Published on 25 October 2021
FIRST SECTION
Application no. 32553/20
TM SYNTHETICS SPÓŁKA AKCYJNA
against Poland
lodged on 24 July 2020
communicated on 8 October 2021
STATEMENT OF FACTS
The applicant, TM SYNTHETICS SPÓŁKA AKCYJNA, is a Polish joint-stock company operating in Warsaw. It is represented before the Court by Ms M. Gąsiorowska, a lawyer practising in Warsaw.
BackgroundThe applicant company trades in chemicals and cosmetics.
One transaction was the export of a large quantity of high-quality cosmetics to Asia. The transaction resulted in an insurance dispute because the recipient declared that the cosmetics in question had been damaged during transport.
In relation to the above-mentioned transaction, on an unspecified date the Warsaw Provincial Prosecutor (Prokuratura Regionalna) opened an investigation into the allegations of attempted tax fraud and attempted offences against money trading (no. RP II Ds. 41.2016). The applicant company has not been presented with any charges in this connection.
Impoundment of bank accounts for the prevention of criminal offencesOn 23 December 2016 the Warsaw Provincial Prosecutor seized the applicant company’s two bank accounts containing approximately 500,000 Polish zloty (approximately 125,000 euros (EUR)) and EUR 500,000, respectively. It was suspected that the bank accounts in question had been used as part of the chain of illicit transactions, namely the offences under the investigation no. RP II Ds. 41.2016. The prosecutor stated that the seizure had been for the purpose of preventing any new criminal offence from being committed. The impoundment was ordered for a statutory time-limit of three months, pursuant to Section 19 (1) and (2) of the 2000 Law on prevention of money laundering and financing of terrorism (Ustawa o przeciwdziałaniu praniu brudnych pieniędzy i finansowaniu terroryzmu) in its version that was in force until 13 July 2018.
On 4 January 2017 the applicant company appealed against that decision and, on 9 January 2017, it asked that the impoundment be lifted.
On 6 March 2017 the Warsaw Regional Court (Sąd Okręgowy) dismissed the applicant company’s appeal, holding that the prosecutor’s decision to impound the bank accounts was justified as there was a reasonable suspicion that the applicant company’s transactions were a part of illicit activities under investigation. The court also observed that the measure was not disproportionate because the applicant company disposed of seven other bank accounts with assets and could therefore maintain its financial flow.
Impoundment of financial assets as evidenceWhen the three-month period of the initial preventive impoundment had expired, on 20 March 2017 the Warsaw Provincial Prosecutor ordered the impoundment of the money in the applicant company’s bank accounts, that were the subject of the initial seizure described above, as evidence in the investigation no. RP II Ds. 41.2016. This measure was ordered pursuant to Article 217 § 1 of the Code of Criminal Procedure (Kodeks Postępowania Karnego). As a result of this order the applicant company’s assets in question were transferred to the account of the Warsaw Provincial Prosecutor.
On 29 March 2017 the applicant company appealed against that decision.
On 15 November 2017 the Warsaw District Court (Sąd Rejonowy) dismissed the appeal, holding that the prosecutor’s order was valid as there was a high likelihood that the assets in question had been generated by the offences under investigation. The court observed that the impoundment was necessary to secure the proper course of the investigation.
On 12 July 2018 the applicant company asked that the impoundment be lifted given that it was in a difficult financial situation and that the case did not rely on the bank transaction records, nor on the assets themselves as evidence.
By letter dated 8 August 2018, the Warsaw Provincial Prosecutor refused to lift the measure.
On 27 August 2018 the applicant company lodged an interlocutory appeal against that decision, challenging its form and, essentially, reiterating the arguments of its previous request to have the measure lifted.
On 26 September 2018 the court issued a decision in which it refused to entertain the applicant company’s interlocutory appeal.
On 30 January 2019 the applicant company once more asked that the prosecutor’s decision be changed and that the impoundment be lifted.
By letter dated 13 March 2019, the Warsaw Provincial Prosecutor refused to lift the measure.
Transfer of assets as security for the payment of taxesOn 3 March 2020 the Warsaw Provincial Prosecutor dismissed the applicant company’s latest request (dated 8 November 2019) to have the impoundment lifted and decided to transfer the impugned assets to the local Tax Office (Urząd Skarbowy) in order to secure the payment of the applicant company’s outstanding taxes.
On 17 March 2020 the applicant company appealed against that decision, arguing, among others, that the prosecutor had failed to first declare that the impugned assets were no longer considered evidence in the criminal investigation no. RP II Ds. 41.2016.
According to the information in the Court’s possession, these proceedings are on-going, and the applicant company has not submitted any information about the related main tax proceedings.
Complaint under the 2004 ActOn 29 January 2020 the Warsaw Court of Appeal (Sąd Apelacyjny) rejected the applicant company’s complaint lodged under the 2004 Law on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki), on the ground that the company was not a party to the impugned criminal proceedings that were still in their in rem phase.
COMPLAINT
The applicant company complains under Article 1 of Protocol No. 1 to the Convention about excessively long, unjustified and disproportionate control of use of its property.
QUESTIONS TO THE PARTIES
1. Has the applicant company exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?
2. Has there been an interference with the applicant company’s peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1 to the Convention? If so, was that interference necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties? In particular, did that interference impose an excessive individual burden on the applicant (see, mutatis mutandis, Lachikhina v. Russia, no. 38783/07, 10 October 2017; Džinić v. Croatia, no. 38359/13, 17 May 2016; Hábenczius v. Hungary, no. 44473/06, 21 October 2014; JGK Statyba Ltd and Guselnikovas v. Lithuania, no. 3330/12, 5 November 2013; Waldemar Nowakowski v. Poland, no. 55167/11, 24 July 2012; and AGOSI v. the United Kingdom, 24 October 1986, Series A no. 108)?