Information Note on the Court’s case-law No. 148

January 2012

Miażdżyk v. Poland - 23592/07

Judgment 24.1.2012 [Section IV]

Article 2 of Protocol No. 4

Article 2 para. 1 of Protocol No. 4

Freedom of movement

Order prohibiting French national leaving Poland during criminal proceedings lasting for over five years: violation

Facts – In November 2004 the applicant was detained in Poland on charges of running an organised criminal group and numerous counts of fraud, theft and handling of stolen goods. A year later he was released on bail and ordered not to leave the country for an indefinite period. His passport was confiscated by the authorities. His lawyer made nine requests for the measure to be lifted, on account of the applicant’s poor health and lack of contact with his family, who lived in France. Those requests were dismissed on the grounds that allowing the applicant to leave the country might impair the proper conduct of the criminal proceedings. Finally, in January 2011 the preventive measure was lifted and the applicant left for France. He appeared at subsequent court hearings in Poland and ultimately obtained the court’s agreement for the proceedings to continue in his absence. At the date of the European Court’s judgment, the proceedings were still pending at first instance.

Law – Article 2 of Protocol No. 4: The Court had previously decided a number of cases against Italy concerning prohibitions on leaving one’s place of residence. In one of those cases, Luordo , the Court found such a preventive measure disproportionate because the bankruptcy proceedings had lasted over fourteen years. In the applicant’s case, the preventive measure was applied for a period of five years and two months. However, the duration of the restriction could not be taken as the sole basis for determining whether a fair balance had been struck between the general interest in the proper conduct of the criminal proceedings and the applicant’s right to freedom of movement. It was to be noted that for the entire duration of the preventive measure no first-instance judgment had been given in the applicant’s case and that the factual and organisational complexity of the case could not justify the application of the measure throughout the whole proceedings. Moreover, the applicant was a French national and his family and business had been based in France. His situation could therefore not be compared to a restriction of an individual’s freedom of movement within his or her own country. Lastly, once the preventive measure was finally lifted, the Polish courts agreed to continue the proceedings in the applicant’s absence. In such circumstances, the restriction on his freedom of movement for a considerable amount of time had been disproportionate.

Conclusion : violation (unanimously).

Article 41: EUR 4,000 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.

(See also Luordo v. Italy , no. 32190/96, 17 July 2003; Prescher v. Bulgaria , no. 6767/04, 7 June 2011; and Riener v. Bulgaria , no. 46343/99, 23 May 2006)

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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