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FOURTH
SECTION
CASE OF MOCARSKA v. POLAND
(Application
no. 26917/05)
JUDGMENT
STRASBOURG
6
November 2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Mocarska v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Mr J. Casadevall, President,
Mr G.
Bonello,
Mr K. Traja,
Mr L. Garlicki,
Ms L.
Mijović,
Mr J. Šikuta,
Mrs P. Hirvelä,
judges,
and Mrs F. Aracı, Deputy Section
Registrar,
Having
deliberated in private on 9 October 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 26917/05) against the
Republic of Poland lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Polish national, Ms
Bożena Mocarska (“the applicant”), on 2 June
2005.
- The
applicant, who had been granted legal aid, was represented by
Mr M. Woliński, a lawyer practising in Warsaw. The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- The
applicant alleged, in particular, that she had been unlawfully
detained in a regular detention centre pending her transfer to a
psychiatric hospital.
- On
11 October 2006 the Court decided to give notice of the
application to the Government. Under the provisions of Article 29
§ 3 of the Convention, it decided to examine the merits of
the application at the same time as its admissibility. It also gave
priority to the application, pursuant to Rule 41 of the Rules of
Court.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1965 and lives in Pruszków,
Poland.
- The
applicant was involved in a conflict with her sister and her sister's
common law husband, with whom she had shared a flat. On
28 December 2004 the applicant was questioned by the police
on suspicion of stealing her sister's microwave and harassing her.
The applicant informed the police that she was undergoing psychiatric
treatment.
- On
31 December 2004 the Warsaw Prosecutor asked the court to assign
a legal-aid lawyer to the applicant in view of her mental condition.
- On 4 April 2005 the Warsaw District Court ordered
the applicant to undergo a six-week psychiatric examination in order
to determine whether she could be held criminally responsible in
respect of the above mentioned offences of theft and harassment. On
15 April 2005 the applicant's legal-aid lawyer lodged an
interlocutory appeal against this decision. He submitted that the
applicant herself had already stated that she had been undergoing
psychiatric treatment for eight years. There was no reason for the
applicant to be placed in a psychiatric hospital. If the court had
doubts as to the applicant's condition it could obtain additional
evidence from the applicant's existing medical records. On 29 April
2005 the Warsaw Regional Court dismissed this appeal.
- On
5 May 2005, following a knife attack on her sister, the
applicant was arrested on suspicion of theft and domestic violence.
- On
7 May 2005 the Warsaw District Court heard evidence from the
applicant and ordered her pre-trial detention until 4 August
2005. The court noted that there was a reasonable suspicion that the
applicant had committed the offence in question. In addition, the
court relied on the risk that she would induce witnesses to give
false testimony or commit another offence. On 9 May 2005 the
applicant was admitted to the Warsaw Detention Centre.
- On
12 May 2005 the applicant was charged with domestic violence.
- On
20 May 2005 the Regional Psychiatric Hospital (Wojewódzki
Szpital Psychiatryczny) informed the District Prosecutor that the
applicant could report there on 12 or 13 September 2005 for an
examination. On 22 June 2005 the court asked the hospital
to schedule an earlier date for the applicant's admission, as the
applicant was in pre-trail detention. In reply, the hospital informed
the court that the applicant could be admitted on 18 or 19 July
2005.
- On
4 July 2005 the prosecutor asked the Warsaw District Court to
prolong the applicant's detention in view of the fact that she was to
undergo a psychiatric examination.
- On
15 July 2005 the Warsaw District Court prolonged the applicant's
detention until 3 November 2005. The court referred to the fact that
there was a reasonable suspicion that the applicant had committed the
offence with which she had been charged. In addition, it appeared
that the applicant might induce witnesses to give false testimony.
- On
16 August 2005 the applicant's lawyer made an application for
release. He stressed that there had been no reasonable suspicion that
the applicant had committed the offence. Furthermore, the court had
already obtained evidence from witnesses. Finally, from a medical
point of view the applicant should not have been kept in detention.
On 24 August 2005 the court dismissed the application. On
29 August 2005 the applicant's lawyer lodged an interlocutory
appeal against this decision. He stated that applying pre trial
detention in the applicant's case had been an extremely serious
measure. The applicant's condition was serious, which fact had been
confirmed by a medical expert, and her prolonged detention had
seriously affected her health. The District Court refused to examine
the appeal. On 3 October 2005 the Warsaw Regional Court allowed
the complaint and restored the deadline for appealing against the
decision of 15 July 2005.
- Meanwhile,
the applicant was admitted to the hospital on 18 July 2005
and discharged on 30 August 2005.
- On
22 September 2005 two psychiatrists and a psychologist issued a
joint medical opinion. They concluded that the applicant suffered
from a delusional disorder. In view of the fact that there was a
reasonable suspicion that the applicant might commit another crime,
they recommended her detention in a psychiatric hospital.
- On
13 October 2005 the prosecutor terminated the investigation in
the applicant's case.
- On
25 October 2005 the Warsaw District Court gave a decision and
discontinued the proceedings against the applicant. The court
established that the applicant had committed the offence that she had
been charged with. However, she could not have been held criminally
responsible as she had been suffering from a delusional disorder. It
further referred to the expert's opinion and ordered that the
applicant be placed in a psychiatric hospital. The court also
prolonged the applicant's detention until 3 February 2006.
The court considered that this measure was necessary to prevent the
applicant from committing another offence and to ensure the proper
conduct of the appeal procedure. The applicant's lawyer appealed
against this decision. On 15 December 2005 the Warsaw Court of Appeal
dismissed the appeal.
- On
2 February 2006 the Warsaw District Court, of its own motion,
decided to prolong the applicant's detention until 3 April 2006.
The court stressed that on 28 December 2006 it had asked the
Psychiatric Commission on Preventive Measures (Komisja
Psychiatryczna ds. środków zabezpieczająych)
(“the Commission”) to indicate a hospital where the
applicant could be placed. However, on 26 January 2006, the
Commission replied that it had not yet indicated a hospital for the
applicant and asked the court to send the relevant documents. The
court further considered that in view of the medical reports in the
applicant's case there was a high risk that, once released, the
applicant might commit a similar offence.
- On
8 March 2006 the Commission recommended that the applicant be
placed in the Pruszków Psychiatric Hospital. On 31 March 2006
the court decided to order the applicant's admission to that
hospital. It also prolonged the applicant's detention until that
time.
- The
applicant submitted that between 18 April 2006 and
30 June 2006 she had been on hunger strike.
- On
4 April 2006 the court asked the Pruszków Psychiatric
Hospital when it would be ready to receive the applicant. The
hospital replied that due to a strain on resources and a temporary
lack of available beds it would not be possible to admit the
applicant immediately.
- On
30 June 2006 the applicant was transferred from the detention
centre to the Pruszków Psychiatric Hospital.
- According
to the information available to the Court the applicant is still in
that hospital.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The Code of Criminal Procedure of 1997, which entered
into force on 1 September 1998, defines pre-trial detention as
one of the so called “preventive measures” (środki
zapobiegawcze).
- A more detailed rendition of the relevant domestic law
and practice concerning the imposition of pre-trial detention
(aresztowanie tymczasowe), the grounds for its prolongation,
release from detention and rules governing other preventive measures
can be found in the Court's judgments in the cases of Gołek
v. Poland (no. 31330/02, §§ 27 33,
25 April 2006) and Celejewski v. Poland
(no. 17584/04, §§ 22 23, 4 August
2006).
- Article 264
§ 3 of the Code of Criminal Procedure provides:
“If the proceedings were discontinued by reason of
insanity of the accused, preliminary detention may be maintained
pending the application of a preventive measure.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
- The
applicant complained that she had been unlawfully detained. The Court
considers that this complaint should be examined under Article 5
§ 1 of the Convention, the relevant part of which reads as
follows:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
(...)
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so...
(e) the lawful detention of ... persons of
unsound mind ...”
- The
Government contested that argument.
A. Admissibility
1. The period between 5 May 2005 and 25 October
2005.
- As regards the alleged
unlawful detention between 5 May 2005 and 25 October 2005,
the Court considers that this complaint falls to be examined under
Article 5 § 1 (c) of the Convention.
32. The
Court further observes that in the present case the applicant was
detained on reasonable suspicion of having committed theft and
domestic violence (see paragraphs 9 and 10 above). In the light of
the material in its possession, the Court does not find any
indication that the applicant's detention was unlawful or ordered
other than “in accordance with a procedure prescribed by law”
within the meaning of Article 5
§ 1.
It considers that it was ordered in accordance with domestic law and
fell within the ambit of Article 5
§ 1 (c)
of the Convention, as having been effected for the purpose of
bringing her before the competent legal authority on suspicion
of having committed an offence. The Court also observes that the
lawfulness of her detention was examined and upheld on a number of
occasions by the competent courts (see paragraphs 10, 14
and 15 above).
- Thus,
the Court finds no indication that in the present case the
applicant's detention during that period was unlawful or effected in
an arbitrary way.
- It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and 4
of the Convention.
2. The period between 25 October 2005 and 30 June
2006.
- In so far as the applicant's complaint relates to the
period between 25 October 2005 and 30 June 2006, the Court notes
that she was detained in a regular detention centre pending her
transfer to a psychiatric hospital.
- The Court observes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3
of the Convention. It further notes that it is not inadmissible on
any other grounds. It must therefore be declared admissible.
B. Merits
1. The applicant's submissions
- The
applicant stressed that although medical experts had confirmed that
the prolonged detention had seriously affected her health, she had
not been released or transferred to a psychiatric hospital.
- She
was further of the opinion that her detention after the
discontinuation of the criminal proceedings had not been necessary,
in particular due to her poor health and the fact that she had been
on hunger strike. In addition, she claimed that she had been
arbitrarily deprived of her liberty. Lastly, she claimed there had
been a violation of Article 5 § 1 (e) of the
Convention.
2. The Government's submissions
- The
Government replied that the applicant's detention had been justified
and compatible with the provisions of Article 258 of the Code of
Criminal Procedure. They stressed that even after the discontinuation
of the criminal proceedings against the applicant she had had to
remain in detention as she had seriously endangered the life and
safety of her family and other persons. The delay in placing the
applicant in a psychiatric hospital had been caused by the fact that
the medical authorities had had to examine the applicant's case file
and her medical history. In their view the court had shown due
diligence in handling the applicant's case as it had urged the
medical authorities to issue a quick decision concerning the
applicant's placement in a hospital.
- The
Government further argued that the applicant's detention in a regular
detention centre pending her transfer to a hospital had been
compatible with the Polish legislation. They concluded that the
reasons for keeping the applicant in the hospital had been regularly
reviewed by the relevant courts.
3. The Court's assessment
- The
Court reiterates that Article 5 § 1 of the Convention
contains a list of permissible grounds of deprivation of liberty that
is exhaustive. However, the applicability of one ground does not
necessarily preclude that of another; a detention may, depending on
the circumstances, be justified under more than one sub-paragraph
(see Eriksen v. Norway, judgment of 27 May 1997,
Reports of Judgements and Decisions 1997 III,
p. 861, § 76).
- The
Court firstly observes that in the instant case the applicant's
deprivation of liberty falls within the scope of Article 5 § 1
(e) (see Aerts v. Belgium, judgment of 30 July
1998, Reports 1998 V, P.1961, § 45.
- It
must further be established whether the applicant's detention in an
ordinary detention centre between 25 October 2005 and 30 June
2006 was “in accordance with a procedure prescribed by law”
and “lawful” within the meaning of Article 5 § 1
of the Convention. The Convention here refers essentially to national
law and states the obligation to conform to the substantive and
procedural rules thereof. Reiterating that it is in the first place
for the national authorities, notably the courts, to interpret and
apply domestic law (see Bouamar v. Belgium, judgment
of 29 February 1988, Series A no. 129, p. 21,
§ 49) the Court accepts the parties' arguments that the
applicant's detention during the period under consideration was based
on Article 264 § 3 of the Code of Criminal Procedure
and was therefore lawful under domestic law.
- However, for the purposes of Article 5 of the
Convention, the lawfulness under domestic law of the applicant's
detention is not in itself decisive. It must also be established that
her detention during the relevant period was in conformity with the
purpose of Article 5 § 1 of the Convention, which is
to prevent persons from being deprived of their liberty in an
arbitrary fashion (see Witold Litwa v. Poland,
no. 26629/95, §§ 72 73, ECHR 2000 III).
- The
Court notes that the length of detention pending transfer to a
psychiatric hospital is not specified by any statutory or other
provision. Nevertheless, it must determine whether the continuation
of provisional detention for eight months can be regarded as lawful.
-
The Court observes that in the present case the domestic court asked
the Psychiatric Commission to indicate a hospital to which the
applicant could be transferred two months after the proceedings had
been discontinued. It took the Commission two more months to indicate
a hospital for the applicant. Lastly, the applicant had to wait more
than three months before her admission to that hospital. During that
time she was detained in a regular detention centre (see
paragraphs 19 24 above).
- The
Court accepts the Government's arguments that it would be unrealistic
and too rigid an approach to expect the authorities to ensure that a
place is immediately available in a selected psychiatric hospital.
However, a reasonable balance must be struck between the competing
interests involved. The Court is of the opinion that in striking this
balance particular weight should be given to the applicant's right to
liberty. A significant delay in admission to a psychiatric hospital
and thus the beginning of the treatment was obviously harmful to the
applicant (see paragraph 22 above).
- The
Court cannot find that, in the circumstances of the present case, a
reasonable balance was struck. The Court is of the opinion that a
delay of eight months in the admission of a person to a psychiatric
hospital cannot be regarded as acceptable (see Morsink v. the
Netherlands, no. 48865/99, §§ 61-70, 11 May 2004; Brand
v. the Netherlands, no. 49902/99, §§ 58-67,
11 May 2004). To hold otherwise would entail a serious
weakening of the fundamental right to liberty to the detriment of the
person concerned and thus impair the very essence of the right
protected by Article 5 of the Convention.
- There
has accordingly been a violation of Article 5 § 1 of
the Convention.
II. ALLEGED VIOLATION
OF ARTICLES 1, 2, 3, 5, 6, 7, 8, 9, 12, 13, 14, ARTICLE 1 OF
PROTOCOL NO 1, Article 1 of Protocol No 4, Article 2
of Protocol No 7 AND article 1 of Protocol No 13
- The
applicant complained of a violation of nearly all the provisions of
the Convention.
- The
Court finds that the facts of the case do not disclose any appearance
of a violation of the above-mentioned provisions. It follows that
these complaints are manifestly ill-founded within the meaning of
Article 35 § 3 and must be rejected pursuant to
Article 35 § 4
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant did not claim anything under this head.
B. Costs and expenses
- The
applicant, who received legal aid from the Council of Europe in
connection with the presentation of her case, claimed 1,500 euros
(EUR) for 15 hours of legal work by her lawyer before the Court at an
hourly rate of EUR 100.
- The
Government contested that claim, stating that the amount of the
lawyer's fee could not be considered reasonable and necessary. In any
event they considered the rate of EUR 100 per hour to be
excessive.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and are reasonable as to
quantum. In the present case, the applicant's representative
submitted only one set of pleadings during the proceedings before the
Court and it does not appear that those pleadings involved much
effort on his part or required much research. Noting the complexity
of the case, the submissions of the applicant's lawyer and the fact
that the applicant was already paid EUR 850 in legal aid by the
Council of Europe, the Court dismisses the claim under this head.
B. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the alleged
unlawful detention between 25 October 2005 and 30 June 2006
admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
5 § 1 of the Convention;
- Dismisses the applicant's claim for costs and
expenses.
Done in English, and notified in writing on 6 November 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of
Court.
Fatoş
Aracı Josep Casadevall
Deputy Registrar President
