CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 13 novembre 2012

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page-break-inside:avoid; page-break-after:avoid } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sD083B52B { width:1.2pt; display:inline-block } .sE974397D { width:203.1pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block }       FOURTH SECTION             CASE OF Z v. POLAND   (Application no. 46132/08)             JUDGMENT     STRASBOURG   13 November 2012     FINAL   13/02/2013   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Z v. Poland, The European Court of Human Rights (Fourth Section), sitting as a   Chamber composed of:   Päivi Hirvelä, President,   Lech Garlicki,   George Nicolaou,   Ledi Bianku,   Zdravka Kalaydjieva,   Nebojša Vučinić,   Vincent A. De Gaetano, judges, and Lawrence Early, Section Registrar, Having deliberated in private on 23 October 2012, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 46132/08) 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 Z (“the applicant”), on 16   September   2008. The President of the Section acceded to the applicant’s request not to have her name disclosed (Rule 47 § 3 of the Rules of Court). 2.     The applicant was represented by Ms M. Gąsiorowska and Mrs   B.   Namysłowska-Gabrysiak, lawyers practising in Warsaw. The Polish Government (“the Government”) were represented by their Agent, Mr   J.   Wołąsiewicz of the Ministry for Foreign Affairs. 3.     The applicant complained that her daughter had died as a result of medical negligence and that her rights under Articles 2, 8 and 14 of the Convention had been breached. 4.     On 16 June 2009 the Court decided to give notice of the application to the Government. It also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). 5.     The parties replied in writing to each other’s observations. 6.     In addition, third-party comments were received from the International Reproductive and Sexual Health Law Programme, University of Toronto, Canada; Amnesty International and Global Doctors for Choice, who had been given leave by the President to intervene in the written procedure (Article 36 §   2 of the Convention and Rule   44 §   2). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 7.     The applicant was born in 1951 and lives in Piła. 8.     The facts of the case, as submitted by the parties, may be summarised as follows. A.     Treatment of the applicant’s daughter 1.     Undisputed facts 9.     On 5 May 2004 the applicant’s daughter, Y, was informed that she was between four and five weeks pregnant. Prior to or early in her pregnancy she developed ulcerative colitis (“UC”). The applicant’s daughter began experiencing the symptoms of UC, such as nausea, abdominal pains, vomiting and diarrhoea. Those symptoms were recurrent and caused pain and discomfort. 10.     Y was repeatedly admitted to a number of hospitals. Y, accompanied by the applicant, attended the following hospitals in Poland: 18 to 19   May   2004, Specialist Hospital in Piła, Gynaecology and Obstetrics Department ( Szpital Specjalistyczny w Pile, Oddział Ginekologiczno ‑ Położniczy ); 19   May to1   June 2004 and 4 to 8   June   2004, Specialist Hospital in Piła Internal Medicine Department ( Szpital   specjalistyczny w Pile, Oddział Chorób Wewnetrznych ) (“Piła   Hospital”); 8 June to 1   July   2004 and 19 to 28   July 2004, Clinic of Gastroenterology and Nutrition, Independent Public Teaching Hospital No.   2, H. Święcicki Medical Academy in Poznań (Samodzielny Publiczny Szpital Kliniczny Nr 2 im. H. Święcickiego Akademii Medycznej w   Poznaniu, Oddział Kliniczny Gastroenterologii, Żywienia Człowieka i   Chorób Wewnętrznych ) (“Święcicki Hospital”); 13 to 15   July 2004 Obstetrics and Gynaecology Department III, Gynaecology and Obstetrics Teaching Hospital, Independent Public Medical Facility in Poznań ( Oddział   Położniczo-Ginekologiczny III, Ginekologiczno-Położniczy Szpital Kliniczny Akademii Medycznej w Poznaniu ); 28   July to August   2004, Surgery Department of the Specialist Hospital in Piła ( Szpital   Specjalistyczny w Pile, Oddział Chirurgiczny ); 17   August to 4   September   2004, Pirogow Regional Specialist Hospital in Łódź, General and Vascular Surgery Department ( Wojewódzki Szpital Specjalistyczny im.   Pirogowa w Łodzi, Oddział Chirurgii Ogólnej i Naczyniowej ) (“Pirogow   Hospital”); 4   September   2004, M. Madurowicz Regional Specialist Hospital in Łódź ( Wojewódzki Szpital Specjalistyczny im.   M.   Madurowicza w Łodzi ); 4 to 29 September 2004, Intensive Care Department, Norbert Barlicki University Teaching Hospital No. 1 in Łódź ( Uniwersytecki Szpital Kliniczny Nr 1 im. N.   Barlickiego Uniwersytetu Medycznego w Łodzi, Oddział Kliniczny Anestezjologii i Intensywnej Terapiii ) (“Barlicki Hospital”). 11.     The applicant’s daughter was formally diagnosed with UC during her stay in Piła Hospital between 19 May and 1   June   2004. She underwent a   number of tests, including an endoscopy and a fibro-sigmoidoscopic examination of the anus. 12.     During the visits in the hospitals listed above, the applicant’s daughter received some diagnostic tests and basic treatment. She was given pharmacological treatment (for example, intravenous and oral administration of steroids and antibiotics). 13.     On 8 June 2004 Y was admitted to Swiecicki Hospital. Between 8   June and 1 July and 19 and 28 July 2004 she was an inpatient in that hospital. On 19 July 2004 she was diagnosed with an abscess. 14.     On 28 July 2004 Y left the clinic. 15.     The next day, 29 July 2004, she was admitted to Piła Hospital, where she underwent an operation to remove the abscess. 16.     On 17 August 2004 Y was admitted to Pirogow Hospital due to a   new abscess and rectovaginal fistula. On the same date she was operated on to remove the abscess. Medical files confirm that at the time Y was admitted to hospital the doctors were aware of Y’s ulcerative colitis . 17.     During the applicant’s daughter’s stay in Pirogow Hospital in August 2004 the doctor refused to perform a full endoscopy. In addition, no diagnostic imaging of the abdomen ( diagnostyka obrazowa jamy brzusznej ) was performed. 18.     On 4 September 2004 Y’s condition deteriorated. She was transferred to Madurowicz Hospital. Immediately following her admission she was sent for a surgical operation to establish the cause of the apparent sepsis. During the operation the doctors removed her appendix. Y’s   condition deteriorated, consequently immediately after the operation she was transferred to the intensive care unit of Barlicki Hospital. 19.     On 5 September 2004 the doctors removed the foetus, which was dead. On 15   September   2004 the doctors removed Y’s uterus. Altogether the applicant’s daughter was operated on six times in Barlicki Hospital. On   29   September   2004 she died of septic shock caused by sepsis. 20.     By letter, dated 30 September 2004, Y’s brother asked the hospital not to perform an autopsy. He submitted that the cause of Y’s death was known to him. 2.     Facts in dispute 21.     The Government maintained that on 28 July 2004 Y left the hospital at her own request due to a planned wedding ceremony. In this respect they submitted a copy of Y’s medical file, which in its relevant part reads as follows: “27 July 2004 ...Due to a planned wedding ceremony, the patient is to be released tomorrow at her own request.” 22.     The applicant disagreed. She maintained that Y had not requested to leave the hospital, but had been sent home. 23.     The applicant further submitted that during her daughter’s stay in the surgical department of Piła Hospital the head of that department commented that “it is absurd to spend a whole week treating an abscess. [Y] is too busy with her bottom, instead of taking care of something else”, referring to the pregnancy. The applicant stated that this comment and its context had humiliated and angered her and her daughter. 24.     The Government argued that Piła Hospital maintained that no such comment had been made, either by the head of the department or by any other doctor of that hospital. Also, the Regional Agent for Disciplinary Matters in Poznań, in the course of disciplinary proceedings instituted against doctors who had treated Y, did not confirm the applicant’s allegations. 25.     The applicant also submitted that the doctor at Pirogow Hospital had justified not performing a full endoscopy (in August 2004) by referring to his fear of endangering the life of the foetus. The applicant submitted that the doctor had stated that “my conscience does not allow me”, but had not formalised his objection or directed Y to another doctor. 26.     The Government argued that during the investigation instituted by the Regional Agent for Disciplinary Matters in Łódź it had been established that none of the doctors at Pirogow Hospital had based their refusal to perform a full endoscopy on a “conscience clause” ( klauzula sumienia ). The   decision not to perform a full endoscopy was taken because there were no medical grounds for such an examination, and not because of Y’s pregnancy. B.     Criminal proceedings 1.     Undisputed facts 27.     On 6 December 2004 the applicant’s lawyer asked the Łódź District Prosecutor to institute criminal proceedings in relation to the circumstances of the applicant’s daughter’s death. The lawyer submitted medical charts from three hospitals and asked the prosecutor to obtain full medical documentation. The applicant was questioned by the prosecutor on 6   January 2005. 28.     On 10 February 2005 the prosecution requested the Collegium Medicum in Kraków and the Medical University in Łódź to issue an opinion as to whether an exhumation would be possible in Y’s case. Both universities replied that an exhumation of Y’s body would not have enabled an opinion to be given on the cause of her death. 29.     On 1   March 2005 the prosecutor opened an investigation of possible unintentional homicide of the applicant’s daughter (Article 155 of the Criminal Code). 30.     On 24 June 2005 the prosecutor decided to appoint an expert from the Forensic Medicine Department of the Collegium Medicum in Kraków, to evaluate the treatment provided to the patient, and to establish whether there was a direct causal link between any irregularities in Y’s treatment and her death. However, Collegium Medicum informed the prosecutor that no autopsy was carried out following the applicant’s daughter’s death, and that exhumation of her body at a later stage would not have enabled an opinion to be given on the cause of death. A similar opinion was issued by the Medical University in Łódź. 31.     On 20 July 2005 the Medical Academy in Gdańsk, on 22 July 2005 the Forensic Medicine Department in Szczecin, and on 19 July 2005 the Medical Academy in Warsaw refused to provide an opinion in Y’s case due to their workload in other cases and lack of staff. 32.   Meanwhile, on 14 June 2005 the Minister of Health convened a   special expert committee to investigate Y’s treatment and the circumstances of her death. The aim of the committee was to inquire in respect of all the hospitals involved in Y’s treatment as regards their organisation and methods of treatment and the availability of those methods. On 15 November 2005 the committee concluded that the death had been directly caused by sepsis. The committee noted however, that during Y’s stay in Pirogow Hospital, despite her history of inflammatory bowel disease the doctors failed to perform a diagnostic imaging test on her abdomen. In addition, an earlier diagnosis of sepsis and the establishment of its original cause in Pirogow Hospital (most probably Lesniewski-Crohn disease) and a   possible decision about surgical treatment would have had an impact on Y’s situation. The committee’s report was signed by several national consultants in various fields of health care. Two members of the committee, who were not medical experts, did not sign the report: professor of criminal law E.Z., and W.N., the head of an NGO working in the field of reproductive rights. 33.     On 8 August 2005 the prosecutor’s office asked national consultants in gastroenterology, gynaecology and vascular surgery to submit opinions on Y’s treatment. 34.     On 12 December 2005 an expert gastroenterologist stated in her opinion that the original cause of sepsis could not be determined due to the fact that an autopsy had not been performed on Y’s body. 35.     The investigation of the death of the applicant’s daughter was extended several times. It was then suspended, on 26 May 2006. The   prosecutor referred to the need to obtain expert opinions and the fact that the waiting time for such opinions was at least twelve months. 36.     Subsequently six medical opinions were submitted to the prosecutor’s office on 12 March, 10 April, 10 May, 4 June, and 27   September 2007, and 25   April 2008. Altogether the prosecution obtained opinions from eight medical experts. The experts were subsequently heard by the prosecutor. 37.     During the investigation, there were several changes of prosecutor: at least six prosecutors handled the investigation at different stages. 38.     On 10 May 2007 M.K, an expert gastroenterologist, considered it surprising that Y had not undergone an ultrasonographic examination of the abdomen. He further stressed that she could have had an MRI (magnetic   resonance imaging) to determine the cause of the abscess. Lastly, an autopsy would have allowed the original cause of the sepsis to be determined. In an additional opinion of 25 April 2008 M.K. considered that in both hospitals, Piła and Pirogow, the doctors failed to do an MRI. However, he stressed that the lack of adequate examination in Y’s case should be treated not as medical malpractice but as lack of due diligence. 39.     On 11 June 2008 the District Prosecutor resumed and discontinued the investigation. The prosecutor concluded that on the basis of the experts’ opinions there was no ground for any doubts or objections as to the treatment received by the applicant’s daughter. Failure to conduct an MRI should be considered a lack of due diligence and not medical malpractice. It   could no longer be said that an earlier operation would have saved Y’s life. Consequently, no direct link had been established between the treatment and the death of the applicant’s daughter. 40.     The applicant appealed. 41.     On 5   September 2008 the Lódz District Court upheld the prosecutor’s decision. The court referred to the complicated nature of the case and the fact that no autopsy was performed, and therefore it was impossible to establish whether Y suffered from Lesniewski-Crohn’s disease. The court considered that there were no grounds for continuation of the investigation of Y’s death. 2.     Facts in dispute 42.     The applicant stated that the prosecutor had not obtained the necessary information, such as full medical records, to assist experts in forming their opinions. The Government maintained that the prosecutor had obtained full medical records from all the hospitals attended by the applicant’s daughter in Piła, Poznań and Łódź. 43.     The applicant also stated that the prosecutor had failed to address the critical issue of whether in the circumstances of the case it had been advisable to perform a colonoscopy. The investigation was instead focused on whether an abortion was necessary to provide appropriate treatment to   the applicant’s daughter. The Government argued that the prosecutor had examined the issue of colonoscopy and the investigation had been focused on Y’s cause of death: in particular, on the question whether her treatment had been adequate to the diagnosis and whether further tests, such as a full endoscopy and a diagnostic imaging test, could have prevented Y’s death. 44.     The applicant claimed that the two members of the special expert committee (see paragraph 32 above) who had not signed the report of 15   November 2005 had not been allowed to participate in the committee’s discussions and therefore did not have access to the medical files. The   Government disagreed. They drew the Court’s attention to the fact that all the medical specialists had signed the report. C.     Disciplinary proceedings 45.     On 20 June 2005 the Łódź Regional Agent for Disciplinary Matters ( Okregowy Rzecznik Odpowiedzialnosci Zawodowej ) (“Disciplinary Agent”) instituted disciplinary proceedings against the doctors who had treated Y. After consulting several experts and hearing witnesses, he concluded that there was no evidence of medical malpractice. During the proceedings the applicant and Y’s fiancé refused to testify before the Disciplinary Agent. The proceedings were discontinued by a decision of 25   October   2006. 46.     In late May 2005 the Poznań Disciplinary Agent instituted disciplinary proceedings against the doctors who had treated Y. On 6   December 2006 three specialists from the Wrocław Medical Academy issued a medical opinion, that there was no evidence of medical malpractice. The proceedings were discontinued by a decision of 8   January   2007. 47.     The applicant did not appeal against the Poznan and Lodz Disciplinary Agents’ decisions to the Chief Agent for Disciplinary Matters in Warsaw ( Naczelny Recznik Odpowiedzialnosci Zawodowej ). D.     Civil proceedings 48.     In September 2007 the applicant had brought a compensation claim in the Łódź District Court against Pirogow Hospital. 49.     On 7 April 2009 the applicant modified her claim and asked for 300,000 Polish zlotys (PLN) in compensation. Consequently, the case was transferred to the Łódź Regional Court. 50.     On 17 March 2011 the Łódź Regional Court dismissed the applicant’s claim for compensation. The applicant did not appeal against this judgment. In addition, none of the parties asked to be served with the written reasoning of the judgment. E.     Access to the medical files 1.     Uncontested facts 51.     There is no indication in the medical files of Y’s stay in Piła Hospital (19 May-1 June 2004) that she had given permission for third parties to have access to these files. For these reasons, in 2004 the hospital refused the applicant access to the medical files 52.     Medical files of Y’s stay in Swiecicki Hospital (8 June to 1   July   2004 and 19-28 July) indicate that Y specified that the applicant was entitled to obtain documentation on her stay in the hospital. The hospital granted access to these files to the Lodz District Prosecutor (on 14 March and 9 May 2005 and 27 February 2006) and to the Ministry of Health on 27   June 2005. 53.     Medical files in Pierogow Hospital do not indicate that Y allowed third-party access to her medical files. For this reason the hospital refused the applicant access to these files. 2.     Facts in dispute 54.     The Government maintained that the applicant had not requested the Swiecicki hospital to give her access to Y’s files. The applicant disagreed. She submitted, without specifying any details, that she had twice asked the hospital for these files but had not been granted access. 55.     The Government submitted that on 1 March 2005 the prosecutor’s office requested the relevant hospitals to provide files on Y’s treatment. In   this connection they submitted copies of the prosecutor’s decisions. 56.     The applicant disagreed: she claimed that the relevant files were requested only in February and April 2006. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Conscientious objection 57.     Under section 39 of the Medical Profession Act of 1996 ( ustawa   o   zawodzie lekarza i lekarza dentysty ) (“the 1996 Act”), as applicable at the material time, a doctor may refuse to carry out a medical procedure, citing her or his objections on the ground of conscience. He or she is obliged to inform the patient where the medical procedure concerned can be obtained and to register the refusal in the patient’s medical records. Doctors employed in health-care institutions are also obliged to inform their supervisors of their refusal in writing. B.     Autopsy 58.     Sections 24-26 of the Health-Care Institutions Act of 1991 ( ustawa   o   zakładach opieki zdrowotnej ), as applicable at the material time, specified situations in which an autopsy is to be performed. In general, when a person died in a hospital, the authorities might carry out an autopsy unless that person’s statutory representative objected or the patient expressed such a wish whilst alive. However, an autopsy was obligatory if the cause of the patient’s death could not be unequivocally established or in situations specified in the code of criminal procedure. C.     Access to medical records 59.     Under section 41 of the 1996 Act and the ordinance of 2001 on types of individual medical documentation, keeping them and detailed conditions of granting access to them ( Rozporzadzenie Ministra Zdrowia w sprawie rodzajów indywidualnej dokumentacji medycznej, sposobu jej prowadzenia oraz szczegółowych warunków jej udostepniania ) as applicable at the material time, a doctor was obliged to grant access to individual medical files to a patient, his statutory representative or a person authorised by the patient; to another doctor or person authorised to conduct the patient’s treatment; other organs under separate legislation (such as courts or a   prosecutor’s office). D.     The Civil Code 60.     Under Article 417 of the Polish Civil Code, the State is liable for damage caused by its agents in the exercise of their functions. There is established case-law of the Polish courts to the effect that this liability of the State also includes liability for damage caused by medical treatment in a   public system of medical care, run either by the State or by the municipalities. E.     The Criminal Code 61.     Article 155 of the Criminal Code of 1997 provides that a person who unintentionally causes the death of another human being shall be liable to a   sentence of imprisonment between three months and five years F.     Disciplinary proceedings 62.     The Chambers of Physicians Act of 1989 ( ustawa o izbach lekarskich ) (“The 1989 Act”) no longer in force, established Chambers of   Physicians. The disciplinary responsibility of physicians for professional misconduct may be determined in proceedings before organs of the Chambers, agents for disciplinary matters and disciplinary courts. Agents and members of the courts for each region are elected by members of a local chamber. The Chief Agent for Disciplinary Matters and the Principal Court are elected by the National Congress of Physicians, composed of delegates of local chambers. 63.     Pursuant to Article 42 of the Act, the following penalties may be imposed in disciplinary proceedings: a warning, a reprimand, suspension of the right to practise medicine for a period from six months to three years, and being struck off the register of physicians. 64.     The agent for disciplinary matters must investigate the matter if he obtains credible information that the rules of professional conduct have been infringed. When investigating such a complaint, the agent may question a   physician charged with professional misconduct, may appoint experts and question witnesses and take such other evidence as he or she sees fit. A   physician charged with professional misconduct is entitled to make any submissions which in his or her opinion are relevant. 65.     The agent shall discontinue proceedings if he concludes that the material gathered in the case does not suffice for drawing up a motion for a   penalty to be imposed. THE LAW I.     THE GOVERNMENT’S PRELIMINARY OBJECTION ON NON-EXHAUSTION 66.     The Government in their observations of 4 December 2009 raised a   preliminary objection that the applicant had failed to exhaust the available domestic remedies. They stressed that the case concerned medical malpractice, and therefore the applicant’s complaints relating to the death of her daughter should have been made first to a civil court. They submitted several judgments of domestic courts awarding compensation to victims of medical malpractice (damage sustained during delivery and infection with hepatitis C). 67.     The Government submitted that the Polish legal system provided two avenues of recourse for victims alleging illegal acts attributable to the State’s agents a civil procedure and a request to the prosecutor for an investigation to be opened. In their opinion, in the instant case there was no need to institute criminal proceedings because civil proceedings initiated by the applicant would have enabled her to establish the liability of doctors concerned and to obtain full redress for damage resulting from the doctors’ alleged negligence. They stressed that not every instance of death in a   hospital, although always tragic and traumatic for relatives, would engage criminal responsibility on the part of doctors. 68.     The applicant contested the Government’s arguments. She submitted that she was entitled to choose a remedy that addressed her grievance best, and also that a civil remedy was not an effective remedy in the present case. In this respect the applicant pointed out that she had made use of the criminal remedy available to her. On 30 November 2004 she had made an application to the prosecutor for an investigation to be instituted in respect of Y’s death. She had further appealed against the decision to discontinue the proceedings in 2008. The applicant maintained, referring to Zdebski, Zdebska and Zdebska v. Poland ( Zdebski, Zdebska and Zdebska v. Poland (dec.), no.   27748/95, 6 April 2000, unreported) that her request to the prosecutor for a criminal investigation satisfied the exhaustion requirement and that it was irrelevant whether the civil proceedings were pending. 69.     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, ). 70.     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. 71.     With regard to the criminal investigation of the applicant’s daughter’s death, the Court notes that the applicant initiated criminal proceedings directly after Y’s death. The prosecutor discontinued the investigation and this decision was upheld by the District Court on 5   September 2008. The applicant and the Government disagree as to the effectiveness of this investigation. The Court will return to that issue at the merits stage. 72.     As regards a civil action to obtain redress for the damage sustained through alleged illegal acts or unlawful conduct on the part of State agents, the Court notes that the applicant brought a civil claim against the Poznan hospital before the domestic courts; however, it was dismissed by the Regional Court on 17 March 2011. 73.     Although the applicant failed to lodge an appeal against the above-mentioned decision of the Regional Court, and the Court will revert to that matter in the context of Article 8 (see paragraph 127 below), it finds that in the particular circumstances of the case the applicant cannot be faulted for having used the criminal remedy as her primary means of redress. She should therefore be considered as having exhausted domestic remedies for the purposes of Article   35 §   1 of the Convention (see Baysayeva v. Russia , no. 74237/01, §   109, 5 April 2007, and Dzieciak , cited above). For these reasons, the Government’s plea of inadmissibility on the ground of non-exhaustion of domestic remedies must be dismissed. II.     ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 74.     The applicant complained that the doctors treating her daughter failed to provide her with adequate treatment. She also complained that no effective investigation was conducted which would have allowed the establishment of responsibility for her daughter’s death. Lastly, referring to the law governing objection on grounds of conscience, she maintained that the State had failed to adopt a legal framework which would have prevented the death of her daughter. She cited Articles 2 and 13 of the Convention. Article 2 of the Convention provides, in so far as relevant: “1.     Everyone’s right to life shall be protected by law ...” A.     Effective investigation 1.     The scope of the case 75.     With regard to any possible substantive aspect of the applicant’s complaint under Article 2 of the Convention, the Court observes that the applicant did not in any way allege or imply that her daughter had been intentionally killed by the doctors responsible for her care and treatment at the material time. She averred, on the other hand, that the doctors treating her had not administered treatment adequate to her condition. She further complained under Article 13 of the Convention alleging lack of a competent and thorough investigation. 76.     Admittedly, the first sentence of Article 2 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,   among other authorities, L.C.B. v. the United Kingdom , 9 June 1998, §   36, Reports of Judgments and Decisions 1998-III, and Jasińska v. Poland , no.   28326/05, § 57, 1 June 2010). The Court accepts that it cannot be excluded that acts and omissions by the authorities in the field of health-care policy may in certain circumstances engage their responsibility under the positive limb of Article 2. However, where a Contracting State has made adequate provision to secure high professional standards among health professionals and the protection of the lives of patients, it cannot accept that matters such as an error of judgment on the part of a health professional or failure to coordinate by health professionals in the treatment of a particular patient, assuming such negligence to have been established, are sufficient of themselves to call a   Contracting State to account from the standpoint of its positive obligations under Article 2 of the Convention to protect life (see   Powell   v.   the   United   Kingdom (dec.), no. 45305/99, ECHR 2000-V). 77.     Having regard to the above, the Court considers that the applicant’s grievances are more appropriately examined from the angle of the procedural requirement implicit in Article 2 of the Convention 2.     Admissibility 78.     The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3(a) of the Convention. It also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 3.     Merits (a)     The parties’ submissions (i)     The applicant 79.     The applicant submitted that the State had violated its procedural obligations under Article 2 of the Convention by failing to carry out an effective investigation of the circumstances surrounding the applicant’s daughter’s death. Even if a civil remedy would have been an appropriate remedy in this case, the flawed investigation carried out after Y’s death rendered a possible civil remedy ineffective. 80.     The applicant maintained that the investigation was extended several times and suspended on 29 May 2006. The prosecutors responsible for the case changed numerous times with at least six different prosecutors being involved over the course of the investigation. The authorities failed to conduct an autopsy after Y’s death, which would have been necessary to determine the errors made in treatment she had received. In addition, inappropriate questions had been directed at experts during the investigation focusing not on the cause of Y’s death but on whether an abortion had been necessary to treat her. Lastly, the applicant had not been properly informed about its progress. 81.     With reference to the disciplinary proceedings, she submitted that they could not be regarded as an effective remedy against a breach of the Convention. They were conducted by a physicians’ chamber, which was not an independent body but consisted solely of doctors. 82.     She concluded that the failure to carry out an autopsy at all, together with other shortcomings of the investigation, “undermined any attempt” to determine liability on the part of the doctors and hospitals responsible for Y’s care and ultimate death. (ii)     The Government 83.     The Government claimed that the doctors’ allegedly inadequate treatment of the applicant’s daughter could not amount to a breach of the State’s duty to protect the right to life. They maintained that the applicant’s daughter received treatment in various specialised hospitals and underwent various medical tests. In their opinion it would have been difficult to conclude that the quality and promptness of the medical care provided to the applicant’s daughter during her stay in hospitals put her health and life in danger. 84.     In respect of the failure to conduct an autopsy, the Government submitted that according to Polish law there were no compelling reasons to carry out an autopsy. Despite that, the hospital management asked the family their opinion, and Y’s brother requested the hospital not to perform an autopsy on his sister’s body. 85.     As regards the effectiveness of the investigation, the authorities took all reasonable steps to establish the identity of those responsible for the alleged medical malpractice and bring them to justice. The prosecutor ordered eight expert opinions, and voluminous evidence was gathered. Doctors responsible for Y’s treatment were questioned and the agent for disciplinary matters carried out extensive investigations. The investigation was focused on the cause of death of Y: in particular, whether her treatment was adequate to the diagnosis and whether further diagnostic tests with full endoscopy and computer scan could have prevented Y’s death. 86.     As regards the number of prosecutors who had dealt with the investigation, the Government noted that it was in compliance with the Code of Criminal Procedure. They stressed that there were questions of territorial jurisdiction, and also that the Regional Prosecutor’s Office had exercised its supervisory function. 87.     They stressed that the applicant had not been hindered from taking part in the proceedings 88.     In addition, both sets of proceedings (criminal and disciplinary) ended without criminal or disciplinary responsibility of doctors who treated Y being established. In this respect the Government again underlined that in the framework of civil proceedings the court could have examined all the circumstances surrounding the applicant’s daughter’s death. (iii)     Third parties (α)     The International Reproductive and Sexual Health Law Programme, Faculty of Law, University of Toronto 89.     The International Reproductive and Sexual Health Law Programme in its observations of 28 October 2009 submitted that access to comprehensive maternal care was an essential component of women’s right to health. 90.     They maintained that the rights of pregnant women in protection of life and physical integrity were recognised to prevail over foetal interests. (β)     Amnesty International 91.     Amnesty International submitted in its observations of 27   November   2009 that regardless of whether doctors in the present case had in fact refused information, diagnosis or treatment for reasons of conscientious objection, effective legal and policy guidelines were not in place to ensure that doctors were transparent in disclosing their reasons when they refused a patient treatment. (γ)     Global Doctors for Choice 92.     Global Doctors for Choice submitted observations on 11   September   2009. Their comments addressed medical standards concerning the treatment of pregnant women who have ulcerative colitis. They stressed that any suggestion of a conflict between maternal treatment and foetal well-being in cases of UC was unfounded. (b)     The Court’s assessment (i)     Relevant principles 93.     As the Court has held on several occasions, the procedural obligation of Article 2 requires the States to set up an effective independent judicial system so that the cause of death of patients in the care of the medical profession, whether in the public or the private sector, can be determined and those responsible made accountable (see, among other authorities, Calvelli and Ciglio , cited above, §   49, and Powell v. the United Kingdom, cited above).   The Court reiterates that this procedural obligation is not an obligation of result but of means only ( Paul and Audrey Edwards v.   the   United Kingdom , no.   46477/99, §   71, ECHR 2002-II). 94.     Even though the Convention does not as such guarantee a right to have criminal proceedings instituted against third parties, the Court has said many times that the effective judicial system required by Article 2 may, and under certain circumstances must, include recourse to the criminal law. In the specific sphere of medical negligence 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, enabling any responsibility of the doctors concerned to be established and any appropriate civil redress, such as an order for damages and/or for the publication of the decision, to be obtained. Disciplinary measures may also be envisaged (see Calvelli and Ciglio , cited above, § 51, and Vo , cited above, §   90). 95.     A requirement of promptness and reasonable expedition is implicit in this context. Even where there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities is vital to the maintenance of public confidence in their adherence to the rule of law and to the prevention of any appearance of collusion in or tolerance of unlawful acts (see Paul and Audrey Edwards , cited above, §   72). The same applies to Article   2 cases concerning medical negligence. The State’s obligation 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, and that requires a prompt examination of the case without unnecessary delays (see Calvelli and Ciglio , cited above, § 53; Lazzarini and Ghiacci v. Italy (dec.), no.   53749/00, 7 November 2002; and Byrzykowski , cited above, §   117). 96.     Lastly, apart from concern for the respect of the rights inherent in Article 2 of the Convention in each individual case, more general considerations also call for a prompt examination of cases concerning death in a hospital setting. Knowledge of the facts and of possible errors committed in the course of medical care are essential to enable the institutions concerned and medical staff to remedy potential deficiencies and prevent similar errors. The prompt examination of such cases is therefore important for the safety of users of all health services (see   Šilih   v.   Slovenia [GC], no. 71463/01, § 192-96, 9 April 2009). (ii)     Application of the above principles in the instant case 97.     Turning to the facts of the present case, the Co