Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 27580/95

by Marian JEZNACH

against Poland

The European Commission of Human Rights sitting in private on

19 January 1998, the following members being present:

MM S. TRECHSEL, President

J.-C. GEUS

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

Mrs G.H. THUNE

MM H. DANELIUS

F. MARTINEZ

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

Mr M. de SALVIA, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 2 May 1995 by

Marian Jeznach against Poland and registered on 12 June 1995 under file

No. 27580/95

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

18 February 1997 and the observations in reply submitted by the

applicant on 12 April 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Polish citizen born in 1913, is retired and

lives in Gdansk.

The facts of the case, as submitted by the parties, may be

summarised as follows:

Particular circumstances of the case

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-Pow*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.

In 1989 the applicant filed a civil action with the Warsaw

District Court (S*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 (S*d

Apelacyjny) upheld this judgment. On 22 July 1993 the Minister of

Justice refused leave for an extraordinary appeal against this

judgment.

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.

On 31 August 1994 the applicant came to the office of J.P.,

a deputy manager of the Warsaw-Pow*zki 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. Two next shots were

fired when the employees tried to disarm the applicant. 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.

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 material dowodowy uzasadnil, iz podejrzany dopuscil si*

zarzucanego mu czynu, który jest zbrodni* o znacznym stopniu

spolecznego niebezpieczenstwa").

In the prison the applicant was apparently placed on the very

first day in the internal medicine ward of the prison hospital.

It transpired from the examination upon his admission that he suffered

from cardiovascular insufficiency, had been taking relevant medication

and that he had chronic constriction of the oesophagus. 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.

On 2 September 1994 the Warsaw-Wola District Prosecutor ordered

the applicant's psychiatric examination to establish whether he could

be held criminally responsible.

On 5 September 1994 the Warsaw-Wola District Prosecutor requested

the Warsaw-Mokotów prison governor to present the applicant to a

medical panel in order to establish whether the detention was

compatible with his condition.

On 8 September 1994 the applicant underwent a psychiatric

examination by a psychiatrist from the forensic psychiatry ward of the

prison hospital. He talked for 30 minutes with a psychiatrist who

stated in her report that he suffered from an advanced paranoic

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 interned in

a psychiatric hospital.

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.

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.

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 the applicant could remain in the prison

hospital until the proceedings concerning his psychiatric detention

came to an end.

On 30 September 1994 the applicant's lawyer filed an appeal

against the Public Prosecutor's decision of 20 September 1994, both as

regards the applicant's continued detention and 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 hospital observation to establish adequately

his mental condition. The applicant's advanced age and bad health

rendered the detention particularly harsh for him. The decision to

file a request 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 presented a danger to public order.

On 6 October 1994 the Warsaw Regional Court (S*d Wojewódzki)

decided to adjourn the decision as to the appeal until a reply to the

Public Prosecutor's request of 29 September 1994 was submitted.

In a letter of 7 October 1994 the chief physician of the internal

medicine ward of the prison hospital informed the Public Prosecutor

that the applicant remained in the hospital and could remain there

further.

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 present a serious threat to the 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 treated in the prison hospital and

could remain there for further treatment. He further referred to the

applicant's advanced age and bad health ("...wskazuj*c jednoczesnie na

uwarunkowania zwi*zane 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

proceedings.

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.

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

undergo a further psychiatric examination, in particular in order to

establish that the decision on the discontinuation of the proceedings

was premature.

On 21 November 1994 the medical panel of the Warsaw-Mokotów

prison hospital issued an opinion that the applicant should be released

as he required specialised psychiatric treatment.

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.

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.

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 further stated that

the applicant was not fit for detention and should be further treated

in a hospital. A half-liquid diet was necessary. The applicant should

be under constant medical care.

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.

The Gdansk District Court summoned the applicant to undergo

a psychiatric examination on 27 February 1995. The applicant failed

to comply with the summons.

On 17 May 1995 the police took the applicant to a psychiatric

hospital for examination. On 31 May 1995 the expert opinion was

prepared.

The dates of further hearings in the psychiatric internment

proceedings were fixed for 31 August and 30 October 1995.

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.

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.

Relevant domestic law

Article 99 of the Penal Code states:

:

"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."

Article 217 of the Code provides that a person may be held in

detention on remand if there are serious grounds for believing that he

or she will abscond, in particular when he or she does not have a

permanent address or his identity cannot be established; or if there

are serious grounds for believing that there is a risk of collusion or

that an accused will otherwise jeopardise criminal proceedings; or if

an accused has been charged with an offence of a particular

seriousness.

Pursuant to Article 218 of the Code, if there are no special

considerations to the contrary, detention on remand should not be

imposed if it involves danger to life or limb or entails particular

hardship for a suspect or his family.

Article 223 of the Code of Criminal Procedure provides that if

the criminal proceedings have been discontinued on the grounds of the

suspect's mental condition, the detention on remand can be maintained

until a decision is taken as to preventive measures, inter alia

psychiatric detention.

Article 14.1 of the Code of Execution of Sentences provides that

any decision of the prison administration as regards the execution of

a sentence or of detention on remand can be appealed against to the

court on the ground that it is not in accordance with the law.

COMPLAINTS

The applicant complains under Article 3 of the Convention that

his detention amounted to inhuman treatment as he was eighty years old

at the time of his arrest and suffered from serious illnesses as

confirmed by his status as a fully disabled person. His detention was

maintained despite the medical opinion that he was not fit for it due

to his bad health. He was hospitalised from the very first day of his

detention and fed by intravenous drip for the most part of this time.

He submits that the treatment he received in prison caused him serious

suffering. His condition severely and rapidly deteriorated as a result

of his detention.

The applicant complains under Article 5 para. 1 of the Convention

that his detention on remand was maintained since he was regarded as

being of unsound mind even though he was mentally fit. He further

complains that the authorities instituted the proceedings to put him

into psychiatric detention as a measure of political persecution.

He maintains that his arrest was unjustified as he was mentally fit and

not dangerous.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 2 May 1995 and registered on

12 June 1995.

On 21 October 1996 the Commission decided to communicate the

applicant's complaints concerning his detention to the respondent

Government.

The Government's written observations were submitted on

18 February 1997, after an extension of the time-limit fixed for that

purpose. The applicant replied on 12 April 1997.

THE LAW

1. The applicant complains under Article 3 (Art. 3) of the

Convention that his detention amounted to inhuman treatment as he was

eighty years old at the time of his arrest and suffered from serious

illnesses.

Article 3 (Art. 3) of the Convention provides:

"No one shall be subjected to torture or to inhuman or

degrading treatment or punishment."

a) The Government first submit that the applicant did not exhaust

relevant domestic remedies available to him under Polish law as he did

not lodge any complaints concerning the conditions of his detention

either to the prison administration or to the Public Prosecutor or to

the penitentiary court as provided for by Article 14.1 of the Code of

Execution of Penalties. This provision ensures a two-tiered judicial

review of any decisions taken by the prison administration. Thus, this

complaint should be declared inadmissible for non-exhaustion of

domestic remedies.

The applicant does not address this issue.

The Commission first notes that in the present case the

complaints under Articles 3 and 5 (Art. (Art. 3, 5) of the Convention

overlap as regards the very fact that detention on remand was imposed

on the applicant. The applicant resorted to the applicable remedies

as regards his detention on remand, indicating in his appeal of

30 September 1994 to the Warsaw Regional Court that in view of his age

and bad health his detention was particularly harsh for him. The

Commission further notes that one of the remedies referred to by the

Government, i.e. an appeal to the court against any decision of the

prison administration, can be lodged only on the ground that the

decision concerned is not in accordance with the law. The Commission

notes that the complaint under Article 3 (Art. 3) relates in its

remaining part to the medical care afforded to the applicant in the

prison hospital and to the suffering it caused him. This complaint

concerned only the factual aspects of the applicant's situation and

no question arose as to the lawfulness of the medical treatment

concerned. Therefore in the circumstances of the case the judicial

remedy referred to by the Government was not a relevant one. As

regards other remedies referred to by the Government, the Commission

considers that, even assuming that these remedies were relevant to the

complaint at issue, the particular circumstances of the applicant's

detention, in particular the gradual deterioration in his health, his

frailty and the fact that he was in a hospital throughout his

detention, constitute grounds exempting him from the obligation to

exhaust these remedies.

It follows that this complaint cannot be rejected for non-

exhaustion of domestic remedies.

b) The Government submit that the applicant was arrested immediately

after an attempted manslaughter. His age cannot be regarded as a

factor which would exonerate him from criminal responsibility, or

prevent him from being detained on remand. At the relevant time he 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, which stated that his

full disability had commenced in June 1995. In any event, under Polish

law even full disability as such does not prevent the authorities from

imposing detention on remand. Throughout his detention on remand the

applicant remained in the prison hospital, where various forms of

medication were administered to him. 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 these operations were

resumed in view of medical necessity of doing so. Consequently, they

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 civil hospital. It clearly

follows from the applicant's medical documents that his continued

detention was not incompatible with his condition. This complaint

should thus be declared manifestly ill-founded.

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 forces. 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 difficulty

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

readministration of a series of drips, regardless of the conditions of

his veins. He submits that his condition was known to the doctors 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.

The applicant further submits that it is true that he acquired

the status as a fully disabled person only after his release. However,

it was his stay in prison which led to the deterioration of his health.

The Commission considers that this complaint raises serious

issues of fact and law under the Convention the determination of which

should depend on an examination of the merits. It follows that this

part of the application cannot be dismissed as being manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention. No other ground for declaring it inadmissible has been

established.

2. The applicant complains under Article 5 (Art. 5) about his

detention.

Article 5 (Art. 5) of the Convention in its relevant part reads:

"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;...

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;"

The Government first concede that the applicant exhausted

domestic remedies as regards his detention.

As regards the period from 31 August 1994 to 20 September 1994,

the Government submit that the applicant's detention on remand was

justified by the particular circumstances of the case, i.e. the

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 in favour of the

imposition of the detention. The Government further state in their

observations 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. The Government state that the

detention in this period served the purpose of isolation of an insane

person threatening legal order within the meaning of Article 99 of the

Criminal Code.

As regards the detention from 21 September 1994 to 24 November

1994, the Government submit that the decisions of the authorities were

lawful under Article 223 of the Code of Criminal Procedure and,

therefore, they were covered by Article 5 para. 1 (e) (Art. 5-1-e) of

the Convention.

The 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 was justified by the refusal by 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.

He further 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 Commission considers that this complaint raises serious

issues of fact and law under the Convention the determination of which

should depend on an examination of the merits. It follows that this

part of the application cannot be dismissed as being manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention. No other ground for declaring it inadmissible has been

established.

3. The applicant finally submits that the proceedings in order to

put him in psychiatric internment were instituted even though he was

mentally fit. He invokes Article 5 (Art. 5) of the Convention.

The Commission recalls that under Article 25 (Art. 25) of the

Convention it may receive petitions from any person claiming to be a

victim of a violation of the rights set forth in the Convention. The

answer to the question whether an applicant can claim to be a victim

of a violation of the Convention depends largely on the legal interest

which the applicant has in a determination of his allegations of

Convention breaches (No. 9320/81, D.R. 36, p. 24).

The Commission observes that the Warsaw Regional Court, by the

decision of 26 February 1996, dismissed the Public Prosecutor's request

that the applicant be placed in psychiatric internment and on 16 April

1996 the Warsaw Court of Appeal refused to entertain the applicant's

appeal against this decision. Under Article 25 (Art. 25) of the

Convention he cannot consequently claim to be a victim of a violation

of his Convention rights in this respect.

It follows that this part of the application must be rejected in

accordance with Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, by a majority,

DECLARES ADMISSIBLE, without prejudging the merits, the

applicant's complaints that in view of his age and bad health he

should not have been detained, that the treatment which he

received in prison caused him serious suffering, and that his

health severely deteriorated as a result, and that his detention

was unjustified.

DECLARES INADMISSIBLE the remainder of the application.

M. de SALVIA S. TRECHSEL

Secretary President

to the Commission of the Commission

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JEZNACH v. POLAND

JEZNACH v. POLAND

LEXI