Communicated on 18 September 2020 Published on 5 October 2020

FIRST SECTION

Application no. 47834/19 Przemysław LALIK against Poland lodged on 28 August 2019

STATEMENT OF FACTS

The applicant, Mr Przemysław Lalik , is a Polish national, who was born in 1995 and lives in Zamo ść . He is represented before the Court by Mr A. Adamczuk , a lawyer practising in Zamość .

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

On 26 January 2016 T.B. and M.D. were consuming alcohol close to T.B. ’ s flat. In the evening M.D. decided to walk T.B. home as T.B. had already been heavily intoxicated. On their way home the two encountered the applicant, who also appeared to be unde r the influence of alcohol. The applicant offered to buy them beer, which the three drank together. T he applicant had then bought three more beers and at approximately 8. 20 p.m. M.D. left for home, leaving T.B. alone with the applicant.

Following M.D. ’ s departure, the applicant and T.B. entered the building in which the applicant ’ s flat was located and went to the basement. Having finished his beer T.B. collapsed to the floor and lost consciousness . The applicant tried to lift him up but was unable to do so. He had then allegedly gone through T.B. ’ s pocket in an unsuccessful search for money (T.B. owed 500 Polish zloty (PLN) to the applicant). He then set fire to T.B. ’ s winter jacket, exited the basement and went home. He later claimed that he had heard T.B. moaning and thought that T.B. had extinguished the flame and might have started looking for the applicant.

The smoke coming out of the basement alerted the block ’ s inhabitants, who called the fire station but managed to put out the fire before their arrival. Paramedics were also called to the scene and they determined that T.B. had died.

T.B. sustained severe burns to sixty per cent of his body and upper respiratory ducts. The autopsy revealed that he had 3.79 per mille alcohol in his blood.

At 11.20 p.m. the applicant was arrested by three police officers who took him to the police station. A breathalyser test performed at 11.39 p.m. showed that he had approximately 1.3 per mille alcohol in his system. The applicant claims that shortly after midnight on 27 January 2016 he had been questioned by the police officers. He does not remember what he said, signed or whether he had been informed of his rights. At 10.55 a.m. on the same day he was informally questioned ( rozpytanie ) by the police officers. No protocol had been drawn up, but all officers made notes of what the applicant said. The applicant submits that he was not informed of his right to remain silent or have a lawyer present. This informal questioning lasted for almost three hours.

On 28 January 2016 at 12.31 p.m. the applicant was brought before the Zamość District Prosecutor ( Prokurator Rejonowy ). He was informed of his rights and of the fact that his lawyer had failed to ar rive on time. Having expressed no objections to the questioning without his lawyer ’ s presence, the applicant began his testimony by pleading guilty to the charge “in its entirety”. He explained that T.B. owed him money, which he tried to recover by searching his pockets. He could not explain why he had set T.B. on fire, but stated that when he was leaving the basement, the flame was ten to fifteen centimetres high and T.B. was moaning. The applicant could not explain why he had left the basement.

At 12.40 p.m. the applicant ’ s lawyer entered the room and the interview was stopped for nine minutes, during which the applicant consulted his lawyer. Following its resumption, the applicant stated that he did not wish to kill T.B. and did not know why he had set him on fire. He had also stated that he did not start the fire because of the debt T.B. owed the applicant. He then refused to testify any further.

On the next day the Zamość District Court ( Sąd Rejonowy ) detained the applicant on remand. During the hearing, the applicant retracted his testimony and stated that he had been coerced into giving it by the police officers who had arrested him. He claimed that he became afraid of the officers and continued with the same version before the prosecutor.

During the trial the applicant often changed his version of events, but eventually admitted to having set T.B. on fire. He also apologised to T.B. ’ s mother. He explained that in August 2015 he had pranked T.B. in a similar manner (i.e. by setting a piece of his clothing on fire), but T.B. had allegedly held no grudge against him.

Three police officers, who arrested the applicant, were questioned as to the contents of his informal statements of 27 January 2016. They were shown the contents of their notes and confirmed them. They explained that the applicant had admitted that he had killed T.B. because of his failure to pay the debt.

On 27 March 2017 the Zamość Regional Court ( Sąd Okręgowy ) convicted the applicant of aggravated murder ( zabójstwo ze szczególnym okrucieństwem ) and sentenced him to twenty-five years ’ imprisonment. The court found that there was no evidence to prove that the applicant had been questioned directly after his arrest, while intoxicated. It found that the initial statements of the applicant, i.e. those given to the police officers and to the prosecutor (before the arrival of his lawyer) were particularly credible, since the applicant had had no chance to think about his line of defence and must have been honest. The court also found that the applicant killed T.B. because the latter failed to pay his debt, which had also been the motive of the applicant ’ s action in August 2015.

The financial motive of his crime was found to constitute an aggravating circumstance. The court held that the applicant was hostile towards T.B. and had intentionally killed him in a way inflicting maximum suffering.

The applicant ’ s lawyer appealed against the judgment of 27 March 2017. He argued, in particular, that the Regional Court had violated Article 174 of the Code of Criminal Procedure ( Kodeks Post ę powania Karnego ) by making factual findings based on testimony of police officers, who informally questioned the applicant after the incident. The lawyer also argued that the court had breached Article 7 of that Code by refusing to consider the applicant ’ s statements credible, insofar as they contradicted those of the police officers. He submitted that the applicant should have been convicted of causing grievous bodily harm leading to death, which at the time of its commission carried a penalty of up to twelve years ’ imprisonment.

On 16 August 2017 the Lublin Court of Appeal ( SÄ…d Apelacyjny ) dismissed his appeal. The court stated that had the applicant been formally questioned and his testimony would have been replaced with a testimony of an interrogating police officer, it would render the latter testimony inadmissible. However, because the initial questioning had been informal, no such rule applied. Consequently, it also dismissed other arguments raised by his lawyer.

On 23 May 2019 the Supreme Court dismissed the applicant ’ s cassation appeal as manifestly ill-founded. No reasoning was provided. The decision was served on the applicant on 25 June 2019.

Article 16 of the Code of Criminal Procedure reads:

Ҥ 1. If the authority conducting the proceedings is under an obligation to advise the parties of their rights and duties, and fails to do so or misinstructs them, this shall not result in any adverse consequences during the course of the trial to the participant of the proceedings or other persons concerned.

§ 2. In addition, the authority conducting the proceedings shall, if necessary, inform the parties to the proceedings of their rights and duties, even in cases when this is not explicitly stipulated by law. If the authority fails to provide such advice, and in light of the circumstances this was deemed indispensable, or if the authority misinstructs the parties, the provisions of § 1 shall be applied accordingly.”

Article 174 of the Code of Criminal Procedure reads:

“The contents of documents and notes shall not be substituted as evidence for the explanations of the defendant or for the testimony of witnesses.”

Article 7 of that Code provides that authorities conducting criminal proceedings rely, in making their findings, on the evidence gathered in the proceedings seen as a whole; they are free in the assessment of that evidence, having regard to the principles of correct reasoning and to their general knowledge and life experience.

Article 3, paragraph 2 of the Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2 013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty, insofar as relevant, reads:

“Suspects or accused persons shall have access to a lawyer without undue delay. In any event, suspects or accused persons shall have access to a lawyer from whichever of the following points in time is the earliest:

(a) before they are questioned by the police or by another law enforcement or judicial authority;

...

(c) without undue delay after deprivation of liberty;

...”

COMPLAINT

The applicant complains under Article 6 § 3 (c) of the Convention that his conviction was largely based on his informal statements, taken without ensuring basic procedural guarantees for his defence.

He submits that the police officers who questioned him did not inform him of his rights, nor did they offer him a possibility to consult a lawyer.

QUESTION TO THE PARTIES

Was the applicant able to defend himself, as required by Article 6 § 3 (c) of the Convention? Reference is made to the applicant ’ s allegations that significant findings, detrimental to his defence, were made on the basis of the testimony given without the presence of a lawyer (see Beuze v. Belgium [GC], no. 71409/10, §§ 193 – 194, 9 November 2018) .