European Court of Human Rights

 

 

FIRST SECTION

CASE OF STOŁKOWSKI v. POLAND

(Application no. 58795/15)

 

 

 

JUDGMENT

 

STRASBOURG

21 December 2021

 

 

 

 

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

 

In the case of Stołkowski v. Poland,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

          Ksenija Turković, President,
          Aleš Pejchal,
          Krzysztof Wojtyczek,
          Pauliine Koskelo,
          Tim Eicke,
          Jovan Ilievski,
          Raffaele Sabato, judges,
and Renata Degener, Section Registrar,

Having regard to:

the application 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”) by a Polish national, Mr Marek Stołkowski (“the applicant”), on 5 November 2015;

the decision to give notice to the Polish Government (“the Government”) of the complaint concerning Article 1 of Protocol No. 1 to the Convention and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated in private on 30 November 2021,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1.  The case concerns the lengthy impoundment of the applicant’s car in a police car park, ordered in the framework of criminal proceedings against the applicant, resulting in a tenfold decrease in the vehicle’s value.

THE FACTS

2.  The applicant was born in 1975 and is detained in Siedlce Prison. He had been granted legal aid and was represented by Ms A. Bzdyń, a lawyer practising in Warsaw.

3.  The Government were represented by their Agent, Ms J. Chrzanowska, and subsequently by Mr J. Sobczak, of the Ministry of Foreign Affairs.

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

5.  On 8 February 2005 the police seized the applicant’s 1998 Peugeot XV 1.6.

6.  On 11 February 2005 the Siedlce Regional Prosecutor issued a decision authorising the seizure of the car (hereinafter “the seizure order”) with a view to securing the payment of any fines or damages which might be imposed in the criminal proceedings ongoing at that time against the applicant. It was issued under Article 291 of the Code of Criminal Procedure.

7.  On 1 March 2005 the Siedlce District Court (Sąd Rejonowy) attached a writ of execution to the seizure order.

8.  On 11 May 2005 the Siedlce District Court dismissed an interlocutory appeal by the applicant against the seizure order, thereby upholding the seizure of the vehicle in question.

9.  On 13 March 2005 a court bailiff formally seized the car, securing it in a police station car park.

10.  Copies of the above-mentioned decisions were not submitted to the Court.

11.  A court-appointed expert estimated the car’s value as 14,100 Polish zlotys (PLN - approximately 3,525 euros (EUR)) on the date of seizure. At that time, the car did not have an up-to-date technical inspection certificate.

12.  On 30 December 2005 the Siedlce Regional Court charged the applicant with robbery and fraud committed in an organised criminal gang.

13.  On 6 May 2009 the Siedlce District Court convicted him as charged (no. IIK 25/06).

14.  On 8 March 2010 the Siedlce Regional Court quashed that judgment and remitted the case (IIKa 436/09).

15.  On 16 September 2010 the Siedlce Regional Court ordered that the car be sold and that the proceeds of sale be deposited with the trial court.

16.  On 17 June 2011 the Siedlce Regional Court convicted the applicant, sentencing him to five years’ imprisonment. He was ordered to pay PLN 6,000 (EUR 1,500) in damages to the victim and court fees in the amount of PLN 1,400 (EUR 350).

17.  An auction was scheduled twice on unspecified dates in 2010 or 2011. The car was not sold as there were no buyers. Since its seizure, the car has remained with the police.

18.  It appears that at around the same time, the applicant became free to collect his car but decided not to do so.

19.  In 2012 he sued the State Treasury for PLN 15,000 for the loss of his seized car.

20.  On 13 June 2013 a court-appointed expert valued the car at PLN 1,300 (EUR 325). The drop in value had resulted, in the expert’s opinion, from the car being stationary for a long period of time without being protected from corrosion, and without the oil being changed and the battery charged. In the expert’s opinion, the above-mentioned measures had not been part of the routine maintenance of vehicles stored by the police. The expert concluded that the car’s depreciation had not therefore been due to a lack of diligence on the part of the authorities responsible for its storage.

21.  On 15 October 2013 the Siedlce District Court awarded the applicant compensation in the amount of PLN 2,100 (EUR 525), holding that the car’s deplorable condition was due partly to the passage of time, and partly to the failure of the authorities responsible for its storage to ensure its proper maintenance. On this last point, the court considered that if, as the expert had concluded, failure to carry out maintenance measures such as protecting the car from corrosion, changing the oil and charging the battery had led to the deterioration of the vehicle’s technical condition, those measures would therefore have been required for any diligent storage. In other words, the court disagreed with the expert that the measures listed by him were “extra” and not routine.

The compensation represented the difference between the market value of a maintained car of a similar make and model and the vehicle in question.

22.  On 25 March 2014 the Siedlce Regional Court (Sąd Okręgowy) quashed that judgment and remitted the case, observing, inter alia, that the first-instance court should have examined whether the seizure of the car over the years had been justified or whether a sale should have been ordered earlier. The appellate court also noted that the trial court’s conclusion that the car’s decrease in value had partly been caused by its negligent maintenance was inconsistent with the findings of the expert.

23.  On 16 February 2015 the Siedlce District Court dismissed the applicant’s action. It accepted that the applicant’s car had been worth PLN 14,100 in 2005 and PLN 1,300 in 2013, as valued by the experts, but held that he had failed to prove that the damage had been caused by a “flagrant and doubtless breach of the law” by the prosecutor and court in charge of the car’s seizure. The court observed, referring to the 2013 expert report, that the car’s value would have decreased over time, irrespective of whether or not it had been seized, and that it had been stored with adequate diligence. On this last point, the court found that the police officers in charge of storing the car in their police car park had been properly informed of their obligations of diligence. The car had been parked in a secure car park and had not been mechanically damaged. In view of the applicant’s difficult financial situation, the court decided to waive the court fees.

24.  On 11 June 2015 the Siedlce Regional Court upheld that judgment on appeal, endorsing the first-instance court’s findings of fact and law.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

I.        Ownership and seizure of property

25.  The relevant domestic law and practice relating to the seizure of property in criminal proceedings is laid out in the Court’s inadmissibility decision in the case of Adamczyk v. Poland (dec.), no. 28551/04, 7 November 2006.

26.  In addition, Article 64 of the Constitution reads:

“1.  Everyone shall have the right to ownership, other property rights and the right of succession.

2.  Everyone, on an equal basis, shall receive legal protection regarding ownership, other property rights and the right of succession.

3.  The right of ownership may only be limited by means of a statute and only to the extent that it does not violate the substance of such right.”

27.  Under Article 217 § 1 of the Code of Criminal Procedure (Kodeks Postępowania Karnego), items to be used as evidence in a criminal case or for the purposes of securing the payment of fines may be seized by the police or the prosecution authorities.

28.  Seizure orders concerning the property of suspects or accused persons are regulated by Articles 291 to 295 of the CCP.

29.  The manner of enforcement of seizure orders is regulated by the provisions of the Code of Civil Procedure. In particular, under Article 856 of that Code, anyone in charge of taking care (dozór) of seized movable property must act with the diligence necessary to ensure that the value of the object in question does not diminish. Under Article 857 of the Code of Civil Procedure, the custodian of the property is not liable for any damage or loss if they have acted with the necessary diligence.

30.  In the practice of administrative authorities and domestic courts, as well as in legal doctrine, the above provisions are understood to impose the obligation of taking care of property as opposed to simply storing it (przechowywanie). The compliance with such obligation is assessed with reference to substantive civil law regulating storage (Articles 355 and 471 of the Civil Code), namely, as if the custodian had contractual obligations in respect of the property. The custodian must therefore display a sufficient degree of care over the object to be able to return the object in a non‑deteriorated condition (w stanie niepogorszonym) and without depreciation of its value (aby rzeczy oddane w dozór nie straciły na wartości). The custodian can escape the liability for the deterioration or the depreciation of the value of the object only if he or she had displayed all due diligence and the damage could not be avoided, that is to say, was inevitable (see judgment of the Supreme Court of 26 April 1966 r., I CR 312/63; Commentary to the Code of Civil Procedure, Volume III by K. Piasecki (ed.) 6^th Edition, Warsaw, 2015; Commentary to the Code of Civil Procedure by A. Zieliński (ed.), 9^th Edition, Warsaw, 2017). As to the latter, it has been held that a person who is in business of storing seized vehicles is bound by the obligations of special due diligence required of professionals. Taking a passive attitude in respect of a vehicle stored, is incompatible with such due diligence (see judgment of the Gdynia District Court of 6 March 2018, no. I C 1660/16).

31.  This interpretation is supported by the case-law of administrative courts which hold that a custodian of seized property is entitled to claim a refund of expenses directly related to securing (zebezpieczenie) the movable property which is in his or her care from damage. These will depend on the circumstances such as the storage place, conditions of care, the size of the object (see, for example, judgment of the Gdańsk Regional Administrative Court of 15 December 2016, no. III SA/Gd 932/16).

32.  The public sale of seized property is regulated by Article 232 of the CCP as follows:

“1.  Items that are easily perishable or whose storage would incur unreasonable expense or excessive hardship, or would cause a significant decrease in value, may be sold in accordance with the procedure applied by the appropriate [enforcement] authorities. The decision to sell may be issued by the public prosecutor in the course of preliminary proceedings, and by the court in court proceedings ...

2.  The proceeds of sale shall be deposited with the court.

...”

II.     Compensation from the State Treasury

33.  Article 77 § 1 of the Constitution reads:

“Everyone shall have the right to compensation for any harm done to him by any action of an organ of public authority which is contrary to the law.”

34.  Article 417 § 1 of the Civil Code (Kodeks Cywilny) lays down a general rule on State liability for damage caused by a public authority. The relevant part of this provision reads as follows:

“The State Treasury ... shall be liable for any damage (szkoda) caused by an unlawful act or omission [committed] in connection with the exercise of public authority.”

35.  Article 417¹ § 2 of the Civil Code reads as follows:

“Where damage has been caused by the delivery of a final ruling or final decision, compensation for the damage may be sought after the unlawfulness [of the ruling or decision] has been established in the relevant proceedings, except as otherwise provided by law.”

36.  In the practice of the domestic courts, a claim under Article 417¹ of the Civil Code does not arise unless the act or omission resulting in damage has been declared unlawful in separate proceedings (prejudykat) (see the Słupsk Regional Court’s judgment of 2 February 2017, IC 342/16).

37.  “Damage” as referred to in these provisions means pecuniary damage, which is defined in Article 361 § 2 of the Civil Code as “losses and lost profits which an aggrieved party could have made if he had not sustained damage.”

THE LAW

I.        ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION

38.  The applicant essentially complained that the seizure of his car had amounted to an unjustified control of use of his property, in breach of Article 1 of Protocol No. 1, which reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems 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.”

A.    Admissibility

39.  The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.    Merits

1.     The parties’ submissions

(a)    The applicant

40.  The applicant complained that the seizure of his car had amounted to an unjustified control of use of his property, in breach of Article 1 of Protocol No. 1. He also complained that the civil court had not obtained a valuation of the car from an official expert.

41.  The applicant submitted, among other things, that the interference had been unlawful in that the provisions regulating property seizures did not specify how the authorities storing a seized object should take care of it in order to avoid its depreciation. The criminal legislation in question was also silent on the issue of the sale of seized movable property.

42.  The applicant also submitted that the seizure had been unjustified and had placed an excessive burden on him. In particular, the value of his car, which had been assessed inaccurately, had been disproportionately higher than any potential fines or damages for which it had been meant to secure payment. The interests of any potential victims of the alleged criminal offences had not been a legitimate justification for the seizure, as those were individual and not public interests.

43.  The applicant also argued that, since the vehicle had been prone to be easily damaged through inattentive storage, the authorities should have auctioned it before it had lost value, that is, soon after seizure. Such a sale would have been in accordance with Article 864 of the Code of Civil Procedure.

44.  The applicant stressed that his grievance was not only about the initial seizure of the car, which might have been justified, but mainly about the fact that the authorities had allowed its value to diminish because the vehicle had for years been kept outdoors, stationary and without proper maintenance. In the absence of proper technical care, as had been the case, acting in the general interest would have been to auction the car rather than to hold on to it.

45.  As to the subsequent civil proceedings, the applicant argued that the domestic court should have ruled on the State’s liability for causing the loss of value of his vehicle on the basis of Article 856 § 1 of the Civil Code. The value lost should have been calculated as the difference between what the car had been worth on the day of seizure, on the one hand, and on the day of the appellate court’s judgment, on the other. The loss in value of the car should not have been calculated as the difference between the market value of a maintained car of a similar make and model and the price for the vehicle in question. Lastly, whether the car had been stored with the necessary diligence was a legal issue and, as such, should have been assessed entirely by a judge, and not by a court-appointed expert whose only professional capacity had been to assess the value of the car and determine the technical causes of depreciation. In the applicant’s view, the civil court’s judgment had thus been arbitrary.

(b)    The Government

46.  The Government argued that in interfering with the applicant’s peaceful enjoyment of possessions, the State authorities had acted in accordance with the law and struck a fair balance between the demands of the general interests of the community and the requirements of the protection of the applicant’s fundamental rights. In particular, the seizure of the vehicle in question had occurred in the framework of criminal proceedings against him. He had been accused and later convicted of serious offences against the property of third parties.

47.  The Government also submitted that the value of the car had not exceeded the total amount of claims for damages and fines which could, and had ultimately been, imposed on the applicant by the criminal court. Moreover, the applicant’s car had also served as evidence in the case.

48.  The authorities, aware of the progressing depreciation of the car, had made genuine attempts to sell it while the criminal proceedings had been ongoing. The car auctions had failed for objective reasons, namely a lack of interest from any buyers.

49.  The Government also submitted that the applicant had been in pre‑trial detention from February to July 2005 and throughout January 2007. He was then sent to prison to serve a five-year sentence. It follows that, for much of the period in question, the applicant would not have been able to make use of his vehicle anyway.

50.  Lastly, the Government reiterated the findings of the civil courts that the State was not liable for the loss in value of the applicant’s car, which had been caused solely by the passage of time. The applicant could have but had not challenged the expert report from which the civil court had drawn its conclusions. In the Government’s view, the report had been thorough and comprehensive.

51.  With regard to the decision-making process, the Government argued that the applicant had enjoyed fair proceedings. Moreover, the courts’ judgments, which had been extensively reasoned, had not been tainted by any manifest error.

2.     The Court’s assessment

(a)    General principles

52 .  Article 1 of Protocol No. 1, which guarantees the right to the protection of property, contains three distinct rules (see, among many other authorities, J.A. Pye (Oxford) Ltd and J.A. Pye (Oxford) Land Ltd v. the United Kingdom [GC], no. 44302/02, § 52, ECHR 2007 ‑III; Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 62, ECHR 2007 ‑I; AGOSI v. the United Kingdom, 24 October 1986, § 48, Series A no. 108; and Hábenczius v. Hungary, no. 44473/06, § 27, 21 October 2014):

“the first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of the peaceful enjoyment of property; the second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions; the third rule, stated in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest. The three rules are not, however, ‘distinct’ in the sense of being unconnected. The second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule.”

53.  A seizure of property for legal proceedings normally relates to the control of the use of property, which falls within the ambit of the second paragraph of Article 1 of Protocol No. 1 to the Convention (see, among other authorities, Raimondo v. Italy, 22 February 1994, § 27, Series A no. 281‑A; JGK Statyba Ltd and Guselnikovas, cited above, § 117; Hábenczius, cited above, § 28; Lachikhina v. Russia, no. 38783/07, § 58, 10 October 2017; Džinić v. Croatia, no. 38359/13, § 62 and 62, 17 May 2016; and Adamczyk (dec.), cited above; contrast Waldemar Nowakowski v. Poland, no. 55167/11, § 46, 24 July 2012).

54.  In order for an interference to be compatible with Article 1 of Protocol No. 1 it must be lawful, be in the general interest and be proportionate, that is, it must strike a “fair balance” between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights (see, among many other authorities, Beyeler v. Italy [GC], no  33202/96, § 107, ECHR 2000-I, and J.A. Pye (Oxford) Ltd and J.A. Pye (Oxford) Land Ltd [GC], cited above, § 75). The requisite fair balance will not be struck where the person concerned bears an individual and excessive burden (see Sporrong and Lönnroth v. Sweden, 23 September 1982, §§ 69‑74, Series A no. 52, and Hábenczius, cited above, § 29).

55.  The application of provisional measures in the context of judicial proceedings, aimed at anticipating a possible confiscation of property, was already held to be in the “general interest” of the community (see, for example, Borzhonov v. Russia, no. 18274/04, § 58, 22 January 2009, and the cases cited therein; East West Alliance Limited v. Ukraine, no. 19336/04, § 187, 23 January 2014; and Džinić, cited above, § 65).

56.  The Court reiterates that while any seizure or confiscation entails damage, the actual damage sustained should not be more extensive than that which is inevitable, if it is to be compatible with Article 1 of Protocol No. 1 (see Džinić, § 68 in fine, and Hábenczius, § 30 in fine, both cited above).

57.  The Court reiterates that although Article 1 of Protocol No. 1 does not guarantee a right to full compensation in all circumstances, compensation terms are material to the assessment whether the contested legislation strikes a fair balance between the various interests at stake and, notably, whether it does not impose a disproportionate burden on the applicants. In this connection, the Court has already found that the taking of property without payment of an amount reasonably related to its value will normally constitute a disproportionate interference, and a total lack of compensation can be considered justifiable under Article 1 of Protocol No. 1 only in exceptional circumstances (see The Holy Monasteries v. Greece, 9 December 1994, § 71, Series A no. 301‑A). Article 1 of Protocol No. 1 does not, however, guarantee a right to full compensation in all circumstances (see James and Others v. the United Kingdom, no. 8793/79, § 54, 21 February 1986; Broniowski v. Poland [GC], no. 31443/96, § 182, ECHR 2004-V; and Scordino v. Italy (no. 1) [GC], no. 36813/97, § 95, ECHR 2006‑V).

(b)    Application of the above principles to the present case

58.  It is not in dispute between the parties that the measure amounted to an interference with the applicant’s right to peaceful enjoyment of his possessions. The seizure of the applicant’s car amounted to a temporary, albeit protracted, restriction on the use of his property, and did not entail a transfer of ownership. The Court therefore follows the general principle above and considers the interference in question to be control of the use of property within the meaning of the second paragraph of Article 1 of Protocol No. 1 (see, mutatis mutandis, Lachikhina, § 58; Adamczyk (dec.); and Hábenczius, § 28, all cited above).

59.  The applicant’s vehicle was seized, on the basis of the seizure order, with a view to securing payment of any fines or damages resulting from the criminal case ongoing at the material time against the applicant (see paragraph 6 above). Other than for the Government’s submission in paragraph 47 above, which is unsupported by any document, the Court does not have any knowledge that the car was also to serve as evidence. Either way, a prosecutor’s right to order seizure of property is set out in Article 291 of Code of Criminal Procedure (see paragraph 28 above). Accordingly, the Court is satisfied that the seizure of the applicant’s vehicle in the present case was lawful (see, mutatis mutandis, Adamczyk (dec.), cited above). The issue of whether the legal framework did not regulate, as claimed by the applicant, the conditions for the storage of seized movable property, will be addressed by the Court below in its analysis of the proportionality of the measure.

60.  The Court also holds that the impugned measure was in the general interest of the community, namely to have the proper conduct of judicial proceedings ensured (see, mutandis mutandis, JGK Statyba Ltd and Guselnikovas, cited above, § 125). It is therefore irrelevant that the seizure was partly meant to secure the payment of damages for the private victims of the applicant’s alleged offences.

61.  Moving on, the Court reiterates that even if it has taken place “subject to the conditions provided for by law” - implying the absence of arbitrariness - and in the public interest, an interference with the right to the peaceful enjoyment of possessions must always strike a “fair balance” between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights. In particular, there must be a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Immobiliare Saffi v. Italy [GC], no. 22774/93, § 49, ECHR 1999‑V, and JGK Statyba Ltd and Guselnikovas, cited above, § 127).

62.  In the present case, the essence of the applicant’s complaint is that his car’s seizure had been unjustified and had placed an excessive burden on him. To that end, the applicant raised the following points. (i) The initial value of his car had been disproportionately higher than any fine or damage that it was meant to secure. (ii) The authorities had failed to auction the car in a timely manner. Instead, (iii) through inadequate storage and the lack of proper technical care and maintenance, they had allowed the car’s value to diminish to the point that the vehicle had become useless for the purpose of the judicial proceedings or for applicant, altogether. Lastly, (iv) the civil court had not compensated the applicant for his property loss resulting from the impoundment. As to the latter, the applicant argued that the court had committed a number of procedural and substantive errors, in particular, it had not obtained a counter-estimate regarding the car’s value from an official expert.

63.  The Court observes that while the vehicle in question was a means of personal transport, there is no evidence to suggest that the seizure had a significant impact on the applicant, which would have affected, for example, his personal or professional life, especially since, it seems, at the material time he was practically not at liberty (see paragraph 49 above).

64.  The Court notes, however, that the vehicle has been seized since February 2005 and that, between 2005 and 2013, its value decreased ten times. Five years into the car’s impoundment, the domestic court considered the alternative measure of auctioning the vehicle (see paragraphs 17 above).

65.  It appears that sometime after the failed auctions the applicant was allowed to collect his car, but he refused to do so in view of its deplorable condition and the fact that its market value was no more than EUR 325 (see paragraphs 11, 18 and 20 above). The Court accepts as likely that if the applicant had regained the control of his property sooner, he might have been able to sell his car while the value was still significant.

66.  It is true that, whether or not the initial value of the car was proportionate to any fines or damages for which it was meant to secure payment, the car’s impoundment did not, in the end, serve its original purpose. When the applicant was ultimately convicted, the compensation for the victim of his offences and the court fees amounted to a total of EUR 1,850 (see judgment of 17 June 2011, paragraph 16 above).

67.  The Court observes, nevertheless, that the seizure of the vehicle is not in itself open to criticism, particularly in view of the margin of appreciation permitted under the second paragraph of Article 1 of Protocol No. 1 and to the criminal proceedings against the applicant. The Court also accepts that any seizure or confiscation entails damage. The actual damage sustained, however, should not be more extensive than that which is inevitable, if it is to be compatible with Article 1 of Protocol No. 1 (see paragraph 60 above).

68.  To determine whether or not the damage sustained by the applicant was inevitable, the Court must answer whether it was reasonable to withhold the car for as long as it took and to assess whether the authorities afforded adequate storage conditions and guarded the car with due care.

69.  As to the duration of the measure, the Court accepts that the proper administration of justice takes time (see, mutatis mutandis, JGK Statyba Ltd and Guselnikovas, cited above, §§ 131 and 132). However, where an issue in the general interest is at stake, in particular when the matter affects fundamental human rights such as those involving property, the public authorities must act in good time (ibid, § 133).

70.  Taking into account the elements of the case described in the preceding paragraphs (see paragraphs 64-66 above), the Court considers that the fact that the car’s seizure did not ultimately serve its original purpose does not automatically render the measure unjustified by reference to the public interest. The impoundment of the car, albeit protracted, was justified throughout the criminal proceedings as they developed at the material time.

71.  As to the issue of the car’s auction, however, the Court cannot but conclude that, that given that the property seized was perishable and by reference to the proportionality of the measure, the auction had not been organised in good time.

72.  On the issue of diligence in the car’s maintenance, the Court first refers to the technical findings made by the expert appointed by the domestic court for the purposes of the civil proceedings. The expert considered that the car’s tenfold depreciation by 2013, had resulted from it being stationary for a long period of time without being protected from corrosion, and without the oil being changed and the battery charged (see paragraph 20 above). He also noted that the storage and carrying out of maintenance of that kind was not routine practice among the police, whose actions as custodians of seized vehicles were limited to storing them in secure car parks (ibid.).

73.  The Court observes that even if the existing legal framework did not impose specific duties in respect of the storage of seized movable property, the custodian was nevertheless bound by a general duty to “take care” of the object, that is to say, to act with the diligence necessary to ensure that the value of the item seized did not decrease (see paragraphs 29-31 above).

74.  It was therefore the applicable law, but above everything, common sense, that the authorities responsible for the impoundment of the applicant’s car should have stored it in adequate conditions (i.e. indoors). The Court does not find that such a requirement would have posed an impossible or disproportionate burden on the authorities. Should that have been the case, however, the authorities could have always made a timely choice to auction the car (see Article 232 of the CCP, paragraph 32 above).

75.  Conversely, the Court finds that to require the authorities responsible for the seizure to carry out technical maintenance, such as changing the oil and charging its battery, would have posed an impossible or disproportionate burden on them.

76.  Come what may, the Court finds that keeping the vehicle completely immobilised for many years in an outdoor car-park - as happened with the applicant’s car - cannot be considered due diligence.

77.  The Court therefore concludes that, in the circumstances of the case, the damage which the applicant sustained was more extensive than that which was inevitable. It follows that the domestic court committed a manifest error of judgment in considering that the authorities had offered the necessary level of diligence to the applicant’s vehicle.

78.  Lastly, the Court reiterates that Article 1 of Protocol No. 1 does not of itself give rise to an entitlement to compensation for any loss alleged to have been suffered as a result of the impoundment of property during the course of the criminal proceedings (see, mutatis mutandis, Hábenczius, cited above, § 30). It is in principle for the Contracting States to define the conditions of entitlement to compensation in such circumstances and it cannot be said that the scope of the compensatory remedy in the instant case, which required proof of an unlawful act, was such as to impose an individual and excessive burden on him (see, mutatis mutandis, Adamczyk (dec.), cited above).

79.  The Court observes that, under the existing legal framework, it is possible for individuals to hold the State liable in tort for the acts of servants or agents of a public authority. In the context of a car impoundment, a plaintiff would need to prove, for example, that the prosecutor had overstepped his authority in laying criminal charges against him or that his prosecution had been otherwise unlawful, or that the car had been damaged as a result of a tortious act committed by the authorities, whether deliberate or negligent, when acting as custodian of the vehicle (see Adamczyk (dec.), cited above).

80.  The Court’s power of review is limited to ascertaining whether the choice of compensation terms falls outside the State’s wide margin of appreciation in this area (see mutatis mutandis, James and Others, cited above, § 54).

81.  In the present case, the Court does not take issue with the existing legal framework, under which tort actions against the State Treasury were subject to certain conditions. But the fact that the applicant did not obtain compensation for the damage he sustained, did make his individual burden excessive. It follows that, in the circumstances of the case, the “fair balance” which should be struck between the protection of the right of property and the requirements of the general interest was upset.

82.  There has therefore been a violation of Article 1 of Protocol No. 1.

II.     APPLICATION OF ARTICLE 41 OF THE CONVENTION

83.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A.    Damage

84.  The applicant claimed 12,800 Polish zlotys (PLN, approximately, 3,200 euros, EUR) in respect of pecuniary damage. The applicant explained that the pecuniary damage sought represented the difference between the value of the car at the time of the seizure and that in 2013. The applicant also claimed EUR 10,000 under the head of non-pecuniary damage.

85.  The Government argued that the applicant’s claims were unjustified and excessive.

86.  The Court awards the applicant, on the basis of equity, EUR 2,500 in respect of pecuniary and non-pecuniary damage combined.

B.    Default interest

87.  The Court 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,

1.      Declares the application admissible;

2.      Holds that there has been a violation of Article 1 of Protocol No. 1 of the Convention;

3.      Holds

(a)  that the respondent State is to pay the applicant, within three months, EUR 2,500 (two thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of pecuniary and non-pecuniary damage, to be converted into Polish zlotys at the rate applicable at the date of settlement;

(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 21 December 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

                       

           Renata Degener                                                 Ksenija Turković
                 Registrar                                                             President