ADAMCZYK v. POLAND
Inadmissible
Nicolas Bratza
The applicant, Mr Grzegorz Adamczyk, is a Polish national who was born in 1961 and lives in Zawiercie. In January 2001 the applicant’s car was seized by the police in connection with criminal proceedings instituted against him on charges of alleged forgery of the car’s registration numbers. On 26 March 2002 the applicant was acquitted of the charges, the court having found, in the light of expert opinions, that there were no grounds on which to find that the car’s registration numbers had ever been tampered with. In April 2002 the car was returned to the applicant. Having established that the car’s condition had deteriorated during the period when it had been seized by the police, he lodged a compensation claim against the prosecuting authorities who had dealt with his case. The applicant claimed PLN 1,800 [EUR 450] as compensation. The statement of claim read as follows: “The defendant State Treasury seized the car concerned in the present case (...) owned by the applicant. Evidence: The seizure orders of 9 and 15 January 2001. The plaintiff twice requested the defendant to lift the unlawful seizure order, which was eventually done on 24 April 2002 on the strength of an order of the Disctrict Court of 11 April 2002 given in the pursuance of the enforcement of the final judgment of that court of 26 March 2002. Evidence: The summonses of 27 February and 4 May 2001; judgment of the Zawiercie District Court (...) and the order of 11 April 2002. As a result of the plaintiff having been deprived of the use of the car and its having been parked on an open car-park for fourteen months, the car was irreparably damaged which reduced its value by PLN 1,800. A detailed description of the damage is to be found in the attached expert opinion of 24 April 2002, Ref. No. 1552/06/CRM/02.” The applicant attached two expert opinions to his statement of claim: the opinion Ref. No. 1552/06/CRM/02 and another one, from which it appeared that the car’s market value had diminished, from January 2001 to April 2002, from PLN 3,600 (appr. 895 EUR) to PLN 700 (appr. 174 EUR). The defendant State Treasury, represented by the prosecutor’s office, in its pleadings requested that the action be dismissed in its entirety. It argued, inter alia, that before the seizure the car had already been parked for several months in conditions similar to those at the car-park where it had been parked after the seizure. No description of the car’s condition at the date of the seizure had been prepared, which called into question the plaintiff’s conclusion that the car had been damaged after that date. On 12 December 2003 the Częstochowa District Court dismissed his action. The written grounds of the judgment, insofar as relevant, read as follows: “On 9 January 2001 police officers of the Zawiercie County police station seized a car owned by the plaintiff. (...) they established that the registration number on the car’s chassis had been tampered with. By a decision of the same date investigations were instituted. Minutes of the seizure were drawn up without providing a detailed description of the car’s technical condition. On 15 January 2001 the prosecutor of the Zawiercie District confirmed the seizure, finding, in the light of available evidence, that it was justified. (...) Subsequently, by a decision of 18 January 2001(...) the car was declared to be material evidence in the case and it was put in a supervised car-park. (...) On the same date the Zawiercie County Police Station admitted evidence from an expert opinion. Subsequently, the Forensic Laboratory of the Silesian Police examined the car and submitted, on 21 February 2001, its opinion. It transpired therefrom that the car had its original numbers. [However] a part of the car’s bodywork on which these numbers were fixed had characteristics indicating that it had been placed on the car after it had been produced. As a result of these findings, on 11 May 2001 the Zawiercie District Prosecutor filed a bill of indictment against the plaintiff, charging him with an offence punishable under Article 270 § 1 of the Criminal Code in that the original numbers had been tampered with in such a way that a part of the bodywork had been taken off a car of the same make and fixed to the applicant’s car. During the criminal proceedings the Forensic Office in Katowice gave an opinion BB 2183/01 of 15 February 2002 in which it established that the car in question had its original identification numbers and that there were no indications that these had been tampered with. By a judgment of 26 March 2002 the Zawiercie District Court acquitted the applicant of the charge and ordered that the seized car be returned to him. No appeal had been lodged against this judgment. By a decision of 11 April 2002 the enforcement of this judgment was ordered and on 19 April 2002 the applicant collected the keys of the car. (...) the plaintiff claimed compensation for, in his opinion, unjustified and unlawful seizure of the car, for the fact that he could not use it and for the reduction in the car’s value caused by the fact that it had been parked in an open car-park. He referred to Article 77 of the Constitution. (...) The liability of the State for damage caused by its agents is governed by Article 417 of the Civil Code. The prosecutor, under § 2 of this provision, is a State agent. (...) The State Treasury is to be liable for damage caused by a State official in the course of carrying out the duties entrusted to him or her if he or she was at fault for the actions or omissions concerned and when a normal causal link can be established between such acts or omissions and the damage sustained. The fault of the State official is a necessary condition for the State’s liability in tort to arise. If such a liability is to arise, the State agent must be at fault for his acts, which also means that his or her conduct must be wrongful. The wrongfulness of the agent’s conduct is to be understood in such a way that it is at variance with the legal order, i.e. in breach of applicable provisions of law and also contrary to universally accepted principles of community life. For the assessment of the fault of the State agent Article 355 of the Civil Code, which obliges the debtor to act with due diligence, is also relevant. Hence, in the present case for a finding of the State’s liability it is necessary to establish that the conduct of the agent concerned, i.e. the prosecutor of the Zawiercie prosecuting office, was wrongful and that he was at fault. In the court’s opinion, there are no grounds on which such a finding can be made. The actions of the prosecutor were taken pursuant to valid provisions of procedural law. He had recourse to his competences laid down by law. It cannot be said that his conduct was unlawful, either when he confirmed the seizure of the car, or when he filed the bill of indictment against the plaintiff with the court. The prosecutor undertook these steps on the basis of the material obtained in the case, including the expert opinion prepared during the investigations. His conduct cannot be deemed to have been wrongful. Not every acquittal of an accused must necessarily lead to the liability of the State for the acts of the prosecutor involved in the case. For such liability to arise it is necessary to make a finding of the agent’s fault. The fact that certain decisions given in the proceedings are erroneous because, for instance, the agent erred in the assessment of facts, does not by itself give rise to liability. It must be taken into consideration that the expert opinion prepared during the judicial proceedings in the present case fundamentally differed from the opinion prepared for the purposes of the investigations. There are no grounds on which to find that the prosecutor failed to act diligently in the conduct of the case. As regards the conditions in which the car was stored during the time of seizure, it has to be noted that it was effected in compliance with applicable provisions. The car had been parked in a supervised car-park. The plaintiff has failed to show that during that time his car was damaged, or to establish what was the car’s technical condition at the date of its seizure. In particular, he failed to show that the damage resulted from any wrongful conduct on the part of State agents. Consequently, his action had to be dismissed.” The applicant appealed. On 25 May 2004 the Częstochowa Regional Court dismissed his appeal. The court first recalled the background of the proceedings. It summarised the applicant’s appeal in the following way: “In his appeal the plaintiff argued that the first-instance judgment was in breach of Article 77 of the Constitution as well as of Article 417 of the Civil Code. (...) He argued that it was not open to any doubt, in the light of legal writing and case-law, including that of the Constitutional Court, that when damage was caused by a public official, the fact that damage occurred was sufficient for civil liability to arise – see the judgment of the Constitutional Court SK 26/03. In his submission, the arguments advanced by the first-instance court concerning fault, due diligence and unlawfulness were in breach of the Constitution and amounted to a clumsy polemic.” The grounds for the judgment further read: “The plaintiff’s appeal cannot be allowed. The opinion of the District Court that Article 417 of the Civil Code constitutes the legal basis for the plaintiff’s claim must be shared; however, it cannot be interpreted without Article 77 of the Constitution being taken into account. Article 417 of the Code reads as follows: (See Relevant domestic law). Its analysis must lead to a conclusion that the civil liability of the State agent is dependent on provisions of law having been breached and is independent of the agent’s fault. In the light of Article 77 of the Constitution, [an interpretation used by civil courts before the judgment of the Constitutional Court of 4 December 2001which made the agent’s fault a constitutive requirement for the State’s liability to arise] is inadmissible. The Constitution in its Article 77 clearly indicates that the organs of the State are obliged not to act in breach of law; consequently, the liability of the State is independent of the fault of the agent. In the opinion of the Regional Court the objective unlawfulness of the acts of public officials is a sufficient premise for the liability of the State to arise. The Regional Court is in disagreement with the opinion expressed by the District Court that the fault of the State agent was material for the finding of the State’s liability. However, it transpires from the findings made by that court that the prosecutor had been acting in compliance with applicable procedural provisions. When acting [during the criminal procedure] he had been making use of his competences. He had been acting within limits as defined by law and had not breached it, which excludes the State’s liability. Consequently, the appeal had to be dismissed.” 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.” 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.” Articles 417 et seq. of the Civil Code (Kodeks cywilny) of 1964 provide for the State’s liability in tort. In the version applicable until 1 September 2004, Article 417 § 1 read as follows: “1. The State Treasury shall be liable for damage caused by a State official in the course of carrying out the duties entrusted to him.” According to the old case-law of the Polish Supreme Court, a plaintiff seeking damages under Article 417 of the Civil Code had to show that the act in question was unlawful and that the State agent had committed a fault (the Supreme Court judgments: No. I PR 468/70 of 29.12.1970, unpublished, No. I CR 24/71 of 19.4.1971, unpublished and No. I CR 152/74 of 11.4.1974, unpublished). Under the former Article 418 of the Code, if damage was caused by the State official as a result of his/her giving a decision or other official act, the State Treasury was liable only if the giving of the said decision amounted to an infringement of laws punishable under criminal law or under any disciplinary regulations, and if the fault of the perpetrator had been confirmed by a judgment of a criminal court or of a competent disciplinary authority, or was otherwise recognised by a superior authority. On 1 September 2004 the Law of 17 June 2004 on amendments to the Civil Code and other statutes (Ustawa o zmianie ustawy – Kodeks cywilny oraz niektórych innych ustaw) (“the 2004 Amendment”) entered into force. Following the 2004 Amendment, Article 4171, in so far 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 do so, 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.” However, under the transitional provisions of section 5 of the 2004 Amendment, Article 417 as applicable before 1 September 2004 shall apply to all events and legal situations that subsisted before that date. On 4 December 2001 the Constitutional Court (Trybunał Konstytucyjny) gave a judgment in respect of two constitutional complaints in which the applicants challenged the constitutionality of Articles 417 and 418 of the Civil Code. They alleged, in particular, that those provisions were incompatible with Articles 64 and 77 § 1 of the Constitution insofar as they guaranteed access to court and a right to compensation for damage caused by acts of public authorities. In its judgment the Court held that Article 417 of the Civil Code was compatible with Article 77 § 1 of the Constitution in so far as it provided that the State Treasury was liable for damage caused by the unlawful action of a State official carried out in the course of performing his duties. It further held that even though Article 418 of the Civil Code was compatible with Article 64 of the Constitution, it was contrary to Article 77 § 1 since it made the award of compensation for such damage dependent on the personal culpability of the State official concerned, established in criminal or disciplinary proceedings. This restriction on access to a court, in the opinion of the Constitutional Court, put excessive obstacles in the way of an individual’s right to have damage caused by actions of public authorities compensated. On 18 December 2001, the date on which the Constitutional Court’s judgment took effect, Article 418 of the Civil Code was repealed. Pursuant to Article 217 § 1 of the Code of Criminal Procedure, 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.