ECHR judgment of September 5, 2019 in the case of Olewnik-Cieplinska and Olewnik v. Poland (application No. 20147/15).
In 2015, the applicants were assisted in preparing the application. Subsequently, the application was communicated to Poland.
In the case, an application was successfully considered regarding the inappropriate reaction of the authorities to the abduction of a person, as well as a situation where the circumstances of the abduction and death of a person remained unclear for 17 years after the events. The case contained a violation of Article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
Circumstances of the case
In October 2001 the applicant’s brother, who was the applicant’s son, was abducted and demanded for his return. He was held captive for almost two years, and then was killed after the applicant handed over a ransom for his release in 2003. The circumstances of the abduction and murder of the applicant’s brother were established in November 2005, when a witness pointed to the abductors. The place where the body of the deceased was hidden was discovered in October 2006. In March 2008, 10 people were convicted of participating in a criminal group created to kidnap a victim. Two of them were convicted of murder and sentenced to life imprisonment. These sentences were based mainly on confessions. An investigation into the involvement of other unidentified persons in the crime was still ongoing.
QUESTIONS OF LAW
Regarding compliance with article 2 of the Convention. (a) Substantive aspect. In ransom cases, it was assumed that the life and health of the victim were in danger. The letters received from the abductors by the family and the police clearly indicated that the applicants' relative's life was in danger. The immediate nature of the risk to life should be understood as a reference mainly to the severity of the situation and the particular vulnerability of the victim of the abduction. The risk did not decrease over time. On the contrary, the fact that the situation has not changed for years has increased the victim's suffering and the risk to his life and health. The real risk to his life, therefore, remained immediate for the entire period when he was in captivity. Thus, the authorities knew or should have known about the existence of a real and immediate threat to the life and health of the victim from the moment of her disappearance. In this situation, the positive obligations of the respondent Government under Article 2 of the Convention were that the Polish authorities should have done everything that could reasonably be expected of them in order to find the abducted person as quickly as possible and establish the identity of the abductors.
The police made a number of serious mistakes, which led to the fact that all attempts to investigate the abduction were unsuccessful. These included violations when collecting evidence in the victim’s house immediately after the abduction, failure to interrogate witnesses and not clarifying their actions in connection with receiving an anonymous letter indicating the persons involved in the abduction, lengthy analysis of calls from the abductors, lack of monitoring of the transfer ransom, for which the kidnappers came themselves. Moreover, serial numbers of banknotes, despite the fact that the family handed them over to the police, were sent for registration with the central banking supervisor only after 17 months.
The Polish authorities did not respond to the situation in the manner required of them in the abduction and lengthy abduction case. Despite the fact that the Court cannot make assumptions as to how the case would end if the authorities showed more zeal, there is a clear causal link between the large list of errors and shortcomings that have been made and have taken place over several years, and the lack of progress in the investigation while the applicants' relative was still alive.
In the case there was a violation of the requirements of Article 2 of the Convention in its substantive aspect (adopted unanimously).
(b) The legal process. In addition to the proceedings against members of a criminal group who kidnapped and killed a relative of the applicants, the Polish Sejm (lower house of the Parliament of Poland) created a parliamentary committee to consider, inter alia, the actions of the police and prosecution authorities. In itself, the scale of the identified shortcomings was such that the committee considered the version of the willful and deliberate actions of officials aimed at concealing evidence, destroying evidence, creating false operational versions, and, as a result, that some of them collaborated with a criminal group . The European Court noted the actions of the prosecution authorities in investigating the liability of some police officers and prosecutors. Criminal proceedings against two police officers ended because their statute of limitations had expired. Other proceedings have not led to the prosecution of individual police officers or prosecutors. Nevertheless, orders to terminate investigations contained important information about the actions of the authorities. The prosecutor’s office concluded that the state “did not create the proper legal and financial structures for the prosecutor’s office” to effectively investigate crimes such as kidnapping.
Despite the positive changes aimed at investigating the death of the applicants' relative, the murder proceedings were still pending. In recent productions, his body was exhumed, and a new post-mortem examination was conducted. In addition, the possibility of involvement in the case of other persons was considered. 17 years after the abduction, the circumstances of the case were still not fully clarified.
In the case there was a violation of the requirements of Article 2 of the Convention in its procedural and legal aspect (adopted unanimously).
In application of Article 41 of the Convention. The Court awarded the applicants jointly EUR 100,000 in respect of non-pecuniary damage, and claims for pecuniary damage were rejected.