(Application no. 11818/02)
24 March 2009
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 Mojsiejew v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Nicolas Bratza, President,
David Thór Björgvinsson,
Mihai Poalelungi, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 3 March 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
“Numerous effusions of blood in the soft tissue of the neck.”
“The above observations [from photographs and an inspection of the room in which Hubert Mojsiejew died] lead to a conclusion that the injuries to the deceased's neck most probably did not occur prior to his arrival at the sobering-up centre, or as a result of his being tied to the bed by belts. In consequence, another means by which these injuries occurred needed to be examined.
The absence of external skin injuries and the presence of extensive internal injuries in the soft tissue of the neck indicate that a large amount of direct pressure had been applied with a blunt object of a substantial surface area. Such an object could have been, for example, an arm, or alternatively the elbow area between the forearm and arm, if somebody had applied the immobilisation technique called a headlock (krawat). In this hold the person applying it normally stands behind the person to be immobilised and forcefully puts his arm around the neck [... simultaneously pushing the head with the other hand ...]. This hold blocks breathing and hinders the access of blood to the brain, which in a short time leads to fainting. At the same time, if [the headlock] lasts long enough it may lead to death by strangulation or cardiac arrest. ... Cardiac arrest or respiratory failure occurs either immediately after [the headlock] has been applied or it can occur some time afterwards if the hold was applied for a long enough time to cause brain damage ...
It appears from medical and forensic practice that the [headlock] is sometimes used on intoxicated and aggressive patients at sobering-up centres. Such actions, where they do not cause death, expose the person to a direct danger of loss of life or serious bodily injury within the meaning of Article 160 of the Criminal Code.
The absence of any external signs of injuries on the chest which could indicate that strong pressure had been applied by narrow belts limiting the respiratory movements of the chest ..., taking into account the above considerations, makes it very doubtful that the immobilisation of the chest was the cause of [Hubert Mojsiejew's] death.
While the cause of death advanced by the Śląska Medical Academy cannot be totally ruled out, it is much more probable that the cause of the sudden death of [Hubert Mojsiejew] was strangulation (uduszenie przez zadławienie) by applying strong pressure with a blunt object to the neck, in the manner and circumstances described above.
It should be added that such extensive injuries to the front side of his neck could not have happened if [Hubert Mojsiejew] was trying to free himself from the belts while lying on his stomach. It is also impossible that such injuries occurred during convulsions...
A forensic examination of the body (obdukcja sądowo-lekarska), in the place in which it had been found, was not conducted, which makes it impossible to establish the exact time of death. Analysing livor mortis (plamy pośmiertne) [and other factors], one can only advance the hypothesis that about one to two hours had elapsed between his death and the time at which his body was found.”
At 8.45 a.m. one employee of the centre noticed through the glass in the door that the skin on Hubert Mojsiejew's hands was of an unnatural colour. He called a doctor on duty and together they came into the room. They untied Mr Mojsiejew. At 9.06 an ambulance came and the doctor established that Hubert Mojsiejew was dead.
II. RELEVANT DOMESTIC LAW
“Anyone who unintentionally causes the death of a human being shall be subject to the penalty of deprivation of liberty for a term of between 3 months and 5 years.”
“1. Anyone who exposes a human being to an immediate danger of loss of life, serious bodily injury, or a serious impairment of health shall be subject to the penalty of deprivation of liberty for up to 3 years.
2. If the perpetrator has a duty to take care of the person exposed to danger, he shall be subject to the penalty of deprivation of liberty for a term of between 3 months and 5 years.”
The latter ordinance provides, in so far as relevant:
“9 (2) A doctor shall recommend application of direct coercion in the form of immobilisation or isolation for a period of no longer than four hours. If necessary, the doctor, after personal examination of the patient, may extend the use of immobilisation for subsequent periods of six hours.
13 A nurse on duty shall check the state of the immobilised or isolated person no less frequently then every 15 minutes, including when the person is asleep. The state of the person shall be recorded on the [patient's] card without delay.”
I. ALLEGED VIOLATIONS OF ARTICLE 2 OF THE CONVENTION
“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.”
Consequently, the applicant was not required to bring the civil proceedings in question and the preliminary objection concerning proceedings of that nature is unfounded (see Yaşa v. Turkey, 2 September 1998, § 75, Reports 1998-VI).
It further notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 and is not inadmissible on any other grounds. It must therefore be declared admissible.
B. The merits
1. The submissions made to the Court
(a) The applicant
(b) The Government
2. The Court's assessment
(a) General principles
(a) Article 2 imposes a duty on the State to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person, backed up by law enforcement machinery for the prevention, suppression and punishment of breaches of such provisions (see Osman, cited above, § 115; Mastromatteo v. Italy [GC], no. 37703/97, §§ 67 and 89, ECHR 2002 VIII; and Menson v. the United Kingdom (dec.), no. 47916/99, ECHR 2003 V).
(b) Compliance with the State's positive obligations under Article 2 requires the domestic legal system to demonstrate its capacity to enforce criminal law against those who have unlawfully taken the life of another (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 160, ECHR 2005 VII).
(c) The effective investigation required under Article 2 serves to maintain public confidence in the authorities' maintenance of the rule of law, to prevent any appearance of collusion in or tolerance of unlawful acts, to secure the effective implementation of the domestic laws which protect the right to life and the right not to be subjected to ill treatment and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility (see, among many other authorities, McKerr v. the United Kingdom, no. 28883/95, §§ 111 and 114, ECHR 2001 III; and Paul and Audrey Edwards, cited above, §§ 69 and 72).
(d) The requirements of Article 2 go beyond the stage of the official investigation, where this has led to the institution of proceedings in the national courts: the proceedings as a whole, including the trial stage, must satisfy the requirements of the positive obligation to protect lives through the law. While there is no absolute obligation for all prosecutions to result in conviction or in a particular sentence, the national courts should not under any circumstances be prepared to allow life-endangering offences to go unpunished (see, mutatis mutandis, Öneryıldız v. Turkey [GC], no. 48939/99, § 96, ECHR 2004 XII; Okkalı v. Turkey, no. 52067/99, § 65, ECHR 2006 XII; and Türkmen v. Turkey, no. 43124/98, § 51, 19 December 2006).
(e) A requirement of promptness and reasonable expedition is implicit in this context (see Yaşa v. Turkey, 2 September 1998, §§ 102-04, Reports 1998-VI; Çakıcı v. Turkey [GC], no. 23657/94, §§ 80, 87 and 106, ECHR 1999-IV; Tanrıkulu v. Turkey [GC], no. 23763/94, § 109, ECHR 1999 IV; and Mahmut Kaya v. Turkey, no. 22535/93, §§ 106-07, ECHR 2000-III). Any deficiency in the investigation which undermines its capability of establishing the circumstances of the case or the person responsible is liable to fall foul of the required standard of effectiveness (see Kelly and Others v. the United Kingdom, no. 30054/96, §§ 96-97, 4 May 2001, and Anguelova, cited above, § 139).
(b) Application of the general principles in the present case
(i) Concerning the procedural obligation under Article 2 of the Convention
There has therefore been a procedural violation of Article 2 of the Convention. It follows that the Government's preliminary objection based on the premature nature of the application (see paragraphs 40 and 43 above) must be dismissed.
(ii) Concerning the alleged responsibility of the State for the death of Hubert Mojsiejew
Moreover, the Court considers that the Government's explanations should have been provided within a reasonable time. Postponing them further until the resolution of the criminal case, even though over nine years have elapsed since the events in question, shows that the State is unable to provide a plausible explanation in the present case and to satisfy the burden of proof.
The Government also failed to provide a convincing explanation as to whether the centre's employees had carried out periodic checks on Mr Mojsiejew and had complied with domestic regulations aimed at protecting the health and life of persons admitted to sobering-up centres, particularly those immobilised by belts (see paragraph 34 above, and contrast Douglas-Williams v. the United Kingdom (dec.), no. 56413/00, 8 January 2002).
At the same time the Court would emphasise that its decision is limited to the circumstances of this case and must not be interpreted as a general statement to the effect that a criminal investigation and trial is never a remedy which must be used in the event of an allegation of death or ill treatment of an individual within the custody of the State (see Selmouni, cited above, § 81).
Consequently, this part of the Government's preliminary objection based on the premature nature of the application should also be rejected.
There has accordingly been a substantive breach of Article 2 of the Convention on account of Hubert Mojsiejew's death.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(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, EUR 20,000 (twenty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Polish zlotys at the rate applicable at the date of settlement;
(b) that 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;
Done in English, and notified in writing on 24 March 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President