Communicated on 29 September 2014
FOURTH SECTION
Application no. 8802/12
Hassan AL-ZUBAIDI
against Poland
lodged on 2 February 2012
STATEMENT OF FACTS
The applicant, Mr Hassan Al-Zubaidi, is a Polish national of Iraqi origin, who was born in 1969 in Baghdad and lives in Warsaw. He is represented before the Court by Mr P. Florek, a lawyer practising in Warsaw.
A. The circumstances of the case
On 26 August 2002 the applicant was arrested under the suspicion of, in particular, having led an organised criminal group which aimed at fraudulent sale of shares in a limited liability company.
On 28 August 2002 the Gorzów Wielkoposlki Distric Court detained the applicant on remand for three months, until 28 November 2002. The detention was subsequently extended on several occasions and the applicant remained in detention until 19 November 2003.
On 18 and 19 November 2003 the Szczecin District Court released the applicant from detention and imposed on him other preventive measures: bail of 100,000 Polish zlotys (PLN), police supervision and prohibition on leaving Poland combined with withholding his passport.
On 6 April 2005 the applicant, along with other accused, was indicted and since then the proceedings have been pending before the Szczecin Regional Court.
According to the applicant’s statement the first request for the preventive measure to be lifted was lodged on 12 April 2006. He has lodged numerous requests ever since.
In 2009 the applicant tried to have the preventive measure lifted because of his father’s serious illness and subsequently because of his father’s death. The courts refused to lift the measure finding that a bail itself would not be sufficient to secure the proper conduct of the proceedings.
The applicant submitted a copy of the Szczecin Regional Court’s decision of 31 May 2011 refusing his further request to lift the measure. The court found, in particular, that the excessive length of proceedings did not allow the court to resign from securing a proper conduct of the proceedings. The court also found that the applicant had tried to obtain a new passport without the court’s knowledge.
The applicant appealed. As regards the fact that he requested issuance of a new passport, he submitted that his seized passport was no longer valid and that he needed a new passport in case the preventive measure applied to him was lifted.
On 2 August 2011 the Szczecin Regional Court upheld the challenged decision. The court found that there was no need to repeat the previous argument which opposed the preventive measure being lifted. It concluded that the numerous applications to lift the measure lodged by the applicant made it clear that he wanted to leave Poland and that this could not change the court’s attitude that the applicant would be banned from leaving Poland until the proceedings were terminated.
B. Relevant domestic law and practice
The 1997 Code of Criminal Procedure defines prohibition on leaving the country (zakaz opuszczania kraju) as one of the “preventive measures” (środki zapobiegawcze). Those measures are, in addition to prohibition on leaving the country, pre-trial detention (tymczasowe aresztowanie), bail (poręczenie majątkowe), police supervision (dozór policji), guarantee by a responsible person (poręczenie osoby godnej zaufania), guarantee by a social entity (poręczenie społeczne), and temporary ban on engaging in a given activity (zawieszenie oskarżonego w określonej działalności).
Paragraph 1 of Article 277 of the Code provides, in so far as relevant, as follows:
“A prohibition on leaving the country may be imposed if there is a reasonable risk that an accused will abscond or go into hiding; this prohibition may be combined with withholding the accused’s passport or other travel document or with a prohibition on issuing such a document ...”
COMPLAINTS
Relying on Article 2 of Protocol No. 4 to the Convention, the applicant complains that the preventive measures imposed on him for such an unreasonably long time had amounted to a violation of his right to freedom of movement.
He further complains under Article 8 of the Convention that his family rights have been violated because for twelve years he could not visit his brothers and sisters and he could not attend the funeral of his father who died in 2009.
QUESTIONS TO THE PARTIES
1. Was the prohibition on the applicant leaving Poland, imposed on 23 December 2005, compatible with Article 2 of Protocol No. 4 to the Convention? In particular, was that restriction proportionate to any legitimate aim pursued? (see, mutatis mutandis, Baumann v. France, no. 33592/96, 22 May 2001 and Miażdżyk v. Poland, no. 23592/07, 24 January 2012).
2. Did the prohibition on leaving Poland amount to a violation of the applicant’s right to respect for his family life guaranteed by Article 8 of the Convention? Reference is made to the fact that for the last 12 years the applicant has been unable to visit his relatives living abroad and could not attend his father’s funeral.
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