PROCEDURE

The case originated in an application (no. 46797/08) 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 Tadeusz Kalicki (“the applicant”), on 24 September 2008.

The applicant was represented by Ms M. Kożuch, a lawyer practising in Cracow. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska of the Ministry of Foreign Affairs.

The applicant complained of the ineffectiveness of the investigation into the circumstances of his brother’s death.

On 13 February 2012 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1955 and lives in Wieliczka.

A. The investigation into the circumstances of J.K.’s death

The applicant’s brother J.K. worked as a night guard at a bus terminus in Cracow. On 12 November 2003, at around 4 a.m., his clothes caught fire. Drivers at the station raised the alarm and managed to extinguish the fire. J.K. was subsequently taken to hospital. However, because of his serious injuries he died on 26 November 2003.

On 31 December 2004 the Cracow district prosecutor discontinued the investigation into the circumstances of J.K.’s death. During the investigation it was established that J.K. must have either fallen asleep or fainted and that his clothes had caught fire when they came into contact with an electric heater. The prosecutor concluded that it had been an unfortunate accident and that no offence had been committed.

On 24 January 2005 the applicant appealed. He argued that the prosecution authorities had failed to establish the circumstances of his brother’s death. He submitted that witnesses had given different versions of the events. In addition it had not been established how J.K’s clothes could have caught fire and where the electric heater had been placed. He further stressed that J.K. had suffered from serious diabetes and should not have been allowed to work night shifts.

On 25 May 2005 the Chief Inspector of the Małopolska Regional Command, in reply to the applicant’s complaint, stated that the investigation into the circumstances of J.K.’s death had indeed been too long. The officer in charge had already been disciplined.

On 22 August 2005 the applicant again complained to the Cracow Regional Prosecutor about delays in the proceedings. Subsequently, on 19 October 2005 he complained to the Cracow appellate prosecutor about the fact that he had not received any reply from the Regional Prosecutor.

On 21 November 2005 the Cracow appellate prosecutor confirmed that the proceedings had indeed been too long. He further informed the applicant that the Regional Prosecutor had been reproached for not having replied to his complaint in a timely manner.

On 29 November 2005 the Cracow district prosecutor reopened the investigation into the circumstances of J.K.’s death.

On 22 April 2005 the applicant complained about the actions taken by the police officers on 12 November 2003. He alleged that they had failed to perform their duties, to properly secure the place in which his brother had died and that they had fabricated false evidence in order to direct the prosecution against other persons and obstructed the proceedings.

Following the applicant’s complaint referred to above, on 30 December 2005 the Cracow district prosecutor decided to sever the charges against the police officers responsible for securing the evidence on the day of J.K.’s accident and to deal with them in a separate set of proceedings (see section B).

On 28 November 2006 the district prosecutor replied to the applicant’s complaint about the excessive length of the proceedings and found the complaint ill-founded. The prosecutor informed the applicant that prosecutors were independent in their work and it was up to them to make a decision about when the evidence had been collected and at which point the investigation should be closed. The applicant was also informed that the prosecutor in charge had been promoted to the Regional Prosecutor’s office and that a new prosecutor had inherited his cases.

On 21 September 2007 the proceedings were discontinued because it was found that no offence had been committed.

On 8 October 2007 the applicant lodged an appeal against this decision.

On 19 November 2007 the decision of 21 September was upheld by the Cracow-Śródmieście District Court.

B. Investigation concerning the police officers

On 22 April 2005 the applicant lodged a complaint about actions taken by the police on 12 November 2003. Following this complaint the original investigation was severed and it was decided to examine the charges against the police in a separate set of proceedings (see paragraphs 13 and 14 above).

On 14 June 2005 the applicant complained to the Chief of Police Force in Warsaw about the actions taken by the local police.

On 24 January 2006 the Cracow district prosecutor discontinued the investigation, finding that no offence had been committed. According to the prosecutor’s findings, on the night of the accident at around 4 a.m. one of the bus drivers, J.Ł., heard a man screaming and calling for help. The man ran into the drivers’ room; his clothes were on fire. J.Ł. extinguished the fire using a shower and called an ambulance and the police. The ambulance arrived first and subsequently, at around 4.30 a.m., the police arrived at the scene. The officers concentrated on helping J.K. They spoke to him about the incident and then he was taken to hospital. The detective, who arrived later, examined the room with the help of the company’s health and safety inspector, S.S. The prosecutor referred to the applicant’s arguments that the scene of the accident had not been properly secured; she stated that since the incident had not resulted in any fatalities, the police officers had not been required to secure the scene in any particular way. The prosecutor concluded that the police officers had not failed to properly perform their professional duties and that all the relevant procedural rules had been followed.

On 27 February 2006 the applicant lodged an interlocutory appeal against this decision. He maintained that the detective had arrived at the scene six hours after the accident. In addition, he questioned the fact that the detective had been assisted by S.S., who was an employee of the company.

On 28 November 2006 the Cracow District Court allowed the applicant’s appeal and returned the case to the prosecutor. In particular, it instructed the prosecutor to obtain evidence from S.S. and another witness, W.D., and to verify the actions taken by the police in view of the applicable procedures.

On 23 January 2007 the Cracow district prosecutor again discontinued the investigation into the alleged failure of police officers to comply with their duties. The prosecutor had heard evidence from S.S. and W.D. She repeated the reasons given in the decision of 24 January 2006 and considered that the police actions had complied with the applicable procedures and that no offence had been committed.

On 5 February 2007 the applicant lodged an interlocutory appeal against this decision.

On 19 March 2007 the Cracow Regional Prosecutor quashed the decision of 23 January 2007 and returned the case to the district prosecutor to continue the investigation. He considered that the district prosecutor had failed to comply with the court’s instructions of 28 November 2006 and had failed to analyse whether all officers involved, including the one who had taken the call notifying them of the incident and all the officers who had been present at the scene of the accident, had followed the applicable procedures.

On 16 October 2007 the district prosecutor heard evidence from R.P. – one of the police officers who had intervened on 12 November 2003 – in the presence of the applicant. The applicant asked the witness questions but the witness did not remember much of the incident in 2003.

On 31 January 2008 the district prosecutor discontinued the investigation. In an extensive reasoning of his decision the prosecutor referred to testimonies given by fifteen witnesses and to cross-examination of further two witnesses, S.S. and W.D. The prosecutor also relied on the report of the examination of the scene of the accident and on the case file. He concluded that no offence had been committed as regards the alleged breach of professional conduct on the part of the police officers and that there was not enough evidence to substantiate the allegations that the police officers had falsified any evidence. The two policemen, S.P. and R.P., who arrived at the scene at 4.30 a.m. and who spoke to the applicant’s brother, submitted that they had spoken to the victim directly after the incident; he had been conscious and informed them that he had fallen asleep and when he had woken up his clothes had been already burning. As regards the applicant’s allegations that the electric heater had been secured only six hours after the arrival of the police officers, the court found that (although this had not been not confirmed by any of the witnesses) the heater might have been moved before it was secured because several other persons had been in the room where the accident had happened before the arrival of the police. However, even if it had been moved, there were no grounds to suspect that this had been done in order to deflect suspicion onto any particular person. Here the court again relied on the victim’s statements that he had caught fire as a result of his own negligence.

The applicant appealed again. He maintained that the prosecutor had failed to properly establish the facts and hear all the necessary evidence. He demanded that witnesses A.M., S.S. and W.D. be cross-examined in order to clarify discrepancies between their statements. He also restated that the policemen who had conducted the investigation had failed to follow the relevant procedures, and in particular that the scene of the accident had not been properly secured. He lastly submitted that “his brother had been blamed for the accident” whereas in fact the real reason was that he had suffered a diabetic shock.

On 14 April 2008 the Cracow District Court upheld the prosecutor’s findings and considered that the circumstances of the case had been established sufficiently to make a decision on the merits. As regards the applicant’s request for cross-examination of certain witnesses the court submitted that the request had already been granted in part because S.S. and W.D. had been cross-examined. As regards the contradictions in the testimonies given by A.M., the court considered that they had been sufficiently cleared up by A.M. herself when she had given evidence for the second time and there had been no contradictions between her statements and the remaining evidence, so further examination would only lead to an unnecessary extension of the proceedings. As regards the applicant’s arguments concerning the failure on the part of the policemen to follow the relevant procedures, the court found that the procedures relied on by the applicant had to be followed only in a case where there was a suspicion that a crime had been committed: in the present case there had been no evidence that any third person might have been involved in J.K.’s death. The court further held that the same applied to the requirement to secure the scene of the accident; the applicant’s brother, who had been interviewed after the accident, admitted that his clothes had caught fire because of his carelessness (w wyniku nieuwagi). This also demonstrated that the suspicion that a crime had been committed had been ill-founded.
NOT_CONFIDENTIAL
check
001-159044_a3_e1
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CODE
DIRECT
46797/08
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correct
001-159044_a3_e2
001-159044_a3_em2
ORG
NO_MASK
Republic of Poland
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DEM
NO_MASK
Polish
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PERSON
DIRECT
Mr Tadeusz Kalicki
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DATETIME
QUASI
24 September 2008
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001-159044_a3_em6
PERSON
QUASI
Ms M. Kożuch
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001-159044_a3_em7
LOC
QUASI
Cracow
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001-159044_a3_em8
ORG
NO_MASK
Polish Government
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001-159044_a3_em9
PERSON
QUASI
Ms J. Chrzanowska
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001-159044_a3_em10
DEM
QUASI
brother
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001-159044_a3_e11
001-159044_a3_em11
DATETIME
QUASI
13 February 2012
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001-159044_a3_e12
001-159044_a3_em12
DATETIME
QUASI
1955
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001-159044_a3_em13
LOC
QUASI
Wieliczka
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001-159044_a3_e14
001-159044_a3_em14
PERSON
QUASI
J.K.
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001-159044_a3_e10
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DEM
QUASI
brother
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001-159044_a3_e14
001-159044_a3_em16
PERSON
QUASI
J.K.
NOT_CONFIDENTIAL
insert
001-159044_a3_e15
001-159044_a3_em17
DEM
QUASI
night guard
NOT_CONFIDENTIAL
insert
001-159044_a3_e16
001-159044_a3_em18
LOC
QUASI
bus terminus
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001-159044_a3_e7
001-159044_a3_em19
LOC
QUASI
Cracow
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001-159044_a3_e17
001-159044_a3_em20
DATETIME
QUASI
12 November 2003
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DATETIME
QUASI
4 a.m
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DEM
NO_MASK
Drivers
NOT_CONFIDENTIAL
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LOC
QUASI
001-159044_a3_em18
station
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PERSON
QUASI
J.K.
HEALTH
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DEM
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DEM
NO_MASK
serious injuries
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001-159044_a3_e22
001-159044_a3_em27
DATETIME
QUASI
26 November 2003
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DATETIME
QUASI
31 December 2004
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ORG
QUASI
Cracow district prosecutor
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001-159044_a3_e14
001-159044_a3_em30
PERSON
QUASI
J.K.
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001-159044_a3_e14
001-159044_a3_em31
PERSON
QUASI
J.K.
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001-159044_a3_e25
001-159044_a3_em32
DATETIME
QUASI
24 January 2005
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DEM
QUASI
brother
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001-159044_a3_e14
001-159044_a3_em34
PERSON
QUASI
001-159044_a3_em14
J.K
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001-159044_a3_e14
001-159044_a3_em35
PERSON
QUASI
J.K.
HEALTH
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001-159044_a3_e26
001-159044_a3_em36
DEM
QUASI
serious diabetes
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check
001-159044_a3_e27
001-159044_a3_em37
DATETIME
QUASI
25 May 2005
NOT_CONFIDENTIAL
insert
001-159044_a3_e28
001-159044_a3_em38
DEM
QUASI
Chief Inspector
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001-159044_a3_e29
001-159044_a3_em39
ORG
QUASI
Małopolska Regional Command
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001-159044_a3_e14
001-159044_a3_em40
PERSON
QUASI
J.K.
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001-159044_a3_e30
001-159044_a3_em41
DATETIME
QUASI
22 August 2005
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insert
001-159044_a3_e31
001-159044_a3_em42
ORG
QUASI
Cracow Regional Prosecutor
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001-159044_a3_e32
001-159044_a3_em43
DATETIME
QUASI
19 October 2005
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001-159044_a3_e33
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ORG
QUASI
Cracow appellate prosecutor
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ORG
QUASI
001-159044_a3_em42
Regional Prosecutor
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001-159044_a3_e34
001-159044_a3_em46
DATETIME
QUASI
21 November 2005
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001-159044_a3_e33
001-159044_a3_em47
ORG
QUASI
Cracow appellate prosecutor
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001-159044_a3_e31
001-159044_a3_em48
ORG
QUASI
Regional Prosecutor
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001-159044_a3_e35
001-159044_a3_em49
DATETIME
QUASI
29 November 2005
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001-159044_a3_e24
001-159044_a3_em50
ORG
QUASI
Cracow district prosecutor
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001-159044_a3_em51
PERSON
QUASI
J.K.
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001-159044_a3_e36
001-159044_a3_em52
DATETIME
QUASI
22 April 2005
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001-159044_a3_em53
DATETIME
QUASI
12 November 2003
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001-159044_a3_em54
DEM
QUASI
brother
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001-159044_a3_em55
DATETIME
QUASI
30 December 2005
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001-159044_a3_em56
ORG
QUASI
Cracow district prosecutor
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001-159044_a3_em57
PERSON
QUASI
J.K.
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DATETIME
QUASI
28 November 2006
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ORG
QUASI
Regional Prosecutor
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DATETIME
QUASI
21 September 2007
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001-159044_a3_em61
DATETIME
QUASI
8 October 2007
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001-159044_a3_em62
DATETIME
QUASI
19 November 2007
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001-159044_a3_em63
DATETIME
QUASI
21 September
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001-159044_a3_e43
001-159044_a3_em64
ORG
QUASI
Cracow-Śródmieście District Court
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001-159044_a3_e36
001-159044_a3_em65
DATETIME
QUASI
22 April 2005
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001-159044_a3_em66
DATETIME
QUASI
12 November 2003
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001-159044_a3_em67
DATETIME
QUASI
14 June 2005
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001-159044_a3_e45
001-159044_a3_em68
ORG
NO_MASK
Chief of Police Force
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001-159044_a3_em69
LOC
QUASI
Warsaw
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001-159044_a3_em70
DATETIME
QUASI
24 January 2006
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001-159044_a3_em71
ORG
QUASI
Cracow district prosecutor
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001-159044_a3_e18
001-159044_a3_em72
DATETIME
QUASI
4 a.m
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001-159044_a3_e48
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DEM
QUASI
bus drivers
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PERSON
QUASI
J.Ł.
NOT_CONFIDENTIAL
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001-159044_a3_e50
001-159044_a3_em75
DEM
NO_MASK
drivers
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001-159044_a3_e49
001-159044_a3_em76
PERSON
QUASI
J.Ł.
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001-159044_a3_e51
001-159044_a3_em77
DATETIME
QUASI
around 4.30 a.m.
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001-159044_a3_em78
PERSON
QUASI
J.K.
HEALTH
check
001-159044_a3_e20
001-159044_a3_em79
DEM
NO_MASK
taken to hospital
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001-159044_a3_e52
001-159044_a3_em80
PERSON
QUASI
S.S.
NOT_CONFIDENTIAL
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001-159044_a3_em81
DATETIME
QUASI
27 February 2006
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001-159044_a3_e54
001-159044_a3_em82
DATETIME
QUASI
six hours
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001-159044_a3_em83
PERSON
QUASI
S.S.
NOT_CONFIDENTIAL
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001-159044_a3_e38
001-159044_a3_em84
DATETIME
QUASI
28 November 2006
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001-159044_a3_e55
001-159044_a3_em85
ORG
QUASI
Cracow District Court
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001-159044_a3_em86
PERSON
QUASI
S.S.
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001-159044_a3_em87
PERSON
QUASI
W.D.
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001-159044_a3_em88
DATETIME
QUASI
23 January 2007
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001-159044_a3_em89
ORG
QUASI
Cracow district prosecutor
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001-159044_a3_em90
PERSON
QUASI
S.S.
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PERSON
QUASI
W.D.
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DATETIME
QUASI
24 January 2006
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DATETIME
QUASI
5 February 2007
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001-159044_a3_em94
DATETIME
QUASI
19 March 2007
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001-159044_a3_em95
ORG
QUASI
Cracow Regional Prosecutor
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001-159044_a3_em96
DATETIME
QUASI
23 January 2007
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001-159044_a3_e38
001-159044_a3_em97
DATETIME
QUASI
28 November 2006
NOT_CONFIDENTIAL
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001-159044_a3_e60
001-159044_a3_em98
DATETIME
QUASI
16 October 2007
NOT_CONFIDENTIAL
insert
001-159044_a3_e61
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PERSON
QUASI
R.P.
NOT_CONFIDENTIAL
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001-159044_a3_e17
001-159044_a3_em100
DATETIME
QUASI
12 November 2003
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001-159044_a3_em101
DATETIME
QUASI
2003
NOT_CONFIDENTIAL
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001-159044_a3_e63
001-159044_a3_em102
DATETIME
QUASI
31 January 2008
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001-159044_a3_e64
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QUANTITY
QUASI
fifteen witnesses
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001-159044_a3_e65
001-159044_a3_em104
QUANTITY
NO_MASK
two witnesses
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001-159044_a3_em105
PERSON
QUASI
S.S.
NOT_CONFIDENTIAL
check
001-159044_a3_e56
001-159044_a3_em106
PERSON
QUASI
W.D.
NOT_CONFIDENTIAL
insert
001-159044_a3_e66
001-159044_a3_em107
PERSON
QUASI
S.P.
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001-159044_a3_e61
001-159044_a3_em108
PERSON
QUASI
R.P.
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001-159044_a3_e67
001-159044_a3_em109
DATETIME
QUASI
4.30 a.m.
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001-159044_a3_em110
DEM
QUASI
brother
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001-159044_a3_e54
001-159044_a3_em111
DATETIME
QUASI
six hours
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001-159044_a3_e68
001-159044_a3_em112
PERSON
QUASI
A.M.
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PERSON
QUASI
S.S.
NOT_CONFIDENTIAL
insert
001-159044_a3_e56
001-159044_a3_em114
PERSON
QUASI
W.D.
NOT_CONFIDENTIAL
check
001-159044_a3_e10
001-159044_a3_em115
DEM
QUASI
brother
HEALTH
insert
001-159044_a3_e69
001-159044_a3_em116
DEM
QUASI
diabetic shock
NOT_CONFIDENTIAL
check
001-159044_a3_e70
001-159044_a3_em117
DATETIME
QUASI
14 April 2008
NOT_CONFIDENTIAL
check
001-159044_a3_e55
001-159044_a3_em118
ORG
QUASI
Cracow District Court
NOT_CONFIDENTIAL
check
001-159044_a3_e52
001-159044_a3_em119
PERSON
QUASI
S.S.
NOT_CONFIDENTIAL
check
001-159044_a3_e56
001-159044_a3_em120
PERSON
QUASI
W.D.
NOT_CONFIDENTIAL
check
001-159044_a3_e68
001-159044_a3_em121
PERSON
QUASI
A.M.
NOT_CONFIDENTIAL
insert
001-159044_a3_e68
001-159044_a3_em122
PERSON
QUASI
A.M.
NOT_CONFIDENTIAL
check
001-159044_a3_e14
001-159044_a3_em123
PERSON
QUASI
J.K.
NOT_CONFIDENTIAL
check
001-159044_a3_e10
001-159044_a3_em124
DEM
QUASI
brother
Tadeusz Kalicki
POL
CHAMBER
Task: Annotate the document to anonymise the following person: Tadeusz Kalicki