CEDH · CASELAW;REPORTS;ENG — 4 mars 1998

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ALKEMA JOINED BY Mr F. MARTINEZ   9     APPENDIX:   DECISION OF THE COMMISSION AS TO     THE ADMISSIBILITY OF THE APPLICATION   10   I.   INTRODUCTION     1.   The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.     A.   The application   2.   The applicant is a Polish citizen, born in 1953 and resident in Jastrz?bie Zdrój.     3.   The application is directed against Poland.   The respondent Government were represented by their Agent, Mr Krzysztof Drzewicki, of the Ministry of Foreign Affairs.   4.   The case concerns the length of the proceedings in review of the applicant's psychiatric internment.   The applicant invokes Article 5 para. 4 of the Convention.     B.   The proceedings   5.   The application was introduced on 10 January 1994 and registered on 7 July 1994.   6.   On 22 February 1995 the Commission (Second Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.      7.   The Government did not request an extension of the time-limit fixed for submission of their observations and did not submit any observations.     8.   On 6 September 1995 the Commission declared admissible the applicant's complaint under Article 5 para. 4 of the Convention.   It declared inadmissible the remainder of the application.   9.   The text of the Commission's decision on admissibility was sent to the parties on 20 September 1995 and they were invited to submit further information or observations on the merits as they wished.   10.   After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.   In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.   C.   The present Report   11.   The present Report has been drawn up by the Commission (Second Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:         MM   J.-C. GEUS, President       M.A. NOWICKI       G. JÖRUNDSSON       A. GÖZÜBÜYÜK       J.-C. SOYER       H. DANELIUS     Mrs   G.H. THUNE     MM   F. MARTINEZ       I. CABRAL BARRETO       J. MUCHA       D. ŠVÁBY       P. LORENZEN       E. BIELI?NAS       E.A. ALKEMA       A. ARABADJIEV   12.   The text of this Report was adopted on 4 March 1998 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.   13.   The purpose of the Report, pursuant to Article 31 of the Convention, is:     (i)   to establish the facts, and     (ii)   to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.   14.   The Commission's decision on the admissibility of the application is annexed hereto.   15.   The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.   ESTABLISHMENT OF THE FACTS   A.   The particular circumstances of the case       16.   In 1986 the Katowice Regional Prosecutor instituted criminal proceedings against the applicant on suspicion of manslaughter of his wife.   On 18 October 1987 the applicant was examined by a medical panel of two psychiatrists who found that at the material time the applicant had lacked criminal responsibility and that he was dangerous to   public order.   The criminal proceedings were subsequently discontinued.   On 30 November 1987 the Jastrz?bie-Zdrój Public Prosecutor requested the Court to order the applicant's psychiatric internment.   17.   On 8 February 1988 the Katowice Regional Court (S?d Wojewódzki) committed the applicant to a mental hospital.   The Court considered the submission of the Prosecutor that the applicant had killed his wife.   The Court also took into consideration the medical expert opinion.   The Court concluded that the applicant was dangerous to public order.   On 18 March 1988 the Supreme Court (S?d Najwy?szy) upheld this decision. On 13 April 1988 the applicant was placed in Rybnik Psychiatric Hospital.   18.   On 4 November 1988 and 15 September 1989 the Katowice Regional Court decided that in view of his condition established by psychiatrists, the applicant's continued detention was necessary.   19.   On 4 April 1991 the applicant's officially appointed lawyer   requested his release from the mental hospital.   On 27 May 1991 the Katowice Regional Court refused to order the applicant's release.   20.   In an opinion of 27 December 1991 the psychiatrists stated that the applicant's condition necessitated further detention and in its subsequent decision the Katowice Regional Court refused to release him.   21.   On 10 January 1992 the Minister of Justice refused leave for an extraordinary appeal against the decision of 8 February 1988 on the applicant's committal to the psychiatric hospital.   22.    On 22 June 1992 the Court again refused to release the applicant. 23.   On 16 March 1993 the applicant's lawyer filed a request for release with the Katowice Regional Court.   He also insisted that the applicant be examined by psychiatrists from the University of Cracow as he was convinced that it was only from this institution that he could obtain an unbiased opinion.   The Court ordered the Rybnik hospital to submit an up-to-date medical opinion as to the applicant's condition.   In an opinion   of 19 April 1993 the psychiatrists from Rybnik hospital stated that the applicant's condition necessitated further detention and suggested that in view of the applicant's repeated requests for a medical examination by psychiatrists from another hospital it would be advisable to order such examination.   By a decision of 26 April 1993 the Court ordered that the applicant be examined by psychiatrists from the Cracow University.   Subsequently the Psychiatry Department of that University informed the Court that the applicant would be admitted to its hospital either in October or in November 1993 after an analysis of his case-file.   24.   On 25 June 1993 the applicant requested the reopening of the criminal proceedings.   In a letter of 15 September 1993 the Katowice Regional Prosecutor informed him that his request would not be considered.   25.   From 31 January to 4 February 1994 the applicant underwent an examination at the Cracow University.   26.   On 18 May 1994 the Katowice Regional Court informed the applicant that the case-file was still at the University and that the opinion was not yet ready.   27.   On 21 June 1994 the Cracow University informed the Katowice Regional Court that it could not send the file back to the Court as the medical opinion was still not ready.   On 21 July 1994 the Katowice Regional Court informed the applicant thereof.   28.   In an opinion of 30 November 1994 the psychiatrists from the Cracow University stated that the applicant's condition necessitated further detention.   This opinion was submitted to the Katowice Regional Court on 15 December 1994.   29.   On 9 January 1995 the Court, having considered the opinion of 30 November 1994, decided that the applicant's detention should be maintained.     B.   Relevant domestic law   30.   The conditions for detention of persons of unsound mind who are not criminally responsible are laid down in the Polish Criminal Code:   <Original>:     Artyku? 99:     "Je?eli uznano, ?e sprawca dopu?ci? si? czynu zabronionego w stanie niepoczytalno?ci [wy??czaj?cej odpowiedzialno?? karn?], a jego pozostawanie na wolno?ci grozi powa?nym niebezpiecze?stwem dla porz?dku prawnego, s?d orzeka umieszczenie sprawcy w szpitalu psychiatrycznym albo w innym odpowiednim zak?adzie."       Artyku? 101:     "W wypadkach przewidzianych w art. 99 (...) czasu pobytu w zak?adzie nie okre?la si? z góry; s?d orzeka zwolnienie sprawcy, je?eli jego dalsze pozostawanie w zak?adzie nie jest konieczne."   <Translation>:     Article 99:     "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 entails a serious danger to public order, the Court shall commit him to a mental hospital or another appropriate institution."     Article 101:     "In the cases provided for in Article 99 (...) the period of   detention is not determined in the decision of the committal to the mental institution; the Court shall order the release if the detention ceases to be necessary."     31.   Article 242 para. 1 of the Code of Criminal Procedure, read together with Article 244 para. 1, provides that a court may impose a fine on a court expert who with no justifiable grounds consistently fails to comply with his obligation to submit a report to the court.   32.   Article 197 of the Code of Execution of Sentences reads:   <Original>:     "1. Dyrektor zak?adu leczniczego ma obowiazek zawiadamia? s?d o stanie zdrowia sprawcy umieszczonego w zak?adzie i o post?pach w leczeniu....     3.   S?d nie rzadziej ni? 6 miesiecy... rozstrzyga na podstawie opinii lekarskiej o potrzebie dalszego stosowania ?rodka zabezpieczajacego."   <Translation>:     "1.   A director of a medical institution is obliged to keep the court informed of the detainee's health and of the progress in treatment.     2.   The court, at intervals not longer than six months, decides, on the basis of a medical opinion, on the necessity to maintain further security measures."   III.   OPINION OF THE COMMISSION   A.   Complaint declared admissible   33.   The Commission declared admissible the complaint concerning the length of proceedings in which the lawfulness of the applicant's continued detention in a mental hospital was examined.     B.   Point at issue   34.   The point at issue is whether there has been a violation of Article 5 para. 4 (Art. 5-4) of the Convention.     C.   Article 5 para.4 (Art. 5-4) of the Convention   35.   Article 5 para. 4 (Art. 5-4) of the Convention states:     "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."     36.   The applicant complains that the proceedings instituted by his request for release of 16 March 1993 in which the lawfulness of his continued detention was to be examined lasted too long.   He submits that these proceedings were in breach of the applicable domestic law as the automatic judicial review should be carried out every six months.   37.   The Government submit that the applicant's detention complied with the relevant requirements under Article 99 of the Criminal Code, i.e. it was established that he had committed the offence and that he was not criminally responsible on psychiatric grounds.   Since deprivation of liberty was at stake, the decisions on the psychiatric internment were within the jurisdiction of the Regional Court and an appeal to a higher court lay against them.   The necessity of the applicant's continued detention was subject at regular intervals to judicial review.   Moreover, it was open to the applicant to submit   requests for release at any time.   Whether the court acted ex officio or upon the applicant's request, it had to rely on an expert opinion as to the actual condition of the detained person.   All these requirements were fully complied with in the present case.   38.   As regards the proceedings instituted by the applicant's request for release of 16 March 1993, the Government submit that the court complied with the applicant's request to appoint experts other than those from the Rybnik hospital even though the previous opinions of those psychiatrists all confirmed the need for continued detention. Thus, the Court was acting with particular diligence in order to conform with the applicant's request.   39.   The Government state that these proceedings can hardly be regarded as lengthy, even though certain phases thereof took longer than it had been intended.   The Department of Psychiatry of the Cracow University informed the Court that the applicant could be examined only in the autumn of 1993 after the analysis of the case-file.   This examination was finally carried out in January and February 1994 and the opinion was ready in November 1994.   The Court urged the University several times to submit the opinion and was informed in reply that the opinion was in the process of preparation.   The Court could have appointed another hospital, but did not do so, having regard to the   request of the applicant who had trust in the qualifications of the psychiatrists of this particular hospital.     40.   The Government conclude that the time it took the court to take a decision as to the applicant's continued detention was justified, regard being had to the complex character of the case and the responsibility of the psychiatrists for the contents of the opinion which was decisive for the applicant's release.   41.   The Commission recalls that, in order to satisfy the requirements of Article 5 para. 4 (Art. 5-4) of the Convention, the judicial review of lawfulness of continued psychiatric detention   must comply with both the substantive and procedural rules of the national legislation and moreover be conducted in conformity with the aim of Article 5 (Art. 5), namely to protect the individual against arbitrariness.   The latter condition implies not only that the competent courts must decide "speedily", but also that their decisions must follow at reasonable intervals (Eur. Court HR, Herczegfalvy v. Austria judgment of 24 September 1992, Series A no. 244, p. 24, para. 75; Koendjbiharie v. the Netherlands judgment of 25 October 1990, Series A no. 185-B, p. 40, para. 27).   42.   The Commission first observes that the proceedings concerned lasted from 16 March 1993, i.e the date on which the applicant filed a request for release with the Katowice Regional Court, to 9 January 1995, i.e. a period of one year, nine months and twenty-four days.   This delay was caused exclusively by the fact that the Cracow University was slow in the preparation of its opinion, explaining the delay by its workload.     43.   The Government concede that in view of the excessive length of that period, it was open to the court to order a medical expert opinion from another hospital, but it did not do so given that the applicant wished to have an opinion from the Cracow University.   However, the Commission considers that no particular weight should be attached to this argument.   It was legitimate that the applicant wished to have the opinion prepared by psychiatrists other than those from the Rybnik hospital where he was interned in order to ensure a second opinion, entirely objective and free of any suspicion of bias which might have developed during his uninterrupted stay in this hospital since 1989.   However, the court's primary concern should have been to speedily obtain the expert opinion as a basis for its next decision, compliance with the applicant's wish as to the source of the opinion being of secondary importance.   44.   The Commission recalls that it falls to the court to ensure that   expert opinions are submitted within a reasonable time (Eur. Court HR, Capuano v. Italy judgment of 25 June 1987, Series A no. 119, p. 13, para. 32).   In the instant case the court twice urged the University to speed up their work, to no avail.   The court could also have imposed a fine pursuant to Article 244 para. 1 of the Code of Criminal Procedure.   45.   It is to be further noted that as a result of the delay in the submission of the expert opinion, the court did not comply with the requirements of Article 197 of the Code of Execution of Sentences as the review was not carried out pursuant to this provision, i.e. at intervals of not more than six months.   Thus, the proceedings not only exceeded a reasonable time, but also were not conducted in accordance with the procedural provisions of Polish law.   CONCLUSION   46.   The Commission concludes, by 13 votes to 2, that in the present case there has been a violation of Article 5 para. 4 (Art. 5-4) of the Convention.        M.-T. SCHOEPFER                               J.-C. GEUS       Secretary                                   President to the Second Chamber                       of the Second Chamber     (Or. English)     DISSENTING OPINION OF Mr E.A. ALKEMA   JOINED BY Mr F. MARTINEZ     I have voted against a violation in this case for three reasons.     Firstly, according to the majority, the impugned "delay was caused exclusively by the fact that the Cracow University was slow in the preparation of its opinion" (para. 42).   It is to be noted, however, that this opinion was sought at the express wish of the applicant.   Therefore, it could rightly be argued that this circumstance alone already estopped him from complaining about the ensuring delay (see Eur. Court HR, Capuano v. Italy judgement of 25 June 1987, Series A no. 119, p. 14, para. 33).     Be that as it may, the majority further opines that "the court's primary concern should have been to speedily obtain the expert opinion".   I find this incompatible with the prime importance to be attached to the possibility for challenging medical evidence under Article 5 para. 4   when the detention of persons of unsound mind is concerned (Eur. Court HR, Winterwerp v. the Netherlands judgment of 24 October 1979, Series A no. 33, p. 23, para. 58).   Accordingly, it should not be held against the domestic courts that they sought at the applicant's request a second medical opinion.     Secondly, the majority held the Polish court fully responsible for the delay caused by obtaining the medical opinions.   In principle that is correct, but it may be observed that due regard be given to the fact that the courts' control over the speediness is remote and indirect only.   The time used by experts should not simply be equated to intervals between judicial acts.   Courts often face the dilemma   either to await a slowly produced expert report or in the alternative commit another expert but have to grant to the latter a new term to produce his report.     Thirdly, and taking into account the share in the delays caused by the applicant himself - as set out above - I fail to see that the overall period calculated at one year, nine months and twenty-four   days (para. 42) has been too long.     Finally, I reject the majority's further argument in para. 45 derived from Article 197 of the Code of Execution of Sentences, that the detention would have been contrary to Polish law.   According to its decision of 6 September 1995 the Commission declared admissible only the complaint about the length of the proceedings in which the lawfulness of the continued detention is examined but not the lawfulness itself.