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FOURTH
SECTION
CASE OF MIAŻDŻYK v. POLAND
(Application
no. 23592/07)
JUDGMENT
STRASBOURG
24
January 2012
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Miażdżyk
v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
David Thór Björgvinsson,
President,
Lech Garlicki,
Päivi
Hirvelä,
George Nicolaou,
Ledi
Bianku,
Zdravka Kalaydjieva,
Nebojša
Vučinić, judges,
and Lawrence Early,
Section Registrar,
Having
deliberated in private on 4 January 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 23592/07)
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
French national, Mr Edmond Miażdżyk (“the
applicant”), on 18 May 2007.
2. The
applicant was represented by Mr M. Ladrowski, a lawyer practising in
Poznań. The Polish Government (“the
Government”) were represented by their Agent, Mr J. Wołąsiewicz
of the Ministry of Foreign Affairs.
3. The
applicant alleged a violation of his right to liberty of movement. He
relied on Article 2 § 2 of Protocol No. 4 to the
Convention.
- On
7 July 2010 the President of the Fourth Section
decided to give notice of the application to the Government.
It was also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 1).
5. The
French Government were invited to intervene in the proceedings
(Article 36 § 1 of the Convention). However, by a letter of 23
September 2010, they informed the Registry that they did not wish to
exercise their right to intervene.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1950 and lives in Poznań.
Criminal proceedings against the applicant
- On 19 November 2004 the applicant
was arrested and subsequently placed in detention.
- On 14 November 2005 the Poznań
Appellate Prosecutor released the applicant from detention and
imposed other preventive measures, namely bail, police supervision
and prohibition on leaving the country, combined with the withholding
of his passport. Those measures were imposed for an indefinite period
of time.
- On 23 December 2005 the applicant
and the other fifteen accused were indicted. The applicant was
charged with running an organised criminal group and several counts
of fraud, stealing cars and handling stolen goods. In the bill of
indictment of almost 200 pages the prosecutor requested the court to
hear over 100 witnesses.
- On 17 April 2007 the applicant’s
lawyer requested the trial court to postpone the hearing scheduled on
18 April 2007, because of the applicant’s state of health. The
lawyer submitted that the French Consulate had informed him that the
applicant was in a psychiatric hospital in connection with depression
and a suicide attempt. It is unclear whether the hearing was
postponed.
- On 28 March 2008 the court
decided that the trial should be restarted.
- The applicant’s lawyer
made nine requests for the measure preventing him from leaving Poland
to be lifted (he produced copies of the following six requests: those
of 18 May, 24 October, and 30 November 2006,
14 February and 12 December 2007, and 6 November
2008). He relied on the fact that the applicant had been deprived of
contact with his three children, who lived in France, and on his poor
state of health. He also considered that the prohibition on leaving
Poland had already lasted too long and that the applicant’s
situation was getting worse with time: he had no work and no income
in Poland, and thus no means of staying there for several years.
- The Poznań District Court
refused each of the requests to lift the preventive measure in
question, relying on similar grounds, which included a reasonable
suspicion that the applicant had committed the offences with which he
had been charged and the likelihood that a heavy penalty would be
imposed on him. The court also considered that allowing the applicant
to leave the country would impair the proper conduct of the
proceedings. As regards contact with his family, the court considered
that there was nothing to prevent the applicant’s children from
visiting him in Poland. The court also found that the concerns about
the applicant’s health had not been confirmed by any medical
evidence.
- All the appeals lodged by the
applicant’s lawyer were unsuccessful; the decisions refusing to
lift the preventive measure were all upheld.
- On 27 March 2009 the
Poznań District Court upheld the decision of 5 December
2008, in which the same court had refused the applicant’s
lawyer’s request to lift the prohibition on leaving the
country.
- On 27 January 2011 the
Poznan District Court lifted the preventive measure applied in
relation to the applicant. The court took the view that:
“ (...) taking into account that the accused had
already been heard, the period of time during which the measure was
applied and the fact that the accused is a foreigner, a renewed
application of this measure must be considered unnecessary to secure
the proper conduct of the proceedings and too onerous for the
accused.”
- On 27 January 2011 the
court decided again that the trial should be restarted.
- After 27 January 2011 the
applicant left for France. On 22 February and 10 March 2011
the trial court held two hearings, at which the applicant did not
appear. His counsel was present.
- On 14 June 2011 the trial
court held a further hearing. The applicant and his counsel appeared
at the trial. However, the applicant and several other co-accused
decided not to participate in the hearing and agreed that the court
could continue the proceedings without their presence. The court held
the hearing and heard four witnesses.
- The proceedings are pending
before the first-instance court.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
1997 Code of Criminal Procedure defines prohibition on leaving the
country (zakaz opuszczania kraju) as one of the “preventive
measures” (środki zapobiegawcze). Those measures
are, in addition to prohibition on leaving the country, pre-trial
detention (tymczasowe aresztowanie), bail (poręczenie
majątkowe), police supervision (dozór policji),
guarantee by a responsible person (poręczenie osoby godnej
zaufania), guarantee by a social entity (poręczenie
społeczne), and a temporary ban on engaging in a given
activity (zawieszenie oskarżonego w określonej
działalności).
- Paragraph
1 of Article 277 of the Code provides, in so far as relevant, as
follows:
“A prohibition on leaving the country may be
imposed if there is a reasonable risk that an accused will abscond or
go into hiding; this prohibition may be combined with withholding the
accused’s passport or other travel document or with a
prohibition on issuing such a document ...”
- Paragraph
1 of Article 376 of the Code allows the court to proceed in the
accused’s absence and provides, in so far as relevant, as
follows:
“If an accused who has already been heard leaves a
courtroom without the court’s consent, the court may continue
proceedings in the accused’s absence and a judgment given in
these circumstances will not be considered a default judgment ...”
- Paragraph
2 of Article 376 of the Code provides, in so far as relevant, as
follows:
“The above provision is applicable when an accused
who has already been heard and informed of the date of a postponed
hearing fails to appear without giving any justification for his
absence”.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 § 2 OF
PROTOCOL No. 4 TO THE CONVENTION
- The
applicant complained that a preventive measure
imposed on him, namely a prohibition on his leaving Poland, which was
in place for five years and two months (six years and two months when
the one year of pre-trial detention prior to the prohibition on
leaving Poland is taken into account) constituted a disproportionate
restriction on his liberty of movement safeguarded in Article 2 § 2
of Protocol No. 4 to the Convention, which reads as follows:
“1. Everyone lawfully within the
territory of a State shall, within that territory, have the right to
liberty of movement and freedom to choose his residence.
2. Everyone shall be free to leave any
country, including his own.
3. No restrictions shall be placed on the
exercise of these rights other than such as are in accordance with
law and are necessary in a democratic society in the interests of
national security or public safety, for the maintenance of ordre
public, for the prevention of crime, for the protection of health or
morals, or for the protection of the rights and freedoms of others.
4. The rights set forth in paragraph 1 may
also be subject, in particular areas, to restrictions imposed in
accordance with law and justified by the public interest in a
democratic society.”
A. Admissibility
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Arguments of the parties
- The
Government submitted that the prohibition on leaving Poland imposed
on the applicant constituted a lawful and proportionate preventive
measure, applied to ensure the proper conduct of criminal
proceedings. The Government further stressed the complex nature of
the proceedings against the applicant, the number of witnesses who
had to be heard and the need for the applicant to be present at the
trial. They also relied on a series of cases against Italy (see Goffi
v. Italy, no. 55984/00; Luordo v. Italy, no. 32190/96; and
Bassani v. Italy, no. 47778/99) where the length of
proceedings varied between thirteen years and six months and
twenty-four years and five months, and where violations were found by
the Court, and compared them with the case of Fedorov and Fedorova
v. Russia, no. 31008/02, where a restriction on leaving the place
of residence lasting about four years and three months was found to
be proportionate. The Government concluded that the application
should be found manifestly ill-founded: alternatively that in the
circumstances of the present case there had been no breach of
Article 2 of Protocol No. 4.
- The
applicant’s lawyer contested the argument
that the case was particularly complex. He pointed to the fact that
it had been assigned to a court of the lowest instance (a district
court) and that a regional court had refused to deal with the matter.
He further submitted that he had filed nine requests for the
preventive measure imposed on the applicant to be lifted, and all of
them had been refused. The courts likewise refused to grant the
applicant permission to leave Poland for a short period of time to
see his children and to take care of his most urgent affairs. The
lawyer further maintained that the applicant had appeared at court
for all the hearings, and that he had given no reasons for suspicion
that he would abscond or obstruct the proper conduct of the
proceedings in any other way. As regards the Court’s case-law
relied on by the Government, the applicant’s lawyer pointed to
two crucial differences between the circumstances of the case of
Fedorov and Fedorova v. Russia and the present case. Firstly,
in the case relied on by the Government one of the applicants was
twice granted permission to leave her place of residence for a short
period of time. Secondly, in the present case, the applicant was a
citizen of another country, who had been forced to remain in Poland
for over six years (including the period of his pre-trial detention).
The applicant’s lawyer submitted that the application of the
preventive measure to the applicant for such a long period of time
constituted a disproportionate interference with his right to freedom
of movement.
2. The Court’s assessment
a. Whether there was an interference
- The
Court notes that the parties did not dispute that there had been a
restriction on the applicant’s freedom of movement.
- The
Court reiterates that in order to comply with Article 2 of
Protocol No. 4 such a restriction should be “in
accordance with the law”, pursue one or more of the legitimate
aims contemplated in paragraph 3 of the same Article and be
“necessary in a democratic society” (see Raimondo v.
Italy, judgment of 22 February 1994, Series A no. 281-A, p. 19, §
39).
b. Lawfulness and purpose of the
interference
- The
Court is satisfied that the interference was in accordance with the
law (Article 277 of the Code of Criminal Procedure). It also accepts
the Government’s submission that its purpose was to ensure the
applicant’s presence at the trial. The Court accordingly finds
that the restriction pursued the legitimate aims set out in paragraph
3 of Article 2 of Protocol No. 4, in particular, the prevention
of crime and protection of the rights and freedoms of others.
- It
remains to be determined whether the measure was necessary in a
democratic society.
c. Proportionality of the interference
- The Court observes that it had to rule on the
compatibility with Article 2 of Protocol No. 4 of an obligation
not to leave one’s place of residence in a series of cases
against Italy, including the case of Luordo (see Luordo,
cited above, § 96). In Luordo the Court found
such an obligation, imposed on the applicant for the duration of the
bankruptcy proceedings, disproportionate because of the length of the
proceedings, in that case fourteen years and eight months, even
though there had been no indication that the applicant had wished to
leave his place of residence or that such permission had ever been
refused. This approach was followed in subsequent cases, where the
duration of an obligation not to leave the territory of the
respondent State varied between more than five years (Prescher v.
Bulgaria no. 6767/04, § 47, 7 June 2011) and more than ten
years (see Riener v. Bulgaria, no. 46343/99,
§ 106, 23 May 2006).
- In
the present case the preventive measure was applied to the applicant
for a period of five years and two months. Prior to that preventive
measure the applicant had been held in pre-trial detention for a
period of one year (see paragraphs 7 and 8 above).
- However,
the Court considers that, in the present case, the comparative
duration of the restriction in itself cannot be taken as the sole
basis for determining whether a fair balance was struck between the
general interest in the proper conduct of the criminal proceedings
and the applicant’s personal interest in enjoying freedom of
movement. This issue must be assessed according to all the special
features of the case. The restriction may be justified in a given
case only if there are clear indications of a genuine public interest
which outweigh the individual’s right to freedom of movement
(see Hayibeyli v. Azerbaijan, no. 16528/05, § 63).
- First
of all, it should be noted that in the present case the restriction
on the applicant’s freedom of movement consisted in prohibiting
him from leaving the country and withholding his passport. It follows
that the applicant was free to travel within the territory of Poland.
- Secondly,
the applicant made nine requests for the restriction imposed on him
to be lifted. He cited deprivation of contact with his family, his
poor financial situation and deteriorating health. All the requests
were refused and all his appeals against the refusals dismissed (see
paragraphs 12-14 above).
- Thirdly,
for the entire duration of the restriction no first-instance judgment
was given in the applicant’s case. The proceedings have been
pending since November 2004. The Court cannot comment on the
applicant’s lawyer’s submission that the case was not
complicated, since a Regional Court refused to hear it because the
lawyer had failed to support his submissions with relevant documents.
Taking into account the number of co-accused and the number of
witnesses to be heard (see paragraph 9 above) the Court accepts that
the case is of a certain complexity. However, the factual and
organisational complexity of the case cannot justify the application
of the prohibition on leaving the country throughout the whole period
of the proceedings.
- Fourthly,
the applicant is a French national and his life prior to his arrest
in Poland was based in France. His family, including three children,
friends and business were all located in France. He also had a right
to medical care in France. Such a situation cannot be compared to a
restriction on an applicant’s freedom of movement imposed on
him or her in his or her own country. The Court would agree with the
applicant’s lawyer’s submissions that this is the crucial
circumstance which differentiates the present case from the other
cases relied on by the Government in their observations.
- The
Court notes finally that on 27 January 2011, the preventive measure
imposed on the applicant was lifted, although the criminal
proceedings against him were still pending. On the same day the
applicant left for France. He appeared at a hearing on 14 June 2011,
but decided with the domestic court’s agreement not to
participate further in the trial. The proceedings are pending,
apparently without the applicant’s participation (see
paragraphs 19 and 23-24 above).
- In
view of the above, the Court considers that the restriction on the
applicant’s freedom of movement for a period of five years and
two months was disproportionate particularly given that he was forced
to stay for all that period in a foreign country and was not allowed
to leave even for a short period of time. At the same time, the Court
notes that the proceedings against the applicant have been pending
for a considerable time and no first-instance judgment has yet been
given. What is more, the preventive measure applied to the applicant
was eventually lifted and, with the agreement of the domestic court
concerned, the proceedings are being conducted without his presence.
Therefore, the Court finds that a fair balance between the demands of
the general interest and the applicant’s rights was not
achieved.
- There
has accordingly been a violation of Article 2 of Protocol No. 4 to
the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 100,000 euros (EUR) in respect
of non-pecuniary damage and EUR 72,110 in respect of pecuniary
damage.
- The
Government considered the claims unjustified and groundless. As
regards the claim for pecuniary damage, the Government expressed an
opinion that it was purely of a hypothetical nature.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it awards the applicant EUR
4,000 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 4,000 for costs and
expenses, which he described as “legal fees”.
- The
Government submitted that the applicant’s claim for costs and
expenses was not supported by any additional documents such as bills
and invoices. They took the view that the claim should be rejected.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being
had to the documents in its possession and the above
criteria and the fact that the applicant’s lawyer did
submit well-prepared observations on the admissibility and merits of
the present application, the Court considers it reasonable to award
the sum of EUR 1,500 for the proceedings before the Court.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application
admissible;
- Holds that there has been a
violation of Article 2 of Protocol No. 4 to the Convention;
- Holds
(a) that
the respondent State is to pay the applicant,
within three months of the date on which the judgment
becomes final in accordance with Article 44 § 2
of the Convention, the following amounts, to be converted into
the national currency of the respondent State at the rate applicable
on the date of settlement:
(i) EUR
4,000 (four thousand euros) plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
1,500 (one thousand five hundred euros), plus any tax that may be
chargeable to the applicant, in respect of costs
and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of
the applicant’s claim for just
satisfaction.
Done in English, and notified in writing on 24 January 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early David Thor Björgvinsson
Registrar President
