CEDH · CASELAW;COMMUNICATEDCASES;ENG — 17 décembre 2014

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s2D57E2E { font-family:Arial; font-weight:bold; text-decoration:underline; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase }     Communicated on 17 December 2014   FOURTH SECTION Application no. 65709/09 Jan ZAŁUSKA against Poland lodged on 2 December 2009 STATEMENT OF FACTS The applicant, Mr Jan Załuska, is a Polish national, who was born in   1946 and lives in Warsaw. He is represented before the Court by Mr   H.   Gibasiewicz, a lawyer practising in Warsaw. The facts of the case, as submitted by the applicant, may be summarised as follows. A.     Criminal proceedings against the applicant On 29 November 2001 the applicant was arrested by the police. On the same date the Warsaw Śródmieście District Prosecutor ( Prokurator Rejonowy ) charged the applicant with embezzlement of 10,000,000 US dollars (USD) and with fraud (case no. V Ds.   254/01 ). On 1 December 2001 the Warsaw Śródmieście District Court ( Sąd Rejonowy ) remanded the applicant in custody relying on the reasonable suspicion that he had committed the offences in issue. On 4 December 2001 the Warsaw Regional Prosecutor ( Prokurator Okręgowy ) released the applicant on bail of 400,000 Polish zlotys   (PLN). The prosecutor also prohibited the applicant from leaving the country and seized the applicant’s passport. On 28 November 2003 the Warsaw Prosecutor of Appeal ( Prokurator Apelacyjny ) took over the investigation (case no. Ap II Ds. 26/03 ). On 8 November 2006 the applicant requested that the prohibition on leaving the country be lifted and the amount of bail be increased instead. He argued that the prohibition on leaving the country was detrimental to his family life because his wife and children resided in Austria. On 15 November 2006 the Warsaw Prosecutor of Appeal decided to continue to impose on the applicant the prohibition on leaving Poland but allowed him to travel to Austria. By the same decision the overall amount of bail was increased to PLN 600,000 and the prosecutor accepted the additional amount of PLN 200,000 in the form of a mortgage on the applicant’s son’s property. The prosecutor found that the measure imposed on the applicant had undoubtedly negatively affected his family life as his wife and underage children resided in Austria. At the material time the modified preventive measure was sufficient to secure the proper conduct of the investigation because the relevant evidence from the countries of the European Union had already been obtained. On 6 March 2007 the investigation was taken over by the Warsaw Regional Prosecutor (case no. V Ds 119/07 ). On 14 February 2008 the Warsaw Regional Prosecutor again altered the preventive measure and allowed the applicant to travel within the European Union. On 2 October 2008 the Warsaw Regional Prosecutor altered the conditions of bail and accepted it in the form of a mortgage on the property of the applicant’s son with respect to the whole amount. On 17 June 2009 the applicant applied for the investigation to be stayed and for the prohibition on his leaving the country to be lifted. He argued that the length of the investigation resulted from the fact that the requests for international legal assistance addressed by the prosecution to the United States’ authorities remained unanswered. He emphasised that he had not obstructed the proceedings in any way and that he had actively participated in them, by, inter alia , providing evidence. He also referred to the fact that his daughter was a citizen of the United States and she intended to get married there. On 17 June 2009 the Warsaw Regional Prosecutor decided to stay the investigation. At that time the investigation concerned four accused. It was found that the pending requests for international legal assistance constituted a long ‑ standing impediment to continuing the proceedings ( długotrwała przeszkoda uniemożliwiająca prowadzenie postępowania ). On 3 July 2009 the Warsaw Regional Prosecutor refused the applicant’s request for the prohibition on leaving the country to be lifted. The prosecutor noted that the evidence requested from the United States authorities still had not been obtained. Consequently, there was a risk that the applicant might tamper with evidence or otherwise obstruct the conduct of the investigation, had he been allowed to travel to the United States. The applicant appealed against this decision. On 7 August 2009 the Warsaw Mokotów District Court dismissed the appeal. It agreed with the prosecutor’s finding as regards the necessity of the preventive measure in the light of the fact that not all of the evidence had been collected. The court emphasised that the applicant could meet his daughter in any of the countries of the European Union where he was allowed to travel. On 3 January 2011 the applicant again requested for the preventive measure to be lifted. He referred to the fact that the proceedings had been stayed since 17 June 2009 due to the apparent failure of the United States’ authorities to comply with the requests for legal assistance. Nevertheless, he had been continuously prevented from visiting his daughter there and her wedding had to be postponed. On 11 January 2011 the Warsaw Regional Prosecutor refused the request relying on the risk that the applicant might obstruct the proceedings by absconding or by tampering with evidence. The prosecutor referred to the modifications of the preventive measure that had already been made in the course of the proceedings and found that, as the evidence from the United States had not been obtained, the applicant could not be allowed to travel there. The applicant appealed. On 28 February 2011 Warsaw Mokotów District Court dismissed the appeal. The court endorsed the finding of the prosecutor that there were no grounds for lifting the preventive measure at this stage of the investigation despite the fact that the proceedings had been stayed. It appears that since then the investigation has not yet been resumed. B.     Proceedings under the 2004 Act On 16 November 2009 the applicant lodged a complaint with the Łódź Court of Appeal under the Law of 17   June   2004 on complaints about a breach of the right to a trial within a reasonable time ( ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu przygotowawczym prowadzonym lub nadzorowanym przez prokuratora i   postępowaniu sądowym bez nieuzasadnionej zwłoki – “the 2004 Act”). He sought a finding that the length of the investigation had been excessive and PLN 20,000 in compensation. He also asked the court to order the investigating prosecutor to take actions to counteract the delay. On 2 February 2010 the Warszawa Court of Appeal ( Sąd Apelacyjny ) dismissed the applicant’s complaint. The court noted that the case was of complex character and that the Polish authorities had addressed three requests for international legal assistance to the United States’ authorities. The requests remained unanswered despite several reminders. Consequently, the Court of Appeal found that the prosecution authorities had conducted the investigation in a correct and timely manner and it refused to award the applicant compensation. C.     Relevant domestic law 1.     Length of proceedings The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings, in particular the applicable provisions of the 2004 Act, are set out in the Court’s decisions in the cases of Charzyński v.   Poland (dec.), no.   15212/03, §§   12-23, ECHR 2005 ‑ V and Ratajczyk v.   Poland (dec.), no.   11215/02, ECHR 2005-VIII, and judgments in the case of Krasuski v.   Poland , no.   61444/00, §§   34-46, ECHR   2005 ‑ V and Krzysztofiak v.   Poland , no.   38018/07, §§   23-30, 20   April 2010. 2.     Prohibition on leaving the country The Code of Criminal Procedure defines prohibition on leaving the country ( zakaz opuszczania kraju ) as one of its “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 temporary ban on engaging in a   given activity ( zawieszenie oskarżonego w określonej działalności ). Article 277 § 1 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 ...” COMPLAINTS 1.     The applicant complains under Article 6 § 1 of the Convention about the unreasonable length of the criminal proceedings against him. 2.     He also complains about the restrictions on his right to leave Poland resulting from the preventive measure imposed on him in this set of proceedings. He alleges that the restrictions have been unjustified and disproportionate. 3.     Finally, he complains about these restrictions invoking Article 8 of the Convention. He stresses that in their consequence he has been prevented from visiting his daughter residing in the United States and from attending her wedding. QUESTIONS TO THE PARTIES 1.     Was the length of the criminal proceedings in the present case in breach of the “reasonable time” requirement of Article   6   §   1 of the Convention?   2.     Was the restriction on the applicant’s freedom to leave Poland, imposed on 4 December 2001, compatible with Article 2 of Protocol No.   4 to the Convention? In particular, was this restriction proportionate to any legitimate aim pursued? (see, Baumann v. France , no.   33592/96, §   61,   ECHR 2001 ‑ V and Riener v. Bulgaria , no. 46343/99, § 109, 23   May 2006)?   3.     Did the restriction have impact on the applicant’s right to respect family life, in breach of Article 8 of the Convention? Reference is made to the fact that for the last 13 years the applicant has been unable to visit his daughter residing in the United States and that he could not attend her wedding?