AS TO THE ADMISSIBILITY OF

                    Application No. 25429/94

                    by Damazy KIELCZEWSKI

                    against Poland

     The European Commission of Human Rights (Second Chamber) sitting

in private on 22 October 1997, the following members being present:

          Mrs  G.H. THUNE, President

          MM   J.-C. GEUS

               G. JÖRUNDSSON

               A. GÖZÜBÜYÜK

               J.-C. SOYER

               H. DANELIUS

               F. MARTINEZ

               M.A. NOWICKI

               I. CABRAL BARRETO

               J. MUCHA

               D. SVÁBY

               P. LORENZEN

               E. BIELIUNAS

               E.A. ALKEMA

               A. ARABADJIEV

          Ms   M.-T. SCHOEPFER, Secretary to the Chamber

     Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

     Having regard to the application introduced on 29 June 1994 by

Damazy Kielczewski against Poland and registered on 15 October 1994

under file No. 25429/94;

     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

     16 October 1995 and the observations in reply submitted by the

     applicant on 15 January 1996;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant, a Polish citizen born in 1952, is a farmer

residing in Jedwabne in Poland.

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

summarised as follows:

     On 19 April 1993 the applicant's wife informed the police in

Jedwabne that the applicant had been ill-treating her since October

1992.  She stated that the applicant had become violent towards her,

had threatened to kill her and on several occasions had forced her to

leave the apartment and seek shelter with her friends.  At these

occasions the applicant had been intoxicated.  He had suspected her of

adultery allegedly committed in 1979.  On the same day an investigation

was opened and, subsequently, three witnesses were heard.

     On 27 May 1993, on the Public Prosecutor's order, the applicant

was brought by the police to an outpatient psychiatric clinic in Lomza

and underwent an examination by two expert psychiatrists.

     On 27 May 1993 the applicant's wife complained to the police that

her husband had beaten her on 24 May 1993 and submitted a medical

certificate to this effect.  On 19 June 1993 she complained about

a next incident and also submitted a relevant certificate.

     In an opinion of 15 June 1993, numbering eight pages, the

psychiatrists stated that an interview as to the applicant's past life

and the events which had led to the opening of the investigation had

been taken.  They had considered also the material gathered in the

investigation, in particular the submissions of the witnesses, from

which it transpired that from October 1992 the applicant had often been

aggressive towards his wife.  He had threatened her with killing her

and had assaulted her, accusing her of marital infidelity committed

allegedly in the years 1979-81 and trying to make her confess that his

allegations were true.  During these attacks he had normally been

drunk.  The witnesses had stated that he had been heavily drinking for

years. The psychiatrists further had regard to the police notes from

which it transpired that there had been three police interventions at

the applicant's home since October 1992 as he had been violent.  They

concluded that the applicant suffered from paranoid syndrome of

pathological jealousy against the background of alcoholism.  At

critical times, the applicant had not comprehended the meaning of his

acts and had been unable to control his conduct.  His remaining at

liberty would pose a threat to public order.  He should be treated in

a closed ward for alcoholics.

     By a decision of 23 June 1993 the Public Prosecutor decided to

discontinue the criminal proceedings.  The Prosecutor found it

established by two medical experts that the applicant was not

criminally responsible on psychiatrical grounds.  The experts

considered that the applicant was dangerous to public order and to his

wife and children.

     On 23 June 1993 the applicant's wife complained again about next

altercation caused by the applicant and requested the police

assistance.

     On 25 June 1993, upon the Public Prosecutor's order, eight

policemen took the applicant to the psychiatric outpatient clinic in

Lomza.  The applicant resisted the arrest.  The police beat him and the

police dog attacked him.  He was handcuffed.  In view of the

applicant's behaviour a psychiatrist in an outpatient clinic of the

Regional General Hospital in Lomza, the same doctor Z.D. who had

prepared the medical opinion of 15 June 1993, decided that he should

be placed in a mental hospital for observation, given that he was

suffering from acute psychosis and a paranoid syndrome of jealousy

against the background of alcoholism.  On the same day the police took

the applicant to the hospital in Choroszcz for observation.

     On 30 June 1993 his brother demanded the applicant's discharge

and the applicant was released, although the doctors objected thereto.

A medical report issued upon the applicant's discharge stated that the

applicant had been observed with a view to determining whether he was

suffering from syndrome of paranoid jealousy against the background of

alcoholism, but no diagnosis had been established as there had not been

enough time to do so.

     On 30 June 1993 the applicant was examined by a forensic medicine

expert, who stated that the applicant had numerous bruises, which could

have originated during his arrest.

     On 19 July 1993 the Lomza Public Prosecutor submitted a request

to order the applicant's psychiatric internment to the Lomza District

Court.

     On 4 August 1993 the Lomza District Court decided that the

applicant should be placed in psychiatric detention in Choroszcz

Hospital.  In the proceedings the Court  heard two psychiatrists who

had prepared the expert opinion in the criminal proceedings.  The Court

also considered the findings of the Prosecutor according to which the

applicant had committed the offence at issue, but was not criminally

responsible on psychiatric grounds.  The Court had furthermore regard

to the unequivocal medical expert opinion that the applicant could be

dangerous to the public order and in particular his wife and thus

should be placed in psychiatric detention.

     On 13 August 1993 the Lomza Regional Court upheld this decision.

Subsequently the applicant went into hiding in order to avoid

internment.

     On 29 December 1993 the Minister of Justice refused leave for an

extraordinary appeal against this decision considering that the

decision was well-founded.

     On an unspecified later date the applicant requested the Lomza

District that he be placed in Pruszków Mental Hospital.  On 2 March

1994 the Court complied with this request.  On 15 March 1994 the

applicant was admitted to that hospital.

     On 9 August 1994 the applicant requested the Lomza District Court

to give to his brother a photocopy of his case-file.  On 10 August 1994

the President of the Criminal Division informed him that the relevant

provisions allowed only that parties to the proceedings be given copies

of court decisions and copies of documents which they had submitted

themselves.

     On 19 September 1994 the Forensic Psychiatry Department of the

Pruszków Hospital submitted an expert opinion to the Lomza District

Court to the effect that the applicant should be released.

     On 27 September 1994 the Court decided to release the applicant

and he was released on 29 September 1994.

COMPLAINTS

     The applicant complains that he was ill-treated by the police

upon his arrest on 25 June 1993. He complains that his detention in

Choroszcz hospital in June 1993 was unjustified as he was not suffering

from any mental illness.  This detention was not ordered by the Court,

but was the result of an illegal decision of the Prosecutor.

He complains that his later detention was also unjustified.

     The applicant complains that the Court refused his request of

9 August 1994 to provide him with a copy of the medical expert opinion.

     The applicant finally complains under Article 6 of the Convention

that the proceedings concerning his psychiatric detention were not

fair.  He submits that the Public Prosecutor failed to appoint a lawyer

to represent him in the proceedings relating to his internment

immediately after the psychiatrists were called in to examine him as

provided for by law.  He contends that the officially appointed lawyer

failed to act in these proceedings.  He complains that the Public

Prosecutor did not comply with the procedural requirements as his order

to call experts did not specify their task and the exact scope of the

opinion.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 29 June 1994 and registered on

15 October 1994.

     On 22 February 1995 the Commission decided to communicate the

application to the Polish Government, pursuant to Rule 48 para. 2 (b)

of the Rule of Procedure, who were invited to submit their observations

on its admissibility and merits before 28 April 1995.

     The Government  submitted their observations on 16 October 1995.

     The applicant submitted his reply to the Government's

observations on 15 January 1996.

THE LAW

1.   The applicant complains under Article 5 para. 1 (e)

(Art. 5-1-e) of the Convention that his detention, ordered by the

decision of the Lomza District Court of 4 August 1994, was unjustified.

     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:...

     e.   the lawful detention of persons...of unsound mind,

     alcoholics...;"

     The Government concede that the applicant exhausted all relevant

domestic remedies in this respect.

     As to the substance, they first recall that in order to comply

with the requirements of Article 5 para. 1 (e) (Art. 5-1-e) of the

Convention, detention must be lawful, i.e. in conformity with both

procedural and substantive rules and the mental disorder, confirmed by

an objective medical expertise, must be such as to justify a compulsory

hospitalisation (Eur. Court HR, Winterwerp v. Netherlands judgment of

24 October 1979, p. 17, para. 39).

     The Government maintain that all those requirements were complied

with in the present case.  The Court's decision to place the applicant

in a mental hospital was based on a written medical opinion of two

psychiatrists of 15 June 1993 and later confirmed by their oral

testimony given before the Court.  The psychiatrists diagnosed the

applicant as suffering from mental illness.  In their opinion they

considered the statements made in the investigations by the applicant's

wife and three other witnesses.  They further took into account the

police notes regarding the applicant's behaviour.  In their conclusions

they found that the applicant posed a serious threat to public order.

They found that he  suffered from syndrome of imaginary adultery

against the background of alcoholism.  It was further established that

the applicant should undergo treatment against his alcohol addiction.

     The Government further state that those psychiatrists were later

heard by the Lomza District Court and in their testimony they confirmed

their earlier findings, in particular as to the danger that the

applicant's remaining at liberty would entail danger to his family.

They stated inter alia that the applicant's conduct after the

examination of the applicant on 27 May 1993 corroborated their

conclusions as in that period he had committed several acts of violence

against persons closest to him, in particular against his wife.

     The Government submit that in view of the applicant's conduct he

was brought by the police to the outpatient clinic at the Lomza General

hospital on 25 June 1993 and that the psychiatrist who examined him

stated that the applicant suffered from acute psychosis and that the

observation in a mental hospital was necessary.  The Government

conclude that in the light of the above, the court's decision as to the

applicant's internment was well-founded.

     The applicant submit that, as it is evident from the case-file,

his psychiatric assessment took the form of an interview carried out

in the outpatients' clinic.  The written statement entitled "Opinion"

includes quotations from evidence assembled by the Prosecutor in the

investigations, a description of the interview with the suspect and a

final decision without any statement of what it is based upon.  On the

basis of superficial, incomplete and unsubstantiated material obtained

under circumstances stressful for the applicant, (i.e. being  brought

to the interview by the police) the psychiatrists produced a  statement

on the activities undertaken which, regardless of its designation,

could not and should be not recognised as an independent and objective

opinion.

     It is further stated that a crucial factor in a psychiatric

assessment is a direct contact between doctor and patient and a wide-

ranging family interview.  Yet despite these obvious principles, the

statement of 15 June 1993 makes it quite clear that the psychiatrists

concerned conducted no interviews with anyone in the applicant's family

nor did they carry out specialised testing considered indispensable in

the light of the current psychiatric knowledge.  The examination

confirmed that the applicant manifested a heightened degree of fear,

helplessness and expectations of help.   Despite the applicant's state

at the time when he was examined, no additional tests, at a time more

suitable to the applicant, were proposed.  In the light thereof, the

Court's decision to have the applicant detained in a mental hospital

was entirely unfounded, regard being had in particular to the contents

of the psychiatric opinion of 19 September 1994 in which it was stated

that the applicant did not pose a serious threat to others and should

be released.

     The applicant further refers to the medical certificate issued

upon his release from the hospital on 30 June 1993 and contends that

it cast doubt on the expert opinion as it only recommends further

check-ups in an outpatient clinic.

     He further submits that the proposals expressed in the opinion

of 15 June 1993 indicate solely that he required treatment for his

alcohol addiction, not because of his psychiatric illness.  Imaginary

marital infidelity arising from abuse of alcohol is not a recognised

illness.  Moreover, the experts' conclusions given to the Lomza

District Court differ substantially from these of 15 June 1993 as it

was stated therein that the applicant suffered from alcohol-induced

paranoia and recommending his detention in a psychiatric hospital.

     The applicant further indicates that the expert psychiatrist Z.D.

who participated in drawing up the opinion of 15 June 1993 and was

later heard by the Court was the same doctor who on 25 June 1995

decided that the applicant should be put into hospital.  Thus, in the

applicant's view, the court was obliged to admit evidence from another

expert.  The failure to do so amounts to a flagrant lack of fairness.

     The Commission first observes that doubts arise as to whether the

applicant lodged his application with the Commission within the time-

limit of six months, pursuant to Article 26 (Art. 26) of the

Convention.  It is to be noted that the final decision was taken by the

Lomza Regional Court on 13 August 1993.  The decision was executed on

15 March 1994 when the applicant was interned in the Pruszków Mental

Hospital and the application lodged on 29 June 1994.

     The applicant submits in this respect that after the decision was

pronounced on 13 August 1993 he went into hiding for over six months

and thus could not lodge his application within the time-limit. The

Government do not address this issue.

     The Commission is not required to decide whether the applicant

complied with the requirement under Article 26 (Art. 26) of the

Convention to lodge the application within six months from the final

decision since, even assuming that he did so, the application is

manifestly ill-founded for the following reasons.

     The Commission recalls that, according to the Convention organs'

case-law, a psychiatric detention must first of all be "lawful",

including the observance of a procedure prescribed by law; it requires

in addition that it should be consistent with the purpose of Article

5 (Art. 5), namely to protect the individual from arbitrariness;

consequently the fact that a person is of unsound mind must be

established conclusively.  To this end an objective medical report must

demonstrate to the competent national authority the existence of a

genuine mental disturbance whose nature or extent is such as to justify

such deprivation of liberty (Eur. Court. HR, Herczegfalvy judgment of

24 September 1992, Series A no. 244, p. 21, para. 63).

     The Commission observes that the court decision ordering the

applicant's psychiatric internment was taken on the basis of the

medical examination carried out by two psychiatrists.  They relied on

the information gathered by the police in the course of the

investigations and on the testimony given by the witnesses, but also

on their own clinical observations taken during the interview with the

applicant on 27 May 1993.  They were further heard by the court in the

subsequent proceedings before the Lomza District Court concerning the

Prosecutor's order for the applicant's internment.  Their testimony

confirmed the conclusions contained in their earlier opinion.  The

difference between the designation of the syndrome from which the

applicant suffered contained in the opinion of 15 June 1993 and given

at the hearing before the Lomza District Court, referred to by the

applicant, do not invalidate their conclusion that in view of his

mental condition he posed a threat to the public order and in

particular to his family.

     It has further to be borne in mind that in the period preceding

the decision on the applicant's internment he had shown a repeated

violent behaviour towards his wife, as shown by the medical

certificates which she submitted to the Public Prosecutor, thus lending

credibility to the conclusion that he posed a threat to public order

and to his wife in particular.  There is reliable evidence to this

effect other than the medical opinion which credibility the applicant

calls into question.  The fact that it was the same psychiatrist who

prepared the opinion of 15 June 1993 as to the advisability of the

applicant's internment and later on 25 June 1993 ordered that in view

of his violent conduct he should be placed in a psychiatric hospital

for observation does not in fact cast doubt on the well-foundedness of

the court's decision of 4 August 1993.  The Commission considers that

the medical assessment of the applicant's condition was sufficient to

establish the need for his internment.  On the whole, the Commission

considers that there is no indication that the decision on the

applicant's detention was arbitrary.  In conclusion, it complied with

the requirements of Article 5 para. 1 (e) (Art. 5-1-e) of the

Convention.

     It follows that this complaint is manifestly ill-founded within

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

2.   The applicant complains that the Court refused his request of

9 August 1994 to provide him with a copy of the medical expert opinion

prepared by the psychiatrists.  The applicant examined this complaint

under Article 25 (Art. 25) of the Convention.

     The Government submit that the applicant did not exhaust domestic

remedies in this respect.  The applicant contests this.

     The Commission recalls that the general rules of admissibility,

including the provisions concerning the exhaustion of domestic

remedies, are not applicable with regard to the complaints which raise

a question under Article 25 para. 1 (Art. 25-1) of the Convention

(3591/68, Dec 5.2.70, CD 12, p. 45).

     As to the substance, the Commission notes that the applicant

submitted the request to obtain a photocopy of the case-file to the

Lomza District Court on 9 August 1994.  By a letter of 10 August 1994

the President of the Court replied that, in accordance with the

relevant provisions, a party to the proceedings could receive only

copies of the court's decisions or of the documents which he had

submitted himself.  However, the Commission notes that it was open to

the applicant to appoint a representative in order to have access to

the file and make notes.  Further, it was open to him to have access

to the case-file after he was released on 29 September 1993.  He has

not shown that he did so. There is no indication that the court's

refusal to make a photocopy of his case-file in any way hampered his

efforts to lodge an application with the Commission.

     The Commission does not consider, therefore, that the applicant

was hindered in the exercise of his right to individual petition under

Article 25 (Art. 25) of the Convention.

3.   The applicant further complains about his ill-treatment upon his

arrest on 25 June 1993.  He submits that his arrest and interment in

the mental hospital from 25 to 30 June 1993 was unjustified.  He

further submits various complaints concerning the proceedings in which

his second detention was ordered by the Lomza District Court.

     The Commission is not required to decide whether or not the facts

alleged by the applicant disclose any appearance of a violation of the

Convention.  In accordance with Article 26 (Art. 26) of the Convention,

the Commission may only deal with the matter within a period of six

months from the date on which the final decision was taken.  As regards

the applicant's first detention in the psychiatric hospital, the

applicant was taken by the police, acting upon an order of the Public

Prosecutor, to the psychiatric outpatient clinic on 25 June 1993.

Subsequently, in accordance with the psychiatrist's decision, he was

brought to the hospital and detained there until 30 June 1993.  There

was no remedy at the time to complain against such decision.

     The Commission recalls the Convention organ's case-law according

to which, where no domestic remedy is available, the six months' period

runs from the date of the act complained of (No. 5759/72, Dec. 5.7.76,

D.R.6, p. 15,  No. 8007/77, Dec. 10.07.78, D.R. 13, p. 85).  As the

applicant introduced his application on 29 June 1994, he did not comply

with the six months' requirement provided for by Article 26 (Art. 26)

of the Convention.

     As regards the complaints concerning the proceedings in which the

Lomza District Court ordered the applicant's subsequent detention by

the decision of 4 August 1993, the Commission notes that these

complaints were submitted in the applicant's observations of 15 January

1996.  The applicant has not therefore submitted these complaints

within the six-months' time-limit provided for in Article 26 (Art. 26)

of the Convention.

     It follows that this part of the application is inadmissible

within the meaning of Article 27 para. 3 (Art. 27-3) of the Convention.

     For these reasons, the Commission, unanimously,

     DECLARES THE APPLICATION INADMISSIBLE;

     DECIDES TO TAKE NO FURTHER ACTION in respect of the applicant's

     complaint of the alleged hindrance of his right to individual

     petition under Article 25 of the Convention.

   M.-T. SCHOEPFER                              G.H. THUNE

      Secretary                                  President

to the Second Chamber                      of the Second Chamber