The confiscation of counterfeit clothes for more than six years was a disproportionate measure that constituted a violation of property rights
JUDGMENT
Łysak v. Poland 07.10.2021 (app. no. 1631/16)
SUMMARY
Confiscation of counterfeit clothes and right to property. Seizure of 582 goods following a police investigation into the applicant’s wholesale clothing business, for trade in counterfeit clothing imitating branded brands. The applicant alleged that the seizure of his property was unjustified and unnecessarily prolonged.
In the present case, the criminal investigation quickly led the Prosecutor to conclude that the goods of the three relevant marks, which had been offered for sale by the applicant, were in fact counterfeit. However, the ECtHR held that the national courts had not assessed all the relevant circumstances of the applicant ‘s case and had not sufficiently taken into account the possibility of taking less intervention measures in respect of his property. Consequently, the seizure of the applicant ‘s property – for more than six years – constituted an individual and excessive burden on the applicant, upsetting the “fair balance” between the protection of the right to peaceful enjoyment of property and the interests of the general interest.
Violation of Article 1 of the First Additional Protocol to the Convention.
PROVISION
Article 1 of the First Additional Protocol
PRINCIPAL FACTS
The applicant, Wojciech Łysak, is a Polish national who was born in 1984 and lives in Katowice
(Poland).
The case concerns the seizure of 582 items of stock following a police search of the applicant’s
wholesale clothing business in 2013. The search was connected to an investigation into the trade in
counterfeit clothes.
Relying on Article 1 (protection of property) of Protocol No. 1, the applicant complains that the
seizure of his property had been unjustified and unnecessarily protracted.
THE DECISION OF THE COURT…
In the present case, the alleged violation of the applicant’s property rights stems, on the one hand, from the initial imposition of the measure and, on the other hand, from the fact that it has remained in force for over six years, while the main criminal investigation is still ongoing.
The Court accepts the justification given for the initial decisions to seize the applicant’s merchandise and to classify it as evidence in the criminal proceedings concerning trading counterfeit clothes. The suspicion that the clothes in question were counterfeit had indeed been very strong in the light of the statements made by the representatives of the brands concerned and in the expert report.
As to the duration of the measure, the Court accepts that the proper administration of justice takes time. However, where an issue in the general interest is at stake, in particular when the matter affects fundamental human rights such as those involving property, the public authorities must act in good time.
In the present case, the criminal investigation fairly quickly led the prosecutor to conclude that the merchandise of the three brands concerned, which had been offered for sale by the applicant, was indeed counterfeit. Since 2014 the sole thrust of the investigation (in so far as it concerns brands B. and G.) has thus been to establish the second necessary element of the offence in question, that is, the applicant’s criminal intent. To that end, the authorities seized the applicant’s business records. They also set up international cooperation to find the applicant’s alleged collaborators operating in the countries were the clothes were made. The investigation was for some time, or possibly still is, officially stayed, awaiting the results of that international cooperation..
The Court also notes that in respect of the third brand concerned, T.H., the case was severed and the applicant was acquitted.
It would therefore seem that the clothes in question could not, for some time now, be legitimately perceived as necessary evidence, which was the formal justification for the seizure. Moreover, the Court observes that, in light of the material at its disposal, no other related criminal investigation has been opened by the authorities and no civil proceedings have been instituted against the applicant by the brands concerned for the alleged trademark infringement. It also appears that any such action would at this point be statute-barred.
Furthermore, the Court observes that in the absence of a forfeiture order, the clothes in question continue to be the applicant’s property. If the seizure was lifted, the applicant could make an informed decision on how to use or dispose of the clothes in question.
Lastly, the Court considers that the applicant’s situation was not sufficiently mitigated by the existence of a remedy within the civil-law framework of implied warranty for defects, as invoked by the Government. In the absence of any examples of relevant domestic practice, the Court is not convinced that the above framework would have allowed the applicant to seek and obtain compensation from his suppliers (contrast Sulejmani v. the former Yugoslav Republic of Macedonia, no. 74681/11, § 41, 28 April 2016).
The foregoing considerations are sufficient to enable the Court to conclude that the domestic courts did not evaluate all the relevant circumstances of the applicant’s case and did not give sufficient consideration to the possibility of taking less intrusive measures with respect to the applicant’s property. As a result, the retention of the applicant’s property for over six years constituted an individual and excessive burden on the applicant, upsetting the “fair balance” which should be struck between the protection of the right to the peaceful enjoyment of possessions and the requirements of the general interest.
There has accordingly been a violation of Article 1 of Protocol No. 1 to the Convention.
Just satisfaction:
The question is not ready for decision and has been set aside.
