CEDH · CASELAW;COMMUNICATEDCASES;ENG — 18 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 } .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 } .s9296A950 { margin-top:36pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid }     Communicated on 18 November 2015   FOURTH SECTION Application no. 77850/12 Krzysztof NAWROT against Poland lodged on 20 November 2012 STATEMENT OF FACTS The applicant, Mr Krzysztof Nawrot, is a Polish national who was born in 1981 and is detained in Nysa. He is represented before the Court by Mr   J.   Zaleski, a lawyer practising in Katowice. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     First set of criminal proceedings against the applicant (robbery) On 28 May 2001 the Kielce Regional Court convicted the applicant of robbery and sentenced him to ten years’ imprisonment. The applicant has been serving this sentence between 3 September 2000 and 13 January 2003; 13 January 2005 and 31 May 2005; 17 August 2005 and 13 May 2008; from 30   May 2014 until present. 2.     Second set of criminal proceedings against the applicant (murder) In August 2005 the applicant was charged with murdering an Italian citizen, a certain P.A. The Katowice Regional Court subsequently ordered him to undergo a psychiatric examination in order to determine whether he could be held criminally responsible for this offence. Between 12 April 2006 and 30 August 2006 the applicant underwent psychiatric observation in the psychiatric ward of Kraków Detention Centre. On 18   July 2006 two expert psychiatrists and a psychologist confirmed that he had been suffering from a delusional disorder and a personality disorder, and that he would not have been aware of and could not have controlled his actions. In their additional opinion of 12 January 2007 they confirmed their previous findings. On 2 April 2007 the Katowice Regional Court decided to discontinue the proceedings against the applicant on the basis that he could not be held criminally responsible. On 25 May 2007 the Katowice Court of Appeal quashed that decision and remitted the case. On 25 September 2007 the Katowice Regional Court again discontinued the proceedings against the applicant. On the basis of presumptive evidence, the court established that the applicant had committed the offence with which he had been charged. However, as he had been suffering from a mental disorder at the time, he could not be held criminally responsible. The court referred to the experts’ opinions and to the evidence which they had given during the trial. On 14 March 2012 the Katowice Court of Appeal refused to reopen the proceedings in the case. The court admitted that, in view of new evidence, it appeared that the applicant had not murdered P.A. and had only participated in the robbery. However, even if the proceedings were reopened, they would have to be discontinued in any event in view of the applicant’s insanity. 3.     Detention in a psychiatric facility On 12 December 2007 the Psychiatric Commission on Preventive Measures (Komisja Psychiatryczna ds. środków zabezpieczająych – “the Commission”) recommended that the applicant be placed in Branice Hospital. The applicant could not be transferred there immediately, as he was serving a sentence of imprisonment imposed following the first set of criminal proceedings against him (see section 1 above). The applicant was admitted to Branice Hospital on 13 May 2008. The hospital psychologist, in her opinions of 23 June 2008, 15 December 2008, 20 May 2009 and 5 November 2009, confirmed th   at the applicant should continue treatment in hospital. In her opinion of 20 April 2010 the expert stated that the applicant could be moved to a less secure hospital. The psychiatrists from Branice Hospital, in their opinions of 14   June 2008, 9 December 2008, 19 May 2009, 9 November 2009 and 20   April 2010, also confirmed that the applicant should continue treatment in a psychiatric hospital. Between 4 May 2010 and 28 March 2012 the applicant was detained in Lubliniec Hospital, a less secure institution. In their joint opinion of 26 August 2011, expert psychiatrists confirmed that the applicant should continue treatment. Between 28 March 2012 and 22 May 2012 the applicant underwent psychiatric observation in Pruszków Hospital, pursuant to the order made in the course of the third set of criminal proceedings against him (see section 4 below). On 17 July 2012 two expert psychiatrists and a psychologist gave a joint opinion which disagreed with the opinion of 2006 and concluded that the applicant had not been suffering from any mental illness at the time when the offences had been committed ( tempore criminis ). They agreed that the applicant had a personality disorder. However, they were of the opinion that his condition had significantly improved in recent years. Meanwhile, on 20 July 2012 expert psychiatrists from Lubliniec Hospital confirmed that the applicant should continue treatment at a psychiatric hospital, as he still presented a threat to public order. On 24 September 2012 the Katowice Regional Court dismissed an application by the applicant to be released from the psychiatric hospital. The court heard evidence from the Lubliniec experts who had given the opinion of 20 July 2012. With reference to the discrepancies between the two opinions, the court stressed that the Pruszków opinion concerned the applicant’s capacity tempore criminis , while the Lubliniec opinion related to his general progress in treatment and his future prognosis. It agreed that the applicant should continue treatment in a less secure institution. That decision was upheld by the Katowice Court of Appeal on 22 January 2013. On 31 January 2013 the applicant attempted to commit suicide by overdosing on his medication. On 13 February 2013 the applicant was transferred to Kraków Psychiatric Hospital. On 19 March 2013 the Katowice Regional Court dismissed a further application by the applicant to be released from the psychiatric facility. That decision was upheld by the Katowice Court of Appeal on 16 April 2013. On 19 May 2013 the applicant sent a letter to the court claiming that he had been simulating mental illness. He submitted that he owned a medical book on psychiatry and had also seen the film “A Beautiful Mind”, which had helped him to act out the symptoms of mental illness. He also informed the director of Lubliniec Hospital that he had been pretending to have a mental illness. However, she told him that many patients made the same claim. On 26 August 2013 the expert psychiatrists from Kraków Hospital submitted an opinion concerning the applicant. They confirmed that he had not been suffering from a mental illness, but had a personality disorder. They were also convinced that, between June and August 2005, the applicant had been able to recognise the significance of his actions and control his behavior. On 8 November 2013 the Kraków Regional Court again refused to release the applicant from the psychiatric facility. On 30 May 2014 the applicant was released from the psychiatric facility and transferred to Wojkowice prison in order to serve the remainder of the sentence of imprisonment which had been imposed following the first set of criminal proceedings against him (see section 1 above). 4.     Third set of criminal proceedings against the applicant (several   counts of robbery) On an unknown date in 2010 the Katowice District Prosecutor charged the applicant with several other robberies allegedly committed in 2005. During his questioning, the applicant informed the prosecutor that a certain A.I. had been involved in P.A.’s killing. On 30   January 2012 the Katowice Regional Court ordered the applicant to undergo a psychiatric medical examination at Pruszków Hospital in order to verify his mental state at the time when the alleged offences had been committed. A medical opinion given by the experts from Pruszków Hospital on 17 June 2012 revealed that the applicant had had full mental capacity in 2005. On an unknown date A.I. was charged with murdering P.A., and the applicant and a certain T.K. were only charged with theft and several counts of robbery. The trial before the Katowice Regional Court began in 2014. During a hearing on 14 January 2015 the court heard evidence from the Kraków Hospital experts who had prepared the opinion of 26 August 2013. They confirmed that the applicant had not been suffering from a mental illness but had a personality disorder. They were also convinced that, between June and August 2005, the applicant had been able to recognise the significance of his actions and control his behavior. The experts disagreed with the opinion of 2006. They further stated that the applicant himself had admitted that he had been simulating mental disorder. They observed that, while the applicant had indeed been suffering from a serious personality disorder, the criminal offences with which he had been charged had been motivated by financial gain. On 22 April 2015 the court heard evidence from expert psychiatrists from Pruszków Hospital who had prepared the opinion of 17 July 2012. They confirmed that, in their opinion, the applicant had not been suffering from a mental illness. They further agreed that it was very likely that the applicant had pretended to have symptoms of a mental illness. On 22 May 2015 the court heard evidence from the expert psychologist who had prepared the opinion of 18 July 2006. He stated that the applicant could have simulated a brief psychotic disorder ( zaburzenia psychotyczne ) during the psychological tests. On 20 July 2015 the Katowice Regional Court gave judgment. The court found that the applicant had had full mental capacity in 2005. It convicted A.I. of P.A.’s murder and the applicant of several counts of burglary. It also sentenced the applicant to three years’ imprisonment, suspended for seven years. It appears that the applicant did not lodge an appeal against that judgment. B.     Relevant domestic law and practice Preventive measures Article 93 of the Criminal Code reads: “The court may impose a preventive measure as provided for in this chapter, which involves committal to a secure medical institution only if necessary in order to prevent the repeated commission of a prohibited act by an offender suffering from mental illness ... mental impairment, or addiction to alcohol or other narcotic drugs. Before imposing such a measure, the court shall hear evidence from psychiatrists and a psychologist ...” Article 94 reads: “1.     If an offender has committed a prohibited act in a state of insanity as specified in Article 31 § 1, causing significant harm to the community, and there is a high probability that he will commit such an act again, the court shall commit him to a suitable psychiatric institution. 2.     The duration of the stay at the institution shall not be fixed in advance; the court shall release the offender from the institution if his stay there is no longer deemed necessary. 3.     The court may reorder the committal of an offender (as specified in paragraph   1) to a suitable psychiatric institution if it is advisable in the light of the circumstances specified in paragraph 1 or Article 93; such an order may not be issued more than five years after release from the institution.” COMPLAINTS The applicant complains under Article 5 of the Convention that the domestic courts refused to release him from a psychiatric hospital. He further submits that the domestic courts ignored the psychiatrists’ report confirming that he was not suffering from a mental illness and his own submissions that he had pretended to have a mental illness   QUESTIONS TO THE PARTIES 1.     Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, was it established that the persistence of his mental disorder warranted his continued confinement and was his deprivation of liberty justified under Article   5 § 1 (e) of the Convention? 2.     Did the applicant have at his disposal an effective procedure by which he could challenge the lawfulness of his detention, as required by Article 5 §   4 of the Convention?