Published on 4 October 2021

FIRST SECTION

Application no. 46971/20 Salim TOUAHRI against Poland lodged on 6 October 2020 communicated on 13 September 2021

SUBJECT MATTER OF THE CASE

The application concerns alleged shortcomings in the judicial review of the applicant’s habeas corpus appeal and thus, raises an issue under Article 5 § 4 of the Convention.

The applicant was charged with being a member of an organised criminal group and trading drugs. He appointed three lawyers to represent him in the proceedings.

On 19 February 2020 the applicant was detained on remand.

On 12 May 2020 the Cracow Regional Court extended the applicant’s detention.

On 29 May and 1 June 2020, the applicant’s lawyers lodged three separate appeals against this decision. The first lawyer raised the following objections to the applicant’s detention: (i) there was no risk that the applicant would abscond; (ii) there was no risk that the applicant would attempt to induce witnesses or co‑defendants to give false testimony or to obstruct the proper course of proceedings; (iii) the fact that the applicant had been charged with a serious offence for the commission of which he might be liable to a long-term prison sentence was, in and of itself, an insufficient reason to extend his detention; (iv) bail in the amount of PLN 100,000, police supervision or prohibition on leaving the country, would be sufficient alternative preventive measures; and (v) the applicant’s wife had suffered a miscarriage and was in a critical psychological and physical shape, and thus, required the applicant’s presence and support. The second lawyer raised arguments: (i), (ii) and (iii). In addition, he argued that: (vi) in light of the evidence known to the defence there was no reasonable suspicion against the applicant; and (vii) the court had extended the applicant’s detention referring to some items of evidence which had not been shared with the defence. The third lawyer raised arguments: (i), (ii), (iii), (iv) and (vi). With regards to the latter point, the lawyer argued that the incriminating testimony given by a certain co-accused, K.K., was unreliable.

On 16 June 2020 the Cracow Court of Appeal held a hearing, during which it was revealed that despite the fact that the three appeals had been lodged within the statutory time-limit, only the one of the first lawyer had been included in the case-file. The applicant’s lawyers asked the court to adjourn the proceedings and to jointly examine all three appeals on a later date. The domestic court dismissed the motion, holding that the domestic law allowed to hear separately multiple appeals against the same decision prolonging detention on remand.

On 16 June 2020 the Cracow Court of Appeal upheld the decision of 12 May 2020. The court relied on the following grounds: the evidence comprising testimony of three witnesses, including K.K., showed that there was a reasonable suspicion against the applicant and his co-accused (vi) – the lack of previous convictions in respect of the applicant or his record of negative drugs tests did not undermine that conclusion; there was a real risk that the applicant would attempt to induce witnesses or co‑defendants to give false testimony, as he had not pleaded guilty (ii); there was a real risk that the applicant would go into hiding, as he had contacts abroad and because he had been suspected of acting in an organised criminal gang (i); the applicant had been charged with a serious offence for the commission of which he might be liable to a long-term prison sentence (iii); and alternative preventive measures would not be sufficient (iv). In addition, the court held that the applicant’s wife received adequate care from her family and doctors (v).

On 25 June 2020 another panel of the Cracow Court of Appeal held a hearing with a view to examine the remaining two appeals against the decision of 12 May 2020. The court, without elaborating on the grounds raised in each appeal, decided that, in the light of the fact that the decision under appeal had already been upheld on 16 June 2020, the case was res iudicata . As a result, the domestic court discontinued the proceedings concerning the two appeals in question.

QUESTION TO THE PARTIES

In the light of the fact that on 16 June 2020 the Cracow Court of Appeal reviewed the applicant’s detention on remand having regard to one out of three appeals lodged by the applicant’s defence, as well as that on 25 June 2020 another panel of the Cracow Court of Appeal declined to examine the remaining two appeals, was the procedure by which the applicant sought to challenge the lawfulness of his pre-trial detention in conformity with Article 5 § 4 of the Convention?