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FOURTH
SECTION
CASE OF CIECHOŃSKA v. POLAND
(Application
no. 19776/04)
JUDGMENT
STRASBOURG
14 June
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Ciechońska v.
Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Ljiljana
Mijović,
Päivi
Hirvelä,
Ledi
Bianku,
Zdravka
Kalaydjieva,
Nebojša
Vučinić,
judges,
and Lawrence
Early, Section
Registrar,
Having
deliberated in private on 24 May 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 19776/04) against the Republic
of Poland lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Polish national, Ms Teresa Ciechońska
(“the applicant”), on 5 May 2004.
- The
applicant, who had been granted legal aid, was represented by
Ms M. Antoszewska, a lawyer practising in Warsaw. The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of
Foreign Affairs.
- The
applicant alleged, in particular, that the State failed in its
positive obligation to protect her husband’s life and to carry
out an effective and thorough investigation into his death.
- On
12 June 2006 the President of the Fourth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1943 and lives in Warsaw.
- On
10 July 1999 the applicant’s husband died after being hit by a
tree in a health resort at Kudowa Zdrój, where he had been
staying in a sanatorium. The tree toppled over and fell on the
applicant while he was walking on the pavement. Three other people
were injured in the accident.
- The
police arrived at the scene, examined the tree and took some
black-and-white photographs. The police report stated that the tree
was partly rotten and the roots had torn. The police heard an eye
witness and a post mortem examination of the applicant’s
husband was conducted. The Kłodzko District Prosecutor
(Prokurator Rejonowy) opened an investigation into the
incident.
- On
15 July 1999 the Kłodzko District Prosecutor (Prokurator
Rejonowy) discontinued the investigation into the applicant’s
husband’s death, finding that it had been an unfortunate
accident and that no offence had been committed. He established that
the tree had fallen in strong winds. The cause of death was a
fractured skull. The prosecutor also established that the Kudowa
Municipal Office (Urzad Miasta) was responsible for the
condition of trees in the city, and heard evidence from Ms A.P., the
Inspector for Environmental Protection (inspektor do spraw ochrony
środowiska), who testified that she had carried out a visual
inspection of the tree in April and June 1999, together with a Mr
Z.K. who worked for a company specialising in the protection and care
of trees and shrubs. She said that the tree had looked healthy and
there had been no indication that its removal was required. The
prosecutor considered that that assessment was consistent with the
examination of the tree after the accident as there were no visible
signs that it had been unhealthy or rotten.
- The
applicant appealed against that decision.
- On
7 September 1999 she obtained an opinion from the Institute of
Meteorology and Water Management (IMGW) on weather conditions
in Kudowa on 10 July 1999. According to the opinion, the wind had
been weak or moderate that day and there had been no violent
atmospheric conditions.
- On
9 December 1999 the Kłodzko District Court (Sąd
Rejonowy) allowed the applicant’s appeal and returned the
case to the prosecutor to continue the investigation. It considered
that the prosecuting authorities had failed to establish what had
caused the tree to fall or to examine whether the visual inspection
allegedly carried out by A.P. prior to the accident could be
considered appropriate. It also pointed to the discrepancy between
the police report, which had stated that the tree was partly rotten,
and the prosecutor’s finding that it was healthy. The court
instructed the prosecutor to question the police officers who had
attended the scene and the persons who had been injured in the
accident.
- On
31 March 2000 the Kłodzko District Prosecutor discontinued the
investigation finding that no offence had been committed. From his
questioning of the police officers, he established that the tree had
looked healthy but that after the accident it had become apparent
that it had been partly rotten and had a weak root system. The
prosecutor also considered that although the Institute for
Meteorology had not recorded any violent wind there could have been
local gusts. He concluded that the fall of the tree and the death of
the applicant’s husband had not been caused by any negligence
on the part of those responsible for maintaining the trees.
- On
17 April 2000 the applicant appealed against that decision.
- On
29 May 2000 the Świdnica Regional Prosecutor allowed the appeal
and remitted the case to the District Prosecutor. The appellate
prosecutor stressed the need to order expert opinions to establish
the condition of the tree.
- On
3 June 2000 an expert, E.M., submitted to the District Prosecutor his
opinion on the condition of the fallen sycamore tree (klon jawor).
On the basis of the testimonies of the police officers the expert
established that the fallen tree was rotten inside and had been
totally deprived of its roots. The photographs taken after the
accident also showed that the tree’s root system had already
been badly damaged beforehand. On the picture the trunk could be seen
to have been completely deprived of its roots, which would not have
been the case if the only thing which had caused it to fall had been
strong winds. Nevertheless, the expert concluded that it was possible
that such damage to the tree had not been visible from the outside,
and that persons responsible for tree maintenance could not normally
conduct a comprehensive examination of the roots.
- On
9 June 2000 the Kłodzko District Prosecutor discontinued the
proceedings, mainly on the basis of the expert opinion.
- The
applicant appealed.
- On
3 July 2000 the Świdnica Regional Prosecutor allowed the appeal
and remitted the case to the District Prosecutor. The appellate
prosecutor emphasised that given the gravity of the accident, in
which a person had died, all the circumstances had to be
comprehensively clarified.
- On
16 August 2000 the District Prosecutor ordered another expert opinion
to determine the exact location of the tree and the owner of the
property.
- On
22 September 2000 the Kłodzko District Prosecutor again decided
to discontinue the investigation into the applicant’s husband’s
death, finding that it had been an accident for which nobody could be
held responsible.
- The
applicant appealed and on 4 December 2000 the Świdnica Regional
Prosecutor remitted the case to the District Prosecutor and ordered
him to continue the investigation. On 15 December 2000 the case was
transferred to another prosecutor and the prosecutor who had been
dealing with the case up to that point was reprimanded for not
following the instructions of the appellate authorities and for
delaying the proceedings.
- On
22 January 2001 the Kłodzko District Prosecutor ordered a
further expert opinion.
- On
19 March 2001 the expert inspected the scene of the accident and on
24 March 2001 submitted his opinion to the prosecutor.
- On
18 May 2001 the prosecutor closed the investigation into the death of
the applicant’s husband and on 25 May 2001 lodged a bill of
indictment against Ms A.P., the Inspector for Environmental
Protection, with the Kłodzko District Court, on charges of
having failed to carry out her duty to prevent the sycamore tree from
falling, and thereby causing the death of the applicant’s
husband and injuries to three other persons.
- On
31 May 2002 the applicant lodged a civil claim with the trial court
for compensation in the amount of PLN 400,000 under Article 62 of the
Code of Criminal Procedure. She also requested the court to begin the
trial and hold a hearing. The applicant indicated her wish to act as
an auxiliary prosecutor (oskarżyciel posiłkowy).
- On
13 November 2002 the trial court held the first hearing. However, the
court failed to examine the admissibility of the applicant’s
civil claim.
- On
2 December 2002 the applicant applied for legal aid as she could not
afford to pay for a lawyer of her choice, was in poor health and –
given the substantial distance of 550 kilometres between her home in
Warsaw and the place of trial – it would be difficult for her
to commute to hearings. It is not clear whether her application was
ever examined.
- Subsequently,
until 28 May 2003 the court held hearings at regular intervals, heard
evidence from witnesses and ordered an expert opinion. All hearings
scheduled thereafter were cancelled owing to the illness of either
the accused or the judge rapporteur.
- At
the next hearing, held on 7 October 2004, the composition of the
court changed, so the trial had to start from the beginning.
Subsequently witnesses were heard and on 4 January 2005 the trial
court ordered an expert opinon. The expert failed to submit his
opinion within the time-limit and on 27 June 2005 the trial court
fined him. The expert finally submitted the opinion on 20 August
2005.
- On 15 February 2006 the applicant, who had standing in
the proceedings as an auxiliary prosecutor, lodged a complaint with
the Świdnica Regional Court (Sąd Okręgowy)
under the Law of 17 June 2004 on complaints about a breach of the
right to a trial within a reasonable time (“the 2004 Act”).
- On
31 March 2006 the Świdnica Regional Court allowed her complaint,
found that there had been a breach of her right to a trial within a
reasonable time and awarded her PLN 3,000 in compensation. It found
that there had been several lengthy periods during which the trial
court had been totally inactive, for example, no action had been
taken for twelve months after the bill of indictment was lodged with
the trial court.
- On
4 April 2006 the trial court held a hearing.
- On
26 April 2006 it gave a judgment in which it acquitted Ms A.P. after
finding that no offence had been committed. It found that she had
conducted a proper inspection of the tree prior to the accident and
had established that it was healthy. The experts had concluded that
the tree looked healthy from the outside and that there had been no
signs that the roots were badly damaged. The court considered that
the event of 10 July 1999 was an unfortunate accident which
had no direct link with the actions of the accused.
- On
9 August 2006 the applicant appealed against the judgment. She
submitted that Ms A.P. did not possess the relevant expertise and had
been negligent in the manner in which she had inspected the trees or
marked them out for removal. In particular, there was no evidence
that the inspections had been carried out on the dates given by the
accused. Moreover, the tree had been growing on an escarpment and the
roots had apparently been removed during the installation of a gas
pipeline directly underneath it. The applicant contended that these
elements had not been examined by the trial court.
- On
3 November 2006 the Świdnica Regional Court allowed the appeal
and remitted the case. It pointed to several inconsistencies in the
district court’s findings as to the relevant facts. In
particular, it was not clear to what extent the tree had been leaning
or whether the angle had been calculated with reference to the slope
or the pavement.
- The
trial court held hearings on 11 April, 9 May and 7 September 2007.
- On
7 September 2007 the Kłodzko District Court gave a judgment in
which it acquitted Ms A.P. It established that she had not been under
an obligation to inspect the trees or to prevent them from falling
because that was not part of her duties.
- The
applicant and the prosecutor lodged appeals against the judgment.
- On
11 December 2007 the Świdnica Regional Court quashed the
judgment and remitted the case. It found that the trial court had
failed to analyse the legal regulations in force at the material
time. It pointed out that issues concerning trees in public places
were the responsibility of the municipal authorities and that they
could be held criminally liable for failure to carry out their duties
properly. Thus, the Mayor of Kudowa Zdrój was obliged by law
to order the removal of trees that were unsafe. Moreover, it appeared
from the documents in the file that a gas pipeline had been laid
under the tree, making it necessary to remove some of the roots, and
that that issue had not been clarified. Lastly, the court noted that
the trial court had failed to deal with the complaint, raised by the
applicant in her appeal, that her claim for compensation had never
been examined.
- On
an unspecified date in 2007 the applicant received from the office of
the Mayor of Kudowa Zdrój a reply to her letter requesting
compensation for her husband’s death. The Mayor refused to
acknowledge the liability of the municipality and stated that the
criminal court had not held the municipality responsible for her
husband’s death. The applicant was further informed that if she
lodged a civil claim for compensation it would most probably be
stayed until the termination of the criminal proceedings.
- The
trial court held hearings on 5 May, 16 June, 23 July and 1 October
2008.
- On
6 April 2009 it gave a judgment in which it again acquitted Ms A.P.
The court established that the root system of the tree in question
had been seriously damaged. However the disease had not been visible
on the external parts of the tree – in particular on its crown.
Thus persons checking the state of the tree could not have
established that the tree had become a danger to the public and
ordered its removal. Furthermore, the court established that there
had been no grounds to believe that since the tree had grown on a
slope it had been necessary to take any preventive measures by, for
example, installing special supports.
The
court considered that there had been many shortcomings in the
preparatory proceedings. Consequently, many issues relating to the
exact location of the tree, its condition, and whether it had been
leaning, had not been elucidated. For example, it was not possible to
establish if the roots of the fallen tree could have been damaged
during the installation of the gas pipeline because it had not been
clear where exactly the tree had been growing. Moreover, the tree, or
its part, had not been secured for further examination but had been
destroyed immediately after the accident. The photographic evidence
was of poor quality, black-and-white, and blurred so the reason for
the fall of the tree, and where it actually grew, could not be
unambiguously clarified. According to the court, the expert opinions
prepared on the basis of such poor evidentiary material could not
make it possible to conclude that there had been grounds for removal
of the tree or use of supports.
As
regards the liability of Ms A.P. the court agreed with the previous
findings and concluded that the accused had not been obliged to carry
out controls of trees and to order their removal. Although her duties
included “issuing of decisions to remove shrubs and trees”,
such decisions had in fact been given by the Mayor and she had only
been preparing files for his examination. The court acknowledged that
Ms A.P. admitted to having carried out some controls of the trees
together with a specialist. However, it considered that she had been
doing so either directly in accordance with instructions of the Mayor
or following complaints made by the public.
The
court considered that the absence of clear regulations regarding who
was responsible for the care of green areas and for carrying out
checks of trees amounted to clear organisational negligence on the
part of the municipality, for which the accused should not be held
liable.
Finally,
the court found that the applicant’s request for compensation
had been pointless in the light of the acquittal of Ms A.P. because
the obligation to compensate damage could arise only in the event of
a conviction.
- The
applicant and the prosecutor each lodged appeals against the
judgment.
- On16
July 2009 the Świdnica Regional Court upheld the judgment. It
agreed with the first-instance court in that, according to her
contract of employment, the accused had not been required to
undertake any actions aimed at protecting trees from falling.
According to the law, the legal responsibility for care of the
greenery lay with the municipality which should have secured the
means and organised a system to fulfil its obligations. A failure of
the municipality to take necessary measures to eliminate a danger to
the public could result in criminal liability. The court however
underlined that it had not been proved that the carrying out of these
duties had been vested in the accused. Thus, she could not be held
criminally liable for having failed to do so.
The
court also established that taking into account the state of the
trees discovered during an inspection on 19 March 2001, and the
lengthy process of development of pathologies in trees, the Kudowa
Zdrój Municipality had not been correctly carrying out the
above-mentioned duty of care in respect of its green areas.
Nevertheless, the responsibility for that failure could not be
attributed to the accused.
- The
Regional Court’s judgment was final and binding (prawomocny).
However, the parties could lodge a cassation appeal with the Supreme
Court. On 15 October 2009 the Świdnica Regional Court dismissed
the applicant’s request for legal aid for the purposes of
lodging a cassation appeal. The applicant submits that a lawyer of
her choice refused to lodge a cassation appeal on her behalf because
it had no prospects of success.
II. RELEVANT DOMESTIC LAW
- Article
62 of the Code of Criminal Procedure provides as follows:
“The victim may, until the start of the judicial
examination at the main trial, lodge a civil claim against the
accused in order to determine, within the framework of the criminal
proceedings, his pecuniary property claims directly resulting from
the offence.”
- Article
63 of the Code allows a deceased victim’s next-of-kin to
institute a civil action under Article 62.
Article
65 reads as follows:
“1. Before commencing its examination,
the court shall reject a civil claim if:
1) it is inadmissible by reason of some
special provision;
2) it has no direct connection with the
charges included in the indictment;
3) it has been filed by an unauthorised
person;
4) it is the object of other proceedings or a
valid and final decision; or
5) a public, local-government social
institution or a person who is not an accused in the criminal
proceedings needs to be joined as a defendant.
2. If the civil claim is in proper form, and
the circumstances set forth in § 1 do not apply, the court shall
issue a decision regarding the admissibility of the civil claim.
3. The court shall not hear the civil claim,
even if previously declared admissible, if after it has commenced its
judicial examination, any of the circumstances listed in § 1,
comes to light.
4. No interlocutory appeal shall lie against
the refusal of the court to declare a civil claim admissible, or the
fact that it has not been heard pursuant to § 3.”
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 2 OF THE CONVENTION
- The
applicant complained that Article 2 of the Convention had been
breached in that the State had failed in its positive obligation to
protect the applicant’s husband’s life and failed to
carry out an effective investigation into the circumstances of his
death. Article 2 of the Convention reads as follows:
“1. Everyone’s right to life
shall be protected by law. No one shall be deprived of his life
intentionally save in the execution of a sentence of a court
following his conviction of a crime for which this penalty is
provided by law.
2. Deprivation of life shall not be regarded
as inflicted in contravention of this article when it results from
the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful
violence;
(b) in order to effect a lawful arrest or to
prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose
of quelling a riot or insurrection.”
- The
Government contested that argument.
A. Admissibility
- The
Government submitted that the applicant had not exhausted the
remedies available under Polish law in that she had lodged the
application with the Court without waiting for the outcome of the
criminal proceedings concerning her husband’s death, and thus
the application was premature. They failed to submit further comments
on the issue after the domestic proceedings in the applicant’s
case had ended.
- The
applicant submitted that she had used all existing remedies in order
to obtain the prosecution and punishment of those responsible for her
husband’s death. It was only because of her determination that
the prosecutor had finally indicted the civil servant responsible for
the maintenance of municipal trees and shrubs. She had also attempted
to bring a civil action for compensation, but it had never been
examined. Moreover, she had lodged a complaint about the unreasonable
length of the criminal proceedings – but it had not led to the
acceleration of the proceedings. In sum, the authorities had been
trying to conceal the truth and had failed to conduct a thorough and
effective investigation into her husband’s death. Thus, the
existing remedies had proved to be ineffective.
- The
Court notes that the applicant has been actively involved in the
criminal proceedings brought against Ms A.P., employed by the Kudowa
Zdrój Municipal office as the Inspector for Environmental
Protection. Those proceedings finally ended on 16 July 2009 with the
acquittal of the accused. The Government’s objection that the
Article 2 complaint was premature should therefore be dismissed.
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention and is not
inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
1. The submissions made to the Court
(a) The applicant
- The
applicant submitted that the State had failed in its positive
obligation to take appropriate action to protect life against a real
and imminent threat of which the authorities had been or should have
been aware. The tragic death of her husband had occurred because of
the municipality’s failure to secure the proper maintenance of
its trees. The municipality was required to secure the funding and
resources necessary to treat or remove unhealthy trees, as well as
implement appropriate measures to protect people’s lives and
health in that respect. The applicant argued that her husband’s
death was not an unpredictable accident, caused for example by a very
strong wind, but a result of negligence for which the municipal
authorities should be held liable. The tree in question had no roots
as they had either decayed or been removed during the laying of a gas
pipeline. The municipality had authorised the construction of the
pipeline. Accordingly it had known, or should have known, where it
ran and that the investment had involved the removal of the roots of
trees where they interfered with the pipeline. In any event, the
authorities had failed in their obligation to properly inspect the
condition of the trees and remove those presenting a threat to
people’s lives or health.
- Secondly,
the applicant complained of the unreasonable length and the
ineffectiveness of the domestic authorities’ investigations
into the tragic death of her husband. She submitted that for over ten
years she had endured extreme stress and hardship as a result of the
investigation and the trial. The prolonged stress had caused her
serious health problems as she had almost totally lost her hearing.
She alleged that the authorities had not been diligent. They had
failed to examine the evidence, most of which had been adduced at her
request, proving for instance that the tree that had killed her
husband did not have any roots. Moreover, the tree had been removed
and destroyed immediately after the accident, so preventing any
expert evidence from being taken. The applicant also complained that
the civil claim she had made before the start of the criminal trial
had never been examined and that she was prevented from obtaining
compensation because of the limitation period.
(b) The Government
- The
Government maintained that the State cannot be held responsible for
the death of the applicant’s husband. They submitted that
Article 2 of the Convention was not applicable to the present case as
his death had been a tragic accident. Moreover, at the time of making
their submissions the issues surrounding the incident were still in
dispute before the domestic courts. The Government maintained that
the criminal court alone could be considered competent to establish
the facts and to assess the alleged responsibility of the Inspector
for Environmental Protection for the applicant’s husband’s
death.
- The
Government refrained from commenting on whether the investigation
into the death of the applicant’s husband and the judicial
phase of the proceedings had been conducted thoroughly and
effectively, as required by Article 2 of the Convention.
- Moreover,
regard being had to the fact that the applicant’s civil action
lodged in the course of the criminal proceedings had not been
examined by the courts until 2009, the Government did not take a
position on whether this matter raised an issue under the Convention.
2. The Court’s assessment
(a) General principles
- Article
2 ranks as one of the most fundamental provisions in the Convention.
It enshrines one of the basic values of the democratic societies
making up the Council of Europe. The object and purpose of the
Convention as an instrument for the protection of individual human
beings require that Article 2 be interpreted and applied so as to
make its safeguards practical and effective (see, among many other
authorities, Anguelova v. Bulgaria, no. 38361/97, §
109, ECHR 2002 IV).
- The
Court reiterates that the first sentence of Article 2 § 1
enjoins the State not only to refrain from the intentional and
unlawful taking of life, but also to take appropriate steps to
safeguard the lives of those within its jurisdiction (see L.C.B.
v. the United Kingdom, 9 June 1998, § 36, Reports of
Judgments and Decisions 1998-III; Osman v. the United Kingdom,
28 October 1998, § 115, Reports 1998 VIII; and
Paul and Audrey Edwards v. the United Kingdom, no. 46477/99,
§ 71, ECHR 2002 II).
- Such
positive obligation has been found to arise in a range of different
contexts examined so far by the Court. Thus, for example, and as
regards policing, the Court has noted that the authorities are under
a duty to protect the life of an individual where it is known, or
ought to have been known to them in view of the circumstances, that
he or she was at real and immediate risk from the criminal acts of a
third party (see Osman, cited above, § 115).
- The
State’s positive obligation under Article 2 has also been found
to be engaged in the health care sector, be it public or private, as
regards the acts or omissions of health professionals (see Dodov
v. Bulgaria, no. 59548/00, §§ 70, 79-83 and 87,
ECHR 2008 ...; Byrzykowski v. Poland, no. 11562/05,
§§ 104 and 106, 27 June 2006; and Vo v. France [GC],
no. 53924/00, §§ 89-90, ECHR 2004 VIII, with
further references), as well as in respect of the management of
dangerous activities (see Öneryıldız v. Turkey
[GC], no. 48939/99, § 71, ECHR 2004 XII) and
ensuring safety on board a ship (see Leray and Others v. France
(dec.), no. 44617/98, 16 January 2008) or on building sites (see
Pereira Henriques and Others v. Luxembourg (dec.), no.
60255/00, 26 August 2003). In certain circumstances positive
obligations may attach to a State to protect individuals from risk to
their lives resulting from their own action or behaviour (see Bone
v. France (dec.), no. 69869/01, 1 March 2005, with further
references). In addition, the extent of the State’s positive
obligation under Article 2 has been addressed by the Court in the
context of road safety (see, for example, Rajkowska v. Poland
(dec.), no. 37393/02, 27 November 2007). The State’s
duty to safeguard the right to life was also considered to extend to
the provision of emergency services where it has been brought to the
notice of the authorities that the life or health of an individual is
at risk on account of injuries sustained as a result of an accident
(see Furdik v. Slovakia (dec.), no 42994/05, 2 December 2008).
- The
above list of sectors is not exhaustive. Indeed, in its Oneryildiz
v. Turkey judgment cited above (§ 71) the Grand Chamber
observed that the Article 2 positive obligation must be construed as
applying in the context of any activity, whether public or not, in
which the right to life may be at stake.
- However,
the positive obligation is to be interpreted in such a way as not to
impose an excessive burden on the authorities, bearing in mind, in
particular, the unpredictability of human conduct and operational
choices which must be made in terms of priorities and resources (see,
amongst other authorities, Keenan v. the United Kingdom,
no. 27229/95, § 90, ECHR 2001 III, and A.
and Others v. Turkey, no. 30015/96, §§ 44-45,
27 July 2004).
- The
Court recalls in this connection that the choice of means for
ensuring the positive obligations under Article 2 is in principle a
matter that falls within the Contracting State’s margin of
appreciation. There are different avenues to ensure Convention
rights, and even if the State has failed to apply one particular
measure provided by domestic law, it may still fulfil its positive
duty by other means (see, among other cases, Fadeyeva v. Russia,
no. 55723/00, § 96, ECHR 2005 IV).
- The
State’s positive obligation also requires an effective
independent judicial system to be set up so as to secure legal means
capable of establishing the facts, holding accountable those at fault
and providing appropriate redress to the victim (see Dodov,
cited above, § 83, and Byrzykowski, cited above, §§
104-118). This obligation does not necessarily require the provision
of a criminal-law remedy in every case. Where negligence has been
shown, for example, the obligation may for instance also be satisfied
if the legal system affords victims a remedy in the civil courts,
either alone or in conjunction with a remedy in the criminal courts.
However, Article 2 of the Convention will not be satisfied if the
protection afforded by domestic law exists only in theory: above all,
it must also operate effectively in practice (see Calvelli and
Ciglio, cited above, § 53).
- For
the Court, and having regard to its case-law, the State’s duty
to safeguard the right to life must also be considered to involve the
taking of reasonable measures to ensure the safety of individuals in
public places and, in the event of serious injury or death, having in
place an effective independent judicial system securing the
availability of legal means capable of establishing the facts,
holding accountable those at fault and providing appropriate redress
to the victim (see paragraph 66 above). The events related to the
applicant’s husband’s death therefore fall within the
scope of Article 2 of the Convention.
(b) Application of the general principles
in the present case
- In
the present case the applicant’s husband died in 1999 after he
had been hit by a tree that had fallen on a pavement. Following his
death an investigation was opened and the prosecutor, after having on
four occasions discontinued the investigation, on 25 May 2001
indicted a municipal official for having failed to identify the tree
which caused the tragic accident as being dangerous. It took another
eight years for the courts to examine the case; on 16 July 2009
the Świdnica Regional Court finally acquitted the official.
- Having
regard to the approach adopted in previous cases involving
non-intentional infringements of the right to life, the Court
reiterates that the aforementioned positive obligations require
States to adopt in this context regulations for the protection of
people’s safety in public spaces, and to ensure the effective
functioning of that regulatory framework (see Calvelli and Ciglio
v. Italy [GC], no. 32967/96, § 49, ECHR 2002 I,
and Furdik, cited above).
- The
Court firstly notes that there existed legal regulations regarding
care and maintenance of greenery in towns, including trees growing on
municipal land. The responsibility of the municipality for the
maintenance of trees was confirmed by the domestic courts which
finally, in 2009, established that the Kudowa Zdrój
Municipality had not been carrying out its duty to care for its green
areas correctly, although legally obliged to do so (see paragraphs 42
and 44 above). However, it was more difficult for the courts to
establish the issue of the individual responsibility of the Inspector
for Environmental Protection as the scope of her duties with regard
to the inspection of trees and their treatment appeared to be opaque
and open to ambiguity.
The
Court is not required, however, to arrive at general conclusions
about the relevant regulatory regime in abstracto. It must
examine whether the legal system as a whole dealt adequately with the
case at hand (see Dodov v. Bulgaria, cited above, §§
83 and 86).
- Secondly,
the Court reiterates that an issue of State responsibility under
Article 2 of the Convention may arise in the event of the inability
of the domestic legal system to secure accountability for any
negligent acts endangering or resulting in the loss of human life
(see Furdik, cited above).
In
such a case the Court must examine whether the available legal
remedies, taken together, as provided in law and applied in practice,
could be said to have amounted to legal means capable of establishing
the facts, holding accountable those at fault and providing
appropriate redress to the victim.
- Following
the death of the applicant’s husband on 10 July 1999, the
prosecutor opened an investigation and five days later discontinued
it. The applicant submitted that the discontinuation had been
premature and that the prosecutor had failed to prepare an expert
opinion. These doubts were confirmed by the District Court which, on
9 December 1999, remitted the investigation to the prosecutor and
ordered him to supplement the case (see paragraph 11 above).
Subsequently, on three occasions the regional prosecutor remitted the
case to the district prosecutor for re-examination. The appellate
prosecutor observed that all the circumstances of the accident had
not been clarified and that no expert opinion had been prepared. On
the last occasion, he reprimanded the district prosecutor for not
following the instructions of the appellate authorities and for
delaying the proceedings (see paragraphs 14, 18 and 21 above).
- Finally,
after the case was transferred to another district prosecutor, on 25
May 2001 a bill of indictment was lodged with the Kłodzko
District Court against the Inspector for Environmental Protection.
However,
the trial court remained totally inactive for the next eighteen
months as the first hearing was held only on 13 November 2002.
Moreover, between 23 May 2003 and 7 October 2004 no hearings
were held. On the latter date the composition of the court changed
and the trial had to start anew. An expert opinion ordered on 4
January 2005 was not submitted to the court until 20 August 2005. All
these delays, particularly the delay at the beginning of the trial,
were confirmed by the Regional Court which, on 31 March 2006,
allowed the applicant’s complaint under the 2004 Act.
Most
recently, on 11 December 2007, after the second quashing of the trial
court’s judgment acquitting the accused, the case was for the
third time remitted to the Kłodzko District Court. The trial
court delivered a judgment, which was upheld on appeal, on 6 April
2009.
- The
Court observes that the investigation into the death of the
applicant’s husband was discontinued on four occasions and
that, each time, the decision to discontinue the investigation was
quashed by the appellate authorities.
The
same pattern of repeated deficient decisions which had to be later
quashed because of a failure to elucidate important factual or legal
circumstances repeated itself in the judicial stage of the
proceedings. The Regional Court twice remitted the case to the
District Court and quashed the decisions to acquit Ms A.P. (see
paragraphs 35 and 39 above). The Regional Court pointed to
inconsistencies and deficiencies in the trial court’s findings,
as well as the failure to analyse the legal regulations governing
liability with regard to the maintenance of trees on municipal land.
The
Court finds that, since the remittal of cases for re-examination is
usually ordered as a result of errors committed by lower authorities,
the repetition of such decisions within one set of proceedings
disclosed in the applicant’s case a serious deficiency in the
operation of the judicial system (see Byrzykowski, cited
above, § 111).
- Furthermore,
there were many shortcomings, particularly at the early stage of the
proceedings, which negatively affected any prospect of establishing
the facts of the case and the responsibility of the accused. In
particular, it appears that the remainder of the tree was immediately
removed and destroyed, photographic evidence taken was of poor
quality and other issues, for instance, the exact location of the gas
pipe and its impact on the health of the tree, had never been
elucidated (see paragraph 42 above).
- Regard being had to the overall length of the period
which has elapsed since the death of the applicant’s husband on
10 July 1999 and the termination of the proceedings ten years later,
to the serious deficiencies in the operation of the judicial system
and other shortcomings discerned above, the Court is of the view that
it cannot be said that the procedures applied in order to elucidate
the applicant’s allegations of negligence on the part of the
municipal official resulted in an effective investigation into the
cause of death in the present case.
- Finally,
the Court reiterates that the State’s positive obligation to
set up an effective judicial system may be satisfied if the legal
system affords victims a remedy in the civil courts enabling
liability to be established and any appropriate civil redress, such
as damages, to be obtained. In the present case the Court notes that
although the applicant requested to join the criminal proceedings as
a civil party on 31 May 2002, the domestic court failed to give any
decision in this regard either allowing or rejecting this claim (see
paragraphs 25, 26 and 39 above). The Government acknowledged that the
civil claim had not been examined by the trial court but failed to
explain why. In the end, the applicant’s civil claim was
dismissed on 6 April 2009 by the Kłodzko District Court which
found it manifestly ill-founded in the light of the municipal
official’s acquittal.
The
Court reiterates that the obligations of the State under Article 2 of
the Convention will not be satisfied if the protection afforded by
domestic law exists only in theory: above all, it must also operate
effectively in practice within a time-span such that the courts can
complete their examination of the merits of each individual case (see
Calvelli and Ciglio [GC], cited above, §§ 51-53, and
Vo v. France [GC], no. 53924/00, §§ 89 90,
ECHR 2004-VIII).
- In
the light of the above, the Court considers that in the particular
circumstances of the case neither the criminal proceedings nor the
possibility to bring a civil action enabled the applicant to
effectively establish any liability for the death of her husband and
to obtain appropriate civil redress. The legal system as a whole,
faced with an arguable case of a negligent act causing death, failed
to provide an adequate and timely response consonant with Poland’s
obligations under Article 2 of the Convention.
- Accordingly,
the Court concludes that there has been a violation of Article 2 of
the Convention.
II. ALLEGED VIOLATIONS OF ARTICLES 6 § 1 AND 13 OF
THE CONVENTION
- The
applicant complained of a violation of Articles 6 § 1 and 13 of
the Convention in that her civil claim had never been examined.
- The
Government decided not to comment on these complaints.
- The
Court notes that this complaint is linked to the one examined above
and must therefore likewise be declared admissible.
- The Court observes that this
complaint has the same factual background as the issues examined
under Article 2 of the Convention. Moreover, in finding a violation
of the latter provision the Court also had regard to the domestic
court’s failure to examine the applicant’s civil claim
brought in 2002 (see paragraphs 77 and 78 above). In the light of
that finding the Court considers that it is not necessary to examine
the facts of the case separately under Articles 6 § 1 and
13 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 400,000 Polish zlotys (PLN, approximately 100,000
euros (EUR) at the time the claim was submitted) in respect of
non pecuniary damage.
- The
Government considered the claim excessive.
- The
Court awards the applicant EUR 20,000 in respect of non pecuniary
damage.
B. Costs and expenses
- The
applicant also claimed PLN 22,000 (approximately EUR 5,500) for the
costs and expenses incurred before the domestic courts and the Court.
The claim comprised PLN 12,000 (approximately EUR 3,000) in legal
costs for her representation before the Court, which included 60
hours’ work at an hourly rate of PLN 200, and PLN 10,000
(approximately EUR 2,500) for costs incurred before the domestic
authorities since 1999, in particular, trips between the applicant’s
home in Warsaw and the trial court, as well as legal fees and postal
expenses, the latter having been incurred in both the domestic and
the Strasbourg proceedings.
- The
Government submitted that only those costs actually and necessarily
incurred should be reimbursed.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, the Court notes that
the claims submitted by the applicant were not excessive as she had
obviously sustained costs in connection with the 10-year-long
domestic proceedings as well as before the Court in Strasbourg. As
regards the latter, the Court considers that the claim submitted by
her lawyer was sufficiently substantiated. Regard being had to the
information in its possession and the above criteria, the Court
allows the applicant’s claim in full, less EUR 850 already
received by the applicant by way of legal aid from the Council of
Europe. It thus awards her the sum of EUR 4,650 covering costs under
all heads.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
2 of the Convention;
- Holds that there is no need to examine the
complaints under Articles 6 § 1 and 13 of the
Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance
with Article 44 § 2 of the Convention, the
following amounts, to be converted into Polish zlotys at the rate
applicable at the date of settlement:
(i) EUR
20,000 (twenty thousand euros), plus any tax that may be chargeable,
in respect of non-pecuniary damage;
(ii) EUR
4,650 (four thousand six hundred and fifty euros), plus any tax that
may be chargeable to the applicant, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 14 June 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza Registrar President
