I correctly predicted that there was a violation of human rights in LAKATOSZ v. POLAND.
Information
- Judgment date: 2022-02-03
- Communication date: 2020-09-18
- Application number(s): 27318/19
- Country: POL
- Relevant ECHR article(s): 5, 5-3, 5-4, 6, 6-3-b
- Conclusion:
Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review) - Result: Violation SEE FINAL JUDGMENT
JURI Prediction
- Probability: 0.689031
- Prediction: Violation
Consistent
Legend
Communication text used for prediction
The applicant, Mr Arkadiusz Łakatosz, is a Polish national, who was born in 1968.
He was detained in the Poznań Detention Centre until at least 1 March 2020.
He is represented before the Court by Mr P. Sołtysiak, a lawyer practising in Poznań.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On an unspecified date the applicant was charged with four counts of large-scale fraud.
Allegedly, the applicant had acted in an organised criminal group in four different counties, namely Switzerland, Germany, Austria and Poland.
In the course of the investigation three out of four charges originally laid against the applicant were dropped.
On the other hand, the applicant was charged with new offences.
The final bill of indictment referred to nine charges against the applicant.
On 5 February 2017 the Warszawa–Mokotów District Court (Sąd Rejonowy) set a bail in the amount of 300,000 Polish zlotys (PLN) (approximately 75,000 euros (EUR)).
Additionally, the applicant was prohibited from leaving the country and was subjected to police supervision.
The Warsaw Regional Prosecution Office (Prokuratura Okręgowa) appealed against this decision.
On 16 February 2017 the Warsaw Regional Court (Sąd Okręgowy) altered the challenged decision and detained the applicant on remand for three months starting from the date of his arrest.
The applicant went into hiding.
He was arrested on 16 March 2017.
On 27 March 2017 the Warszawa–Mokotów District Court upheld the applicant’s detention.
On 5 May 2017 the Warsaw Regional Court dismissed the applicant’s appeal.
In the course of the investigation the applicant’s detention was extended several times by the Warsaw Regional Court (on 12 June, 16 August, 16 November 2017, and on 12 January 2018) and by the Warsaw Court of Appeal (on 9 March and 5 June 2018).
The applicant appealed against all the decisions extending his pre-trial detention.
All his appeals were dismissed by second-instance courts.
The domestic courts based their decisions on a significant probability that the applicant had committed the offences in question and on the fact that he faced a severe penalty.
Moreover, the fact that he had been accused of committing offences within an organised criminal group and some of his alleged accomplices had been his family members, was considered as factors increasing the risk of obstruction of the proceedings.
The courts referred to the substantial body of evidence that had to be obtained and to the complicated international nature of the case.
Finally, they emphasised that the applicant did not have a permanent place of residence and that at an early stage of the investigation he had gone into hiding.
The bill of indictment against the applicant was lodged with the Warsaw Regional Court on 27 August 2018.
On 6 September 2018 the Warsaw Regional Court extended the applicant’s detention until 5 January 2019.
On 18 September 2018 the Warsaw Regional Court remitted the bill of indictment to the prosecutor, holding that the case-file had not included various documents necessary to examine the case, inter alia, duly signed copies of different documents and notified translations, copies of court orders allowing for interception of telephone calls used in the course of the investigation, a testimony of one witness, an additional expert opinion and transcript of intercepted telephone calls.
On 19 December 2018 the Warsaw Court of Appeal dismissed the prosecutor’s appeal against that decision.
After the case had been remitted to the investigation stage, the applicant’s detention was extended by the Warsaw Court of Appeal on 22 October 2018, 4 January, 1 April, 3 July, 1 October and 27 November 2019.
On 27 November 2019 the applicant’s detention was extended until 1 March 2020.
The applicant’s lawyer has not provided the Court with information on whether the detention was extended beyond 1 March 2020 or whether the applicant was released.
The domestic courts continued to rely on previously invoked grounds for the detention.
On some occasions instead of providing relevant grounds for detention they partly referred to their previous decisions (the Warsaw Court of Appeal decisions of 18 February 2019, case no.
II AKz 65/19, and of 1 April 2019, case no.
II Akp 41/19).
The courts also stressed the fact that the applicant and his alleged accomplices were of Roma origin and had strong ties to the Roma community, which resulted in the risk of absconding if the applicant was released from detention.
Moreover, the courts referred to difficulties in finding a translator for the purposes of the investigation.
The applicant appealed against most of the decisions extending his pre-trial detention.
All of his appeals were dismissed by second-instance courts.
A new bill of indictment was lodged with the relevant domestic court on 19 November 2019.
The proceedings are pending before the first-instance court.
On 3 July 2019 the Warsaw Court of Appeal extended the applicant’s detention until 2 October 2019.
On 9 July 2019 the applicant appealed.
His appeal was dismissed by the same court acting as a second instance court on 13 November 2019, that is after the period of the original extension.
On 1 October 2019 the applicant’s detention was extended until 1 December 2019.
On an unspecified date the applicant appealed.
His appeal was examined on 27 November 2019.
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).
COMPLAINTS The applicant complains under Article 5 § 3 of the Convention of the unreasonable length of his detention on remand.
He further complains under Article 5 § 4 of the Convention that the domestic courts failed to examine “speedily” his appeals against the extension of his detention ordered by the Warsaw Court of Appeal on 3 July and 1 October 2019.
Judgment
FIRST SECTIONCASE OF ŁAKATOSZ v. POLAND
(Application no. 27318/19)
JUDGMENT
STRASBOURG
3 February 2022
This judgment is final but it may be subject to editorial revision. In the case of Łakatosz v. Poland,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
Péter Paczolay, President, Alena Poláčková, Davor Derenčinović, judges,and Liv Tigerstedt, Deputy Section Registrar,
Having regard to:
the application (no. 27318/19) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 10 May 2019 by a Polish national, Mr Arkadiusz Łakatosz, born in 1968 and detained in Poznań (“the applicant”) who was represented by Mr P. Sołtysiak, a lawyer practising in Poznań;
the decision to give notice of the complaints under Article 5 §§ 3 and 4 of the Convention to the Polish Government (“the Government”), represented by their Agent, Mr J. Sobczak, of the Ministry of Foreign Affairs, and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 11 January 2022,
Delivers the following judgment, which was adopted on that date:
SUBJECT-MATTER OF THE CASE
1. The applicant was detained in the course of the investigation which concerned large-scale fraud in four different European countries. Initially, the investigation concerned eleven suspects. On 4 April 2016 the applicant was charged with three counts of fraud. Allegedly, he acted in an organised criminal group. Subsequently, charges against him were changed several times. The final bill of indictment referred to nine charges of fraud. The case files eventually consisted of 236 volumes. The investigation required the cooperation of four different jurisdictions and gathering of numerous multilateral translations (the pieces of evidence were originally drawn up in German, Polish or Romani). 2. On 5 February 2017 a domestic court set bail for the sum of 300,000 Polish zlotys (PLN) (approximately 75,000 euros (EUR)). On 16 February 2017 a second instance court altered this decision and detained the applicant on remand for three months starting from the date of his arrest. The applicant went into hiding. He was arrested on 16 March 2017. On 27 March 2017 the Warszawa–Mokotów District Court upheld the applicant’s detention. 3. The bill of indictment against the applicant was lodged with a court on 27 August 2018. On 18 September 2018 it was remitted to the prosecutor because the case file had not included various documents necessary to examine the case. On 18 December 2018 the Warsaw Court of Appeal upheld this decision. A new bill of indictment was lodged with the relevant domestic court on 19 November 2019. 4. On 3 September 2019, in a different set of proceedings, the Poznań Regional Court convicted the applicant and sentenced him to seven years’ imprisonment. 5. In the course of the proceedings described in paragraphs 2-3 above, the applicant’s detention was systematically extended. The domestic courts relied on the severity of the penalty to which he was liable, the risk of absconding, the risk of interference with the proper conduct of proceedings and the complicated international nature of the case. The applicant unsuccessfully appealed against all of the decisions extending his detention. He argued that the domestic courts relied on evidence (intercepted phone calls and translations of their transcripts) which should be dismissed as gathered contrary to the relevant procedures. The courts considered that reasonable suspicion against the applicant was based on a number of pieces of evidence (including the applicant’s testimony), not only those which had been questioned by the defence on formal grounds. 6. On 9 July 2019 the applicant appealed against an extension decision made on 3 July 2019. He also appealed against a decision made on 1 October 2019. His appeals were dismissed on 13 and 27 November 2019 respectively. 7. The applicant complained under Article 5 § 3 of the Convention about the unreasonable length of his detention on remand and under Article 5 § 4 that the domestic courts had failed to examine “speedily” his appeals referred to in paragraph 6 above. THE COURT’S ASSESSMENT
8. The applicant complained that the length of his detention was unreasonable. 9. The Government raised a preliminary objection of non‐exhaustion of domestic remedies, as the applicant failed to appeal against the decisions of 27 November 2019 and 25 February 2020 extending his detention. However, those decisions were issued after the applicant had been “convicted by a competent court” within the meaning of Article 5 § 1 (a) of the Convention (see paragraph 12). It follows that this preliminary objection must be dismissed. 10. The Government further argued that the application was manifestly ill‐founded within the meaning of Article 35 § 3 (a) of the Convention. 11. The general principles concerning the right “to trial within a reasonable time” or to release pending trial, as guaranteed by Article 5 § 3 of the Convention have been summarized in Kudła v. Poland [GC], no. 30210/96, § 110, ECHR 2000-XI. 12. The applicant’s detention started on 16 March 2017 and ended on 3 September 2019 when he was convicted by the Poznań Regional Court in another set of proceedings (see paragraph 4 above). It follows that the period to be taken into account amounts to two years, five months and nineteen days. 13. The suspicion that the applicant had committed large-scale fraud was supported by evidence relied on by the domestic courts (including evidence which was not contested by the applicant on formal grounds) and which initially warranted his detention. 14. The risk of absconding was substantiated by the fact that the applicant, when granted bail at an early stage of the proceedings, had gone into hiding (see paragraph 2 above). The international character of the alleged crime and the allegation that he had acted in an organised criminal group were important factors of concern, as was the fear that the applicant, if released, might interfere with the proper course of the proceedings. Moreover, the authorities were faced with the difficult task of conducting an international investigation concerning an organised criminal group which had been operating in various countries for several years. It follows that the continuation of the applicant’s detention was warranted by “relevant” and “sufficient” reasons. 15. The applicant argued also that the investigation had been conducted without due diligence, which resulted in remitting the bill of indictment to the prosecutor (see paragraph 3 above). While it is true that the said shortcoming contributed to the length of the investigation and the applicant’s detention, it remains undisputed that complex and international investigations are inevitably time-consuming. The present investigation initially concerned eleven suspects and at a later stage the applicant’s case was excluded and became a separate set of proceedings which certainly enabled the indictment to be drafted more promptly. Consequently, the Court concludes that the investigation was conducted with due diligence. 16. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. 17. The applicant further complained that his appeals against the decisions of 3 July and 1 October 2019 extending his detention were not examined “speedily” as required by Article 5 § 4 of the Convention. 18. The decision of 1 October 2019 was issued after the applicant had been convicted in parallel proceedings (see paragraph 4 above) and his detention thus had become lawful under Article 5 § 1 (a) of the Convention (see paragraph 12 above). The applicant’s complaint that his appeal against it was examined in breach of standards provided by Article 5 § 4 must therefore be declared inadmissible as incompatible ratione materiae with the Article 5 § 4. 19. Turning to the complaint concerning the decision of 3 July 2019, the Government submitted a unilateral declaration covering this complaint. The applicant did not comment on it. The Court notes that the unilateral declaration did not offer a sufficient basis for finding that respect for human rights as defined in the Convention does not require the Court to continue its examination of the case (Article 37 § 1 in fine). It therefore rejects the Government’s request to strike the complaint out and will accordingly pursue its examination of the case (see Tahsin Acar v. Turkey (preliminary issue) [GC], no. 26307/95, § 75, ECHR 2003-VI). 20. Since this complaint is neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor inadmissible on any other grounds, it must be declared admissible. 21. The applicant’s appeal of 9 July 2019 was examined on 13 November 2019 that is four months and five days after it had been lodged (see paragraph 6 above). In the light of the Court’s well-established case-law (see, among many others, Stettner v. Poland, no. 38510/06, §§ 92-97, 24 March 2015, and Baranowski v. Poland, no. 28358/95, §§ 68-77, ECHR 2000-III) and having examined all the material before it, the Court concludes that this complaint discloses a violation of Article 5 § 4 of the Convention. 22. The applicant claimed 8,000,000 euros (EUR) in respect of non‐pecuniary damage. 23. The Government considered that the sum in question was exorbitant. 24. The Court awards the applicant EUR 2,000 in respect of non-pecuniary damage, plus any tax that may be chargeable. 25. The Court further considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay the applicant, within three months, EUR 2,000 (two thousand euros) to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable, in respect of non-pecuniary damage;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 3 February 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Liv Tigerstedt Péter Paczolay Deputy Registrar President
FIRST SECTION
CASE OF ŁAKATOSZ v. POLAND
(Application no. 27318/19)
JUDGMENT
STRASBOURG
3 February 2022
This judgment is final but it may be subject to editorial revision. In the case of Łakatosz v. Poland,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
Péter Paczolay, President, Alena Poláčková, Davor Derenčinović, judges,and Liv Tigerstedt, Deputy Section Registrar,
Having regard to:
the application (no. 27318/19) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 10 May 2019 by a Polish national, Mr Arkadiusz Łakatosz, born in 1968 and detained in Poznań (“the applicant”) who was represented by Mr P. Sołtysiak, a lawyer practising in Poznań;
the decision to give notice of the complaints under Article 5 §§ 3 and 4 of the Convention to the Polish Government (“the Government”), represented by their Agent, Mr J. Sobczak, of the Ministry of Foreign Affairs, and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 11 January 2022,
Delivers the following judgment, which was adopted on that date:
SUBJECT-MATTER OF THE CASE
1. The applicant was detained in the course of the investigation which concerned large-scale fraud in four different European countries. Initially, the investigation concerned eleven suspects. On 4 April 2016 the applicant was charged with three counts of fraud. Allegedly, he acted in an organised criminal group. Subsequently, charges against him were changed several times. The final bill of indictment referred to nine charges of fraud. The case files eventually consisted of 236 volumes. The investigation required the cooperation of four different jurisdictions and gathering of numerous multilateral translations (the pieces of evidence were originally drawn up in German, Polish or Romani). 2. On 5 February 2017 a domestic court set bail for the sum of 300,000 Polish zlotys (PLN) (approximately 75,000 euros (EUR)). On 16 February 2017 a second instance court altered this decision and detained the applicant on remand for three months starting from the date of his arrest. The applicant went into hiding. He was arrested on 16 March 2017. On 27 March 2017 the Warszawa–Mokotów District Court upheld the applicant’s detention. 3. The bill of indictment against the applicant was lodged with a court on 27 August 2018. On 18 September 2018 it was remitted to the prosecutor because the case file had not included various documents necessary to examine the case. On 18 December 2018 the Warsaw Court of Appeal upheld this decision. A new bill of indictment was lodged with the relevant domestic court on 19 November 2019. 4. On 3 September 2019, in a different set of proceedings, the Poznań Regional Court convicted the applicant and sentenced him to seven years’ imprisonment. 5. In the course of the proceedings described in paragraphs 2-3 above, the applicant’s detention was systematically extended. The domestic courts relied on the severity of the penalty to which he was liable, the risk of absconding, the risk of interference with the proper conduct of proceedings and the complicated international nature of the case. The applicant unsuccessfully appealed against all of the decisions extending his detention. He argued that the domestic courts relied on evidence (intercepted phone calls and translations of their transcripts) which should be dismissed as gathered contrary to the relevant procedures. The courts considered that reasonable suspicion against the applicant was based on a number of pieces of evidence (including the applicant’s testimony), not only those which had been questioned by the defence on formal grounds. 6. On 9 July 2019 the applicant appealed against an extension decision made on 3 July 2019. He also appealed against a decision made on 1 October 2019. His appeals were dismissed on 13 and 27 November 2019 respectively. 7. The applicant complained under Article 5 § 3 of the Convention about the unreasonable length of his detention on remand and under Article 5 § 4 that the domestic courts had failed to examine “speedily” his appeals referred to in paragraph 6 above. THE COURT’S ASSESSMENT
8. The applicant complained that the length of his detention was unreasonable. 9. The Government raised a preliminary objection of non‐exhaustion of domestic remedies, as the applicant failed to appeal against the decisions of 27 November 2019 and 25 February 2020 extending his detention. However, those decisions were issued after the applicant had been “convicted by a competent court” within the meaning of Article 5 § 1 (a) of the Convention (see paragraph 12). It follows that this preliminary objection must be dismissed. 10. The Government further argued that the application was manifestly ill‐founded within the meaning of Article 35 § 3 (a) of the Convention. 11. The general principles concerning the right “to trial within a reasonable time” or to release pending trial, as guaranteed by Article 5 § 3 of the Convention have been summarized in Kudła v. Poland [GC], no. 30210/96, § 110, ECHR 2000-XI. 12. The applicant’s detention started on 16 March 2017 and ended on 3 September 2019 when he was convicted by the Poznań Regional Court in another set of proceedings (see paragraph 4 above). It follows that the period to be taken into account amounts to two years, five months and nineteen days. 13. The suspicion that the applicant had committed large-scale fraud was supported by evidence relied on by the domestic courts (including evidence which was not contested by the applicant on formal grounds) and which initially warranted his detention. 14. The risk of absconding was substantiated by the fact that the applicant, when granted bail at an early stage of the proceedings, had gone into hiding (see paragraph 2 above). The international character of the alleged crime and the allegation that he had acted in an organised criminal group were important factors of concern, as was the fear that the applicant, if released, might interfere with the proper course of the proceedings. Moreover, the authorities were faced with the difficult task of conducting an international investigation concerning an organised criminal group which had been operating in various countries for several years. It follows that the continuation of the applicant’s detention was warranted by “relevant” and “sufficient” reasons. 15. The applicant argued also that the investigation had been conducted without due diligence, which resulted in remitting the bill of indictment to the prosecutor (see paragraph 3 above). While it is true that the said shortcoming contributed to the length of the investigation and the applicant’s detention, it remains undisputed that complex and international investigations are inevitably time-consuming. The present investigation initially concerned eleven suspects and at a later stage the applicant’s case was excluded and became a separate set of proceedings which certainly enabled the indictment to be drafted more promptly. Consequently, the Court concludes that the investigation was conducted with due diligence. 16. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. 17. The applicant further complained that his appeals against the decisions of 3 July and 1 October 2019 extending his detention were not examined “speedily” as required by Article 5 § 4 of the Convention. 18. The decision of 1 October 2019 was issued after the applicant had been convicted in parallel proceedings (see paragraph 4 above) and his detention thus had become lawful under Article 5 § 1 (a) of the Convention (see paragraph 12 above). The applicant’s complaint that his appeal against it was examined in breach of standards provided by Article 5 § 4 must therefore be declared inadmissible as incompatible ratione materiae with the Article 5 § 4. 19. Turning to the complaint concerning the decision of 3 July 2019, the Government submitted a unilateral declaration covering this complaint. The applicant did not comment on it. The Court notes that the unilateral declaration did not offer a sufficient basis for finding that respect for human rights as defined in the Convention does not require the Court to continue its examination of the case (Article 37 § 1 in fine). It therefore rejects the Government’s request to strike the complaint out and will accordingly pursue its examination of the case (see Tahsin Acar v. Turkey (preliminary issue) [GC], no. 26307/95, § 75, ECHR 2003-VI). 20. Since this complaint is neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor inadmissible on any other grounds, it must be declared admissible. 21. The applicant’s appeal of 9 July 2019 was examined on 13 November 2019 that is four months and five days after it had been lodged (see paragraph 6 above). In the light of the Court’s well-established case-law (see, among many others, Stettner v. Poland, no. 38510/06, §§ 92-97, 24 March 2015, and Baranowski v. Poland, no. 28358/95, §§ 68-77, ECHR 2000-III) and having examined all the material before it, the Court concludes that this complaint discloses a violation of Article 5 § 4 of the Convention. 22. The applicant claimed 8,000,000 euros (EUR) in respect of non‐pecuniary damage. 23. The Government considered that the sum in question was exorbitant. 24. The Court awards the applicant EUR 2,000 in respect of non-pecuniary damage, plus any tax that may be chargeable. 25. The Court further considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay the applicant, within three months, EUR 2,000 (two thousand euros) to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable, in respect of non-pecuniary damage;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 3 February 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Liv Tigerstedt Péter Paczolay Deputy Registrar President