EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 27580/95

Marian Jeznach

against

Poland

REPORT OF THE COMMISSION

(adopted on 10 September 1999)

I. INTRODUCTION

(paras. 1-15) ........................................................ 1

A. The application

(paras. 2-4) ..................................................... 1

B. The proceedings

(paras. 5-10) .................................................... 1

C. The present Report

(paras. 11-15) .................................................. 2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-52) ....................................................... 4

A. The particular circumstances of the case

(paras. 16-44) .................................................. 4

B. Relevant domestic law

(paras. 45-52) .................................................. 8

III. OPINION OF THE COMMISSION

(paras. 53-90) ...................................................... 10

A. Complaints declared admissible

(para. 53) ..................................................... 10

B. Points at issue

(para. 54) ..................................................... 10

C. As regards Article 3 of the Convention

(paras. 55-65) ................................................. 10

CONCLUSION

(para. 66) ..................................................... 12

D. As regards Article 5 para. 1 (c) of the Convention

(paras. 67-74) ................................................. 13

CONCLUSION

(para. 75) ..................................................... 14

E. As regards Article 5 para. 1 (e) of the Convention

(paras. 76-86) .................................................... . 15

CONCLUSION

(para. 87) ..................................................... 17

F. Recapitulation

(paras. 88-90) .................................................. 17

DISSENTING OPINION OF MR M.A. NOWICKI AS REGARDS ARTICLE 3 OF THE CONVENTION, JOINED BY MM C.ROZAKIS, J.-C. GEUS, I. CABRAL BARRETO,  K. HERNDL, E.ALKEMA, M. VILA AMIGÓ AND MS M.HION………………….….. 18

DISSENTING OPINION OF MR M.A. NOWICKI AS REGARDS ARTICLE 5 PARA. 1 ( C ) OF THE CONVENTION, JOINED BY MM J.-C. GEUS, I. CABRAL BARRETO, M. VILA AMIGÓ AND MS M. HION……………………………………………………. 20

PARTLY DISSENTING OPINION OF MS J.LIDDY AND MR S.TRECHSEL, JOINED BY MM E. BUSUTTIL, I. BÉKÉS, K. HENRDL AND A. ARABADJIEV……………... 22

APPENDIX: DECISION OF THE COMMISSION AS TO

THE ADMISSIBILITY OF THE APPLICATION ............... 25

I. INTRODUCTION

1 . The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A. The application

2 . The applicant is a Polish citizen, born in 1913 and resident in Gda Å„ sk .

3 . The application is directed against Poland. The respondent Government were represented by their Agent, Mr Krzysztof Drzewicki of the Ministry of Foreign Affairs.

4 . The case concerns the allegations that the applicant’s detention amounted to inhuman treatment, and that his detention was unjustified. The applicant invokes Articles 3 and 5 para. 1 (c) and (e) of the Convention.

B. The proceedings

5 . The application was introduced on 2 May 1995 and registered on 12 June 1995.

6 . On 21 October 1996 the Commission decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on the admissibility and merits of the applicant's complaints under Articles 3 and 5 para. 1 (c) and (e) of the Convention.

7 . The Government's observations were submitted on 18 February 1997, after an extension of the time-limit fixed for this purpose. The applicant replied on 12 April 1997.

8 . On 19 January 1998 the Commission declared admissible the applicant's complaints under Articles 3 and 5 para. 1 (c) and (e) of the Convention. It declared inadmissible the remainder of the application.

9 . The text of the Commission's decision on admissibility was sent to the parties on 6 February 1998 and they were invited to submit such further information or observations on the merits as they wished. The parties did not avail themselves of this possibility.

10 . After declaring the case admissible, the Commission, acting in accordance with former [1] Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement. In the light of the parties’ reaction, the Commission now finds that there is no basis on which such a settlement can be effected.

C. The present Report

11 . The present Report has been drawn up by the Commission in pursuance of former Article 31 of the Convention and after deliberations and votes, the following members being present:

MM S. TRECHSEL, President

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

J.-C. GEUS

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

Sir Nicolas BRATZA

MM I. BÉKÉS

D. ŠVÁBY

G. RESS

A. PERENI Č

K. HERNDL

E. BIELIŪNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

12 . The text of this Report was adopted on 10 September 1999 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with former Article 31 para. 2 of the Convention.

13 . The purpose of the Report, pursuant to former Article 31 of the Convention, is:

( i ) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.

14 . The Commission's decision on the admissibility of the application is annexed hereto.

15 . The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

16 . On 31 July 1981 a monument commemorating approximately fourteen thousand Polish officers taken prisoners of war and murdered by the Russian authorities in 1941, was erected by a citizens' committee on the Warsaw-PowÄ…zki military cemetery. The applicant actively participated in its creation and financing. After several hours the secret police removed the monument from the cemetery. In 1985 the communist authorities erected a new monument with an inscription indicating that the officers had been murdered by the German army. In 1990 the local municipality agreed that this monument would remain at the cemetery with the inscription changed so as to indicate the actual perpetrators of the crime. The original monument was found in storage at the cemetery.

17 . In 1989 the applicant filed a civil action with the Warsaw District Court (SÄ…d Rejonowy ) claiming that the 1981 monument be restored to him. On 21 November 1990 the Court dismissed the applicant's claim. The Court found that in late 1981, as a result of a conflict between the members of the committee and the applicant, the committee had reimbursed the applicant the costs borne by him for the construction of the monument. Thus the applicant had lost any entitlement which he had undeniably previously had as a legitimate member of the committee and a co-founder of the monument to claim that it be rendered to him. In 1991 the Warsaw Court of Appeal (SÄ…d Apelacyjny ) upheld this judgment. On 22 July 1993 the Minister of Justice refused leave for an extraordinary appeal against this judgment.

18 . The applicant continued his efforts to have the original monument placed at the cemetery by submitting numerous insistent petitions to various authorities. His request was not complied with. He was informed on several occasions that it was the 1985 monument which was to remain on the cemetery with the changed inscription.

19 . On 31 August 1994 the applicant came to the office of J.P., a deputy manager of the Warsaw-Powązki cemetery, and demanded that the 1981 monument be given back to him. The manager explained that he was not competent to take such a decision. The applicant insisted and declared that he was ready to go on a hunger strike on the premises and eventually to commit suicide. The manager ignored him for ten minutes and then phoned his secretary asking her to bring help. Shortly afterwards two employees, S.K. and M.R., came to the office, whereupon the applicant shot at J.P. with a gas pistol. As tear gas spread in the room, three men left the office while the applicant remained there. Subsequently he fired a " Parabellum " gun which had been in his possession since the Second World War. The bullet pierced the glass door between the office and the adjoining one and slightly wounded R.S. , another employee of the cemetery who had come to assist J.P. Then the applicant tried to commit suicide but the second bullet got stuck in the gun. The management of the cemetery called an antiterrorist police team who came to overpower the applicant. The applicant did not offer any resistance. He was arrested on suspicion of causing public disturbance and danger to human life and limb. He was then taken to Warsaw- Mokotów prison.

20 . On 1 September 1994 the Warsaw- Wola District Prosecutor remanded the applicant in custody until 30 September 1994 on suspicion of attempted manslaughter and unauthorised possession of weapons. The operative part of the decision read as follows: "The evidence in the case proved that the accused had committed the offence in question, which constitutes a crime of a significant degree of social danger." (" Zebrany materiał dowodowy uzasadnił , i ż podejrzany dopuścił się zarzucanego mu czynu , który jest zbrodnią o znacznym stopniu społecznego niebezpieczeństwa ").

21 . On the first day of his detention the applicant was placed in the internal medicine department of the prison hospital. Upon his admission he underwent the medical examination which allowed to establish that he was suffering from cardiovascular insufficiency, had been taking relevant medication and that he had chronic constriction of the oesophagus. The applicant had been operated on in connection with the latter ailment in 1963, but the operation proved ineffective. Apparently shortly after the arrest the applicant, who could not eat prison food, was fed by an intravenous drip on a continuous basis. He received about 130 drips.

22 . On 2 September 1994 the Warszawa-Wola District Prosecutor, acting in pursuance of Article 176 of the Code of Criminal Procedure, ordered the applicant's psychiatric examination to establish whether he could be held criminally responsible, and whether his remaining at liberty would pose a threat to legal order.

23 . On 5 September 1994 the Warszawa-Wola District Prosecutor requested the Warszawa-Mokotów prison governor to have the applicant examined by a medical panel in order to establish whether his detention was compatible with his condition.

24 . On 8 September 1994 the applicant underwent a psychiatric examination by a psychiatrist from the forensic psychiatry department of the prison hospital. The applicant had thirty minutes of conversation with a psychiatrist who stated in her report that he suffered from an advanced paranoiac reaction with a strong affective component. Thus, he could not be held criminally responsible. His state warranted the opinion that he posed a threat to legal order and he should therefore be committed to a psychiatric hospital.

25 . On 16 September 1994 a medical panel, having examined the applicant, stated that given his age and health condition he was not fit for detention.

26 . On 20 September 1994 the Warsaw- Wola District Prosecutor discontinued the criminal proceedings against the applicant, finding that he was not criminally responsible on psychiatric grounds. The Prosecutor relied in this respect on a psychiatric expert opinion of an undetermined date, apparently that of 8 September. It was established that on 31 August at 1 p.m. the applicant had come to the office of J.P. and demanded that the 1981 monument be given back to him. He had threatened to go on hunger strike and had shot in the manager's direction with a gas pistol. The manager had escaped from his office and brought several employees of the cemetery to his secretariat. The applicant had remained in the office. Subsequently he had twice fired a " Parabellum " gun, which had been in his possession since at least 1939, through the glass door between the office and the secretariat. One bullet had slightly wounded R.S. and the other one had hit the doorframe. The management of the cemetery had called an antiterrorist police team who came to overpower the applicant and he was placed in custody. The Prosecutor decided to file a request with the court for the applicant's psychiatric internment. However, pursuant to Article 223 of the Code of Criminal Procedure, the detention on remand was to be maintained until the present decision became final, pending the outcome of these proceedings. The documents relating to the history of the monument and the applicant's involvement therein were to be transmitted to the court dealing with the request for psychiatric internment.  The prosecutor further decided, under Article 223 of the Code of Criminal Procedure,  to maintain the applicant in detention until a final judicial decision as to the applicant’s committal to a psychiatric hospital was given.

27 . On 29 September 1994 the Warsaw- Wola District Prosecutor, having regard to the medical opinion of 16 September 1994, requested that the medical panel decide whether, in view of his condition, the applicant could remain in the prison hospital until the proceedings concerning his committal to a psychiatric hospital came to an end.

28 . On 30 September 1994 the applicant's lawyer filed an appeal against the Public Prosecutor's decision of 20 September 1994 in respect of his eventual psychiatric internment. He first submitted that the circumstances of the case had to be assessed against the applicant's past life, his adherence to the cause of national independence and in the light of his motives, which were unquestionably noble. He submitted that the psychiatric expert opinion was too laconic and insufficient to establish with adequate clarity the applicant's mental state as it had been prepared on the basis only of one examination. It would have been necessary to put him into a hospital for observation to establish adequately his mental condition. The decision to file a request with the court for the applicant's psychiatric internment was at least premature as no reasonable efforts had been made to clarify the applicant's mental state with complete certainty and to establish whether he really posed a threat to legal order.

29 . On 3 October 1994 the applicant’s lawyer lodged with the Warsaw Regional Court an appeal against the Prosecutor’s decision in respect of preventive measure imposed on the applicant. It was argued that the applicant's advanced age and bad health rendered the detention particularly harsh for him, and that the preventive measure should be changed to a more lenient one.

30 . On 6 October 1994 the Warsaw Regional Court decided to adjourn the decision in respect of both appeals until a reply to the Prosecutor's request of 29 September 1994 was submitted.

31 . In a letter of 7 October 1994 the chief physician of the internal medicine department of the prison hospital informed the Prosecutor that the applicant remained in the hospital and could further remain there.

32 . On 2 November 1994 the Warsaw Regional Court dismissed the appeal as regards the applicant's continued detention. The Court admitted that the circumstances of the case were unusual in that the applicant was over eighty years old and in that the expert opinion of a medical panel had declared that he was unfit for detention. However, regard had to be had to the circumstances of the applicant's arrest from which it transpired that he could pose a serious threat to legal order. He had shown himself as being capable of exceptionally aggressive behaviour in connection with the monument issue, even to the point of threatening human life if his persistent efforts in this respect were frustrated. His repeated violent demeanour could not be excluded. Further to the first medical expert opinion, a chief physician of an internal ward of the prison hospital had informed the Prosecutor that the applicant was under treatment in the prison hospital and could remain there for further treatment. He further referred to the applicant's advanced age and bad health ("...wskazując jednocześnie na uwarunkowania związane z wiekiem i schorzeniami pacjenta ."). The Court relied on this opinion in deciding that the applicant's detention should be upheld as it served the purpose of the psychiatric internment, i.e. the applicant's isolation necessary in view of his possible violent behaviour, pending the outcome of relevant judicial proceedings.

33 . In a letter of 10 November 1994 the applicant's daughter requested the Warsaw- Wola District Prosecutor to examine the applicant's appeal against the decision to discontinue the criminal proceedings.

34 . In a letter submitted on 16 November 1994 the applicant's lawyer drew the attention of the Warsaw Regional Prosecutor to the change in the conduct of the applicant who had realised that his behaviour on 31 August 1994 had been inappropriate. He requested that the applicant should undergo a further psychiatric examination, in particular in order to establish that the decision on the discontinuation of the proceedings was premature.

35 . On 21 November 1994 the medical panel of the Warsaw- Mokotów prison hospital issued an opinion that the applicant should be released as his condition necessitated specialised psychiatric treatment.

36 . On 24 November 1994 the Warsaw- Wola Public Prosecutor filed a request with the Warsaw Regional Court to have the applicant placed in a mental hospital. On the same day the Warsaw Regional Public Prosecutor upheld the decision to discontinue the criminal proceedings against the applicant in view of his mental condition, relying on the psychiatric opinion of 8 September 1994, according to which the applicant, at the time of the commission of the offence, had not had control over his acts and could not recognise their consequences.  It was further argued that further psychiatric examination was not called for, as, following the case-law of the Supreme Court, the necessity of a comprehensive psychiatric examination of suspects did not necessarily warrant a hospital observation in each and every case, if such observation was not required by psychiatrists.

37 . On 25 November 1994 the same Prosecutor decided to release the applicant from detention on remand, considering that the grounds for his detention on remand had ceased to exist. The applicant was released on the same day.

38 . On 14 December 1994 the Warsaw- Mokotów prison hospital issued a medical certificate. It stated that the applicant suffered from chronic constriction of the oesophagus, from a mild form of hepatitis due to cholelithiasis and from cardiomyopathy . It was stated in the certificate that the applicant was not fit for detention and that he should undergo a further hospital treatment since his condition required constant medical care. A half-liquid diet was necessary for him.

39 . On 22 December 1994 the Warsaw Regional Court held a hearing in the proceedings relating to the psychiatric detention and decided to order a second psychiatric opinion.

40 . The Gdańsk District Court summoned the applicant to undergo a psychiatric examination on 27 February 1995. The applicant failed to comply with the summons.

41 . On 17 May 1995 the police took the applicant to a psychiatric hospital for examination. On 31 May 1995 the expert opinion was prepared.

42 . The dates of further hearings in the psychiatric internment proceedings were fixed for 31 August and 30 October 1995.

43 . On 26 February 1996 the Warsaw Regional Court heard the psychiatrists who had examined the applicant on 17 May 1995 and dismissed the Public Prosecutor's request that the applicant be placed in psychiatric internment. The Court relied on the expert opinion of 31 May 1995 in which the psychiatrists had stated that the applicant suffered from a psychoorganic dementive syndrome with a paranoic component, but was not dangerous. The Court also relied on the evidence submitted at the hearing by the psychiatrists who further stressed that in the applicant's bad physical condition the placement in a psychiatric hospital would be harmful and would not serve any purpose. The applicant lodged an appeal, stating that he did not agree with the decision and that he felt seriously wronged by the proceedings as a whole.

44 . On 16 April 1996 the Warsaw Court of Appeal refused to entertain the appeal on the ground that in principle an appeal lay only against those decisions which were to the appellant's detriment. The Prosecutor's request for the applicant's psychiatric internment having been dismissed, the applicant had no legal interest in lodging the appeal.

B. Relevant domestic law

45 . Article 99 of the Criminal Code, as it stood at the material time, provided:

:

"If it has been established that a person has committed an offence in a state of mental disorder [excluding his criminal responsibility], and his remaining at liberty would entail a serious danger to the legal order, the Court shall commit him to a mental hospital or another appropriate institution."

46 . The Polish Code of Criminal Procedure, as applicable at the material time, listed as preventive measures, inter alia , detention on remand, bail and police supervision.

47 . Article 209 of the Code of Criminal Procedure read:

"Preventive measures may be imposed in order to secure the due course of proceedings if the evidence against the accused sufficiently justifies the opinion that he has committed a criminal offence."

48 . Article 213 of the Code of Criminal Procedure provided:

“1. A preventive measure (including detention on remand) shall be immediately quashed or altered, if the basis therefor has ceased to exist or new circumstances have arisen which justify quashing or replacing a given measure with a more or less severe one.”

49 . Article 217 of the Code provided that a person could be held in detention on remand if there were serious grounds for believing that he or she would abscond, in particular when he or she did not have a permanent address or his or her identity could not be established; or if there were serious grounds for believing that there was a risk of collusion or that an accused would otherwise jeopardise criminal proceedings; or if an accused was charged with an offence of a particular seriousness.

50 . Pursuant to Article 218 of the Code, if there were no special considerations to the contrary, detention on remand should not be imposed if it involved danger to life or limb or entailed particular hardship for a suspect or his family.

51 . Article 223 of the Code of Criminal Procedure provided that if the criminal proceedings were discontinued on the grounds of the suspect's mental condition, the detention on remand could be maintained until a decision was taken as to preventive measures, inter alia psychiatric detention.

52 . Article 14.1 of the Code of Execution of Sentences provided that any decision of the prison administration as regards the execution of a sentence or of detention on remand could be appealed against to a court on the ground that it was not in accordance with the law.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

53 . The Commission has declared admissible the applicant’s complaints that:

- in view of his age and bad health he should not have been detained,

- the treatment which he received in prison caused him serious suffering and that his health severely deteriorated as a result,

- that his detention on remand was unjustified.

B. Points at issue

54 . The Commission must accordingly examine:

- whether there has been a violation of Article 3 of the Convention,

- whether there has been a violation of Article 5 para. 1 of the Convention in respect of his detention from 31 August to 20 September 1994,

- whether there has been a violation of Article 5 para. 1 of the Convention in respect of his detention from 21 September to 24 November 1994.

C. As regards Article 3 of the Convention

55 . Article 3 of the Convention reads:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

56 . The applicant submits that in view of his age and frailty he should not have been detained. His condition was known to the prison authorities and was confirmed upon his admission to the prison hospital. He could not take prison food and as a result, he was steadily losing weight and strength. He was then put on an intravenous drip for two weeks. Afterwards this was discontinued to allow his veins to heal. At that time he became so feeble that he had difficulties in walking and once fainted. Thereafter he was put on a drip again which was being administered for several days from 7 a.m. to 2 p.m. This was discontinued again as inflammation of veins did not heal. This entailed his aggravated fragility which again resulted in re-administration of a series of drips, regardless of the conditions of his veins. He submits that the doctors were aware of his condition and that he should have been released as his health was steadily deteriorating not only because of his illness but as a result of treatment administered to him. Had he not been put in detention, there would have been no need for the treatment. The Government disregard the fact that the need for the treatment arose exclusively as a result of his imprisonment.

57 . The applicant further submits that it is true that he acquired the status of a fully disabled person only after his release. However, it was his stay in prison which led to the deterioration of his health.

58 . The Government submit that the applicant was arrested immediately after he had committed a serious crime of attempted manslaughter, which, under the applicable provisions of the Polish Criminal Code as it stood at that time, carried a risk of sentence of imprisonment of not less than eight years. His age cannot be regarded as a factor, which under Polish law would exonerate him from criminal responsibility, or prevent him from being detained on remand. It is true that in practice detention on remand is seldom imposed on aged persons, but, on the other hand, the authorities resorted to it in cases involving a suspicion of serious crime having been committed. However, in such situations efforts are normally made to ensure conditions of detention appropriate to the age of the detainee.

59 . The Government further argue that at the relevant time the applicant did not have the legal status of a fully disabled person as he obtained such status only by virtue of a decision of the Disability and Employment Medical Panel of 21 September 1995. It was stated in the decision that the applicant’s full disability had only commenced in June 1995. Thus, he did not have such status when he was detained on remand from September until November 1994. In any event, under Polish law even full disability as such does not prevent the authorities from imposing detention on remand.

60 . The Government submit that throughout his detention on remand the applicant remained in the prison hospital, where various forms of medication were administered to him, including cardiac and analgesic medicines. In view of a constriction of the oesophagus he was put on a liquid diet. As the applicant did not comply with medical recommendations to drink more liquids, he was put on intravenous drip. These procedures were discontinued on 17 October 1994 upon the applicant's request and in view of the symptoms of inflammation of veins. On 14 November 1994 this treatment was resumed as it was established that the applicant’s condition necessitated it. The medical treatment administered to the applicant cannot be regarded as torture or degrading treatment. On the whole, the treatment which the applicant received was of a standard equal to that which he would have been offered in a public hospital.

61 . The Government further acknowledge that on 16 September 1994 a medical panel of the hospital of the Warsaw Regional Detention Centre stated that given his age and condition he was not fit for detention and that he should undergo a gastrological operation. Immediately after being served with this opinion, the Warsaw- Wola District Prosecutor requested the governor of the Centre to inform him whether the applicant could remain in detention until a judicial decision was taken in respect of his committal to a psychiatric hospital. In view of information contained in a letter of 7 October 1994 of the chief physician of the internal medicine department of the prison hospital that the applicant could be treated there, the applicant’s detention was not lifted. The Government stress that the applicant could undergo an operation in the prison hospital, but that he refused to consent to it. The Government emphasise that it clearly follows from the applicant's medical records that his continued detention was not incompatible with his condition. They conclude that the applicant’s detention was not in breach of Article 3 of the Convention.

62 . The Commission firstly recalls that, according to the Convention organs’ case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention (see Eur. Court HR, the Ireland v. the United Kingdom judgment of 18 January 1979, Series A no. 25, p. 65, para. 162). It also recalls that lack of medical treatment may raise an issue under Article 3 of the Convention. In such cases, the factors to be considered are the seriousness of the applicant's condition, the quality of the medical care he receives and whether his state of health is compatible with detention. Also, there remains the State's obligation to maintain a continuous review of the detention arrangements employed with a view to ensuring the health and well-being of all prisoners, having due regard to the ordinary and reasonable requirements of imprisonment (see Bonnechaux v. Switzerland, No. 8224/78, Comm. Report 5.12.79, D.R. 18, pp. 100 and 148; Lukanov v. Bulgaria, Eur. Comm. HR, No. 21915/93, Dec. 12.1.95, D.R. 80-A, pp. 128-130).

63. The Commission first notes the Government’s argument that under applicable Polish law, neither an advanced age nor a legally recognised disability could exonerate the applicant from criminal responsibility or prevent him from being detained on remand.

64. The Commission further observes that immediately after his arrest the applicant was placed in the internal medicine department of the prison hospital, and appropriate steps were taken by the prison medical services in order to establish his condition. As a result of an examination it was found that he suffered from cardiovascular insufficiency, had been taking relevant medication and had a chronic constriction of the oesophagus. Subsequently, as he could not eat prison food, he was put on an intravenous drip. Throughout his detention on remand he remained in hospital and was receiving medical treatment.

65. The Commission observes that the prison authorities monitored the applicant’s condition throughout his detention and took measures to ensure that he was maintained in good condition. There is no indication of negligence on the part of the medical services in this respect. As a consequence, the Commission finds that the treatment complained of did not disclose a breach of Article 3 of the Convention.

CONCLUSION

66. The Commission concludes, by 16 votes to 12, that in the present case there has been no violation of Article 3 of the Convention.

D. As regards Article 5 para. 1 (c) of the Convention

67 . Article 5 para. 1 (c) of the Convention 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:

...

c. the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

…”

68 . As regards the period from 31 August 1994 to 20 September 1994, t he applicant submits that in view of his bad health he should not have been detained. He insists that he had not intended to kill anyone, but only to have the monument restored to its rightful place. His reaction during the events of 31 August 1994 was justified by the refusal of the administration of the cemetery to talk to him and by the use of violence towards him. Thus, there was no sound basis for the suspicion of manslaughter. The authorities entirely disregarded that his detention was incompatible with his bad health and that it entailed particular hardship for him.

69 . The Government submit, in respect of the same period, that the applicant's detention on remand was justified by the particular circumstances of the case, i.e. the fact that he had been arrested after commission of attempted manslaughter by firearms. These circumstances were tantamount to "special considerations" within the meaning of Article 218 of the Code of Criminal Procedure, which militated for the imposition of the detention. The Government further state that throughout his detention the applicant verbally stated that he intended to attain his purpose, i.e. to have the monument back, by all possible means. They finally maintain that the applicant’s detention in this period served the purpose of isolation of a person of unsound mind posing a threat to legal order within the meaning of Article 99 of the Criminal Code.

70. The Commission recalls that the expressions “lawful” and “in accordance with a procedure prescribed by law” in Article 5 para. 1 essentially refer back to national law and state the obligation to conform to the substantive and procedural rules thereof; but that they require in addition that any deprivation of liberty should be in conformity with the purpose of Article 5, which is to prevent persons from being deprived of their liberty in an arbitrary fashion (see, Eur. Court HR, the Erkalo v. the Netherlands judgment of 2 September 1998, Reports of Judgments and Decisions 1998-VI, p. 2477, para. 52).

71. The Commission recalls that Article 5 para. 1 (c) authorises arrest or detention for the purpose of bringing “before the competent legal authority” on the mere grounds of the existence of “reasonable suspicion” that the person arrested “has committed an offence” and it is clear that the persistence of such suspicion is a condition for the validity of the continued detention of the person concerned (see Eur. Court HR, the Stögmuller v. Austria judgment of 10 November 1969, Series A no.9, p. 40, para. 4 ; the Brogan and others v. the United Kingdom judgment of 29 November 1988, Series A no. 145-B, p. 29, paras. 51-53).

72. The Commission further recalls that having a “reasonable suspicion” presupposes the existence of facts which would satisfy an objective observer that the person concerned may have committed the offence. What may be regarded as “reasonable” will depend upon all the circumstances (Eur. Court HR, the Fox, Campbell and Hartley v. the United Kingdom judgment of 30 August 1990, Series A no. 182, p. 16, para. 32) .

73. In the present case, the Commission notes that the applicant was arrested and remanded in custody having been apprehended following an altercation at the office of the manager of the Warsaw-Powązki cemetery. It notes further that the applicant on no occasion denied the facts which had led to his arrest, but challenged the reasoning according to which these facts could be qualified as a criminal offence. Furthermore, the Warsaw- Wola District Prosecutor, in its decision of 1 September 1994 to remand the applicant in custody, referred to the serious indication of the applicant’s guilt, based on the prima facie evidence against him.

74. The Commission observes that on 31 August 1994 the applicant provoked an altercation in the office of the deputy manager of the Warsaw- Pow ą zki cemetery in the course of which he used gas pistol and firearms, wounding slightly one person. The Commission considers that these facts suffice to satisfy the requirement of a “reasonable suspicion” in the sense of Article 5 para. 1 (c) of the Convention. In this respect, the Commission stresses that there can be no question of regarding arrest or detention on remand as being justified only when the reality and the nature of the offences charged have been proved, this being the purpose of the preliminary investigations and the trial which detention intends to facilitate (see Eur. Court HR, Murray v. the United Kingdom judgment of 28 October 1994, Series A no. 300-A, p. 27, para. 55).  The Commission further accepts the Government’s argument that the particular circumstances of the case, i.e. the fact that the applicant was arrested after commission of attempted manslaughter of firearms, were tantamount to “special considerations” within the meaning of Article 218 of the Code of Criminal Procedure such as to justify the imposition of the detention. Consequently, the Commission concludes that the facts of the case do not disclose any appearance of a violation of the Convention.

CONCLUSION

75. The Commission concludes, by 22 votes to 6, that in the present case there has been no violation of Article 5 para. 1 of the Convention in respect of the applicant’s detention from 31 August to 20 September 1994.

E. As regards Article 5 para. 1 (e) of the Convention

76. Article 5 para. 1 (e) of the Convention 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 for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

…”

77. As regards his detention from 21 September 1994 to 24 November 1994, the applicant submits that he was not suffering from any mental illness and thus his detention insofar as it was decided on that basis was unjustified. He submits that his alleged mental illness was established after thirty minutes of conversation with the psychiatrist, which cannot reasonably be regarded as a sufficient basis for such finding. The applicant maintains that his detention during this period was not justified by any of the grounds quoted in Article 5 para. 1 of the Convention.

78. The Government submit that the decisions of the authorities were lawful under Article 223 of the Code of Criminal Procedure which provide that detention on remand could be maintained in respect of a person against whom criminal proceedings had been discontinued on the grounds of his or her mental illness until a decision as to the committal to a psychiatric hospital is taken. They conclude that the applicant’s detention throughout that period was in compliance with the Convention.

79. The Commission recalls that the aim of Article 5 of the Convention is to protect the individual against arbitrariness (see Eur. Court HR, Koendjbiharie v. the Netherlands judgment of 25 October 1990, Series A no. 185, p. 40, para. 27). In its Winterwerp judgment of 24 October 1979, the Court stated 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 par. 1 (e): except in emergency cases, the individual concerned must be reliably shown to be of unsound mind, that is to say, a true mental disorder must be established before 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 (Eur. Court HR, Winterwerp v. the Netherlands judgment of 24 October 1979, Series A no. 33, p. 18, para. 39).

80. The Commission observes that the criminal proceedings against the applicant were discontinued by the first-instance prosecutor, as it had been established that the applicant could not be criminally responsible on psychiatric grounds. On the same date the prosecutor decided to lodge a request with the court for the applicant’s committal to a psychiatric hospital under Article 99 of the Criminal Code. However, pursuant to Article 233 of the Code of Criminal Procedure, the detention on remand was to be maintained, pending the outcome of these proceedings.

81. The Commission has no ground on which to put into question the compatibility with Polish law of the applicant’s detention during this time, in particular as Article 233 of the Code of Criminal Procedure expressly allowed it. However, it should be examined whether this detention fell into the category quoted in Article 5 para. 1 (e) of the Convention.

82. The Commission considers that t he deprivation of liberty during this period was not related to any investigation pursued in respect of any criminal act, as the investigation against the applicant had been discontinued by virtue of the decision of 20 September 1994. It had been designed rather to maintain the applicant in detention until the prosecuting authorities obtained the judicial decision on the applicant’s committal to a mental hospital under Article 99 of the Criminal Code. The Commission also notes that the question of the existence of a mental disorder actually requiring the applicant’s committal to a mental hospital, was an issue which was to be determined at a later stage, in the proceedings under that provision of the Criminal Code.

83. The Commission observes that the applicant was examined by a psychiatrist. The psychiatrist, after thirty minutes of conversation, established in the medical opinion of 8 September 1994 that the applicant suffered from an advanced paranoiac reaction with a strong affective component, and concluded that his state warranted the opinion that he posed a threat to legal order and should therefore be committed to a psychiatric hospital. However, the Commission considers that in view of the deterioration of the applicant's health during his detention, referred to above, the assumption, which apparently served as a basis for his continued detention, that his mental disorder remained such as to pose a threat to public order, does not appear well-founded. The Government have not adduced any evidence capable of showing that the applicant's condition subsisted throughout this period to such an extent as to justify his continued detention.

84. The Commission’s attention has further been drawn to the fact that no steps were taken by the prosecuting authorities during the relevant period in order to institute judicial proceedings for the purpose of obtaining such a decision. In particular, it should be stressed that no decisions were taken aiming at obtaining any medical evidence, which would allow to sufficiently support the motion for the applicant’s psychiatric detention. The Commission noted in this respect that, in the proceedings relating to the applicant’s committal, on 22 December 1994 the Warsaw Regional Court decided to order a second psychiatric opinion.

85. The Commission finally observes that the prosecutor lodged a request for an order committing the applicant to a psychiatric hospital with the Warsaw Regional Court on 24 November 1994. The applicant was released from detention on 25 November 1994. It is true that he remained in the prison hospital throughout this time, but it must be borne in mind that the treatment, which he received there, related only to his physical condition and that no psychiatric treatment was administered to him. Hence, his detention throughout this period was in fact un related to his mental condition. The Commission recalls here that, in principle, the detention of a person as a mental health patient will only be lawful for the purposes of Article 5 para. 1 (e) if effected in a hospital, clinic or other appropriate institution authorised for that purpose (Eur. Court HR, Ashingdane v. United Kingdom judgment of 28 May 1985, Series A no. 93, p. 40, para. 27).

86. Having regard to the foregoing considerations, the Commission is of the opinion that the applicant's confinement from 21 September 1994 to 24 November 1994, although it was not contrary to Polish law as it stood at the material time, could not be regarded as detention of a person of "unsound mind" which was "lawful", within the autonomous meaning of these notions in Article 5 para. 1 (e) of the Convention.

CONCLUSION

87. The Commission concludes, by 19 votes to 9, that in the present case there has been a violation of Article 5 para. 1 (e) of the Convention in respect of the applicant’s detention from 21 September to 25 November 1994.

F. Recapitulation

88. The Commission concludes, by 16 votes to 12, that in the present case there has been no violation of Article 3 of the Convention (para. 66).

89. The Commission concludes, by 22 votes to 6, that in the present case there has been no violation of Article 5 para. 1 of the Convention in respect of the applicant’s detention from 31 August to 20 September 1994. (para. 75).

90. The Commission concludes, by 19 votes to 9, that in the present case there has been a violation of Article 5 para. 1 of the Convention in respect of the applicant’s detention from 21 September to 25 November 1994 (para. 87) .

M.-T. SCHOEPFER S. TRECHSEL

Secretary President

to the Commission of the Commission

(Or. English)

DISSENTING OPINION OF MR M. A.  NOWICKI

AS REGARDS ARTICLE 3 OF THE CONVENTION, JOINED BY MM C.ROZAKIS, J.-C. GEUS, I. CABRAL BARRETO,  K. HERNDL, E.ALKEMA, M. VILA AMIGÓ AND MS M.HION

We are unable to agree with the conclusions of the majority in the present case for the following reasons.

The majority consider that the applicant’s detention on remand and the conditions thereof did not amount to a treatment which should be deemed contrary to Article 3 of the Convention.

Whereas we accept the Government’s argument that the applicant’s age could not as such be regarded as a factor which would exonerate him from criminal responsibility or prevent him from being put in detention, we find it necessary to emphasise that the applicant's condition at his arrest was so grave as to warrant an immediate hospitalisation. He remained in the prison hospital throughout the entire period of his detention. It was established upon his admission that he suffered from cardiovascular insufficiency, had been taking relevant medication and that he had chronic constriction of oesophagus. His condition necessitated that he be kept on a half-liquid diet as he could not keep the food served in prison. Consequently, the applicant was fed by intravenous drip on a continuous basis. He received about one hundred thirty drips. As a result of drips having been administered, painful inflammation of veins developed.

We further take note of the Government’s submission that the applicant’s medical records confirm that his condition was not incompatible with his continued detention. Nevertheless, the Government have not submitted documents or detailed arguments in support of this submission.  What is more, this submission is incompatible with the opinion given by the medical panel of 16 September 1994, that, given his age and bad health, the applicant was not fit for detention.  We have further noted that, in a letter to the prosecutor of 7 October 1994, the chief physician of the internal medicine department at the prison hospital stated that the applicant could remain in detention and continue his treatment in the prison hospital. The Warsaw Regional Court, in its decision of 2 November 1994 by which it dismissed the applicant's appeal against the decision to maintain his detention, referred to the applicant’s advanced age and bad health. However, the court dismissed his request for release, relying principally on the medical opinion of 7 October 1994. Our attention has in particular been drawn to the fact that the court did not explain, in the written grounds of its decision, reasons for which it was this medical opinion that prevailed, whereas that of 16 September 1994 was completely disregarded.

We also had also regard to the contents of the medical certificate of 14 December 1994, issued on the applicant’s request by the Warsaw- Mokotów prison hospital after his release. It was stated in this certificate that the applicant was not fit for detention and that he should undergo a further hospital treatment since his condition required constant medical care. In his submissions to the Commission the applicant emphasised that it was his detention which led to the deterioration of his health. He has also stated that before his detention his condition was satisfactory and did not require constant medical care. Therefore we conclude that, in the light of the medical certificate referred to above, the applicant’s argument that his detention resulted in the deterioration of his health cannot be dismissed.

It is further to be stressed that, at the time of his arrest, the applicant was recognised as being partly disabled and later, in June 1995, he acquired legally recognised status of a fully disabled person. We acknowledge that the applicant did not adduce detailed medical evidence to show the causal link between his deprivation of liberty and the subsequent acquisition by him of the status of a fully disabled person. Nonetheless, in particular in the light of our above consideration concerning the applicant’s condition at the time of his release, we are of the view that it cannot be ruled out that his detention contributed to the deterioration of his health such as led later to the official acknowledgement of his full disability,

We have, finally, had regard to the applicant’s submission that in view of his age, frailty and bad health, his detention was highly traumatic to him. We thus conclude that the invasive and long-term medical treatment in the prison hospital, in particular the protracted feeding by intravenous drips and its consequences in the form of inflammation of veins, caused him acute suffering, such as to fall within the scope of Article 3 of the Convention.

( Or. English)

DISSENTING OPINION OF MR M.A. NOWICKI

AS REGARDS ARTICLE 5 PARA. 1 ( C ) OF THE CONVENTION,

JOINED BY MM J.-C. GEUS, I. CABRAL BARRETO, M. VILA AMIGÓ

AND MS. HION

We cannot find that, in the circumstances of the case, there has been no violation of Article 5 para. 1 ( c) of the Convention. Our reasons for not agreeing with the majority are as follows:

When considering whether the arrest and detention of the applicant was carried out in accordance with Polish law, we recall that it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law. However, since failure to comply with domestic law entails a breach of Article 5 para. 1, the Commission can and should exercise a certain power of review in this matter (see Eur. Court HR, the Benham v. the United Kingdom judgment of 10 June 1996, Reports 1996-III, p. 753, para. 41). Under the Polish Code of Criminal Procedure as it stood at the material time, the provisions governing detention on remand set out the margin of discretion as to maintaining a specific preventive measure. Detention on remand was regarded as the most extreme measure among the preventive measures. Moreover, the Code, in its Article 213, laid down the principle that it should not be imposed or maintained if more lenient measures were adequate and sufficient. We have further taken note of the contents of Article 218 of the Code of Criminal Procedure as applicable at the material time. Pursuant to this Article, detention on remand should not be imposed if it involved danger to life or limb, or entailed particular hardship for a suspect or his family. The domestic courts were thus obliged to consider ex officio whether such circumstances arose in a given individual case.

In the present case, the domestic authorities, justifying the applicant’s detention during the period concerned, invoked only the indication, supported by the evidence, that the applicant had committed a serious offence (see para. 20 of the Report). Also, this decision was, in our view, curiously succinct.  The Government argue that the seriousness of the offence with which the applicant was charged was tantamount to “special considerations” within the meaning of Article 218 of the Code of Criminal Procedure, which militated for the imposition of the detention. However, we were struck by the fact that during the period under examination the domestic authorities in fact failed to examine the applicant’s detention under that provision of the Code. Consequently, they did not take into consideration any circumstances relevant for the assessment of the applicant’s detention under Article 218 of the Convention, either in respect of a possible danger to life or limb, or of particular hardship that the detention might have entailed for the detainee, or as regards any “special considerations” within the meaning of the provision, referred to by the Government, of such importance as to justify the detention.

Taking into account the arguments advanced in the dissenting opinion of those who were in the minority as regards the violation of Article 3 of the Convention, and also considering that the authorities failed to assess the applicant’s detention under Article 218 of the Code of Criminal Procedure in so far as it allowed for the appraisal whether the detention on remand caused him a particular hardship, we conclude that the applicant’s detention cannot be said to have been “lawful” within the meaning of Article 5 para. 1 (c) of the Convention.

(Or. English)

PARTLY DISSENTING OPINION

OF MS J.LIDDY AND MR S.TRECHSEL, JOINED BY MM E. BUSUTTIL, I. BÉKÉS, K. HENRDL AND A. ARABADJIEV

As regards Article 5 para. 1 (e) of the Convention .

On 31 August 1994 the applicant, then over 80 years of age, used a firearm in a protest about the placing and inscription of a monument. An employee of a cemetery was wounded and the applicant also tried to commit suicide. The applicant was immediately arrested  on suspicion , inter alia , of causing damage to life and limb and remained in custody in the internal medicine department of the prison hospital where he remained until his release on 25 November 1994.

On 8 September 1994 a psychiatrist examined the applicant and concluded that he suffered from an advanced paranoiac reaction with a strong affective component.

Until 20 September the applicant was detained for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence, as permitted by Article 5 para. 1 (c). On that date the criminal proceedings were discontinued by the District Prosecutor. The domestic legal basis for the ensuing detention was Article 233 of the Code of Criminal Procedure permitting continued detention on remand until a decision is taken as to preventive measures e.g., psychiatric detention. The Convention issue is as to whether this continued detention was nonetheless „lawful” within the autonomous  meaning of Article 5 para. 1 (c).

Between 20 September 1994 and 25 November 1994 it was, apparently, the Prosecutor’s intention to keep the applicant in the prison hospital until a decision could be made by the Warsaw Regional Court as to his placement in a mental hospital. On the latter date he decided that his continued detention in the prison hospital was not necessary. In the interim, by 16 November 1994, the applicant had changed his conduct and recognised the inappropriateness of his actions leading to his arrest. Ancillary proceedings, including a challenge to the applicant’s continued detention, were considered by the Warsaw Regional Court on 6 October 1994 and 2 November 1994.

The Court laid down in the Winterwerp Judgment of 24 October 1979 (Series A Vol. 33, para. 39) the criteria for establishing whether the detention of a person thought to be of unsound mind is „lawful” within the meaning of Article 5 para. 1 (e) or, on the contrary, arbitrary:

“[E] xcept in emergency cases, the individual concerned should not be deprived of his liberty unless he has been reliably shown to be of „unsound mind”. The very nature of what has to be established before the competent authority - that is, a true mental disorder - calls for objective medical expertise. Further, the mental disorder must be of a kind  or degree warranting compulsory confinement. What is more, the validity of continued confinement depends on the persistence of such a disorder.”

In the present case, the applicant was - on 8 September 1994 - reliably shown to be of unsound mind. The circumstances of his arrest and prosecution indicate that his mental state warranted compulsory confinement until a Court could rule on whether long-term treatment in detention was called for. When the Prosecutor decided, before the competent court had ruled, that his continued confinement in a prison hospital was not necessary, the applicant was immediately released. There is no indication of arbitrariness in any of these elements.

In reaching a contrary view as to the lawfulness of the applicant’s detention in this period, the majority rely, at paragraphs 86 - 89 of the report, on a number of considerations:

(a) The majority note that the Warsaw Regional Court had not yet ruled on the question of detention in a mental hospital. This is true but that Court was not inactive during the period in question.

(b) The majority consider that because the applicant’s physical health had deteriorated the assumption that he posed a threat to public order was not well-founded and that it was for the Government to produce fresh evidence as to his mental state. To that we would say that a fresh psychiatric examination was in fact ordered by the Warsaw Regional Court, on 22 December 1994. Moreover, there can be little doubt that the applicant’s conduct on 31 August 1994 was sufficiently alarming to alert the authorities to their positive obligation to protect the right to life of both the applicant and of others (cf. mutatis mutandis Osman v. United Kingdom judgment of 28 October 1998, Reports on Judgments and Decisions 1998-VIII). Moreover, it does not appear that the applicant had insight into the inappropriateness of his actions until 16 November 1994 or shortly beforehand.

(c) The majority consider that the Prosecutor was inactive throughout the period in pursuing the relevant court proceedings. It is true that a period of two months is rather lengthy for an individual to be detained, even in an emergency situation, without any steps being taken to seise the relevant Court, and that such lachesse could entail arbitrariness in other circumstances. In the present case, however, the prosecutor took steps to ascertain medical advice as to the applicant’s fitness for detention in the prison hospital; he dealt with appeals to the Warsaw Regional Court against his decision to seek the applicant’s psychiatric internment  and to detain him in the prison hospital; and he gave consideration as to whether a fresh psychiatric examination was necessary before filing his formal request to have the applicant placed in a mental hospital. Moreover, he was in receipt of a judgment from the Warsaw Regional Court on 2 November 1994 that the applicant’s continued detention in the prison hospital should be upheld as it served the purpose of psychiatric internment, i.e., the applicant’s isolation was necessary in view of his possible violent behaviour, pending the outcome of relevant judicial proceedings.

(d) The majority consider that the treatment which the applicant received in the prison hospital related only to his physical condition and that no psychiatric treatment was administered to him. We note that the only complaint under Article 3 relates to the state of the applicant’s physical health and that there is no evidence that he was denied any visits, medication or other treatment he may have required on a voluntary basis by reason of his mental state. The prison hospital had a forensic psychiatry department which provided the psychiatrist who examined him on 8 September 1994.

For all these reasons we are unable to share the opinion of the majority and have voted against a violation of Article 5 para. 1 (e) in respect of the applicant’s detention from 21 September 1994.

[1] The term “former” refers to the text of the Convention before the entry into force of Protocol No. 11 on 1 November 1998.