OLEWNIK-CIEPLIŃSKA AND OLEWNIK v. POLAND

Communicated on 18 November 2015

FOURTH SECTION

Application no. 20147/15
Danuta OLEWNIK-CIEPLIŃSKA and Włodzimierz OLEWNIK
against Poland
lodged on 14 April 2015

STATEMENT OF FACTS

1. The applicants, Ms Danuta Olewnik-Cieplińska and Mr Włodzimierz Olewnik, are Polish nationals who were born in 1974 and 1949 respectively and live in Drobin. They are represented before the Court by Mr B. Borkowski, a lawyer practising in Warsaw.

A. The circumstances of the case

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

1. Disappearance of Krzysztof Olewnik

3. On the night of 26 October 2001 Mr Krzysztof Olewnik, the brother of the first applicant and the son of the second applicant, disappeared from his home in Drobin. He was twenty-five years old. He and his father were businessmen, the latter owning successful butchers’ shops and meat processing plants. On the day of his kidnapping Krzysztof Olewnik had held a garden party at his house, which was attended by four local police officers, two former police officers, his father and mother, and three of his friends. After the party, Krzysztof Olewnik drove his guests back to their homes and came back. A few hours later, he was kidnapped from his house by A[1], E, F and G.

4. The second applicant discovered his son’s disappearance on the morning of 27 October 2001 and informed the police.

5. At the same time he contacted a well-known private detective, K.R., whose team arrived at the scene. K.R.’s team investigated the case independently of the police during the following years. The family also contacted other private detectives and psychics, or was contacted by other such people who wished to benefit from the wealth of an increasingly desperate family.

6. On 29 October 2001 the kidnappers contacted the applicants, asking for a ransom. The victim’s family cooperated with the kidnappers, but several attempts to hand over the ransom failed. On numerous occasions the kidnappers contacted the family by phone, sent voice messages and transmitted letters hand-written by the victim. On 24 July 2003 the first applicant handed over 300,000 euros (EUR) as ransom for liberation of her brother. However, the kidnappers did not release him.

7. Mr Krzysztof Olewnik was kept for almost two years by his kidnappers at three different nearby locations. He was hidden in an abandoned house, an underground garage, and an underground septic tank. The victim was always kept chained to the wall of his cells by his neck and his leg. He was drugged, on a few occasions was beaten up, and was generally poorly treated.

8. On 5 September 2003 Mr Olewnik was murdered in a forest near Brzuze. The circumstances of his kidnapping and murder were discovered in November 2005 and the site of his death and his body in October 2006.

9. His funeral took place on 4 November 2006.

2. Investigation into the kidnapping and murder

(a) The police investigation

10. On 24 October 2001, prior to the kidnapping, the traffic police had checked A whilst he was driving a car belonging to B.

11. Following notification by the second applicant, the first police officers arrived at Krzysztof Olewnik’s house at 9 am on 27 October 2001. The case was handled by the local police in Sierpiec. The house was searched and abundant blood samples belonging to the victim found, as well as other evidence. A prosecutor on duty arrived at the scene but did not enter the house to supervise the police and instruct them.

12. A BMW car belonging to a friend of the victim was found burned out. The car was stolen on the night of the kidnapping after having been left parked by the owner in the victim’s yard.

13. On 31 October 2001 the case was transferred to a special team led by police officer R.M. from the Radom Regional Police. The team consisted of twelve police officers, supplemented ‒ following a confidential decision by the Head of Radom Regional Police ‒ by Mr K.K., a police officer who had been present at the party at the victim’s house. The investigation was supervised by the Sierpiec District Prosecutor, Mr L.W.

14. The team led by R.M. prepared four main working hypotheses. The first three posited that Mr Olewnik had been kidnapped by people linked to organised crime, or by his debtors, or by husbands of women he had dated. According the fourth version, the so-called self-kidnapping theory, the victim had simulated his own kidnapping in order to extort money from his father. The last version was favoured by the investigating police.

15. In November 2001 the police interviewed B, a recidivist offender living in the same village as the victim, and released him. In the same month the second applicant handed over to the police further evidence found in the victim’s house which had been overlooked by the police, namely a blood-stained jacket and a mobile phone.

16. In January and March 2002 the traffic police on four occasions checked A driving the same car as before, twice in the presence of B and once of D (see paragraph 10 above).

17. The prosecutor L.W. supervised the investigation until 25 November 2002. Afterwards, up until April 2004, the case was supervised by three consecutive prosecutors from the financial crime division of the Warsaw Regional Prosecutor’s Office (the case was transferred to the organised crime division in September 2004).

18. On 15 January 2003 the applicants received an anonymous letter alleging that the kidnappers were a certain D and C. The letter also indicated a geographical location where the victim was being kept and warned that his life was in danger. The applicants passed the letter on to the police, but the information contained in it was disregarded as it was not considered trustworthy.

19. On 26 June 2003 the kidnappers used a SIM card received beforehand from the applicants as part of the ransom negotiations. They called the applicants and later the Słubice Police Station. The police established that the person who called the police station was B.

20. On 24 July 2003 the applicants handed over a ransom in the amount of EUR 300,000. The police failed to supervise the action, and in particular to follow the first applicant and intercept the money or the persons receiving it. The ransom was picked up by A, B, C, D and H.

21. On 1 June 2004 the police arrested B in connection with the kidnapping of Mr Olewnik. He was afterwards released.

22. On 7 June 2004 an unmarked police car containing sixteen volumes of original documents comprising the investigation’s main case file was stolen in Warsaw. The prosecutor subsequently charged two police officers in connection with the loss of the file (see paragraph 40 below).

23. Following the incident involving the loss of file, the case was removed from the team led by Mr R.M. On 18 August 2004 the Head of Police in Warsaw created a special investigative group consisting of police officers from the Central Investigative Bureau in Warsaw (Centralne Biuro Śledcze, CBŚ) and from Płock. They were led by Mr G.K.

24. On 15 April 2005 the police requested and received a CCTV recording from an Auchan supermarket showing that A had bought the SIM card used by the kidnappers for communication with the applicants on 28 October 2001. This information was known from the beginning of the investigation. The prosecutor only decided to start monitoring the communications made from this number in May 2005, even though the IMEI number had been known from the start of the investigation. At this time the cashier who had sold the phone to A was interviewed and a facial composite image was made. On 29 June 2005, on the basis of photos presented by the police, the cashier identified A as the person who had bought the SIM card.

25. In June 2005 the police conducted searches of the homes of C, D and I, and arrested A. He was released after 48 hours without charge.

26. In November 2005 witness P.S. testified and gave the names of the persons who had allegedly kidnapped Mr Olewnik.

27. Afterwards B and A were arrested on charges of kidnapping as alleged by the witness.

28. In January and February 2006 the biological and olfactory evidence collected at the house of Mr Olewnik directly after his kidnapping was sent for examination.

29. On 4 April 2006 the first applicant requested that the investigation be transferred to another prosecution service, alleging the manifest ineffectiveness of the proceedings so far. On 14 May 2006 yet another investigative group took over the case, this time composed of officers specialising in organised crime in the Police Headquarters in Warsaw. On 13 June 2006, supervision of the investigation was allocated to the Olsztyn Regional Prosecutor.

30. On 27 October 2006, having been confronted with biological evidence found at the crime scene, B confessed to having kidnapped Mr Olewnik. He indicated where the body of Mr Olewnik had been buried.

31. Afterwards other members of the gang were arrested by the police.

32. On 9 August 2007 the Olsztyn Regional Prosecutor lodged with the Płock Regional Court a bill of indictment against twelve persons for participation in the kidnapping and murder of Mr Olewnik.

(b) The judicial proceedings

33. On 31 March 2008 the Plock Regional Court delivered a judgment in which it convicted ten individuals of participation in a criminal gang set up with the intention of kidnapping Mr Olewnik, as well as other offences. Among those ten individuals, B and C were convicted of the murder of Mr Olewnik and sentenced to life imprisonment. Others were given prison sentences ranging from one year to 14 years (II K 119/07).

34. All parties appealed against the judgment.

35. On 8 December 2008 the Warsaw Court of Appeal upheld the convictions and sentences against all the accused (II Aka 306/08).

36. On 8 January 2010 the Supreme Court upheld the judgment (II KK 153/09).

(c) Pending investigation

37. On 21 December 2009 the police discovered previously overlooked blood evidence at the house of Mr Krzysztof Olewnik.

38. In 2010 the body of Mr Olewnik was exhumed from his grave but his identity was later re-confirmed.

39. The investigation into the participation of other unidentified persons in the kidnapping and murder of Mr Olewnik is pending before the Gdansk Appellate Prosecutor (Ap V Ds 11/09). The investigation is being carried out by a team of police officers from the Central Investigative Bureau at the Police Headquarters in Warsaw. It appears that in the course of the investigation the police questioned and briefly detained Mr J.K., a friend and business partner of Mr Krzysztof Olewnik.

3. Investigation into the alleged incompetency of the authorities

(a) Loss of file

40. Following the loss on 7 June 2004 of the entire 14-volume case file, which had been left by two police officers in a car in Warsaw, the prosecutor opened an investigation against them. The investigation was discontinued on 7 September 2004.

41. On 7 February 2005 that decision was quashed by the State Prosecutor, who ordered an investigation into possible negligence on the part of the police officers, which had resulted in the loss of the file.

42. On 14 May 2005 this investigation was discontinued by the Warsaw District Prosecutor.

(b) Proceedings against police officers

(i) M.G.

43. On 22 March 2006 police officer M.G. was arrested and charged with transmitting information from police databases to unauthorised persons. The status of this investigation is unknown.

(ii) R.M. and M.L.

44. On 24 May 2007 the prosecutor opened an investigation into possible negligence on the part of police officers and prosecutors in the years 2001-2005 while handling Mr Olewnik’s case. The investigation was opened in response to a formal notification made by the second applicant that an offence had been committed.

45. On 24 April 2008 the Olsztyn Regional Prosecutor took the decision to arrest three police officers: R.M., M.L. and S.C. They were arrested on 28 April 2008 but released by a decision of a court.

46. The investigation was transferred to the Gdansk State Prosecutor and later the Gdansk Appellate Prosecutor.

47. On 21 December 2012 the Gdansk Appellate Prosecutor (Ap V Ds. 54/12) issued an indictment against R.M. and M.L. The police officers were charged with several counts of abuse of power proscribed by Article 231 of the Criminal Code, allegedly committed between 31 October 2001 and 17 August 2004 when they had been in charge of the investigation in the case of the kidnapping of Krzysztof Olewnik. The prosecutor also considered that the offences amounted to subjecting a person to a risk of danger, an offence proscribed by Article 160 § 1 of the Criminal Code. The bill of indictment itself was 333 pages long and relied on the testimonies of 655 witnesses who had been heard in the course of the investigation. The prosecutor sought the examination by the court of 909 pieces of evidence and the hearing of 71 witnesses.

48. The police officers were charged with negligence in respect of the following, in particular: failing to gather evidence that could have been provided by the sales assistant from the Auchan store who was able to identify A; failure to investigate the anonymous letter of January 2003 which had named the persons involved in the kidnapping as B and C; delay in analysing the calls made by the kidnappers using a known telephone SIM card, which would have linked them to A and C; failure to supervise the handover of the ransom on 24 July 2003; destruction of two pieces of evidence resulting from the monitoring of a cell phone related to the kidnapping.

49. On 10 December 2013 the Plock Regional Court acquitted both police officers. The court considered the charges under Article 160 of the Criminal Code to be ill-founded and, moreover, time-barred since September 2013. As regards the offence of negligence under Article 231 of the Code, the court held that actions and omissions attributed by the prosecutor to the two accused may only be examined from the perspective of unintentional recklessness or carelessness. Such an offence would fall under Article 231 § 3 of the Criminal Code. The court was of the view that the events with which the defendants had been charged should have been taken as individual offences, which − as such − would have become time-barred on various dates in 2013. In spite of the statute of limitations, the court decided to anyway examine the criminal liability of both police officers. In their defence, among other elements, it noted that the investigation should have been led by the prosecutor, who should have been instructing the police what action to take. In the instant investigation the prosecutors were mostly passive. The court further analysed the evidence against the defendants as regards each charge brought against them and concluded that they had not caused essential damage as required by Article 231 § 3 of the Criminal Code.

50. On 14 October 2014 the Lodz Court of Appeal upheld the judgment. The offences became time-barred on 17 August 2014, which precluded the court from assessing the case on the merits. The applicant received a copy of this judgment on 1 December 2014.

(iii) H.S.

51. On 25 January 2013 the Gdansk Appellate Prosecutor (Ap VDs 12/09) discontinued the investigation against H.S., a police officer from Plock who had dealt with the case between 29 October 2001 and May 2006, as no offence had been committed. The police officer was charged with abuse of power in breach of Article 231 of the Criminal Code, in particular by failing to adduce as evidence items found by the burned out BMW car, the video recording from the Auchan supermarket obtained in November 2001 showing one of the kidnappers, and the video recording from the petrol station where the kidnappers had abandoned the telephone that had been used in their communications with the family, which had delayed the discovery of the perpetrators, hindered the release of Mr Olewnik, and consequently resulted in his death on 5 September 2003. The officer was also charged with having failed to take any action following the anonymous letter of 15 January 2003 which had named the true perpetrators of the crime and described the circumstances thereof.

52. In the opinion of the prosecutor, the police officer in question either had no information about the events on which the charges were based or his omissions had not been intentional. Given the circumstances of the case, the police officer could not be held criminally liable for the final outcome of the case, namely the murder of the victim by other persons.

(c) Proceedings against prosecutors

(i) Ds 12/09

53. On 18 December 2012 the Gdańsk Appellate Prosecutor decided to discontinue investigations concerning several prosecutors who had dealt with the case (ApV Ds 12/09). In this set of proceedings no charges were pressed against the prosecutors.

54. The following offences of abuse of power, prohibited by Article 231 of the Criminal Code and allegedly committed by various prosecutors, to the detriment of Krzysztof Olewnik and of the public interest, were discontinued due to the statute of limitations:

1. Negligence of A.N. on 27 October 2001 by failing to personally oversee the inspection of the property and to supervise the collection of evidence by the police, which he was obliged to do by law.

2. Negligence of L.W. in the period from 29 October 2001 to 25 November 2002, in particular by incorrect analysis of the case, lack of supervision over the police’s actions, incorrect procedure after obtaining evidence from telephone conversations, leading to substantial delays in the discovery and arrest of the perpetrators of the kidnapping;

3. Negligence on the part of the Plock Regional Prosecutor, who supervised the work of L.W. in the period from 31 October 2001 to 25 November 2002 in not following the rules of correct supervision, which contributed to many of the mistakes that had been committed.

The allegations of negligence on the part of other prosecutors who had been involved in the case throughout the years were also investigated and dismissed.

55. As regards point 1 above ‒ namely the actions of the prosecutor A.N., who was on duty when the kidnapping was discovered ‒ the investigation revealed a long list of acts of negligence committed by him on 27 October 2001. The gravity of negligent acts committed by him, in spite of clear legal provisions requiring the prosecutor to take the initiative in such circumstances, did not allow those actions to be classified as unintentional. However, the proceedings to finally establish the criminal liability of A.N. had to be discontinued due to the statute of limitations regarding the offences in question.

56. As regards point 2 above ‒ namely the actions of prosecutor L.W. for a period of over one year – the investigators noted on the one hand his low level of involvement, multiple mistakes, and omissions. On the other hand the investigators acknowledged that he had acted within a legal and organisational framework which had made his work more difficult. L.W. was a district prosecutor with a long list of pending cases, to which even more were added during the time he worked on the Olewnik case. When district prosecutors were assessed, particular attention was paid to their output and the number of cases completed. The internal organisation of the prosecution service was such that this prosecutor received no support from his superiors, even though he had no experience of this type of case.

57. The decision of 18 December 2012 ended with the following conclusion:

“Summing up the above analysis, one cannot ignore the fact that the causes behind the failures of the police and prosecution service, resulting in the dramatic consequence of the death of Mr Olewnik, lay much deeper than individual errors committed by particular prosecutors (as was also noted by the Parliamentary Committee). The whole system of operation of the prosecution service, as well as the legislative and executive powers, should be held responsible for this failure. They had failed to create a proper legal and financial structure for the prosecution service in which events as important as kidnappings would immediately be transferred to prosecutors and police officers who were prepared for dealing with them. Such a structure would concentrate all measures and attention on liberating the imprisoned victim. The law enforcement organisation failed in the case of Mr Olewnik, and that assessment cannot be ignored, despite the ultimately successful outcome of the work of prosecutor R.W. and the team from the Central Investigative Bureau of the Police Headquarters, which was able to initiate, and to a large extent finalise, the discovery and capture of the perpetrators of his kidnap and murder.”

(ii) varia

58. On 30 October 2009 the Disciplinary Court within the office of the Prosecutor General of the Republic of Poland acquitted Mr C.K., the Regional Prosecutor in Olsztyn. The disciplinary proceedings had been initiated at the second applicant’s request.

(d) Investigation against central authorities

59. On 16 April 2013 the Gdansk Appellate Prosecutor discontinued the investigation (Ap V Ds 12/09) into the allegations of negligence in carrying out duties (niedopełnienie obowiązków służbowych) in the period between 27 October 2001 and 10 August 2007 in breach of Article 231 of the Criminal Code. The investigation had been directed against representatives of the central administrative authorities of the Republic of Poland, in particular the President, the Prime Minister, ministers of justice, the prosecutors general, ministers of internal affairs and administration, and members of both chambers of Parliament, on account of their failure to take actions aimed at attaining an effective termination of the criminal proceedings in the case of the kidnapping of Krzysztof Olewnik according to the provisions of the Code of Criminal Proceedings and other laws. Their lack of action had been to the detriment of Mr Olewnik and his closest relatives and against the public interest as it had hindered the release of Krzysztof Olewnik, delayed the discovery and arrest of the perpetrators of the kidnapping and murder, and had resulted in the loss of certain pieces of evidence.

60. The prosecutor concluded that in the light of the facts and the law there were no grounds for charging the highest civil servants with any criminal offence. In particular there were no grounds for examining whether the Minister of Justice could be held criminally liable for the flawed investigation.

(e) Forensic experts

61. On 28 December 2012 the Gdansk Appellate Prosecutor indicted a forensic expert, Ms J.D., and the head of the forensic laboratory in Olsztyn, Mr B.Z., before the Elbląg District Court (Ap V ds 63/12). The charges concerned flaws in the examination and identification of the body of Krzysztof Olewnik, which had been discovered in 2006. In particular, the bone and tissue samples taken for DNA testing to confirm the identity of the dead person had afterwards disappeared. All attempts to find those pieces of evidence had failed and it had been necessary to exhume the body in 2010 in order to finally identify it as Krzysztof Olewnik (see paragraph 38 above).

62. The status of this set of proceedings is unknown; it is pending before a criminal court.

4. Other matters

(a) The suicides

63. On 12 December 2006 the main witness who had named the kidnappers, Mr P.S., died (see paragraph 26 above). Before his death he had complained about having received threats which in their formulation showed that the details of his testimonies to the authorities had been leaked to the perpetrators. An investigation was opened into the threatening of a witness, but no actions were taken to trace any possible leak from within the investigative team. The witness apparently died of a long-term illness; his death was not investigated.

64. On 18 June 2007 A, the alleged leader of the kidnapping gang and owner of the house in which Mr Olewnik had been kept, committed suicide while detained in Olsztyn Remand Centre. He was found hanged in a single cell in which he had been placed a short time before; traces of amphetamine and alcohol where found in his body. On 31 July 2008 the Olsztyn District Prosecutor decided to discontinue the investigation into the sudden death of A and possible negligence on the part of the prison guards. On 8 March 2010 the Minister of Justice, the Prosecutor General, decided to re-open the investigation into the death of A. The investigation was finally discontinued on 29 April 2011.

65. On 4 April 2008 B, who had been sentenced to life imprisonment for the murder of Mr Olewnik, committed suicide while detained in Płock Prison. The doctor performing the post mortem noted injuries on his arms which could have been sustained if the victim had been held by his arms and forced into a certain position or caused by blows inflicted just before his death. On 31 December 2010 the Ostrołęka Regional Prosecutor discontinued investigation into the sudden death of B and possible negligence on the part of the prison guards. B’s family did not appeal.

66. On 19 January 2009 C, who had been sentenced to life imprisonment for the murder of Mr Olewnik, committed suicide while detained in Płock Prison. On 13 January 2011 the Ostrołęka Regional Prosecutor discontinued the investigation into the sudden death of C and possible negligence on the part of the prison guards.

67. A, B, and C had been declared so-called “dangerous detainees” and had been subjected to various limitations in their contact with other detainees and many other security measures. They were detained in single cells monitored by CCTV, but the coverage was not complete.

68. While detained in Płock Prison, B and C refused to go out for their daily walks and remained in their individual cells. They indicated to the authorities that they were in fear of their life. The circumstances of their deaths, nine months apart, were identical. The head guard of the wing called an ambulance for another prisoner and checked B and C on the CCTV monitor. During the following minutes everyone’s attention in the wing was concentrated on the ambulance team arriving and the provision of assistance to the prisoner in question. Twenty minutes later, when the ambulance left, B and C could no longer be seen within the area covered by the security camera and a subsequent check by the guards revealed them hanged in their cells.

69. On 12 July 2009 Mr M.K. committed suicide. He was the prison officer at the Olsztyn Remand Centre on duty on the day A committed suicide.

(b) The dismissals

70. On 20 January 2009 the Prime Minister accepted the resignation of Mr Z. Cwiąkalski from the office of the Minister of Justice, who “as the head of the services responsible for investigating the case of the kidnapping and murder of Mr Olewnik, bears direct responsibility for the omissions and failures of those services”.

71. At the same time the following persons were also dismissed: the State Prosecutor, the Deputy Minister responsible for the Prison Service, the Head of the Prison Service and the Director of Płock Prison.

(c) The Parliamentary Inquiry Committee

72. On 13 February 2009 the Polish Sejm set up a Parliamentary Inquiry Committee into the correctness of the actions of the public authorities in the criminal proceedings concerning the kidnapping and death of Mr Krzysztof Olewnik (Komisja Śledcza do zbadania prawidłowości działań organów administracji rządowej w sprawie postepowań karnych związanych z uprowadzeniem i zabójstwem Krzysztofa Olewnika). The Committee held 136 sessions at which it interviewed 109 individuals, some of them several times.

73. At the session of 17 May 2011 the Sejm adopted an extensive final report (235 pages) which, in so far as relevant, stated:

“The Sejm outlined to the Committee the following tasks, thereby setting out its remit:

1) examination of the correctness of the actions of the prosecution service and the police in the criminal proceedings concerning the kidnapping and murder of Krzysztof Olewnik;

2) examination of the correctness of the actions of the prison service, police and prosecution service as regards the execution of the pre-trial detention and prison sentence in the criminal proceedings referred to in point 1 above;

3) examination of the correctness of the actions of the public administration bodies when dealing with the criminal proceedings referred to above under point 1 and the execution of the pre-trial detention and prison sentence in the criminal proceedings in question.”

74. Concerning the initial reaction of the police to the disappearance of Mr Olewnik, the Committee noted the following main shortcomings: the police officer leading the forensic team had been inexperienced, had not secured the perimeter of the crime scene, had collected blood samples carelessly, had not fully examined the property and had overlooked many pieces of evidence. As an example of this incompetence the Committee observed that, nine years after the events, a blood sample from an unidentified man had been found under the sofa in the victim’s living room. A further shortcoming was the fact that some of the officers who had attended the party at Mr Olewnik’s house on the night of his kidnapping were included in the investigation team.

75. The Committee examined the work of the group led by R.M., who had been appointed to deal with the case between 31 October 2001 and 18 August 2004. Its analysis, which extends to over forty pages, revealed a multitude of omissions, including basic mistakes in modern policing and the total passivity of the group led by R.M. The police had not used the available technical and operational means to trace people (for instance by searching the police databases), communications (for instance monitoring mobile and land lines) and items (such as marking and tracking the banknotes handed over as ransom). Some of the shortcomings attributed to this group included:

- failure to make use of the witness who sold the SIM card to A and of the CCTV footage from the Auchan store until May and June 2005. Even many years later the witness was still able to identify A because he reminded her of a famous singer;

- no real examination of the phone cards and SIM cards used by the kidnappers;

- no meaningful follow-up of the anonymous letter received in January 2003;

- no support offered to the victim’s desperate family, who were left to negotiate with the kidnappers on their own;

- “improvised and uncontrolled” supervision of the handover of the ransom money on 24 July 2003; the family had made copies of the banknotes handed over as ransom, but the police did not secure this evidence, so in several instances when 500 euro notes were presented in banks or exchange kiosks, they could not be traced to the case; the numbers of the banknotes were transferred to the Banking Central Supervision Authority only on 21 December 2004 when the case was taken over by a different police team;

- failure to investigate and prosecute those responsible for the loss of the entire case file when the car in which it was placed was stolen on 7 June 2004;

- two documented cases of the destruction of important pieces of evidence.

76. The Committee also commented that the group led by Mr R.M. had not been supervised in any meaningful way by Mr M.K., the Deputy Head of the Radom Regional Police, even though this was required by law. Other levels of supervision within the police were also “indifferent” and tainted by personal friendships and business links.

77. The work of the police should be supervised by a prosecutor, who must direct the investigation. In the instant case, the first few years, in particular, were characterised by the passivity of the various prosecutors. Prosecutor L.W., who supervised the investigation while it was handled by the group led by Mr R.M., was particularly at fault. The Committee concluded that the prosecutor “did not have a thorough knowledge of the information collected in the course of the investigation”, “was unaware that the group also included police officers who had attended the party at the victim’s house”, “did not check that his instructions were being carried out”, and “failed to monitor the handover of the ransom”. He never visited the victim’s house, was unaware of the existence of the recording from Auchan, etc. In general terms, he was inexperienced in cases of this type, and remained passive.

78. The Committee also examined the level of supervision within the prosecution service and considered it weak. The case had overwhelmed even the superior prosecutors, who wanted it to be removed from their sphere of responsibility.

79. The prosecutors who took over the case from L.W. committed further errors. These included the failure to take any action following the anonymous letter of 14 January 2003, the lack of supervision of actions relating to the handover of the ransom, the six-month delay before private operators were asked for numbers of telephone cards used in communications by the kidnappers, etc.

80. The Committee further examined the actions carried out by the second police group led by G.K., which was appointed on 18 August 2004 to investigate the case and which dealt with it until 14 May 2006. It appears that this group was influenced by the theory that Mr Olewnik had feigned his own kidnapping in order to extort money from his father. In general terms the Committee noted that the investigation had clearly accelerated and the new prosecutors who took over the case were diligent. At this stage the prosecutor was examining two theories: one in which Mr Olewnik had been kidnapped by an organised criminal group or by a group linked to the police, and a second which posited the “self-kidnapping” of Mr Olewnik.

81. As regards the subsequent prosecutors and supervising prosecutors, the Committee observed that they had taken many actions aimed at correcting the errors committed earlier. However, as one of them testified before the Committee: “in this case the majority of the errors were committed in the initial stages, which in a criminal case of this nature had a decisive impact on the outcome of the case. We will never know what would have happened if all the initial actions had been carried out correctly, starting with the examination of the place [of kidnapping] and the securing of the evidence.”

82. The Committee also examined how the case had been supervised by the Minister of Justice, the Prosecutor General and the Minister of Internal Affairs, who remain the official supervisors of the police. It noted that the family of the victim had met many ministers and politicians in order to attract their attention to the case. The Committee noted that the system of hierarchical supervision was tainted by “misguided corporate solidarity”. On one occasion, high-ranking prosecutors examining the case on behalf of the Minister of Justice criticised the ongoing investigation as “dramatic and embarrassing”, and yet no disciplinary or penal consequences followed. As regards the control of the Minister of Internal Affairs over the police force, the Committee noted that the first of the ministers concerned had been unaware of the extent of his authority in this respect. Subsequent ones had likewise failed to make use of the legal instruments of control over police which they had at their disposal.

83. The Committee concluded its report by stating that between 2001 and 2004 the actions of the police and the prosecutors had to be “assessed negatively”. The report stated:

“We find that the police officers who led the investigation and the supervising prosecutors bear legal and moral responsibility for the errors [in the investigation] which were clearly committed during this period”.

In the Committee’s opinion, there were no decisive actions on the part of the investigative authorities in the period immediately after the kidnapping of Krzysztof Olewnik. Visible sluggishness, errors, recklessness, and a lack of professionalism on the part of the investigators resulted in the failure to discover the perpetrators of the kidnapping, and consequently to the unjustifiable and unimaginable suffering to which [the victim] was subjected, and ultimately, in his death.

The high number and the nature of the omissions and errors made by some police officers and prosecutors investigating the case led the Committee to explore a hypothesis positing that there had been intentional and purposeful actions by public officials aimed at covering over their tracks, destroying evidence, creating false operational versions and, consequently, that some of them had cooperated with the criminal gang which kidnapped and murdered Krzysztof Olewnik. However, this hypothesis can only be verified in criminal proceedings carried out by the Gdansk Appellate Prosecutor.

... taking the so-called Olewnik case as an example of the actions of the central administration could undermine people’s trust in the State.

The Committee is persuaded that the behaviour of the central administration could have breached people’s constitutional rights.

Moreover it pointed to a lack of skill on the part of those responsible for the security of individuals, revealed shortcomings in procedures concerning the monitoring of law enforcement in Poland, and engendering a sense of helplessness and weakness as regards the State authorities in their attitude to the perpetrators of crime, as well as a sense of injustice.”

In its conclusions the Committee also suggested that the question of the criminal liability of some public servants should be examined; however in most cases the offences would be time-barred.

84. The Commission finally welcomed changes in law and practice following scrutiny of the Krzysztof Olewnik case. In particular it welcomed the creation of a Council for the Victims of Crime, under the auspices of the Minister of Justice, and of the Charter of Rights of the Victim. Moreover, the Prosecutor General decided that all cases concerning kidnappings would automatically be transferred to the investigative branches of the regional prosecution services and examined from the outset with the help of a forensic specialist. A joint team for handling cases of kidnapping involving a ransom was created, grouping together representatives of the Minister of Internal Affairs, the Head of the Police and the Head of the Internal Security Agency. The Commission also proposed a general reform of the system, with the aim of assisting and protecting witnesses in criminal proceedings.

85. Finally, the Commission made a series of proposals for systemic reforms regarding the police force and prosecution service. Improvement was needed as regards the manner in which the work of prosecutors was internally supervised. It reiterated the need for the prosecutors to specialise to a certain degree and recommended that the divisions dealing with organised crime under Appellate Prosecutors should have more independence and be attached directly to the Prosecutor General. It considered that in cases involving the disappearance and abduction of individuals, the police and prosecution service should have a common action plan, a formalised guideline detailing recommended actions to be taken, which would be distributed to all entities in the country. One of the elements of the plan would ensure that when certain criteria were met, the case would immediately be transferred to a specialist prosecutor. The Commission recommended that there should be clear rules regulating when a prosecutor may be removed from a case. The Commission also noted that the prosecutor did not have at his disposal, either then or now, any legal instrument that would allow him to compel the police, or other service, to carry out a particular investigative (operational) action or to examine its results.

The recommendations for the police included training courses, increased supervision, and a restructuring of the internal organisation of the police force and its support services such as forensic laboratories.

86. The Commission also presented conclusions regarding the recommended reform of the functioning of the prison service so as to offer an effective form of protection to prisoners and to prevent suicides. Finally, the Commission examined the confidentiality laws, finding that far too often the pretext of classification as a “State secret” had been invoked to “protect corrupt and incompetent civil servants”.

(d) Civil proceedings instituted by the applicants

87. It appears that the applicants have sought compensation from the State Treasury for breach of their personal rights in connection with the prosecution service’s handling of the case.

B. Relevant domestic law and practice

88. The relevant provisions of the Criminal Code provide as follows:

Article 160 (exposure to danger)

“1. Anyone who exposes a human being to an immediate danger of loss of life, serious bodily injury, or a serious impairment of health shall be subject to the penalty of deprivation of liberty for up to 3 years.

2. If the perpetrator has a duty to take care of the person exposed to danger, he shall be subject to the penalty of deprivation of liberty for a term of between 3 months and 5 years.”

Article 231 (abuse of power)

“1. A public official who, overstepping his powers or not fulfilling his duties, acts to the detriment of public or private interests shall be liable to a prison term of up to three years.

3. If the perpetrator of the act specified in § 1 acts unintentionally and causes serious damage, he shall be liable to a fine, or the penalty of restriction of liberty, or deprivation of liberty for up to 2 years.”

Article 101 (statute of limitations)

“Punishment for an offence shall be subject to limitation if, from the time of commission of the offence, the [following] period has expired:

1) 30 years – if an act constitutes the serious offence (zbrodnia) of homicide;

2) 20 years – if an act constitutes another serious offence;

2a) 15 years – if an act constitutes an offence rendering the offender liable to a prison term exceeding 5 years;

3) 10 years – if an act constitutes an offence rendering the offender liable to a prison term exceeding 3 years;

4) 5 years – in respect of other offences ...”

89. Pursuant to Article 102, if an investigation against a person has been opened during the limitation periods referred to in the above provision, punishment for the offences specified in § 1 (1-3) shall be subject to limitation after the expiry of 10 years and for other offences after the expiry of 5 years from the end of the relevant periods.

COMPLAINTS

1. The applicants complain under Article 2 of the Convention that the authorities failed to carry out an effective investigation into the kidnapping and murder of Mr Krzysztof Olewnik. The actions of the police were blatantly ineffective and the prosecutors were disinterested and passive. A great number of omissions and errors were committed, as established recently by the prosecutors and the Parliamentary Committee. The circumstances of the kidnapping and death of Mr Krzysztof Olewnik had consequently not been fully examined to date and the investigation is still pending.

2. The applicants complain under Articles 2 and 3 of the Convention that the authorities had been aware that Mr Olewnik had been captured by the kidnappers with the intention of seriously ill-treating and killing him, but they failed to take any action to prevent his ill-treatment and murder.

3. They also complain that an investigation into the shortcomings of the police and prosecutors was not instituted until 2007, and the widely undisputed charges against two police officers and certain prosecutors had become time-barred.

QUESTIONS TO THE PARTIES

I. As regards the alleged substantive breach of Articles 2 and 3

Regarding the allegations that the authorities were aware for a considerable period of time of the kidnapping of Mr Krzysztof Olewnik, of his detention, and of the high probability of his being ill-treated and killed by the perpetrators:

1. Has there been a violation of Article 2 of the Convention in the present case? In particular, did the authorities comply with their positive obligation to take all necessary steps to protect his rights, as required by Article 2 of the Convention?

2. Has there been a breach of Article 3 of the Convention in the present case? In particular, did the authorities comply with their positive obligation to take the necessary measures to protect Mr Krzysztof Olewnik from ill-treatment, as required by Article 3 of the Convention?

3. In connection with questions 2 and 3, what precise mechanisms, safeguards and procedures were in place to protect the life of victims of kidnappings?

II. As regards the alleged failure to carry out an adequate investigation

4. Having regard to the procedural protection of the right to life (see paragraph 104 of Salman v. Turkey [GC], no. 21986/93, ECHR 2000-VII), was the investigation by the domestic authorities in the present case in breach of Article 2 of the Convention?

5. Having regard to the procedural protection from torture and inhuman or degrading treatment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?

6. In this regard, has there been a violation of Articles 2 and 3 taken alone and/or in conjunction with Article 13 of the Convention?

Reference is made to the statutory limitation period of 5 or 10 years (Articles 101-102 of the Criminal Code) applicable to the offence of abuse of power defined in Article 231 § 1 of the Criminal Code and to the criticism of the system of prosecution made by the Parliamentary Committee and the prosecutors in the case ApV Ds 12/09.

7. Have the applicants had at their disposal an “effective remedy” within the meaning of Article 13 for their complaints under Articles 2 and 3 of the Convention?

III. As regards the facts

8. The Government are invited to submit the following information and copies of documents:

a) what new developments are there in the pending investigation into the kidnapping and murder of Mr Olewnik (Ap V Ds 11/09)?

b) were the decisions of the Gdansk Appellate Prosecutors in the investigation into abuse of power appealed against (Ap V Ds 12/09)? Please submit decisions of the district courts given following those appeals?

c) what is the status of the criminal proceedings against two forensic experts (see paragraph 61)?

d) what is the course of other investigations into allegations of corruption apparently pending (Ap V Ds 38/10)?

e) the decisions discontinuing investigations into suicides of A, B and C (given by the prosecutors and courts);

f) the expert opinions on both post mortem examinations of Mr Krzysztof Olewnik.

[1]. The persons implicated in the kidnapping and murder of Mr Olewnik are denoted by letters of alphabet in the order established in the bill of indictment.

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