KONOPACKA proti Polsku

FOURTH SECTION

DECISION

Application no. 49044/12
Bronisława KONOPACKA
against Poland

The European Court of Human Rights (Fourth Section), sitting on 17 February 2015 as a Committee composed of:

George Nicolaou, President,
Ledi Bianku,
Krzysztof Wojtyczek, judges,

and Fatoş Aracı, Deputy Section Registrar,

Having regard to the above application lodged on 27 July 2012,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Ms Bronisława Konopacka, is a Polish national, who was born in 1949 and lives in Toruń.

The circumstances of the case

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

3. On 15 December 2000 the applicant’s son (M.) started serving his 25 years’ prison sentence. On 25 May 2011 he was placed in solitary confinement for a period of 14 days as a penalty for an apparent disagreement with a prison officer. On 29 May 2011 he was found dead in that cell.

4. On 30 May 2011 the Nakło District Prosecutor instituted investigation concerning aiding and abetting suicide during which an autopsy was performed by the Toruń Medical University Forensic Service. A relevant report established that M. had died of hanging. Samples of blood and body fluids were taken to be examined.

5. By a letter of 20 June 2011 the applicant informed the prosecution of her suspicions that someone had forced M. to commit suicide, either by torturing him or by exerting pressure on him.

6. On 21 June 2011 the prosecutor ordered a toxicological analysis of the samples of bodily fluids - no medication or drugs had been found. The applicant was questioned on 30 July 2011. She was of the view that her son could not have committed suicide as he had a strong psyche, had never had any psychological problems, had been of a cheerful disposition and been making plans for the future. She had not visited him in prison at all because of the heinous crime he had committed but was in touch with him by letters and phone calls. She had also been in touch with her son’s friend who had visited him regularly. Her son could have been in conflict with the prison staff. The applicant found it baffling that the autopsy had revealed that her son had had broken ribs and sternum.

7. During the investigation the Chief Security Officer of the Potulice Prison, two detainees who had shared cells with M. in the past and a friend who had regularly been visiting him in prison were interviewed. Their testimony was concordant in that M. had not had suicidal thoughts or intentions.

8. The friend stated that M. was of a consistently cheerful disposition and had various plans for the future. He had often complained to him about bad conditions in Potulice prison and had told him that he had been in conflict with Ms M. K., the prison governor. He was of the view that M. must have been tortured before his death, given the way his body looked after his death.

9. On 29 September 2011 the Nakło District Prosecutor discontinued the investigation, finding that no one had a case to answer. He found, by reference to testimony given by D.S. (the prison officer), that on the material day he had found M. hanging from the bars installed in the cell, cut the rope, called for assistance and started to resuscitate him. Resuscitation efforts failed. The prosecution was of the view, referring to the autopsy report and to the testimony given by fifteen witnesses (including the applicant, the prison director, D.S., the doctor who resuscitated M., four prisoners who had previously shared cells with M. and four other prisoners) that there were no grounds on which to have any doubts as to the cause of his death, namely suicide by hanging. The broken ribs and sternum resulted from the reanimation.

10. The applicant and her lawyer appealed against this decision.

11. On 16 November 2011 the Bydgoszcz Regional Court questioned the applicant who was of the view that M. must have been tortured or beaten up prior to his death as shown by blood on his face. She submitted that the autopsy had been performed by one person, but the autopsy report was signed by someone else.

12. The domestic court decided to summon forensic medicine specialists who had signed the autopsy report.

13. The specialist who had carried out the autopsy stated that no injuries indicating that M. could have been beaten prior to his death had been found on his body. The blood on his face could have come from bleeding which sometimes occurred at hanging. M.’s face had not been swollen. The traces left on his neck corresponded to the rope made of soft tissue, such as bed‑sheet. Forensic medicine specialist E.B.B. confirmed that the overall picture allowed for excluding any involvement of third parties and any attempt to disguise homicide as suicide. The bruises on the neck had indicated that they had originated when M. had been still alive. No traces of drugs or medicines had been found in his blood.

14. The prosecution submitted as evidence a copy of a monitoring report of the corridor where M’s cell had been situated. The applicant and her lawyer had been properly summoned, but did not attend.

15. On 14 December 2011 the court upheld the prosecutor’s decision. It noted that the prosecutor had submitted evidence that M. was entitled to have two bed-sheets in his cell. No doubt could therefore arise as to how the second bed-sheet had found its way into the isolation cell where M. had been placed. The submissions of the forensic medicine specialists, including those on character of the injuries on his body, left no room for any other conclusion than that M. had hanged himself. They had explained in detail how these injuries corresponded to usual picture of suicide by hanging. It was impossible to accept, in the light of that evidence, that any third parties could have been involved in M’s death.

16. As to the alleged conflict between M. and the prison staff, he had not submitted any formal complaint in 2011 as shown by the official register of complaints for that year.

17. In so far as the applicant alleged that certain persons had told her that they heard cries and commotion in that part of the prison prior to M’s death, she had not given any names which would have made it possible to question those persons as to this aspect of the case.

18. On 1 July 2011 the Nakło District Prosecutor instituted an investigation concerning failure of prison officers to comply with their duties. On 24 October 2011 the same prosecutor discontinued the investigation, finding that no one had a case to answer. The prosecutor took the following evidence: testimony given by two prison officers (D.S., R.S) on duty on the critical day, the applicant, the friend referred to above, the autopsy report, the prison records.

19. It was established that at 3.20 p.m. M. had been found in his cell hanging from the bar; D.S. who had previously checked on him at 2 p.m., had immediately started resuscitation and called R.S. Under the applicable regulations the officer on duty had to check on prisoners put in solitary confinement at least every ninety minutes. There were no grounds to find that the prison staff had failed to comply with that obligation.

20. The applicant appealed, arguing that the investigation had been limited to checking whether the prison officers on duty on the material day had checked on M. regularly as they had been obliged to do under the applicable regulations. She further argued that no other factual aspects of the case had been addressed and examined by the prosecuting authorities, including what other supervision duties were incumbent on them and, more generally, on the prison administration in respect of prisoners on whom solitary confinement was imposed.

21. It was also pointed out that no findings were made as to whether M. had been examined by a doctor prior to being committed to the solitary cell and as to his state of mind at that time; no thought had been given to whether it was appropriate that bars were installed in that cell, blocking the access to the window and dividing the cell into two parts, making it possible for the prisoner to tie a rope to it; and that the submission that M. had been involved in a conflict with the prison authorities who could bear a grudge against him had not been examined.

22. On 31 January 2012 the Nakło District Court dismissed her appeal. The domestic court was of the view that an obligation to check on M. at least every 90 minutes, as provided for by the applicable ordinance on security in prisons was, in the context of the case, the most important one. D.S. had been checking on M. from 2 to 2.07 p.m. and had found no irregularities. At the next check, at 3. 20 p.m. he found M. hanging from the bars. His testimony corresponded with the recording of the corridor and the official records. The relevant regulation provided that two bed-sheets were given to all prisoners.

23. Further, the ordinance referred to above provided that isolation cells should be divided into two parts by bars so as to make it impossible for the prisoners to approach the windows. It was further noted that M. had had contact with a psychologist on 28 May 2011 and no abnormalities or problems had been established at this occasion. He had also been examined before he was put into the isolation cell and no psychological problems had been found. Nothing indicated that he could have been in conflict with the prison staff as according to the official records of prisoners’ complaints he had not submitted any in 2011. In any event, had this been the case, dealing with complaints submitted by prisoners was a normal professional obligation of the prison staff. The evidence gathered by the prosecution was ample and its assessment objective and reasonable.

COMPLAINTS

24. The applicant complained under Article 2 of the Convention that the authorities had failed to take adequate measures to protect her son’s life and to prevent him from committing suicide in prison. She further complained that the investigation into her son’s death was ineffective due to the deficiencies described above.

THE LAW

25. The applicant complained that the authorities had failed to take adequate measures to protect her son’s life and to prevent him from committing suicide in prison. She further complains that the investigation into her son’s death was ineffective. She relied on Article 2 of the Convention, which 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.

....”

26. As to the substantive limb, it needs to be considered whether the State has complied with its positive obligations under Article 2 (see Keenan v. the United Kingdom, no. 27229/95, ECHR 2001-III and Trubnikov v. Russia, no. 49790/99, 5 July 2005). The Court has had previous occasion to emphasise that persons in custody are in a vulnerable position and that the authorities are under a duty to protect them (see Younger v. the United Kingdom (dec.), no. 57420/00). The prison authorities, similarly, must discharge their duties in a manner compatible with the rights and freedoms of the individual concerned. There are general measures and precautions which will be available to diminish the opportunities for selfharm, without infringing personal autonomy. For a positive obligation to arise, it must be established that the authorities knew or ought to have known at the time, of the existence of a real and immediate risk to the life of an identified individual and, if so, that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (see, amongst other authorities, Keenan, cited above, §§ 89-92, ECHR 2001-III, and A. and Others v. Turkey, no. 30015/96, §§ 44-45, 27 July 2004). In the present case, the domestic investigation confirmed that the applicant’s son had not been known or suspected of having suicidal tendencies. Moreover, when the applicant was placed in the solitary cell, he was monitored at least every 90 minutes. The authorities took sufficient measures to establish his mental condition at the solitary confinement - he had been consulted by a psychologist on 28 May 2011 and no abnormalities or problems had been established at this occasion. He had also been examined before he was put into the isolation cell and no psychological problems had been found. Furthermore, there does not appear to be any evidence of negligence or lack of supervision in the course of the events on the day the applicant’s son died. This part of the application is inadmissible as manifestly ill-founded.

27. As to the procedural limb of Article 2 of the Convention, it should be assessed whether the investigation was adequate and effective, namely whether it succeeded in establishing and examining all circumstances of her son’s death and addressed the applicant’s allegations. To be considered adequate the investigation into a death must be capable of leading to the identification and punishment of those responsible. This is not an obligation of result, but one of means. Any deficiency in the investigation which undermines its ability of establishing the circumstances of the case or the person responsible is liable to fall foul of this standard (see, Anguelova v. Bulgaria, no. 38361/97, § 140, ECHR 2002-IV). In the present case, there was no failure on the part of the State to provide a procedure whereby the responsibility of persons who may be held accountable could be established. The persons carrying out the investigation were independent from those implicated in the events. The investigation was prompt; it was instituted immediately one day after the death of the applicant’s son, an autopsy was carried out without a delay and a post-mortem report was issued on 1 June 2011. Further, in the course of the investigations the prosecutors examined evidence from the applicant, the prison governor, the doctor who tried to resuscitate M., the prisoners who had previously shared cells with M. and prisons officers. The investigation was effective as the authorities took whatever reasonable steps they could to secure the evidence concerning the incident, including, inter alia, forensic evidence and an autopsy which provided a complete and accurate record of injury and an objective analysis of the clinical findings, including the cause of death. It should be noted that the investigations’ conclusions were based on a thorough, impartial and non-arbitrary analysis of all relevant elements. The presence of blood traces, bruises and broken bones was explained by means of medical and forensic materials; the allegations of M’s persecution by the prison staff were rebutted by submissions of various witnesses, including the applicant, cell‑mates and prison staff; it was convincingly shown that M. was under regular monitoring and that the authorities did not have any reason to suspect that M. would commit suicide – his psychological history and mental state were checked by means of submissions of witnesses, including medical staff, cell-mates and the applicant. In addition, the investigation was accessible to the victim’s family to the extent necessary to safeguard their legitimate interests. Consequently, the complaint is inadmissible as manifestly ill‑founded.

28. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Done in English and notified in writing on 12 March 2015.

Fatoş Aracı George Nicolaou
Deputy Registrar President