CEDH · CASELAW;COMMUNICATEDCASES;ENG — 2 novembre 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 } .sAB0FFF87 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; page-break-after:avoid } .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 } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both }     Communicated on 2 November 2015   FOURTH SECTION Application no. 20206/11 Ewa RYDZYŃSKA against Poland lodged on 7 March 2011 STATEMENT OF FACTS The applicant, Ms Ewa Rydzyńska, is a Polish national who was born in 1957 and lives in Warsaw. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. On 29 October 2007 a fire broke out in the applicant’s flat. The applicant suffered carbon monoxide poisoning and was admitted to the cardiology ward of Solec Hospital. Upon admission, however, the applicant behaved in an aggressive manner and the doctors diagnosed her with schizophrenia. On 30 October 2007 she was transferred to a psychiatric hospital in Warsaw. On arrival, the applicant was examined by a psychiatrist who decided to admit her to the hospital, despite the fact that she refused hospitalisation. In her decision, the doctor made note of the fact that the cause of the fire in the applicant’s flat was unknown and referred to a possible suicide attempt. The applicant was released from hospital on 10 January 2008. 1.     Proceedings under the Mental Health Protection Act On 2 November 2007 the applicant was heard by a judge from the Warsaw District Court. On the same date the court ordered a psychiatric report on the applicant at the time of her confinement in the hospital. On 5 February 2008 the Warsaw Family and Custody District Court gave a decision in the case. The court considered that the conditions for involuntary admission, as set out in section 23(1) of the Mental Health Act, had not been met in the applicant’s case. While an expert psychiatrist had confirmed that the applicant had been suffering from paranoid schizophrenia, there had been no indication that the applicant’s behaviour on 30 October 2007 had endangered her life or had been a threat to the life and health of others. The court pointed to the applicant’s repeated statement that the fire had been caused by a faulty electrical installation and not by her, and to the findings of the police as to the cause of the fire. The court found that there had been no grounds to admit the applicant to a psychiatric hospital on 30 October 2007. 2.     Proceedings for compensation On 7 April 2008 the applicant brought a civil action against the State Treasury statio fisci the psychiatric hospital in Warsaw, on the grounds of a violation of her personal rights under Articles 24 and 448 of the Civil Code. She sought 100,000 Polish zlotys (PLN - 25,000 euros (EUR)) in compensation for unjustified and involuntary confinement and for the lengthy proceedings before the Family and Custody Court. On 11 May 2009 the Warsaw Regional Court dismissed the applicant’s claim. The court held that while the applicant had indeed been deprived of her liberty and placed in involuntary confinement, the defendant hospital’s conduct had not been unlawful within the meaning of Article 24 of the Civil Code as the hospital’s actions had had a legal basis. The court further noted that both the applicant’s initial mental condition and the unclear circumstances of the start of the fire in her flat meant that an earlier release from hospital had not been warranted. There were no grounds to believe that the actions of the judge from the Family and Custody Court, which had been in accordance with procedures in force at the time, had caused an infringement, let alone an unlawful infringement, of the applicant’s personal rights. The court did not find that there had been any unreasonable delay in the proceedings before the Family and Custody Court. The court further considered that the decision to admit the applicant for treatment in the hospital against her will had not been unlawful. Under section 23 of the Mental Health Act, the admission of patients to hospital against their will was possible if they suffered from a mental illness and represented a threat to themselves or others. In the present case the hospital had had the applicant’s medical history, which had proved that she had suffered from paranoid schizophrenia. The circumstances surrounding the start of the fire in her flat had also not been clear at that time. Lastly, the court noted that any decision by a duty doctor on involuntary admission to a psychiatric hospital was only provisional and had to be verified by a family court. An appeal by the applicant against that judgment was dismissed by the Warsaw Court of Appeal of 17 February 2010. The applicant submits that she was not informed of the hearing before the Court of Appeal and only learned about the judgment several months later. She subsequently prepared and filed a cassation appeal herself. The appeal was rejected by the Warsaw Court of Appeal on 21 March 2011 on the procedural grounds that it had not been prepared and filed by a lawyer. B.     Relevant domestic law and practice 1.     Mental Health Act Pursuant to the 1994 Mental Health Protection Act ( ustawa o ochronie zdrowa psychicznego ), the admission to a psychiatric hospital of a person who has a mental health disorder or who is mentally disabled and does not consent to treatment in the hospital must be approved by a civil court. Section 23 provides, in so far as relevant: “1. A mentally ill person may only be admitted to a psychiatric hospital without his or her consent if the person’s behaviour up to that point indicates that because of the illness he or she is a threat to his or her own life or to another person’s health or life. 2. A decision of the kind referred to under (1) shall be made by a doctor who has personally examined the patient and consulted another psychiatrist or a psychologist where appropriate. 3. The doctor referred to under (2) shall be obliged to explain to the patient the reasons why he or she is being admitted to hospital without his or her consent and inform the person of his or her rights. ...” If a person has been admitted to hospital against his or her will, the director of the hospital should inform the Family and Custody Court within seventy-two hours. Within forty-eight hours of receiving such a notification, the patient should be visited and interviewed by a judge. If the Family and Custody Court decides that there were no grounds for the involuntary admission of the patient, the hospital is obliged to release the patient immediately upon receiving the court’s decision (sections 25, 27 and 45 (2) of the Mental Health Protection Act). 2.     Liability for infringement of personal rights under the Civil Code Article 23 of the Civil Code contains a non-exhaustive list of “personal rights” ( dobra osobiste ). This provision states: “The personal rights of an individual, such as, in particular, health, liberty, honour, freedom of conscience, name or pseudonym, image, secrecy of correspondence, inviolability of the home, scientific or artistic work, [as well as] inventions and improvements, shall be protected by the civil law regardless of the protection laid down in other legal provisions.” Article 24 § 1 of the Civil Code provides: “A person whose personal rights are at risk [of infringement] by a third party may seek an injunction, unless the activity [complained of] is not unlawful. In the event of infringement [the person concerned] may also require the party who caused the infringement to take the necessary steps to remove the consequences of the infringement ... In compliance with the principles of this Code [the person concerned] may also seek pecuniary compensation or may ask the court to award an adequate sum for the benefit of a specific public interest.” Under Article 448 of the Civil Code, a person whose personal rights have been infringed may seek compensation. The relevant part of that provision reads: “The court may grant an adequate sum as pecuniary compensation for non-material damage ( krzywda ) suffered to anyone whose personal rights have been infringed. Alternatively, the person concerned, irrespective of a claim for any other relief that may be necessary to eliminate the consequences of the infringement sustained, may ask the court to award an adequate sum for the benefit of a specific public interest ...” Articles 417 et seq. of the Polish Civil Code provide for the liability of the State in tort. Article 417 § 1 of the Civil Code (as amended) provides: “The State Treasury, or [as the case may be] a self-government entity or other legal person responsible for exercising public authority, shall be liable for any damage ( szkoda ) caused by an unlawful act or omission [committed] in connection with the exercise of public authority.” COMPLAINTS The applicant complains of her involuntary confinement in a psychiatric hospital and of the fact that she did not receive any compensation. She relies on Article 3 and Article 5 §§ 2, 3, 4 and 5 of the Convention.     QUESTIONS TO THE PARTIES 1.     Was the applicant deprived of her liberty in breach of Article 5 § 1 (e) of the Convention? Reference is made to her involuntary confinement in a psychiatric hospital between 30 October 2007 and 10 January 2008.   2. Did the length of the proceedings in the present case, by which the applicant sought to challenge the lawfulness of her detention in a psychiatric hospital, comply with the “speed” requirement of Article 5 § 4 of the Convention?   3.     Did the applicant have an effective and enforceable right to compensation for her detention in contravention of Article 5 § 1 (e), as required by Article 5 § 5 of the Convention (see Baran v. Poland, no.   53315/09, 28 May 2013)?