CEDH · CASELAW;COMMUNICATEDCASES;ENG — 20 novembre 2018

.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 } .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 }   Communicated on 20 November 2018   FIRST SECTION Application no. 39646/16 Bogdan BISKUPEK against Poland lodged on 16 August 2016 STATEMENT OF FACTS The applicant, Mr Bogdan Biskupek, is a Polish national, who was born in 1961 and lives in Trzebiatów. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     Background to the case The applicant suffers from paranoid schizophrenia and has been undergoing psychiatric treatment for several years. He is totally legally incapacitated. For about twenty years his sister, L.B., has been taking care of his affairs. She has been his legal guardian ( opiekun prawny ) for about ten years. On 10 January 2006, following an application by his legal guardian L.B., the applicant was placed, without his consent, in Trzebiatów Social Care Home, where he has been living until now. 2.     Applicant’s request for release On an unspecified date in 2015 the applicant asked the Gryfice District Court to be released from the Trzebiatów Social Care Home. He submitted that he wanted to live in Kołobrzeg and was able to take care of himself. He accused the members of his family of reprehensible conduct towards him. The Gryfice District Court appointed a legal aid lawyer for the applicant. On 30 November 2015 the Gryfice District Court gave a decision dismissing the applicant’s request. During the proceedings the court obtained an expert report and heard evidence from witnesses. The expert psychiatrist concluded that the applicant suffered from paranoid schizophrenia. Based on that evidence, the court established that the applicant was unable to permanently take care of himself. The applicant could leave the social care home for several days to visit his family and in all likelihood could take care of himself for several weeks. However, his definitive release from the social care home would endanger his health and well-being, in particular since – while unsupervised – he tended to stop the necessary medical treatment and his sister could not take care of him on a permanent basis. The applicant’s lawyer lodged an appeal against that decision. On 20 May 2016 the Szczecin Regional Court dismissed the appeal. B.     Relevant domestic law and practice Admission to a social care home is governed by the 1994 Psychiatric Protection Act ( Ustawa o ochronie zdrowia psychicznego ) (“the 1994 Act”). The relevant provisions thereof, as applicable until 31 December 2017, are set out in the Court’s judgment in the case of K.C. v. Poland , no. 31199/12, §§ 39, 41-44, 25 November 2014. The 1994 Act was amended on 24 November 2017, and the amendments entered into force on 1 January 2018. In particular, among many other modifications, it introduced an obligation to carry out at least every six months a periodic medical review of the need for continuing residence of individuals confined to social care homes. In addition, under the newly added section 41(3) persons who have been confined to a social care home without a court’s decision may at any time apply to a family court for release. COMPLAINTS The applicant complains under Article 5 of the Convention that his detention has been unlawful. He submits that he is not mentally ill. He essentially questions both the placement in the Trzebiatów Social Care Home and the domestic courts’ refusal to order his release. QUESTIONS TO THE PARTIES 1.     Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention (compare Kędzior v. Poland , no. 45026/07, §§ 65-71, 16   October 2012)?   2.     Did the applicant have, at the material time, an effective procedure by which he could have challenged the lawfulness of his admission to the social care home, and the necessity of his continuing stay in it, as required by Article 5 § 4 of   the Convention?