The long-term confiscation of a car, which due to improper guarding, lost its value violated the right to respect for property!
JUDGMENT
Stołkowski v. Poland 21.12.2021 (app. no. 58795/15)
SUMMARY
Confiscation of property and right to property.
The ECtHR has already ruled that any confiscation of property constitutes an infringement of the right to respect for property.
In the present case the applicant’s car was confiscated by the authorities in order to secure his payment, payment of a fine and court costs pending in criminal proceedings with the accused defendant. The vehicle was stored outdoors for, at least due diligence for its maintenance such as oil and battery change was not observed and was not auctioned in time. Its value decreased by 10% from its original value on the day it was confiscated.
The ECtHR found that the seizure of the car, although prolonged, was justified throughout the criminal proceedings, as it developed at the time of the facts.
However, it accepted that the applicable law, but mainly common sense, required the authorities responsible for the seizure of the car, they should have kept it in appropriate conditions. The Court did not find that such a claim would have created an impossible or disproportionate burden on the competent authorities. In any case, if the storage was too heavy, they could always have made an early choice to auction the car.
The ECtHR held that because the applicant had not received compensation for the damage suffered, he had been overburdened and the “fair balance” to be struck between the protection of property rights and the interests of the general interest had been disturbed, thus violating his right to property. It awarded an amount of 2,500 euros for non-pecuniary damage.
PRINCIPAL FACTS
The applicant, Marek Stołkowski, is a Polish national who was born in 1975.
The case concerns the seizure of the applicant’s Peugeot XV car in 2005. It was initially seized to
cover any payments of fines or damages that could have resulted from his then upcoming criminal
trial. While in storage, the condition of the car greatly degraded.
Relying on Article 1 of Protocol No. 1 (protection of property) to the European Convention, the
applicant complains that the seizure was unjustified.
THE DECISION OF THE COURT…
The Court observes that while the vehicle in question was a means of personal transport, there is no evidence to suggest that the seizure had a significant impact on the applicant, which would have affected, for example, his personal or professional life, especially since, it seems, at the material time he was practically not at liberty.
The Court notes, however, that the vehicle has been seized since February 2005 and that, between 2005 and 2013, its value decreased ten times. Five years into the car’s impoundment, the domestic court considered the alternative measure of auctioning the vehicle.
It appears that sometime after the failed auctions the applicant was allowed to collect his car, but he refused to do so in view of its deplorable condition and the fact that its market value was no more than EUR 325. The Court accepts as likely that if the applicant had regained the control of his property sooner, he might have been able to sell his car while the value was still significant.
It is true that, whether or not the initial value of the car was proportionate to any fines or damages for which it was meant to secure payment, the car’s impoundment did not, in the end, serve its original purpose. When the applicant was ultimately convicted, the compensation for the victim of his offences and the court fees amounted to a total of EUR 1,850.
The Court observes, nevertheless, that the seizure of the vehicle is not in itself open to criticism, particularly in view of the margin of appreciation permitted under the second paragraph of Article 1 of Protocol No. 1 and to the criminal proceedings against the applicant. The Court also accepts that any seizure or confiscation entails damage. The actual damage sustained, however, should not be more extensive than that which is inevitable, if it is to be compatible with Article 1 of Protocol No. 1 .
To determine whether or not the damage sustained by the applicant was inevitable, the Court must answer whether it was reasonable to withhold the car for as long as it took and to assess whether the authorities afforded adequate storage conditions and guarded the car with due care.
As to the duration of the measure, the Court accepts that the proper administration of justice takes time (see, mutatis mutandis, JGK Statyba Ltd and Guselnikovas, cited above, §§ 131 and 132). 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 (ibid, § 133).
Taking into account the elements of the case described in the preceding paragraphs, the Court considers that the fact that the car’s seizure did not ultimately serve its original purpose does not automatically render the measure unjustified by reference to the public interest. The impoundment of the car, albeit protracted, was justified throughout the criminal proceedings as they developed at the material time.
As to the issue of the car’s auction, however, the Court cannot but conclude that, that given that the property seized was perishable and by reference to the proportionality of the measure, the auction had not been organised in good time.
On the issue of diligence in the car’s maintenance, the Court first refers to the technical findings made by the expert appointed by the domestic court for the purposes of the civil proceedings. The expert considered that the car’s tenfold depreciation by 2013, had resulted from it being stationary for a long period of time without being protected from corrosion, and without the oil being changed and the battery charged. He also noted that the storage and carrying out of maintenance of that kind was not routine practice among the police, whose actions as custodians of seized vehicles were limited to storing them in secure car parks.
The Court observes that even if the existing legal framework did not impose specific duties in respect of the storage of seized movable property, the custodian was nevertheless bound by a general duty to “take care” of the object, that is to say, to act with the diligence necessary to ensure that the value of the item seized did not decrease.
It was therefore the applicable law, but above everything, common sense, that the authorities responsible for the impoundment of the applicant’s car should have stored it in adequate conditions (i.e. indoors). The Court does not find that such a requirement would have posed an impossible or disproportionate burden on the authorities. Should that have been the case, however, the authorities could have always made a timely choice to auction the car .
Conversely, the Court finds that to require the authorities responsible for the seizure to carry out technical maintenance, such as changing the oil and charging its battery, would have posed an impossible or disproportionate burden on them.
Come what may, the Court finds that keeping the vehicle completely immobilised for many years in an outdoor car-park – as happened with the applicant’s car – cannot be considered due diligence.
The Court therefore concludes that, in the circumstances of the case, the damage which the applicant sustained was more extensive than that which was inevitable. It follows that the domestic court committed a manifest error of judgment in considering that the authorities had offered the necessary level of diligence to the applicant’s vehicle.
Lastly, the Court reiterates that Article 1 of Protocol No. 1 does not of itself give rise to an entitlement to compensation for any loss alleged to have been suffered as a result of the impoundment of property during the course of the criminal proceedings. It is in principle for the Contracting States to define the conditions of entitlement to compensation in such circumstances and it cannot be said that the scope of the compensatory remedy in the instant case, which required proof of an unlawful act, was such as to impose an individual and excessive burden on him.
The Court observes that, under the existing legal framework, it is possible for individuals to hold the State liable in tort for the acts of servants or agents of a public authority. In the context of a car impoundment, a plaintiff would need to prove, for example, that the prosecutor had overstepped his authority in laying criminal charges against him or that his prosecution had been otherwise unlawful, or that the car had been damaged as a result of a tortious act committed by the authorities, whether deliberate or negligent, when acting as custodian of the vehicle.
The Court’s power of review is limited to ascertaining whether the choice of compensation terms falls outside the State’s wide margin of appreciation in this area.
In the present case, the Court does not take issue with the existing legal framework, under which tort actions against the State Treasury were subject to certain conditions. But the fact that the applicant did not obtain compensation for the damage he sustained, did make his individual burden excessive. It follows that, in the circumstances of the case, the “fair balance” which should be struck between the protection of the right of property and the requirements of the general interest was upset.
There has therefore been a violation of Article 1 of Protocol No. 1.
