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
CASE OF WITEK v. POLAND
(Application
no. 13453/07)
JUDGMENT
STRASBOURG
21
December 2010
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 Witek v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
Päivi
Hirvelä,
Ledi Bianku,
Nebojša
Vučinić,
Vincent A. de Gaetano, judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 30 November 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 13453/07) 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 Magdalena Witek
(“the applicant”), on 16 March 2007.
- The
applicant, who had been granted legal aid, was represented by
Mr J. Gałkowski, a lawyer practising in Bielsko Biała.
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 her detention in a psychiatric
hospital had been unlawful and in breach of Article 5 § 1 of the
Convention.
- On
14 April 2009 the President of the Fourth Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (former Article 29 § 3 of the Convention, now Article 29 §
1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1963 and lives in Katowice.
- On
19 October 1999 the applicant, a doctor, was charged with domestic
violence (assault on her mother).
- Between
26 June 2000 and 3 August 2000 she was examined in a psychiatric
hospital in Morawica. The expert psychiatrists gave an opinion and
concluded that she suffered from paranoid schizophrenia.
- On
18 October 2001, on the prosecutor's motion, the Kielce District
Court discontinued the proceedings against the applicant. It found
that she could not be held criminally responsible as she was of
unsound mind. It ordered her confinement in a psychiatric hospital
and her suspension from medical practice.
- Following
the court's decision, the applicant failed to report to a psychiatric
hospital.
- On
14 January 2002 the applicant lodged an appeal against the first
instance decision; however it was rejected as lodged outside the
prescribed time-limit.
- For
five years the applicant remained in hiding and her whereabouts were
unknown to the authorities. In 2006 the police eventually established
her address in Poland.
- On
19 June 2006 the applicant was arrested by the police at her home in
Katowice. She was transferred to the Rybnik Psychiatric Hospital. She
submits that she was not examined by a doctor until several days
after her arrival there.
- On
19 June 2006 the Kielce Regional Court resumed the enforcement
proceedings as regards the judgment of October 2001, observing that
the applicant has been ordered to stay in a psychiatric hospital, but
had been evading justice for five years.
- On
7 September 2006 the Kielce District Court ordered that the applicant
be examined by expert psychiatrists, in order to establish whether
her continued confinement in the mental institution was necessary.
- On
11 September 2006 the Psychiatric Commission on Preventive
Measures submitted its opinion dated 17 August 2006 to the Kielce
District Court. The commission examined the documents relating to the
applicant's mental health and considered that her confinement in a
psychiatric hospital was necessary. It referred to the experts'
opinion of 2000, which stressed that the applicant had behaved
aggressively during her period under psychiatric observation in
Morawica Hospital (in 2000). The commission considered that the
applicant should be transferred to Lublin Hospital. The applicant was
subsequently admitted to the Lublin Hospital on 23 September
2006.
- On
7 November 2006 three expert psychiatrists submitted their opinion on
the applicant's mental health. They stressed that it was necessary to
continue the applicant's detention in a psychiatric hospital.
- On 11 January 2007 the Kielce District Court held that
it was necessary to continue the applicant's detention in the
psychiatric hospital. The court referred to the experts' opinion of 7
November 2006 supplemented on 11 January 2007. According to the
experts the applicant suffered from a mental disorder which justified
placing her in a psychiatric hospital. It was further highly unlikely
that the applicant would continue the treatment after release from
the hospital. On 15 January 2007 the applicant filed an appeal
against that decision. She stressed that over the previous five years
her health had significantly improved and that her relations with her
mother were very good. On 23 February 2007 the Kielce
Regional Court upheld the first-instance decision referring to the
reasons given by the District Court.
- On
8 May 2007 expert psychiatrists submitted another opinion concerning
the applicant's mental health. They maintained that the applicant's
condition had not changed and it was necessary to keep her in
hospital. The applicant on numerous occasions challenged these
opinions and lodged requests for fresh ones.
- On
20 June 2007 the court obtained an opinion from expert psychiatrists
from a different hospital. They confirmed that the applicant had a
schizophrenic disorder which resulted in changes of mood and
irritability.
- On
16 August 2007 the court received yet another expert opinion. The
expert psychiatrists concluded that there was still a high
possibility that the applicant might commit another offence. However,
her health had improved and she could be placed in a psychiatric
institution with basic security.
- On
25 September 2007 the Kielce District Court ordered the applicant's
release from hospital. The court did not agree with the expert
psychiatrists opinions of 20 July 2007, 16 August 2007 and 25
September 2007 maintaining that the applicant should be kept in a
psychiatric hospital. The court considered that the applicant's
condition had significantly improved during the time she spent in the
hospital. It referred to the applicant's mother's testimonies
confirming that since 2002 the applicant had never behaved
aggressively towards her and their relations were very good. The
court concluded that the probability of the applicant committing
another similar offence was very low.
- On
the prosecutor's appeal, on 16 November 2007 the Kielce Regional
Court upheld the first-instance decision. The applicant was released
from hospital on the same day.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Conditions for the detention of persons of unsound
mind who are not criminally responsible on medical grounds are laid
down in the Polish Criminal Code of 1997:
Article 93
“The court may impose a preventive measure
provided for in this Chapter which involves confinement in a closed
medical institution only if necessary to prevent the repeated
commission of a prohibited act by a perpetrator suffering from mental
disease, mental impairment or addiction to alcohol or other narcotic
drugs. Before imposing such a measure the court shall hear evidence
from psychiatrists and a psychologist.”
Article 94
§ 1. If the perpetrator has
committed a prohibited act of significant harm to the community in a
condition excluding his criminal responsibility as specified in
Article 31 1 and there is a high probability that he will
commit such an act again, a court shall commit him to a suitable
psychiatric institution.
§ 2. The duration of the stay in
the institution shall not be fixed in advance; the court shall order
the perpetrator's release from the institution if his or her stay is
no longer deemed necessary.
§ 3 The court may order the
reconfinement of a perpetrator specified in § 1 in a
suitable psychiatric institution if this is advisable in the light of
the circumstances specified in § 1 or in Article 93; the order
may not be issued later than five years after the date of release
from the institution. “
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
- The applicant complained, invoking numerous provisions
of the Convention, that her detention in the psychiatric hospital had
been unlawful. The Court considers that the complaint falls to be
examined under Article 5 § 1 (e) of the
Convention, 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:
...
(e) the lawful detention ... of persons of
unsound mind.... .”
- The
Government contested the applicant's argument.
A. Admissibility
- The
Government submitted preliminary objections on the ground of
incompatibility with the six-month rule and non-exhaustion of
domestic remedies. They stressed that the final decision confining
the applicant to a psychiatric hospital was given on 18 October 2001.
In addition, she was placed in the hospital on 19 June 2006,
whereas the application had been lodged with the Court on 16 March
2007 and thus is outside the relevant time-limit. They further
maintained that the applicant had failed to exhaust the available
domestic remedies, since she had not appealed against the judgment of
18 October 2001 confining her to a psychiatric internment. She
further failed to apply for leave to appeal out of time.
- The
applicant contested these submissions.
- Under
Article 35 § 1 of the Convention, the Court may only deal with
the matter after all domestic remedies have been exhausted and within
six months from the date on which the last domestic decision was
taken. The Court further reiterates that, according to its
established case-law, where no domestic remedy is available the
six-month period runs from the act alleged to constitute a violation
of the Convention; however, where it concerns a continuing situation,
it runs from the end of the situation concerned (see, for example,
Antonenkov and Others v. Ukraine, no. 14183/02,
§ 32, 22 November 2005).
- In
the present case the Court firstly notes that the applicant did not
specifically complain about her arrest on 19 June 2006 but generally
alleged that her detention in the psychiatric hospital between 19
June 2006 and 16 November 2007 had been unlawful.
- The
Court secondly observes that the applicant lodged an appeal against
the decision of 11 January 2007 confirming the necessity of her
confinement in a psychiatric hospital. She further submitted numerous
motions for supplementary expert opinions (see paragraphs 17 and 18
above). The Court considers that the purpose of
the remedies used by the applicant was to obtain a review of her
detention in a psychiatric hospital. In the circumstances of the
case, these remedies constituted adequate and effective remedies
within the meaning of Article 35 of the Convention. It follows
that the Government's objections must be dismissed.
- The Court notes 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 submitted firstly that the psychiatrists' opinions were not
accurate. In addition, the domestic courts failed to analyse them
properly. She further stressed that she underwent a psychiatric
observation between 14 April 2008 and 6 May 2008 in the Katowice
clinic. Upon her release the hospital had not recommended that she
followed any therapy nor was she prescribed any medication.
- She
further argued that following her arrest on 19 June 2006 the Kielce
District had ordered her examination by expert psychiatrists only on
5 September 2006 - three months later. Their respective opinions
had been submitted only in November 2006.
- Lastly,
she maintained that for 15 months she had been deprived of her
liberty in breach of Article 5 § 1. Her detention had not been
necessary as she had been leading a normal life.
2 The Government's submissions
- The
Government submitted that the applicant was reliably shown by medical
expertise to suffer from a “true mental disorder”. They
referred to the judgment of 18 October 2001 which ordered the
applicant's psychiatric confinement and which was based on an opinion
of 29 November 1999 and also a detailed and convincing opinion of 3
August 2000 prepared after the applicant's psychiatric observation in
a hospital. In addition, between 19 June 2006 and
16 November 2007 fifteen experts in psychiatry and
psychology gave their opinions on the applicant's health and they all
confirmed that the applicant suffered from a mental disorder.
- They
further maintained that the requirement that the disorder must be of
a kind or degree warranting compulsory confinement was also entirely
fulfilled. In their opinion, the applicant had committed a prohibited
act of significant harm to the community (assault on her mother).
They also noted that in 2000 the experts observed that the
applicant's mental health condition was dangerous to the legal order
and on 11 September 2006 the Psychiatric Commission on Secure
Measures considered that the applicant's confinement in a psychiatric
hospital was necessary.
- Lastly, they submitted that the applicant had been
confined to a psychiatric institution for as long as her condition
required such a measure and the danger of her committing another
offence persisted. The applicant had been finally released
upon a request by her mother who promised to provide assistance to
her daughter.
- The
Government referred to the “clean hands” doctrine in
international law, according to which the responsibility of a State
was not engaged when the complainant himself had acted in breach of
the law, international or domestic. They pointed to the fact that the
applicant had been in hiding for 5 years after the court's judgment
of 18 October 2001. They concluded that in the present case all the
criteria as regards the detention of persons of “unsound mind”
had been met.
3. The Court's assessment
39. 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).
40. Turning
to the circumstances of the present case, the Court shall firstly
examine whether the applicant has reliably been shown to be of
unsound mind of a kind or degree warranting compulsory confinement.
In this respect the Court notes that in 1999 the applicant was
charged with domestic violence. She subsequently underwent a
psychiatric observation in 2000 at the end of which expert
psychiatrists concluded that she suffered from paranoid
schizophrenia. On the basis of this opinion, the Kielce District
Court discontinued the proceedings against the applicant and ordered
her confinement in a psychiatric hospital. It considered that the
applicant's mental condition was such that she was likely to commit
further serious unlawful acts and that she was therefore dangerous to
the general public (see paragraph 8 above).
41. While
the Court accepts that the applicant suffered from a
mental disorder which may have warranted her compulsory confinement
in 2001, this factor is not sufficient in itself to conclude that the
applicant's detention during the period after 19 June 2006 complied
with Article 5 § 1 (e) of the Convention. In
this respect it reiterates that the medical assessment
must be based on the actual state of mental health of the person
concerned and not solely on past events. A medical opinion cannot be
seen as sufficient to justify deprivation of liberty if a significant
period of time has elapsed (see, Varbanov v. Bulgaria,
no. 31365/96, § 47, ECHR 2000 X.).
- In
the present case following the
decision of 18 October 2001 the applicant remained in hiding for
nearly 5 years. Her arrest and her initial detention in a psychiatric
hospital in June 2006 were based on expert evidence obtained in 1999
and 2000. It was only on 7 September 2006 that the Kielce District
Court ordered that the applicant be examined by expert psychiatrists
(see paragraph 14 above). The expert evidence confirming the need to
continue the applicant's internment was then submitted on 7 November
2006 to the court (see paragraph 16 above). Subsequently, at a
hearing held on 11 January 2007, the Kielce District Court examined
the experts' opinion and obtained additional evidence form the
experts. On that date the court confirmed that the applicant suffered
from a mental disorder which justified placing her in a psychiatric
hospital (see paragraph 17 above).
- While
the Court accepts that a certain delay before fresh expert evidence
confirming the need to continue internment is obtained is inevitable,
it considers that in the circumstances of the present case the
District Court had not ordered an expert opinion promptly enough
(only three months after the applicant's placement in the hospital).
In view of the above, the Court concludes that it has not been
“reliably shown” that the applicant's mental condition
necessitated her confinement between 19 June 2006 and 11 January 2007
in a psychiatric hospital.
- Consequently,
the Court concludes that the applicant's hospitalisation between 19
June 2006 and 11 January 2007 was not “lawful” within the
meaning of Article 5 § 1 (e) of the Convention. Thus, there has
been a violation of this provision in respect of the period between
19 June 2006 and 11 January 2007.
- As
regards the period after 11 January 2007 until the applicant's
release, the Court observes that the applicant was examined by expert
psychiatrists on several occasions. They submitted their opinions to
the Kielce District Court on 8 May, 20 June, 16 August and 25
September 2007. All those experts confirmed the necessity of the
applicant's confinement in a psychiatric hospital (see paragraphs
18-21 above).
- While the applicant criticised all those reports the
Court sees no reason to doubt that the experts were fully qualified
and had grounded 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.
- In
view of the above the Court is satisfied that the applicant's
deprivation of liberty between 11 January 2007 and 16 November 2007
was lawful within the meaning of Article 5 § 1 (e) of the
Convention.
- There
has therefore been no violation of Article 5 § 1 in respect of
the period between 11 January 2007 and 16 November 2007.
II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE
CONVENTION
- The
applicant further complained about the delay in the proceedings by
which she sought to challenge the lawfulness of her detention in the
psychiatric hospital. The complaint falls to be examined under
Article 5 § 4 of the Convention which provides as follows:
“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 contested that argument.
A. Admissibility
- The
Court notes 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 submitted that during her detention in the psychiatric
hospital she had not had a speedy access to court to challenge the
lawfulness of her detention.
2. The Government's submissions
- The
Government argued that the necessity of the applicant's confinement
in the hospital had been systematically monitored by the court.
Several expert opinions confirmed that it had been necessary to keep
the applicant in a mental institution.
- They
were further of the opinion that the applicant's appeal against the
decision of 11 January 2007 had been examined by the Kielce Regional
Court without undue delay. The applicant's representative had lodged
his appeal on 15 January 2007, the applicant on 24 January 2007 and
the case file had been transferred to the Kielce Regional Court on 24
January 2007. The appeals had been examined on 23 February 2007, that
is one month later. In the Government's opinion, the length at issue
had no significance to the applicant's detention since the
applicant's mental state had not allowed her release.
3. The Court's assessment
- The Court reiterates that by virtue of Article 5 §
4 a person of unsound mind compulsorily confined in a psychiatric
institution for an indefinite or lengthy period is in principle
entitled, at any rate 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 his detention (see
Winterwerp, cited above, § 55).
- The Court
reiterates that Article 5 § 4, in guaranteeing to persons
arrested or detained a right to have the lawfulness of their
detention reviewed, also proclaims their right, following the
institution of such proceedings, to a speedy judicial decision
concerning the lawfulness of detention and to an order terminating it
if proved unlawful (see, for instance, Baranowski v. Poland no.
28358/95, § 68, ECHR 2000-III).
- The finding whether or not the relevant decisions were
taken “speedily” within the meaning of that provision
depends on the particular features of the case. In certain instances
the complexity of medical, or other, issues involved in a
determination of whether a person should be detained or released can
be a factor which may be taken into account when assessing compliance
with the Article 5 § 4 requirements (see, mutatis mutandis,
Baranowski v. Poland, cited above, and Musiał v. Poland
[GC], no. 24557/94, § 43, ECHR 1999-II).
- In
the present case the Court observes that both the applicant's and her
lawyer's appeals against the decision of 11 January 2007, lodged on
15 January and 24 January 2007 respectively, were examined
together on 23 February 2007. The Regional Court did not
need to supplement the evidence. Furthermore it had not obtained any
fresh medical evidence (see paragraph 17 above).
- It
is true that the period of thirty days may prima facie appear
not to be excessively long. However, the Government did not plead
that complex issues had been involved in the determination of the
lawfulness of the applicant's detention or that the courts needed to
obtain expert evidence. Having regard to the above, the Court
concludes that the delay of thirty days cannot be considered
compatible with the requirement of “speediness” laid down
in Article 5 § 4 (see for example Butusov v. Russia, no.
7923/04, § 35, 22 December 2009, Rehbock v. Slovenia,
no. 29462/95, §§ 86, 87, ECHR 2000 XII).
- The
Court consequently holds that there has been a violation
of Article 5 § 4 of the Convention.
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 claimed 70,000 euros (EUR) in respect of non pecuniary
damage and EUR 21,460 in respect of pecuniary damage.
- The
Government contested these claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it awards the applicant EUR 6,000 in respect
of non pecuniary damage.
B. Costs and expenses
- The applicant, who received legal aid from the Council
of Europe in connection with the presentation of her case, did not
make any claim for reimbursement of costs and expenses.
C. 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 application admissible;
- Holds that there has been a violation of Article
5 § 1 of the Convention in respect of the period between 19 June
2006 and 11 January 2007;
- Holds that there has been no violation of
Article 5 § 1 of the Convention in respect of the period between
11 January 2007 and 16 November 2007;
- Holds that there has been a violation of Article
5 § 4 of the Convention;
- Holds
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the
Convention, EUR 6,000 (six thousand euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage, to be converted into
Polish zlotys at the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 21 December 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
