CASE OF WALDEMAR NOWAKOWSKI v. POLAND
Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property);Non-pecuniary damage - award;Pecuniary damage - reserved (Article 41 - Pecuniary damage)
David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
5. The applicant was born in 1933 and lives in Warsaw. 6. The applicant is a veteran of the Polish Resistance during the Second World War and a former professional officer of the Polish Army. His veteran status on the grounds of his involvement in the underground Scouts movement during that war was recognised by an administrative decision given on an unspecified date by the Director of the Veterans’ Office. 7. For the last fifty years the applicant collected antique arms and weapons from the period of the Second World War and earlier. 8. On 7 and 8 July 2008 the police searched the applicant’s home and summer cottage. They confiscated the applicant’s collection which at that time numbered 199 pieces. 9. On 16 July 2008 the Director of the Warsaw Uprising Museum (“the Museum”) in Warsaw issued a statement for the purposes of an investigation against the applicant which had been instituted immediately after the search and seizure. He stated that the applicant had been cooperating with the Museum as a specialist in old weaponry and that on a number of occasions he had lent certain pieces of his collection for the purposes of their being exhibited at the Museum. He stated that the applicant’s expertise was highly valued by the Museum. 10. On 8 July and 29 August 2008 the prosecuting authorities ordered that an expert opinion be prepared as to whether the confiscated pieces were to be regarded as arms within the meaning of the legislation governing the licensing of possession of arms. 11. On 18 October 2010 the Director of the Veterans’ Office sent a letter to the Warszawa Wola District Court. He stated that the applicant’s integrity and the fact that he was a law-abiding citizen were wellknown. He had been decorated on a number of occasions for his involvement in the Polish Resistance during the Second World War. By accumulating a unique collection of historical weapons, uniforms and military equipment he had rendered outstanding services in the dissemination of knowledge about the history of Poland. He had financed this collection himself, at considerable personal sacrifice. The fact that criminal proceedings had been instituted against him had met with general disbelief. It had been universally considered among persons interested in military history that his collection could not possibly be regarded as posing any threat to public order. On the contrary, it had played a significant role in teaching younger generations about the history of Poland and about the fight for the country’s independence. The applicant’s services not only merited recognition but should also be taken into consideration by the court in the assessment of his guilt and any sentence to be imposed on him. 12. On 16 July 2010 the prosecution ordered that 24 pieces of the collection should be returned to the applicant, relying on an expert opinion prepared for the purposes of the investigation. The expert concluded that these items were only parts of weapons and therefore a licence to possess them was not necessary. On 20 July 2010 a bill of indictment against the applicant on charges of illegal possession of arms was filed with the Warszawa Wola District Court. 13. On 18 November 2010 the Warszawa Wola District Court discontinued the criminal proceedings against the applicant concerning charges of illegal possession of arms, contrary to Article 263 § 2 of the Criminal Code. 14. The court first listed 171 pieces of the applicant’s collection, the oldest of them produced in 1889. 15. The court noted that the applicant had explained that he had been collecting old arms, mostly memorabilia of the Second World War as well as other older pieces, for almost fifty years. He had previously on numerous occasions made parts of his collection available on loan to various museums. He had been collaborating as an expert in old weaponry with the Warsaw Uprising Museum. The court noted that the applicant had explained that in order to prevent unauthorised third parties from having access to the collection he had kept it in his apartment which was secured with three locks and equipped with an alarm. He had also taken the necessary technical measures to make it impossible to use most of the weapons in his possession as arms. He declared his willingness to take such measures also in respect of the remaining pieces. 16. The court acknowledged that no criminal intent to use the arms to anyone’s detriment could reasonably be ascribed to the applicant. However, he must have known that the possession of arms without a permit was unlawful. He had not availed himself of the possibility of legalising his collection by having recourse to the 2005 Arms Legalisation Act, devised specifically with a view to making it possible for Second World War veterans and other persons having fought for the independence of Poland to regularise arms acquired in the past and in connection with their involvement in the Polish Resistance. 17. The court acknowledged that there had been no evidence whatsoever that the applicant had ever used the arms with any criminal intent. It emphasised that the applicant was, at that time, 77 years old, a war veteran who had fought in the Warsaw Uprising and who was a retired professional officer of the Polish Army with no criminal record. He was a lawabiding citizen. 18. The court observed that the applicant’s submissions as to the part of the collection which had been put out of action had been partly confirmed by the experts. The experts had found that it was impossible to use most of the pieces as weapons, but that some of them could be made to work again (“ze znacznej większości egzemplarzy broni nie było możliwe oddanie strzalu, niemniej jednak z części egzemplarzy broni możliwym było oddanie strzału, jak również możliwym było przywrócenie cech użytkowych broni”). 19. The court concluded that the offence was minor in nature and discontinued the criminal proceedings against the applicant, referring to Article 17 paragraph 1 (3) of the Criminal Code. At the same time, the court decided to apply Article 100 of the Criminal Code in conjunction with its Article 39 and to confiscate 171 pieces of the collection. 20. The court, explaining why it decided to avail itself of its discretionary power to confiscate the entire collection, stated that dividing up the collection by returning to the applicant those pieces which had already been put out of action would seriously diminish its value. It noted that the collection should, because of its historical interest, be handed over to an institution capable of securing appropriate storage and display conditions for it. 21. The applicant and the prosecution appealed. The applicant essentially challenged the confiscation measure. 22. By a decision of 22 February 2011 the Warsaw Regional Court upheld the first-instance decision. It fully endorsed the reasoning of the lower court. It further noted that the confiscation of the collection should not lead to its destruction. The State authorities should be well aware of the historical value of the collection (“organy państwa winny zdawać sobie sprawę z ... wartości historycznej zabezpieczonych przedmiotów”). 23. On 16 March 2011 the Warszawa Wola District Court invited the Warsaw Uprising Museum to indicate whether they would be interested in the applicant’s collection. On 28 June 2011 the Director of the Museum replied, indicating that the Museum wished to take certain pieces selected by P.B., the Museum’s expert. On 16 September 2011 the court authorised the transfer of these pieces to the Museum and on 17 October 2011 they were transferred. 24. On 16 September 2011 the same court requested the Office for the Protection of Monuments in Warsaw, the Regional Curator for Monuments (Urząd Ochrony Zabytków w Warszawie, Mazowiecki Wojewódzki Konserwator Zabytków), to indicate the name of a cultural institution which would accept the remainder of the collection. A number of cultural institutions expressed their interest, including the Warsaw Uprising Museum. The Warsaw Uprising Museum also expressed interest in the remainder of the collection covered by the forfeiture decision. The Regional Curator for Monuments gave a positive opinion in this regard. This part of the collection is currently being transferred to the Museum. “1. The Republic of Poland shall protect property and a right to inherit. 2. Expropriation is allowed only in the public interest and against payment of just compensation.” 26. Article 31of the Constitution reads: “Freedom of the person shall be legally protected. Everyone shall respect the freedoms and rights of others. No one shall be compelled to do anything which is not required by law. Any limitation upon the exercise of constitutional freedoms and rights may by imposed only by statute, and only when necessary in a democratic state for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights.” 27. Article 79 § 1 of the Constitution provides as follows: “In accordance with principles specified by statute, everyone whose constitutional freedoms or rights have been infringed, shall have the right to appeal to the Constitutional Court for a judgment on the conformity with the Constitution of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in the Constitution.” 28. Under its settled case-law, the Constitutional Court has jurisdiction only to examine the compatibility of legal provisions with the Constitution and is not competent to examine the way in which courts interpreted applicable legal provisions in individual cases (e.g. SK 4/99, 19 October 1999; Ts 9/98, 6 April 1998; Ts 56/99, 21 June 1999). 29. Article 17 paragraph 1(3) of the Code of Criminal Procedure provides that criminal proceedings shall be discontinued if the seriousness of a criminal offence is negligible. 30. Article 100 of the Criminal Code provides that where the seriousness of a criminal offence is negligible, the court may order confiscation, within the meaning of Article 39 of that Code, of objects connected with the offence. 31. Article 263 paragraph 2 of the Criminal Code penalises possession of weapons or ammunition without a licence.