Rezoluția CM/ResDH(2013)208 Byrzykowski împotriva Poloniei Executarea hotărârii Curții Europene a Drepturilor Omului (Recherche n 11562/05, Hotărârea din 27/06/2006, definitivă la 27/09/2006) (adoptată de Comitetul de Miniștri la 16 octombrie 2013 în cadrul celei de-a 1181-a ședințe a Delegaților ministrului) Comitetul miniștrilor, în temeiul articolului 46 alineatul (2) din Convenția pentru apărarea drepturilor omului și a libertăților fundamentale, care prevede ca Comitetul să supravegheze executarea hotărârilor definitive ale Curții Europene a Drepturilor Omului (denumite în continuare "convenția" și "Curtea"), Având în vedere hotărârea definitivă transmisă de Curte Comitetului în cauza de mai sus și încălcarea constatată reamintind obligația statului pârât, în temeiul articolului 46 alineatul (1) (1) din Convenție, să se conformeze hotărârilor definitive în litigiile la care este parte și că această obligație implică, pe lângă plata satisfacției echitabile acordate de Curte, adoptarea de către autoritățile din statul membru în cauză, dacă este necesar de măsuri individuale pentru a pune capăt încălcărilor constatate și pentru a elimina consecințele acestora, în măsura posibilului de către Restitutio in integrum de măsuri generale de prevenire a unor încălcări similare ; Am invitat guvernul statului pârât să informeze Comitetul cu privire la măsurile luate pentru a se conforma obligației După examinarea bilanțului de acțiune furnizat de guvern care indică măsurile adoptate în vederea executării hotărârii judecătorești, inclusiv informațiile furnizate în ceea ce privește plata satisfacției echitabile acordate de Curte (a se vedea documentul DH-DD(2013) 818 SÕ fiind asigurat că au fost adoptate toate măsurile prevăzute la art. 46 alineatul (1), DECLARĂ quasures aiming at execution of the judgment in the case of Byrzykowski against Poland (numai în limba engleză) Case description Byrzykowski, Application No. 11562/05, judgment of 27/06/2006, final on 27/09/2006. Caseta se referă la o încălcare a dreptului la viață datorată pentru investigația into the death of the appicants wife while giving birth in a spital (procedura de încălcare a articolului 2 din Convenție). In July 1999, aplicantele wife was about to give birth to their child and was admitted to the Wrocław Medical Academy Hospital. Fizicianii decid să performeze o secțiune cesarean și să-și dea seama că are un epidural, as are rezultat de which she went into a comă. Toate resuscitarea eforturilor failed and she died on 31/007/1999. Their sound, born by cesarean section, suffers from serious health problems, mostly of neurological character, and requires permanent medical atention. At the applicicants request, a police inquiry was opened and led to the opening on 29/12/1999 of a criminal investigation into the suspected offence of manslaughter. These procesedings were three times discontinued and subsequently resumed. In August 1999, the applicant also requested the Regional Medical Chamber to bricoléry proceduredings against the anaesthesiologicst who had taken part in his wiefuris surgery. Those procededings were stayed twice ciocause of the pandaning criminal proceedings. In July 2002, the applicant also lodged a compensation claim against the spital before a Wrocław Regional Court. On 07/04/2003, those procededings were stayed, pandaning the outcome of the disciplinary procesedings. All of those three procesedings were still spânzurating when the European Court of Human Rights ( The Court considered that it canot accept that matters such as error of judgment on the part of a health professional or negligent co-ordonare among health professionals in the treatment of a particular pacient are sucient in themselves to call a Contracting State to account from the standpoint of its pozitiv obligations under Article 2 of the Convention to protect life. [2] However, obligațiunile pozitive require an efectiv independent judicial system to be set up astfel încât cauza de moarte a pacienților in the Care of the medical profession, whether in the public or the private sector, can be determined and those responsibil make accountable. In the opinie of the Court, despite thefact that procesedings were instituted in which the applicant sought to ascertain the relevantfacts and to establish the liability of persons responsible for the handling of his wiffes delivery and death, after almost seven years no final decision in any of these procesedings has been given. Prosecution authorities many times criticised prosecutors carrying on criminal proceseedings on the grounds that the evidence was incomplete and decisions on discontinuation of the investigation were premature because of shortcomings in taking of the evidence. Moreover, the authorities repeedly refered to other pandaning procesing in order to justify state them or refuzal to resume them. Acording to the Court, more general considerations also call for a prompt examination of cases referenting death in a spital setting. Knowledge of thefacts and potential errors made during the medical care should be quickly established in order to be disseminated among medical staff of a given institution and avoid repetition of similarar faults and to ensure safety of the pacients under the medical care. Payment of just satisfaction and individual measures 1.just satisfaction Pecuniary damage No-pecuniary damage Costs and expenses Amount 000 EUR 150 EUR Paid on 19/10/2006 2. Individual measures The European Court awarded just satisfaction in respect of moraly damage. The three sets of proceseding that were pandaning at the time of the Court Following the police investigation of the alleged manslaughter of the applicicants wife, the Wrocław District Prosecutor discontinued the procededings on 18/05/2006 on the bazis of lack of sucient evidence. This finding, which was based on expert medicall opinii implored by several Forensic Medicine Institutes, chame final on 7/07/2006. Disciplinary procesion initiated by the aplicant against the anesiologicst were discontinued on 11/10/2007 (The decision became final on 14/12/2007). The civil procedeedings for compensation, pandaning before the Wrocław Regional Court, were completed by a final judgment of 3/09/2009. The Regional Court awarded the aplicant and his compensation and an allowance to the aplicants sound. În lumina abovei, nu other individual measure seems necessary. General Measures The European Court found no indication of any failure on the part of the State in its obligation to provide a procedures to determine the criminalal, didisciplinary or civil responsibility of persons who might be held liable (§106 of the judgment). The finding of a resulted in this case resulted from the Court In order to avoid similar viols, the Polish authorities undertook numerous actions aiming at legislative reforms as well as changing of national organizations By an amendment dated 20/02/2009 (in force from 1/05/2009), the Act on a complaint of breach of the right to a trial by the court without undue delay of 17/06/2004 was amendad. The amendad Act provides for the possibility of a complaint in case of excesiv length of investigation, if by the acțiune sau inactivity of a prosecutor conducting or supervising such proceseedings, the infringment of parts According to the amended Act, if the complaint against excesiv length of preparatory procedeedings iswell-founded, the scurt allowing it maiy address the scurt or the prosecutor conducting or supervising such procesing such procesing with binding recommendations as to the conductor of particular proceedings. Remedy against excesiv length of criminal proceedings, with a right to have a case heard within a reasonable time, is currently supervisioned by the Committee of Ministers in the Kudla group of cases (30210/96) where the Court found viols of Article 6 and 13. According to the provisions of 29/03/2007 r. (in force from 12/07/2007), in order to simplify and acceselate criminal proceedings, an appeal against the decision to refuz an investigation or to discontinue it shall be lodged directly to the court not via the prosecutor [art. 465 alineatul (2) Code of Criminal Proceedings]. It should also be recalled that, concording to supports of the Code of Criminal Proceedings, a victim of criminal Crime, in case when a prosecutor decides to refuz opening of the investigation or to discontinue it, may initiate procedes acting as an auxiliary prosecutor aux, Ölowing the procedure described in Articles 329-330 of the Code of Criminal Proceedings. Prosecutors a decis să nu inițieze investigația sau să discontinueze, in cases in which a victim may behome an ausiliary prosecutor, are subject to the close scrutiny of their superiors, in line with ghidlines issued by the Prosecutor Electroluxs General Office on 30 November 2012. The aim of the ghidlines is also to prevent irregularities similar to those found in the judgment Byrzykowski v. Poland. The changes relating to the disciplinary process before the Chambers of Physicians On 2/12/2009, the new Chambers of Physicians Act, which regulates the professional responsibility of doctorers, was adopted. The Act contains several provisions designed to broaden victims rights in disciplinary proceedings. art. 56 provides a victim with a right to participate in the disciplinary proceedings as a party (before a victim actd only as as witness). Article 57 contins the definition of a victim, determines the number of attorneys that the victim may have and provides for a victim right to access to the case file, that can be restrictivted only to the extent provided in statuss. A victim may lodge an appeal against the decision refuzing to institution didisciplinary procesedings or on its discontinuation (art. 68). The new law provides also for the possibility of lodging a casation appeal to the Supreme Court against a final judgment termining a disciplinary procesing before the Chamber. Increasing the efficiency of the efficieentcy of the work of expert in court The amendment dated 9/05/2007 (in force from 20/06/2007) broadened the scop of instruments at the pents , experți. The amended Article 285, paragraph 1, of the Code of Criminal Proceedings provides for the possibility of imposing a penalty of up to 10,000 zlotys for the un scuzed absent of the scurt expert. Measures placed at changing the practices of national authorities The Court pointed to a number of mistakes made by the national authorities in the context of this case. Consequently, in order to avoid similar viols, it seems necessary to publicitysh and disseminate the judgment. In this context, it should be noted that the judgment was translated and publicished on the website of the Ministry of Justice (www.ms.gov.pl ).În plus, în 2011, ministry of Justice prepared a special publication containing analysis of the leading jurisdiction ), containing a referent to this judgment, which was distributed free of charge to all judges and prosecutors. A special publicity was also pregared and publicished on the website of the Ministry of Justice (www.ms.gov.pl) [Obowiązek kryminalizacji i przeprowadzenia skutecznego postępowania wyjaśniającepo okoliczności popełnienia przestępstwa stanowiącepo poważne naruszenie praw człowieka [3] In March 2012, the Prosecutor Electroluxs Office disseminated among prosecutors the Polish translation of the Guidelines of the Committee of Ministers of the Council of Europe on eradicating impunity for serious uman rights infractions (atractions Wytyczne Komitetu Ministrów Rady Europy ws. zwalczania bezkarności poważnych naruszeń praw człowieka Cu toate acestea, Comisia consideră că, în cazul în care Comisia ar fi trebuit să ia în considerare în mod corespunzător situația economică a industriei din Uniune, Comisia ar fi trebuit să ia în considerare, de asemenea, faptul că, în cazul în care s-ar fi efectuat o anchetă, Comisia ar fi trebuit să ia în considerare, de asemenea, dacă s-ar fi luat în considerare măsurile de ajutor de stat care ar fi trebuit să fie luate în considerare în cazul în care ar fi fost luate în considerare măsurile în cauză. Taking these circumstations into considetion, aditival measures of a general nature do not seem necessary. The applications of the respondent State The government considers that no further individual measures are necessary in this case and that the measures adopted of a general nature, in particular the legislative changes and the publicity and disemination of the judgment of the European Court of Human Rights, will be sucient to be said that Poland fulèred its obligations under Article 46 paragraph 1 of the convention. [1] Informații submitted by the Polish authorities on 9 July 2013 [2] §104 of the Judgment. [3] http://www.pg.gov.pl/
Résolution CM/ResDH(2013)208
Byrzykowski contre Pologne
Exécution de l’arrêt de la Cour européenne des droits de l’homme
(Requête n
o
11562/05, arrêt du 27/06/2006, définitif le 27/09/2006)
(adoptée par le Comité des Ministres le 16 octobre 2013,
lors de la 1181e réunion des Délégués des Ministres)
Le Comité des Ministres, en vertu de l’article 46, paragraphe 2, de la Convention de sauvegarde des droits de l’homme et des libertés fondamentales, qui prévoit que le Comité surveille l’exécution des arrêts définitifs de la Cour européenne des droits de l’homme (ci-après nommées «
la Convention
» et «
la Cour
»),
Vu l’arrêt définitif transmis par la Cour au Comité dans l’affaire ci-dessus et la violation constatée
;
Rappelant l’obligation de l’Etat défendeur, en vertu de l’article 46, paragraphe
1, de la Convention, de se conformer aux arrêts définitifs dans les litiges auxquels il est partie et que cette obligation implique, outre le paiement de la satisfaction équitable octroyée par la Cour, l’adoption par les autorités de l’Etat défendeur, si nécessaire
:
-
de mesures individuelles pour mettre fin aux violations constatées et en effacer les conséquences, dans la mesure du possible par
restitutio in integrum
;
et
-
de mesures générales permettant de prévenir des violations semblables ;
Ayant invité le gouvernement de l’Etat défendeur à informer le Comité des mesures prises pour se conformer à l’obligation susmentionnée
;
Ayant examiné le bilan d’action fourni par le gouvernement indiquant les mesures adoptées afin d’exécuter l’arrêt, y compris les informations fournies en ce qui concerne le paiement de la satisfaction équitable octroyée par la Cour (voir document
)
;
S’étant assuré que toutes les mesures requises par l’article 46, paragraphe 1, ont été adoptées,
DECLARE qu’il a rempli ses fonctions en vertu de l’article 46, paragraphe 2, de la Convention dans cette affaire et
DECIDE d’en clore l’examen.
A
ction report
[1]
Information on measures aiming at execution of the judgment
in the case of Byrzykowski against Poland
(anglais uniquement)
Case description
Byrzykowski, Application No. 11562/05, judgment of 27/06/2006, final on 27/09/2006.
The case concerns a violation of the right to life due to the deficiencies of the investigation into the death of the applicant’s wife while giving birth in a hospital (procedural violation of Article 2 of the Convention).
In July 1999, the applicant’s wife was about to give birth to their child and was admitted to the Wrocław Medical Academy Hospital. The physicians decided to perform a caesarean section and gave her an epidural, as a result of which she went into a coma. All resuscitation efforts failed and she died on 31/07/1999. Their son, born by caesarean section, suffers from serious health problems, mostly of neurological character, and requires permanent medical attention.
At the applicant’s request, a police inquiry was opened and led to the opening on 29/12/1999 of a criminal investigation into the suspected offence of manslaughter. These proceedings were three times discontinued and subsequently resumed.
In August 1999, the applicant also requested the Regional Medical Chamber to bring disciplinary proceedings against the anaesthesiologist who had taken part in his wife’s surgery. Those proceedings were stayed twice because of the pending criminal proceedings.
In July 2002, the applicant also lodged a compensation claim against the hospital before a Wrocław Regional Court. On 07/04/2003, those proceedings were stayed, pending the outcome of the disciplinary proceedings.
All of those three proceedings were still pending when the European Court of Human Rights (“the Court”) issued the judgment in the case.
The Court considered that it cannot accept that matters such as error of judgment on the part of a health professional or negligent co-ordination among health professionals in the treatment of a particular patient are sufficient in themselves to call a Contracting State to account from the standpoint of its positive obligations under Article 2 of the Convention to protect life.
[2]
However, the positive obligations require an effective independent judicial system to be set up so that the cause of death of patients in the care of the medical profession, whether in the public or the private sector, can be determined and those responsible made accountable.
In the opinion of the Court, despite the fact that proceedings were instituted in which the applicant sought to ascertain the relevant facts and to establish the liability of persons responsible for the handling of his wife’s delivery and death, after almost seven years no final decision in any of these proceedings has been given. Prosecution authorities many times criticised prosecutors carrying on criminal proceedings on the grounds that the evidence was incomplete and decisions on discontinuation of the investigation were premature because of shortcomings in taking of the evidence. Moreover, the authorities repeatedly referred to other pending proceedings in order to justify staying them or refusal to resume them.
According to the Court, more general considerations also call for a prompt examination of cases concerning death in a hospital setting. Knowledge of the facts and possible errors made during the medical care should be quickly established in order to be disseminated among medical staff of a given institution and avoid repetition of similar faults and to ensure safety of the patients under the medical care.
Payment of just satisfaction and individual measures
Pecuniary damage
Non-pecuniary damage
Costs and expenses
Amount
-
20
1
21
Paid on 19/10/2006
The European Court awarded just satisfaction in respect of non-pecuniary damage.
The three sets of proceedings that were pending at the time of the Court’s judgment have since become final.
Following the police investigation of the alleged manslaughter of the applicant’s wife, the Wrocław District Prosecutor discontinued the proceedings on 18/05/2006 on the basis of lack of sufficient evidence.
This finding, which was based on expert medical opinions supplied by several Forensic Medicine Institutes, became final on 7/07/2006.
Disciplinary proceedings initiated by the applicant against the anesthesiologist were discontinued on 11/10/2007 (the decision became final on 14/12/2007).
The civil proceedings for compensation, pending before the Wrocław Regional Court, were completed by a final judgment of 3/09/2009. The Regional Court awarded the applicant and his son compensation and an allowance to the applicant’s son.
In the light of the above, no other individual measure seems necessary.
General measures
The European Court found no indication of any failure on the part of the State in its obligation to provide a procedure to determine the criminal, disciplinary or civil responsibility of persons who might be held liable (§106 of the judgment). The finding of a violation in this case resulted from the Court’s assessment of how this procedure had worked in the concrete circumstances.
In order to avoid similar violations, the Polish authorities undertook numerous actions aiming at legislative reforms as well as changing of national organs’ practice.
Legislative reforms
Reforms aiming at accelerating preparatory proceedings
By an amendment dated 20/02/2009 (in force from 1/05/2009), the Act on a complaint of breach of the right to a trial by the court without undue delay of 17/06/2004 was amended. The amended Act provides for the possibility of a complaint in case of excessive length of investigations, if by the
action or inactivity of a prosecutor conducting or supervising such proceedings, the infringement of parties’ right to have a case heard in preparatory proceedings without undue delay took place. According to the amended Act, if the complaint against excessive length of preparatory proceedings is well-founded, the court allowing it may address the court or the prosecutor conducting or supervising such proceedings with binding recommendations as to the conduct of particular proceedings.
The remedy against excessive length of criminal proceedings, with regards to a right to have a case heard within a reasonable time, is currently supervised by the Committee of Ministers in the Kudla group of cases (30210/96) where the Court found violations of Article 6 and 13.
According to the provisions of 29/03/2007 r. (in force from 12/07/2007), in order to simplify and accelerate criminal proceedings, an appeal against the decision to refuse an investigation or to discontinue it shall be lodged directly to the court not via the prosecutor (Article 465 § 2 Code of Criminal Proceedings).
It should also be recalled that, according to relevant provisions of the Code of Criminal Proceedings, a victim of crime, in case when a prosecutor decides to refuse opening of the investigation or to discontinue it, may initiate proceedings acting as an “auxiliary prosecutor”, following the procedure described in Articles 329-330 of the Code of Criminal Proceedings.
Prosecutors’ decisions on non-initiation of the investigation or on its discontinuation, in cases in which a victim may become an auxiliary prosecutor, are subject to the close scrutiny of their superiors, in line with guidelines issued by the Prosecutor’s General Office on 30 November 2012. The aim of the guidelines is also to prevent irregularities similar to those found in the judgment
Byrzykowski v.
Poland.
The changes relating to
the disciplinary procedure
before the Chambers of Physicians
On 2/12/2009, the new Chambers of Physicians Act, which regulates the professional responsibility of doctors, was adopted. The Act contains several provisions designed to broaden victims’ rights in disciplinary proceedings. Article 56 provides a victim with a right to participate in the disciplinary proceedings as a party (before a victim acted only as a witness). Article 57 contains the definition of a victim, determines the number of attorneys that the victim may have and provides for a victim’s right to access to the case file, that can be restricted only to the extent provided in statutes.
A victim may lodge an appeal against the decision refusing to institute disciplinary proceedings or on its discontinuation (Article 68). The new law provides also for the possibility of lodging a cassation appeal to the Supreme Court against a final judgment terminating a disciplinary proceeding before the Chamber.
Increasing the efficiency of the work of experts in court
The amendment dated 9/05/2007 (in force from 20/06/2007) broadened the scope of instruments at the courts’ disposal for disciplining persons participating in particular criminal proceedings,
inter alia
, experts. The amended Article 285, paragraph 1, of the Code of Criminal Proceedings provides for the possibility of imposing a penalty of up to 10,000 zlotys for the unexcused absence of the court expert.
Measures aimed at changing the practices of national authorities
The Court pointed to a number of mistakes made by the national authorities in the context of this case. Consequently, in order to avoid similar violations, it seems necessary to publish and disseminate the judgment.
In this context, it should be noted that the judgment was translated and published on the website of the Ministry of Justice (
www.ms.gov.pl
). In addition, in 2011, the Ministry of Justice prepared a special publication containing analysis of the leading jurisdiction concerning Poland – “Standards for the protection of human rights in the law of the European Convention on Human Rights” (
“Standardy ochrony praw człowieka w prawie Europejskiej Konwencji Praw Człowieka”
), containing a reference to this judgment, which was distributed free of charge to all judges and prosecutors.
A special publication was also prepared and published on the website of the Ministry of Justice (
www.ms.gov.pl
) – “Obligation of criminalisation and conduct of effective investigation explaining circumstances of a crime which constitutes a severe violation of human rights”
(“Obowiązek kryminalizacji i przeprowadzenia skutecznego postępowania wyjaśniającego okoliczności popełnienia przestępstwa stanowiącego poważne naruszenie praw człowieka”
)
.
This publication refers,
inter alia
, to the judgment in the case of
Byrzykowski v. Poland.
Additionally information on the judgment in the case of
Byrzykowski v. Poland
was published at the Public Prosecutor’s Office’s website.
[3]
In March 2012, the Prosecutor’s Office disseminated among prosecutors the Polish translation of the Guidelines of the Committee of Ministers of the Council of Europe on eradicating impunity for serious human rights violations (“
Wytyczne Komitetu Ministrów Rady Europy ws. zwalczania bezkarności poważnych naruszeń praw człowieka
”). The covering letter to prosecutors underlined the standards of effective investigation elaborated by the Court’s case law. A list of the Court’s judgments in which the Court found that Polish authorities did not conduct effective investigation included,
inter alia
, the judgment in the case of
Byrzykowski
, and indicated the most common failures of investigations.
Taking these circumstances into consideration, additional measures of a general nature do not seem necessary.
The applications of the respondent State
The government considers that no further individual measures are necessary in this case and that the measures adopted of a general nature, in particular the legislative changes and the publication and dissemination of the judgment of the European Court of Human Rights, will be sufficient to be said that Poland fulfilled its obligations under Article 46, paragraph 1 of the Convention.
[1]
Information submitted by the Polish authorities on 9 July 2013
[2]
[3]
http://www.pg.gov.pl/