Abduction and multi-year detention of a sitizen until his murder. Violation of the right to life due to the failure to conduct effective investigations into the abduction and arrest of abductors and the investigation of the circumstances of the murder.

JUDGMENT

Olewnik-Cieplinska and Olewnik v. Poland 05.09.2019 (no. 20147/15)

see here 

SUMMARY

Abduction, detention by the kidnappers for a long time and the killing of the abductee despite the payment of ransom by his relatives.

The case concerns the abduction of the applicants’ brother and son. The victim was abducted in 2001, when he was 25 years old. He was held until 2003 when he was murdered, even though his relatives paid the ransom. His body was found in 2006 when one of the kidnappers confessed. Ineffective investigations, errors and irresponsibility of the authorities resulted in the murder of the victim.

The Court notes that according to the Convention, the domestic authorities had to do whatever their relatives could reasonably expect, in order to identify the abductee as quickly as possible and to identify the abductors. The investigation was inadequate and incomplete in the collection of evidence and the authorities failed to meet the difficult requirements of the case. Also, after the kidnappers were arrested in 2006 after the confession of one of them, they failed to elucidate the circumstances of his murder for 17 whole years after the abduction. The Court finds that there has been a violation of Article 2 (right to life) as regards the authorities’ failure to protect the victim. It also considers that the authorities have failed to carry out an effective investigation into the circumstances of the killing as a result of which they must therefore further infringe the procedural limb of Article 2.

PROVISION 

Article 2 (right to life)

PRINCIPAL FACTS 

The applicants, Danuta Olewnik-Cieplińska and Włodzimierz Olewnik, are Polish nationals who were
born in 1974 and 1949, respectively, and live in Drobin (Poland).

Their relative, Krzysztof Olewnik, was kidnapped in 2001 when he was 25 years old. He was detained
and ill-treated until 2003 when he was murdered, despite his family handing over the ransom
demanded by the kidnappers via telephone messages and letters containing threats to his life.

His body was eventually recovered in 2006 when one of the kidnappers, named by a witness in 2005,
confessed and indicated the burial place.

Ten gang members were ultimately convicted by final judgment in 2010. Their convictions were
mainly based on confessions. At their trial they described keeping the victim chained to a wall by his
neck and leg. He was also drugged, beaten and poorly fed.

The alleged gang leader and the two other main kidnappers died in detention before or just after
their trial. Although their deaths were classed as suicides, after being investigated, they nevertheless ed to the resignation of the Minister of Justice and a wave of dismissals in the prosecution and prison services.

In addition to the proceedings against the gang members, there were several other attempts
between 2009 and 2013 to clarify the kidnapping and murder.

In particular, the Gdańsk prosecuting authorities brought criminal proceedings against most of those
involved in the case, namely the police for abuse of power, the prosecutors for negligence and highranking civil servants for inaction. Two of the officers were acquitted because the offences had
become time-barred while the other investigations were discontinued.

In 2009 the Sejm (the lower house of the Parliament) also set up a Parliamentary Inquiry Committee,
which examined not only the actions of the police and the prosecution service, but also of the public
administration bodies and the Prison Service. Its final report in 2011 concluded that “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… ultimately, in (Mr
Olewnik’s) death.” It also explored the possibility that the errors by public officials “had been
intentional and … aimed at covering their tracks, destroying evidence … and, consequently, that
some of them had cooperated with the criminal gang which kidnapped and murdered Krzysztof
Olewnik”.

An investigation into kidnapping and murder against other unidentified individuals is still ongoing.

THE DECISION OF THE COURT 

Article 2 (right to life)

The Court found that the Polish authorities had known or should have known that there had been a
real and immediate risk to Mr Olewnik’s life from the moment he had disappeared. From the
beginning his sudden disappearance had been investigated as a kidnapping, and, according to
statistics provided by the Government, kidnappings at the relevant time in Poland mostly involved
particular torment, damage to health, even death. Negotiations with Mr Olewnik’s kidnappers had
lasted four years, during which time letters clearly threatening his life and health had been sent to his family. All the letters had been passed on to the police. The gravity of the situation and the vulnerability of the victim had not diminished with time, on the contrary it had only increased.

In such circumstances the domestic authorities were required under the European Convention to do
all that could reasonably be expected of them to find Mr Olewnik as swiftly as possible and to
identify the kidnappers.

The Court had extensive evidence before it regarding the action taken by the police and prosecutors.
It paid particular attention to the Parliamentary Inquiry Committee’s report and its conclusions
giving clear examples of the police’s lack of engagement and incompetency in the first years of the
investigation into the kidnapping.

Agreeing with the assessment in that report, the Court listed some of the most serious errors on the
part of the police in dealing with Mr Olewnik’s kidnapping. Among other things, they had failed: to
correctly gather all the forensic evidence at the victim’s house directly after the kidnapping; to take
evidence for over three years from a supermarket cashier who had sold a mobile telephone to the
gang leader in 2001; to investigate an anonymous letter dated 2003 naming the individuals involved
in the kidnapping; to rapidly analyse and trace calls, even though the kidnappers had been using a
known telephone SIM card; and to supervise the handover of the ransom. Those errors, among
others, clearly indicated that the domestic authorities had failed to respond with the level of
commitment required in a case of kidnapping and prolonged abduction.

The Court concluded that the domestic authorities had to be considered responsible for that series
of failures. There had therefore been a violation of Article 2 as concerned the State’s failure to
comply with its duty to protect the life of the applicants’ relative.

Article 2 (investigation)

The Court noted that there had been a turning point in the investigation in 2005 and the main
kidnappers had been arrested in 2006, indicted in 2007 and had then swiftly been convicted, mostly
on the basis of their confessions.

Furthermore, the parliamentary inquiry and the Gdańsk prosecutors’ efforts in the years 2009 to
2013 had contributed to positive developments in the investigation.

Nevertheless, the Court noted that some 17 years after the kidnapping the proceedings into
Mr Olewnik’s murder were still pending and the circumstances of the events had not been fully
clarified, leaving the applicants in a state of uncertainty. The Government had been asked to provide
information on those ongoing proceedings, but had failed to do so on the grounds of confidentiality.
The Court concluded that the authorities had failed to carry out an adequate and effective
investigation into the death of Mr Olewnik, in further violation of Article 2.

Article 41 (just satisfaction)

The Court held that Poland was to pay the applicants, jointly, 100,000 euros (EUR) in respect of
non-pecuniary damage.echrcaselaw.com).


ECHRCaseLaw

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