FOURTH SECTION
CASE OF
KĘDZIOR v. POLAND
(Application no.
45026/07)
JUDGMENT
STRASBOURG
16 October 2012
This judgment will become
final in the circumstances set out in Article 44 § 2 of the Convention. It may
be subject to editorial revision.
In the case of Kędzior v. Poland,
The European Court of Human Rights (Fourth Section), sitting as
a Chamber composed of:
David Thór Björgvinsson, President,
Lech Garlicki,
Päivi Hirvelä,
Ledi Bianku,
Zdravka Kalaydjieva,
Nebojša Vučinić,
Vincent A. De Gaetano, judges,
and Lawrence Early, Section Registrar,
Having deliberated in private on 25 September 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no. 45026/07)
against the Republic of Poland lodged with the Court under Article 34 of
the Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by a Polish national, Mr Stanisław Kędzior
(“the applicant”), on 4 October 2007.
The applicant was represented by Mr A. Bodnar
and Mrs M. Zima, lawyers from the Helsinki
Foundation for Human Rights (Warsaw, Poland). The Polish Government (“the Government”) were represented by their Agent,
Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
The applicant complained, in particular, about
his placement in a social care home and his inability to obtain release from
the home, in breach of Article 5 §§ 1 and 4 of the Convention.
On 7 May 2009 the application was
communicated to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1956 and lives in Sośnica.
The applicant has been undergoing psychiatric
treatment since the age of sixteen. He was hospitalised on several occasions in
psychiatric hospitals in Lubliniec and Żurawica.
The applicant lived in Nowy Lubliniec with his
mother and handicapped sister. At the end of 2000 the applicant’s brother, who
did not live with them, applied to the court submitting that the applicant had
been aggressive, had been refusing to take his medication and had been abusing
alcohol.
On 22 December 2000 the applicant was partly
deprived of his legal capacity by a court because of his mental disorder, as he
had been diagnosed with schizophrenia.
On 28 August 2001 the Lubaczów District
Court appointed his brother, Mr Zbigniew Kędzior, as his guardian (kurator).
Subsequently, the guardian applied to the court to have the order varied and to
have the applicant declared totally incapacitated.
In the course of the proceedings, on 22 December
2001, an expert psychiatric opinion was prepared which confirmed that the
applicant was suffering from schizophrenia and that he had a tendency to abuse alcohol.
On 27 December 2001 the Krosno Regional
Court changed its previous decision and decided to declare the applicant
totally incapacitated as his mental condition had deteriorated. The applicant’s
brother remained his guardian (opiekun prawny).
On an unspecified date the applicant’s guardian
requested the Ruda Różaniecka Social Care Home (Dom Pomocy Społecznej)
to admit the applicant.
On 8 February 2002 the Lubaczów District
Family Centre (Powiatowe Centrum Pomocy Rodzinie) decided to place the
applicant in the social care home, as requested by his guardian. In terms of
domestic law the admission was voluntary and did not require approval by a
court.
Between 31 October 2001 and 11 February
2002 the applicant was in a psychiatric hospital in Jaroslaw.
On 11 February 2002 the applicant was
admitted to the Ruda Różaniecka Social Care Home, where he remained for
ten years.
The applicant complained to the Lubaczów
District Court that he had been placed in the care home against his will and
without any medical necessity. On 12 April 2002 the president of the court
informed him that the placement had been in accordance with the law.
On 27 December 2004 the District Family
Centre informed the applicant that his guardian was authorised to place him in
the care home.
On 9 February 2006 the Przemysl Regional
Court rejected the applicant’s request for proceedings to be initiated to
have his legal capacity fully restored. The court considered that the applicant,
being legally incapacitated, did not have the authority to lodge such a
request, and that his guardian did not support the request.
On 23 February 2006 the president of the
Lubaczów District Court explained to the applicant again that due to his total
incapacitaty he had not been a party to the proceedings relating to his
placement in the care home.
On 17 March
2006 the president of the Przemysl Regional Court informed the applicant in a
letter that there were no grounds to institute proceedings to restore the
applicant’s legal capacity of the court’s own motion.
On 5 June 2006 and 15 February 2007 the
District Family Centre again replied to the applicant’s letters informing him
that only his guardian could approve his release from the care home.
On 21 September 2006 the Przemysl Regional Court again rejected a request by the applicant to have his legal capacity
restored, given his lack of legal standing to initiate such proceedings.
On 17 January 2007 the president of the
Lubaczów District Court informed the applicant that any variation of his
incapacitation order was governed by Article 559 of the Code of Civil
Procedure (CCP). The president further clarified that proceedings to vary
the incapacitation order could be instituted by a court of its own motion. In
addition, the applicant himself, although lacking legal capacity, could apply
to the court for such proceedings to be instituted. According to the president,
the latter possibility was based on the interpretation of the law as provided
in a commentary to the CCP.
The applicant again asked the Przemyśl Regional Court to quash the legal incapacitation order. On 8 February 2007
the court rejected the request as inadmissible in law.
On 1 March 2007 the president of the Przemysl Regional Court explained to the applicant, in a letter of response to the applicant’s
query, that only his legal guardian could institute proceedings to have his legal
incapacity revoked. Alternatively, the applicant could request the court to
institute such proceedings of its own motion, but for that to succeed new
medical evidence needed to be provided.
On 11 May and 7 August 2007 the Przemysl Regional Court rejected further requests by the applicant for his legal capacity to
be restored, on the ground that the applicant had no legal standing to
institute such proceedings.
On 17 September 2007 the same court
rejected a further appeal by the applicant against the decision of 7 August
2007. The court noted that following the Constitutional Court’s judgment of 7 March
2007 the domestic law had been amended, and it was now possible for
a person lacking legal capacity to institute proceedings to have the
incapacitation order set aside. However, the amendments to the CCP had been
introduced by the law of 9 May 2007, which would enter into force only on 7 October
2007. Thus, the applicant’s request had not been examined.
On 13 July 2007 the Jarosław District
Prosecutor informed the applicant that his complaints, in particular against Dr
F., who had prepared an expert opinion in 2001 in the proceedings concerning
his incapacitation, were manifestly ill-founded.
On several occasions in 2008 the applicant attempted
to institute proceedings to have his incapacitation quashed; however, all
his requests were refused for failure to comply with various procedural
requirements, including failure to pay court fees in the amount of 40 Polish
zlotys (PLN, approx. 10 euros (EUR)). The applicant appealed against all the
decisions and submitted new requests for the incapacitation order to be lifted.
It appears that a later request was successful, as
on 9 March 2009 the Przemysl Regional Court instituted proceedings to have
the applicant’s legal capacity restored (file no. Ns 23/09). The court
decided to have an expert opinion prepared and for the applicant to be heard by
a judge in the presence of a psychologist and a psychiatrist.
On 20 March 2009 a judge, with a panel of experts,
heard the applicant during a twenty-five-minute-long
interview.
On 7 April 2009 the experts submitted their
opinion to the court on the basis of that interview with the applicant. The
applicant submitted to the experts that he had been placed in the social care
home against his will by his brother seven years previously. In the home he had
been independent, had not been drinking alcohol and had been taking his medication.
In the past four years he had been given long leaves of absence to visit his
home, and had travelled alone. He would like to make his own decisions and to
vote in elections and not to be obliged to ask his brother for everything. He also
mentioned that if his capacity were restored he would prefer to stay in the social
care home and to continue visiting his family home on leaves of absence.
The experts concluded that the applicant was
suffering from schizophrenia, although for several years he had not experienced
psychotic symptoms or displayed aggressive behaviour. However, without a
rigorous therapeutic regime the applicant’s state of health could worsen. According
to the experts the applicant did not consider himself to be a person with a mental
disorder, and showed a lack of critical judgment regarding his state of health
and his actions. On the basis of the file and the interview with the applicant
the experts concluded that his primary intention in applying for restoration of
his legal capacity was to leave the social care home. In this context they
noted that during the interview the applicant had spontaneously declared that
he would prefer to stay in the social care home even if his capacity were
restored. Nevertheless, judging from his consistent and extensive
correspondence with the courts so far, the experts considered that his sole intention
remained “to live freely in the family home and not in the social care
institution”. The experts concluded that the applicant’s mental state had improved
but not to the extent that would allow him to function independently.
On 8 April 2009 the experts informed the
court that they considered it unnecessary to notify the applicant of any court
decisions or applications to court, given his state of health.
On 9 April 2009 the Przemysl Regional Court
decided to stop sending the applicant any notifications of court decisions and
appointed a court officer as a guardian to represent his interests in legal proceedings.
The applicant submitted that he had never met this guardian.
On 9 April 2009 the Przemysl Regional Court
dismissed a request by the applicant to have his legal capacity restored. The
decision contains no reasons, as it appears that the applicant’s guardian had
not asked for them. Nor did she lodge an appeal against the decision.
On 16 January 2012, at the request of the
applicant’s guardian, he was transferred to the Sośnica Social Care Home.
II. RELEVANT DOMESTIC LAW AND PRACTICE
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
agree too, 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 and cannot be taken care of by somebody 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 the person concerned 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 the 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.
The relevant international instruments and conclusions
on the comparative law are set out in the judgment of Stanev v. Bulgaria [GC], no. 36760/06, §§ 72, 73
and 88-95, ECHR 2012.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1
OF THE CONVENTION
The applicant complained that his placement in the
social care home had constituted an unlawful deprivation of liberty in breach
of Article 5 § 1 of the Convention, which reads as follows:
“1. Everyone has the right to liberty and security
of person. No one shall be deprived of his liberty save in the following cases
and in accordance with a procedure prescribed by law:
(e) the lawful detention of persons ... of unsound
mind...”
The Government contested that argument in
general terms.
A. Submissions by the parties
1. The applicant
The applicant maintained that his placement in
the social care home was in breach of Article 5 § 1 of the
Convention. As regards the objective aspect of deprivation of liberty, the
applicant submitted that his situation in the Ruda Różaniecka Home had
been similar to the conditions examined by the Court in the case of D.D. v. Lithuania
(no. 13469/06, 14 February
2012). In particular, the applicant could not leave the home freely. Only
his guardian could apply to the home’s management for a leave of absence for
the applicant. The length of the leave of absence was limited and could only be
extended exceptionally. In the event of an unauthorised absence the police
would be informed. Therefore, the applicant had been entirely under the control
of the staff of the social home.
From the subjective point of view the applicant’s
stay in the home should be considered a deprivation of liberty, as he had never
consented to be placed in the home and was never asked for his view in that
connection. In numerous letters he sent to various authorities and courts over
the last ten years the applicant clearly expressed his wish to leave the social
care home. On numerous occasions the applicant emphasised that his placement
had been illegal and that he wished to return to his family home. The applicant
also submitted that he was in conflict with his brother, who had been his
guardian since 2001, and that he had not seen him since 2005.
The applicant’s representative expressed doubts
as to whether his placement in the home had been in accordance with domestic
law. He submitted that the applicant’s brother had submitted a request for the
applicant to be placed in the home on 1 December 2001, before he had been
officially appointed his brother’s guardian, once his brother had become a totally
incapacitated person, on 30 January 2002. The applicant’s brother did not discuss
the matter with the applicant, nor did he apply to a court for approval of his
action.
In any event, the applicant’s representative considered that
his detention had also been illegal in the light of the Winterwerp
criteria (see Winterwerp v. the Netherlands, 24 October 1979,
§ 39, Series A no. 33). The applicant did not contest the fact
that he had a mental illness; however, he considered that placing him in a home
against his will had not been the only way to protect his interests and well-being.
2. The Government
The Government did not contest the applicant’s
submissions as regards the applicant’s situation in the social care home and
the regulations regarding leave of absence. They submitted in general that
given the applicant’s state of health the social care home had been the best
choice for him in order to protect his well-being. The Government also
stated that after several years in the Ruda Różaniecka Home the applicant
had been granted long leaves of absence so that he could spend a considerable
amount of time with his family.
The Government considered that prior to his placement in the
social care home on 11 February 2002 the applicant had been examined by a
psychiatrist on 22 December 2001 in the context of the incapacitation
proceedings.
The Government referred in general to the case
of H.M. v Switzerland (no. 39187/98, ECHR 2002-II) and
considered that the circumstances of that case were similar to the present one.
They submitted that in 2009, in the course of the proceedings aimed at changing
the incapacitation order, the applicant stated that he had no intention to
leave the social care home (see paragraph 32 above).
3. The third party
The third party, the Mental Disability Advocacy
Centre (MDAC) submitted their comments regarding the situation of individuals deprived
of legal capacity. They considered that even total incapacitation should not automatically
deprive a person of the right to independent living. An assessment of a person’s
mental state does not necessarily determine that person’s functional capacity.
According to the World Health Organisation one in four people in the world will
have a mental health problem at some point in their lives. The MDAC considered
that if a person with a disability retained the functional capacity to consent
to a treatment any involuntary measure in respect of such person should be
considered to be in breach of the Convention.
The MDAC underlined that in many countries, including Poland, mental health services were heavily institutionalised and lacked any alternative in
a form of community-based, modern and humane mental health and social care
services.
B. Admissibility
1. General principles
The Court reiterates that in order to determine
whether there has been a deprivation of liberty, the starting point must be the
particular situation of the individual concerned. Account must be taken of a
whole range of factors arising in a particular case, such as the type,
duration, effects and manner of implementation of the measure in question (see Guzzardi v. Italy,
6 November 1980, § 92, Series A no. 39, and Ashingdane v. the United Kingdom,
28 May 1985, § 41, Series A no. 93).
The Court further observes that the notion of
deprivation of liberty within the meaning of Article 5 § 1 does not
only comprise the objective element of a person’s confinement in a particular
restricted space for a length of time which is more than negligible. A person
can only be considered to have been deprived of his liberty if, as an
additional subjective element, he has not validly consented to the confinement
in question (see Storck v. Germany, no. 61603/00, § 74,
ECHR 2005-V).
The Court notes its case-law to the effect
that a person could be considered to have been “detained” for the purposes of
Article 5 § 1 even during a period when he or she was in an open ward
with regular unescorted access to unsecured hospital grounds and the
possibility of unescorted leave outside the hospital (see H.L.
v. the United Kingdom, no. 45508/99, § 92, ECHR
2004-IX).
The Court also had the opportunity to examine placements in
social care homes of mentally incapacitated individuals, and to find that it
amounted to deprivation of liberty within the meaning of Article 5 § 1
of the Convention (see Stanev, cited above, § 132 and D.D. v. Lithuania,
cited above, § 152).
2. Application of these principles in the present case
As concerns the circumstances of the present
case, the Court considers that the key factor in determining whether Article 5
§ 1 applies to the applicant’s situation is whether the care home’s
management has exercised complete and effective control over his treatment,
care, residence and movement from February 2002, when he was admitted to that
institution, to the present day (see paragraph 44 above and D.D. v. Lithuania,
cited above, § 149). The applicant was not free to leave the institution
without the management’s permission. Nor could the applicant himself request
leave of absence from the home, as such requests had to be made by the
applicant’s official guardian. Accordingly, and as in the Stanev case,
although the applicant was able to undertake certain journeys and to spend time
with his family the factors mentioned above lead the Court to consider that the
applicant was under constant supervision and was not free to leave the home
without permission whenever he wished (see Stanev, cited above, § 128).
Moreover the Court notes that it would appear that the applicant’s extended
visits to his family were only authorised during the last few years of his stay
in the Ruda Różaniecka Home.
Finally, the management of the care home controlled the remaining
30% of the applicant’s disability pension. The Court observes in this
respect that the facts of the applicant’s situation at the home were largely
undisputed.
The Court next turns to the “subjective”
element, which was partly disputed between the parties. The Court reiterates
that the fact that the applicant lacked de
jure legal capacity to decide matters for himself does not
necessarily mean that he was de
facto unable to understand his situation (see Shtukaturov
v. Russia, no. 44009/05, § 108, ECHR 2008).
Whilst accepting that in certain circumstances, due to the severity of his or
her incapacity, an individual may be wholly incapable of expressing consent or
objection to being confined in an institution for the mentally handicapped or another
secure environment, the Court finds that this was not the applicant’s case. The
documents presented to the Court indicate that the applicant subjectively
perceived his compulsory admission to the Ruda Różaniecka Home as a
deprivation of liberty. On a number of occasions the applicant requested the
courts to start proceedings to quash his legal incapacitation order, submitting
that this would allow him to leave the home. For many years he has been
consistently complaining about his placement in the care home, to the courts, the
prosecutor and the District Family Centre. Also, in his correspondence with the
Court between 2007 and 2012 the applicant consistently asked for help to leave
the social care home where he had been placed and was being kept against his
will. The Court takes note of the Government’s argument relating to the
applicant’s own declaration made when interviewed by the experts on 7 April
2009 (see paragraphs 32 and 52 above). However, the Court would rely
on the assessment of this statement made by the experts themselves who
disregarded it as being in clear contradiction to the applicant’s real
intentions, consistently expressed so far (see paragraph 33 above).
In sum, even though the applicant had been deprived of his
legal capacity, he was still able to express an opinion on his situation, and
in the present circumstances the Court finds that the applicant had never
agreed to being placed in the social care home.
Lastly, the Court notes that although the
applicant’s admission was requested by the applicant’s guardian, a private
individual, it was implemented by a State-run institution - the care home.
Therefore, the responsibility of the authorities for the situation complained
of was engaged (see Shtukaturov,
cited above, § 110,
and D.D. v. Lithuania, cited above, § 151).
In the light of the foregoing the Court
concludes that the applicant was “deprived of his liberty” within the meaning
of Article 5 § 1 of the Convention from February 2002 and remains so
to this day.
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of
the Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
C. Merits
The Court accepts that the applicant’s detention
was “lawful”, if this term is construed narrowly, in the sense of formal
compatibility of the detention with the procedural and material requirements of
the domestic law. It appears that the only condition for the applicant’s
detention was the consent of his official guardian, his brother, who was also
the person who had sought the applicant’s placement in the care home (see Shtukaturov,
cited above, § 112).
However, the Court reiterates that the notion of
“lawfulness” in the context of Article 5 § 1 (e) has also a broader
meaning. “The notion underlying the term [‘procedure prescribed by law’] is one
of fair and proper procedure, namely that any measure depriving a person of his
liberty should issue from and be executed by an appropriate authority and
should not be arbitrary” (see Winterwerp, cited above, § 45). In
other words, the detention cannot be considered “lawful” within the meaning of
Article 5 § 1 if the domestic procedure does not provide sufficient
guarantees against arbitrariness.
In its above-mentioned Winterwerp judgment,
the Court set out three minimum conditions which have to be satisfied in order
for there to be “the lawful detention of a person of unsound mind” within the
meaning of Article 5 § 1 (e): except in emergency cases, the
individual concerned must be reliably shown to be of unsound mind, that is to
say, the existence of a true mental disorder must be established by a competent
authority on the basis of objective medical expertise; the mental disorder must
be of a kind or degree warranting compulsory confinement; and the validity of
continued confinement depends upon the persistence of such a disorder.
Turning to the present case, the Court notes that
it was submitted on behalf of the applicant that his deprivation of liberty had
been arbitrary, because he had not been reliably shown to be of unsound mind at
the time of his confinement. The Government submitted that the applicant was
examined by a psychiatrist about one month before being placed in the home.
The Court reiterates that the mental condition
of a person must have been established at the time he is deprived of liberty
(see O.H. v. Germany, no. 4646/08, § 78, 24 November 2011). In the
present case a psychiatrist examined the applicant on 22 December
2001 in the course of the incapacitation proceedings, while the decision to
place him in the care home was taken one month and seventeen days later, on 8 February
2002.
Taking into account the relative brevity of this
period, the Court accepts that the authorities could be considered as having
based their decision on a recent medical assessment confirming the applicant’s
mental illness when placing him in the home (compare and contrast; Stukatorov,
cited above, § 115 where the period amounted to ten months, and Stanev,
cited above, § 156 where it had been over two years).
Nevertheless, the Court considers that the other
two requirements of Article 5 § 1 (e) were not satisfied fully
in the present case. As regards the need to justify the placement by the
severity of the disorder, it notes that the purpose of the 2001 medical report
was not to examine whether the applicant’s state of health required him to be
placed in a home for people with mental disorders, but solely to determine the
issue of his legal protection.
The Court
also notes deficiencies in the assessment of whether the disorders warranting
the applicant’s confinement still persisted. There is no appearance that the
applicant was under the supervision of a psychiatrist and that there had been
any periodic psychiatric examinations (see paragraph 43 above). Indeed, no
provision was made for such an assessment under the relevant legislation, and
the next psychiatric examination of the applicant took place almost eight years
later, in April 2009, in the context of proceedings for quashing of the legal
incapacitation order (see paragraph 32 above).
In view of the above considerations, the Court finds that the regulatory
framework for placing in social care homes persons, like the applicant, who
have been totally deprived of their legal capacity, did not provide the
necessary safeguards at the material time. The Court will revert further to
this matter in the context of the applicant’s complaint under Article 5 § 4
of the Convention.
Having regard to the foregoing, and in
particular to the total lack of continued assessment of the applicant’s
disorder, the Court observes that the applicant’s placement in the home was not
ordered “in accordance with a procedure prescribed by law” and that his
deprivation of liberty was not justified by sub-paragraph (e) of
Article 5 § 1.
Furthermore, the Government have not indicated any of the other
grounds listed in sub-paragraphs (a) to (f) which might have
justified the deprivation of liberty in issue in the present case.
There has therefore been a violation of Article 5 § 1.
II. ALLEGED VIOLATION OF ARTICLE 5 § 4
OF THE CONVENTION
The applicant complained that he had not had at
his disposal any effective procedure by which he could challenge the necessity for
his continued stay in the social care home and obtain his release.
The applicant submitted that he had been admitted to the care
home at his guardian’s request and without his agreement. The lawfulness of his
admission to the home, considered voluntary since it was made by his guardian,
had not been reviewed by a court, either upon his admission or at any other
time. The domestic law did not impose an obligation to have periodic reviews of
the continuing need for him to remain in the social care home. In fact, he was
not examined by a psychiatrist during his ten-year stay in the Ruda Różaniecka
Home, except once, in 2009 in the course of the proceedings for quashing the
legal incapacitation order. Being deprived of his legal capacity, the applicant
was prevented from independently pursuing any judicial legal remedy to
challenge his continued stay in the social care home.
Article 5 § 4, relied on by the applicant, provides
as follows:
“Everyone who is deprived of his liberty by arrest or detention
shall be entitled to take proceedings by which the lawfulness of his detention
shall be decided speedily by a court and his release ordered if the detention
is not lawful.”
The Government did not comment on the
admissibility and merits of this complaint.
A. Admissibility
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a)
of the Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. General principles
Among the principles emerging from the Court’s
case-law on Article 5 § 4 concerning “persons of unsound mind” are
the following:
(a) a person detained for an
indefinite or lengthy period is in principle entitled, at any rate where there
is no automatic periodic review of a judicial character, to bring proceedings
“at reasonable intervals” before a court to put in issue the “lawfulness” -
within the meaning of the Convention - of his detention;
(b) Article 5 § 4
requires the procedure followed to have a judicial character and to afford the
individual concerned guarantees appropriate to the kind of deprivation of
liberty in question; in order to determine whether proceedings provide adequate
guarantees, regard must be had to the particular nature of the circumstances in
which they take place;
(c) the judicial proceedings
referred to in Article 5 § 4 need not always be attended by the same
guarantees as those required under Article 6 § 1 for civil or
criminal litigation. Nonetheless, it is essential that the person concerned
should have access to a court and the opportunity to be heard either in person
or, where necessary, through some form of representation (see Megyeri v. Germany, 12 May
1992, § 22, Series A no. 237-A; see also Stanev,
cited above, § 171).
This is so in cases where the original detention
was initially authorised by a judicial authority (see X
v. the United Kingdom, 5 November 1981, § 52,
Series A no. 46), and it is all the more true in the circumstances
where the applicant’s placement in the care home has been instigated by a
private individual, namely the applicant’s guardian, and decided upon by the
municipal and social care authorities without any involvement by the courts
(see D.D. v. Lithuania, cited above, § 164).
2. Application of these principles in the present case
The Court accepts that the forms of judicial
review may vary from one domain to another and may depend on the type of
deprivation of liberty at issue. It is not within the province of the Court to
inquire into what would be the best or most appropriate system of judicial
review in this sphere (see D.D. v. Lithuania, cited above, § 165). However, in the
present case the courts were not involved in deciding on the applicant’s
placement in the care home at any moment or in any form. It appears that, in
situations such as the applicant’s, Polish law does not provide for automatic
judicial review of the lawfulness of admitting a person to, and keeping him in,
an institution such as a social care home (see paragraphs 41 and 59 above).
In addition, a review cannot be initiated by the person concerned if that
person has been deprived of his legal capacity. In sum, the applicant was
prevented from independently pursuing any legal remedy of a judicial nature to
challenge his continued involuntary institutionalisation. This again confirms a
lack of an effective regulatory framework in this area (see paragraph 70
above).
Moreover, the Court notes that the Government
did not make any submissions in respect of this complaint, and did not indicate
any procedure that could have given rise to a judicial review of the lawfulness
of his placement as required by Article 5 § 4.
In the light of the above, the Court holds that
there has been a violation of Article 5 § 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE
CONVENTION
The applicant submitted that he had been
prevented from directly applying to a court for restoration of his legal
capacity, in spite of the Constitutional Court’s judgment finding that the
relevant provisions had been unconstitutional. The applicant’s representative
submitted that the judgment of the Constitutional Court of 7 March 2007
had been directly applicable and had created a right for totally incapacitated individuals,
such as the applicant, to directly lodge a request for an incapacitation order
to be lifted. Nevertheless, all his requests lodged before the entry into force
of the new law amending the Code of Civil Procedure had been refused, in
disregard of the Constitutional Court’s judgment. This constituted a breach of
the applicant’s right of access to court.
The applicant relied on Article 6 § 1 of the
Convention, the relevant parts of which read:
“In the determination of his civil rights and obligations ...
everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
The Government did not comment on the
admissibility and merits of this complaint.
A. Admissibility
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a)
of the Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. General principles
The Court reiterates
that Article 6 § 1 secures to everyone the right to have any claim
relating to his or her civil rights and obligations brought before a court or
tribunal (see Golder v. the United Kingdom, 21 February
1975, § 36, Series A no. 18). This “right to court”, of which
the right of access is an aspect, may be relied on by anyone who considers on
arguable grounds that an interference with the exercise of his or her civil
rights is unlawful and complains that no possibility has been afforded to
submit that claim to a court meeting the requirements of Article 6 § 1
(see, inter alia, Roche v. the United Kingdom [GC], no. 32555/96,
§ 117, ECHR 2005-X, and Salontaji--Drobnjak v. Serbia, no. 36500/05, § 132, 13 October 2009).
The right of access to court by its very nature calls for
regulation by the State and may be subject to limitations. Nevertheless,
the limitations
applied must not restrict the access allowed the individual in such a way or to
such an extent that the very essence of that right is impaired. A limitation will violate the
Convention if it does not pursue a legitimate aim and if there is not a
reasonable relationship of proportionality between the means employed and the
aim sought to be achieved (see, among other authorities, Kreuz v. Poland, no. 28249/95,
§§ 52-57, ECHR 2001-VI, and Liakopoulou
v. Greece, no. 20627/04, §§ 19-25,
24 May 2006).
The Court has already
held, in respect of partially incapacitated individuals, that given the trends emerging
in national legislation and the relevant international instruments, Article 6
§ 1 of the Convention must be interpreted as guaranteeing a person, in
principle, direct access to a court to seek restoration of his or her legal capacity
(see Stanev, cited above, § 245). In the latter judgment the Court observed that eighteen of the twenty national legal
systems studied in 2011 provided for direct access to the courts for any
partially incapacitated individuals wishing to have their status reviewed. In
seventeen States such access was open even to those declared fully incapable
(see Stanev, §§ 95 and 243). This indicates that there is now
a trend at European level towards granting legally incapacitated individuals
direct access to the courts to seek restoration of their capacity.
2. Application of these principles in the present case
The Court observes at the outset that in the
present case none of the parties disputed the applicability of Article 6
to the proceedings for restoration of legal capacity. The applicant, who has
been totally deprived of legal capacity, complained that between March and October
2007 he was prevented from directly applying to a court to have his capacity
restored in spite of the Constitutional Court’s judgment. The Court has had
occasion to clarify that proceedings for restoration of legal capacity are directly
decisive for the determination of “civil rights and obligations” (see Matter
v. Slovakia, no. 31534/96, § 51, 5 July 1999). Article 6
§ 1 of the Convention is therefore applicable in the instant case.
It remains to be determined whether the
applicant’s access to court was restricted, and if so whether the restriction
pursued a legitimate aim and was proportionate to it.
Turning to the facts of the instant case, the
Court firstly observes that it is not called here to decide whether under the
Convention the right of partially incapacitated persons to have a direct access
to court, established in the Stanev judgment, should be extended to
persons totally incapacitated. The question under consideration arose because the
Polish Constitutional Court declared unconstitutional the domestic provision
that barred persons deprived of their legal capacity from directly instituting
proceedings to have a legal incapacitation order varied. The Constitutional
Court’s judgment of 7 March 2007 entered into force ten days later.
The Constitutional Court explicitly addressed the lower courts,
reiterating that as a consequence of its own judgment the domestic law should
be interpreted as allowing incapacitated individuals access to court. That
should be so with or without the relevant amendment to the CCP introduced by
the legislator.
In spite of this clear indication, the applicant’s requests to
have his legal capacity restored were rejected on 11 May, 7 August, and 17 September
2007 as not provided by law (see paragraphs 26 and 27 above). On the
last occasion the District Court referred to the Constitutional Court’s
judgment, but gave no explanation as to why it had not applied it. The Court notes
that the Government also failed to provide any explanation in this respect.
The Court reiterates that the right to ask a
court to review a declaration of incapacity is one of the most important rights
for the person concerned, since such a procedure, once initiated, will be
decisive for the exercise of all the rights and freedoms affected by the declaration
of incapacity, not least in relation to any restrictions that may be placed on
the person’s liberty (see Shtukaturov, cited above, § 71, and Stanev,
cited above, § 241).
. The
Court considers that the Constitutional Court’s judgment, which explicitly
urged lower courts not to limit the procedural rights of incapacitated
individuals, was legally binding notwithstanding the unfinished legislative
process and the domestic court’s reluctance to apply directly that judgment. In
these circumstances, the applicant was deprived of a clear, practical and
effective opportunity to have access to court in respect of his request to
restore his legal capacity. All in all, the system was therefore not
sufficiently coherent and clear (see De Geouffre de la Pradelle v. France,
16 December 1992, § 34, Series A no. 253-B). Also, under those circumstances, refusing the applicant’s
requests for the incapacitation order to be changed on at least three occasions
between March and October 2007 cannot be seen as justified enforcement of a
legitimate procedural limitation on the applicant’s right of access to court (see Angel
Angelov v. Bulgaria, no. 51343/99, § 38, 15 February 2007).
The Court takes note that subsequently
the relevant provision of the CCP was amended and in 2009 the applicant was finally
able to initiate proceedings aimed at varying his incapacitation order (see
paragraphs 30 and 40 above). However, this positive development
cannot alter the above conclusion, which relates to the period prior to entry
into force of the above-mentioned amendment.
The Court therefore concludes that there has
been a violation of Article 6 § 1 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 8 OF THE
CONVENTION
The applicant further complained under Article 8
of the Convention in that placing him in the social care home for an indefinite
period of time constituted an interference with his right to respect for his
private and family life. The Government did not comment on the applicant’s
complaint.
The Court notes that his complaint is linked to
the ones examined above and must therefore likewise be declared admissible.
However, having regard to the reasons which led
the Court to find a violation of Articles 5 §§ 1 and 4 of the
Convention (see paragraphs 70 and 78 above), the Court finds that no
separate issue arises under Article 8 of the Convention, and this complaint does not require a separate examination (see Stanev, cited above, § 252).
V. APPLICATION OF ARTICLE 41 OF THE
CONVENTION
Article 41
of the Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Damage
The applicant claimed EUR 10,000 in respect
of non-pecuniary damage.
The Government contested this claim as
excessive.
The Court awards the applicant EUR 10,000
in respect of non-pecuniary damage.
B. Costs and expenses
The applicant, who was represented by lawyers
from the Helsinki Foundation for Human Rights, did not make any claim for costs
and expenses.
C. Default interest rate
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the application admissible;
2. Holds that there has been a violation of
Article 5 § 1 of the Convention;
3. Holds that there has been a violation of
Article 5 § 4 of the Convention;
4. Holds that there has been a violation of
Article 6 § 1 of the Convention;
5. Holds that there is no need to examine separately
the complaint under Article 8 of the Convention;
6. Holds
(a) that the respondent State is to pay the applicant,
within three months of the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, EUR 10,000 (ten thousand euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage, to be converted into
the currency of the respondent State at the rate applicable on the date of
settlement;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amount at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points.
Done in English, and notified in writing on 16 October 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early David Thór Björgvinsson
Registrar President
