FOURTH SECTION

DECISION

Application no . 72193/10 Mirosław WYŻGA against Poland

The European Court of Human Rights (Fourth Section), sitting on 17 May 2016 as a C hamber composed of:

András Sajó, President, Vincent A. D e Gaetano, Boštjan M. Zupančič, Nona Tsotsoria, Krzysztof Wojtyczek, Egidijus Kūris, Iulia Motoc, judges, and Marialena Tsirli, Section Registrar ,

Having regard to the above application lodged on 22 November 2010,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Miros ł aw Wyżga, is a Polish national who was born in 1976 and lives in Kraków. He was represented before the Court by Mr J. Krupa, a lawyer practising in Kraków.

2. The Polish Government (“the Government”) were represented by their Agent, Mrs J. Chrzanowska of the Ministry of Foreign Affairs

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

1. The applicant ’ s detention in a psychiatric facility

4. On an unknown date the applicant was charged with several offences and in particular uttering threats (committed mostly in 2008).

5. On 10 July 2008 the Kraków District Prosecutor asked the Kraków District Court to remand the applicant in custody. The prosecutor indicated that the applicant had failed to report for a court-ordered psychiatric observation. The applicant was arrested and placed in the hospital on 18 June 2008. However, he escaped two days later.

6. The applicant was remanded in custody on 31 August 2008 and placed in the psychiatric ward of the Kraków Remand Centre Hospital. Between 22 September 2008 and 3 November 2008 he was under psychiatric observation. On 19 November 2008 two expert psychiatrists gave an opinion and determined that the applicant was suffering from paranoid schizophrenia. They observed that the applicant should be placed in a psychiatric hospital as there was a very high probability that he would commit another, similar offence.

7. On 9 March 2009 the Kraków District Court gave a decision and discontinued the criminal proceedings against the applicant. The court, referring to the experts ’ opinion, established that the applicant could not be held criminally responsible as he was suffering from paranoid schizophrenia. It ordered that the applicant be placed in a psychiatric hospital. On 28 April 2009 the Kraków Regional Court upheld that decision.

8. The applicant ’ s remand in custody was subsequently extended. On 6 May 2009 a doctor confirmed that the applicant could be treated in the hospital wing of the detention facility until he could be transferred to a psychiatric hospital.

9. On 17 June 2009 the Psychiatric Commission on Preventive Measures (“the Commission”) ruled that the applicant should be placed in the Jarosław Psychiatric Hospital. On 22 July 2009 the Kraków District Court asked the Commission to indicate the Kraków Babinski Psychiatric Hospital (“Babinski Hospital”) as the hospital where the applicant should be placed, since sending him to the Jarosław Hospital would make it difficult for him to maintain contact with his family. On the same day, the Commission recommended Babinski Hospital.

10. On 24 September 2009 the applicant was transferred from the detention centre to Babinski Hospital.

11. On 4 March 2010 the Kraków District Court, citing an expert opinion of 18 January 2010, confirmed that the applicant ’ s condition had not changed and that it was necessary to keep him in the hospital. The applicant appealed. On 28 May 2010 the Kraków Regional Court upheld the district court ’ s decision.

12. Meanwhile, another set of criminal proceedings against the applicant (charges of computer hacking committed in 2003) was discontinued by the Kraków District Court on 27 May 2010. The court held that the applicant could not be held criminally responsible. It further considered, citing a psychiatric opinion of 13 April 2010 given by expert psychiatrists D.W. and S.T. that the applicant needed constant pharmacological treatment but he could be treated outside a psychiatric hospital.

13. At a session held on 22 October 2010 the Kraków District Court confirmed that the applicant ’ s condition had not changed. Its decision given on that day was identical to that of 4 March 2010. The court examined an expert opinion of 16 July 2010, signed by two psychiatrists (including D.W.) and two psychologists, who confirmed that the applicant should continue to be treated in a psychiatric hospital. The court also refused a request by the applicant ’ s lawyer for experts to be appointed from outside the Kraków region. It further noted that the two expert opinions (of April and July 2010) could not be compared, as different circumstances had been examined in these two sets of proceedings.

14. The applicant ’ s lawyer appealed against this decision, claiming that D.W. ’ s opinions were contradictory and that it had not been reliably shown that the applicant ’ s continued detention was necessary. On 10 December 2010 the Kraków Regional Court upheld the district court ’ s decision, concurring that the applicant ’ s confinement should be extended.

15. On 21 April and 11 October 2011 the Kraków District Court again extended the applicant ’ s detention in a psychiatric hospital. These decisions were identical to the two previous decisions. However, the court referred to fresh experts ’ opinions, of 14 January and 14 July 2011 respectively. These decisions were upheld on 11 July and 15 December 2011 by the Kraków Regional Court.

16. On 27 January 2012 the Kraków District Court confirmed that the applicant ’ s detention in a psychiatric hospital should be continued, basing this decision on an opinion of 12 January 2012. The court referred to the applicant ’ s attempted escape of 11 January 2012. The applicant ’ s appeal was dismissed by the Kraków Regional Court on 29 February 2012.

17. On 23 May 2012 expert psychiatrists confirmed that the applicant should continue to be treated in hospital, as he was still completely uncritical as regards the acts he had committed and his illness.

18. On 11 June 2012 the Kraków District Court confirmed that the applicant ’ s detention in a psychiatric hospital should be continued. The court cited a fresh expert report and the applicant ’ s attempted escape of 11 January 2012. On 30 July 2012 the Kraków Regional Court upheld the district court ’ s decision.

19. On 3 December 2012 the Kraków District Court, on the basis of an experts ’ opinion of 23 November 2012, held that the applicant ’ s detention in a psychiatric hospital should be continued. An appeal against this by the applicant was dismissed by the Kraków Regional Court on 25 January 2013.

20. In their opinions of 16 May and 15 July 2013 experts found that the reasons for applying the preventive measure remained. However, owing to the applicant ’ s inappropriate behaviour (harassment of other patients and uttering threats towards patients and the hospital staff) they recommended that he be transferred to a different hospital. Nevertheless, on 8 August 2013 the Kraków District Court decided to keep the applicant in Babinski Hospital. That decision was upheld by the Kraków Regional Court on 24 September 2013.

21. On 19 September 2013, upon a recommendation by the Psychiatric Commission, the Kraków District Court decided to place the applicant in the D ę bica Medical Centre (“Dębica Hospital”). The applicant was transferred there on 25 September 2013.

22. On 10 December 2013 two expert psychiatrists and a psychologist from the Tarnów region confirmed that the applicant did not see a need to continue treatment, he was uncritical about his illness, and there was a risk that he might commit yet another offence. Therefore, he should continue treatment in a secured psychiatric facility. Referring to this opinion, the Kraków District Court decided to extend the applicant ’ s confinement on 27 January 2014. The decision was upheld by the Kraków Regional Court on 23 May 2014.

23. On 24 April 2014 two expert psychiatrists and a psychologist held that the applicant ’ s condition had deteriorated and there was still a risk that he might commit yet another offence. For these reasons it was necessary to continue his treatment in a secure psychiatric facility. Subsequently, on 26 June 2014 the Kraków District Court extended the applicant ’ s detention.

24. On 21 August 2014 the Kraków District Court decided to transfer the applicant to the Branice Psychiatric Hospital – a high-security psychiatric facility. On 16 October 2014 the Kraków Regional Court dismissed the applicant ’ s appeal against that decision. The court stressed, referring to a recent expert opinion that the applicant ’ s condition had deteriorated since March 2014. He was aggressive and threatened other patients and medical staff.

25 . The applicant was transferred to Branice Hospital on 4 September 2014.

26. On 10 February 2015 expert psychiatrists from the Opole region observed some improvement in the applicant ’ s mental state. He was no longer threatening other patients and had not attempted to escape. However, the improvement was not permanent, and there was still a high risk that the applicant would commit another similar offence.

27. On 19 March 2015 the Kraków District Court again extended the applicant ’ s detention. In view of the experts ’ opinion it also ordered that the applicant be transferred to a less secure psychiatric facility - the Rybnik Psychiatric Hospital.

28. According to the information available to the Court on the date of adoption of the present decision the applicant is still detained in a psychiatric hospital.

B. Relevant domestic law and practice

1. The Criminal Code

29. Conditions for the detention of persons of unsound mind who are not criminally responsible on medical grounds are laid down in the Polish Criminal Code of 1997:

Article 93

“The court may impose a preventive measure as provided for in this chapter, which involves committal to a secure medical institution only if necessary in order to prevent the repeated commission of a prohibited act by an offender suffering from mental illness ... mental impairment or addiction to alcohol or other narcotic drugs. Before imposing such a measure, the court shall hear evidence from psychiatrists and a psychologist...”

Article 94

“1. If an offender has committed a prohibited act in a state of insanity as specified in Article 31 § 1, causing significant harm to the community, and there is a high probability that he will commit such an act again, the court shall commit him to a suitable psychiatric institution.

2. The duration of the stay in the institution shall not be fixed in advance; the court shall release the offender from the institution if his stay there is no longer deemed necessary.

3. The court may reorder the committal of an offender (as specified in paragraph 1) to a suitable psychiatric institution if it is advisable in the light of the circumstances specified in paragraph 1 or Article 93; such an order may not be issued more than five years after release from the institution.”

2. The Code of Execution of Criminal Sentences

30. Pursuant to Article 22 § 1 of the Code of Execution of Criminal Sentences of 1997, as applicable from 1 January 2012, an offender and his defence lawyer may take part in a court hearing only if this is expressly provided by law.

Article 204, as applicable at the material time, provided:

“1. The court shall, no less frequently than every six months, and in the event of receiving an opinion that further detention of the offender in a secure medical institution in which a preventive measure is being executed is unnecessary, immediately make a decision as regards the further execution of that measure. If necessary, the court shall refer to the opinion of other medical experts.

2. A decision on the further execution of a preventive measure may be appealed against.”

31. On 1 July 2015 Article 204 was amended to the effect that it now provides explicitly for the obligatory participation of a prosecutor (always) and a defence lawyer (if the offender is deaf, mute or blind, or a minor, if there are justified doubts as to whether he could be held criminally responsible or if the court finds that the defence may be particularly difficult).

COMPLAINTS

32. The applicant, citing Article 6 of the Convention, alleged that his continued detention in a psychiatric facility was unlawful.

THE LAW

33. The applicant complained under Article 6 that his continued detention in a psychiatric facility was unlawful. The Court considers that this complaint should be examined under Article 5 § 1 (e) of the Convention, which reads as follows:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law ...

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants ...”

A. The parties ’ submissions

1. The applicant

34. The applicant disagreed in general with the experts ’ opinions regarding his mental condition. He submitted that the courts when extending his detention in three psychiatric facilities relied on opinions given by experts employed in those facilities. These opinions repeatedly stressed that the applicant had an uncritical view of his illness and that the treatment applied had not been effective. The experts had failed to address the issue of why the treatment effected in three different hospitals had not so far been successful and why after five years of treatment and therapy, instead of improving, the applicant ’ s condition had deteriorated and he had had to be placed in a maximum-security psychiatric centre.

35. The applicant concluded that his continued detention in a psychiatric hospital, which had so far lasted over five years and which had been prolonged on the basis of unclear and subjective criteria, had infringed his right to dignity and his right to freedom and personal safety.

2. The Government

36. The Government submitted that the applicant ’ s detention in a psychiatric facility had been ordered by the courts in their decisions of 9 March and 28 April 2009, after a psychiatric examination which had shown that his mental disorder was serious enough to require treatment in a secure psychiatric facility. In addition, the experts had confirmed that if released the applicant would have constituted a real danger to society. The Government further submitted that the need for the applicant ’ s continued confinement had been verified and confirmed by the relevant court at regular intervals. In this respect they noted that on each occasion the court had relied on a fresh expert opinion. Since the applicant ’ s condition had not improved, the relevant court had decided to extend his detention and place him in a higher-security facility. Consequently, they were of the opinion that the applicant ’ s detention in the psychiatric institution had been in accordance with Article 5 § 1 (e) of the Convention

B. The Court ’ s assessment

1. General principles

37. The Court reiterates that an individual cannot be deprived of his liberty on the basis of unsoundness of mind unless three minimum conditions are satisfied: he must reliably be 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 must depend upon the persistence of such a disorder (see Winterwerp v. the Netherlands , 24 October 1979, § 39, Series A no. 33; Johnson v. the United Kingdom , 24 October 1997, § 60, Reports of Judgments and Decisions 1997-VII; and Sabeva v. Bulgaria , no. 44290/07, § 56, 10 June 2010).

38. The national authorities have a certain margin of appreciation regarding the merits of clinical diagnoses, since it is in the first place for them to evaluate the evidence in a particular case: the Court ’ s task is to review under the Convention the decisions of those authorities (see Winterwerp , cited above, § 40, and Luberti v. Italy , 23 February 1984, § 27, Series A no. 75).

39. The Court further reiterates that the expressions “lawful” and “in accordance with a procedure prescribed by law” in Article 5 § 1 essentially refer back to national law and enshrine the obligation to conform to the substantive and procedural rules thereof. Although it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law, under Article 5 § 1 failure to comply with domestic law entails a breach of the Convention, and the Court can and should review whether this law has been complied with (see, among many other authorities, Benham v . the United Kingdom , 10 June 1996, § 41, Reports 1996-III).

40. Compliance with national law is not, however, sufficient: Article 5 § 1 requires in addition that any deprivation of liberty be in keeping with the purpose of protecting the individual from arbitrariness (see, among many other authorities, Winterwerp , cited above, § 37, and Witold Litwa v. Poland , no. 26629/95, § 78, ECHR 2000-III).

2. Application of these principles to the present case

41. Turning to the circumstances of the present case, the Court will firstly examine whether the applicant has reliably been shown to be of unsound mind of a kind or degree warranting compulsory confinement. In this respect the Court notes that the applicant was charged with several offences, in particular with uttering threats. Subsequently , he underwent a psychiatric observation, following which expert psychiatrists concluded that he was suffering from paranoid schizophrenia. On the basis of this opinion, the Kraków District Court discontinued the proceedings against the applicant and ordered his confinement in a psychiatric hospital (see paragraphs 4, 6 and 7 above).

42. The Court concludes that it has been reliably shown that the applicant was “of unsound mind” within the meaning of Article 5 § 1 (e) of the Convention. It follows that the first criterion laid down in the Winterwerp judgment has been fulfilled in the present case.

43. As regards the need to justify placement by the severity of the disorder, the Court observes that having established the applicant ’ s mental illness, the experts found that there was a very high probability that he would commit yet another, similar offence (see paragraph 6 above). The Court considers that there are no grounds to doubt that the experts who had examined the applicant were fully qualified and had based their conclusions on their best professional judgment (see Witek v. Poland , no. 13453/07 , § 46, 21 December 2010, and Biziuk v. Poland (no. 2) , no. 24580/06 , § 47, 17 January 2012) . In view of these considerations, and noting that the national court was in a far better position to assess the value of the expert reports and, more generally, to determine the factual issue of whether or not the applicant was suffering from a mental disorder of a kind or degree warranting compulsory confinement, it follows that the second criterion laid down in the Winterwerp judgment has also been fulfilled in the present case.

44. Lastly, it remains to be examined whether the validity of the applicant ’ s continued confinement depended upon the persistence of his mental disorder. In this regard, the Court notes that he was placed in Babi ń ski Hospital on 24 September 2009. Between 25 September 2013 and 4 September 2014 he was detained in D ę bica Hospital. On 4 September 2014 he was transferred to Branice Hospital, and on 19 March 2015 the court ordered his transfer to Rybnik Hospital, where he remains (see paragraphs 10, 21, 25 and 27 above). He is examined by two psychiatrists and a psychologist at regular six-monthly intervals and the result of psychiatric examination serves each time as the basis for a fresh judicial decision extending his confinement in the psychiatric unit .

45. It is true that some of these decisions are reasoned in similar ways, and that the courts have limited themselves to referring to the results of psychiatric examinations and to the conclusions of forensic experts (see paragraphs 13 and 15 above). However, given that the courts had relied on well-reasoned opinions, there was no need to repeat the details of the psychiatrists ’ findings in the judicial decisions (see Kalisz v. Poland (dec), no. 15753/12, 7 July 2015, § 53). In addition, the courts took into consideration the evolution of the applicant ’ s mental health, as following an aggravation of his condition he was transferred to a maximum-security institution and subsequently to a less secure hospital (see paragraphs 24 and 27 above).

46. In so far as the applicant alleged that the expert opinions were given by experts employed by the psychiatric facilities in which he had been detained, the Court observes that the applicant has so far been detained in four different psychiatric institutions. Contrary to the case of X v. Finland , (see X v. Finland, no. 34806/04 , § 169, ECHR 2012 (extracts)) the applicant was examined by at least six different specialist doctors from three different regions of Poland, who all assessed his condition independently (see paragraphs 15, 26 and 22 above). All these specialists stressed the need to continue the applicant ’ s confinement in a psychiatric facility. In the Court ’ s opinion there is no ground to doubt that the experts acted professionally. Nor there is any indication of arbitrariness in the proceedings relating to the continuation of confinement .

47. Having regard to the foregoing, the Court concludes that the third criterion laid down in the Winterwerp judgment has likewise been fulfilled in the present case, that is the applicant ’ s placement in the unit was ordered “in accordance with a procedure prescribed by law” and that his continued deprivation of liberty was justified by sub-paragraph (e) of Article 5 § 1 of the Convention.

48. It follows that the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention .

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 9 June 2016 .

Marialena Tsirli András Sajó Registrar President