CEDH · CASELAW;COMMUNICATEDCASES;ENG — 14 janvier 2015

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s2D57E2E { font-family:Arial; font-weight:bold; text-decoration:underline; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sAADB120E { margin-top:6pt; margin-left:28.35pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s34DFC730 { margin-top:0pt; margin-bottom:0pt; text-align:center; page-break-inside:avoid; page-break-after:avoid }     Communicated on 14 January 2015   FOURTH SECTION Application no. 41244/14 Ryszard WIELOGÓRSKI against Poland lodged on 25 June 2014 STATEMENT OF FACTS   The applicant, Mr Ryszard Wielogórski, is a Polish national, who was born in 1952 and lives in a social care home in Janowiec Wielkopolski. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. On an unspecified date the applicant was diagnosed with paranoid schizophrenia. Upon his sister’s I.R. motion, on 14 June 2006 the Włocławek Regional Court partly divested him of his legal capacity. She was appointed the applicant’s legal guardian. Apparently a medical expert opinion was given in 2006 which confirmed the original diagnosis and stated that the applicant was able to function independently to a certain degree, but was unable to take legal steps concerning his situation. On an unspecified later date I.R. requested the court to order the applicant’s placement in a social care home ( dom pomocy społecznej ). By a decision of 24 July 2008 the Radziejowice District Court decided to place the applicant in the social care home without his consent. It appears that he was not represented by a legal-aid lawyer in the relevant proceedings. On 8 January 2009 the applicant was placed in that home. Apparently on an unspecified later date proceedings were conducted as to whether the applicant’s partial legal incapacitation should be revoked. A medical expert opinion dated 29 September 2011, prepared for the purposes of these proceedings, indicated that he suffered from paranoid schizophrenia; that he wished to be released from the social care home; that his interests should be represented in the proceedings; that he could not live independently and that the court correspondence for the purposes of these proceedings should be served on him. On 16 August 2012 the applicant submitted an application to the Bydgoszcz Civil Court requesting that his legal capacity be restored to him and that he should be released from the social care home. Another medical expert opinion dated 2 December 2012 was prepared for the purposes of these proceedings. The original diagnosis was confirmed once again. He did not realise he was ill, was not psychotic and was under constant psychiatric care in the social care home. He was largely independent in his everyday life, but assistance was necessary in taking major life decisions and in dealing with legal questions. The outcome of these proceedings is unknown, but apparently the application was unsuccessful as the applicant currently still lives in the social care home. B.     Relevant domestic law Article 559 of the Code of Civil Procedure (“the CCP”) provides as follows: “1.     A court may quash legal incapacitation if the reasons for which it was ordered cease to exist; the quashing may take place of the court’s own motion. 2.     Where the mental state of an incapacitated person improves, a court may change the total incapacitation to partial; where his or her mental state deteriorates, partial incapacitation may be changed to total.” On 7 March 2007 the Constitutional Court gave judgment in case no.   K   28/05. The judgment was published and entered into force on 17   March 2007. The court decided that Article 559 of the CCP was unconstitutional in so far as it deprived an incapacitated person of the right to lodge a request to have a legal incapacitation order quashed or varied. As regards the consequences of the judgment, the Constitutional Court considered that the most appropriate means of enforcement would be for the legislature to introduce an amendment to the Code. In that connection it welcomed a bill under examination by Parliament which included a relevant amendment. However, it emphasised that the judgments of the Constitutional Court should be enforced not only by the legislature but also by the ordinary courts. In the present case that would mean changing the unconstitutional practice of courts examining cases concerning incapacitation, and allowing proceedings to be brought by individuals deprived of legal capacity. The Constitutional Court stated: “From the date of publication of the judgment in the Official Journal the presumption of the constitutionality of Article 559, taken together with Article   545 §§   1 and 2 of the CCP, in so far as it prevented an incapacitated person from instituting proceedings to quash or vary an incapacitation order, is no longer applicable. The Constitutional Court wishes to emphasise that that is so in consequence of the judgment of the Constitutional Court itself, whether or not legislative changes are eventually introduced. It should therefore be considered that the finding by the Constitutional Court of the unconstitutionality of limiting an incapacitated person’s procedural rights allows the courts to interpret the Code of Civil Procedure in accordance with the Constitution. In the context of this judgment the opinion expressed by the Supreme Court’s resolution of 2004, to the effect that amelioration of the procedural position of incapacitated persons could not be achieved through interpretation of the existing regulations as that would amount to overstepping the boundaries of judicial power, is no longer applicable. Judges, when carrying out their duties, are subject not only to statute but also to the Constitution, which is the highest law in the Republic of Poland and may – and in cases of conflict with existing statutes confirmed by the Constitutional Court shall – be directly applicable.” The Law of 9 May 2007, which entered into force on 7   October 2007, amended the CCP. A new paragraph was added; Article 559 § 3 provides as follows: “An application to have a legal incapacitation order quashed or varied may also be lodged by the incapacitated person.” According to the 1994 Psychiatric Protection Act ( ustawa o ochronie zdrowa psychicznego ), the admission to a psychiatric hospital of a person who has a mental disorder or is mentally disabled and is unable to express his or her consent must be approved by a civil court (section 22 (2)). A court can also decide on the admission of a person who has a mental disorder but who does not consent to treatment in the hospital. A guardian can express consent to admit an adult who is totally incapacitated, but the latter must also agree, unless he is unable to express agreement. In any event, and in particular in the event of disagreement between the patient and the guardian, the question of admission is decided or confirmed by a court (section   22). Admission to the hospital is preceded by a psychiatric examination. Admission to a social care home is governed by section 38 et seq. of the Act. It provides that a person who, on account of mental disorder or mental disability, is unable to take care of himself or herself, cannot be taken care of by someone else and does not need hospital treatment, may be placed in a social care home with his or her consent or the consent of his or her guardian. Only if that person, or his or her guardian, does not consent to the placement must the decision be taken by a court. According to the Ordinance of the Minister of Justice of 22   February 1995, a regional court must supervise the legality of the admission and continuing residence of individuals confined to psychiatric hospitals and social care homes (section 1). However, an obligation to carry out periodic reviews, every six months, of the need for continuing residence applies only to those admitted to psychiatric hospitals (section   2 (3)). The regulations on the functioning of social care homes were also governed by the 1990 Social Assistance Act ( Ustawa o pomocy społecznej ), replaced by the Act of 2004. According to the relevant regulations, the costs of a person’s stay in a social care home must not exceed 70% of his or her income or pension. Both Acts provided that placement of a totally incapacitated person in a social care home may only be done with his or her guardian’s consent. COMPLAINTS The applicant complains that his placement in the social care home was unjustified as his condition is not such as to make it impossible for him to live independently. He was deprived of his liberty in an unlawful manner on the basis of erroneous medical assessment. He further complains that he does not have at his disposal any procedure by which he could challenge the necessity of his continued stay in the social care home.     QUESTIONS TO THE PARTIES   1.     Did the applicant undergo a psychiatric examination for the purposes of the proceedings concerning his placement in the social care home in 2009?   2.     Was it open to the applicant himself to appeal against the decision on his placement? If so, did he avail himself of that opportunity?   3.     Was there any obligation on the court to carry out periodic reviews of the continuing necessity of the applicant’s stay in the social care home, in particular by   subjecting him to a psychiatric examination?   4.     Were the circumstances of the case, seen as a whole, compliant with the requirements of Article 5 § 1 and 5 § 4 of the Convention?   5.     The Government are invited to submit copies of the following decisions: -     a copy of the medical expert opinion prepared for the purposes of the placement proceedings conducted in 2008; -     the incapacitation order of 14 June 2006 with its written grounds if such grounds have been prepared; -     the Radziejów Regional Court’s decision of 24 July 2008 on the applicant’s placement, with its written grounds if such grounds have been prepared; -     the decisions given in 2011 and 2012 following the requests for release submitted to the courts on an unspecified date and then on 16   August 2012.