CASE OF OLSZEWSCY v. POLAND
No violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)
George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney
5. The first applicant was born in 1957 and the second applicant in 1963. They live in Jedwabne. 6. The applicants’ son M.O. was a student in Białystok. At the relevant time he was 22 years old. On 13 February 2010 he and some of his friends were celebrating the end of examinations in one of the clubs in Białystok. M.O. left the club at around 3 a.m. on 14 February 2010 with his friend J.O. They were walking together to the university campus. M.O. wanted to take a shortcut and go through the border guards area. J.O. did not agree and she took the normal road and continued alone. The applicants’ son took the shortcut and while crossing the border guards area, he was apprehended by the border patrol, who called the police. Soon afterwards two police officers Z.W. and T.B. arrived and at 3.45 a.m. took the applicants’ son to the police station in Białystok. 7. According to the police officers, M.O. was under the influence of alcohol. However, his state did not qualify him to be taken to the soberingup centre. They did not make him undergo a breath test. They were not sure with what offence he could be charged, if any, and therefore they ordered him to appear at the police station at 2 p.m. and let him go. It was about 4.30 a.m. and the temperature outside was below zero centigrade. 8. At 5.30 a.m. the applicants’ son telephoned his sister E.O. He requested her to come with her car and collect him from a bus station in Łomża. When she got there she telephoned her brother who then asked her to come to Białystok, some 80 km away. According to E.O.’s statement her brother sounded frightened on the phone. While she was driving to Bialystok M.O. called again and told her to go back home because he would manage to come back by himself. 9. On 14 February 2010 at 9.58 a.m. the second applicant called her son. She asked him whether he was on the campus and he apparently confirmed. She asked him some more questions but he did not reply although the telephone call was still ongoing. According to the second applicant she was not sure whether she was speaking to her son or someone else. 10. The applicants then went to the campus to check whether their son was indeed there but he was not. They contacted all hospitals in Białystok, the sobering-up centre and all police stations, including the Białystok police station No. 3 where their son was interrogated the night before. They were informed however that their son had been neither arrested nor had his identity been checked. 11. In one of the hospitals they were informed that the previous night two unidentified men had been brought there. One of them was then taken by the police to the police station No. 3. The applicants went to the police station again where they were told that no men of unknown identity had been there the previous night. 12. The applicants then officially reported their son as missing and started to look for him on their own. 13. Only on 19 February 2010 they were informed by the police station No. 3 that their son had been brought there on the night of 14 February 2010 and released because there were no grounds to keep him there. 14. According to the minutes taken by the police officers on the night of 14 February 2010, the applicants’ son was drunk; he mumbled and was unsteady on his legs. The officers had problems communicating with him. 15. The applicants’ son never returned to the campus. He was found dead on 6 March 2010 in a meadow, some 300 metres from the exit road towards Warsaw. His body was frozen. 16. The body was on its back with the legs crossed. In the photographs taken on location, hospital shoe covers can be seen in the victim’s jacket pockets. These objects were later not found or examined. 17. A.W., who found the body on 6 March 2010, informed the police immediately. Two police officers, Z.W. and T.B., the same who had interviewed the applicants’ son on the night of 14 February, were sent to the scene. 18. On 8 March 2010 the body was shown to the applicants who recognised it as the body of their son. The first applicant noted that in the pockets of his sons’ clothes there was no mobile phone. 19. On 9 March 2010 an investigation into the circumstances of the applicants’ son’s death was opened by the Białystok District Prosecutor. 20. On the same day a post-mortem examination of the applicants’ son’s body was carried out. Dr M.R., who participated in the post-mortem examination, found that there were chafes on the applicants’ son’s palms, face and abdomen. The back side of his legs was covered with bright green algae. The doctor found that the reason for M.O.’s death was hypothermia. She also found that he had been under the influence of alcohol at the moment of his death. The blood alcohol level was 0.9 per mille. 21. According to the applicants the expert opinion prepared by Dr M.R. raised many doubts and was partly contradictory. M.R. described their son’s vermiform appendix although he had his appendix removed as a child. No samples of the algae which covered M.O.’s legs were collected for examination. The expert pointed out some characteristics of M.O.’s inner organs which could indicate that M.O. died suddenly, which was in contradiction to her conclusion that he died of hypothermia. Also the position in which the body was found contradicted the conclusion that the applicants’ son died of hypothermia. He was found lying on his back with his legs crossed whereas, according to the expert opinion, a person who falls down from exhaustion should lie face down. Furthermore, the expert did not determine the date of M.O.’s death. According to her later depositions, she had not received any such order from the prosecutor. 22. The expert took liver samples, but as it turned out later it was impossible to examine them because they had been improperly secured. 23. In the course of the post-mortem examination fingernail scrapings were secured for further examination. However, the samples were never examined. 24. As emerges from the minutes of the post-mortem examination, when M.O.’s body was being undressed before the examination, a mobile phone fell out of his pocket. As noted above, the applicants checked their son’s clothes before the post-mortem examination and the mobile phone was not there. 25. On 29 April 2010 the applicants’ lawyer requested the prosecutor to examine the blood samples from M.O.’s body and clothes taken when his body was found. 26. On 30 May 2010 the prosecutor granted the request and ordered that the samples be examined by the Białystok Medical University. However, the decision on the merits was given by the prosecutor without the results of the relevant examination. 27. On 25 June 2010 Białystok District Prosecutor discontinued the investigation finding that the applicants’ son died of hypothermia without involvement of any third persons. The prosecutor based his decision on various evidence including the post-mortem examination, the expert opinion referred to above, as well as depositions made by several witnesses heard in the course of the investigation. 28. On 23 July 2010 the applicants’ lawyer appealed against the prosecutor’s decision. His references to the numerous shortcomings of the investigation covered nearly thirty pages. 29. On 20 January 2011 the Białystok District Court quashed the challenged decision and remitted the case to the prosecutor for reexamination. The court agreed with the applicants that the circumstances of their son’s death had not been sufficiently established. 30. First of all, the court recognised that the decision discontinuing the investigation was given without the results of the examination of the secured blood sample, which had been previously ordered by the prosecutor (see paragraph 26 above). 31. Subsequently, the court found that in the opinion following the analysis of the applicants’ son’s blood, there were some inaccuracies which needed further clarification; the toxicological examination allegedly showed presence of phenetylamine in the secured blood sample. However in another part of the opinion it was stated that the presence of this substance was not confirmed and its amount was not determined “for lack of pattern”. 32. The court also referred to the examination of samples of M.O.’s liver which was ordered on 22 April 2010 but not carried out. According to the medical expert appointed by the court, the examination could not be carried out because the Białystok Medical University did not have the relevant reagents whereas as emerges from the minutes of the interview with a medical expert from the Łódź Medical University, the examination was impossible because of the way the samples had been secured. 33. The court further pointed out that in the first phase of the investigation, an examination of biological and dactyloscopic traces on M.O.’s mobile phone and three cigarette lighters found in his clothes was ordered by the prosecutor. The criminological laboratory in Białystok stated that they were unable to carry out the examination and stressed that it should be carried out in a specialised biological laboratory in the Regional Police Station in Olsztyn or Warsaw. The prosecutor however did not request the institutions indicated for the examination. 34. The court also stressed the inaccuracies in the medical expert opinion prepared by dr M.R. It further pointed out that the prosecutor had failed to refer to the merits of the opinion and to indicate which part of it and what reasons constituted the basis for his decision. The court also ordered the prosecutor to examine further the part of the expert opinion which concerned the position in which M.O.’s body was found. 35. Finally the court referred to the applicants’ statements as regards further evidence which should be examined. The applicants requested that dactyloscopic traces be taken from the police van in which their son was transported. They also considered that traces on the ground where their son’s body had been’ lawyer’s appeal was examined 11 months after M.O.’s body was found. 36. Following the court’s decision, the case was remitted to the Białystok District Prosecutor. The prosecutor heard Z.W., a specialist from the Białystok Medical University, who had carried out a toxicological examination of M.O.’s urine and blood. She said that she only examined the samples to check whether there was amphetamine in the blood. She did not check the presence of phenetylamine. 37. The prosecutor further requested the University of Cracow to carry out an examination of the secured liver samples. The University replied however that examination of the samples was impossible given the way the samples had been secured. 38. The prosecutor also heard the medical expert M.R. who admitted that she had mistakenly described M.O.’s vermiform appendix. 39. On 29 June 2011 the Białystok District Prosecutor, having reexamined the case, again discontinued the proceedings for the same reasons as the previous time. 40. According to the relevant provisions of the Polish Code of Criminal Proceedings, no further appeal is available for the applicants if the investigation was discontinued for the second time. However, on 24 October 2011 the applicants requested the Prosecutor General to resume the investigation. Their request was transferred to the Białystok Appelate Prosecutor who, having reexamined the case-file found a number of shortcomings in the discontinued proceedings and, on 12 December 2012, ordered that the investigation be resumed. The prosecutor relied on Article 327 of the Code of Criminal Proceedings according to which discontinued investigation may be resumed de novo at any time by the prosecutor provided that it would not be conducted against a person who had been a suspect in the previously discontinued proceedings. 41. The prosecutor recalled that in the decision of 20 January 2011 the Białystok District Court had indicated to a number of shortcomings (see paragraphs 30-35 above) and ordered that further steps be undertaken in the proceedings. Having analysed the case-file the prosecutor concluded that the court’s orders had been performed in an insufficient way or had not been performed at all. The relevant part of his decision read as follows: “....it was found in the Białystok hospitals that in the time when M.O. was missing, he was not admitted to any of them. The prosecutor did not hear the employees of the first-aid station and ordered that the police do it on his behalf. In consequence the records of the hearings are superficial and still do not explain the circumstances of your [the applicants] conversation with one of the employees, Ms. P. It is important because this person was supposed to inform that on 14 February 2010 in the morning a young unidentified man had been brought to the hospital and subsequently taken by the police. If the prosecutor investigated into these events he should explore it in the most detailed way possible. The prosecutor also tried to have samples of liver examined requesting opinion of Collegium Medicum of the Jagiellonian University although at that time he already knew that the examination had not been possible because the samples had been improperly secured. The prosecutor, in spite of the court’s order, failed to have M.O.’s blood samples, secured fingerprint and biological traces examined. ... The decision discontinuing the investigation must be found premature... The case concerns death of a young man and its circumstances have not been sufficiently cleared. It is still unknown in what way and why M.O. was on a meadow in a place unknown to him, far from the police station which he had left at 4.30 a.m. on 14 February 2010. ... It was also found that the last telephone call which M.O. answered was at 9.57 a.m. and it was a conversation with G.O. [the first applicant] but the information where M.O. telephone logged in at that time is missing. This should be completed as soon as possible.” 42. The prosecutor further considered that it was crucial to find out what were the weather conditions on 14 February 2010, in particular the air temperature and the snow precipitations. He also ordered that the state of M.O.’s alcohol intoxication be examined on the basis of so called “prospective examination”; the alcohol level in his blood was established only for the moment of his death. The prosecutor ordered therefore detailed hearing of all persons with whom M.O. spent the day of 13 February 2010 as regards the amount and kind of alcohol drunk on that day, amount and kind of meals he had, whether he had been tired, etc. The prosecutor considered that all these circumstances were crucial taking into consideration the version according to which M.O.’s died of hypothermia. He also indicated a professor in Gdansk, a specialist in cases of hypothermia death and found out that the professor had been contacted by the prosecutor’s office and had agreed to prepare the opinion requested however, for unknown reasons, the prosecutor decided not to request this evidence. 43. On 11 January 2012 the Białystok District Prosecutor resumed the investigation. She requested an opinion of a forensic expert from the Gdansk University indicated by the Appelate Prosecutor on 12 December 2012. The expert Z.J. confirmed that M.O. had died because of hypothermia. He further submitted that death of hypothermia usually happens in low temperatures but also when the temperature is above zero centigrade, between 0 and 8. Air humidity and alcohol were other factors which influence the risk of death. The expert further excluded the possibility of establishing for how long M.O. had been exposed to low temperatures finding that each person reacted differently to low temperatures and that additional factors such as weather conditions and air humidity could influence the result of such examination. As regards the presence of phenetylamine in M.O.’s blood the expert submitted that given many possible sources of this substance, such as various kinds of food, excessive physical effort, etc., it was impossible to determine its origin in this particular case. As regards M.O.’s blood samples the prosecutor found that their examination was impossible because too much time had passed from the day on which they were secured. As regards the indication to hear all persons with whom M.O. celebrated his final exams on 13 February 2010 the prosecutor established that on that day at about 7 p.m. M.O. and several friends had had been drinking alcohol at the student home. At about 11 p.m. they all went to the city centre where they had a meal and subsequently went to a club where they were dancing and drinking beer. The details regarding the amount and kind of drinks and food that they had had were not established. The prosecutor further referred to the data of a meteorological station in Białystok and listed the average air temperature on particular days between 14 February and 6 March 2010 as well as average snow precipitations on these days. 44. On 31 January 2013 the Białystok District Prosecutor discontinued the investigation. She concluded that due to evidence difficulties it was impossible to reproduce the course of events after M.O. had left the police station. She further stated on the basis of the above-mentioned evidence, in particular the expert opinion, that no third persons had been involved in M.O.’s death. 45. On 12 February 2013 the applicants appealed. In particular, they submitted that in the course of the investigation it was not clarified for what reasons and where from M.O. had had hospital shoe covers in his pocket. They further submitted that M.O.’s clothes were covered in mud; its origin was likewise not cleared; M.O. had been found on the meadow covered with a thick layer of snow and therefore his clothes should normally not bear traces of mud. They again referred to the position in which the body had been found considering that a person who falls down because of exhaustion should have been found with his face down. They also pointed to the fact that in the challenged decision the prosecutor had considered that the examination of blood samples was impossible because of the lapse of time whereas previously, the prosecutor had refused to examine the blood samples and DNA test finding that these were immaterial for the present case. 46. On 8 May 2013 the Białystok Regional Court upheld the challenged decision. As regards the arguments raised in the applicants’ appeal, the court considered that they were a “chain of suppositions leading the applicants to a conclusion that third persons were involved in M.O.s’s death”. Having referred to, in particular, the forensic expert evidence who confirmed that M.O. had died of hypothermia, the court accepted the prosecutor’s findings that no involvement of third persons in M.O.’s death could be discerned. 47. On 11 March 2010 the investigation opened on 9 March 2010 was severed and the part of it which concerned the alleged failure to perform their duties by the police officers Z.W. and T.B. was transferred to the Białystok Regional Prosecutor. 48. On 31 October 2011 the Białystok Regional Prosecutor discontinued the investigation finding that no offence of abuse of power or failure to perform their duties had been committed by the police officers. The Prosecutor examined, among other things, whether the applicants’ son had been under the influence of alcohol at the time of his arrest. She found that according to the handwritten note made by the police officers M.O. “mumbled and was unsteady on his legs but he had documents on him, knew where he was and what was going on, the contact with him was logical. He assured that he would not drink more alcohol and come back straight to the university campus”. She further found that according to the depositions of witnesses, M.O. had been under the influence of alcohol but he was not drunk to such an extent which would require taking him to the sobering-up centre or which would raise suspicions that he might have problems getting home on his own. The Prosecutor further examined why the police officers who spoke with the applicants’ son on the critical night had not realised until 19 February 2010 that the missing person they were looking for and M.O. whom they had checked at night on 14 February 2010 was the same person. She found that M.O.’s personal data had been established on the basis of his personal number (PESEL) via telephone and entered into a handwritten note by one of the police officers. M.O.’s presence at the police station had not been saved in the police computer system, because at that time there was no access to the KSIP system (System of Police Information). The Prosecutor admitted that the above circumstances spoke for deficiencies in the communication within the police station in question, she found however that no prohibited behavior could be attributed to the police officers. 49. The applicants’ lawyer appealed against this decision. 50. On 1 March 2012 the Sokółka District Prosecutor upheld the challenged decision.