BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FOURTH
SECTION
DECISION
Application no.
22170/07
by Janusz BIZIUK
against Poland
The
European Court of Human Rights (Fourth Section),
sitting on 13 December 2011 as a Chamber
composed of:
David
Thór Björgvinsson,
President,
Lech
Garlicki,
Päivi
Hirvelä,
George
Nicolaou,
Zdravka
Kalaydjieva,
Nebojša
Vučinić,
Vincent
A. De Gaetano,
judges,
and Lawrence Early, Section
Registrar,
Having regard to
the above application lodged on 11 May 2007,
Having
regard to the observations submitted by the respondent
Government and the observations in reply submitted by the applicant,
Having
deliberated, decides as follows:
THE FACTS
- The
applicant, Mr Janusz Biziuk, is a Polish national who
was born in 1964 and lives in Sokółka. He was represented
before the Court by Ms Z. Daniszewska - Dek, a
lawyer practising in Białystok. The Polish Government
(“the Government”) were
represented by their Agent, Mr J.Wołąsiewicz of the
Ministry of Foreign Affairs.
A. The circumstances of the case
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
- On
25 February 2005 the applicant was charged with assaulting a Sokółka
Municipality employee.
- On
7 April 2005 expert psychiatrists appointed by the prosecutor gave an
opinion concerning the applicant’s mental health. They
considered that the applicant suffered from paranoia with elements of
psychosis.
- On
14 September 2005 the Sokółka District Court gave a
decision and discontinued the criminal proceedings against the
applicant. The court found it established that the applicant had
committed the offence in question. However, he should not have been
held criminally responsible as he was suffering from paranoia with
elements of psychosis. It further ordered that the applicant be
placed in a psychiatric hospital.
- On
23 September 2005 the applicant appealed against this decision. On 28
December 2005 the Białystok Regional Court dismissed the appeal.
- On
1 June 2006 the applicant was informed that the Ombudsman had decided
not to file a cassation appeal on his behalf.
- Between
23 February and 11 September 2006 the applicant was detained in a
psychiatric hospital, on the basis of a decision given in another set
of criminal proceedings against him (decision of the Białystok
District Court of 5 May 2005). On 24 March 2006 the Sokółka
District Court ordered the applicant’s internment in the same
institution on the basis of its final decision of 14 September 2005.
- On
11 September 2006 the Białystok Regional Court decided
(in the other set of criminal proceedings against the
applicant) that the applicant could be released since his health had
significantly improved and he could be treated outside the hospital.
However, the applicant was not released on that date as he was
simultaneously detained on the basis of the Sokółka
District Court’s decision of 14 September 2005.
- On
13 September 2006 the applicant’s lawyer filed a motion with
the Sokółka District Court referring to the Białystok
District Court’s decision and asking for the applicant’s
release.
- On
17 September 2006 the applicant absconded from the hospital.
- On
29 September 2006 the Sokółka District Court heard an
expert who stated that the applicant’s escape from the hospital
confirmed that he had no intention to continue his therapy.
Consequently, the court refused to discontinue the enforcement
proceedings relating to the applicant’s confinement ordered on
14 September 2005. The court referred to an expert’s report of
13 June 2006.
- On
20 October 2006 the Sokółka District Court ordered that
the applicant be admitted to a psychiatric hospital.
- On
9 November 2006 the Białystok Regional Court quashed the
decision of 29 September 2006 and remitted the case to the Sokółka
District Court on formal grounds. The District Court subsequently
scheduled a hearing. However, it had to be adjourned since the
applicant had filed a motion for the presiding judge to step
down.
- On
18 December 2006 the District Court appointed experts.
- On
5 January 2007 the applicant went to the Sokołka District Court
to examine his case file. He was then arrested by the police on the
basis of the order of 20 October 2006. He was informed that he had
the right to lodge an interlocutory appeal against his arrest. On the
same day the applicant was admitted to the Choroszcza psychiatric
hospital. He submits that on his arrival he was examined by a doctor
who stated that there was no need to keep him in hospital. However,
the applicant was ordered to stay in the hospital. The Government
submit that the applicant was ordered to stay in the hospital as
there were strong medical grounds justifying his detention.
- On
8 January 2007 the applicant lodged an interlocutory appeal against
the decision to admit him to hospital. He argued that his placement
in the psychiatric hospital had not been necessary. He stressed that
on 11 September 2006, in another set of criminal proceedings,
the Białystok Regional Court had taken the view that his state
of health had improved. Lastly, he submitted that a person could not
be judged healthy as regards one set of criminal proceedings and in
need of psychiatric treatment as regards another set. On an unknown
date the applicant’s lawyer also lodged an interlocutory
appeal.
- On
8 January 2007 the applicant absconded from the hospital.
- On
23 January 2007 the Sokółka District Court refused to
examine the applicant’s interlocutory appeal against the
decision to place him in a psychiatric hospital as inadmissible
in law. The court referred to the Supreme Court’s decision of
11 January 2006 (see domestic law and practice below). On 24 January
2007 it refused to examine an appeal by the applicant’s lawyer.
- The
applicant and his lawyer appealed against these decisions. On
8 March 2007 the Białystok Regional Court dismissed
their appeals.
- On
22 February 2007, on a request by the applicant under the Act of
17 June 2004 on complaints about a breach of the right to a
trial within a reasonable time, the Białystok Regional
Court gave a decision and acknowledged that the length of the
enforcement proceedings (between 28 June 2006 and
26 September 2006) was excessive. It awarded the applicant
1,000 Polish zlotys (PLN) as just satisfaction.
- On
13 March 2007 the applicant was arrested by the police so that he
could undergo a psychiatric observation.
- On
23 March 2007 the court-appointed experts submitted their opinion to
the court. They concluded that the applicant suffered from
a delusional disorder and he should be kept in a psychiatric
hospital.
- On
19 March 2007 he lodged an interlocutory appeal against the decision
to place him in a psychiatric hospital. On 29 March 2007 the Sokółka
District Court dismissed his appeal as inadmissible in law. On the
same date the court ordered the applicant’s release. The
applicant lodged an appeal (in respect of costs and expenses) against
this decision on 17 April 2007. On 24 May 2007 the
Białystok Regional Court dismissed his appeal.
B. Relevant domestic law and practice
- Under Article 6 of the Code of Enforcement of Criminal
Sentences a convicted person is entitled to make applications,
complaints and requests to the authorities enforcing the sentence.
Article 7, paragraphs 1 and 2, of the Code provides that a convicted
person can challenge before a court any unlawful decision issued
by a judge, a penitentiary judge, a Governor of a prison
or a remand centre, a Regional Director or the Director General of
the Prison Service or a court probation officer. Applications related
to the enforcement of prison sentences are examined by a competent
penitentiary court.
- On
11 January 2006 the Supreme Court gave a decision, I KZP 56/05,
and held that it was not possible to appeal against a decision to
arrest and place a convicted person in a penitentiary institution
[doprowadzenie do zakładu karnego].
COMPLAINTS
- The
applicant complained under Article 5 § 1 (e) and (c) of the
Convention that his detention in the psychiatric hospital had been
unlawful.
- He
further alleged under Article 13 that he had had no remedy to
complain about the lawfulness of his arrest and admission to the
psychiatric hospital.
THE LAW
- The
applicant firstly complained that his detention
in a psychiatric hospital after 5 January 2007 had been unlawful. The
complaint falls to be examined under Article 5 § 1 of the
Convention, which provides in so far as relevant:
“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 for the
prevention of the spreading of infectious diseases, of persons of
unsound mind, alcoholics or drug addicts or vagrants;
”
- The
Government submitted that the measure applied with respect to the
applicant was based on the court’s decision of 14 September
2005. The court’s judgment which declared the applicant to be
of unsound mind was based on a reliable, fair, detailed, logical and
convincing opinion prepared by two expert psychiatrists and one
expert psychologist.
- They
also stated that the present application was introduced on
11 May 2007, very soon after the applicant’s release.
At that time, in their opinion, the applicant was still suffering
from delusions. Consequently, they maintained that the applicant’s
claims and complaints should be interpreted as symptoms of a
psychosis.
- The
Government stressed that the applicant had committed an act of
considerable harm to the community and therefore it was important to
prevent him from committing further offences. The applicant was
periodically examined by expert psychiatrists.
- The
applicant contested the Government’s submissions and objected
to the experts’ opinions. He referred to previous opinions
(1997-2003) in which the experts had not considered him to be
mentally ill. He further concluded that it had not been established
that he had suffered from a mental illness. In addition, his
detention had been arbitrary.
- In determining whether the applicant was of unsound
mind within the meaning of Article 5 § 1 (e) the Court
reiterates that an individual cannot be deprived of his liberty on
the basis of unsoundness of mind unless three minimum conditions are
satisfied: he must reliably be shown to be of unsound mind, that is,
a true mental disorder must be established before a competent
authority on the basis of objective medical expertise; the mental
disorder must be of a kind or degree warranting compulsory
confinement; and the validity of continued confinement must depend
upon the persistence of such a disorder (see Winterwerp v. the
Netherlands, 24 October 1979, § 39, Series A no.
33; Johnson v. the United Kingdom, 24 October 1997, § 60,
Reports of Judgments and Decisions 1997-VII). The national
authorities have a certain margin of appreciation regarding
the merits of clinical diagnoses since it is in the first place
for them to evaluate the evidence in a particular case: the
Court’s task is to review under the Convention the
decisions of those authorities (see Winterwerp, cited
above, § 40, and Luberti v. Italy, 23 February 1984, §
27, Series A no.75).
- The
Court observes that on 14 September 2005 the Sokółka
District Court discontinued the criminal proceedings against the
applicant and ordered his placement in a psychiatric hospital.
Subsequently, on 29 September 2006, after consulting a
medical expert, the court considered that the applicant had no
intention to continue his therapy and therefore he should be admitted
to a psychiatric hospital. Consequently, the court issued an
admission order on 20 October 2006. On 5 January 2007 the applicant
was arrested. On the applicant’s arrival at the hospital he was
examined by a doctor.
- While
the applicant criticised all of the expert reports obtained by the
trial court the Court sees no reason to doubt that the experts were
fully qualified and had based their conclusions on their best
professional judgment. In view of these considerations, and noting
that the national court was in a far better position to assess the
value of the expert reports and, more generally, to determine the
factual issue as to whether or not the applicant was suffering from a
mental disorder, the Court finds no grounds to interfere with its
assessment (see Sabeva v. Bulgaria, no. 44290/07, § 58,
10 June 2010). The Court is further satisfied that the
applicant’s disorder was of a degree and kind warranting
confinement.
- The
Court concludes that it has been “reliably shown” that
the applicant was of unsound mind within the meaning of Article 5 §
1 (e).
- Lastly,
the Court notes that the applicant’s placement in a psychiatric
hospital was ordered on 14 September 2005 by the Sokółka
District Court under Article 94 of the Criminal Code. It further does
not find that the domestic courts were arbitrary in their decisions.
- Consequently,
the applicant’s deprivation of liberty was “lawful”
within the meaning of Article 5 § 1 (e) of the Convention.
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
- The
applicant further complained that he had not had at his disposal an
effective procedure by which he could have challenged the lawfulness
of his arrest and admission to the psychiatric hospital. The
complaint falls to be examined under Article 5 § 4 of the
Convention which provides as follows:
“4. Everyone who is deprived of his
liberty by arrest or detention shall be entitled to take proceedings
by which the lawfulness of his detention shall be decided speedily by
a court and his release ordered if the detention is not lawful.”
- The Government firstly raised a preliminary objection
that the applicant failed to exhaust the available domestic remedies.
In particular, he should have lodged a constitutional
complaint challenging the provisions of the Code of Enforcement of
Criminal Sentences, namely Article 201 § 1, on the basis of
which he was arrested and admitted to the psychiatric hospital. They
further submitted that the applicant should have lodged a claim for
protection of personal goods under Articles 23 and 24 of the Civil
Code. Lastly, the Government stated that the applicant could have
instituted criminal proceedings against the judge responsible for his
arrest. However, they agreed that this remedy might not have been
effective.
- The
Government further noted that the court’s order to arrest the
applicant and place him in the hospital was given as a consequence of
the enforcement proceedings. It was possible for the applicant to
challenge the court’s decision to discontinue the proceedings
and place him in the hospital, which he had done. He had also applied
for termination of the enforcement proceedings. Both motions were
unsuccessful.
- The
applicant’s representative contested these submissions. She
claimed that Polish law did not provide for a possibility of appeal
against an order to transport a person to a psychiatric hospital. She
further submitted that the applicant wished to lodge a constitutional
complaint. However, she had informed the Sokółka District
Court on 25 May 2006 that she had not found any legal grounds to file
such a complaint.
- The
Court does not find it necessary to rule on the Government’s
preliminary objections since this complaint is in any event
inadmissible for the following reasons.
- The
Court firstly reiterates that while persons deprived of their liberty
by virtue of a decision taken by an administrative body are entitled
to have the lawfulness of this decision reviewed by a court, the same
does not apply when the decision is made by a court at the close of
judicial proceedings. In those cases, the review required by Article
5 § 4 is incorporated in the decision (see, among other
authorities, Luberti cited above § 31). Persons of
unsound mind detained for an indefinite or lengthy period are
entitled, where there is no automatic periodic review of a judicial
character, to take proceedings at reasonable intervals before a court
to put in issue the lawfulness – within the meaning of the
Convention – of their detention, whether it was ordered by a
court or by some other authority (see Shtukaturov v. Russia,
no. 44009/05, § 121, 27 March 2008).
- In
the instant case, the applicant’s committal to a psychiatric
hospital was decided by a court at the close of judicial proceedings
attended by full procedural safeguards (see paragraph 5 above).
Subsequently, on 29 September 2006 the Sokółka
District Court again heard experts and ordered the applicant’s
placement in a psychiatric hospital. On 20 October 2006 the
District Court ordered that the applicant be transported to the
hospital.
- The
Court observes that the applicant does not complain about the lack of
subsequent judicial review of the lawfulness of his detention but the
fact that he could not appeal against the order to transport and
place him in the psychiatric hospital. It follows that the
supervision required by Article 5 § 4 was incorporated
in the decisions of 14 September 2005.
- It
follows that this part of the application is also manifestly
ill founded and must be rejected in accordance with Article 35
§§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Lawrence Early David Thór
Björgvinsson
Registrar President
