FOURTH SECTION

Application no. 78205/11 Maria OSUCH against Poland lodged on 14 December 2011

STATEMENT OF FACTS

The applicant, Ms Maria Osuch , is a Polish national, who was born in 1930 and lives in Warsaw.

The circumstances of the case

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

On the night of 8 November 2005 the body of the applicant ’ s son, K., was found in Warsaw , near to the house were he had lived. The applicant ’ s son was fifty years old and had lived permanently in South Africa where he worked as a university professor. He usually spent three months per year in Poland , giving lectures at Warsaw Polytechnic University . During his stays in Poland he lived with his parents. The applicant submits that her son was in conflict with some neighbours as he had testified against them in court in cases concerning appropriation of plots of land in Warsaw . Before his death the applicant ’ s son had received threats.

A security guard who had found the body noticed a white car leaving the crime scene but the police failed to follow it.

On 10 November 2005 an autopsy was carried out which revealed that the applicant ’ s son had been shot and severely beaten. The autopsy discarded the assumption made by the police that the death had been caused by an attack by a dog. The applicant submits that that assumption led to the loss of a great deal of evidence from the crime scene which had not subsequently been collected.

Two persons who allegedly had been in conflict with the applicant ’ s son and threatened him were heard by the prosecutor in January and December 2006.

During the investigation the prosecutor in charge of the case changed on eight occasions; most of the time the case was dealt with by junior prosecutors, assessors. On many occasions the investigation was prolonged.

On 28 February 2008 the prosecutor J. W-P decided to have an expert examine the hard drive of the victim ’ s laptop computer.

On 3 July 2008 the assessor A.M. decided to have an expert examine some brown stains found on the victim ’ s clothes and shoes and to compare them with DNA samples collected in the case.

In 2009 the prosecutor requested mobile phone operators to inform him about the calls made from the victim ’ s phone after his death. It appears that some persons were identified as having used the mobile phone after the murder. However, most of the data could not be retrieved due to the lapse of time.

Finally, on 31 March 2011 the Warsaw District Prosecutor discontinued the investigation, given the impossibility to establish the identity of the perpetrators.

The applicant lodged an appeal. She complained in particular about the shortcomings in the investigation and submitted that many investigative measures had not been carried out or had been carried out too late. The applicant maintained that the expert opinions had been contradictory and had not been able to establish important matters such as the number of perpetrators, the type of firearms used, and the distance from which the victim had been shot.

On 4 July 2011 the Warsaw Regional Court ( Sąd Okręgowy ) dismissed the appeal.

COMPLAINT

The applicant complains under Articles 2 and 5 of the Convention about the ineffectiveness of the investigation into the death of her son. She points to many shortcomings and delays which contributed to the authorities ’ failure to elucidate the crime.

QUESTION TO THE PARTIES

Having regard to the procedural obligations of the State, was the investigation into and judicial examination of the death of the applicant ’ s son thorough and effective, as required by Article 2 of the Convention? Reference is made in particular to the applicant ’ s allegations that many investigative actions were carried out only three or four years after the crime (forensic examination of the laptop computer, mobile phone calls, blood stains and hearing of witnesses) and that the investigation was handled by eight different, mostly junior, prosecutors.