European Court of Human Rights

FOURTH SECTION

Application no. 46161/11
Milena and Andrzej GIL
against Poland
lodged on 19 July 2011

STATEMENT OF FACTS

 

The applicants, Ms Milena Gil and Mr Andrzej Gil, are Polish nationals, who were born in 1958 and live in Krakow. They are represented before the Court by Ms M. Antoszewska, a lawyer practising in Warszawa.

The facts of the case, as submitted by the applicants, may be summarised as follows.

In November 2001 the company A. specialising in the protection and care of trees and shrubs contracted by the Krakow Municipal Office, informed it that some trees need to be removed as they constitute danger to life of people and to their property.

On 3 December 2001 the representatives of the Krakow Municipal Office and the company A. carried out a visual inspection of poplar trees growing by children playground located on Zgoda housing estate in Krakow. They decided that seven poplar trees growing along the fence should be removed as they had been at the end of their lives and may fall. The trees were leaning, their trunks were partly rotten and dry branches were falling on the pavement or the playground.

On 11 December 2011 the Mayor of Krakow gave a decision ordering the removal of those trees by 31 December 2001. The decision repeated the findings from the visual inspection and considered that the trees posed a threat to live and property and may fall on the playground or the building of the kindergarten.

The Krakow Municipal Office failed to transfer funding to the company A. for the purpose of the removal of the trees due to shortage of financial resources and huge demands. According to the contract between the Municipality and the company A. all works in connection with care of the greenery and removal of trees depended on providing sufficient funding for them.

On 1 August 2003 the applicant’s 22-year-old daughter M. died after being hit by a branch of one of the poplar trees growing by the playground. The branch was five metres long and fell on the pavement where the victim was walking.

On 11 August 2003 the Krakow-Nowa Huta District Prosecutor opened an investigation into the incident.

The Krakow Municipal Office paid to the company A. an equivalent of 700 euros (EUR) for removal of the trees. Between 11 and 14 August 2003 all seven poplar trees were removed and destroyed.

On 1 December 2003 the District Prosecutor stayed the investigation pending receiving documents from the Municipality. The applicants appealed against this decision.

The appeal was examined almost one year later, on 27 January 2005. The District Prosecutor allowed it, quashed the decision to stay the proceedings and ordered the police to continue the investigation.

On 30 May 2005 the District Prosecutor decided to discontinue the investigation as no offence of unintentional causing the death of M. had been committed.

The applicants appealed against the decision. They complained that the relevant investigative actions had not been carried out and that the proceedings had been protracted. The applicants argued that the Krakow Municipal Office had been obliged by law to secure proper maintenance of its trees and that the contract with the company A. had been bogus since no funding had been secured for the purpose of the removal of the trees.

On 10 February 2006 the Krakow District Court allowed the appeal and remitted the case to the prosecutor. The court indicated several investigative measures which needed to be taken by the prosecutor in order to complement the investigation. In particular the court underlined that the reason for the 2001 decision to remove the trees had been their bad state threatening life of people and their property. Therefore the failure to remove them due to lack of money would be an element of assessment of guilt of persons responsible for distribution of financial resources in the Municipality.

On 30 June 2006 the District Persecutor for the second time discontinued the proceeding. The applicants appealed.

On 18 October 2006 the Krakow Regional Prosecutor allowed the appeal and quashed the decision to discontinue the investigation. The prosecutor pointed, in particular, to the fact that the instructions of the District Court had not been fulfilled and the shortcomings of the investigation had not been remedied.

On 28 December 2006 the Krakow District Prosecutor for the third time discontinued the investigation. The prosecutor after having heard some witnesses and experts considered that the accident could not have been foreseen. The branch that hit the applicants’ daughter had not appeared particularly fragile and the accident had happened most probably because of difficult weather and inherent fragility of this type of trees. The applicants appealed.

On 4 March 2007 the Krakow Regional Prosecutor allowed the appeal and quashed the decision to discontinue the investigation. The prosecutor again considered that the District Court’s instructions had not been respected.

On 31 December 2007 the District Prosecutor for the fourth time discontinued the investigation. This time the prosecutor indicated that she investigated the following charges: involuntary manslaughter, failure to carry out duties by civil servants in not providing financial resources for the removal of the trees that had been qualified for removal and putting in danger human life and health.

As no further appeal lay against the decision the applicants lodged a private bill of indictment on 7 February 2008. The bill was directed against six persons from the Krakow Municipal Office and the company A.

On 14 October 2009 the Krakow District Court gave a judgment in which it acquitted the persons accused. The court confirmed that the Municipality had been responsible by law to secure proper care of greenery which included removal of sick trees. The actual carrying out of those tasks was transferred to the company A. which according to the contract was to receive remuneration for its services.

The court excluded that there had been a criminal responsibility for the accident on the part of the employees of the company A. as they had repeatedly contacted the Municipality requesting the funding. Their failure to remove the trees was caused solely by the lack of money for that purpose.

As regards the responsibility of the employees of the Municipal Office the court considered that the accident could not have been predicted. The branch that hit the applicants’ daughter had not been rotten and the tree itself had been in similar state as many other trees in the neighbourhood. Basing on an expert opinion the court considered that there had been no signs that the tree had to be urgently removed. There was therefore no causal link between potential negligence on the part of the accused and the incident. The court concluded that the incident would have been obviously avoided had the tree been removed in 2001 which had not been possible due to lack of money. Nevertheless, nobody should be held criminally responsible for this unpredictable accident.

The applicant lodged an appeal against the judgment.

On 26 February 2010 the Krakow Regional Court dismissed the appeal. The appellate court accepted the findings and conclusions of the trial court. The applicants lodged a cassation appeal with the Supreme Court.

On 19 January 2011 the Supreme Court dismissed the cassation appeal.

COMPLAINTS

  The applicants complain under Article 2 of the Convention that the tragic death of their daughter was caused by negligence and the failure of civil servants responsible for proper maintenance of trees to carry out their duties. The State failed to fulfil its positive obligation to protect life of the applicants’ daughter.

  The applicants further complain that the State failed to carry out an effective investigation into the incident as required by the procedural limb of Article 2 of the Convention. They submitted that the witnesses had been heard five years after the incident and that the trees had been removed and destroyed just after the incident with the result that all expert opinions had been based on photographs. The delay with which the criminal proceedings have been concluded prevented the applicants from seizing a civil court as a civil claim became time-barred. The applicants also invoke Articles 6 and 13 of the Convention in connection with the length of the proceedings.

QUESTIONS TO THE PARTIES

  Do the facts of the case disclose a failure on the part of the State to protect the applicants’ daughter’s right to life, as guaranteed by Article 2 of the Convention?

 

  Was the investigation into and judicial examination of the death of the applicants’ daughter thorough and effective, as required by Article 2 of the Convention?