FOURTH SECTION
 
 
 
 
 
 
CASE OF BRZUSZCZYŃSKI v. POLAND
 
(Application no. 23789/09)
 
 
 
 
 
 
JUDGMENT
 
 
 
 
STRASBOURG
 
17 September 2013
 
 
 
FINAL
 
24/03/2014
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Brzuszczyński v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
 Ineta Ziemele, President,
 David Thór Björgvinsson,
 Päivi Hirvelä,
 George Nicolaou,
 Zdravka Kalaydjieva,
 Vincent A. De Gaetano,
 Krzysztof Wojtyczek, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 27 August 2013,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 23789/09) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Mr Piotr Brzuszczyński (“the applicant”), on 29 April 2009. 2. The applicant was represented by Mr J. Jerzmanowski, a lawyer practising in Warsaw. The Polish Government (“the Government”) were represented by their Agent, first Mr J. Wołąsiewicz and, subsequently, Ms J. Chrzanowska, both of the Ministry of Foreign Affairs. 3. The applicant alleged that his trial had been unfair, in breach of Article 6 of the Convention. 4. On 28 March 2011 the application was communicated to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1). THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1959. He is currently serving a prison sentence for aiding and abetting murder and extortion of a ransom. 6. The murder was committed by a certain R.N. on 19 May 2001. 7. The applicant and R.N. were apprehended on 6 June 2001. R.N. had a loaded gun on him. 8. R.N. was questioned four times: twice on 7 June 2001 (at 14:20 and 19:55 hours), and then on 8 June and 25 July 2001. 9. On 7 June 2001 R.N. broke down. He confessed to the murder of E.U. and stated that he had received the gun from the applicant in order to commit the murder and that he and the applicant had been planning to split the victim’s money. R.N. confirmed those facts in his statements of 8 June and 25 July 2001. He mentioned twice the exact place where he had received the gun from the applicant (in Kobyłka, near the Zepter warehouse). 10. When heard for the fourth time on 25 July 2001, R.N. changed his statements slightly. This time he stated that one unnamed man had also been present at the moment of the killing of the victim and that he himself had also been kidnapped and that the kidnappers had ordered him to dig a grave for himself. At some point, R.N. broke off his statement, explaining that he had to think everything through and that he would write everything down and send a letter to the prosecutor. 11. On 31 August 2001 R.N. committed suicide by hanging himself in his prison cell. 12. On 23 May 2002 the prosecution filed with the Warsaw Regional Court a bill of indictment against the applicant. He was charged with (I) aiding and abetting the murder of E.U. committed by R.N. by means of providing the gun in full knowledge that it would be used to kill E.U. (Article 18 § 3 in conjunction with Article 148 § 2 (4) of the Criminal Code) and with (II) illegally possessing the gun with a silencer. The applicant and a certain P.D. were also charged with (III) attempted extortion of ransom from E.U.’s family. 13. The applicant denied any involvement in the crime. He stated that he had not possessed any gun and had not provided it to anyone. P.D. also denied any involvement in extortion. 14. The Regional Court reclassified the first charge to aiding and abetting armed robbery. 15. On 27 May 2003 the Warsaw Regional Court found the applicant guilty of aiding and abetting armed robbery by means of providing the gun to R.N. and of illegal possession of the gun. It also convicted the applicant of aiding and abetting extortion. The court sentenced the applicant to a cumulative penalty of eight years’ imprisonment. In respect of the first charge, the trial court held that there had been no irrefutable evidence that the applicant had known that the gun would be used to kill E.U. 16. The court relied on the statements made by R.N. in the course of the investigation which it considered credible. R.N. had pointed to the spot where the body was buried and described his preparations for the murder. He stated that about a week before the murder, he had asked the applicant for a gun, explaining that he needed it to obtain some money. Apparently he had said that he was planning on killing somebody but had not said whom. R.N. also stated that he had informed the applicant that he had committed a murder using the applicant’s gun. Apparently the applicant had told him to get rid of the gun; however R.N. had failed to do so. R.N. also stated that since the victim had had no money on him, the applicant had come up with the idea of trying to extort a ransom from the family. 17. The court found that R.N.’s statements concerning the applicant and P.D. as well as their respective roles in the impugned offences were reliable. The court reasoned that R.N. had had no reason to lie about the applicant’s participation in the crime. The court stated that it would have been useful to hear R.N. in court but that it had been impossible owing to his death. 18. On 25 August 2003 the applicant appealed. He pointed out that the court had relied only on some parts of R.N.’s testimony, ignoring the parts which were inconsistent with the presumed version of events. The applicant also pointed out that the court had ignored testimonies made by R.N.’s friends and ex-wife, who had testified that R.N. had possessed a gun a long time before the murder. In addition, some other witnesses stated that R.N. had never told the truth. Another witness testified that R.N. had been taking drugs. Therefore, the applicant’s lawyer maintained that the statements made by R.N. could not serve as the proof of the applicant’s guilt. 19. The prosecutor also filed an appeal. He submitted that the evidence in the case was sufficient to convict the applicant of aiding and abetting murder. 20. On 9 December 2003 the Warsaw Court of Appeal quashed the trial court’s judgment. 21. The appellate court found that the proceedings before the first-instance court had been flawed. The trial court had failed to examine all the evidence gathered and the assessment of evidence had lacked consistency. It noted that while the trial court had been entitled to rely on the statements of R.N., it had been required to carry out a particularly thorough assessment of it since it had not been possible to hear this witness before the court. In its assessment of evidence the trial court had failed to address the evidence of a number of witnesses (D.I., M.A., J.G., M.F., A.K.-N., M.Ł., H.D., D.T., D.C. and R.M.). The appellate court instructed the trial court to (I) establish whether the gun used for murder had been provided by the applicant or had been in the possession of R.N., (II) consider admitting evidence with regard to establishing or excluding the presence of the applicant’s fingerprints on the gun, and (III) establish whether the applicant had possessed a gun permit. 22. The case was remitted to the trial court. 23. The Warsaw Regional Court held 19 hearings. It gave judgment on 27 November 2007. The applicant was convicted of aiding and abetting murder, illegal possession of a gun and aiding and abetting extortion of a ransom. The court sentenced the applicant to a cumulative penalty of 15 years’ imprisonment. P.D. was convicted of dealing in stolen goods and attempted extortion of a ransom and sentenced to 4 years’ imprisonment. The judgment ran to 135 pages. 24. The trial court established the facts of the case on the basis of statements of the two accused: the applicant and P.D., the statements of R.N. as well as evidence of some 40 witnesses, including members of the victim’s family, police officers who had questioned R.N., the wife of R.N. as well as creditors and friends of R.N. It further relied on documentary evidence, including inter alia, the notice of disappearance, the protocol of autopsy, the protocol of inspection of the site and the expert opinions. 25. The applicant pleaded not guilty and refused to testify. The second defendant, P.D. pleaded not guilty and refused to testify. 26. The trial court found the following in its judgment of 27 November 2007. 27. The applicant ran a car repair business. He cooperated with R.N. who supplied damaged cars to the applicant. They were close friends and business partners. In 2000 the applicant and R.N. began experiencing financial difficulties. Both promised to deliver cars to their customers and took advance payments, but subsequently failed to respect the agreements and delayed in repaying the money (evidence of witnesses H.D. and D.T.). Both the applicant and R.N. had considerable debts. At one point the applicant’s wife proposed to sell the house of her parents in order to pay the applicant’s debts. The trial court established that the applicant had had financial difficulties which he could not normally resolve. He therefore had a motive to obtain money illegally. 28. R.N. had also been experiencing serious financial difficulties (evidence of witnesses D.I., R.T. and M.R.). He was unable to pay his debts and his behaviour indicated that he would seek to obtain money by any means. According to one witness (W.S.), R.N. fell into a “debt paranoia”. For this reason, at the end of April 2001, R.N. moved out of his house and began hiding from his creditors. R.N. decided to pretend that he had a car for sale and kill the person interested in purchasing it. R.N. informed the applicant about his plan, obtained the promise of his support and carried out the murder. 29. R.N. was hiding from his creditors in Motel Europa, Motel Max, Motel Komorek and a worker’s hostel in Warsaw consecutively. At the same time he met the second defendant P.D. The applicant had regular telephone contact with R.N. as indicated by the evidence of mobile telephone traffic. The applicant also visited R.N. in the Europa and Max motels at least three times. In the middle of May 2001 the applicant brought R.N. a coat, trousers and a pair of shoes. Later, on about 17 or 18 May 2001 he supplied R.N. with hygiene products. The applicant, knowing the reason for R.N.’s hiding, did not break off contact with him but instead helped him. There was no conflict between them. The applicant, however, had attempted to demonstrate that he had had no contact with R.N. before 19 May 2001 and had had nothing to do with the crime. Nonetheless, this assertion did not stand up in the light of the evidence. 30. The applicant’s explanation as to the alleged debt owed by R.N. to him was illogical and contradictory. At first he did not claim that R.N. had owed him any money. Subsequently, he alleged that R.N.’s debt had amounted to 20,000-21,000 PLN; and later he quoted the amount of 150,000-200,000 PLN. The applicant could not explain these inconsistencies. The evidence obtained in the case also demonstrated that R.N. had owed money to third parties but not to the applicant. 31. The circumstances of the murder of E.U. were clear in the light of the evidence. However, it was necessary to examine what was the role of the applicant in the crime. The applicant pleaded not guilty. He claimed that he had learnt about the fact that R.N. had possessed the gun at the time of their arrest on 6 June 2001. In the trial court’s assessment, the explanation of the applicant was untrue as it contradicted the other evidence. 32. The applicant had possessed a Reck Miami 92 gas gun for which he held a relevant permit until the end of 1993. He returned it to the police in June 2000. A witness H.D. (a friend and customer) noticed a silver gun in the applicant’s garage (Reck Miami). The witness D.T. (police officer) was informed by the applicant that he had been in possession of a gun without specifying its type or presenting the relevant permit. The court noted that the applicant had been very careful in not showing the gun for which the permit expired to the police officer. On the basis of the evidence the trial court established that the applicant had been interested in firearms and had possessed a gun. For this reason, he was the right person to be approached by R.N. to obtain a gun. 33. In the trial court’s assessment the applicant had provided the gun to R.N. with a view to using it against E.U. Such conclusion was supported first of all by the statements of R.N. who had clearly stated that the applicant had provided him the Walther gun. Already in his first statements made directly after his arrest, namely on 7 June 2001 at 14:20 hours, R.N. stated that in the middle of May 2001 the applicant had provided him the gun during their meeting in Kobyłka near the Zepter warehouse. The trial court considered the statements of R.N. credible since he had revealed this fact at the very beginning of his questioning and had no time to think the story over. He had further precisely indicated the place of the meeting with the applicant which was in the vicinity of the applicant’s home. The gun had been handed over in a plastic bag and the expert did not disclose the applicant’s fingerprints on it. This circumstance further supported the credibility of R.N.’s statements. 34. R.N. confirmed the fact of receiving the gun from the applicant during his second questioning on 7 June 2001 at 19:55 hours and during the questioning on 8 June 2001 at 14:00 hours. It transpired from his statements that the applicant had asked him to get rid of the gun after the murder, but the applicant had failed to do so. According to the trial court, the applicant had been surprised by the fact that R.N. still possessed the gun. The applicant stated at the hearing that “he did not know that he [R.N.] had the gun”. One of the police officers (D.C.) had noted that the applicant had been surprised by the discovery of the gun on R.N. during the arrest. 35. According to the trial court, there was no doubt as to the purpose of providing the gun to R.N. Being in a difficult financial situation, R.N. had decided to obtain money by pretending that he had a car for sale. He had needed a gun to frighten the potential buyer (E.U.), and if this did not work he intended to use it. The applicant’s role was to provide help in hiding the corpse. He was to receive half of the amount robbed from the victim. R.N. shared his plan with the applicant who decided to take part in it and to provide a gun to R.N. There was no doubt that the eventual intention of R.N. was to kill the chosen victim and the applicant had been aware of this. 36. In the trial court’s view, R.N. had logically and objectively explained his and the applicant’s role in the murder during the first interrogation. He had not been in any way pressurised. The police officer R.M. who questioned R.N. testified that the latter’s statements had been spontaneous. R.N. had explained of his own volition the facts concerning the gun, the murder and the hiding. The police officer did not know the case so he could not lead R.N. to provide any particular answers. During the interrogation R.N. enjoyed unrestricted freedom of expression and disclosed facts incriminating both himself and the applicant. The other police officer J.G. confirmed the facts concerning the interrogation of R.N. 37. According to the trial court, the reliability of R.N.’s deposition was strengthened by the fact that R.N. had clearly and in a detailed manner explained his role in the crime. R.N. had mostly incriminated himself while being aware that he would be liable to a severe penalty. In such a situation it would be difficult to assume that R.N. had also intentionally incriminated the applicant. The applicant could not give any reason why R.N. would incriminate him. In the trial court’s view there was no such reason since the applicant had been helping R.N. in hiding by supplying him, inter alia, with clothes and hygiene products. 38. Furthermore, the facts stated by R.N. were corroborated by many other items of evidence obtained in the case, which again strengthened their reliability. In respect of R.N.’s making of an appointment with E.U. (the victim), this was confirmed by the evidence of witnesses P.U., E.U. (son and wife of the victim respectively) and J.G. In respect of the presence and behaviour of R.N. in a club following the murder, this was confirmed by the evidence of witnesses J.G., M.F., D.I. and A.U. The facts as stated by R.N. were also confirmed by the search of the site where the victim had been buried, medical documentation, the protocol of autopsy and the opinion of the expert in firearms. The latter concluded that the gun found on R.N. had been used for murder. 39. These and other items of evidence showed that R.N. had revealed all facts known to him when making his statements. Later, during a site inspection he indicated the location and the manner of hiding the victim’s body. After the murder R.N. disposed of his shoes. It was significant that according to statements of the applicant, R.N. requested him to bring him a pair of shoes to the Europa motel in the middle of May 2001. 40. The trial court examined the evidence of witnesses D.I. (one of the applicant’s creditors) and M.A. (friend of the applicant) with regard to the fact of possession of the gun by R.N. The witness D.I. stated in the course of the investigation that she had seen a black gun with a silencer in R.N.’s house at the night of 27 to 28 April 2001. She changed her testimony when heard during the trial. In the court’s assessment, her testimony did not permit to establish when exactly she had seen the gun and what sort of gun it had been. The witness was also a fiancée of M.A. who in turn was a close friend of the applicant. 41. The witness M.A. stated in the course of the investigation that R.N. had told him that he had bought a gun to protect himself against the mafia. When heard at the trial he changed his earlier statements and stated that R.N. had showed him the Walther gun type. The trial court found that the testimony of M.A. had been biased and aimed at exonerating the applicant. He changed his testimony in important respects and included in it contradictory facts.

Article of the Convention at issue: Article 6
Outcome: no_violation