Communicated on 7 September 2020 Published on 28 September 2020

FIRST SECTION

Application no. 568/19 Sebastian MYÅšLIWIEC against Poland lodged on 24 December 2018

STATEMENT OF FACTS

The applicant, Mr Sebastian Myśliwiec , is a Polish national, who was born in 1975 and lives in Czestochowa. He is represented before the Court by Mr C. Dolivet , a lawyer practising in Paris.

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

On 1 December 2016 the Częstochowa Regional Prosecutor ( Prokurator Okręgowy ) charged the applicant with setting up and directing an organised criminal group, whose aim was to commit tax offences (in particular, participation in the so-called “VAT carousel”). He was also charged with illegal possession of a firearm, extortion of value-added tax returns from the State Treasury, filing false declarations in tax proceedings and several counts of issuing inaccurate invoices.

On 30 March 2017 the Częstochowa District Court ( Sąd Rejonowy ) ordered the applicant ’ s detention on remand from the date of his arrest. The court relied on the risk of obstruction of justice and likelihood of a severe penalty, to which the applicant would be liable – ten to fifteen years ’ imprisonment. The applicant ’ s lawyer appealed that decision. His appeal was dismissed by the Częstochowa Regional Court ( Sąd Okręgowy ) on 11 May 2017.

Since the applicant had resided in the United Kingdom, a European Arrest Warrant was issued against him and his request for issuance of safe conduct ( list żelazny ) was denied. On 9 August 2017 the applicant travelled to Poland on his own initiative and turned himself in to the authorities. He was detained on remand on the same day.

On 22 August 2017 the applicant was questioned. He pleaded not guilty to all charges.

On 25 August 2017 the Częstochowa Regional Court extended his detention on remand until 7 November 2017. The court held that the risk of obstruction of justice continued to exist due to the very fact that the applicant had been charged with leading an organised criminal group. The court also held that the applicant posed a serious risk of absconding, even though he had turned himself in on his own initiative. In the court ’ s view, the applicant ’ s network of contacts and his financial status would allow him to evade the authorities. The applicant ’ s lawyer appealed against that decision; however, the appeal was dismissed on an unspecified date.

On 3 November 2017 the Częstochowa Regional Court again extended the applicant ’ s detention on remand, subject to a proviso that if bail in the amount of 1.000.000 Polish zlotys (PLN) (250.000 euros (EUR)) be posted by 17 November 2017, he would be released. On 7 November 2017 the Częstochowa Regional Prosecutor requested the court to suspend its order until it had become final. The court granted the prosecutor ’ s request and suspended the order. On 9 November 2017 the same prosecutor issued an injunction against the applicant, by establishing security on his properties for payment of a potential fine and forfeiture of assets, which might be adjudicated in his case. The total value of the secured assets was PLN 5.713.884 (EUR 1.428.471). The applicant ’ s appeal against the injunction was dismissed by the Katowice Court of Appeal on 14 February 2018.

On 26 January 2018 the Częstochowa Regional Court again extended the applicant ’ s detention for a further three months, that is until 7 May 2018. It relied on a high probability that the applicant had committed the crimes with which he had been charged and general risk of his obstructing the proceedings, due to the fact that he had been charged with participation in an organised criminal group. The court also relied on a possibility of the applicant ’ s absconding, due to the fact that he had previously resided in the United Kingdom and was wanted under a European Arrest Warrant.

The applicant appealed. His appeal was dismissed by the Katowice Court of Appeal on 14 February 2018,

On 27 April 2018 the Częstochowa Regional Court extended the applicant ’ s detention for a further three months, that is until 4 August 2018. The court relied on the high probability that the applicant had committed the offences with which he had been charged. It found that only the most severe preventive measure could secure the proper course of the proceedings. This finding was justified by the risk that the applicant might abscond since he had lived abroad, had the necessary contacts and financial means. The court further found that the applicant might obstruct the proceedings; in this respect, it relied on the fact that the applicant had tried to hide some documents that could serve as evidence in the proceedings. Lastly, the court referred to the severe penalty to which the applicant was liable.

The applicant ’ s appeal against the decision of 27 April 2018 was dismissed by the Katowice Court of Appeal on 30 May 2018.

On 26 July 2018 the Katowice Court of Appeal, relying on the same grounds as previously, again extended the applicant ’ s detention until 24 September 2018. The court also held that although the applicant had returned to Poland of his own accord, rather than under the European Arrest Warrant, his network of contacts and financial status made it all the more possible for him to try to abscond and hide from the authorities abroad.

On 21 August 2018 the Katowice Court of Appeal dismissed the applicant ’ s appeal against the decision extending his detention.

The applicant failed to submit copies of further decisions extending his detention. However, on 6 March 2020 his lawyer informed the Court that as of 29 March 2019 the applicant remained in detention on remand. On that date, the Częstochowa Regional Court remitted the bill of indictment lodged against the applicant to the Regional Prosecutor ’ s Office. It found that additional enquiries had to be made and some of the charges needed to be reformulated. In particular, the court ordered the prosecutor to obtain financial records from banks, to appoint expert witnesses, who would verify data stored in computer systems and confront some of the applicant ’ s testimonies with ones of other witnesses.

On an unspecified date after 29 March 2019, the applicant was released from detention.

Consequently the applicant ’ s detention on remand (as of 29 March 2019) had lasted for one year, seven months and nineteen days.

The applicant is married to M., who resides in the United Kingdom with the couple ’ s three children: twin brothers born in 2012 and a son born in 2015. M. is also suspected of participating in the criminal organisation allegedly directed by the applicant. Apparently, M. was placed under house arrest, pending the hearing concerning her extradition to Poland, pursuant to a European Arrest Warrant.

On 28 November 2017 the applicant ’ s lawyer lodged a request with the prosecutor, requesting that the applicant be allowed to communicate with his minor children (five and two years old respectively, at that time). The lawyer argued that both the applicant and his sons suffered from being apart, with no possibility to communicate with each other.

On 11 December 2017 the Czestochowa Regional Prosecutor denied the request on the grounds that the children were residing with their mother, who was a suspect in the same proceedings and the applicant could try to influence her testimony. It is unclear whether the applicant appealed against the refusal.

On 14 May 2018, in his appeal against an extension of his detention on remand of 27 April 2018, the applicant indicated that he and his sons suffered from lack of contact with each other and stated that he feared further deterioration of his family life. On 26 July 2018 the Katowice Court of Appeal dismissed his appeal. It briefly stated that it did not determine any negative conditions of prolonged detention to be in place, especially in the light of the penalty, to which the applicant would likely be liable (minimum sentence of three years ’ imprisonment).

On 2 August 2018 permission to communicate with his children was denied again on the same grounds. The prosecutor indicated that the children could visit their father personally in the remand centre or write him a letter. On 9 August 2018 the applicant ’ s lawyer unsuccessfully appealed against the refusal.

The applicant provided the Court with letters from his sons ’ teacher and a psychological evaluation performed by the UK-based ACCESS service, which attributed one of his son ’ s academic and behavioural problems to the absence of contact with the applicant.

The relevant domestic law and practice concerning detention on remand ( tymczasowe aresztowanie ), the grounds for its extension, release from detention and rules governing other so-called “preventive measures” ( środki zapobiegawcze ) are set out in the Court ’ s judgments in the cases of Gołek v. Poland (no. 31330/02, §§ 27-33, 25 April 2006); Celejewski v. Poland (no. 17584/04, §§ 22-23, 4 May 2006); and Kauczor v. Poland (no. 45219/06, §§ 25-33, 3 February 2009).

Other relevant domestic law and practice concerning family visits is outlined in the judgment Gradek v. Poland , no. 39631/06, §§ 20 ‑ 24, 8 June 2010.

Article 217c of the Code of Execution of Criminal Sentences, in so far as relevant, provides:

Ҥ 1. A detainee on remand:

1) may use a phone ... subject to restrictions placed in §§ 2 and 3, and after having obtained a consent of an organ conducting the proceedings;

2) may not use other means of communication (fixed or wireless).

§ 2. The organ conducting the proceedings issues an order with consent for use of a phone, unless there is a reasonable concern, that it will be used for:

1) an illegal obstruction of criminal proceedings;

2) commission of a crime, in particular inciting to a crime.

§ 3. If a detainee on remand is subject to authority of several organs conducting the proceedings, each and every one of these organs must grant its consent, unless they agree otherwise.”

COMPLAINTS

The applicant complains under Article 5 § 3 of the Convention about the excessive length of his detention on remand and the imposition of a security on his properties, which effectively prevented him from posting bail.

He also complains under Article 8 of the Convention about the deprivation of personal contact with his sons for a significant period of time.

QUESTIONS TO THE PARTIES

1. Was the length of the applicant ’ s pre-trial detention in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention?

2. Were the conditions imposed on the applicant to ensure his appearance at the trial in conformity with the requirements of Article 5 § 3 of the Convention? In particular, reference is made to the fact that after the applicant was allowed to post bail, the prosecutor secured a significant part of the applicant ’ s estate, allegedly making it impossible for the applicant to post bail.

3. Has there been a violation of the applicant ’ s right to respect for his family life, contrary to Article 8 of the Convention? Reference is made to the fact that during the applicant ’ s detention, he was not allowed telephone contact with his minor children, who lived abroad.