Published on 4 October 2021

FIRST SECTION

Application no. 38923/19 Andrew Peter SMITH against Poland lodged on 23 July 2019 communicated on 15 September 2021

STATEMENT OF FACTS

1. The applicant, Mr Andrew Peter Smith, is a British national, who was born in 1959 and lives in Southampton. He is represented before the Court by Mr B. Zygmont, a lawyer practising in Warsaw.

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

3. The prosecuting authorities conducted an investigation into the issuing of bonds by a company registered in Poland in which the applicant was the chairman of the board. On 4 December 2017 the prosecutor issued a decision charging the applicant, in his absence, with two counts of aggravated fraud in connection with the sale of the bonds to a number of individuals. The prosecutor sent summonses to the applicant’s address in Poland, but received no response since the applicant had returned to the United Kingdom in January 2017.

4. On 23 April 2018 the Warsaw-Śródmieście District Court, on application from the prosecutor, ordered that the applicant be remanded in custody for a period of three months from the day of his arrest. On 10 May 2017 the prosecutor issued a wanted notice for the applicant. On 29 May 2018 the Warsaw Regional Court issued a European arrest warrant in respect of the applicant.

5. On 30 January 2019 the applicant’s lawyer lodged an interlocutory appeal against the detention order of 23 April 2018.

6. On 10 July 2019 the Warsaw Regional Court held a hearing. It dismissed several procedural requests of the applicant’s lawyer. The applicant’s lawyer raised an additional argument that the detention order had not included a proviso that the applicant should be promptly brought before a judge upon his arrest. However, the Regional Court noted that the inclusion of such a proviso had not been necessary. On 10 July 2019 the Warsaw Regional Court dismissed the interlocutory appeal and upheld the detention order.

7. On 25 July 2019 the applicant was surrendered to the Polish authorities and placed at the Warsaw-Białołęka Detention Centre.

8. On 2 August 2019 the prosecutor informed the applicant of the charges against him and questioned him. The prosecutor filed an application with the Warsaw-Śródmieście District Court requesting a three-month extension of the applicant’s detention.

9. On 3 August 2019, that is nine days after he had been surrendered to the Polish authorities, the applicant was brought before a judge of the Warsaw-Śródmieście District Court. In the decision of the same day, the Warsaw-Śródmieście District Court upheld the detention order of the same court of 23 April 2018. The court noted that the applicant had been detained on remand on the basis of the detention order of 23 April 2018 and that there was no need to rule again on the same issue. It observed that despite the fact that the applicant had been placed in custody on 25 July 2019, the prosecutor had filed an application under Article 279 § 3 of the CCP only on 2 August 2019 and thus failed to comply with the promptness requirement of that provision. However, the court considered that, in any event, the applicant had been detained on the basis of a judicial decision and therefore the application of that preventive measure could not have been questioned.

Article 279 § 3 of the Code of Criminal Procedure reads in so far as relevant:

“In the event of the apprehension and arrest of a person wanted under a wanted notice, he/she shall be brought immediately to the court which issued the decision on his or her detention in order for the court to decide whether to maintain, vary or revoke this measure, unless the prosecutor, after questioning the detained person, has already varied the preventive measure or revoked the detention order ...”

COMPLAINT

10. The applicant complains under Article 5 § 3 of the Convention that he was not brought promptly before a judge following his surrender to the Polish authorities.

QUESTION TO THE PARTIES

Was the applicant brought promptly before a judge, as required by Article 5 § 3 of the Convention following his surrender to the Polish authorities?