FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 11818/02 
by Władysława MOJSIEJEW 
against Poland

The European Court of Human Rights (Fourth Section), sitting on 26 April 2005 as a Chamber composed of:

Sir Nicolas Bratza, President
 Mr J. Casadevall
 Mr G. Bonello
 Mr R. Maruste
 Mr S. Pavlovschi
 Mr L. Garlicki, 
 Mr J. Borrego Borrego, judges
and Mr M. O'Boyle, Section Registrar,

Having regard to the above application lodged on 21 July 1999,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.

Having deliberated, decides as follows:

THE FACTS

The applicant, Mrs Władysława Mojsiejew, is a Polish national born in 1951. She lives in Bojszowy, Poland.

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

A.  The death of Sajmon Mojsiejew

The applicant's younger son Sajmon Mojsiejew died on 25 May 1995 at the age of seven. His death resulted from the injuries he had sustained five days earlier when he had been knocked down by a car on a pedestrian crossing.

On 22 July 1995 sergeant B.P. of the Tychy District Police Station decided to discontinue the investigation into the circumstances of the child's death. The investigation was discontinued because sergeant B.P. concluded that Sajmon Mojsiejew had caused the accident as he had dashed on to the pedestrian crossing right in front of the incoming car and it had been impossible for the driver of the car to stop in order to avoid the accident.

On 31 July 1995 the Tychy District Prosecutor approved the decision to discontinue the investigation. The applicant lodged with the Tychy Regional Prosecutor an appeal against that decision.

On 3 January 1996 the Tychy Regional Prosecutor quashed the contested decision and remitted the case to the Tychy District Prosecutor, instructing him to reinvestigate the circumstances surrounding the death of Sajmon Mojsiejew.

On 28 March 1996 sergeant B.P. of the Tychy District Police Station decided to discontinue the investigation. The decision was again based on the conclusion that the victim of the accident had caused it by rushing on to a pedestrian crossing. On 24 April 1996 the Tychy District Prosecutor approved the decision to discontinue the investigation. The applicant appealed to the Katowice Regional Prosecutor.

On 27 August 1996 the Katowice Regional Prosecutor dismissed the applicant's appeal.

B.  The death of Hubert Mojsiejew

On 28 August 1999 the applicant's older son Hubert Mojsiejew died at the age of twenty-five. He died at about 9 a.m. in the Tychy Sobering-Up Centre (Izba Wytrzeźwień) where he had been detained at 4.15 a.m. The death certificate (karta zgonu) signed by Doctor J. S., a forensic expert of the Silesian Medical Academy, gave the following reasons of Hubert Mojsiejew's death:

“Numerous effusions of blood in the soft tissue of the neck.”

On 30 August 1999 the Tychy District Prosecutor opened an investigation in order to establish whether the offence prohibited by Article 155 of the Criminal Code (unintentional homicide) had been committed.

On 30 December 1999 the Tychy District Prosecutor discontinued the investigation. The prosecutor observed that Hubert Mojsiejew had been examined by a doctor at the time of his admission to the sobering-up centre. The examination had shown that he was intoxicated and that he had no injuries to his body. As Huber Mojsiejew had uttered threats and had been aggressive he had been tied up to a bed with belts. The room in which he had been detained had been inspected by an employee of the sobering-up centre at 7.00 a.m and 7.45 a.m. When the same employee had come to the room at 8.45 a.m. he had noticed spots on Hubert Mojsiejew's skin and had called the doctor on duty. The doctor had examined Hubert Mojsiejew and had called an ambulance. The doctor who had arrived in the ambulance had examined Hubert Mojsiejew and had found him dead. Furthermore, the prosecutor referred to an expert opinion prepared by the Silesian Medical Academy, which stated that Hubert Mojsiejew had died of asphyxiation. The prosecutor concluded that the evidence collected in the course of the investigation did not show that third persons had caused the death of Hubert Mojsiejew.

On 18 January 2000 the applicant filed with the Tychy District Prosecutor an appeal against the decision to discontinue the investigation. She also requested that the prosecution service carry out a reconstruction of the crime scene, with the participation of a medical expert.

On 20 January 2000 the Tychy District Prosecutor informed the applicant that her request was granted.

On 14 March 2000 the Tychy District Prosecutor allowed the applicant's appeal of 18 January 2000 and resumed the investigation. That decision was based on the evidence collected during the reconstruction of the crime scene requested by the applicant.

On an unspecified date the Tychy District Prosecutor charged four employees of the Tychy Sobering-Up Centre with unintentional homicide of Hubert Mojsiejew. On 14 July 2000 the District Prosecutor suspended from duty one of the accused Mr Z.K., an employee of the Tychy Sobering-Up Centre.

On 11 December 2000 the Tychy District Prosecutor indicted four employees of the sobering-up centre before the Tychy District Court. They were charged under Article 155 of the Criminal Code with the unintentional homicide of Hubert Mojsiejew. In particular, Mr Z.K. was charged with negligently tying Hubert Mojsiejew to the bed which limited to a large extent the respiratory movements of his chest and resulted in death by asphyxiation.

The Tychy District Court held the first hearing on 17 April 2003. Subsequently, two hearings were scheduled for 9 June 2003 and 24 February 2004 but they were adjourned.

According to the applicant, the Tychy District Court has not so far taken evidence from a single witness. The case is still pending before that court.

COMPLAINTS

1.  The applicant complains about the ineffectiveness of the investigation concerning the death of Sajmon Mojsiejew.

2.  The applicant complains that the death of her older son, Mr Hubert Mojsiejew, was caused by the employees of the sobering-up centre. She also complains, under Articles 6 and 13 of the Convention, that the ineffectiveness and delay in the proceedings before the prosecution authorities and the trial court resulted in the impunity of persons responsible for the death of her son.

THE LAW

1.  The applicant complains that the investigation concerning the death of her younger son, Sajmon Mojsiejew, was ineffective.

However, pursuant to Article 35 § 1 of the Convention:

“1.  The Court may only deal with the matter ... within a period of six months from the date on which the final decision was taken.”

The Court notes that the final decision in this set of proceedings was given on 27 August 1996 the Katowice Regional Prosecutor. This was more than six months before the date on which the applicant submitted this complaint to the Court. It follows that this complaint is introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

2.  The applicant further complains about the death of Hubert Mojsiejew in the sobering-up centre and the ineffectiveness of the subsequent investigation and criminal proceedings.

The Court considers that the complaints should be examined under Article 2 of the Convention.

The Court considers that it cannot, on the basis of the file, determine the admissibility of the complaints and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of these complaints to the responded Government.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant's complaints about a breach of Article 2 of the Convention;

Declares the remainder of the application inadmissible.

Michael O'Boyle Nicolas Bratza 
 Registrar President

MOJSIEJEW v. POLAND DECISION


MOJSIEJEW v. POLAND DECISION