Published on 4 October 2021

FIRST SECTION

Application no. 63277/19 Łukasz ZAKRZEWSKI against Poland lodged on 27 November 2019 communicated on 15 September 2021

STATEMENT OF FACTS

The applicant, Mr Łukasz Zakrzewski, is a Polish national, who was born in 1990 and lives in Zakrzów. He is represented before the Court by Ms J. Hellebrandt, residing in Polska Cerekiew.

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

On 22 November 2016 the applicant’s home, where he had lived with his brother and mother, was raided by police in search of narcotics. During the search over five kilograms of marijuana was discovered. The applicant stated that he had found the narcotics in the forest and brought them home. Later, he withdrew those statements saying that he had made them to protect a member of his family (he refused to reveal his or her identity) and refused to testify any further. Prior to his arrest he had no criminal record.

On 23 May 2017 the Opole Regional Court ( Sąd Okręgowy ) convicted him of possession of large amounts of narcotics and, while applying extraordinary leniency ( nadzwyczajne złagodzenie kary ), sentenced him to two years’ imprisonment. The court noted that he had an impeccable reputation prior to his arrest and that there was no proof that he had attempted to distribute the drugs, thus punishing him with even the most lenient penalty prescribed for such crime (three years of deprivation of liberty) would be flagrantly disproportionate.

On 6 October 2017 the Wrocław Court of Appeal ( Sąd Apelacyjny ) altered the first-instance judgment by additionally imposing punitive damages ( nawiązka ) in the amount of 1,000 Polish zlotys (PLN) (approximately 250 euros (EUR)), which were to be paid to the Wrocław drug rehabilitation facility.

On 26 February 2018 the applicant began to serve his prison sentence at the GÅ‚ubczyce Prison.

On 22 March 2018 the Minister of Justice – Prosecutor General ( Minister Sprawiedliwości – Prokurator Generalny ) lodged a cassation appeal ( kasacja ) with the Supreme Court ( Sąd Najwyższy ). He argued that the penalty imposed on the applicant was flagrantly too lenient ( rażąca niewspółmierność kary ), which was a result of a manifestly unreasonable application of extraordinary leniency.

On 10 January 2019 the Director of the Głubczyce Prison requested the Opole Regional Court to release the applicant on parole ( warunkowe przedterminowe zwolnienie ). In his motion he indicated that the applicant’s behaviour had been very good and that his social and criminological prognosis was positive. On 13 February 2019 the court released the applicant on parole, with the probation period to last for two years. It ordered him to regularly report to a parole officer ( kurator sądowy ) and to undertake employment.

Following his release, he was working two jobs – as a driver during weekends and as a welder in Austria. He was in constant contact with his parole officer, who had positively evaluated his return to society.

On 28 March 2019 the Supreme Court quashed the judgment of 6 October 2017 and remitted the case for re-examination to the Wrocław Court of Appeal. It found that the application of extraordinary leniency had not been justified under the law. Consequently, it noted that the penalty imposed was flagrantly too lenient. The Supreme Court did not take note of the applicant’s release on parole.

On 23 May 2019 the Opole Regional Court quashed its decision of 13 February 2019 and discontinued the applicant’s parole proceedings. It held that due to the fact that the Supreme Court had quashed the final judgment of the Wrocław Court of Appeal, there was no longer any final judgment pursuant to which he could have served any penalty.

On 30 May 2019 the Wrocław Court of Appeal amended the judgment of the Opole Regional Court of 23 May 2017 and sentenced the applicant to three years’ imprisonment and a fine of PLN 500 (EUR 125). It upheld the imposition of punitive damages.

On 14 October 2019 the applicant was remanded in the Strzelce Opolskie Prison to serve the remainder of his penalty.

Article 60 of the Criminal Code, insofar as relevant, reads:

Ҥ 2. The court may also apply an extraordinary leniency in particularly justified cases, when even the lowest penalty stipulated for the offence in question would be incommensurate, and particularly:

(...)

2) taking into consideration the attitude of the perpetrator, particularly if he attempted to repair the damage or prevent the damage from occurring,

(...)

§ 6. The extraordinary leniency results in the imposition of a penalty below the lower statutory level, or the imposition of a penalty of lesser severity, in accordance with the following principles:

(...)

2) if the act in question constitutes a crime, the court shall impose a penalty of not less than one-third of the lower statutory level.”

Article 77 of that Code reads:

“§ 1. The court may conditionally release a person sentenced to the penalty of deprivation of liberty from serving the remainder of the penalty, only when his attitude, personal characteristics and situation, his way of life prior to the commission of the offence, the circumstances thereof, as well as his conduct after the commission of the offence, and while serving the penalty, justify the assumption that the perpetrator will after release respect the legal order, and in particular that he will not re-offend.”

Article 78 of that Code reads:

“§ 1. The convicted person may be conditionally released after serving at least half of the sentence.”

Article 82 of that Code reads:

“§ 1. If during the probation period and in the course of the six succeeding months, the conditional release has not been revoked, the sentence shall be considered to have been served at the time of the conditional release.”

Article 523 of the Code of Criminal Procedure, insofar as relevant, reads:

Ҥ 1. Cassation appeal may be lodged only on the grounds of violations listed in Article 439 or another flagrant breach of law, if it might have had a significant impact on the content of the judgement. Cassation appeal may not be lodged only because of incommensurability of the penalty.

§ 1a. The limitation referenced to in the second sentence of § 1 does not apply to a cassation appeal lodged by the Minister of Justice – the Prosecutor General in proceedings concerning a charge of felony (zbrodnia).”

Article 538 of that Code, insofar as relevant, reads:

“§ 1. Upon quashing the judgment the execution of the penalty shall cease and the penalty already served shall be included within the term of the new penalty, in the event that the defendant is later convicted again.”

COMPLAINT

The applicant complains under Article 4 § 1 of Protocol No. 7 to the Convention that he is in fact serving a second penalty for the same offence, despite having been released from prison on parole and having complied with all its conditions.

QUESTIONS TO THE PARTIES

1. Did the applicant have a fair hearing in the determination of the criminal charge against him, in accordance with Article 6 § 1 of the Convention? In particular, was the requirement of legal certainty complied with (see Nikitin v. Russia , no. 50178/99, §§ 55 – 57, 20 July 2004)?

2. Does Article 4 § 1 of Protocol no. 7 apply in the present case (see Mihalache v. Romania [GC], no. 54012/10, 8 July 2019; Bratyakin v. Russia (dec.), no. 72776/01, 9 March 2006; Nikitin (cited above); Sergey Zolotukhin v. Russia [GC], no. 14939/03, 10 February 2009)?

3. If so, has the applicant been punished twice for the same offence, as prohibited by Article 4 § 1 of Protocol No. 7? Reference is made to the fact that following his imprisonment and release on parole, the final conviction was altered and the applicant had to return to prison.