Published on 19 April 2022

FIRST SECTION

Application no. 67322/14 Iwona SŁOMIAŃSKA against Poland lodged on 11 December 2014 communicated on 31 March 2022

SUBJECT MATTER OF THE CASE

The application concerns the proportionality of the confiscation of the applicant’s stock of designer drugs (“ dopalacze ”, “legal highs”) and of the order to cease operation of her shop on the basis of an administrative decision issued while the commercialization of designer drugs was not directly prohibited in Poland and which – according to the domestic courts (see below) – violated domestic procedural requirements.

The applicant ran a sex shop in which she offered designer drugs. The commercialization of designer drugs was not prohibited in Poland until 27 November 2010.

On 2 October 2010 the Chief Sanitary Inspector issued an immediately enforceable decision ordering withdrawal from the market of “the product called ‘Tajfun’, identified as a ‘collectible item’ [ przedmioty kolekcjonerskie ] [not intended for human consumption], 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 production, wholesale, and retail of those products to cease operations.

On the same day, sanitary inspection officials confiscated all designer drugs identified as collectible items from the applicant’s shop. The officials served the applicant with a photocopy of the decision, not signed by any authorized person. The copy did not indicate the applicant as the decision’s addressee, or her shop as a targeted retail point. None of the confiscated products were marketed under the name “Tajfun”.

The applicant’s motion for reconsideration of the case was dismissed by the Chief Sanitary Inspector on 12 September 2011. The applicant did not have access to the evidence material gathered by the Inspector. 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. The domestic courts took note of procedural violations regarding the form and service of the impugned decision as well as the applicant’s right to consult the case file but concluded that despite these shortcomings the decision remained valid.

As to the similarity between “Tajfun” and the products offered by the applicant, the domestic authorities were satisfied with the finding that the subsequent laboratory studies had shown that the confiscated products had had a psychoactive effect, without further elaborating on their threat to life or health.

The applicant invokes Article 1 of Protocol No. 1 to the Convention.

QUESTIONS TO THE PARTIES

Did the confiscation measure and the order to cease operations in the present case constitute an interference with the peaceful enjoyment of the applicant’s possessions, within the meaning of Article 1 of Protocol No. 1 to the Convention?

If so, was that measure lawful?

Can it be regarded as a proportionate interference, i.e. was the requisite fair balance struck between the general interests of the community and the protection of the applicant’s right to the enjoyment of her property? (see mutatis mutandis Vékony v. Hungary , no. 65681/13, §35, 13 January 2015, Markus v. Latvia , no. 17483/10, § 75, 11 June 2020, Wendenburg and Others v. Germany (dec.), no. 71630/01, 6 February 2003).