Published on 5 June 2023

FIRST SECTION

Application no. 13951/17 Piotr MIKOŁAJCZYK against Poland lodged on 8 February 2017 communicated on 15 May 2023

STATEMENT OF FACTS

1. The applicant, Mr Piotr Mikołajczyk, is a Polish national, who was born in 1988 and is detained in Wierzchowo Pomorskie. He is represented before the Court by Mr P. Kładoczny, a lawyer from the Helsinki Foundation for Human Rights in Warsaw.

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

Background to the case

3. In 2002 the applicant was diagnosed as having a mild intellectual disability. He left full-time education after completing middle school and subsequently took up various casual jobs.

4. During the summer of 2010 the applicant resided in TÅ‚okinia Wielka, where he lived on a property belonging to Z.G. He performed various physical tasks in exchange for food, alcohol and a monthly wage of 200 Polish zlotys (approximately 50 euros). The applicant slept in a barn or in the back of a parked van. He was not formally employed or otherwise registered as resident in the town.

5. On 3 November 2010 two women – M.K. and her mother B.J. – were murdered at their house in Tłokinia Wielka. The crime was discovered by M.K.’s daughter upon her return home from school. Paramedics who arrived at the scene declared M.K. dead; B.J. was rushed to hospital but died later that day. The police arrived at the scene after B.J. had been taken to hospital.

6. Investigators secured multiple pieces of evidence at the crime scene, including blood samples, a bloody handprint, a shoeprint and a sample of DNA from an unidentified male. They viewed a CCTV recording from a neighbouring property but failed to secure the tape, which was erased a few days later.

7. No immediate suspects were identified by the police. Subsequent investigation was focused on the victims’ family members, who had allegedly been in conflict with the victims over financial matters.

8. On 4 August 2011 the police questioned Z.G., who stated that the applicant had been living and working on his property since May or June 2010. He further stated that shortly after the murder of M.K. and B.J., the applicant had expressed a wish to leave TÅ‚okinia Wielka and asked Z.G. to drive him home.

9. The applicant was arrested at his house on 8 August 2011 at 6 a.m. on suspicion of having murdered M.K. and B.J. The applicant signed the record of his arrest, in which he acknowledged that he had been informed of his right to consult a lawyer. According to the signed record, he did not request that anyone be notified of his arrest, he made no complaint about the legality or the manner of his arrest and he did not wish to consult a lawyer. It appears that he was not apprised of his right to remain silent.

10 . According to the testimony given by A.K. (a police officer) on 14 October 2011, during his police interview the applicant had been informed that the police had secured a significant amount of evidence and had acquired information indicating that the applicant was responsible for the murder. A.K. had then left the room and after a few minutes another officer informed A.K. that the applicant had confessed to the charges. The applicant had explained to the police that he had struck both women with a hammer which he had later tossed into a truck transporting scrap metal. He further stated that he had torn the hood off M.K.’s jacket when she had attempted to escape the scene of the crime. The motive for his crime was that B.J. had been opposed to the applicant’s having an intimate relationship with M.K. The applicant had also expressed his willingness to take part in a reconstruction of the crime. A.K. observed that the applicant had been extremely nervous during his questioning, had consumed an extraordinarily large amount of water and had often had to use the toilet, where he vomited.

11 . On 8 August 2011 at 12.20 p.m. the applicant was formally questioned as a witness by the police. He was instructed to tell the truth under pain of criminal liability for perjury and was informed of the right to refuse to answer questions if the answers might incriminate him. The applicant spoke about his intimate relationship with M.K. and B.J.’s objection to it. On the day of the murder he had gone to their home where he had spoken with B.J. After M.K. had returned home the two women had started arguing. The applicant had wanted to separate them and had pushed M.K., who fell to the floor. He had then struck B.J. with a hammer which he always carried with him. When M.K. had tried to escape, the applicant had hit her with a hammer several times. He had then dealt several blows to B.J. and left the scene. The applicant testified that he had then changed his clothes and thrown the murder weapon into a parked truck. The questions posed to the applicant were not included in the record.

12 . Later that day the Kalisz District Prosecutor ( Prokurator Rejonowy ) charged the applicant with the double murder. He was apprised of his rights to refuse to give explanations and to have a lawyer present. The applicant pleaded guilty to the charge and explained that on the day of the murder he had taken an axe from the garage of the property on which he had been living. He had then headed for B.J.’s house, which he had entered through an unlocked door. B.J. had told the applicant to get out and he had struck her with the axe. M.K. had then entered the house and, having noticed that her mother was wounded, tried to escape. The applicant had then struck her several times with the axe. Before departing the crime scene, he had washed himself in the kitchen sink. He had then hidden in a barn on Z.G.’s property, changed his clothes, put them inside a plastic bag together with the murder weapon and watched the ensuing police activities through a crack in the barn wall or from the side of the road. On the next day Z.G. had driven the applicant to his hometown and the applicant had first headed for the shore of a nearby lake into which he had tossed the murder weapon. He could not recall the exact place of its disposal. He had later burned his shoes and shirt in a furnace and washed his blood-stained shorts. During the applicant’s questioning by the prosecutor one of the officers who had previously questioned him was present in the room.

13 . On 9 August 2011 the applicant was questioned again by the prosecutor. He could not explain why he had initially said that he had used a hammer, not an axe. He said that he had thought it would be better for him if he said that he had used a hammer. The applicant refused to take part in a reconstruction of the crime owing to his fear of revenge from the local community.

14. Later that day the prosecutor applied to the Kalisz District Court ( SÄ…d Rejonowy ) to have the applicant placed in detention pending trial.

15. On 10 August 2011 that court placed the applicant in detention pending trial. The applicant pleaded guilty and refused to give explanations. He confirmed the explanations he had given to the prosecutor (see paragraphs 12-13).

16. On 11 August 2011 the Kalisz District Prosecutor made an application for the President of the Criminal Division of the Kalisz District Court to appoint defence counsel ( obrońca z urzędu ) for the applicant. He stated that because the applicant had been charged with a felony ( zbrodnia ) and because there were doubts as to his sanity, the law required him to be assisted by defence counsel.

17. On 16 August 2011 the Kalisz Regional Court ( Sąd Okręgowy – “the Regional Court”) appointed defence counsel for the applicant.

18 . On 23 August 2011 a report on the applicant’s mental state, commissioned by the prosecutor, was prepared by a team of expert psychologists and psychiatrists. They noted that the applicant had a very limited vocabulary, answered their questions mainly with single words and had to be asked short and direct questions in order to be able to comprehend them. The experts measured his IQ as 62 and determined that he had been sane tempore criminis . In so far as he claimed not to remember the details of the murders, the experts concluded that that was an excuse which constituted a line of defence, since several days before the examination he had given detailed statements about the exact course of events to the police and the prosecutor. They further determined that owing to his intellectual disability, the applicant required the assistance of defence counsel in order to effectively participate in the proceedings.

19. On 3 October 2011 the applicant was brought before the Kalisz District Prosecutor and questioned in the presence of defence counsel. He refused to give explanations and stated that he had not yet had a chance to speak to his lawyer. Defence counsel requested that the questioning be postponed as she had not been able to confer with the applicant in private.

20 . On 14 December 2011 the Kalisz District Prosecutor questioned A.K., who confirmed his testimony of 14 October 2011 (see paragraph 10 above). He stated that the applicant, having been informed by the officers that they believed he was the perpetrator, had initially denied his involvement. However, having been presented with a possible course of events, he had pleaded guilty to the murder and to having had an affair with M.K. According to A.K., the applicant spoke about using a hammer which he had then thrown into a lake. A.K. denied that any pressure had been exerted on the applicant, who had spoken freely and appeared relieved after his confession. A.K’s questioning finished with him having signed a formal record, confirming the accuracy of testimonies contained therein.

21. During the trial the applicant refused to give explanations and replied only to selected questions. He withdrew his previous confessions to the police officers and the prosecutor but was unable to explain why he had made them. The statements made by the applicant in his capacity as a witness (see paragraph 11) could not serve as a basis for making factual findings (as indicated by the domestic courts – see paragraphs 28-29 below) but were included nonetheless in the case file, and the officers who had questioned him gave witness evidence as to what the applicant had said while in police custody.

22. In particular, A.K. denied having presented the applicant with a possible course of events prior to his confession (see paragraph 20 above). A.K. testified that he had merely told the applicant that there was evidence of his guilt. Two other police officers who had initially questioned the applicant denied ever telling him that there was evidence against him.

23. On 5 April 2012 the Regional Court convicted the applicant of murdering M.K. and B.J. and sentenced him to life imprisonment.

24. The applicant appealed against his conviction and on 12 October 2012 the Łódź Court of Appeal ( Sąd Apelacyjny ) quashed the Regional Court judgment and remitted the case for re-examination. It held that the applicant’s self-incriminating statements were the only direct evidence of his guilt and that the Regional Court should therefore have scrutinised them with particular rigour. Furthermore, the Regional Court should have conducted a more in ‑ depth questioning of the experts who had evaluated the applicant’s mental condition. In particular, it should have determined whether the circumstances of his arrest, his low IQ, his having been informally questioned by three police officers and having been questioned initially as a witness (which was a breach of the correct procedure), could have impacted the applicant in such a way that he would make false and self-incriminating statements.

25. On 26 January 2015 the Regional Court convicted the applicant of murdering M.K. and B.J. and sentenced him to twenty-five years’ imprisonment. It held that the applicant’s confessions had contained information that could have been known only to the murderer. It considered the applicant’s incriminating statements to have been freely given and credible. The court did not accept the applicant’s claim that the police had suggested his explanation of events, and considered it to be merely an element of his defence strategy. The court observed that no provision of the law obliged the authorities to record the questions posed to suspects or required the record of questioning to contain a verbatim account of their replies. It found that the applicant’s explanations must have been paraphrased by the person drafting the record but still reflected what he had said. The court further held that A.K.’s testimony (see paragraph 20 above) must have been incorrectly recorded in so far as it contained a statement that the applicant had been presented with a possible course of events before his confession.

26. As to the murder weapon, the court determined that the applicant had disposed of it by throwing it into a lake. Given that he had refused to reveal its exact location and that the lake in question was large, it had been impossible to recover the weapon.

27. Referring to the experts’ conclusion that the applicant could be susceptible to suggestion (see paragraph 18 above), the court dismissed the idea that that had played a role in his confessions and noted that the applicant was only suggestible in interactions with people he regarded as role models. According to the experts, police officers were not seen as role models by the applicant, and hence they would not have been able to suggest anything to him.

28 . The Regional Court emphasised that it had made its factual findings based only on those of the applicant’s explanations which were given after he had been formally charged. Nevertheless, his prior interactions with the police had been taken into consideration, but only in so far as necessary to establish the credibility of his admission of guilt before the prosecutor.

29 . The applicant again appealed against his conviction and on 18 June 2015 the Łódź Court of Appeal upheld the judgment of the Regional Court. It held that the explanations given by the applicant before the prosecutor could not be regarded as unlawfully obtained and had ultimately resulted in him being convicted. The appellate court did not formally exclude from evidence the explanations given by the applicant to the police officers who had questioned him (first informally and then as a witness), and stated that the techniques employed by those officers (such as misleading the applicant as to the existence of evidence against him) fell within the boundaries of the law. Given the applicant’s limited intellectual capabilities, it would have been impossible for him to have learnt by heart a version of events suggested by the police and then repeat it before the prosecutor.

30. On 23 June 2016 the Supreme Court ( Sąd Najwyższy ) dismissed a cassation appeal which had been lodged by the applicant (case no. II KK 39/16). It held, in particular, that the applicant had freely confessed to the charge and that there was nothing to suggest that he had been coerced into falsely incriminating himself. The Supreme Court noted the fact that the applicant had not been assisted by a lawyer during the investigation and that this could raise doubts as to the credibility of his plea, but nevertheless concluded that the law did not exclude the drawing of factual conclusions based thereon.

31. The Supreme Court’s judgment was notified to the applicant’s lawyer on 9 August 2016. The application was dispatched on 8 February 2017.

32. On 18 December 2018 the Polish Commissioner for Human Rights ( Rzecznik Praw Obywatelskich ) lodged another cassation appeal for the applicant’s benefit. He argued, in particular, that the applicant had been questioned several times by the police and the prosecutor despite the fact that he had been in visible distress and had never explicitly waived his right to have a lawyer present.

33. On 4 February 2020 the Supreme Court dismissed that cassation appeal (case no. II KK 500/18). It did not refer to the Commissioner’s arguments regarding the applicant’s right to have a lawyer present during the initial stages of the investigation.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

34. The relevant provision of the Polish Constitution reads as follows:

Article 42

“...

2. Anyone against whom criminal proceedings have been brought shall have the right to defence at all stages of the proceedings. He or she may, in particular, choose a defence lawyer ( obrońca ) or avail himself or herself – in accordance with principles specified by statute – of a defence lawyer appointed by a court.

3. Everyone shall be presumed innocent of a charge until his or her guilt is determined by the final judgment of a court.”

35. The relevant provisions of the Code of Criminal Procedure, as in force at the relevant time, provided as follows:

Article 6

“The accused shall have the right to mount a defence, including the right to be assisted by a defence lawyer, and shall be informed accordingly.”

Article 79

Ҥ 1. In criminal proceedings, the accused must have defence counsel if:

(1) he or she is a minor,

(2) he or she is deaf, mute or blind,

(3) there is reasonable doubt as to his or her sanity.”

§ 2. The accused must also have defence counsel if the court deems it necessary due to circumstances that impede the defence.

§ 3. In the cases referred to in §§ 1 and 2, the participation of defence counsel is mandatory during the trial and at those hearings in which the participation of the accused is mandatory.”

Article 80

“The accused must have defence counsel in proceedings before the regional court as a court of first instance if he or she is charged with a felony or is deprived of his or her liberty. In this case, the participation of defence counsel in the main hearing is mandatory, and in the appeal and cassation hearings if the president of the court or the court deems it necessary.”

Article 175

“§ 1. The accused shall have the right to give explanations; however, he or she may, without giving reasons, refuse to answer individual questions or refuse to give explanations. He or she shall be advised of this right.”

Article 177

“§ 1. Any person called as a witness shall be required to appear and give evidence.”

Article 183

“§ 1. A witness may refuse to answer a question if answering could expose him or her, or a person close to him or her, to liability for a criminal or fiscal offence.”

Article 245

“The arrestee shall be given the opportunity to communicate with a lawyer in an accessible form and to speak directly with him or her without delay upon request; the arresting officer may insist on being present.”

36. The Constitutional Court, in its judgment of 11 December 2012 (case no. K 37/11), held as follows:

“The rights of the defence thus apply to everyone from the moment that criminal proceedings are instituted against them. The [Constitutional] Court emphasised that ‘in practice’ that moment is the moment of bringing charges, namely the moment when there is already a justified suspicion that an offence has been committed. The [Constitutional] Court, taking into account the jurisprudence of the Supreme Court, assumes that the right to defence referred to in Article 42 § 2 of the Constitution also refers to the phase of proceedings which precedes the formal bringing of charges against a person. The [Constitutional] Court shares the view of the Supreme Court that ‘it is not the formal bringing of a criminal charge, but rather the first action of the procedural authorities aimed at prosecuting a given person, that makes that person a subject of the right to defence’.”

37 . In its ruling of 1 September 2003 (case no. V KK 12/03) the Supreme Court held as follows:

“It follows from the wording of Article 186 § 1 of the Code of Criminal Procedure that the prohibition covers only the content of ‘previously given testimony’ and the possibility to make factual findings on the basis thereof. However, this provision does not prohibit the reproduction of statements made by a person entitled to refuse to testify, outside the record of examination as a witness – for example, in the form of a spontaneous statement during his or her arrest by a police officer.”

38 . On 18 April 2017 and 27 September 2018 the [Polish] Commissioner for Human Rights requested the Minister of Justice to consider making a proposal for legislative amendments in order to ensure more effective access to a lawyer after arrest and thus minimise the risk of ill-treatment in police custody. He indicated that the guarantees in force at that time were illusory and in light of the lack of other procedural safeguards (such as video recording of the questioning) increased the risk of torture and inhuman treatment. In that regard, the Commissioner referred to several pending or concluded criminal proceedings in which police officers were charged with abusing suspects during informal questioning.

39 . On 25 October 2021 the Minister of Justice replied that it would be unfeasible to provide every arrestee with access to a lawyer and, considering the time required for appointment of a lawyer, it would inevitably lead to extension of the duration of arrests. In the Minister’s view, such a solution would prevent the police from being able to talk to the arrestee and/or perform procedural acts with his or her participation. The Minister concluded that the law in force offered sufficient procedural guarantees to arrestees in the early stages of the proceedings, and refused to consider introducing a proposal for legislative amendments.

COMPLAINTS

40. The applicant complains under Article 6 §§ 1 and 3(c) of the Convention that the proceedings against him were unfair since the criminal charge against him was based solely on the explanations he had given without the presence of a lawyer. He further argues that his limited intellectual capacity prevented him from fully understanding the consequences of his implied waiver of defence counsel.

41. The applicant also complains under Article 6 § 2 of the Convention, that despite his having already confessed to the officers during informal questioning, he was subsequently formally questioned as a witness and instructed to tell the truth under pain of criminal liability for perjury. Furthermore, the content of the testimony he gave as a witness was later used to evaluate his overall credibility, in circumvention of the principle nemo se ipsum accusare tenetur .

QUESTIONS TO THE PARTIES

1. Were the criminal proceedings against the applicant fair as a whole, as required by Article 6 § 1 of the Convention (see, for general principles, Bykov v. Russia [GC], no. 4378/02, §§ 88-93, 10 March 2009; Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, §§ 249‑274, 13 September 2016; and Beuze v. Belgium [GC], no. 71409/10, §§ 119-150, 9 November 2018)? In particular:

(a) Has there been a breach of Article 6 §§ 1 and 3 (c) of the Convention due to the fact that applicant (a mentally disabled person) was not assisted by a lawyer during his initial questionings in police custody and before the prosecutor (see Ibrahim and Others, cited above, §§ 255-65 and Beuze, cited above, §§ 120-150)?

(b) Did the applicant waive his right to a defence counsel? If so, did that waiver comply with the Court’s standard of “knowing and intelligent waiver” (see Simeonovi v. Bulgaria [GC], no. 21980/04, § 115, 12 May 2017; Türk v. Turkey , no. 22744/07, §§ 48-53, 5 September 2017; Pishchalnikov v. Russia , no. 7025/04, § 77, 24 September 2009), given his limited intellectual capacity?

(c) Has there been a breach of Article 6 § 1 of the Convention, given that the applicant was questioned as a witness, even though he had already pleaded guilty at that time and his testimonies given in this capacity were included in the case file and served as a basis for evaluating his credibility?

(d) Has there been a breach of Article 6 § 1 of the Convention, given that questions posed to the applicant during the investigation were not recorded and his replies paraphrased, whereas no audio or video recording of the questioning was made?

2. Was there a violation of Article 6 § 2 of the Convention, given that the applicant, having pleaded guilty to the charge during an informal questioning, was subsequently formally questioned as a witness (rather than a suspect) and instructed to tell the truth under the pain of criminal liability for perjury (see Saunders v. the United Kingdom [GC], no. 19187/91, §§ 68-69, 17 December 1996)?