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Dispute Resolution in Poland Issues and new developments in dispute resolution in Poland.

We remember certain cases …..

agnieszka1 Posted in Litigation

because they are complicated and thus challenging, because they last so long that become a legend, but it happens that although apparently easy and short, they are so original and interesting that we remember them. And I want to tell you about the case just like.

A foreigner, let’s call him Mr. X, must also remembered his trip. End of summer, Poland is last stop in his tour around Europe. He is just about to board on the plane when Customs officers stops and accuses him of an attempt to take works of art out of Poland without a required permit.¹ After being heard, Mr. X leaves Poland and several pieces of various usable items utility and paintings from the 19ths century owned by him are forwarded to museum deposit.

The penal proceedings were pending quickly, as early as next year Mr. X was punished with a fine for an unintentional attempt to bring out works of art being a part of cultural heritage without a permit. The fine was not very high. The detained items were returned to him along with evaluation made for the purpose of the penal proceedings. None of the works was valued by an expert for more than a thousand zloty, most of them were of symbolic value of 50-250 zloty.

Having possessed this experience and aware of the regulations, Mr. X applied to the Minister of Culture for a permit to take the returned items abroad. How surprised he was when he found out that this permit could be obtained but it did not relate to all items.   Te refusal referred to three icons, the taking out of which would cause harm to the cultural heritage. Mr X, feeling that he could not do much alone, requested a professional advisor for assistance in respect of changing the minister’s decision. He explained that these works were of minor value (valuation of the aforementioned expert at 800 zloty); however, he stated, for him they were value in themselves as the objects of religious worship and that one of them was the so called travel icon accompanying him forever in his voyages.

However, the Ministry dos not surrender. Instead, it appointed the expert committee and an additional expert, who having viewed the photos of the icons (sic!) upheld the ban on taking them out due to their high artistic value. The Ministry also stated that due to the substantial knowledge of the experts and their professional experience, photographic material was sufficient to prepare the opinion. A good lawyer (Mr. X was represented then by my friend) challenged this argumentation without any problem before the administrative court. The court immediately revoked both decisions of the Minister of Culture and stated that it failed to prove in any way how taking out 3 pictures of low market value and in not very good condition could cause harm to the cultural heritage. The court negatively assessed the expert opinion prepared solely on the basis of photographs of the icons.

Mr. X was extremely satisfied that he won the case in court. Now he was sure that if his arguments were admitted there, nothing would hinder his taking out icons to the country of his residence. Therefore, he re-applied for the export permit. However, there is never too much caution. Having borne enormous costs, Mr. X hired an expert himself – the authority in the field of icons. I had already the pleasure then to represent Mr. X. I must admit that even for a lay person, reading this opinion was a fascinating trip to the 19th century religious painting. The opinion was prepared with enormous expertise of the subject. It was also very precise and detailed. Its conclusions were unambiguous and devastating for the existing opinion of the ministry of culture. The icons presented provincial folk technique and were described as commonly spotted craft. The were of low artistic value and were made carelessly. Additionally, what was emphasized, their condition deteriorated with an enormous speed.

Mr. X also applied to the church hierarchs to explain the officials the importance of these icons for his religious worship. I filed relevant writs along with the opinion in the ministerial office. Another stage of the proceedings was to be site inspection of the works of art.  At the office’s call, I brought the pictures being the subject of this unequal fight of a man with the state to the ministry in order to show them to the committee convened again. Not even 10 minutes elapsed in the dark ministerial corridor when the experts could state that…. the pictures presented high level of technique and that they were rare, even unique, in the Polish collections. Therefore, they must stay in Poland. Mr. X did not receive the permit.

Elaborating on the values of the works, the minister unfortunately failed to note where these valuable historical objects should be deposited. Their owner living permanently abroad was really worried that these works would get rotten in a garage as although so unique, no Polish museum was willing to acquire these rare works of Balkan art.

Evaluation of works of art is very subjective. It is not surprising that entirely different opinions on the same work can en expressed by amateurs, but why was it done by the experts?

Mr. X was depressed but he did not surrender. We kept fighting. Only due to his extreme determination and of course, sophisticated legal reasoning, did we manage to succeed. Within the next 6 months the minister changed opinion and allowed to take the works out of Poland.

Satisfaction? Yes. Surprise that for 4 years state cultural institutions persistently defended the lost case to defend their groundless positions? Of course.

And what was the final outcome? Mr. X obtained cancellation of conviction but has never come back to Poland after this memorable summer trip.

¹ The Cultural Heritage Protection Act and Historical Objects Protection Act were effective at that time. They stipulated that works of art (historical objects) could be taken out abroad permanently if it would not be harmful to the cultural heritage and only on the basis of a permit issued by the Minister of Culture. The taking out works of art without this permit is subject to penalty of up to 5 years in the case of intentional act and a fine if this act is unintentional.