(Decision of the Supreme Court file no. 22 Cdo 4580/2017, from 31 October 2017)
In this case, the plaintiff sought the removal of a lock and a hasp from the door of her lodge, which were placed on the door leading to the defendants' land. The defendants placed the lock there in order to prevent the plaintiff from accessing their land. The Court of First Instance upheld the plaintiff’s action on the ground that the defendants unlawfully restricted the plaintiff's property rights. The Court of Appeal changed the judgment of the Court of First Instance and dismissed the action, arguing that the plaintiff entered the premises, even though the defendants did not agree. At the same time, in the view of the Court of Appeal, no damage was caused to the plaintiff. It was an allowed self-help by the defendants.
The Supreme Court upheld the plaintiff's appeal. The condition of self-help is, according to the Supreme Court, a threat to the law, an immediate threat of occurrence of a serious harm, as well as the fact that the intervention of public authorities would come too late. However, it is necessary to take into account the fact that it is possible to defend against an interference with the possession right by means of a pecuniary action, which is dealt with in a special, shortened proceedings (Art. 176 et seq. of the Civil Procedure Code). When assessing whether self-help is allowed, it is also necessary to take into account the nature and importance of the right to be defended, the intensity of interference, the consequences of the breach of the law and the use of self-help.
In this case, the Court of Appeal did not sufficiently address these conditions for exercising the right of self-help, so the Supreme Court canceled it and referred the case back to the Court of Appeal for further proceedings.