ŁAWNICZAK v. POLAND
Inadmissible
George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
1. The applicant, Mr Wojciech Ławniczak, is a Polish national who was born in 1956 and lives in Warszawa. He was represented before the Court by Ms J. Metelska, a lawyer practising in Warsaw. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry for Foreign Affairs. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On 27 September 2005 the Warsaw Regional Prosecutor instituted an investigation into fraud and the bribery of Warsaw Municipality employees. 4. On 25 August 2006 in the course of the investigation the applicant’s premises were searched. Various documents were seized including 10,000 Polish zlotys (PLN) and 3,100 US dollars (USD). 5. On the same date the applicant was arrested by the police. On 26 August 2006 he was remanded in custody by the Warsaw District Court on suspicion of having facilitated the taking of a bribe by P.B. and B.T., members of the Warsaw municipal council, from an Austrian company planning to construct a hotel in Warsaw. The offence was allegedly committed on an unspecified date between 1996 and 1999. The court relied on the probability that the applicant had committed the crime in question, the risk that he might tamper with evidence and the likelihood of a severe prison sentence being imposed on him. 6. On 27 August 2006 the applicant’s lawyer lodged an appeal against this decision. He submitted that the grounds for his arrest had not been determined properly because the exact date of the alleged offence had not been specified; also, the applicant’s role in the alleged bribery was not clear. 7. On 5 September 2006 the Warsaw Regional Prosecutor ordered the applicant’s assets to be attached by way of an interim measure. In particular he decided to seize 3,100 United States dollars (USD), 10,000 Polish zlotys (PLN) and a Rolex Cellini watch. 8. On 3 October 2006 the Warsaw Regional Court rejected the applicant’s lawyer’s appeal. It held that there existed a strong probability that the applicant had committed the offence. The court agreed that the exact date of the offence should be specified. However, it also held that the fact that the applicant had facilitated an offence of bribery was sufficiently demonstrated and the applicant’s detention was necessary to secure the proper administration of justice. 9. On 15 November 2006 the applicant’s lawyer asked the court to change the preventive measure to a more lenient one. He submitted that the applicant’s son was ill and needed constant help. The Warsaw Regional Prosecutor refused this request on 23 November 2006. He stressed that there was a strong likelihood that the applicant had committed the offence. In reference to the applicant’s argument, the prosecutor noted that the applicant was not the only person able to care for his son as there were other members of the family capable of doing so. In addition, the applicant’s son was under permanent medical care. 10. At a session held on 20 November 2006 the Warsaw District Court extended the applicant’s detention. During the session the applicant’s two lawyers argued that the offence with which he had been charged had not been defined clearly enough. While the court decided to extend the applicant’s detention, it nevertheless confirmed that “the offence had been defined rather clumsily”. 11. On 24 and 27 November 2006 the applicant’s lawyers appealed against the decision to extend his detention. They submitted in particular that the court had again failed to specify the date of the alleged offence, only stating that it had been committed “between 1996 and 1999 in Milan”. 12. On 11 December 2006 the Warsaw Regional Prosecutor decided to seize 200 shares in the applicant’s company, Ekonova, worth PLN 10,000. 13. On 29 December 2006 the Warsaw Regional Court dismissed the lawyers’ appeals and upheld the decision of 20 November 2006. The court agreed with the lawyers’ arguments that the offence had not been described clearly enough because the date and the place where it had allegedly been committed had not been clearly specified. It also confirmed that it was crucial to first establish the date of the alleged offence in order to determine whether the Criminal Code of 1969 or 1997 should apply. At the same time, the court emphasised that the charge had not been formulated in general terms since it referred to facts. 14. On 11 January 2007 the applicant’s lawyer unsuccessfully asked the prosecutor to impose a more lenient preventive measure on the applicant. 15. During a confrontation held on 26 January 2007 the date on which the alleged offence was committed was finally established. 16. On 2 February 2007, during a search of the applicant’s house, the police found twenty-four cartridges for a hunting rifle. On 7 February 2007 the applicant was charged with unlawful possession of firearms. He pleaded guilty to this charge. 17. On 15 February 2007 the Warsaw District Court again extended the applicant’s detention. The court referred to the high probability that the applicant had committed the offence and the severe sentence that might be imposed on him. 18. On 27 February 2007 the applicant’s lawyer asked for the preventive measure imposed on the applicant to be changed. His request was again dismissed by the Regional Prosecutor on 13 March 2007. 19. On 5 April 2007 the Warsaw Regional Court 20. On 11 May 2007 the Warsaw Prosecutor released the applicant on bail of PLN 100,000. The applicant was also prohibited from leaving Poland. 21. On 25 April 2008 the Warsaw Regional Prosecutor discontinued the proceedings against the applicant in respect of the alleged bribery. The prosecutor held that while it had been established that the applicant had given a significant sum to B.T., it could not be said that he had acted on behalf of the Austrian company. 22. On 5 May 2008 the Warsaw District Prosecutor closed the investigation as regards the illegal possession of firearms. 23. On 19 May 2008 the bill of indictment was filed with the Szczytno District Court. 24. On 6 February 2009 the District Court discontinued the proceedings against the applicant. 25. On 25 May 2009 the Warsaw Regional Court quashed this judgment. 26. On 10 March 2010 the District Court again discontinued the proceedings given that the impugned act represented no danger to society. 27. It appears that the prosecutor appealed against this decision and the proceedings are pending. 28. The relevant domestic law and practice concerning the imposition of detention during judicial proceedings (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing other “preventive measures” (środki zapobiegawcze) are set out in the Court’s judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006, and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006. 29. Chapter 58 of the Code of Criminal Procedure, entitled “Compensation for unjustified conviction, detention during judicial proceedings or arrest”, stipulates that the State is liable for wrongful convictions or for unjustifiably depriving an individual of his or her liberty in the course of criminal proceedings against him or her. Article 552 of the Code of Criminal Procedure provides: “1. An accused who, as a result of the reopening of proceedings or an appeal on points of law, has been acquitted or re-sentenced under a more lenient provision, shall be entitled to receive from the State Treasury compensation for the pecuniary and non-pecuniary damage which he has suffered as a result of having served all or part of the sentence unjustifiably imposed on him. 2. The provisions of paragraph 1 shall also be applicable if, after the sentencing judgment has been reversed or declared null and void, the proceedings have been discontinued by reason of material circumstances not duly considered in prior proceedings. 3. A right to compensation for pecuniary and non-pecuniary damage shall also arise if a preventive measure has been applied under the conditions specified in paragraphs 1 and 2. 4. A right to compensation for pecuniary and non-pecuniary damage shall also arise in the event of undoubtedly unjustified (niewątpliwie niesłuszne) pre-trial detention or arrest.”