should be recalled that the argument that the applicant's son had been beaten to death by the police officers, raised in the appeal, was based on the assumption that after a fall in his cell Mr Zegan would not have been able to get back onto his bed and also on the assumption that he could not have sustained injuries to various parts of his head as a result of one fall.
Since it is not certain that Mr Zegan's injuries (or at least all of them) occurred in the police station, from the fact that they occurred it cannot be inferred that they resulted from actions of the police officers.
Accordingly, it has been decided as above.”
According to domestic law no appeal lay against the decision of the District Prosecutor if the case had been remitted by the District Court. Nevertheless, the instruction attached to the prosecutor's decision included the information that an appeal could be brought before the District Court. The applicant lodged such an appeal but on 4 December 2008 the prosecutor rejected it as having no basis in law. In this decision the prosecutor clearly stated that under Article 330 of the Code it was open to the applicant to bring a private prosecution.
The bill of indictment in a private prosecution had to be prepared by a lawyer and lodged within one month of delivery of the final decision of the district prosecutor. The applicant asked for a legal-aid lawyer to be appointed and on 22 December 2008 the Pabianice District Court appointed a lawyer to represent her.
On 2 February 2002 the court-appointed lawyer refused to prepare a bill of indictment on the applicant's behalf, finding that there were no legal grounds for doing so.
B. Relevant domestic law
Article 55 (2) of the Code of Criminal Procedure provides that if the prosecutor discontinues the preparatory proceedings for a second time, the victim can bring an indictment within one month from the date on which the prosecutor's decision was notified to him or her. According to paragraph 2 of this Article, the bill of indictment must be prepared and signed by a lawyer.
Article 330 states as follows, in so far as relevant:
“1. When quashing the [prosecutor's] decision to discontinue the preparatory proceedings or to refuse to institute them, the District Court shall indicate the reasons and, if necessary, the circumstances to be elucidated or actions to be taken. The prosecutor is bound by these indications.
2. If the prosecutor still sees no ground for bringing an indictment, he should give a fresh decision to discontinue the proceedings or to refuse to institute them. In that case, the victim [having previously appealed to the District Court] may bring an indictment as specified in Article 55 (1) - the victim should be informed of this possibility....”
COMPLAINTS
The applicant complained under Article 2 of the Convention that her son had died in circumstances engaging the responsibility of the State.
She also complained that the criminal investigation instituted after the death of her son had been discontinued and alleged that the prosecutors and the court had failed to act with due diligence in examining the circumstances of his death.
Finally, the applicant complained that she was prevented from bringing a private prosecution because a court-appointed lawyer had refused to prepare the bill of indictment on her behalf.
THE LAW
On 24 February 2010 the Court received the following declaration from the Government:
“I, Jakub Wołąsiewicz, agent of the Government, declare that the Government of Poland offer to pay EUR 10,000 (ten thousand euros) to Ms Zofia Leimert with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.
This sum, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be converted into PLN (Polish zlotys) at the rate applicable on the date of payment, and will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.”
On 15 March 2010 the Court received the following declaration signed by the applicant's representative:
“I, Wojciech Osiecki, the applicant's representative, note that the Government of Poland are prepared to pay Zofia Leimert, the applicant, the sum of EUR 10,000 (ten thousand euros) with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.
This sum, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be converted into PLN (Polish zlotys) at the rate applicable on the date of payment, and will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. From the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
Having consulted my client, I would inform you that she accepts the proposal and waives any further claims against Poland in respect of the facts giving rise to this application. She declares that this constitutes a final resolution of the case.”
The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). In view of the above, it is appropriate to strike the case out of the list.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Lawrence EarlyNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy