FOURTH SECTION

DECISION

Application no. 22170/07 by Janusz BIZIUK against Poland

The European Court of Human Rights ( Fourth Section ), sitting on 13 D ecember 2011 as a Chamber composed of:

David Thór Björgvinsson , President, Lech Garlicki , Päivi Hirvelä , George Nicolaou , Zdravka Kalaydjieva , Nebojša Vučinić , Vincent A. D e Gaetano , judges, and Lawrence Early, Section Registrar ,

Having regard to the above application lodged on 11 May 2007 ,

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 Janusz Biziuk, is a Polish national who was born in 1964 and lives in Sokółka. He was represented before the Court by Ms Z. Daniszewska - Dek, a lawyer practising in Białystok . T he Polish Government (“the Government”) were represented by their Agent, Mr J.Wołąsiewicz of the Ministry of Foreign Affairs.

A. The circumstances of the case

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

3 . On 25 February 2005 the applican t was charged with assaulting a Sokółka Municipality employee.

4 . On 7 April 2005 expert psychiatrists appointed by the prosecutor gave an opinion concerning the applicant ’ s mental health. They considered that the applicant suffered from paranoia with elements of psychosis.

5 . On 14 September 2005 the Sokółka District Court gave a decision and discontinued the criminal proceedings against the applicant. The court found it established that the applicant had committed the offence in question. However, he should not have been held criminally responsible as he was suffering from paranoia with elements of psychosis. It further ordered that the applicant be placed in a psychiatric hospital.

6 . On 23 September 2005 the applicant appealed against this decision. On 28 December 2005 the Białystok Regional Court dismissed the appeal.

7 . On 1 June 2006 the applicant was informed that the Ombudsman had decided not to file a cassation appeal on his behalf.

8 . Between 23 February and 11 September 2006 the applicant was detained in a psychiatric hospital, on the basis of a decision given in another set of criminal proceedings against him (decision of the Białystok District Court of 5 May 2005). On 24 March 2006 the Sokółka District Court ordered the applicant ’ s internment in the same institution on the basis of its final decision of 14 September 2005.

9 . On 11 September 2006 the Bia ł ystok Regional Court decided (in the other set of criminal proceedings against the applicant) that the applicant could be released since his health had significantly improved and he could be treated outside the hospital. However, the applicant was not released on that date as he was simultaneously detained on the basis of the Sokółka District Court ’ s decision of 14 September 2005.

10 . On 13 September 2006 the applicant ’ s lawyer filed a motion with the Sokółka District Court referring to the Białystok District Court ’ s decision and asking for the applicant ’ s release.

11 . On 17 September 2006 the applicant absconded from the hospital.

12 . On 29 September 2006 the Sokółka District Court heard an expert who stated that the applicant ’ s escape from the hospital confirmed that he had no intention to continue his therapy. Consequently, the court refused to discontinue the enforcement proceedings relating to the applicant ’ s confinement ordered on 14 September 2005. The court referred to an expert ’ s report of 13 June 2006.

13 . On 20 October 2006 the Sokółka District Court ordered that the applicant be admitted to a psychiatric hospital.

14 . On 9 November 2006 the Białystok Regional Court quashed the decision of 29 September 2006 and remitted the case to the Sokółka District Court on formal grounds. The District Court subsequently scheduled a hearing. However, it had to be adjourned since the applicant had filed a motion for the presiding judge to step down.

15 . On 18 December 2006 the District Court appointed experts.

16 . On 5 January 2007 the applicant went to the Sokołka District Court to examine his case file. He was then arrested by the police on the basis of the order of 20 October 2006. He was informed that he had the right to lodge an interlocutory appeal against his arrest. On the same day the applicant was admitted to the Choroszcza psychiatric hospital. He submits that on his arrival he was examined by a doctor who stated that there was no need to keep him in hospital. However, the applicant was ordered to stay in the hospital. The Government submit that the applicant was ordered to stay in the hospital as there were strong medical grounds justifying his detention.

17 . On 8 January 2007 the applicant lodged an interlocutory appeal against the decision to admit him to hospital. He argued that his placement in the psychiatric hospital had not been necessary. He stressed that on 11 September 2006, in another set of criminal proceedings, the Białystok Regional Court had taken the view that his state of health had improved. Lastly, he submitted that a person could not be judged healthy as regards one set of criminal proceedings and in need of psychiatric treatment as regards another set. On an unknown date the applicant ’ s lawyer also lodged an interlocutory appeal.

18 . On 8 January 2007 the applicant absconded from the hospital.

19 . On 23 January 2007 the Sokółka District Court refused to examine the applicant ’ s interlocutory appeal against the decision to place him in a psychiatric hospital as inadmissible in law. The court referred to the Supreme Court ’ s decision of 11 January 2006 (see domestic law and practice below). On 24 January 2007 it refused to examine an appeal by the applicant ’ s lawyer.

20 . The applicant and his lawyer appealed against these dec isions. On 8 March 2007 the Biał ystok Regional Court dismissed their appeals.

21 . On 22 February 2007, on a request by the applicant under the Act of 17 June 2004 on complaints about a breach o f the right to a trial within a reasonable time, the Biał ystok Regional Court gave a decision and acknowledged that the length of the enforcement proceedings (b etween 28 June 2006 and 26 September 2006) was excessive. It awarded the applicant 1,000 Polish zlotys (PLN) as just satisfaction.

22 . On 13 March 2007 the applicant was arrested by the police so that he could undergo a psychiatric observation.

23 . On 23 March 2007 the court-appointed experts submitted their opinion to the court. They concluded tha t the applicant suffered from a delusional disorder and he should be kept in a psychiatric hospital.

24 . On 19 March 2007 he lodged an interlocutory appeal against the decision to place him in a psychiatric hospital. On 29 March 2007 the Sokółka District Court dismissed his appeal as inadmissible in law. On the same date the court ordered the applicant ’ s release. The applicant lodged an appeal (in respect of costs and expenses) against this decision on 17 April 2007. On 24 May 2007 the Białystok Regional Court dismissed his appeal.

B. Relevant domestic law and practice

25 . Under Article 6 of the Code of Enfo rcement of Criminal Sentences a convicted person is entitled to make applications, complaints and requests to the authorities enforcing the sentence. Article 7, paragraphs 1 and 2, of the Code provides that a convicted person can challenge before a court any unlawful decision issued by a judge, a peni tentiary judge, a Governor of a prison or a remand centre, a Regional Director or the Director General of the Prison Service or a court probation officer. Applications related to the enforcement of prison sentences are examined by a competent penitentiary court .

26 . On 11 January 2006 the Supreme Court gave a decision, I KZP 56/05, and held that it was not possible to appeal against a decision to arrest and place a convicted person in a penitentiary institution [ doprowadzenie do zakładu karnego ].

COMPLAINTS

27 . The applicant complai ned under Article 5 § 1 (e) and (c) of the Convention that his detention in the psychiatric hospital had been unlawful.

28 . He further alleged under Article 13 that he had had no remedy to complain about the lawfulness of his arrest and admission to the psychiatric hospital.

THE LAW

29 . The applicant firstly complained that his detention in a psychiatric hospital after 5 January 2007 had been unlawful. The complaint falls to be examined under Article 5 § 1 of the Convention, which provides in so far as relevant:

“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;

”

30 . The Government submitted that the measure applied with respect to the applicant was based on the court ’ s decision of 14 September 2005. The court ’ s judgment which declared the applicant to be of unsound mind was based on a reliable, fair, detailed, logical and convincing opinion prepared by two expert psychiatrists and one expert psychologist.

31 . They also stated that the present application was introduced on 11 May 2007, very soon after the applicant ’ s release. At that time, in their opinion, the applicant was still suffering from delusions. Consequently, they maintained that the applicant ’ s claims and complaints should be interpreted as symptoms of a psychosis.

32 . The Government stressed that the applicant had committed an act of considerable harm to the community and therefore it was important to prevent him from committing further offences. The applicant was periodically examined by expert psychiatrists.

33 . The applicant contested the Government ’ s submissions and objected to the experts ’ opinions. He referred to previous opinions (1997-2003) in which the experts had not considered him to be mentally ill. He further concluded that it had not been establis hed that he had suffered from a mental illness. In addition, his detention had been arbitrary.

34 . In determining whether the applicant was of unsound mind within the meaning of Article 5 § 1 (e) 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, 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). 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 particul ar 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).

35 . The Court observes that on 14 September 2005 the Sokółka District Court discontinued the criminal proceedings against the applicant and ordered his placement in a psychiatric hospital. Subsequently, on 29 September 2006, after consulting a medical expert, the court considered that the applicant had no intention to continue his therapy and therefore he should be admitted to a psychiatric hospital. Consequently, the court issued an admission order on 20 October 2006. On 5 January 2007 the applicant was arrested. On the applicant ’ s arrival at th e hospital he was examined by a doctor.

36 . While the applicant criticised all of the expert reports obtained by the trial court the Court sees no reason to doubt that the experts were fully qualified and had based their conclusions on their best professional judgment. 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 as to whether or not the applicant was suffering from a mental disorder, the Court finds no grounds to interfere with its assessment (see Sabeva v. Bulgaria , no. 44290/07, § 58, 10 June 2010). The Court is further satisfied that the applicant ’ s disorder was of a degree and kind warranting confinement.

37 . The Court concludes that it has been “reliably shown” that the applicant was of unsound mind within the meaning of Article 5 § 1 (e).

38 . Lastly, the Court notes that the applicant ’ s placement in a psychiatric hospital was ordered on 14 September 2005 by the Sokółka District Court under Article 94 of the Criminal Code. It further does not find that the domestic courts were arbitrary in their decisions.

39 . Consequently, the applicant ’ s deprivation of liberty was “lawful” within the meaning of Article 5 § 1 (e) of the Convention.

40 . It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

41 . The applicant further complained that he had not had at his disposal an effective procedure by which he could have challenged the lawfulness of his arrest and admission to the psychiatric hospital. The complaint falls to be examined under Article 5 § 4 of the Convention which provides as follows:

“4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

42 . The Government firstly raised a preliminary objection that the applicant failed to exhaust the available domestic remedies. In particular, he should have lodged a constitutional complaint challenging the provisions of the Code of Enforcement of Criminal Sentences, namely Article 201 § 1, on the basis of which he was arrested and admitted to the psychiatric hospital. They further submitted that the applicant should have lodged a claim for protection of personal goods under Articles 23 and 24 of the Civil Code. Lastly, the Government stated that the applicant could have instituted criminal proceedings against the judge responsible for his arrest. However, they agreed that this remedy might not have been effective.

43 . The Government further noted that the court ’ s order to arrest the applicant and place him in the hospital was given as a consequence of the enforcement proceedings. It was possible for the applicant to challenge the court ’ s decision to discontinue the proceedings and place him in the hospital, which he had done. He had also applied for termination of the enforcement proceedings. Both motions were unsuccessful.

44 . The applicant ’ s representative contested these submissions. She claimed that Polish law did not provide for a possibility of appeal against an order to transport a person to a psychiatric hospital. She further submitted that the applicant wished to lodge a constitutional complaint. However, she had informed the Sokółka District Court on 25 May 2006 that she had not found any legal grounds to file such a complaint.

45 . The Court does not find it necessary to rule on the Government ’ s preliminary objections since this complaint is in any event inadmissible for the following reasons.

46 . The Court firstly reiterates that while persons deprived of their liberty by virtue of a decision taken by an administrative body are entitled to have the lawfulness of this decision reviewed by a court, the same does not apply when the decision is made by a court at the close of judicial proceedings . In those cases, the review required by Article 5 § 4 is incorporated in the decision (see, among other authorities, Luberti cited above § 31). Persons of unsound mind detained for an indefinite or lengthy period are entitled, where there is no automatic periodic review of a judicial character, to take proceedings at reasonable intervals before a court to put in issue the lawfulness – within the meaning of the Convention – of their detention, whether it was ordered by a court or by some other authority (see Shtukaturov v. Russia , no. 44009/05, § 121, 27 March 2008).

47 . In the instant case, the applicant ’ s committal to a psychiatric hospital was decided by a court at the close of judicial proceedings attended by full procedural safeguards (see paragraph 5 above). Subsequently, on 29 September 2006 the Sokółka District Court again heard experts and ordered the applicant ’ s placement in a psychiatric hospital. On 20 October 2006 the District Court ordered that the applicant be transported to the hospital.

48 . The Court observes that the applicant does not complain about the lack of subsequent judicial review of the lawfulness of his detention but the fact that he could not appeal against the order to transport and place him in the psychiatric hospital. It follows that the su pervision required by Article 5 § 4 was incorporated in the decisions of 14 September 2005.

49 . It follows that this part of the application is also manifestly ill ‑ founded and must be rejected in accordanc e with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Lawrence Early David Thór Björgvinsson Registrar President