Resolution CM/ ResDH ( 2013) 247 Rosenzweig and Bonded Warehouses Ltd against Poland

Execution of the judgments of the European Court of Human Rights

Application No.

Case

Judgment of

Final on

51728/99

ROSENZWEIG AND BONDED WAREHOUSES LTD.

28/07/2005

05/06/2012

30/11/2005

22/10/2012

(Adopted by the Committee of Ministers on 5 December 2013

at the 1186th meeting of the Ministers ’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Having regard to the final judgments transmitted by the Court to the Committee in this case and to the violation established;

Recalling the respondent State ’ s obligation, under Article 46, paragraph 1, of the Convention, to abide by all final judgments in cases to which it has been a party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with the above-mentioned obligation;

Having examined the action report provided by the government indicating the measures adopted in order to give effect to the judgments including the information provided regarding the payment of the just satisfaction awarded by the Court (see document DH-DD(2013)1236 );

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted,

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination thereof.

ACTION REPORT [1]

Information on measures aiming at execution of the judgment

in the case of Rosenzweig and Bonded Warehouse Ltd. against Poland

Case description

Rosenzweig and Bonded Warehouse Ltd. v. Poland, application no. 51728/99, judgment on merits of 28/07/2005, final on 30/11/2005, judgment on just satisfaction of 05/06/2012, final on 22/10/2012.

The case concerns the disproportionate control of the use of the applicants ’ property. in 1994, the applicant company was granted a licence to run a bonded warehouse in Słubice and in June 1995 a further permit was issued for exporting merchandise via the border crossing in this town. In November 1995, the export permit was revoked and the customs officers ordered that the headquarters of the applicant company be closed and sealed the door, preventing it from conducting further business. Subsequently the validity of that permit was re-examined several times. Later on a new set of proceedings was instituted in which authorities revoked the licence granted in 1994. Ultimately , the decisions on revocation of the licence to run a bonded warehouse in Słubice of 18 February 1994 and of the permit for exporting merchandise of 1 June 1995 were set aside as being not in accordance with domestic law by the Main Customs Office.

The European Court observed that the withdrawal of valid permits to run a business was an interference with the right to the peaceful enjoyment of possessions. It further noted that the withdrawal of the June 1995 license and the ensuing proceedings in which the validity of that permit was re-examined several times made it impossible for the business to operate. The European Court found that the authorities had not shown that there had been any suspicion that the operation of Bonded Warehouses Ltd was in any way unlawful or dishonest, or that the applicants had been involved in any attempt to evade customs. The European Court concluded that it had not been shown that the authorities followed any genuine and consistent policy considerations when revoking and changing their decisions concerning the operation of Bonded Warehouses Ltd. (violation of Article 1 of Protocol 1).

In its judgment of 05/06/2012 the European Court awarded the first applicant – Mr. Bronisław Rosenzweig 5,000 EUR as just satisfaction in respect of non-pecuniary damage and 10,000 EUR to both applicants in respect of costs and expenses. Both amounts were paid within the time-limit.

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total amount

-

5,000 EUR

10,000 EUR

15,000 EUR

Paid on 04/01/2013

2. Individual measures

The decisions revoking the licence to run a bonded warehouse in SÅ‚ubice of 18 February 1994 and of the permit for exporting merchandise of 1 June 1995 were set aside. Nevertheless, the applicant company did not resume its operations afterwards.

The applicants instituted the proceedings for just satisfaction claims before the domestic courts in 1996 on the basis of the same facts as invoked in the case before the European Court. By a judgment of 31 December 2007 the domestic court dismissed their compensation claim on the ground that the applicants had failed to submit evidence that they had suffered damage as a result of the decisions concerned (paragraph 16 of the judgment of 05/06/2012).

Also in the proceedings before the European Court the applicants claimed compensation in the amount of 8.000.000 EUR, in particular for lost profits which they could have derived from the company ’ s operation, lost merchandise and significant expenditure they had incurred in connection with setting up their business.

The European Court, in its judgment of 05/06/2012 on just satisfaction, dismissed the applicants` claims in respect of pecuniary damage as they had not been duly documented, despite the Court ’ s efforts to assist the applicants. In its assessment of the pecuniary damage the European Court had regard to the applicants ’ conduct in the proceedings leading to the adoption of the judgment on just satisfaction: notwithstanding its request to the parties to agree on the appointment of an independent expert who would submit a report to the Court the applicants did not comply with that suggestion. Moreover, they declined the Government ’ s offer to pay the costs of an independent expert with a view to preparing a report on the pecuniary damage suffered by the applicants without cogent reasons for this refusal. The applicants also refused to submit their own expert estimates of the pecuniary damage within additional time limit. The European Court further noted that the estimates furnished by the applicants involved a significant degree of speculation (paragraphs 37-43 of the judgment of 05/06/2012).

Taking these circumstances into consideration, any measures of an individual nature do not appear necessary.

The case seems to be a one-off historic case, resulting from the incorrect practice of the state authorities, in particular the local customs office. The revocation of the permit and the license was not in conformity with applicable laws and was ultimately set aside by the Main Customs Office (see: individual measures). In order to prevent similar violations occurring in the future translation and dissemination of the judgment should be sufficient.

In this respect it should be noted that the Court ’ s judgment was translated into Polish and published at the website of the Ministry of Justice. The judgment was also disseminated among judges of the administrative courts and the Ministry of Finance arranged for dissemination of the judgment via the customs administration throughout the country. On 08/03/2006 the Customs Department of the Ministry of Finance wrote to directors of customs administration enclosing the judgment together with a summary of its main conclusions.

Taking these circumstances into consideration, additional measures of a general nature do not appear necessary.

The government considers that further measures on an individual basis are not necessary in this case and that the adopted measures of a general nature will be sufficient to say that Poland fulfilled its obligations under Article 46 paragraph 1 of the Convention.

[1] Information submitted by Polish authorities on 13 November 2013