CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 19 janvier 1998

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                      AS TO THE ADMISSIBILITY OF                         Application No. 27580/95                     by Marian JEZNACH                     against Poland          The European Commission of Human Rights sitting in private on 19 January 1998, the following members being present:             MM    S. TRECHSEL, President                J.-C. GEUS                E. BUSUTTIL                G. JÖRUNDSSON                A.S. GÖZÜBÜYÜK                A. WEITZEL                J.-C. SOYER           Mrs   G.H. THUNE           MM    H. DANELIUS                F. MARTINEZ                C.L. ROZAKIS           Mrs   J. LIDDY           MM    L. LOUCAIDES                M.A. NOWICKI                I. CABRAL BARRETO                B. CONFORTI                N. BRATZA                I. BÉKÉS                J. MUCHA                D. SVÁBY                G. RESS                A. PERENIC                C. BÎRSAN                K. HERNDL                E. BIELIUNAS                E.A. ALKEMA                M. VILA AMIGÓ           Mrs   M. HION           MM    R. NICOLINI                A. ARABADJIEV             Mr    M. de SALVIA, Secretary to the Commission          Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 2 May 1995 by Marian Jeznach against Poland and registered on 12 June 1995 under file No. 27580/95      Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      18 February 1997 and the observations in reply submitted by the      applicant on 12 April 1997;        Having deliberated;        Decides as follows:   THE FACTS        The applicant, a Polish citizen born in 1913, is retired and lives in Gdansk.        The facts of the case, as submitted by the parties, may be summarised as follows:     Particular circumstances of the case        On 31 July 1981 a monument commemorating approximately fourteen thousand Polish officers taken prisoners of war and murdered by the Russian authorities in 1941, was erected by a citizens' committee on the Warsaw-Pow*zki military cemetery.   The applicant actively participated in its creation and financing.   After several hours the secret police removed the monument from the cemetery.   In 1985 the communist authorities erected a new monument with an inscription indicating that the officers had been murdered by the German army. In 1990 the local municipality agreed that this monument would remain at the cemetery with the inscription changed so as to indicate the actual perpetrators of the crime.   The original monument was found in storage at the cemetery.        In 1989 the applicant filed a civil action with the Warsaw District Court (S*d Rejonowy) claiming that the 1981 monument be restored to him.   On 21 November 1990 the Court dismissed the applicant's claim.   The Court found that in late 1981, as a result of a conflict between the members of the committee and the applicant, the committee had reimbursed the applicant the costs borne by him for the construction of the monument.   Thus the applicant had lost any entitlement which he had undeniably previously had as a legitimate member of the committee and a co-founder of the monument to claim that it be rendered to him.   In 1991 the Warsaw Court of Appeal (S*d Apelacyjny) upheld this judgment.   On 22 July 1993 the Minister of Justice refused leave for an extraordinary appeal against this judgment.        The applicant continued his efforts to have the original monument placed at the cemetery by submitting numerous insistent petitions to various authorities.   His request was not complied with.   He was informed on several occasions that it was the 1985 monument which was to remain on the cemetery with the changed inscription.        On 31 August 1994 the applicant came to the office of J.P., a deputy manager of the Warsaw-Pow*zki cemetery, and demanded that the 1981 monument be given back to him.   The manager explained that he was not competent to take such a decision.   The applicant insisted and declared that he was ready to go on a hunger strike on the premises and eventually to commit suicide.   The manager ignored him for ten minutes and then phoned his secretary asking her to bring help.   Shortly afterwards two employees, S.K. and M.R., came to the office, whereupon the applicant shot at J.P. with a gas pistol.   Two next shots were fired when the employees tried to disarm the applicant.   As tear gas spread in the room, three men left the office while the applicant remained there.   Subsequently he fired a "Parabellum" gun which had been in his possession since the Second World War.   The bullet pierced the glass door between the office and the adjoining one and slightly wounded R.S., another employee of the cemetery who had come to assist J.P.   Then the applicant tried to commit suicide but the second bullet got stuck in the gun.   The management of the cemetery called an antiterrorist police team who came to overpower the applicant. The applicant did not offer any resistance.   He was arrested on suspicion of causing public disturbance and danger to human life and limb. He was then taken to Warsaw-Mokotów prison.        On 1 September 1994 the Warsaw-Wola District Prosecutor remanded the applicant in custody until 30 September 1994 on suspicion of attempted manslaughter and unauthorised possession of weapons.   The operative part of the decision read as follows: "The evidence in the case proved that the accused had committed the offence in question, which constitutes a crime of a significant degree of social danger." ("Zebrany material dowodowy uzasadnil, iz podejrzany dopuscil si* zarzucanego mu czynu, który jest zbrodni* o znacznym stopniu spolecznego niebezpieczenstwa").        In the prison the applicant was apparently placed on the very first day in the internal medicine ward of the prison hospital. It transpired from the examination upon his admission that he suffered from cardiovascular insufficiency, had been taking relevant medication and that he had chronic constriction of the oesophagus.   Apparently shortly after the arrest the applicant, who could not eat prison food, was fed by an intravenous drip on a continuous basis.   He received about 130 drips.        On 2 September 1994 the Warsaw-Wola District Prosecutor ordered the applicant's psychiatric examination to establish whether he could be held criminally responsible.        On 5 September 1994 the Warsaw-Wola District Prosecutor requested the Warsaw-Mokotów prison governor to present the applicant to a medical panel in order to establish whether the detention was compatible with his condition.        On 8 September 1994 the applicant underwent a psychiatric examination by a psychiatrist from the forensic psychiatry ward of the prison hospital.   He talked for 30 minutes with a psychiatrist who stated in her report that he suffered from an advanced paranoic reaction with a strong affective component.   Thus, he could not be held criminally responsible.   His state warranted the opinion that he posed a threat to legal order and he should therefore be interned in a psychiatric hospital.        On 16 September 1994 a medical panel, having examined the applicant, stated that given his age and health condition he was not fit for detention.        On 20 September 1994 the Warsaw-Wola District Prosecutor discontinued the criminal proceedings against the applicant, finding that he was not criminally responsible on psychiatric grounds.   The Prosecutor relied in this respect on a psychiatric expert opinion of an undetermined date, apparently that of 8 September.   It was established that on 31 August at 1 p.m. the applicant had come to the office of J.P. and demanded that the 1981 monument be given back to him.   He had threatened to go on hunger strike and had shot in the manager's direction with a gas pistol.   The manager had escaped from his office and brought several employees of the cemetery to his secretariat.   The applicant had remained in the office.   Subsequently he had twice fired a "Parabellum" gun, which had been in his possession since at least 1939, through the glass door between the office and the secretariat.   One bullet had slightly wounded R.S. and the other one had hit the doorframe.   The management of the cemetery had called an antiterrorist police team who came to overpower the applicant and he was placed in custody.   The Prosecutor decided to file a request with the court for the applicant's psychiatric internment.   However, pursuant to Article 223 of the Code of Criminal Procedure, the detention on remand was to be maintained until the present decision became final, pending the outcome of these proceedings.   The documents relating to the history of the monument and the applicant's involvement therein were to be transmitted to the court dealing with the request for psychiatric internment.        On 29 September 1994 the Warsaw-Wola District Prosecutor, having regard to the medical opinion of 16 September 1994, requested that the medical panel decide whether the applicant could remain in the prison hospital until the proceedings concerning his psychiatric detention came to an end.        On 30 September 1994 the applicant's lawyer filed an appeal against the Public Prosecutor's decision of 20 September 1994, both as regards the applicant's continued detention and his eventual psychiatric internment.   He first submitted that the circumstances of the case had to be assessed against the applicant's past life, his adherence to the cause of national independence and in the light of his motives, which were unquestionably noble.   He submitted that the psychiatric expert opinion was too laconic and insufficient to establish with adequate clarity the applicant's mental state as it had been prepared on the basis only of one examination. It would have been necessary to put him into hospital observation to establish adequately his mental condition.   The applicant's advanced age and bad health rendered the detention particularly harsh for him.   The decision to file a request for the applicant's psychiatric internment was at least premature as no reasonable efforts had been made to clarify the applicant's mental state with complete certainty and to establish whether he really presented a danger to public order.        On 6 October 1994 the Warsaw Regional Court (S*d Wojewódzki) decided to adjourn the decision as to the appeal until a reply to the Public Prosecutor's request of 29 September 1994 was submitted.        In a letter of 7 October 1994 the chief physician of the internal medicine ward of the prison hospital informed the Public Prosecutor that the applicant remained in the hospital and could remain there further.        On 2 November 1994 the Warsaw Regional Court dismissed the appeal as regards the applicant's continued detention.   The Court admitted that the circumstances of the case were unusual in that the applicant was over eighty years old and in that the expert opinion of a medical panel had declared that he was unfit for detention.   However, regard had to be had to the circumstances of the applicant's arrest from which it transpired that he could present a serious threat to the legal order.   He had shown himself as being capable of exceptionally aggressive behaviour in connection with the monument issue, even to the point of threatening human life if his persistent efforts in this respect were frustrated.   His repeated violent demeanour could not be excluded.   Further to the first medical expert opinion, a chief physician of an internal ward of the prison hospital had informed the Prosecutor that the applicant was treated in the prison hospital and could remain there for further treatment.   He further referred to the applicant's advanced age and bad health ("...wskazuj*c jednoczesnie na uwarunkowania zwi*zane z wiekiem i schorzeniami pacjenta.").   The Court relied on this opinion in deciding that the applicant's detention should be upheld as it served the purpose of the psychiatric internment, i.e. the applicant's isolation necessary in view of his possible violent behaviour, pending the outcome of relevant proceedings.        In a letter of 10 November 1994 the applicant's daughter requested the Warsaw-Wola District Prosecutor to examine the applicant's appeal against the decision to discontinue the criminal proceedings.        In a letter submitted on 16 November 1994 the applicant's lawyer drew the attention of the Warsaw Regional Prosecutor to the change in the conduct of the applicant who had realised that his behaviour on 31 August 1994 had been inappropriate.   He requested that the applicant undergo a further psychiatric examination, in particular in order to establish that the decision on the discontinuation of the proceedings was premature.        On 21 November 1994 the medical panel of the Warsaw-Mokotów prison hospital issued an opinion that the applicant should be released as he required specialised psychiatric treatment.        On 24 November 1994 the Warsaw-Wola Public Prosecutor filed a request with the Warsaw Regional Court to have the applicant placed in a mental hospital.   On the same day the Warsaw Regional Public Prosecutor upheld the decision to discontinue the criminal proceedings against the applicant in view of his mental condition.        On 25 November 1994 the same Prosecutor decided to release the applicant from detention on remand, considering that the grounds for his detention on remand had ceased to exist.   The applicant was released on the same day.        On 14 December 1994 the Warsaw-Mokotów prison hospital issued a medical certificate.   It stated that the applicant suffered from chronic constriction of the oesophagus, from a mild form of hepatitis due to cholelithiasis and from cardiomyopathy.   It further stated that the applicant was not fit for detention and should be further treated in a hospital.   A half-liquid diet was necessary.   The applicant should be under constant medical care.        On 22 December 1994 the Warsaw Regional Court held a hearing in the proceedings relating to the psychiatric detention and decided to order a second psychiatric opinion.        The Gdansk District Court summoned the applicant to undergo a psychiatric examination on 27 February 1995.   The applicant failed to comply with the summons.        On 17 May 1995 the police took the applicant to a psychiatric hospital for examination.   On 31 May 1995 the expert opinion was prepared.        The dates of further hearings in the psychiatric internment proceedings were fixed for 31 August and 30 October 1995.        On 26 February 1996 the Warsaw Regional Court heard the psychiatrists who had examined the applicant on 17 May 1995 and dismissed the Public Prosecutor's request that the applicant be placed in psychiatric internment.   The Court relied on the expert opinion of 31 May 1995 in which the psychiatrists had stated that the applicant suffered from a psychoorganic dementive syndrome with a paranoic component, but was not dangerous.   The Court also relied on the evidence submitted at the hearing by the psychiatrists who further stressed that in the applicant's bad physical condition the placement in a psychiatric hospital would be harmful and would not serve any purpose.   The applicant lodged an appeal, stating that he did not agree with the decision and that he felt seriously wronged by the proceedings as a whole.        On 16 April 1996 the Warsaw Court of Appeal refused to entertain the appeal on the ground that in principle an appeal lay only against those decisions which were to the appellant's detriment.   The Prosecutor's request for the applicant's psychiatric internment having been dismissed, the applicant had no legal interest in lodging the appeal.     Relevant domestic law   Article 99 of the Penal Code states:   <Translation>:        "If it has been established that a person has committed an      offence in a state of mental disorder [excluding his criminal      responsibility], and his remaining at liberty would entail a      serious danger to the legal order, the Court shall commit him to      a mental hospital or another appropriate institution."        Article 217 of the Code provides that a person may be held in detention on remand if there are serious grounds for believing that he or she will abscond, in particular when he or she does not have a permanent address or his identity cannot be established; or if there are serious grounds for believing that there is a risk of collusion or that an accused will otherwise jeopardise criminal proceedings; or if an accused has been charged with an offence of a particular seriousness.        Pursuant to Article 218 of the Code, if there are no special considerations to the contrary, detention on remand should not be imposed if it involves danger to life or limb or entails particular hardship for a suspect or his family.        Article 223 of the Code of Criminal Procedure provides that if the criminal proceedings have been discontinued on the grounds of the suspect's mental condition, the detention on remand can be maintained until a decision is taken as to preventive measures, inter alia psychiatric detention.        Article 14.1 of the Code of Execution of Sentences provides that any decision of the prison administration as regards the execution of a sentence or of detention on remand can be appealed against to the court on the ground that it is not in accordance with the law.     COMPLAINTS        The applicant complains under Article 3 of the Convention that his detention amounted to inhuman treatment as he was eighty years old at the time of his arrest and suffered from serious illnesses as confirmed by his status as a fully disabled person.   His detention was maintained despite the medical opinion that he was not fit for it due to his bad health.   He was hospitalised from the very first day of his detention and fed by intravenous drip for the most part of this time. He submits that the treatment he received in prison caused him serious suffering.   His condition severely and rapidly deteriorated as a result of his detention.        The applicant complains under Article 5 para. 1 of the Convention that his detention on remand was maintained since he was regarded as being of unsound mind even though he was mentally fit.   He further complains that the authorities instituted the proceedings to put him into psychiatric detention as a measure of political persecution. He maintains that his arrest was unjustified as he was mentally fit and not dangerous.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 2 May 1995 and registered on 12 June 1995.        On 21 October 1996 the Commission decided to communicate the applicant's complaints concerning his detention to the respondent Government.        The Government's written observations were submitted on 18 February 1997, after an extension of the time-limit fixed for that purpose.   The applicant replied on 12 April 1997.     THE LAW   1.    The applicant complains under Article 3 (Art. 3) of the Convention that his detention amounted to inhuman treatment as he was eighty years old at the time of his arrest and suffered from serious illnesses.        Article 3 (Art. 3) of the Convention provides:        "No one shall be subjected to torture or to inhuman or      degrading treatment or punishment."   a)    The Government first submit that the applicant did not exhaust relevant domestic remedies available to him under Polish law as he did not lodge any complaints concerning the conditions of his detention either to the prison administration or to the Public Prosecutor or to the penitentiary court as provided for by Article 14.1 of the Code of Execution of Penalties.   This provision ensures a two-tiered judicial review of any decisions taken by the prison administration.   Thus, this complaint should be declared inadmissible for non-exhaustion of domestic remedies.        The applicant does not address this issue.        The Commission first notes that in the present case the complaints under Articles 3 and 5 (Art. (Art. 3, 5) of the Convention overlap as regards the very fact that detention on remand was imposed on the applicant.   The applicant resorted to the applicable remedies as regards his detention on remand, indicating in his appeal of 30 September 1994 to the Warsaw Regional Court that in view of his age and bad health his detention was particularly harsh for him.   The Commission further notes that one of the remedies referred to by the Government, i.e. an appeal to the court against any decision of the prison administration, can be lodged only on the ground that the decision concerned is not in accordance with the law.   The Commission notes that the complaint under Article 3 (Art. 3) relates in its remaining part to the medical care afforded to the applicant in the prison hospital and to the suffering it caused him.   This complaint concerned   only   the factual aspects of the applicant's situation and no question arose as to the lawfulness of the medical treatment concerned.   Therefore in the circumstances of the case the judicial remedy referred to by the Government was not a relevant one.   As regards other remedies referred to by the Government, the Commission considers that, even assuming that these remedies were relevant to the complaint at issue, the particular circumstances of the applicant's detention, in particular the gradual deterioration in his health, his frailty and the fact that he was in a hospital throughout his detention, constitute grounds exempting him from the obligation to exhaust these remedies.        It follows that this complaint cannot be rejected for non- exhaustion of domestic remedies.   b)    The Government submit that the applicant was arrested immediately after an attempted manslaughter.   His age cannot be regarded as a factor which would exonerate him from criminal responsibility, or prevent him from being detained on remand.   At the relevant time he did not have the legal status of a fully disabled person as he obtained such status only by virtue of a decision of the Disability and Employment Medical Panel of 21 September 1995, which stated that his full disability had commenced in June 1995.   In any event, under Polish law even full disability as such does not   prevent the authorities from imposing detention on remand.   Throughout his detention on remand the applicant remained in the prison hospital, where various forms of medication were administered to him.   In view of a constriction of the oesophagus he was put on a liquid diet.   As the applicant did not comply with medical recommendations to drink more liquids, he was put on intravenous drip.   These procedures were discontinued on 17 October 1994 upon the applicant's request and in view of the symptoms of inflammation of veins.   On 14 November 1994 these operations were resumed in view of medical necessity of doing so.   Consequently, they cannot be regarded as torture or degrading treatment.   On the whole, the treatment which the applicant received was of a standard equal to that which he would have been offered in a civil hospital.   It clearly follows from the applicant's medical documents that his continued detention was not incompatible with his condition.   This complaint should thus be declared manifestly ill-founded.        The applicant submits that in view of his age and frailty he should not have been detained.   His condition was known to the prison authorities and was confirmed upon his admission to the prison hospital.   He could not take prison food and as a result, he was steadily losing weight and forces.   He was then put on an intravenous drip for two weeks.   Afterwards this was discontinued to allow his veins to heal.   At that time he became so feeble that he had difficulty walking and once fainted.   Thereafter he was put on a drip again which was being administered for several days from 7 a.m. to 2 p.m.   This was discontinued again as inflammation of veins did not heal.   This entailed his aggravated fragility which again resulted in readministration of a series of drips, regardless of the conditions of his veins.   He submits that his condition was known to the doctors and that he should have been released as his health was steadily deteriorating not only because of his illness but as a result of treatment administered to him.   Had he not been put in detention, there would have been no need for the treatment.   The Government disregard the fact that the need for the treatment arose exclusively as a result of his imprisonment.        The applicant further submits that it is true that he acquired the status as a fully disabled person only after his release.   However, it was his stay in prison which led to the deterioration of his health.        The Commission considers that this complaint raises serious issues of fact and law under the Convention the determination of which should depend on an examination of the merits.   It follows that this part of the application cannot be dismissed as being manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   No other ground for declaring it inadmissible has been established.   2.    The applicant complains under Article 5 (Art. 5) about his detention.        Article 5 (Art. 5) of the Convention in its relevant part reads:        "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 first concede that the applicant exhausted domestic remedies as regards his detention.        As regards the period from 31 August 1994 to 20 September 1994, the Government submit that the applicant's detention on remand was justified by the particular circumstances of the case, i.e. the attempted manslaughter by firearms.   These circumstances were tantamount to "special considerations" within the meaning of Article 218 of the Code of Criminal Procedure which militated in favour of the imposition of the detention.   The Government further state in their observations that throughout his detention the applicant verbally stated that he intended to attain his purpose, i.e. to have the monument back, by all possible means.   The Government   state that the detention in this period served the purpose of isolation of an insane person threatening legal order within the meaning of Article 99 of the Criminal Code.        As regards the detention from 21 September 1994 to 24 November 1994, the Government submit that the decisions of the authorities were lawful under Article 223 of the Code of Criminal Procedure and, therefore, they were covered by Article 5 para. 1 (e) (Art. 5-1-e) of the Convention.        The applicant submits that in view of his bad health he should not have been detained.   He insists that he had not intended to kill anyone, but only to have the monument restored to its rightful place. His reaction was justified by the refusal by the administration of the cemetery to talk to him and by the use of violence towards him.   Thus, there was no sound basis for the suspicion of manslaughter.   The authorities entirely disregarded that his detention was incompatible with his bad health and that it entailed particular hardship for him. He further submits that he was not suffering from any mental illness and thus his detention insofar as it was decided on that basis was unjustified.   He submits that his alleged mental illness was established after thirty minutes of conversation with the psychiatrist which cannot reasonably be regarded as a sufficient basis for such finding.        The Commission considers that this complaint raises serious issues of fact and law under the Convention the determination of which should depend on an examination of the merits.   It follows that this part of the application cannot be dismissed as being manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   No other ground for declaring it inadmissible has been established.   3.    The applicant finally submits that the proceedings in order to put him in psychiatric internment were instituted even though he was mentally fit.   He invokes Article 5 (Art. 5) of the Convention.        The Commission recalls that under Article 25 (Art. 25) of the Convention it may receive petitions from any person claiming to be a victim of a violation of the rights set forth in the Convention.   The answer to the question whether an applicant can claim to be a victim of a violation of the Convention depends largely on the legal interest which the applicant has in a determination of his allegations of Convention breaches (No. 9320/81, D.R. 36, p. 24).        The Commission observes that the Warsaw Regional Court, by the decision of 26 February 1996, dismissed the Public Prosecutor's request that the applicant be placed in psychiatric internment and on 16 April 1996 the Warsaw Court of Appeal refused to entertain the applicant's appeal against this decision.   Under Article 25 (Art. 25) of the Convention he cannot consequently claim to be a victim of a violation of his Convention rights in this respect.        It follows that this part of the application must be rejected in accordance with Article 27 para. 2 (Art. 27-2) of the Convention.          For these reasons, the Commission, by a majority,        DECLARES ADMISSIBLE, without prejudging the merits, the      applicant's complaints that in view of his age and bad health he      should not have been detained, that the treatment which he      received in prison caused him serious suffering, and that his      health severely deteriorated as a result, and that his detention      was unjustified.        DECLARES INADMISSIBLE the remainder of the application.              M. de SALVIA                          S. TRECHSEL          Secretary                              President       to the Commission                    of the Commission