Communicated on 16 April 2020 Published on 2 June 2020

FIRST SECTION

Application no. 52041/18 Ludwik KROMER against Poland lodged on 29 October 2018

STATEMENT OF FACTS

The applicant, Mr Ludwik Kromer, is a Polish national, who was born in 1961 and lives in Gdańsk . He is represented before the Court by Ms O. Kromer, also residing in Gdańsk .

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

On 13 November 2013 the Gdańsk-Śródmieście District Prosecutor ( Prokurator Rejonowy ) opened an inves tigation into the activity of a commercial company, B. The company ’ s activity was focused on granting loans to people without a credible financial record, who were ineligible to apply effectively for a loan from a bank. The applicant was never employed at B., but provided financial and accounting services to the company as an independent contractor.

On 26 January 2015 the applicant was detained by the police on charges of fraud on a large scale. Under Article 286 § 1 in conjunction with Article 294 § 1 of the Criminal Code, the crime carries a maximum penalty of up to fifteen years ’ imprisonment. He was also charged with aiding in the illegal destruction of documents, for which the penalty is a fine, limitation of liberty, or imprisonment for up to two years. Lastly, the applicant was also charged with making false statements to the court conducting the National Commercial Register ( Krajowy Rejestr Sądowy ) – a crime which carries a maximum penalty of up to three years ’ imprisonment.

The following day the Gdańsk District Court ( Sąd Rejonowy ) ordered that the applicant be detained on remand for the period of three months, because of the likelihood of a severe penalty being imposed on him and the risk of his obstructing the proceedings. The applicant ’ s detention was prolonged numerous times by the Gdańsk Regional Court ( Sąd Rejonowy ) and the Gdańsk Court of Appeal ( Sąd Apelacyjny ). The applicant provided the Court with a list of forty-three judicial decisions taken by the above courts in relation to his pre-trial detention. The applicant appealed against all of these decisions. All his appeals were dismissed.

Prior to his detention the applicant had never had a criminal record. For his activities in opposition against the communist regime in Poland, he had been decorated with the Chevalier Cross of the Polonia Restituta Order.

On 14 March 2017 the Gdańsk Court of Appeal decided to release the applicant on bail and set security in the amount of PLN 300, 000 (EUR 75.000). The court did not grant him leave to mortgage an apartment belonging to his in-laws. Consequently, the applicant was unable to secure a loan and was unable to post bail for 22 months.

On 14 October 2017 the prosecutor lodged a bill of indictment against the applicant with the Gdańsk Regional Court. The first hearing was scheduled for 5 April 2018 (i.e. almost six months after the bill of indictment had been lodged).

On 28 November 2018 the Gdańsk Court of Appeal prolonged his detention until 31 January 2019. The applicant ’ s appeal was dismissed on 20 December 2019 by the same court. In its reasoning the court stressed that the applicant still faced a potentially lengthy sentence, which in turn convinced the court that there were still valid grounds for his detention.

On 28 January 2019 the Gdańsk Regional Court lifted the applicant ’ s detention with the effect from 31 January 2019, 6:03 a.m. He was ordered to report to a police station twice a week, inform the court about any travel outside his home town, and was prohibited from leaving Poland, contacting the witnesses and conducting economic activity associated with financial services.

The applicant was released from the Gdańsk Remand Center in the late afternoon on 31 January 2019. The Remand Centre explained that it was technically impossible to discharge the applicant at such an early hour.

The proceedings in the applicant ’ s criminal case are currently pending before the Gdańs k Regional Court under case no. IV K 221/17.

Until 1 July 2015, the Code on Execution of Criminal Sentences prohibited the inmates detained on remand to use a phone or any other means of wired or wireless communication. Following an amendment, an inmate could have applied to the prosecutor to obtain his or her permission to make a phone call to a specific person. Such permission could have been refused, if it would cause a risk of obstructing justice or committing another crime.

On an unspecified date in July 2015 the applicant applied to the prosecutor for permission to make phone calls to his family. On 31 July 2015 the prosecutor consented only to a phone call from the applicant to his lawyer. On 12 and 13 August 2015 the applicant and his lawyer appealed against the decision. On 11 September 2015 the prosecution office acknowledged receipt of the appeal.

On 9 September 2015 the applicant again applied for permission to make a phone call to his family. On 15 October 2015 the prosecution office rejected the application. The applicant lodged an appeal against that decision, whose receipt was acknowledged by the prosecution office on 19 November 2015.

On 27 October 2015 the Gdańsk Prosecutor of Appeal ’ s Office informed the applicant that his appeals of 12 and 13 August 2015 were rejected by a decision given on 23 September 2015.

On 25 November 2015 the same authority informed him that his ap peal of 15 October 2015 had been rejected.

Upon lodging the bill of indictment (i.e. on 14 October 2017), the permission for a telephone conversation with the applicant ’ s lawyer expired.

On 5 December 2017 the Gdańsk Regional Court dismissed the applicant ’ s request for permission to be visited by his wife. The court reasoned that his wife was a witness in the proceedings, and because those proceedings had not yet started before the court, there was a risk that their meeting would result in obstruction of justice. The applicant ’ s appeal against the refusal was dismissed by the same court on 21 December 2017.

On 25 July 2018 the applicant applied to the GdaÅ„sk Regional Court for permission to make phone calls to his daughter, wife, and mother ‑ in ‑ law, as well as his friend and proxy.

On 2 August 2018 the court refused the request. The applicant lodged an appeal which was dismissed by the same court on 13 September 2018. Both courts reasoned that there were no extraordinary circumstances (such as accident, sickness or death of a family member), which would justify the granting of such permission.

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).

The 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 permission 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 permission 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 permission, unless they agree otherwise.”

COMPLAINTS

The applicant complains under Article 5 § 3 of the Convention about the excessive length of his detention on remand. He also complains that the domestic courts did not take the necessary care in fixing bail in his case and that, given the amount required, he was unable to post it.

Under Article 8 of the Convention he also complains about the deprivation of personal and even phone contact with his family for a significant period of time.

QUESTIONS TO THE PARTIES

1. 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, did the domestic courts take the necessary care in fixing appropriate bail for the applicant? Was the amount of bail required in the applicant ’ s case duly justified (see Gafà v. Malta , no. 54335/14, § 70, 22 May 2018)?

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

3. Has there been a violation of the applicant ’ s right to respect for his private and family life or correspondence, contrary to Article 8 of the Convention? Reference is made to the fact that for a period of the applicant ’ s detention, he was not allowed to personal and/or telephone contact with his immediate family.