CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 29 septembre 2020

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s490D418E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify; font-size:1pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s58699FB5 { margin-top:14pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s5C131D27 { margin-top:14pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid; font-size:11pt } .s29100277 { font-family:Arial; font-weight:bold } .s59529DDD { margin-top:14pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s21B1FE17 { width:12.67pt; display:inline-block } .s1E36BC41 { width:119.5pt; display:inline-block } .s64406319 { width:11.68pt; display:inline-block } .s2753FA3F { width:163.53pt; display:inline-block }     FIRST SECTION DECISION Application no. 58089/15 Krzysztof BARTOSZEWSKI against Poland   The European Court of Human Rights (First Section), sitting on 29   September 2020 as a Committee composed of:   Linos-Alexandre Sicilianos, President,   Krzysztof Wojtyczek,   Armen Harutyunyan, judges, and Renata Degener, Deputy Section Registrar, Having regard to the above application lodged on 17 November 2015, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS 1.     The applicant, Mr Krzysztof Bartoszewski, is a Polish national, who was born in 1962 and lives in Mława. 2.     The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, and subsequently, Mr J. Sobczak of the Ministry of Foreign Affairs. 3.     On 23 January 2018 the Government were given notice of the application. The circumstances of the case 4.     The facts of the case, as submitted by the parties, may be summarised as follows. 5.     The applicant was born in 1962 and lives in Mława. 6.     On 4 July 2006 the Central Bureau of Investigation ( Centralne Biuro Śledcze ) ordered the seizure of the applicant’s 2003 Peugeot 307 as evidence in ongoing criminal proceedings against third parties who had been charged with drug-trafficking offences. The applicant did not appeal against the above-mentioned order. 7.     On 4 August 2006 forensic tests revealed traces of heroin in the vehicle in question. 8.     On 5 June 2007 the applicant’s car was declared material evidence in the case and on 20 August 2007 it was put at the disposal of the trial court. The applicant did not appeal against that order. 9.     On 4 May 2009 the Warsaw Regional Court ( Sąd Okręgowy ) authorised the transfer of the applicant’s car (along with other vehicles seized in the proceedings) to one of the alleged victims, with a prohibition on its sale. The applicant did not appeal against that decision. 10.     On 5 October 2011 the Warsaw Regional Court issued a ruling in the related criminal case against third parties. On 17 January 2012 that judgment became final and binding. 11.     On 26 March 2012 the Warsaw Regional Court ordered the return of the applicant’s car. It observed that the vehicle was no longer needed for the purposes of the criminal proceedings, which had been completed and in which it had been established that the applicant’s car had been used to transport the drugs. Such use, however, could not be classified as use “in the commission” of the offences for which the third parties had been tried. On 13   April 2012 that decision became enforceable. 12.     A privately contracted expert estimated the value of the car to have been 50,000   Polish zlotys ((PLN) – approximately 12,500 euros (EUR)) ‑ on 26   June 2006, and PLN   6,900 (EUR 1,725) on 30   August 2012. 13.     In November 2012 the applicant sued the State Treasury for PLN   43,350 (EUR 10,837), arguing that his car’s protracted impoundment had been unjustified. 14.     On 20 February 2014 the Warsaw District Court ( Sąd Rejonowy ) dismissed the applicant’s action, holding that he had failed to prove, as was required of a plaintiff, that he had suffered damage with a causal connection to the unlawful action of a public authority. The civil court concluded, firstly, that the protracted impoundment of the vehicle had not been unlawful. To that end, it observed that the applicant had not challenged the lawfulness of any of the decisions issued in respect of his car throughout the criminal proceedings in question. Secondly, in the court’s view, the applicant had failed to prove that he had sustained damage, namely, the value of his alleged pecuniary loss. In particular, the applicant had only submitted estimates produced by a privately contracted expert and he had not asked the court to obtain such evidence from a court-appointed one. 15.     On 3 June 2015 the Warsaw Regional Court dismissed an appeal by the applicant. The reasoning of its judgment was not provided, as the applicant’s lawyer had not submitted a request to that effect. In the applicant’s submission, pursuing the case was without any prospects of success. 16.     Throughout the proceedings described above, the applicant did not lodge any applications for the annulment of the order or the return of his vehicle. RELEVANT DOMESTIC LAW AND PRACTICE 17.     The relevant domestic law and practice is laid out in the Court’s inadmissibility decision in Adamczyk v. Poland (dec.), no. 28551/04, 7   November 2006. COMPLAINT 18.     The applicant essentially complained that the seizure of his car constituted an unjustified control of the use of his property, in breach of Article 1 of Protocol No. 1. THE LAW 19.     The applicant complained that the seizure of his car had amounted to an unjustified control of the 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.” 20.     The Government raised a preliminary objection that the case was inadmissible for non-exhaustion of domestic remedies. Firstly, the applicant had not appealed against the order for the seizure of his vehicle, or lodged any formal applications to retrieve it. Secondly, when suing the State before a civil court and thus being faced with the burden of proof, the applicant had failed to ask for an official valuation of the car to be produced by a court ‑ appointed expert. 21.     The applicant commented that, in the light of the failure of similar applications made by another third party affected by the seizures ordered for the purposes of the criminal proceedings in question, he had not seen any prospects of success in appealing against the seizure order or in applying to the prosecutor for the lifting of the measure. 22.     The Court reiterates the general principle that, having regard to the principle of subsidiarity, in cases where the alleged violation of the Convention or its Protocols no longer continues and cannot be eliminated with retrospective effect, the only means of redress for the applicant is pecuniary compensation (see, mutatis mutandis , Łatak v. Poland (dec.), no.   52070/08, § 65, 12 October 2010). 23.     The Court does not find it necessary, however, to decide on the Government’s objection because the application is in any event inadmissible for the following reasons. 24.     The Court observes that the authorities issued three decisions in respect of the applicant’s car, which was impounded between 2006 and 2012, first as evidence in criminal proceedings against third parties charged with drug-trafficking offences (see paragraph 8 above), and then – it would appear – as security towards any damages which might be awarded to the alleged victim (see paragraph 9 above). The applicant did not challenge any of these decisions because, as he later explained, he thought that any such appeal would have been bound to fail (see paragraphs 6, 8, 9 and 21 above). 25.     In view of the above considerations, the Court finds that the seizure of the applicant’s vehicle was lawful and justified, having regard in particular to the margin of appreciation permitted under the second paragraph of Article 1 of Protocol No. 1, the reasonable suspicion that the car in question had been used in the commission of serious criminal offences, and the fact that it was returned to the applicant shortly after the criminal proceedings in question had ended. 26.     The Court also observes that under the existing legal framework it is possible for individuals to hold the State liable in tort for the acts of public servants or agents of a public authority. The applicant’s subsequent civil lawsuit against the State Treasury failed on the merits because the court did not find the car’s impoundment unlawful or the damage proven (see   paragraphs 14 and 16 above). To that end, the domestic court relied on the fact that the applicant had not challenged the lawfulness of any of the decisions issued in respect of his car throughout the criminal proceedings in question. It also did not consider that the privately commissioned valuation of his alleged pecuniary loss was sufficient to prove the damage sustained. 27.     In the Court’s view, incidentally, the valuation of the car by an expert who had been privately contracted by the applicant constitutes sufficiently reliable prima facie documentary evidence of the damage sustained by the applicant as a result of his car’s impoundment for six years. The Court reiterates, however, 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 criminal proceedings (see, mutatis mutandis , Hábenczius v.   Hungary , no.   44473/06, § 30, 21 October 2014). 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 on him an individual and excessive burden (see, mutatis mutandis , Adamczyk , cited above). 28.     Having regard to the above considerations, the Court finds that the authorities cannot be said to have failed in their duty to strike a fair balance between the applicant’s property rights and the general interests of the community. 29.     It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 22 October 2020.   Renata Degener   Linos-Alexandre Sicilianos   Deputy Registrar   President