CEDH · CASELAW;COMMUNICATEDCASES;ENG — 23 avril 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 } .s3F59B822 { font-family:Arial; font-weight:bold; 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 } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .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 } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both } .s9671CAED { margin-top:6pt; margin-bottom:6pt; text-indent:14.2pt } .s7ACB8D74 { margin-top:0pt; margin-left:14.2pt; margin-bottom:0pt; text-indent:14.2pt } .s451A1BF5 { margin-top:6pt; margin-bottom:0pt; text-indent:14.2pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sDD7CB8CD { margin-top:36pt; margin-bottom:12pt; text-align:center; font-size:7pt }     Communicated on 23 April 2015   FOURTH SECTION Application no. 20893/13 Ryszard DZIEDZIC against Poland lodged on 25 February 2013 STATEMENT OF FACTS The applicant, Mr Ryszard Dziedzic, is a Polish national, who was born in 1953 and lives in Kamienica Szlachecka. The applicant is divorced, has two brothers and an adult son from his first marriage. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. In 2002 the applicant was accused of attacking a police patrol. The outcome of the proceedings is unknown but a psychiatric opinion was prepared in their course. On 21 October 2004 the applicant was evicted from his residence. He travelled to Switzerland and Brussels, before returning to Poland. From 2004 to 2009 the applicant was homeless both in Poland and abroad. 1.     The applicant’s admission to a psychiatric hospital From 6 October 2009 to 29 January 2010 the applicant was detained in the psychiatric wing of the Kołobrzeg Regional Hospital. The applicant was brought to the hospital by the police and admitted under Section 24 of the 1994 Psychiatric Protection Act ( Ustawa o ochronie zdrowia psychicznego, “the 1994 Act”). It appears that on an unspecified date in 2010 the applicant’s treatment was approved by the Kołobrzeg District Court on the basis of Section 23 of the 1994 Act (S ygn Akt III R Ns 52/10 ). From 29 January 2010 to 2 April 2010 the applicant was detained at the Gryfice Hospital where he was treated for his psychiatric illness. From 2 April 2010 to 12 July 2010 the applicant was detained at the psychiatric unit of the Kołobrzeg Regional Hospital. 2.     Proceedings concerning the applicant’s admission to a social care home On 4 November 2009 the Kołobrzeg Regional Hospital requested that the applicant be admitted to a social care home in accordance with domestic law on the basis that he was suffering from a psychiatric illness and would require constant care. The hospital also stated that the applicant was homeless, suffered from a delusional disorder, refused medical help, could not function socially and did not believe that he was ill. It concluded that, if left alone, the applicant could pose a risk to himself and others. On 20 April 2010 the Kołobrzeg District Court decided to place the applicant in a social care home without his consent pursuant to Article 39 of the 1994 Act. From 12 July 2010 until February 2015 the applicant was resident at the Łosienice Social Care Home ( Dom Pomocy Społecznej w Łosienicach ). On 6 February 2015 the Kościeżyn District Court decided to place the applicant in a psychiatric hospital against his will. 3.     Proceedings concerning the applicant’s legal capacity On 12 April 2010 the head of the psychiatric department and the director of the Kołobrzeg Regional Hospital wrote to the Kołobrzeg Regional Prosecutor requesting that the applicant be declared totally incapacitated. They claimed that the applicant was suffering from a delusional disorder, that he was not capable of taking care of himself independently and that he required constant care to prevent him from posing a risk to the life and health of himself and others. On 18 February 2011 the Gdańsk Regional Prosecutor brought an action to totally incapacitate the applicant due to his psychiatric disorder. On 30 March 2011 the Gdańsk Regional Court allowed an opinion of a psychiatrist and a psychologist to be added to the evidence . The opinions were to demonstrate the applicant’s psychiatric and psychological state as well as to determine whether he was capable of taking care of himself independently. On 24 July 2011 the psychiatric-psychological medical opinion was submitted to the court. The opinion stated that the applicant had a psychiatric illness and that he had suffered from persistent delusions. It stated that the applicant did not adequately understand situations, could not react in emotionally adequate manner and couldn’t intentionally, purposefully and with full awareness control his behaviour . The applicant was found not to understand his illness and, therefore, the experts were of the opinion that if he were to leave the care home, it was likely that the applicant would stop the necessary treatment, which would likely bring him back to a state in which he poses a threat to the life and health of himself and others. In the opinion of the experts, the applicant was capable of reading his correspondence and being heard in court. On 15 March 2012 the Bolesławiec District Court heard R.D., the applicant’s wife, from whom the applicant had been separated for 8 years, and the divorce proceedings were pending. On 4 April 2012 another hearing took place, during which the applicant refused to give evidence. On 18 April 2012 the Gdańsk Regional Court declared the applicant totally incapacitated due to his psychiatric illness. On 7 December 2012 the Gdańsk Court of Appeal dismissed the applicant’s appeal. Subsequently, the applicant unsuccessfully requested the Prosecutor General to lodge on his behalf a cassation appeal. On 18 June 2013 the Kartuzy District Court appointed D.B. as the applicant’s legal guardian. 4.     Proceedings to quash the court’s decision regarding legal incapacitation The applicant brought a new claim to restore his legal capacity. The applicant’s guardian, D.B., and the Gdańsk Regional Prosecutor asked the court to dismiss it. On 4 April 2014 the Gdańsk Regional Court decided to dismiss the applicant’s claim. The court considered there was no evidence that the applicant’s mental health had improved. The court relied on the medical evidence collected in the earlier proceedings as the applicant had refused to attend a medical appointment on 30 January 2014. On 7 April 2014 the Jelenia Góra Regional Court pronounced the applicant’s divorce. On 15 July 2014 the Kartuzy District Disability Evaluation Board (Powiatowy Zespół do Spraw Orzekania o Niepełnosprawności ) declared the level of the applicant’s disability as “significant” ( znaczny ) and confirmed that the applicant required the constant care of another person due to his limited capacity to deal with his handicap. B.     Relevant domestic law The Law of 9 May 2007, which entered into force on 7 October 2007, amended the Code of Civil Procedure (“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 Act (Psychiatric Protection Act) the admission to a psychiatric hospital of a person who has a mental illness and does not agree for his or her hospitalisation must be approved by a civil court (section   23 (1)). Such hospitalisation is decided by a doctor and confirmed by the head of the unit within 48 hours. The director of the hospital informs the relevant court of the admission of a patient without his consent within 72 hours of the admission. The patient shall be heard by a judge within 48   hours since his detention in the hospital and the competent court shall issue a decision allowing for his detention in the hospital or releasing him. The court should hold a hearing on that matter within 14 days since the date on which it was notified by the hospital of the hospitalisation of a person against his or her will. There is no time-limit for reaching the decision. The decision can be appealed against. Section 24 (1) of the 1994 Act allows for the admission of a person without his or her consent to a psychiatric hospital in order to clear up any doubts as to that person’s psychiatric illness, where that person’s behaviour suggests that he may pose a danger to the life of himself or others and where there are doubts as to whether that person suffers from a psychiatric disorder. Hospitalisation under section 24 (1) shall last no longer than 10   days but if a psychiatric illness is confirmed the continued detention is governed by section 23 – if the patient does not agree for hospitalisation. The Ordinance of the Minister of Justice of 22   February   1995 provided that a district court had to 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 every six months a periodic review of the need for “continuing residence” applied only to those admitted to psychiatric hospitals (section   2(3)). That Ordinance has been replaced by the Ordinance of the Minister of Justice of 11   October 2012. The new Ordinance does not mention any review of the need for “continuing residence” either in psychiatric hospitals or in social care homes. It only imposes an obligation on judges to visit at least once every two years social care homes in which there are persons deprived of their liberty. However, judges are under no obligation to check whether those persons need to remain in the social care home. Their obligations are rather limited to checking whether the facilities in question are properly maintained from an administrative point of view. Section 41 of the 1994 Act provides as follows: “1.   A person admitted to a social care home [on the basis of a court decision], his or her legal representative, spouse, lineal relatives, brothers and sisters and the patient’s official caregiver may request the court to vary the decision ordering admittance to a social care home. 2.   The request referred to above may also be lodged by a manager of the social care home if he or she considers that the circumstances which served as the basis of the decision to compulsorily place a person in a social care home have changed.” Further relevant domestic law and practice concerning the placement of a person in a social care home and quashing his incapacitation order are set out in the Court’s judgment in the case of Kędzior v. Poland , no.   45026/07, §   57, 16 October 2012. The relevant international instruments and conclusions on the comparative law are set out in the judgments of Stanev v.   Bulgaria [GC], no. 36760/06, §§ 72, 73 and 88 ‑ 95, ECHR 2012, Kędzior, cited above, and Mihailovs v. Latvia, no. 35939/10, 22 January 2013. COMPLAINTS The applicant complains about unlawful and unjustified deprivation of his liberty in a psychiatric hospital on 6 October 2009, his continuing detention in hospitals, and his placement in a social care home on 12 July 2010 where he remained until February 2015.   QUESTIONS TO THE PARTIES 1.     Was the deprivation of liberty at the psychiatric hospital in 2009 and the detention of the applicant in the social care home lawful within Article   5 § 1 (e)? In particular: a)     was the applicant admitted to and detained at the psychiatric hospital in accordance with the domestic law? i)     was the applicant heard by a judge within 48 hours after detention? ii)     did the District Court hold a hearing and when did it decide to allow for his detention at the hospital? b)     were the Winterwerp judgment criteria fulfilled in the applicant’s case with respect to his detention at the social care home?   2.     Did the applicant have at his disposal an effective procedure by which he could have challenged the necessity of his continuing detention in the hospital and at the social care home, as required by Article 5 § 4 of   the Convention? a)     was the applicant’s hospitalisation in the psychiatric hospital reviewed after 6 months as prescribed by section 2 (3) of the 1995 Ordinance of the Minister of Justice (Dz.U.1995.23.128)? b)     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?   3.     The Government are invited to submit copies of documents relating to the admission of the applicant to the psychiatric hospital in October 2009 (medical record - dokumentacja medyczna , minutes of the hearing of the applicant by a judge in 2009, decision of the District Court regarding his admittance to the psychiatric hospital; expert opinions; appellate decisions if issued), as well as documents related to his continued stay at the psychiatric hospital until July 2010.