CASE OF MIAŻDŻYK v. POLAND
Violation of Article 2 of Protocol No. 4 - Freedom of movement-{general} (Article 2 para. 1 of Protocol No. 4 - Freedom of movement);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Zdravka Kalaydjieva
6. The applicant was born in 1950 and lives in Poznań. 7. On 19 November 2004 the applicant was arrested and subsequently placed in detention. 8. 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. 9. 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. 10. 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. 11. On 28 March 2008 the court decided that the trial should be restarted. 12. 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. 13. 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. 14. All the appeals lodged by the applicant’s lawyer were unsuccessful; the decisions refusing to lift the preventive measure were all upheld. 15. 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. 16. 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.” 17. On 27 January 2011 the court decided again that the trial should be restarted. 18. 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. 19. 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. 20. The proceedings are pending before the first-instance court. 21. 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). 22. 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 ...” 23. 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 ...” 24. 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”.