Communicated on 27 March 2018

FIRST SECTION

Application no. 1631/16 Wojciech ŁYSAK against Poland lodged on 21 December 2015

STATEMENT OF FACTS

The applicant, Mr Wojciech Łysak , is a Polish national, who was born in 1984 and lives in Katowice. He is represented before the Court by Mr K. Grochalski , a lawyer practising in Czelad ź .

A. The circumstances of the case

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

The applicant ran a business of selling branded clothes.

On 21 February 2013 the police searched his business premises and seized some of his merchandise in relation to a criminal inquiry in rem (i.e. without a designated suspect) into the allegations of trading of counterfeited clothes. On 28 February 2013 the Sosnowiec District Prosecutor ( Prokurator Rejonowy ) authorised that search. On 1 and 6 May 2013 the seized clothes were exa mined by an expert. On 24 April 2013 more merchandise was seized under the district prosecutor ’ s order of 22 April 2013. Altogether, 582 items of the applicant ’ s merchandise were seized by the police.

On 1 May 2013 these clothes were examined by an expert.

On 13 May 2013 the police issued a decision on classifying the enumerated items of merchandise, which had been impounded in February and in April, as evidence in the criminal inquiry under suspicion that the items were not original.

On 28 May 2013 the applicant lodged an interlocutory appeal against this decision, arguing that the suspicion was ill-founded.

On 28 August 2013 the Sosnowiec District Court ( SÄ…d Rejonowy ) dismissed this appeal as groundless. The court relied on the opinion of an expert who concluded that the trademarks on the clothes in question might be fake . The court also observed that the inquiry had been carried out with some delay.

On 3 June and 18 July 2013 the authorities ordered reports from two experts to establish whether the merchandise seized from the applicant bore original or counterfeited trademarks. The reports were produced on an unspecified date. Their copies have not been submitted to the Court. The applicant claims that the reports were inconclusive.

On 2 July 2014 the district prosecutor authorised another search of the applicant ’ s business premises and the seizure of his business records. On 3 and 7 July 2014 these items were classified as evidence. On 9 July 2014 the applicant lodged an interlocutory appeal against the prosecutor ’ s decision and asked that the items be returned. On 10 September 2014 the Sosnowiec District Court dismissed this appeal, holding that the records were necessary for the inquiry.

On 1 December 2014 and on 18 May 2015 the applicant asked the prosecutor to return to him the material evidence subject of the decision of 13 May 2013, arguing that it had become useless for the inquiry. On 16 December 2014 and on 8 June 2015, respectively the district prosecutor informed the applicant by letters that his applications could not be granted because the inquiry had been stayed, awaiting activities in the framework of international cooperation.

B. Relevant domestic law and practice

1. Ownership and seizure of property

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.”

Pursuant to Article 217 § 1 of the Code of Criminal Procedure ( Kodeks Postępowania Karnego ), objects to be used as evidence in a criminal case or for the purposes of securing the payment of fines, can be seized by the police or by the prosecuting authorities.

The measure of property seizure is further regulated in Articles 291 ‑ 295 of the Code of Criminal Procedure.

Article 299 § 1 of that code provides that, in the preliminary proceedings, a victim and a suspect are parties to the proceedings. Under Article 302 of the Code of Criminal Procedure, persons who are not parties are entitled to lodge interlocutory appeals against decisions ( postanowienia ) and orders ( zarządzenia ) which breach their rights and against other activities of the prosecutor which breach their rights.

2. Compensation from State Treasury

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 law.”

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

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

Article 417 1 of the Civil Code, insofar as relevant, reads as follows:

“3. If damage has been caused by failure to give a ruling ( orzeczenie ) or decision ( decyzja ) where there is a statutory duty to give one, reparation for [the damage] may be sought after it has been established in the relevant proceedings that the failure to give a ruling or decision was contrary to the law, unless otherwise provided for by other specific provisions.”

“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.”

In the practice of domestic courts, a claim under Article 417 1 of the Civil Code does not arise unless the unlawfulness of the action or omission resulting in damage had been declared in separate proceedings ( prejudykat ) (see, Słupsk Regional Court ’ s judgment of 2 February 2017, IC 342/16).

3. Remedy for unreasonable length of proceedings

The Law of 17 June 2004 on complaint about breach of the right to have a case examined in judicial proceedings without undue delay ( Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki – “the 2004 Act”) applies to investigation and trial (Section 2, as amended in 2009) and is available, in criminal proceedings – to a party ( strona ) or a victim ( pokrzywdzony ), even if he or she is not a party (Section 3(4)).

COMPLAINTS

The applicant complains under Article 1 of Protocol No. 1 to the Convention of the unjustified and unnecessarily protracted control of use of his property.

QUESTIONS TO THE PARTIES

1. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?

2. Has there been an interference with the applicants ’ peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1? 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 applicants (see 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)?