Published on 19 July 2021

FIRST SECTION

Application no. 53658/20 R.N. against Poland lodged on 19 November 2020 c ommunicated on 29 June 2021

STATEMENT OF FACTS

The applicant, Ms R. N., is a Polish national, who was born in 1966 and lives in Banie .

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

On 9 July 2018 the applicant went shopping to a local supermarket, where she found a wallet lying on the floor. Having asked a bystander whether the wallet was his – to which he replied in the negative– she put it in her handbag with the aim to take it to a police station. On her way out, she inquired again about its owner in the checkout area and handed the wallet to M., who claimed it as his. Neither the applicant, nor M. checked the contents of the wallet.

When M. tried to pay for his groceries, he discovered that his ID card, driving licence, credit card and cash were missing. He reported this fact to the supermarket ’ s manager, with whom he reviewed CCTV tapes and noticed the applicant intensively searching for something in her handbag, just before pulling out the wallet.

On the following day M. reported the theft at the local police station. He stated that he suspected the applicant, whom he believed had emptied the wallet before returning it.

On 25 July 2018 the Gryfino District Prosecutor ( Prokurator Rejonowy ) ordered the applicant ’ s home to be searched. The search did not uncover any useful evidence.

On 3 July 2019 the Gryfino Police drafted a request for imposition of a penalty ( wniosek o ukaranie ), accusing the applicant of petty offence ( wykroczenie ) theft of M. ’ s wallet and cash. The value of stolen items was indicated as 350 Polish zlotys (approximately 77 euros (EUR). On an unspecified date the request was lodged with the Gryfino District Court ( Sąd Rejonowy ).

On 9 January 2020 the Gryfino District Court acquitted the applicant of the petty offence charge. It held that the evidence was inconclusive as to the applicant ’ s guilt and found her statements credible and convincing. It further held that women often had trouble finding small objects in their handbags and nothing suggested that the applicant could have removed the contents of the wallet using only one hand. The police did not appeal against that judgment, which became final shortly thereafter.

On 24 March 2019 the Gryfino Police drafted a bill of indictment against the applicant, accusing her of the theft of M. ’ s credit card, his ID and driv ing license. The bill of indictment was approved by the Gryfino District Prosecutor and lodged with the Gryfino District Court on an unspecified date.

On 2 September 2019 that court convicted the applicant of theft and sentenced her to a fine of 1,000 Polish zlotys (EUR 220). In its statement of reasons, the court made an explicit reference to the petty offence proceedings and determined that the applicant ’ s main purpose had been to steal the money. It further held that the documents and credit card had been removed by her only inadvertently. The court found her statements not to be credible and concluded that she had removed the wallet ’ s contents while making herself look as if she had been searching for something else in her handbag.

On 2 October 2019 the applicant ’ s lawyer appealed against that judgment to the Szczecin Regional Court ( Sąd Okręgowy ), arguing incorrect assessment of evidence and violation of the in dubio pro reo principle.

On 9 June 2020 the Szczecin Regional Court upheld the judgment of 2 September 2019. It held that the evidence pointed to a fact that the applicant had stolen M. ’ s credit card and documents, which she must have removed before returning the wallet to M. It further stated that the petty offence proceedings were beyond its cognition, which did not concern charges of theft of wallet and cash.

A cassation appeal was not available.

Article 17 § 1 of the Code of Criminal Procedure (“CCP”) ( kodeks postępowania karnego ), in so far as relevant, reads:

“ § 1. Criminal proceedings shall not be instituted, or, if previously instituted, shall be discontinued, when:

(...)

7) criminal proceedings concerning the same act committed by the same person have been validly concluded or, if previously instituted, are still pending.”

Article 437 § 2 of the CCP reads:

“ § 2. The appellate court shall amend the decision subject to review, deciding differently as to the merits, or quash it and discontinue the proceedings; in other cases it shall quash the decision and remit the case to the first instance court for re-examination.”

Article 439 § 1 of the CCP, in so far as relevant, reads:

“ § 2. Irrespective of the boundaries of appeal and raised arguments and effect of the violation on the contents of the decision, the appellate court at its session shall quash the decision subject to review if:

(...)

8) it was delivered despite the fact that criminal proceedings concerning the same act of the same person had already been finally concluded.”

Article 278 § 1 of the Criminal Code ( kodeks karny ) reads:

“ § 1. Whoever, with the purpose of appropriating, wilfully takes someone else ’ s movable property shall be subject to the penalty of deprivation of liberty for a term of between 3 months and 5 years.”

Article 119 § 1 of the Petty Offence Code ( kodeks wykroczeń ) reads:

“ § 1. Whoever steals or wilfully appropriates someone else ’ s movable property, if its value does not exceed 500 Polish zlotys, shall be subjected to the penalty of detention, limitation of liberty or a fine.”

COMPLAINT

The applicant complains under Article 6 § 1 of the Convention that she was tried for an offence of which she had already been finally acquitted.

QUESTION TO THE PARTIES

Has the applicant been tried twice for the same offence in the territory of the respondent State, as prohibited by Article 4 § 1 of Protocol No. 7 (see Sergey Zolotukhin v. Russia [GC], no. 14939/03, ECHR 2009)?