Information Note on the Court’s case-law 232
Olewnik-Cieplińska and Olewnik v. Poland – 20147/15
Judgment 5.9.2019 [Section I]
Inadequate response of domestic authorities in a case of kidnapping and prolonged abduction: violation
Circumstances of kidnapping and death unclear seventeen years after events: violation
Facts – A man – who was the brother of the first applicant and son of the second applicant – was kidnapped in October 2001 and held for ransom. He was kept captive for almost two years and was subsequently murdered following the handover of a ransom by the first applicant in 2003. The circumstances of his kidnapping and murder were discovered in November 2005, following the naming of the kidnappers by a witness, and the site of his death and the burial spot of his body were discovered in October 2006. In March 2008, ten individuals were convicted of participation in a criminal gang set up with the intention of kidnapping the victim. Two of them were convicted of murder and sentenced to life imprisonment. Those convictions were based mostly on confessions. An investigation into the participation of other unidentified individuals was ongoing.
Law – Article 2
(a) Substantive aspect – In cases of kidnapping for ransom, it had to be assumed that the life and health of the victim were at risk. Letters received from the kidnappers by the family and the police had clearly indicated that the life of the applicants’ relative had been in danger. The immediacy of the risk to his life had to be understood as referring mainly to the gravity of the situation and the particular vulnerability of a victim of kidnapping. It had not diminished with time. To the contrary, the fact that the situation had endured for years had increased the torment of the victim and the risk to his health and life. The real risk to his life had thus remained imminent throughout the entire period of his imprisonment. In those circumstances, the authorities knew or ought to have known of the existence of a real and immediate risk to the victim’s health and life from the moment of his disappearance. In such situations the State’s positive obligations under Article 2 required the domestic authorities to do all that could reasonably have been expected of them in order to find the victim as swiftly as possible and identify the perpetrators of the kidnapping.
There had been a number of serious errors on the part of the police that had directly led to a failure in the investigation of the kidnapping. Those included a failure to correctly gather all forensic evidence at the house of the victim directly after his kidnapping; a failure to take evidence from witnesses and to investigate an anonymous letter, naming individuals involved in the kidnapping; delays in analysing calls made by the kidnappers and a failure to supervise the handover of the ransom which had been picked up by the kidnappers themselves. Moreover, the serial numbers of the banknotes, although passed onto the police by the family, had only been registered with the banking central supervision authority seventeen months later.
The domestic authorities had failed to respond with the level of commitment required in a case of kidnapping and prolonged abduction. While the Court could not speculate what the outcome of the case might have been had the authorities been more diligent, there had clearly been a link between the long list of omissions and errors perpetuated over the years and the failure to advance the investigation while the applicants’ relative had still been alive.
Conclusion: violation (unanimously).
(b) Procedural aspect – In addition to the proceedings against the members of the gang who had kidnapped and murdered the victim, the Sejm (the lower house of the Polish Parliament) had set up a parliamentary inquiry committee to examine, inter alia, the actions of the police and the prosecution service. The sheer scale of errors identified had resulted in the committee exploring the hypothesis that there had been intentional and purposeful actions by public officials aimed at covering their tracks, destroying evidence, creating false operational versions and, consequently, that some of them had cooperated with the criminal gang. The Court acknowledged the efforts of the prosecutors in investigating the criminal liability of certain police officers and prosecutors. Proceedings concerning criminal charges against two police officers had ended when the offences alleged had become time-barred. Other investigations had not led to the individual liability of the police officers or prosecutors being established. Nevertheless, the decisions to discontinue investigations had offered a valuable insight into the authorities’ actions. The prosecutors had concluded that the State had “failed to create a proper legal and financial structure for the prosecution service” in order to deal effectively with offences such as kidnapping.
Despite the positive developments aimed at investigating the death of the applicants’ relative, the proceedings into his murder were still pending. In the course of recent proceedings his body had been exhumed and a new post-mortem examination carried out. The involvement of other individuals had been investigated. Seventeen years after the kidnapping, the circumstances of the events had not been fully clarified.
Conclusion: violation (unanimously).
Article 41: EUR 100,000 jointly in respect of non-pecuniary damage; claim for pecuniary damage dismissed.
(See also Osman v. the United Kingdom [GC], 23452/94, 28 October 1998; and compare Van Colle v. the United Kingdom, 7678/09, 13 November 2012, Information Note 157)