CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 9 décembre 2008

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text-indent:14.2pt; text-align:justify } .sAB173E38 { margin-top:12pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .s127C7598 { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .sD66C1369 { margin-top:0pt; margin-left:17.3pt; margin-bottom:0pt; text-align:justify } .s81CCF55C { margin-top:0pt; margin-left:17pt; margin-bottom:12pt; text-indent:-17pt; text-align:justify } .s86439055 { margin-top:36pt; margin-bottom:12pt } .s40269D5B { width:34.93pt; display:inline-block } .sE7E4E269 { width:179.97pt; display:inline-block } .sF2E32F9B { width:36.61pt; display:inline-block } .s5F32E900 { width:208.31pt; display:inline-block } .s9138CF0B { margin-top:36pt; margin-bottom:36pt; text-align:right } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt }       FOURTH SECTION           CASE OF DZIECIAK v. POLAND   (Application no. 77766/01)               JUDGMENT     STRASBOURG   9 December 2008     FINAL   09/03/2009   This judgment may be subject to editorial revision. In the case of Dzieciak v. Poland, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Nicolas Bratza, President,   Lech Garlicki,   Giovanni Bonello,   Ljiljana Mijović,   David Thór Björgvinsson,   Ledi Bianku,   Mihai Poalelungi, judges, and Lawrence Early, Section Registrar , Having deliberated in private on 18 November 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 77766/01) 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, Mr Zbigniew Dzieciak (“the applicant”), on 13 May 2000. On 25 October 2001 the applicant died. His wife, Mrs Zofia Dzieciak, informed the Court that she wished to pursue the application lodged by her late husband. 2.     The applicant was represented by Mr A. Rzepliński, a lawyer from the Helsinki Foundation for Human Rights (Warsaw, Poland). The Polish Government (“the Government”) were represented by their Agent, Mr   J.   Wołąsiewicz of the Ministry of Foreign Affairs. 3.     The applicant alleged that he suffered inhuman and degrading treatment while in detention and that the length of his pre-trial detention had exceeded a reasonable time. The applicant’s wife complained that the authorities had contributed to the applicant’s death and failed to take proper measures during his illness in order to protect his health and life. 4.     On 28 February 2006 the Court decided to give notice of the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1948 and lived in Warsaw. A.     The criminal proceedings against the applicant 6.     On 17 September 1997 the applicant was arrested by the police. On 18 September 1997 the Warsaw District Court ( Sąd Rejonowy ) decided to place the applicant in pre-trial detention in view of the reasonable suspicion that he had been involved in drug trafficking as part of an organised criminal gang. In particular, the applicant was suspected of having participated in the recruitment of persons used for international drug trafficking. 7.     The applicant’s pre-trial detention was extended on several occasions. 8.     On 15 May 1998 the applicant was indicted before the Warsaw Regional Court. B.     The applicant’s state of health during his detention 9.     The applicant, who had suffered two heart attacks in 1993 and 1995, submitted that his health deteriorated after his arrest. On 22   July 1998 he consulted a cardiologist. On 8 September 1998 the Medical Panel ( Komisja Lekarska) decided that there were no reasons militating against the applicant’s detention, provided that the detention centre in which he was detained possessed a hospital wing. 10.     In September 1998 the applicant and several co-accused were indicted before the Warsaw Regional Court ( Sąd Okręgowy ). 11.     On 22 January 1999 the applicant consulted a non-prison doctor who prescribed a coronary angiography ( koronografia ). The applicant submitted that he had not been informed of this. 12.     On 1 February 1999 the Medical Panel again found that the applicant could be held in a detention centre if it had a hospital wing. 13.     On 4 August 1999 the applicant was again examined by a non ‑ prison doctor who confirmed the need for a coronary angiography. The applicant submitted that the prison authorities refused to carry out this procedure. He complained about this to the Helsinki Foundation for Human Rights in Warsaw. 14.     Between 18 and 31 August 1999 the applicant was treated in the hospital wing of the detention centre. 15.     On 23 August 1999 the Warsaw Regional Court extended the applicant’s detention, finding that the grounds for it remained valid. On the same date the court dismissed the applicant’s request for release finding that the applicant’s state of health was not incompatible with detention. 16.     The applicant’s detention was subsequently extended by the Supreme Court on 16 September 1999, on the ground of the reasonable suspicion against him. 17.     In October 1999 the trial court decided to return the case to the prosecutor and to join the investigation to another case concerning organised crime. On 21 October 1999 the Warsaw District Court ordered the applicant’s detention in connection with this set of criminal proceedings. 18.     On 2 November 1999 the prison authorities replied to the Helsinki Foundation regarding the applicant’s health care. The authorities stated that the applicant had been examined by doctors on several occasions and that the cardiologist had not ordered the coronary angiography but had only suggested it as one of several possible treatments. The applicant’s state of health did not preclude detention and he could receive any necessary treatment in the hospital wing of the detention centre. They reiterated that the applicant was detained in a detention centre which had hospital facilities and that, if necessary, he would be hospitalised. 19.     On 19 November 1999 the applicant was transferred to the Łódź detention centre, which had no hospital wing. The applicant argued that this was in reprisal for his complaint to the Helsinki Foundation. In March 2000 the applicant lost consciousness and was transferred to the Łódź Prison Hospital, where he remained for 10 months. 20.     On 6 January and 24 March 2000 the Warsaw Regional Court, upon an application from the Wrocław Regional Prosecutor ( Prokurator Okręgowy ), further extended the applicant’s pre ‑ trial detention, relying on the reasonable suspicion that he had committed the offences in question and on the complexity of the case, which justified the continuation of the investigation. 21.     On 7 April 2000 the Warsaw Court of Appeal ( Sąd Apelacyjny ), on an application from the prosecutor, decided to further extend the applicant’s detention until 20 October 2000. In addition to the existence of a reasonable suspicion that the applicant had committed the offences, the court relied on the complexity of the case, the severity of the anticipated penalty and the need to secure the proper conduct of the investigation. Finally, the court found no evidence that the applicant, and four other co-accused, should be released from detention due to their various health conditions. The court added, however, that it was for the prosecutor to order a medical examination of the accused and to reach a decision regarding their further detention. 22.     On 8 June 2000 the Supreme Court ( Sąd Najwyższy ) decided to amend the Court of Appeal’s decision and extended the applicant’s detention pending the outcome of the investigation until 10   October 2000. 23.     On 3 October 2000 the Warsaw Court of Appeal, on another application from the appellate prosecutor, decided to extend the applicant’s pre-trial detention, and that of fourteen co-accused, until 10 February 2001. The court repeated the reasons given in previous decisions. 24.     On 4 October 2000 a coronary angiography and other tests were carried out in Łódź University Hospital. The applicant submitted that the results of the tests provided evidence of his very serious state of health and proof that his life was in danger. 25.     On 14 November 2000 the Warsaw Court of Appeal dismissed the applicant’s appeal against the decision of 3 October 2000 extending his detention. The appellate court, referring to the applicant’s state of health, established that he could be detained and treated in the prison hospital until the date of the surgery. 26.     On 7 December 2000 the applicant was examined by doctors from Łódź University Hospital, who ordered that he should undergo heart surgery in a non-prison hospital. A medical certificate of 24   January 2001, issued by Łódź Prison Hospital, confirmed the need to carry out a coronary artery bypass graft (CABG, a so-called heart bypass operation). 27.     On 24 January 2001 the applicant was transferred to the Mokotów Detention Centre in Warsaw, as the surgery was to be carried out in the Anin Institute of Cardiology. 28.     On numerous occasions the applicant applied to be released from detention. He justified these requests by referring to the state of his health and the fact that his imminent surgery could not be carried out in the hospital wing of the detention centre but necessitated his release from detention. Nevertheless, on 6 February 2001 the court further extended the pre ‑ trial detention of the applicant and his co-accused. The decision did not contain any particular reference to the applicant’s health. 29.     On 27 April 2001 the applicant was indicted before the Warsaw Regional Court. 30.     In April 2001 the applicant was examined by doctors in the Anin Institute of Cardiology, who agreed to carry out laser heart surgery on the applicant. 31.     On 15 May 2001 the Warsaw Court of Appeal again extended the applicant’s detention. The court found: “In the instant case, [the applicant] was arrested on 17 September 1997 and detained on remand on 18 September 1997 by the decision of the Warsaw District Court. On 9 May 2001 the pre-trial detention of 22 co-accused was extended until 11   October 2001. The procedural grounds therefore justify the extension of detention also with respect to [the applicant] until 11 October 2001. Moreover, there are no grounds for lifting his pre-trial detention under Article 259 of the Code of Criminal Procedure. As [the applicant’s] pre-trial detention has lasted for over 3 years and 6   months, it is necessary to schedule the date of the hearing and to plan the trial so that the provisions of the [Polish Code of Criminal Proceedings] and Article 6 of the [Convention] are respected - that is, the right to a trial within a reasonable time.” 32.     The applicant lodged an appeal against the decision but on 12 June 2001 the Warsaw Court of Appeal dismissed it. 33.     The Anin Institute of Cardiology scheduled laser heart surgery on the applicant and ordered that he be admitted to the Institute on 27   July 2001. The applicant’s representative submitted that the applicant was never informed of this. The Government submitted that the surgery could not take place on that date on account of prolonged renovation work to the Institute. 34.     Between 8 August and 10 September 2001 the applicant was hospitalised in the Warsaw prison hospital for pneumonia. C.     The events of September and October 2001 35.     On 5 September 2001 the Anin Institute of Cardiology sent a letter to the applicant, informing him that the second appointment for his laser heart surgery had been scheduled for 21   September 2001. The applicant submitted that the letter was delayed and that he had been informed about it after the date in question. From the copy of the envelope submitted by the applicant’s wife, it appears that the letter was posted on 10 September 2001; a stamp indicates that it was delivered to the registry of the Mokotów Detention Centre on 11   September 2001 [ Sekretariat, Areszt Śledczy Warszawa; 11 Wrz. 2001 ]. The envelope is marked “registered post - v.   urgent” [ polecony – b. pilne ] and contains the following stamp “Censored 24.09.01” [ Ocenzurowano ]. The Government maintained that this letter never arrived at the Mokotów Detention Centre and that the authorities had not been aware that the Institute had scheduled the date of the applicant’s surgery. 36.     The Anin Institute of Cardiology again rescheduled the date of the applicant’s heart surgery and gave him an appointment for 26   October 2001. It appears that this notification was delivered to the detention centre by the applicant’s lawyer in person. 37.     On 1 October 2001 the applicant was examined by the Medical Panel, which gave a decision on the same date. The decision contained a reference to his medical record and the information that he would be admitted to undergo surgery at the Anin Institute of Cardiology on 26   October 2001. The decision states: “16. The Panel’s decision - It is necessary to change the preventive measure. 17. The grounds for the decision - The patient requires surgical treatment at the Anin Institute of Cardiology. The date of admittance to the Institute is scheduled for 26 October 2001. Further ... detention is a threat to the patient’s health.” This decision of the Medical Panel was not sent to the trial court until a later date (see paragraph 44 below). 38.     On 5 October 2001 the Warsaw Court of Appeal extended the pre ‑ trial detention of the applicant and the other co-accused for a further four months. The court did not examine the applicant’s state of health or any circumstance that would concern him individually. 39.     On 12 October 2001 Dr M.M., from the hospital wing of the Mokotów Detention Centre, issued a medical certificate, which was sent by fax to the trial court on 15 October 2001. The certificate stated: “The prisoner’s complaints: Has been treated for many years for coronary thrombosis, hypertension. Had suffered heart attacks. Recent effort-related chest pain. Established during examination: Conscious, sound blood circulation and respiration ... Diagnosis: Ischaemic heart disease, has had heart attacks, currently has relatively sound blood circulation. Had pneumonia. Conclusions: At present he can participate in the court’s hearings. The patient was examined by the Medical Panel on 1 October 2001.” 40.     On 16 October 2001 the trial against the applicant and forty-four co ‑ ccused started before the Warsaw Regional Court. The applicant was brought to the courtroom to attend the hearing of 16 October 2001. At the hearing the court informed the applicant’s lawyer that a medical certificate of 12 October 2001 had been submitted on the previous day. In the light of the certificate, the court dismissed the applicant’s request to sever the charges against him, holding that his health did not justify a separate examination of the case. 41.     The applicant attended the second hearing on 18 October 2001. 42.     At the next hearing, held on 19 October 2001, the applicant was heard and the statements given by him at the investigation stage were read out. The trial court adjourned the hearing until Monday 22 October 2001. D.     The events of 22 October 2001 and the death of the applicant 1.     The account of the applicant’s representative 43.     On 22 October 2001 the applicant was brought to the court room, where he lost consciousness before the hearing began. An ambulance was called. At 9.30 a.m. he was transferred back to the hospital wing of the Mokotów Detention Centre. He was examined by a doctor, who considered that he did not require hospitalisation but was unfit to participate in the hearing on that day. After examination in the hospital wing the applicant was transferred to his cell in the detention centre. 44.     The hearing started later than scheduled, due to the commotion caused by the applicant’s fainting and the arrival of the ambulance. The presiding judge enquired about the applicant’s health by calling the Mokotów Detention Centre and the Anin Institute of Cardiology. From the latter the judge learned that the applicant’s admittance to the Institute was scheduled for 26 October 2001. The judge was also informed by the detention centre’s authorities that the applicant had been examined by the Medical Panel on 1   October 2001 but that the report had not yet been confirmed by the relevant medical authorities, and thus could not be submitted to the court. Nevertheless, at the second break in the hearing, the Mokotów Detention Centre sent the presiding judge, by fax, the Medical Panel’s decision, which concluded that the applicant’s continued detention represented a risk to his health (see paragraph 37 above). 2.     The Government’s account 45.     On 22 October 2001 at 9.30 a.m. the applicant was examined by a doctor from the hospital wing of the detention centre on account of a worsening of his health. The doctor issued a certificate stating that the applicant did not require hospitalisation but was unfit to participate in the hearing on that day. 3.     Uncontested facts 46.     At 3.45 p.m. on 22 October 2001 the applicant was taken from his cell to the hospital wing of the Mokotów Detention Centre; he was unconscious. The medical team managed to resuscitate the applicant, so that he began breathing on his own again and his heart beat was restored. They also attempted to locate a hospital that would admit him. The applicant was taken in a serious condition to hospital in Lindley Street, Warsaw, where he died on 25   October 2001 without regaining consciousness. 47.     On 22 October 2001 the trial court decided to examine the charges against the applicant in a separate set of proceedings, as his health prevented him from participating in the hearings. The court further decided to release the applicant from detention on 26 October 2001 and to transfer him on that date to the Anin Institute of Cardiology for surgery. 48.     On 8 November 2001 the Warsaw Regional Court decided to discontinue the criminal proceeding against the applicant on the ground that he had died on 25 October 2001. On 10   August 2002 the trial court convicted thirty-seven defendants and sentenced them to prison terms varying from 2 to 12 years. E.     The investigation into the applicant’s death 49.     On 30 October 2001 the applicant’s wife requested the Warsaw District Prosecutor to start an investigation into the applicant’s death. On 12   November 2001 the Helsinki Foundation for Human Rights made a similar request, informing the prosecutor that the applicant had not received adequate medical care in the Mokotów Detention Centre. 50.     On 31 October 2001 a post-mortem examination of the applicant’s body was carried out by the Warsaw Medical Academy ( Akademia Medyczna w Warszawie ). The examination concluded that the cause of the applicant’s death was acute coronary insufficiency, given the advanced stage of his heart disease. 51.     On 20 December 2001 the Warsaw District Prosecutor initiated an investigation into the allegations that the applicant’s death had been caused by the failure of the doctors in the Mokotów Detention Centre to secure him adequate medical care. 52.     On 13 February 2002 the prosecutor heard the applicant’s wife. She described how her husband’s health had constantly deteriorated, as observed by her during her regular bi-monthly visits. His serious health problems started when he was transferred to the Łódź Detention Centre, where there was no hospital facility. After he lost consciousness he spent several months in a hospital, and at that time he underwent a coronary angiography. On his return to the Warsaw Detention Centre, his health deteriorated further and he had been coughing badly, and suffered from chest pain. His complaints, however, were dismissed on each occasion by the prison doctor, a general practitioner. Only after collapsing 6 months later was he transferred to the Warsaw Prison Hospital, where he was diagnosed with pneumonia and treated accordingly. At that time it was recommended that he undergo heart bypass surgery. During the hearings which started a few days before his death the applicant was in very poor health. The applicant’s wife also testified that he had received notification about the first scheduled operation in the Anin Institute of Cardiology, set for 21 September 2001, but only after that date. She went to the Anin Institute of Cardiology to obtain the second appointment for 26 October 2001, which she personally transmitted to the applicant’s lawyer so that he could notify the detention centre. However, the applicant passed away before that date. 53.     On 28 March 2002 the prosecutor heard the Head of the Warsaw Prison Hospital. She testified that the applicant had stayed in her ward until 10   September 2001 because he had pneumonia and was being prepared for a bypass operation, to be carried out in the Anin Institute of Cardiology. Since the operation could not be carried out at that time, the applicant was returned to his cell in the detention centre. On the same date the prosecutor questioned a doctor working at the prison hospital, who was consulted by the applicant in 1997, on two occasions in 1998, on one occasion in 1999 and on 2 July 2001. 54.     On 29 March 2002 the prosecutor heard another doctor, employed in the prison hospital, who had treated the applicant during his stay in the hospital, that is, until 10 September 2001. Like the previous witness, this doctor did not believe that the applicant had been simulating, had complained excessively or had not been following the doctor’s recommendations. 55.     On 29 March and 10 September 2002 the prosecutor heard Dr M.M. who worked in the hospital wing of the Mokotów Detention Centre. He stated that, according to a note made by him in the applicant’s medical record, on 27   September 2001 he learned that the Anin Institute of Cardiology had decided to admit the applicant. He forwarded this request to the prison authorities, as it was necessary to obtain a decision from the Medical Panel. The prosecutor showed the witness a copy of the letter from the Anin Institute of Cardiology of 5 September 2001, stating that the date of the applicant’s admittance to hospital was scheduled for 21 September 2001. The witness was unable to ascertain whether he had previously seen this letter or whether his annotation in the applicant’s medical record of 27   September 2001 had been made in connection with it. 56.     On 4 April 2002 a doctor from the Anin Institute of Cardiology was heard by the prosecutor. She testified that in March 2001 the Mokotów Detention Centre requested the Institute to examine the applicant. He was diagnosed with coronary thrombosis and recommended for a laser operation. The witness stated: “On 27 June 2001 a letter was sent to the detention centre with a request to stop administering aspirin to Mr Dzieciak; it also set the date of his admittance to the Institute for 6 July 2001. The patient did not show up. Again the patient was invited for 21 September 2001 – he did not turn up. The third summons was for 26 October 2001 – he did not show up. We received information that the patient had died on 25   October 2001 (we received this information from a judge). As far as I know the patient did not show up because he had not obtained leave from the detention centre, and we had not agreed to conduct the operation in the presence of guards as we had no conditions for that (moreover, we had repair work going on at that time).” The witness also stated that the applicant’s wife, who had apparently learned about the planned date of the operation, had informed the hospital administration about the difficulties experienced by the applicant in obtaining leave from the detention centre. The hospital’s administration had contacted the Mokotów Detention Centre and learned that the decision on whether or not to grant the leave would be taken before 26 October 2001. The doctor also confirmed that a judge from the Regional Court had called the hospital on 22 October 2001, enquiring whether the applicant had an operation scheduled and saying that a fax with this information had been sent to the court. 57.     Finally, on 4 April 2002 the prosecutor questioned another doctor from the prison hospital, who had treated the applicant on 20 and 22   October 2001. He testified that on 22 October 2001 the applicant was brought back from the court hearing at 9.30 a.m. suffering from chest pain. He conducted an ECG test and administered medication so that the applicant’s condition was stable. The witness considered that the applicant had not required hospitalisation but issued a certificate stating that he should not attend the hearing on that day. At 3.33   p.m. on the same day the applicant was brought from his cell on a stretcher; he was unconscious, had no heart beat and was not breathing. After resuscitation his heart beat was restored and he began to breathe independently. The witness ordered an ambulance and contacted hospitals to find one which would admit the applicant. Finally, the fourth hospital, located on Lindley Street, agreed to admit the applicant. 58.     The prosecutor also requested the Mokotów Detention Centre to clarify when the letter of 5 September 2001 from the Anin Institute of Cardiology, informing the authorities of the applicant’s scheduled admittance on 21 September 2001 for surgery, had reached the detention centre. According to the Government, the Head of the Mokotów Detention Centre replied that there was no evidence that such a letter had ever arrived at the detention centre; however, the letter informing about the next date for surgery, scheduled for 26   October 2001, had reached the detention centre on 26   September 2001. 59.     On 14 August 2002 the Anin Institute of Cardiology confirmed to the prosecutor that the letters indicating the dates of the applicant’s admittance to the Institute (for 6 July and 21 September 2001) had been sent by ordinary mail to the Mokotów Detention Centre. 60.     On 23 September 2002 the prosecutor ordered the Gdańsk Medical Academy to prepare an expert opinion. The prosecutor asked the experts to answer following questions: “1.     Was the death of Zbigniew Dzieciak a consequence of: -   unsuccessful medical treatment for which nobody can be held responsible (niezawinione niepowodzenie lekarskie ), -   medical malpractice, -   failure to apply due diligence during his medical treatment at the Mokotów Detention Centre and hospital in Lindley Street, -   other circumstances, different from the above? 2.     Did the state of health of Zbigniew Dzieciak allow him to remain in the detention centre and to participate in the trial, including lengthy court hearings?” 61.     In 1 July 2003 the experts submitted their opinion to the prosecutor. The experts relied on the applicant’s medical file and on the post-mortem examination. They concluded as follows: “...in answer to question no. 1, we consider that [the applicant’s] death was the consequence of unsuccessful medical treatment for which nobody could be held responsible. Having analysed the file, we find that there was no medical malpractice during the period between the applicant’s arrest and his death. On the basis of the submitted documents we cannot perceive any lack of diligence during his treatment in the detention centre and in hospital in Lindley Street. We have, however, reservations about the fact that the date of the applicant’s cardio-surgical intervention was rescheduled twice (a conclusive elucidation of the grounds for this ‘postponing’ is not within the competence of the undersigned experts). Nevertheless, the type and extent of changes in the heart muscle, as established by the post-mortem examination, do not allow [us] to conclude if, and to what extent, the surgery would have led to improvement in the functioning of the applicant’s left ventricle of the heart. Ad 2. In response to the second question, it should be noted that when the applicant’s health was clearly deteriorating and in connection with the approaching surgery, the Medical Panel gave a decision on the necessity of changing the preventive measure, as a continued stay in detention constituted a threat to the patient’s health. On the basis of the documents collected, it is not possible to establish the period when medical indications appeared indicating a need to change the preventive measure. We believe that it is impossible to establish beyond doubt a causal link between the deterioration in the applicant’s health and his participation in the trial.” 62.     On 28 August 2003 the Warsaw District Prosecutor discontinued the investigation. The decision reads: “On 12 November 2001 the Helsinki Committee informed the District Prosecutor of the possibility that an offence had been committed under Article 231 or 160 of the Criminal Code. It appears from the request that on 22   October 2001 the applicant was called from his cell for transferral to the court hearing, and that his state of health subsequently deteriorated. Attempts were made until evening to resuscitate him in the hospital of the detention centre. In the evening he was taken to hospital in Lindley Street where, on 24 October 2001, he died. Following the post-mortem examination the expert from the Warsaw Medical Academy established that the cause of [the applicant’s] death had been acute coronary insufficiency, given the advanced stage of [his heart disease]. In the expert’s opinion there was no evidence that would allow [him] to establish that the applicant’s pneumonia had had a bearing on his death. [The Head of the Prison Hospital] testified that [the applicant] had been on her ward once – he was admitted on 8 August 2001 with symptoms of pneumonia and was released on 10 September 2001 in good condition. He was again admitted to the hospital on 22 October 2001 and he was transferred to hospital in Lindley Street after 5.20 p.m. An expert opinion from the Gdańsk Medical Academy was ordered for the purpose of establishing the circumstances of [the applicant’s] death. From the submitted expert opinion it appears that the applicant’s death was a consequence of unsuccessful medical treatment for which nobody could be held responsible. Having analysed the file the experts were unable to find evidence of medical malpractice during the period between the applicant’s arrest and his death, could not perceive any [missing: lack of diligence] during his treatment in the detention centre and subsequently in hospital in Lindley Street. In the experts’ view it had not been possible to establish beyond doubt a causal link between the deterioration in the applicant’s health and his participation in the trial. In the light of the above it must be established that the evidence gathered does not allow the conclusion that [the applicant’s] death was a consequence of the actions or omissions of third persons. Accordingly it has been decided as above.” 63.     The applicant’s wife, supported by the Helsinki Foundation, lodged an appeal against this decision. She complained that the prosecutor had failed to examine thoroughly the allegations raised in her request to initiate the proceedings. In particular, there had been no examination of why, having lost consciousness in the court room on 22 October 2001, the applicant was not immediately taken to hospital but was returned to the detention centre. 64.     On 19 January 2004 the Warsaw District Court dismissed the appeal, reiterating the prosecutor’s findings that the applicant’s death was “unsuccessful medical treatment”. The court had not made any new findings relating to the course of the events. It noted that the information about the surgery scheduled for 21   September 2001 had not reached the Mokotów Detention Centre. However, on 26   September 2001 the detention centre received information that the surgery could take place on 26 October 2001, provided that the applicant received authorisation. The court further established that on 1 October 2001 the Medical Panel had given a decision finding that a further stay in detention would pose a risk for the applicant’s health; that ruling had been validated by the Head of the Panel on 22   October 2001. Previously, on 16   October 2001, the Head Doctor of the Prison Medical Service had ordered that the decision be supplemented by a copy of the results of the coronary angiography. On 23 October 2001 the Panel’s decision was faxed to the trial court, at whose disposal the applicant remained. The court concluded: “Taking into account the above circumstances, and the fact that it was not possible to establish a causal link between the applicant’s participation in the trial [and the deterioration in his health] or to establish whether, and to what extent, the surgery would have led to an improvement in the functioning of the applicant’s left ventricle of the heart, it must be concluded that the prosecutor was right in finding no evidence in the circumstances of the instant case pointing to the commission of an offence, and that the prosecutor’s decision was based on Article 7 of the Code of Criminal Procedure. Accordingly, the impugned decision shall be upheld.” F.     The civil proceedings for compensation 65.     On 12 July 2002 the applicant’s wife lodged a civil claim with the Warsaw Regional Court, seeking compensation in connection with her husband’s death. She maintained that her late husband had not received proper medical treatment in the detention centre and had been obliged to participate in the hearings despite his poor state of health. The applicant’s wife applied for legal aid, submitting that her monthly income, comprising her salary as a cleaning lady and disability benefit for her daughter, who suffered from cerebral palsy, was equivalent to EUR 370. The applicant’s representative submitted that the court had exempted her from paying court fees but had dismissed her application for legal aid. 66.     On 26 January 2004 the Warsaw Regional Court dismissed the claim. The court examined the treatment that the applicant had undergone since his arrest in 1997 and the prosecutor’s case file concerning the investigation into the applicant’s death. It found that the State Treasury could not be held liable for damage, as it had not been established that the applicant’s death had been caused by unlawful actions or omissions of the detention centre officials. In addition the court found that the applicant had failed to prove that her financial situation had deteriorated as a result of her husband’s death. 67.     The applicant’s wife appealed against the judgment. 68.     On 14 November 2004 the Warsaw Court of Appeal dismissed the appeal. The court agreed with the first-instance court’s assessment that the applicant’s wife had not sustained damage as a consequence of her husband’s death, and that her claim had thus been ill-founded. The court also dismissed as unsubstantiated the applicant’s complaints that the prison authorities had contributed to her husband’s death by failing to provide him adequate medical care. 69.     The applicant failed to lodge a cassation appeal with the Supreme Court against that judgment. She did not apply to a court to have a legal-aid lawyer appointed for the purpose of lodging such appeal on her behalf. II.     RELEVANT DOMESTIC LAW Preventive measures, including detention on remand 70.     The relevant domestic law and practice concerning the imposition of pre-trial detention ( aresztowanie tymczasowe ), the grounds for its extension, release from detention and the rules governing other, so ‑ called “preventive measures” ( środki zapobiegawcze ) are set out in the Court’s judgments in the cases of Gołek v. Poland , no. 31330/02, §§ 27-33, 25   April 2006 and Celejewski v. Poland , no. 17584/04, §§ 22-23, 4 August 2006. The Code sets out the margin of discretion as to the continuation of a specific preventive measure. In so far as relevant, Article   257 provides: “1.     Pre-trial detention shall not be imposed if another preventive measure is sufficient.” The relevant part of Article 259 provides: “1.     If there are no special reasons to the contrary, pre-trial detention shall be lifted, in particular if depriving an accused of his liberty would: (1)     seriously jeopardise his life or health; or (2)     entail excessively harsh consequences for the accused or his family.” THE LAW I.     ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 71.     The applicant complained that, while held in pre-trial detention, he had not received adequate medical care. The applicant submitted that the authorities had postponed his surgery and ignored his medical needs because he refused to cooperate with the prosecutor and special services. After his death, the applicant’s wife complained that her husband had died in custody as a result of inadequate and belated medical assistance and that the authorities had contributed to his death. The Court will examine the complaints from the standpoint of Article 2 of the Convention, the first sentence of which provides: “1.     Everyone’s right to life shall be protected by law.” 72.     The Government contested that argument. A.     Admissibility 73.     The Court notes that the Government raised an objection that the applicant’s wife had not exhausted the remedies available under Polish law. They maintained that she had not lodged a cassation appeal with the Supreme Court in the civil proceedings for damages. 74.     The applicant’s representative contested the Government’s arguments and submitted that the applicant’s wife had made use of the remedies available to her. In particular she had appealed to the District Court against the prosecutor’s decision to discontinue the criminal proceedings and had pursued a civil case for compensation. She had failed to lodge a cassation appeal with the Supreme Court because she had not been represented by a lawyer and had been absent from the hearing before the Court of Appeal. 75.     The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article   35   §   1 of the Convention obliges applicants first to use the remedies that are normally available and sufficient in the domestic legal system to enable them to obtain redress for the breaches alleged. The existence of the remedies must be sufficiently certain, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. Article   35   §   1 also requires that the complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law, but not that recourse should be had to remedies which are inadequate or ineffective (see Aksoy v. Turkey , 18 December 1996, §§   51-52, Reports of Judgments and Decisions 1996 ‑ VI, and Akdivar and Others v. Turkey , 16 September 1996, §§   65-67, Reports 1996 ‑ IV, ). 76.     The Court emphasises that the rule of exhaustion of domestic remedies must be applied with some degree of flexibility and without excessive formalism. It has further recognised that the rule of exhaustion is neither absolute nor capable of being applied automatically; for the purposes of reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual case. This means, in particular, that the Court must take realistic account not only of the existence of formal remedies in the legal system of the Contracting State concerned but also of the general context in which they operate, as well as the personal circumstances of the applicant. It must then examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him or her to exhaust domestic remedies (see the Akdivar and Others judgment, cited above, §   69, and the Aksoy judgment, cited above, §§ 53 and 54). 77.     The Court observes that the Polish legal system provides, in principle, two avenues of recourse for victims alleging illegal acts attributable to the State or its agents, namely a civil procedure and a request to the prosecutor to open a criminal investigation. 78.     With regard to the criminal investigation into the applicant’s death, the Court notes that his wife initiated criminal proceedings directly after his death. The prosecutor discontinued the investigation and this decision was upheld by the Warsaw District Court on 19 January 2004. No appeal lay against that second ruling. The applicant and the Government disagree as to the effectiveness of this investigation. The Court will revert to that issue at the merits stage. 79.     As regards a civil action to obtain redress for damage sustained through alleged illegal acts or unlawful conduct on the part of State agents, the Court notes that the applicant’s wife brought such a civil claim before the domestic courts. However, both the District Court and the Regional Court dismissed her claim on the grounds that the applicant’s death had not been caused by the illegal action of a State agent, as had been confirmed in the criminal investigation, and that she had failed to substantiate her claim that she had sustained damage. The Government nevertheless suggested that the applicant’s wife should have further lodged a cassation appeal with the Supreme Court. However, the Government did not refer to any examples of cases in which the Supreme Court had allowed a cassation appeal and considered the merits of a claim where the lower courts had found that the claimant had sustained no damage and where they had relied on the outcome of criminal proceedings in which no unlawful action by a State agent had been disclosed. 80.     The Court further reiterates that, even assuming that the applicant had pursued her claim un