CASE OF M.B. v. POLAND
Violation of Art. 5-3
Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva
4. The applicant was born in 1958 and lives in Katowice. 5. On 18 October 2004 the Katowice Regional Prosecutor (Prokurator Prokuratury Okręgowej) ordered the applicant’s detention in connection with a criminal investigation pending against her. The prosecutor also issued a search warrant for the applicant’s apartment with a view to locating any book-keeping records or other documents which could be used as evidence in the ongoing investigation. 6. On 19 October 2004 the applicant was arrested on suspicion of abuse of her powers and office in her role as head of a certain division at the Katowice Office of Fiscal Control (Urząd Kontroli Skarbowej) and accepting a bribe (in the amount of 130,000 Polish zlotys (PLN)). 7. On 20 October 2004 the Katowice District Court (Sąd Rejonowy) remanded the applicant in custody, relying on the reasonable suspicion that she had committed the offences in question. It also considered that keeping the applicant in detention was necessary to secure the proper conduct of the proceedings, given the risk that if released, the applicant might induce witnesses to give false testimony. The court also stressed that a severe sentence was likely to be imposed. 8. The applicant’s appeal against the detention order was dismissed by the Katowice Regional Court (Sąd Okręgowy) on 1 December 2004. 9. In the course of the investigation, the applicant’s detention was extended on several occasions by the Katowice District Court, namely on 12 January, 14 April, and 12 July 2005. 10. On 14 January 2005 the Regional Prosecutor’s Office issued a decision whereby the possible penalty to be imposed on the applicant was to be secured by means of a charge on the applicant’s assets, amounting to PLN 25,000, as well as through the forfeiture of benefits deriving from her crime in the amount of PLN 130,000. On 25 February 2005 this decision was upheld together with the relevant enforcement order by the Katowice District Court. The applicant appealed. The Prosecutor’s decision was eventually upheld by the Katowice Regional Court on 29 September 2005. 11. The applicant’s detention was subsequently extended by decisions of the Katowice Court of Appeal (Sąd Apelacyjny) delivered on 3 October and 28 December 2005, 29 March, 28 June, and 27 September 2006 and 4 January, 1 March and 4 April 2007. 12. In all their decisions the authorities repeatedly relied on the original grounds given for the applicant’s detention. They also considered that keeping her in detention was necessary to secure the proper conduct of the proceedings, given the risk that she might tamper with evidence or induce witnesses to give false testimony. Further, they attached great importance to the considerable number of witnesses and the extensive body of evidence to be considered. In its decision of 4 January 2007 the court noted that the investigation has been lengthy and informed the prosecutor that any subsequent motion for having the applicant’s detention extended would be critically reviewed. 13. The applicant’s subsequent appeals against decisions extending her detention, as well as her other numerous applications for release were all unsuccessful. In her appeals she argued that the charges against her were based on unreliable and contradictory evidence. She subsequently invoked the principle of the presumption of innocence and also relied on her personal circumstances, in particular her age and health problems. 14. On 19 April 2007 a bill of indictment was lodged with the Katowice Regional Court. The bill of indictment comprised charges of abuse of powers and office, bribery and numerous tax offences. The applicant was accused of having gained through her criminal activities a permanent source of income. The charges were brought against twenty-one defendants. 15. On 26 April 2007 the Katowice Court of Appeal ordered that the applicant be kept in custody until 30 July 2007. It further held that she could be released if she put up bail of PLN 200,000 (approximately 52,000 euros (EUR) at the time) by 31 March 2007, to be deposited in cash into the Katowice District Court’s account. The court held that the amount of bail was appropriate in view of the applicant’s financial situation and the role she had played in the alleged criminal activities. In addition, the court placed the applicant under police supervision and prohibited her from leaving the country. 16. The applicant appealed, contesting the amount of bail to be paid and requesting its reduction to PLN 30,000. She stressed that since the date of her arrest she had no longer been gainfully employed and further relied on the difficult financial situation of her family. She also requested that bail be accepted in the form of a charge on her apartment. 17. On 18 May 2007 the Court of Appeal upheld the decision of 26 April 2007, refusing to alter the conditions for the applicant’s release. 18. As it appears from the documents submitted, on 31 May 2007 the Court of Appeal ordered the applicant’s release as she had eventually paid the bail (in cash). 19. On 23 February 2009 the applicant filed a motion requesting that the amount of bail be reduced to PLN 20,000. On 7 April 2009 the Katowice Regional Court reduced the amount of bail to PLN 50,000. 20. It appears that subsequently the amount of bail was reduced to PLN 20,000. 21. On 20 July 2010 the Regional Court reduced the amount of bail to PLN 19,000. Subsequently, the measure prohibiting the applicant from leaving the country was quashed. 22. The proceedings are still pending before the Katowice Regional Court. 23. The relevant domestic law and practice concerning the imposition of detention during judicial proceedings (tymczasowe aresztowanie) the grounds for its extension and release from detention are set out in the Court’s judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006, Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006 and Osuch v. Poland, no. 30028/06, §§ 22-24, 3 November 2009. 24. The relevant domestic provisions governing the imposition of other “preventive measures” (środki zapobiegawcze), inter alia, bail, are covered by Chapter 28 of the Code of Criminal Procedure of 1997, which entered into force on 1 September 1998. 25. Article 257 § 1 of the Code provides that detention shall not be imposed if another preventive measure (for example, bail) is considered to be adequate. Pursuant to Article 266 of the Code, bail in the form of cash, securities or by way of a charge on property can be deposited by the accused or by another person. Determination of the amount, form and the relevant methods for the payment of bail should be made by a decision, having regard to the financial situation of the accused and, as the case may be, that of another party depositing bail, as well as to the assessment of the damage which may have been caused by the offence concerned and to the character of the offence. 26. The relevant statistical data, recent amendments to the Code of Criminal procedure designed to streamline criminal proceedings and references to the relevant Council of Europe materials can be found in the Court’s judgment in the case of Kauczor (see Kauczor v. Poland, no. 45219/06, §§ 27-28 and 30-35, 3 February 2009).