FOURTH SECTION
CASE OF PRZEMYK
v. POLAND
(Application no.
22426/11)
JUDGMENT
STRASBOURG
17 September 2013
This judgment will become final in the circumstances set
out in Article 44 § 2 of the Convention. It may be subject to editorial
revision.
In the case of Przemyk v. Poland,
The European Court of Human Rights (Fourth Section), sitting as
a Chamber composed of:
Ineta Ziemele, President,
David Thór Björgvinsson,
Päivi Hirvelä,
George Nicolaou,
Paul Mahoney,
Krzysztof Wojtyczek,
Faris Vehabović, judges
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 27 August 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
22426/11) 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 Mr Leopold Przemyk on 30 March 2011.
. The Polish Government (“the
Government”) were represented by their Agents, initially by Mr J. Wołąsiewicz
and subsequently Ms J. Chrzanowska. The applicant was represented by
Mr A. Zalewski and Ms J. Metelska, lawyers practising in Warsaw.
The applicant alleged that the State authorities had
not properly discharged their procedural obligations under Article 2 of the
Convention because they had failed to effectively and diligently determine the
criminal liability arising in connection with the circumstances in which his
son had been killed.
On 8 November 2011 the application was
communicated to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1940 and lives in Warsaw.
The case concerns criminal proceedings against
former police officers (Milicja Obywatelska) who faced charges in
connection with the assassination, in May 1983, of Grzegorz Przemyk. The victim’s
mother, Barbara Sadowska, was at that time a well-known opposition activist.
The applicant is the victim’s father.
Criminal proceedings were instituted in 1983 against
the police officers, charging them with beating the victim to death. In 1984
I.K. and other individuals were acquitted.
On 29 June 1990 the Warsaw Regional Court
re-opened the trial and quashed the acquittal, finding that the original
proceedings had been seriously defective, essentially because of the
authorities’ tampering with the evidence, and that the assessment of the
evidence by the court had been fundamentally flawed. The court ordered the
prosecution to carry out the investigation again.
On 29 June 1991 an indictment against I.K. and
two other individuals on charges of battery, punishable under Article 153 § 1
of the 1969 Criminal Code, was brought before the Warsaw Regional Court. On
4 November 1991 that court remitted the case back to the prosecuting
authorities, finding that there had been serious deficiencies in the
investigation.
On 25 March 1993 the prosecution lodged an
indictment against I.K. and two others, former police officers A.D. and K.O.,
with the Warsaw Regional Court, charging them with the offence punishable under
Article 153 § 1 of the 1969 Criminal Code. The applicant had the status of
auxiliary prosecutor in the proceedings (oskarzyciel posiłkowy).
The case remained dormant until 22 May 1995, when the first
hearing in the case was held.
By a judgment of 4 April 1997 the Warsaw Regional Court acquitted I.K. It convicted A.D. as charged and sentenced him to four
years’ imprisonment. It further reduced the sentence to two years as a result
of the Amnesty Act 1990. K.O. was found guilty of destroying evidence in 1990.
All the parties, including the applicant, appealed against that
judgment.
On 22 May 1998 the Warsaw Court of Appeal
quashed the judgment insofar as it concerned I.K. and remitted the case. At the
same time, it acquitted K.O. and upheld, in essence, the conviction of A.D.
The applicant lodged a cassation appeal against this judgment
with the Supreme Court in so far as it concerned K.O. Lawyers representing A.D.
also appealed against the judgment.
On 22 September 1999 the Supreme Court dismissed
both appeals.
The trial against I.K. started anew. The first
hearing was scheduled for 18 April 2000. On 19 June 2000 the Warsaw Regional Court acquitted I.K.
The applicant appealed.
The acquittal was upheld by the Warsaw Court of
Appeal on 17 January 2001. The court held that the offence with which I.K.
had been charged had become prescribed on 1 January 2000, when the ten-year
prescription period provided for by Article 9 of the Transitional Provisions of
the 1967 Criminal Code (see paragraph 32 below) had elapsed. It was of the view
that that period could not be prolonged by the further five years provided for
by Article 102 of the Criminal Code (see paragraph 30 below) because the
prescription period had started to run in 1983 when the proceedings had been
instituted for the first time. The provision of Article 9 of the
Transitional Provisions to the Criminal Code (see paragraph 32 below) had
no effect on the running of that period.
The applicant and Prosecutor General appealed against that judgment.
They submitted that the judgment had been in breach of substantive law in so
far as the court had found that criminal liability in respect of the offence
had become prescribed. The Prosecutor General argued that the crime had to be
characterised as a communist crime which was not subject to prescription at all.
On 12 September 2001 the Supreme Court quashed
the judgment of 17 January 2001 and remitted the case. The court held that
the Court of Appeal had erred in the interpretation of the provisions of the
Code concerning the prescription of criminal liability. In particular, it had
been wrong in its interpretation of Article 102 of the Criminal Code and in
holding that the prescription period had started to run in 1983. Such an interpretation
would make it impossible to pursue proceedings in respect of persons who,
acting as agents of the State, had committed crimes before 1 January 1990
but had subsequently been acquitted before that date because the authorities
had found it politically expedient to find them not guilty. This interpretation
would defeat the purpose of the provisions themselves, which were designed to
bring to justice perpetrators of such crimes by way of extending the relevant prescription
periods.
On 29 January 2002 the Warsaw Court of Appeal,
having reconsidered the case, quashed the judgment of the Warsaw Regional Court
of 19 June 2000 acquitting I.K. It was of the view that the first-instance
court had seriously erred in its assessment of the evidence and, as a result,
had failed to establish the facts of the case properly. It remitted the case. It
noted, in passing, that it shared the view of the Supreme Court as to the
prescription period applicable to the offence concerned expressed in its
judgment of 12 September 2001.
The trial started anew. The first hearing was
scheduled for 5 June 2003. Fourteen hearings were held from that date
until 19 January 2004. On the latter date the Warsaw Regional Court acquitted
I.K. The prosecutor and the applicant appealed.
By a judgment of 16 June 2004 the Warsaw Court
of Appeal allowed both appeals, quashed the acquittal and remitted the case. It
was of the view that the first-instance court had failed to take certain
evidence crucial for the proper assessment of the case. In particular, it had
failed to organise a confrontation between the accused and some of the
witnesses, police officers present at the scene of the offence, and the
principal witness, C.F., the victim’s friend who had been arrested together
with him in May 1983, in the manner prescribed by the Code of Criminal
Procedure. The applicant had been right in submitting that the facts of the
case had not been properly established.
The court further observed that the first-instance court had
failed to assess the evidence in a logical and comprehensive manner. As a
result, it had wrongly had recourse to the principle of in dubio pro reo,
which was only to be applied where there were insurmountable difficulties in
establishing the facts.
The trial started anew on 29 November 2004. It
lasted four years. Twenty-seven hearings were held. Four hearings were
adjourned for various reasons.
On 27 May 2008 the Warsaw Regional Court found
I.K. guilty as charged and sentenced him to eight years’ imprisonment. However,
it reduced the sentence to four years’ imprisonment on the basis of the Amnesty
Act 1989.
The judgment was appealed against by the
defence.
On 14 December 2008 the Warsaw Court of Appeal requested
the Supreme Court to answer a legal question (pytanie prawne) as to
whether the offence of battery, punishable under Article 157 § 1 of the
Criminal Code, had become time-barred. It observed, inter alia,
that Article 105 § 2 of the Criminal Code provided that offences of
wilfully causing serious bodily harm committed before 1 January 1990 by persons
acting as agents of the communist State were not subject to prescription. However,
it was not clear whether the offence of battery with which I.K. had been
charged and which had caused serious bodily harm was covered by this provision.
By a decision of 23 September 2009 the Supreme
Court refused to give a reply to that question, finding that it was not
necessary for the determination of the case. It remitted the case to the Court
of Appeal.
On 14 December 2009 the Court of Appeal quashed
the first-instance judgment and discontinued the proceedings, having
found that the offence had become time-barred on 1 January 2005. It held that
the offence of battery was not covered by the provisions of Article 105 § 1
of the Criminal Code. Only intentional offences expressly listed in that provision
by their statutory names were not subject to prescription.
On 2 February 2010 this judgment was challenged
by way of an appeal on points of law lodged by the Prosecutor General (Prokurator
Generalny), i.e. by the Minister of Justice at the material time. It was
submitted that a flagrant error of interpretation of substantive law had been
committed by the appellate court, in that it had accepted that an intentional
offence of battery committed by a State agent in connection with and during the
exercise of public functions prior to 1 January 1990 could become time-barred.
By a judgment of 28 July 2010 the Supreme Court
dismissed the cassation appeal. It held that the Court of Appeal’s
interpretation of the substantive law as to whether the offence of battery could
become time-barred was correct. The relevant provision listed offences
which were not subject to prescription by their names used in the Criminal
Code, not by their results. Hence, even though battery could result in serious
bodily harm, the offence of battery was not covered by this provision, while
the offence of “causing serious bodily harm” was.
The court further observed that after the proceedings against
I.K. had started to be conducted by the bodies of the democratic State after
1989, they had failed to sustain a conviction on the criminal charges during a
period of over twenty years. This failure had mainly resulted from various
steps taken immediately after the events by the communist authorities in order
to make it impossible to establish the facts and the perpetrators of the crime
and to thwart attempts to determine their criminal liability. The inability to
determine I.K.’s liability in the case had to be regarded, having regard both
to the length of the proceedings and to their final outcome, as “a failure of
the justice system” (“porażka wymiaru sprawiedliwości”). The
written grounds for this judgment were served on the applicant’s lawyer on 7 October
2010.
II. PARLIAMENT’S RESOLUTIONS CONCERNING THE CASE
On 16 May 2013 the upper house of Parliament (Senat)
adopted a resolution to commemorate the applicant’s son as a victim of martial
law rule (uchwała Sejmu Rzeczypospolitej Polskiej w sprawie uczczenia
pamięci Grzegorza Przemyka - ofiary stanu wojennego). It read, inter
alia:
“Thirty years ago, on 12 May 1983, officers of the then Militia
arrested in Warsaw Old Town a high school graduate, young poet Grzegorz
Przemyk. He was subsequently savagely beaten up by the militia officers and by
agents of the riot-control police [known at that time as ZOMO] at the nearest
police station at Jezuicka Street. On 14 May 1983 he died in a hospital.
Subsequently, at the orders of highest State and [communist] party authorities,
evidence was fabricated with a view to assigning the responsibility for his
death to medics of the emergency services, while evidence pointing to the guilt
of the militia officers was suppressed. As a result, the medics were arrested
and Grzegorz Przemyk’s family and friends suffered various forms of harassment.
The perpetrators of that murder evaded responsibility. Even
when the country had become independent, it proved impossible to adjudicate on
the case and impose sentences on them.
Parliament condemns the perpetrators and instigators of that
political murder.”
On 22 May 2013 the lower house of Parliament of
Poland (Sejm) adopted an identical resolution.
III. RELEVANT
DOMESTIC LAW
Article 44 of the Constitution reads:
“The prescription periods in respect of offences committed by,
or upon the order of, public officials and which have not been prosecuted for
political reasons, shall be extended for the period during which such reasons
existed.”
Article 101 § 1 of the Criminal Code of 1997
sets prescription periods for various offences: thirty years for homicide,
twenty years for other crimes, ten years for offences punishable by prison
sentences not exceeding three years, five years for offences punishable by prison
sentences ranging from three months to three years and three years where an
offence is punishable by restriction of liberty or a fine.
Under Article 102 of the Code, prescription
periods shall be extended by five years if a criminal investigation has been
instituted against the suspect before the expiry of the prescription period as
defined by Article 101 § 1.
Article 105 provides that the provisions of
Articles 101 and 103 shall not be applicable to the intentional offences
of homicide, inflicting serious bodily harm, causing serious damage to health
or deprivation of liberty perpetrated by a public official in connection with
performing official duties.
Article 9 of the Transitional Provisions to the
Criminal Code provides that the prescription periods in respect of intentional
offences against life, health, liberty or the administration of justice
punishable by prison sentences exceeding three years and committed by State
agents in the performance of their official functions from 1 January 1944
to 31 December 1989 started to run anew on 1 January 1990.
THE LAW
I. THE
GOVERNMENT’S REQUEST TO STRIKE OUT THE APPLICATION UNDER ARTICLE 37 OF THE
CONVENTION
. On
10 October 2012 the Government submitted a unilateral declaration similar to that in the case of Tahsin Acar v. Turkey ((preliminary
objection) [GC], no.
26307/95, ECHR 2003-VI) and informed the Court that they were ready to accept
that there had been a violation of the applicant’s procedural rights under
Article 2 of the Convention. In respect of non-pecuniary damage, the Government
proposed to award the applicant 57,078 Polish zlotys (PLN). The Government
invited the Court to strike out the application in accordance with Article 37
of the Convention.
. The
applicant did not agree with the terms of the unilateral declaration. He
emphasised the serious nature of the Convention complaints concerned in the
present case, taken together with the fact that the case related to a crime
committed by State agents during the communist regime. In his view, respect for
human rights necessitated the determination of the merits of his complaint by
way of a judgment. The applicant further argued that the amount proposed by the
Government was not commensurate with the pain, frustration and feelings of
injustice that he had been suffering for many years as a result of the
protracted domestic proceedings. He asked the Court to continue the examination
of his application.
. The
Court observes that, as it has already held on many occasions, it may be
appropriate under certain circumstances to strike out an application under Article
37 § 1 (c) of the Convention on the basis of a unilateral declaration by the respondent Government, even if the applicant
wishes the examination of the case to be continued. Whether the unilateral
declaration offers a sufficient basis for finding that respect
for human rights as defined in the Convention and its Protocols does not
require the Court to continue its examination of the case will depend on the
particular circumstances of the case (see, among many other authorities, Tahsin Acar, cited above,
§ 75, and Melnic v. Moldova, no. 6923/03, § 22, 14 November 2006).
. The
Court has identified various factors which should be taken into consideration
in this respect. They include the nature of the complaints made, whether the
issues raised are similar to issues already determined by the Court in previous
cases, the nature and scope of any measures taken by the respondent Government
in the course of the execution of judgments delivered by the Court in any such
previous cases, and the impact of these measures on the case at issue. Other
relevant factors may include whether in their unilateral declaration the
respondent Government have made any admissions in relation to the alleged
violations of the Convention and, if so, the scope of such admissions and the
manner in which the Government intend to provide redress to the applicant (Rantsev
v. Cyprus and Russia, no. 25965/04, § 195, ECHR 2010
(extracts). Depending on the particular facts of each
case, it is conceivable that further considerations may come into play in the
assessment of a unilateral declaration for the purposes of Article 37 § 1 of the Convention
(see Tahsin Acar, cited above, § 77).
. Furthermore,
the amount proposed in a unilateral declaration
may be considered a sufficient basis for striking out an application or part
thereof. The Court will have regard in this connection to the compatibility of
the amount with its own awards in similar cases, bearing in mind the principles
which it has developed for assessing the amount of non-pecuniary
compensation to be awarded in respect of ineffective and unreasonably long
proceedings concerning the determination of liability of agents of the State
for the death of persons in custody.
. Finally,
the Court reiterates that its judgments serve not only to decide those cases
brought before it but, more generally, to elucidate, safeguard and develop the
rules instituted by the Convention, thereby contributing to the observance by
the States of the engagements undertaken by them as Contracting Parties (see,
among other authorities, Ireland v. the
United Kingdom, 18 January 1978, § 154,
Series A no. 25; Guzzardi v. Italy, 6 November 1980, § 86, Series A no. 39; and Karner v. Austria, no. 40016/98, § 26,
ECHR 2003-IX). Although the primary purpose of the Convention system is
to provide individual relief, its mission is also to determine issues on
public-policy grounds in the common interest, thereby raising the general
standards of protection of human rights and extending human rights
jurisprudence throughout the community of the Convention States (see Karner, cited above,
§ 26, and Capital Bank AD v. Bulgaria, no. 49429/99, §§ 78 to 79, ECHR 2005-XII
(extracts)).
. In
considering whether it would be appropriate to strike out the present
application on the basis of the unilateral
declaration, the Court makes the following
observations. It emphasises the serious nature of the allegations made in the
present case. Excessive length of judicial proceedings and delays in
investigating alleged violations of human rights protected under Articles 2 and
3 of the Convention are an object of recurrent complaints brought before
the Court in cases against Poland. The Court cannot but note that this appears
to disclose a structural problem which calls for adequate general measures to
be taken by the authorities. No such measures are mentioned in the
unilateral declaration submitted by the respondent Government. Furthermore, the Court is
of the view that the sum proposed in the declaration in respect of the
non-pecuniary damage suffered by the applicant as a result of the alleged
violation of the Convention does not bear a reasonable relation to the amounts
awarded by the Court in similar cases against Poland in respect of
non-pecuniary damage (see, among many other authorities, Ciechońska
v. Poland, no. 19776/04, § 87, 14 June 2011; Wasilewska and Kałucka
v. Poland, nos. 28975/04 and 33406/04, § 70, 23 February 2010; Mojsiejew v. Poland, no. 11818/02, § 69, 24 March 2009l Dzieciak
v. Poland, no. 77766/01, § 122, 9 December 2008).
. Having
studied the terms of the Government’s unilateral declaration, the Court considers
that in the particular circumstances of the applicant’s case, the proposed
declaration does not provide a sufficient basis for concluding that respect for
human rights as defined in the Convention and its Protocols does not require it
to continue its examination of the case (see
Choumakov v Poland (no. 2), no. 55777/08, § 40, 1 February 2011, and Ruprecht
v. Poland, no. 39912/06,
§ 27, 21 February 2012).
This being so,
the Court rejects the Government’s request to strike this part of the
application out of its list of cases under Article 37 of the Convention
and will accordingly pursue its examination of the admissibility and merits of
the case.
II. ALLEGED VIOLATION OF ARTICLE 2 OF THE
CONVENTION
. The
applicant complained that no effective investigation had been conducted by the
Polish authorities so as to allow for the establishment of liability for his son’s
death. He relied upon Article 2 of the Convention which, in so far as relevant,
reads:
“1. Everyone’s right to life shall be
protected by law. No one shall be deprived of his life ...”
The Government confined themselves to the
submissions made in their unilateral declaration.
A. Admissibility
The Court reiterates that the provisions of the
Convention do not bind a Contracting Party in relation to any act or fact which
took place, or any situation which ceased to exist, before the date of the
entry into force of the Convention with respect to that Party. This is an
established principle in the Court’s case-law (see, among many other
authorities, Blečić v. Croatia [GC], no. 59532/00, § 70,
ECHR 2006-III) based on the general rule of international law embodied in
Article 28 of the Vienna Convention on the Law of Treaties.
However, the obligation to carry out an
effective investigation into unlawful or suspicious deaths is well-established
in the Court’s case-law relating to Article 2 of the Convention (for a
full statement of the relevant principles by the Grand Chamber, see Nachova
and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, §§
110-113, ECHR 2005-VII). While it is normally death in suspicious circumstances
that triggers the procedural obligation under Article 2, this obligation binds
the State throughout the period in which the authorities can reasonably be
expected to take measures with the aim of elucidating the circumstances of a death
and establishing responsibility for it (see Šilih v. Slovenia [GC], no. 71463/01, § 157, 9 April 2009, with
further references). The Court has consistently examined the
question of procedural obligations under Article 2 separately from the question
of compliance with the substantive obligation and, on several occasions, a
breach of a procedural obligation has been alleged in the absence of any
complaint as to the substantive aspect of this Convention provision (see Calvelli
and Ciglio v. Italy [GC], no. 32967/96, §§ 41-57, ECHR 2002-I,
and Byrzykowski
v. Poland, no. 11562/05, §§ 86 and 94-118, 27 June
2006). It is clear from the Court’s case-law that the procedural obligation to
carry out an effective investigation under Article 2 has evolved into a
separate and autonomous duty capable of binding the State even when the death
took place before the critical date (see Šilih, cited above, §§ 159-160).
Given the principle of
legal certainty, the Court’s temporal jurisdiction in this regard is
nevertheless not open-ended (ibid, § 161). Where the death occurred before
ratification, only procedural acts or omissions occurring after that date can
fall within the Court’s temporal jurisdiction (ibid, § 162). Furthermore, there
must be a genuine connection between the death and the entry into force of the
Convention in respect of that State for the procedural obligation to come into
effect. In practice, this means that a significant proportion of the procedural
steps required by this provision have been, or should have been, carried out
after ratification. The Court has also held that circumstances may emerge which
cast doubt on the effectiveness of the original investigation and an obligation
may arise for further investigations to be pursued (see Hackett v. the United Kingdom (dec.), no. 34698/04, 10 May 2005).
The Court has examined a number of cases in
which the death of an individual occurred before the date of ratification of
the Convention by the respondent State but the Court nevertheless had temporal
jurisdiction to examine the respondent State’s compliance with the procedural
obligation flowing from Article 2 of the Convention owing to its “detachable”
nature. Thus, in Šilih, the death of the applicants’ son occurred a
little more than a year before the entry into force of the Convention in
respect of Slovenia, while, with the exception of the preliminary
investigation, all the criminal and civil proceedings were initiated and
conducted after that date (see Šilih, cited above, § 165). Similarly, the fact that all the major
events of an investigation occurred after the ratification date was sufficient
to establish the Court’s temporal jurisdiction, even though the applicant’s son
had died four years and three months before the entry into force of the
Convention in respect of Ukraine (see Lyubov Efimenko v. Ukraine, no. 75726/01, § 65, 25 November
2010). In the case of Mladenović
v. Serbia (no. 1099/08, §§ 36-40,
22 May 2012), thirteen years elapsed between the death of the applicant’s son
and the ratification of the Convention by Serbia, while eight years after the
date of that ratification the criminal case was still pending before the
domestic courts. Similarly, albeit in a different factual context, namely that
of violent events during the Romanian revolution in December 1989, the
Court found in a series of cases that it had jurisdiction on account of the
fact that on the date of the ratification of the Convention by Romania -
20 June 1994 - the proceedings were still pending before the prosecutor’s
office (see Association 21 December 1989 and Others v. Romania,
nos. 33810/07 and 18817/08, § 117, 24 May 2011; Şandru and Others v. Romania, no. 22465/03, § 58, 8 December 2009; Agache and
Others v. Romania, no. 2712/02, §
71, 20 October 2009; and
Lăpuşan and Others v. Romania, nos. 29007/06, etc., § 59, 8 March 2011).
. Whilst the cases against Romania
referred to above differ from the present one and from the other cases referred
to above as the their factual context, their common feature was the fact that a
significant proportion of the steps required for ensuring compliance with the
procedural obligation under Article 2 of the Convention was carried out after
the ratification date.
Turning to the facts of the instant case, the
Court first observes that the applicant’s son died as a result of injuries
suffered at the hands of the police in May 1983. It should not be overlooked
that the Polish legislator clearly intended to make it possible to determine
criminal liability for serious crimes committed under the totalitarian regime
and that legal provisions designed specifically for the purpose of prolonging
prescription periods in respect of such crimes were adopted after the regime collapsed
in 1989 (see paragraph 32 above).
The Court further notes that the criminal
proceedings concerning the applicant’s son’s death were instituted in June
1983. In 1984 the courts found that the police officers, including I. K., had
no case to answer and acquitted them. However, the proceedings were reopened in
1990. The Warsaw Regional Court quashed the judgment given in 1984, finding
that it had been fundamentally flawed because the authorities had seriously
tampered with the evidence and reopened the proceedings. Subsequently, the
prosecuting authorities investigated the case again and ultimately brought an
indictment against I.K. and other individuals before the Warsaw Regional Court on
25 March 1993.
. The
Court observes that the period which falls under its competence ratione temporis began on 1 May 1993, when the recognition by Poland of the
right of individual petition took effect. The judicial proceedings in the
present case were, for the most part, conducted after that date. A number of
judgments were given by the courts and subsequently quashed in appellate
proceedings. Ultimately, the Supreme Court gave judgment on 28 July 2010,
twenty years after the proceedings had been reopened in 1990. The proceedings
therefore spanned a period of twenty years, out of which over seventeen years
fell after the Convention had become binding with respect to Poland.
. The
Court notes that the applicant’s procedural complaint related precisely to the alleged
ineffectiveness of the judicial proceedings conducted after the entry into
force of the Convention with a view to establishing the circumstances in which his
son had died and determining the criminal liability arising in this connection.
. Having
regard to the above, the Court finds that the alleged breach of Article 2 in
its procedural aspect falls within the Court’s temporal jurisdiction and that
it is therefore competent to examine this part of the application. It will
confine itself to determining whether the events that occurred after the entry
into force of the Convention in respect of Poland disclosed a breach of that
provision.
The Court notes that the application is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
1. The applicant’s submissions
The applicant complained that the State
authorities had not discharged their positive obligations under Article 2, as
they had failed to effectively and diligently determine the criminal liability arising
in connection with the circumstances in which his son had been killed. As a
result of the inordinate length of the judicial proceedings and the authorities’
inability to conduct the proceedings properly, the criminal liability of I.K. had
become time-barred and the perpetrators of the crime had gone essentially unpunished.
The applicant further submitted that the
domestic proceedings had not concerned an ordinary crime: they had related to a
crime committed by State agents during the communist regime for reasons of
political intimidation and repression. That crime had obviously constituted an
act contrary to the values underpinning the Convention. The State was obliged
to promptly investigate such unlawful killings because of the obvious public
interest in obtaining the conviction of the perpetrators. A failure to
investigate properly was tantamount to a denial of justice and was contrary to
the public order. The Polish Institute of National Remembrance (Instytut
Pamięci Narodowej) had for years been investigating public officials
of the communist regime on suspicion of acting to the detriment of the original
investigation conducted in 1983 and 1994. However, the applicant had not been a
party to these proceedings and had not been invited to join them.
The applicant argued that his rights in the
present case had also been affected by the courts’ inconsistent and
contradictory decisions as to whether criminal liability for the crime
committed against his son had been subject to prescription or not.
The applicant stressed that there had been a
number of periods of total inactivity during the judicial proceedings in the
case. During the examination of the case the judgments on the merits had been quashed
on five occasions. As a result of the slowness with which the case had been
examined, the criminal liability of I.K. had ultimately become prescribed and
his crime had gone unpunished.
The applicant averred that there had been
serious shortcomings in the original investigation which had subsequently
resulted in the inadequacy and inefficiency of the judicial proceedings. On
several occasions the appellate courts had allowed appeals having regard to the
errors committed by lower courts as to the admissibility and taking of the
evidence. As a result, the courts had ultimately failed to establish the facts
of the case properly.
The conduct of the judicial proceedings had testified
to the domestic authorities’ reluctance to uncover, in an objective and
conclusive manner, the whole truth about the circumstances of the applicant’s
son’s death. On the whole, the domestic authorities had failed to effectively
and diligently determine the criminal liability arising in connection with the
circumstances of the applicant’s son’s killing by agents of the totalitarian regime,
as required by Article 2 of the Convention.
2. General principles developed in the Court’s
case-law
The obligation to protect the right to life
under Article 2 of the Convention, read in conjunction with the State’s
general duty under Article 1 of the Convention to “secure to everyone
within [its] jurisdiction the rights and freedoms defined in [the] Convention”,
requires by implication that there should be some form of effective official
investigation when individuals have been killed as a result of the use of force
(see Çakıcı v. Turkey [GC], no. 23657/94, § 86, ECHR
1999-IV). The essential purpose of such an investigation is to secure the
effective implementation of the domestic laws safeguarding the right to life
and, in those cases involving State agents or bodies, to ensure their
accountability for deaths occurring under their responsibility (see, among many
other authorities, Anguelova v. Bulgaria, no. 38361/97, § 137, ECHR
2002-IV; Mojsiejew v. Poland, no. 11818/02, § 53, 24 March 2009; Wasilewska and
Kałucka v. Poland, nos. 28975/04 and 33406/04, § 59, 23 February 2010; and Dzieciak
v. Poland, no. 77766/01, § 104, 9 December 2008).
For an investigation into alleged unlawful
killing by State agents to be effective, the persons responsible for and
carrying out the investigation must be independent and impartial, in law and in
practice (see Güleç v. Turkey, 27 July 1998, §§ 81-82, Reports
of Judgments and Decisions 1998-IV; Oğur v. Turkey [GC],
no. 21594/93, §§ 91-92, ECHR 1999-III; and Ergi v. Turkey,
28 July 1998, §§ 83-84, Reports 1998-IV).
The investigation must also be effective in the
sense that it is capable of leading to a determination of whether the force
used was or was not justified in the circumstances and to the identification
and punishment of those responsible (see Oğur, cited above, § 88).
The authorities must have taken the reasonable steps available to them to
secure the evidence concerning the incident, including the gathering of eye-witness
accounts and forensic evidence. The investigation’s conclusions must be based
on thorough, objective and impartial analysis of all relevant factors and must
apply a standard comparable to the “no more than absolutely necessary” standard
required by Article 2 § 2 of the Convention. Any deficiency in the
investigation which undermines its capability of establishing the circumstances
of the case or the identity of the person(s) responsible is liable to fall foul
of the required measure of effectiveness (see Kelly and Others v. the
United Kingdom, no. 30054/96, §§ 96-97, 4 May 2001, and Anguelova,
cited above, §§ 139 and 144).
. The
Court has held on many occasions that the procedural requirements of Articles 2
(and 3) of the Convention go beyond the preliminary investigation stage when,
as in this case, the investigation leads to legal action being taken before the
national courts: the proceedings as a whole, including the trial stage, must
meet the requirements of the prohibition enshrined in Article 2. This means
that the domestic judicial authorities must on no account be prepared to let any
physical or psychological suffering inflicted go unpunished. This is essential
for maintaining the public’s confidence in, and support for, the rule of law
and for preventing any appearance of the authorities’ tolerance of or collusion
in unlawful acts (see, mutatis mutandis, Okkalı v. Turkey, no. 52067/99, § 65, ECHR 2006 XII (extracts)); Muta v. Ukraine, no. 37246/06, § 62, 31 July 2012; Mojsiejew
v. Poland, cited above, § 53,
24 March 2009; Wiktorko v. Poland, no. 14612/02, § 58,
31 March 2009).
3. Application of the principles to the circumstances
of the present case
. The
Court first notes that on 29 June 1991 an indictment against I.K. and
two other former police officers was brought before the Warsaw Regional Court.
On 4 November 1991 that court remitted the case back to the prosecuting
authorities, finding that there had been serious defects in the investigation. As
the Court’s competence ratione temporis does not extend to the period
prior to 1 May 1993, it can only have regard to these facts as part of the background
of the present case.
The Court observes that on five subsequent occasions the judgments on the merits of the case were set
aside and the case was remitted for re-examination (see paragraphs 12, 16, 17,
19 and 25 above). The appellate courts repeatedly had regard to the failure of
the lower courts to establish all the facts of the case and sufficient grounds
on which to base a decision or to errors of substantive law. The Court notes
that in its judgments of 29 January 2002 (see paragraph 17 above) and 16
June 2004 (see paragraph 19 above) the Warsaw Court of Appeal criticised the
lower court for its failure to take certain evidence crucial for the proper
determination of the facts of the case.
. The
Court considers that, since the remittal of cases for re-examination is
usually ordered as a result of errors committed by lower courts, the repetition
of such orders within one set of proceedings discloses a serious deficiency in
the operation of the judicial system (see, mutatis
mutandis, Wierciszewska
v. Poland, no. 41431/98, § 46,
25 November 2003). This finding of the Court, initially made in the
context of cases concerning allegations of excessive length of judicial
proceedings, also holds true for cases relating to obligations of the States to
conduct a prompt investigation in the context of complaints made under Article 2
of the Convention (see Byrzykowski v. Poland, no. 11562/05,
§ 111, 27 June 2006).
. The
Court further observes that after 1 May 1993 the proceedings lasted for seventeen
years. It notes that there were significant periods of inactivity on the part
of the courts: the first one between 29 March 1993 and 22 May 1995 and the
subsequent one between 22 May 1998, when the judgment of the Warsaw Regional
Court of 4 April 1997 was quashed and the case remitted, and 22 September 1999
when the Supreme Court dismissed the appeals against that judgment. Subsequently,
there was another period of inactivity between the latter date and 18 April
2000, when the first hearing was held before the Warsaw Regional Court. Likewise,
there was no progress in the proceedings between 29 January 2002, when the
Warsaw Court of Appeal again remitted the case, and 5 June 2003, when the first
hearing was held before the Warsaw Regional Court.
. The
Court observes that the criminal proceedings were ultimately discontinued on 28
July 2010, as the domestic court found that the criminal liability of the
accused had become prescribed. The Court notes that the issue of prescription
was also examined in the judgments given on 17 January 2001, 12 September
2001 and 14 December 2010. Moreover, in his appeal against the judgment of 17
January 2001 the Prosecutor General argued that the court had wrongly applied
provisions concerning criminal liability arising in connection with crimes
committed by agents of the communist regime prior to 1 January 1990. Hence, serious
differences arose in the interpretation of the applicable legal provisions and
their application to the circumstances of the present case. It is true that the
Court’s power to review compliance with domestic law is limited (see, mutatis mutandis, Fredin v. Sweden (no. 1), 18
February 1991, § 50, Series A no. 192, and Stankiewicz v. Poland, no. 46917/99, § 65, ECHR 2006-VII). The Court has already
noted the intention of the domestic legislator to come to terms with the
country’s totalitarian past (see paragraph 52 above). However, as regards I.K.’s
case, as a result of the excessive length of the judicial proceedings,
partially caused by the diverging opinions of various courts on the issue of
prescription, the offence became prescribed.
. In
addition, in the present case the proceedings concerned were conducted against
three police officers. K.O. was acquitted of charges of destroying evidence in
1990. A.D. was convicted of battery and sentenced to four years, but this
sentence was reduced, in accordance with the Amnesty Act 1989, to two years’
imprisonment.
. Last
but not least, the Court cannot overlook, in the assessment of the
circumstances of the case, the fact that the Supreme Court in its final
judgment given in the case observed that the way in which the present case had
been dealt with by the domestic courts amounted to a failure of the criminal
justice system. The Court fully shares this opinion.
. Consequently,
the Court finds that, far from being rigorous, the criminal justice system as applied
in this case was not sufficiently dissuasive to either contributing to coming
to terms with the legacy of the totalitarian past or to effectively prevent
illegal acts of the type complained of by the applicant. In the particular
circumstances of the case, the Court thus arrives at the conclusion that the
conduct of the criminal proceedings did not afford the applicant appropriate
redress for the infringement of the principle enshrined in Article 2 of the
Convention.
. There
has accordingly been a violation of this provision in its procedural limb.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the
Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Damage
The applicant claimed 50,000 euros (EUR) in
respect of the non-pecuniary damage he had suffered as a result of the frustration,
distress and anguish caused by the unduly protracted and ineffective
proceedings and the authorities’ unwillingness to mete out appropriate
punishment to the persons guilty of his son’s killing.
The Government did not comment.
The Court, having regard to the circumstances of
the case, awards the applicant EUR 20,000 in respect of non-pecuniary
damage.
B. Costs and expenses
The applicant, who was
represented by lawyers, did not claim reimbursement of any costs and expenses.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT
1. Rejects, by a majority, the Government’s request to strike the application out of its
list of cases under Article 37 of the Convention;
2. Declares, unanimously, the application
admissible;
3. Holds, unanimously, that there has been a
violation of Article 2 of the Convention under its procedural limb;
4. Holds, unanimously,
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 20,000 (twenty thousand
euros), plus any tax that may be chargeable, in respect of non-pecuniary
damage; to be converted into Polish zlotys at the rate applicable at the date
of settlement;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amount at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
5. Dismisses, unanimously, the remainder of
the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 17 September
2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş
Aracı Ineta
Ziemele
Deputy Registrar President
