CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 16 octobre 2001

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Costa , President ,   Mr   J. Makarczyk ,   Mr   P. Kūris ,   Mrs   F. Tulkens ,   Mr   K. Jungwiert ,   Sir   Nicolas Bratza ,   Mr   K. Traja , judges , and Mrs S. Dollé , Section Registrar , Having regard to the above application introduced with the European Commission of Human Rights on 15 November 1994 and registered on 15   February 1996, Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court, Having regard to the partial decision of 18 January 2000, 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, Dobrochna Nowicka, is a Polish national, born in 1940 and living in Łódź, Poland. She is represented before the Court by Mr   W.   Hermeliński, a lawyer practising in Warsaw. The respondent Government are represented by Mr K. Drzewicki, the Agent. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. On an unspecified date the applicant inherited from her mother a 25% share in a property situated in Łódź at 6 Piotrowska Street. The property consisted of an apartment building and a plot of land. On 18 October 1990 the Łódź District Court ( Sąd Rejonowy ) appointed the applicant as the administrator of the property. Subsequently, the applicant requested the previous administrator of the property, a certain association Z.W.Z.D., to cease all its activities relating to the administration of the property. However, the association ignored her request and continued to collect rent from tenants living in the apartment building. In addition, the applicant challenged the right of a certain Mr H.D. to collect rent from tenants leasing business premises located in the building, claiming that his title to a part of the property had been obtained by false pretences. These challenges resulted in an on-going dispute between the applicant on the one side and both the association and Mr H.D. on the other side. On 8 March 1994, Mr H.D., acting through his counsel Mr L.B., brought before the Łódź District Court a private prosecution against the applicant. A private bill of indictment filed by Mr H.D. alleged that the applicant was guilty of criminal libel since, on 19   January 1994, she had sent to a bank, which had made a loan to Mr H.D., a letter stating that he had obtained the loan under false pretences and had been repaying it from income obtained from her property. During the hearing held on 12 April 1994, counsel for Mr H.D. and the applicant refused to settle the case. The applicant confirmed that on 19   January 1994 she had sent the impugned letter, which had led Mr H.D. to bring the private prosecution against her. Counsel for Mr H.D. asked the court to request from the Łódź Psychiatric Clinic ( Poradnia Zdrowia Psychicznego ) information on whether the applicant was a patient of that clinic and, if so, to instruct it to provide the court with her medical file. The counsel based his request on the fact that, according to his knowledge, the applicant was indeed a patient at that clinic. The applicant denied that she had ever undergone psychiatric treatment and stated that counsel’s submission was slanderous. The court decided that it would consider counsel’s request in camera at a later date, and that it would request information about the applicant’s criminal record and background ( wywiad środowiskowy ). On 14 April 1994 the District Court granted the request made on 12   April 1994 and asked the Łódź Psychiatric Clinic about any medical treatment which the applicant had received there. On 19 April 1994 the Łódź Psychiatric Clinic informed the District Court, in a letter signed by Doctor   B.K., that on 23 October 1973 the applicant had visited the clinic and that her medical file included a reference to “suspected paranoid schizophrenia” ( podejrzenie schizofrenii urojeniowej ). On 6 May 1994 police constable Z.A. issued a statement concerning the outcome of the background check, which had been conducted at 4   Sienkiewicza Street where the applicant resided at that time. He concluded, inter alia , that the applicant’s neighbours had a good opinion of her, that she did not abuse alcohol and that she was not involved in any quarrels with her neighbours. On 11 May 1994 counsel for Mr H.D. requested the Łódź District Court to order an expert opinion on the state of the applicant’s mental health. He also submitted several letters written by the applicant and pointed out that they showed that the applicant had claimed rent from certain tenants occupying retail and office space located on the property, despite the fact that the association Z.W.Z.D. had been letting out those premises. On 19 May 1994 the court appointed two forensic psychiatrists and a psychologist and instructed them to prepare a report on the applicant’s condition at the time of the commission of the alleged crime. On 30   May   1994 the experts fixed 10   June 1994 for an appointment with the applicant. On 1 June 1994 the applicant asked the Łódź District Chamber of Doctors ( Okręgowa Izba Lekarska ) to initiate disciplinary proceedings against Doctor B.K. for making a false representation in her letter of 19   April 1994. The applicant contested the contents of that letter claiming that it had been based on fabricated medical records, since she had never visited the Łódź Psychiatric Clinic. The applicant’s requests to investigate the circumstances in which the letter had been issued were rejected by the Łódź District and Regional Prosecutors. On an unspecified date, the Łódź District Court ordered the applicant to report on 10   June   1994 for examination in a psychiatric ward of the Babiński Hospital headed by Doctor B.K. The applicant’s appeals and complaints concerning that decision were rejected by the Łódź District and Regional Courts. The applicant submits that she asked the District Court to change the venue of her examination as she considered that no objective opinion on her mental health could be issued after an examination in a ward headed by Doctor B.K. On 10 June 1994 the applicant failed to present herself for a psychiatric examination. On 14 June 1994 the applicant filed an application challenging all judges of the Criminal Section of the Łódź District Court, but it was dismissed on 23   June 1994. On 13 July 1994 the Łódź District Court issued an arrest warrant in order to secure the applicant’s compliance with its order concerning a psychiatric examination. The Government submitted that on 27 July 1994 the police informed the court that the applicant had refused to open the door to her flat and therefore the police officers had been unable to enforce the arrest warrant. The applicant denied that and pointed to the fact that on 25 October 1994 she voluntarily went to the police station (see below). On 1 August 1994 the District Court issued an order fixing 12 August 1994 for the applicant’s compulsory psychiatric examination. However, the applicant did not keep the appointment. On 1 September 1994 the District Court issued a new arrest warrant and scheduled the applicant’s examination for 23 September 1994. The applicant again failed to attend the examination. On 4 October 1994 the Łódź District Court decided that the applicant should be arrested and detained on remand in order to secure her compliance with their order. On 25 October 1994 the applicant visited the Łódź-Śródmieście District Police Station ( Komenda Rejonowa Policji ) in order to file a complaint about a breaking and entry into one of her apartments. However, her complaint was not accepted by the police and she was arrested under the District Court’s warrant. On 26 October 1994 the applicant was transferred to the Łódź Prison No. 1. On 26 October 1994 the applicant’s daughter filed an appeal against the District Court’s decision of 4 October 1994 ordering the applicant’s arrest and detention. However, the appeal was rejected on 27 October 1994 because the court considered that the applicant’s daughter was not authorised to file an appeal on behalf of her mother. On 28 October 1994 the applicant’s counsel appealed the decision of 4   October 1994, but the appeal was dismissed on an unknown date. On 2 November 1994 the applicant underwent a psychiatric examination. The psychiatrists who examined the applicant concluded that they could not make a diagnosis based on a single examination, and recommended that the applicant undergo psychiatric examination in a public hospital. They also stated that only if the applicant failed to present herself for examination at the public hospital should she be subjected to examination in a prison hospital. On 3 November 1994 she was released from detention. Between 25 October and 3 November 1994 the applicant’s daughter applied to the Łódź District Court for leave to visit the applicant. Both applications were allowed. On 8 November 1994 the Łódź District Court decided that the applicant should undergo psychiatric examination in a medical establishment ( zakład leczniczy ). On 23   November 1994 the Łódź Regional Court dismissed the applicant’s appeal against that decision. On 12 December 1994 the experts appointed by the court to examine the applicant informed it that the examination could take place between 2 and 7   January 1995. On 6 January 1995 the applicant again failed to report for examination. On 9 January 1995 the Łódź District Court issued an arrest warrant because of the applicant’s failure to present herself for a psychiatric examination at a public hospital. The court decided that she would be detained on remand under Article 217 § 1(2) of the Code of Criminal Procedure. It considered that the applicant had obstructed the criminal proceedings against her since she had not attended the hospital, despite being served with a summons, and because the police were unable to bring her to the hospital. On 22 February 1995 the Łódź District Court issued a search warrant, considering that the applicant was in hiding since she was not staying at her residence. On 23 March 1995 the applicant was arrested. On 24 March 1995 she was transferred to prison. On 24 March 1995 the District Court allowed the application for leave to visit the applicant filed by the applicant’s daughter.   On 29 March 1995 the Łódź Regional Court dismissed the applicant’s appeal against the District Court’s decision to arrest her. On the same day the experts advised the court that the applicant’s examination could start on 19 April 1995. On 31 March 1995 the applicant’s daughter, Astrid Nowicka, filed with the Łódź District Court an application for leave to visit the applicant. She asked for two separate authorisations, for herself and her sister Inez Nowicka, to visit their mother on “multiple occasions” ( wielokrotne widzenia ). On 4   April 1995 the judge noted the following instruction to the registry: “Inform A. Nowicka that the court gives 1 permission per month as far as meetings with a detainee are concerned, and other [permissions] only in exceptional cases.” On 4 April 1995 the Łódź District Court dismissed the applicant’s request that she be released from prison. On 10 April 1995 the District Court allowed the application for leave to visit the applicant filed by the applicant’s daughter. On 19 April 1995 the Regional Court dismissed the applicant’s appeal against the District Court’s decision of 4 April 1995. Between 19 April and 26 May 1995 the applicant underwent psychiatric examination in the prison hospital at the Łódź Prison No. 2. A medical opinion issued after that examination concluded that the applicant’s intellectual ability was substantially above average and that she showed no signs of being either mentally ill or retarded. The opinion also stated that she had a paranoid personality and that she had understood her acts at the time of the commission of the alleged offence. In the meantime, on 5 May 1995 the District Court allowed the application for leave to visit the applicant filed by the applicant’s daughter. In a letter of 22 May 1995 the Vice-President of the Łódź Regional Court advised the applicant that her examination in a medical establishment had been ordered by a court in response to the request by psychiatrists, who had concluded that they had been unable to draw up an expert opinion on the applicant’s mental health after a single examination. On 30 May 1995 the applicant was transferred to the Łódź Prison No. 1. On 2 June 1995 the District Court allowed the application for leave to visit the applicant filed by her daughter.   On 3   June   1995 the applicant was released from prison. On an unspecified date the Łódź District Court discontinued the criminal proceedings against the applicant. B.     Relevant domestic law 1.     Criminal responsibility Article 25 § 1 of the Code of Criminal Procedure 1969 (“the Code”), in so far as relevant, provides: “A person who, because of being mentally retarded or ill ..., could not understand his acts or who could not control his behaviour [at the time of the commission of the offence] shall not be criminally responsible.” 2.     Detention on remand Article 217 § 1(2) of the Code, in so far as relevant, provides: “Detention on remand may be imposed if:    ... 2. there is a reasonable risk that [the accused] will attempt to induce witnesses to give false testimony or to obstruct the proper course of proceedings by any other unlawful means ...” 3.     Psychiatric examination Article 65 § 1(1) of the Code, insofar as relevant, reads as follows: “If it proves necessary for the purposes of taking evidence, the accused shall submit to: (1) the external examination of a body and other examinations not involving the interference with a body ...” 4.     Visiting rights Paragraph 34(1) of the Resolution of the Minister of Justice 1989 concerning the rules of detention on remand provides as follows: “A person detained on remand may have visits after obtaining permission from the organ at whose disposal he remains, unless that organ decides otherwise.” 5.     Request for compensation for unjustified detention At the material time, Chapter 50 of the Code, entitled "Compensation for unjustified conviction, detention on remand or arrest", provided that the State was liable for wrongful convictions or for unjustified deprivations of liberty of individuals in the course of criminal proceedings against them. Article 487 of the Code (as amended) provides, insofar as relevant: "1.     An accused who, as a result of the reopening of the criminal proceedings against him or of lodging a cassation appeal, has been acquitted or resentenced under a more lenient substantive provision, shall be entitled to compensation from the State Treasury for the damage which he has suffered as a consequence of having served the whole or a part of the sentence imposed on him.    ... 4.     The provisions of the present chapter shall be applied by analogy to manifestly unjustified arrest or detention on remand." According to Article 489 of the Code, a request for compensation for manifestly unjustified detention on remand must be lodged within one year of the date on which the final decision terminating the criminal proceedings in question had become final and valid in law. COMPLAINTS The applicant complained that her arrests on 25 October 1994 and 23   March 1995, and the subsequent detention, were in breach of Article   5   §   1 of the Convention. The applicant also complained that (i) the decisions to order her to undergo a psychiatric examination and to arrest her, (ii) her detention for a total period of 83 days, and (iii) the restriction on her right to see members of her family to once a month while in detention, were in breach of Article   8 of the Convention. THE LAW 1.     The Government firstly submitted that the applicant’s complaint under Article 5 § 1 of the Convention was inadmissible under Article 35 § 1 of the Convention because of her failure to exhaust domestic remedies. Article   35   § 1, in so far as relevant, reads as follows: “The Court may only deal with the matter after all domestic remedies have been exhausted ...” They pointed out that at the material time Chapter 50 of the Code of Criminal Procedure 1969 provided a right to compensation for manifestly unjustified detention on remand. The Polish courts consider such an action for compensation to be an effective remedy. In this connection, the Government referred to a Supreme Court judgment of 6   February 1981 which states that compensation can be awarded only when detention on remand lacked any reasonable factual or legal basis.   The applicant disagreed with the Government’s submission that she failed to exhaust domestic remedies. The Court recalls that the only remedies which an applicant is required to exhaust are those that relate to the breaches alleged and which are at the same time available and sufficient. The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness; it falls to the respondent State to establish that these various conditions are satisfied. Moreover, an applicant who has exhausted a remedy that is apparently effective and sufficient cannot be required also to have tried others that were available but probably no more likely to be successful (see, among other authorities, T.W. v. Malta [GC], no.   25644/94, 29.4.99, §   34). The Court also recalls that, where the lawfulness of detention is concerned, an action for damages against the State is not a remedy which has to be exhausted because the right to obtain release from detention and the right to obtain compensation for any deprivation of liberty incompatible with Article 5 are two separate rights (see Zdebski and Others v. Poland [decision], no.   27748/95, 6.4.2000). Furthermore, the Court observes that under Article 5 the applicant   complains of the unlawfulness of her detention, not that she had no legal remedies whereby she could obtain compensation for detention. The applicant’s complaint therefore goes to Article   5 § 1 of the Convention, whereas the remedy mentioned by the Government concerns Article 5 § 5 only (see, mutatis mutandis , the Demir and Others v. Turkey judgment of 23   September   1998, Reports of Judgments and Decisions , 1996-IV, pp.   2652-2653, §   37). It follows that the Government’s preliminary objection is without foundation and must be dismissed. 2.     The applicant complained of a breach of Article 5 § 1 of the Convention, which in so far as relevant provides 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:    ... (b)     the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; ...” The Government submitted that the applicant’s detention did not breach Article 5   §   1. They asserted that on both occasions it was justified by the applicant’s failure to comply with a court order to undergo a psychiatric examination. Furthermore, with reference to the period of the applicant’s detention preceding her first examination on 2 November 1994, the Government submitted that “for purely technical reasons” the examination had not been held on an earlier date. The applicant disagreed with the Government and averred that both periods of her detention were unlawful. With reference to her detention between 25 October and 3 November 1994, she pointed out that such a long period of detention could not be justified by the necessity to perform a basic examination which usually takes an hour. Moreover, the applicant considered that the Government had failed to provide any explanation for her detention before and after the second examination. The Court considers, in the light of the parties’ submissions, that this complaint raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits. The Court concludes, therefore, that it is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established. 3. The applicant further complained of a breach of Article 8 of the Convention, the relevant part of   which reads as follows: “1.     Everyone has the right to respect for his private and family life, ... 2.     There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the prevention of disorder or crime, for the protection of health ..., or for the protection of the rights and freedoms of others.” The Government acknowledged that the decisions to order the applicant to undergo a psychiatric examination and to arrest her constituted an interference with her right to respect for private and family life. However, they considered that the interference was in accordance with the law, namely Article 65 of the Code of Criminal Procedure 1969, and was justified and proportionate to the legitimate aim of enforcing lawful court orders, in compliance with the Convention. Furthermore, the Government submitted that all applications for leave to visit the applicant lodged by the members of her family were allowed. The applicant asserted that her detention resulted in a violation of Article   8. She pointed out that the judge’s decision of 4 April 1995 to restrict her visiting rights to one meeting per month was also in breach of that provision as she could not be considered a threat to any of the interests listed in paragraph 2 of Article 8.    The Court considers, in the light of the parties’ submissions, that this complaint raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits. The Court concludes, therefore, that it is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established. For these reasons, the Court unanimously Declares the remainder of the application admissible, without prejudging the merits of the case.   S. Dollé   J.-P. Costa   Registrar   President