CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 5 mars 2024

.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 } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; 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 } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s9F46BEC9 { margin-top:14pt; margin-bottom:12pt; text-align:justify; font-size:14pt } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sC986E16F { font-family:Arial; color:#ffffff } .s68D1564D { width:34.89pt; display:inline-block } .sC6B6F7B3 { width:150.43pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block }     FIRST SECTION DECISION Application no. 67322/14 Iwona SŁOMIAŃSKA against Poland   The European Court of Human Rights (First Section), sitting on 5   March   2024 as a Committee composed of:   Péter Paczolay , President ,   Alena Poláčková,   Gilberto Felici , judges , and Liv Tigerstedt, Deputy Section Registrar, Having regard to: the application (no.   67322/14) 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 11   December 2014 by a Polish national, Ms Iwona Słomiańska (“the applicant”), who was born in 1986, lives in Opole and was represented by Mr A. Sieradzki, a lawyer practising in Kępa; the decision to give notice of the application to the Polish Government (“the Government”), represented by their Agent, Mr. J. Sobczak of the Ministry of Foreign Affairs; the parties’ observations; Having deliberated, decides as follows: SUBJECT MATTER OF THE CASE 1.     The case concerns the confiscation of the applicant’s stock of designer drugs (“ dopalacze ”, “legal highs”) and the order to cease operation of her shop on the basis of an administrative decision. 2.     The applicant ran a sex shop in which she offered designer drugs. The commercialisation of designer drugs was not explicitly prohibited in Poland until 27 November 2010. However, throughout 2010 the problem of ingestion of designer drugs, marketed as “collectible items” ( przedmioty kolekcjonerskie , not intended for human consumption) gained public attention due to an increased number of medical interventions and hospitalisations. 3 .     On 2 October 2010 the Chief Sanitary Inspector issued an immediately enforceable decision ordering the withdrawal from the market of “the product called ‘Tajfun’, identified as a ‘collectible item’, as well as all similar products that may pose a direct threat to human life or health”. The decision further ordered the facilities used for the production, wholesale, and retail of those products to cease operations. 4 .     On the same day, sanitary inspection officials confiscated all designer drugs identified as collectible items from the applicant’s shop. 5 .     The applicant contested the decision, complaining, notably, that: (i) she had only been served with a photocopy of the decision, not signed by any authorised person, and not indicating the applicant as the decision’s addressee, or her shop as a targeted retail point; (ii) the confiscated products had not been marketed under the name “Tajfun”; and (iii) she had no access to the material evidence gathered by the officials. 6.     The applicant’s motion for reconsideration of the case was dismissed by the Chief Sanitary Inspector on 12 September 2011. Her appeal and cassation appeal were dismissed, respectively, by the Warsaw Regional Administrative Court on 31 May 2012 and the Supreme Administrative Court on 25 April 2014. 7.     The applicant complained under Article 1 of Protocol No. 1 to the Convention: (i) that her stock of merchandise, the commercialisation of which was not explicitly prohibited at the material time, was confiscated without compensation; and (ii) that her business, of which the sales of designer drugs had been but a small part, ceased to exist as a result of the State’s intervention. THE COURT’S ASSESSMENT 8.     The Government submitted that, in their view, the applicant had failed to exhaust the available domestic remedies as she failed to lodge a constitutional complaint regarding the provisions on which the impugned decision had been based. The applicant contested that view. 9.     The Court does not need to rule separately on the Government’s objection, as the present application is in any event inadmissible for the following reasons. 10.     The parties agreed that the confiscation decision amounted to an interference with the applicant’s right to the peaceful enjoyment of her possessions. The Court sees no reason to conclude otherwise. 11.     As regards the type of interference, a confiscation measure, even though it involves a deprivation of possessions, nevertheless constitutes control of the use of property within the meaning of the second paragraph of Article   1 of Protocol No. 1 to the Convention ( see Imeri v.   Croatia , no.   77668/14, § 66, 24 June 2021). 12.     The applicant contended that the interference had not been lawful. She relied on the reasons referred to in paragraph 5 above and on the claim that the confiscated merchandise had not been illegal at the material time. 13.     In this context, it should be noted that even though the legal status of the confiscated products had not been clearly defined at the time, the domestic authorities confiscated them based on a suspicion that they contained psychoactive substances which could pose a threat to human life or health, as provided for by domestic law. The Court notes that under Section 27 of the Law of 14 March 1985 on State Sanitary Inspection, having found a violation of hygiene and health requirements, the Chief Sanitary Inspector orders, by way of a decision, the removal of the identified deficiencies within a specified period (paragraph 1). If the identified violation may cause a direct threat to human life or health, the inspector is required to take further actions, aimed essentially at minimising the identified threat, including but not limited to withdrawing the product from the market, with the decision in this respect being subject to immediate enforcement (paragraph 2). In the present case, noting that, when issuing and enforcing the decision of 2 October 2010 (see paragraph 3 above), the authorities relied on the abovementioned provisions and that, within the ensuing proceedings, they sought expert opinions which confirmed the risk associated with the seized products, the Court concludes that the impugned interference was lawful. 14.     Regarding the purpose of the interference, it was not in dispute and the Court agrees with the view that it had been motivated by the protection of public health. The “burden” placed on the applicant as a result of the confiscation must therefore be weighed against the general interest of the community, that is, public health considerations, in which context the States enjoy a wide margin of appreciation ( see, mutatis mutandis , Tre Traktörer Aktiebolag v.   Sweden , 7 July 1989, § 62, Series A no. 159, and Vékony v.   Hungary , no.   65681/13, § 35 in principio , 13   January 2015). 15.     The applicant did not allege that other products containing no psychoactive substances had been confiscated. The interference with her property rights was therefore limited. Thus, having regard to the above considerations and to the particular context of the instant case, notably: (i) the pressing social need to tackle the issue of intoxication with products marketed as “collectible items”; (ii) the limited scope of the confiscation; and (iii) the fact that the applicant had the right to challenge the confiscation before administrative courts in adversarial proceedings (see, mutatis mutandis , Riela   and Others v.   Italy (dec.), no. 52439/99, 4 September 2001), the Court finds that the interference with the applicant’s right to the peaceful enjoyment of her possessions was not disproportionate to the legitimate aim pursued. The lack of compensation, on which the applicant relied, does not alter this view, especially considering that the applicant failed to provide any information regarding the quantity or value of the confiscated products and that all of those products were found to constitute a threat to human life or health ( see Depalle v. France [GC], no. 34044/02, § 91, ECHR   2010). 16.     In so far as the applicant complains that the order to cease operations (see paragraph 3 above in fine ) resulted in her being forced to close the entire business, the Court finds that the applicant has failed to provide any concrete evidence of her allegations, including submitting any official decision showing that she tried to have the order lifted or annulled. 17.     It follows that the application must be rejected as manifestly ill ‑ founded, 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 28 March 2024.     Liv Tigerstedt   Péter Paczolay   Deputy Registrar   President