FOURTH SECTION

DECISION

Application no. 28113/02 by Henryk ŁOPYTA against Poland

The European Court of Human Rights (Fourth Section), sitting on 15 January 2008 as a Chamber composed of:

Nicolas Bratza , President, Josep Casadevall , Stanislav Pavlovschi , Lech Garlicki , Ljiljana Mijović , Ján Šikuta , Päivi Hirvelä , judges, and Lawrence Early, Section Registrar , Having regard to the above application lodged on 8 July 2002,

Having regard to the unsuccessful friendly settlement negotiations,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together ,

Having regard to the Government ’ s request to strike the case out of its list of cases and the text of a unilateral declaration made with a view to resolving the issues raised by the application,

Having regard to the applicant ’ s comments on the Government ’ s proposal for a unilateral declaration,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Henryk Łopyta , is a Polish national who was born in 1935 and lives in Kielce . The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.

A. The circumstances of the case

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

1. The applicant ’ s psychiatric observation

On an unspecified date in 2001 the Kielce District Prosecutor opened an investigation against the applicant and charged him with insulting a civil servant.

On 28 January 2002 the Kielce District Court ( SÄ…d Rejonowy ) ordered the applicant to undergo a six-week psychiatric observation in the Morawica Psychiatric Hospital . The applicant underwent such observation from 22 August to 3 October 2002.

By a letter dated 3 October 2002 the psychiatric experts requested the Kielce District Prosecutor to prolong the applicant ’ s observation on the ground that he had displayed a “defensive attitude” ( postawa celowo – obronna ) and had not answered any questions put to him. Thus, in their view, it was not possible to prepare a report. The experts ’ request arrived at the District Prosecutor ’ s office on 10 October 2002.

The applicant ’ s psychiatric observation continued from 3 October to 13 November 2002.

On 8 November 2002 the District Prosecutor applied to the Kielce District Court for prolongation of the applicant ’ s psychiatric observation. He submitted that it had not been possible to prepare a psychiatric report within the originally fixed time-limit for reasons attributable to the applicant.

During the second observation the experts prepared their psychiatric report on the applicant. The applicant claims that the report was submitted to the District Prosecutor only on 30 December 2002. On 31 December 2002 the District Prosecutor discontinued the proceedings against the applicant, since – as followed from the expert report – the applicant had not been able to understand his acts at the time of the commission of the alleged offence. The applicant appealed against that decision. However, the prosecution authorities refused to entertain his appeal since it had been submitted out of time. That decision was eventually confirmed by the Kielce District Court in its decision of 15 July 2003.

On 21 March 2003 the Kielce District Court granted the prosecution ’ s application for prolongation of the applicant ’ s psychiatric observation from 3 October to 13 November 2002. It found, in so far as relevant:

“In the court ’ s view the prolongation of Henryk Łopyta ’ s psychiatric observation was necessary, since as underlined by the psychiatric experts before the court on 21 March 2003, Henryk Łopyta adopted a defensive attitude, which rendered it impossible to make a diagnosis and to prepare a report by 3 October 2002. For these reasons the court ruled as in the 1 st point of the operative part of the decision [and granted the prolongation] pursuant to Article 203 § 3 of the Code of Criminal Procedure.

However, it should be noted that the application for prolongation of the suspect ’ s psychiatric observation in a health establishment was lodged with the court too late. Such application should have been lodged before the expiry of the six-week time-limit specified in the court ’ s decision of 28 January 2002. Pursuant to Article 203 § 3 of the Code of Criminal Procedure a decision placing the suspect under observation in a health establishment is taken solely by a court.

It should also be noted that, contrary to Article 203 § of the CCP, the psychiatric experts did not notify the court about the termination of the suspect ’ s observation.”

On 28 March 2003 the applicant appealed against that decision. He argued that the application for prolongation had been made on 9 November 2002, and not on 3 November 2002. He further submitted that, since the last day of his extended psychiatric observation fell on 2 November 2002, the application for prolongation had been made 7 days after the termination of his lawful internment.

On 18 April 2003 the Kielce Regional Court ( Sąd Okręgowy ) dismissed the applicant ’ s appeal. It found, in so far as relevant:

“The appeal is unjustified. The applicant ’ s claim that, despite the expiry of the time-limit for his psychiatric observation he was continuously detained without an appropriate District Court order in this respect, is unfounded, since, according to the psychiatric experts ’ request for prolongation of [his] psychiatric observation there still existed good reasons to continue such observation, and that fact was acknowledged in a court order (it is true that it was given on a later date) allowing the experts ’ request.

It should also be stated that the decision under appeal was taken in accordance with the rules specified in Article 203 § 3 of the CCP, and that the psychiatric experts ’ request was justified by the impossibility of preparing their report on time due to H. Łopyta ’ s defensive attitude in the course of the original observation.

...”

In the meantime, on 24 February 2003 the applicant filed a criminal complaint with the Kielce District Prosecutor, alleging that the staff of the Morawica Psychiatric Hospital had abused their powers and ill-treated him and other patients. On 4 March 2003 the District Prosecutor refused to open an investigation. On 14 May 2003 the Kielce District Court dismissed the applicant ’ s appeal against that decision. It upheld the prosecutor ’ s findings that the applicant had not specified any concrete circumstances which would make it possible to establish that a criminal offence had been committed.

2. Civil proceedings instituted by the applicant

a) On an unspecified date in 1999 the applicant filed a compensation claim against the State Treasury with the Radom Regional Court . On 22 November 2001 the Regional Court dismissed his action. On 13 February 2002 the Lublin Court of Appeal upheld the first-instance judgment. The applicant submits that his legal-aid lawyer refused to lodge a cassation appeal against the Court of Appeal ’ s judgment, but has provided no information to substantiate this assertion.

b) On an unspecified date in 1998 the applicant sued the Skarżysko-Kamienna power company, another company and the mayor of Skarżysko-Kamienna in the Kielce Regional Court , seeking an order for repossession and compensation. On 29 October 2001 the Regional Court dismissed his claims. On 12 March 2002 the Cracow Court of Appeal upheld the first-instance judgment. The applicant did not lodge a cassation appeal.

c) On an unspecified date in 2003 the applicant sued his former legal-aid lawyer in the Kielce District Court, seeking compensation. On 22 December 2003 the District Court dismissed his claims as unfounded. On 7 April 2004 the Kielce Regional Court quashed the first-instance judgment and discontinued the proceedings, having regard to the fact that the applicant had withdrawn his claims.

d) On 4 August 2003 the applicant filed a complaint against a bailiff with the Kielce District Court in relation to an order for costs made in enforcement proceedings. On 17 November 2004 the District Court dismissed the applicant ’ s complaint as unfounded. On 13 April 2005 the Kielce Regional Court upheld the District Court ’ s decision.

3. Criminal proceedings against third parties instituted by the applicant

a) On 23 January 2004 the applicant filed a criminal complaint against the employees of the Consumer Federation and the Trade Inspectorate. He alleged that they had been negligent in relation to the handling of his complaints concerning a computer which he had purchased. On 20 February 2004 the Kielce District Prosecutor refused to open an investigation, finding that there was no case to answer. On 16 June 2004 the Kielce District Court upheld that decision.

b) On an unspecified date in 2004 the applicant filed a criminal complaint against the Canal+ company, alleging that it had attempted to obtain money from him under false pretences. On 30 September 2004 the Kielce District Prosecutor discontinued the proceedings, finding that the applicant had been a debtor of Canal+. On 21 February 2005 the Kielce District Court upheld that decision.

c) On 28 June 2004 the applicant filed a criminal complaint against a mobile phone company, alleging that it had prevented him from using his mobile phone. On 31 August 2004 the Kielce District Prosecutor refused to open an investigation, finding that no criminal offence had been committed. On 7 April 2005 the Kielce District Court upheld that decision.

B. Relevant domestic law

Article 203 of the Code of Criminal Procedure provides, in so far as relevant:

Ҥ 1. A psychiatric examination of the accused may be simultaneous with his/her observation in a health establishment in a case where the experts indicate that such a necessity arises.

§ 2. The court rules [on that matter], specifying the place of observation. In the course of the pre-trial investigation, the court rules [on that matter] on an application by the prosecutor.

§ 3. Observation in a health establishment shall not last longer than 6 weeks; the court, on an application by the establishment, may extend that time-limit for another fixed period [which is] necessary for the termination of observation. The experts shall inform the court about the termination of the observation without delay.

§ 4. The decisions referred to above under §§ 2 and 3 may be appealed against. ...”

C OMPLAINTS

1. In a letter dated 29 May 2003 the applicant complained about his unlawful detention in a psychiatric hospital from 3 October to 13 November 2002. He did not rely on any provision of the Convention.

2. The applicant complained under Article 6 § 1 of the Convention about unfairness of the four sets of civil proceedings in which he had been involved and errors of law committed by the domestic courts in those proceedings.

3. He also complained about the refusal of the prosecution service to prosecute in respect of three sets of criminal proceedings.

THE LAW

A. Complaint under Article 5 § 1

The applicant , without invoking any provision of the Convention, complained that he had been unlawfully detained in a psychiatric hospital from 3 October to 13 November 2002. The Court considers that this 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:

(...)

(b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(...)”

By letter dated 15 October 2007 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue s raised by this part of the application. They further requested the Court to strike out the relevant part of the application in accordance with Article 37 of the Convention.

The declaration provided as follows:

“(...) the Government hereby wish to express – by wa y of a unilateral declaration – their acknowledgement of the applicant ’ s unlawful deprivation of liberty during his prolonged observation in the period between 3 October 2002 and 13 November 2002 .

In these circumstances, and having regard to the particular facts of the case, the Government declare that they offer to pay the applicant the amount of PLN 18,000.

The sum referred to above, which is to cover any pecuniary and non-pecuniary damage, as well as costs and expenses, will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default periods plus three percentage points.

The Government would respectfully suggest that the above declaration be accepted by the Court as ‘ any other reason ’ justifying the striking out of the case of the Court ’ s list of cases, as referred to in Article 37 § 1 (c) of the Convention.

(...) ”

The applicant resisted the Government ’ s application to have the case struck out. He reasoned that the compensation proposed was inadequate.

The Court observes at the outset that the parties were unable to agree on the terms of a friendly settlement of the case. It recalls that, according to Article 38 § 2 of the Convention, friendly-settlement negotiations are confidential and that Rule 62 § 2 of the Rules of Court further stipulates that no written or oral communication and no offer or concession made in the framework of the attempt to secure a friendly settlement may be referred to or relied on in contentious proceedings. However, the above declaration was made by the Government outside the framework of the friendly-settlement negotiations.

The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.

Article 37 § 1 in fine includes the proviso that:

“However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”

The Court also recalls that under certain circumstances, it may strike out an application under Article 37 § 1 (c) of the Convention on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.

To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment ( Tahsin Acar v. Turkey (preliminary objection), [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI ; see also Meriakri v. Moldova (striking out), no. 53487/99 , §§ 29-32, 1 March 2005 ; Van Houten v. the Netherlands (striki ng out), no. 25149/03 , §§ 34-37, ECHR 2005 ‑ IX and Swe dish Transport Workers Union v. Sweden ( striking out), no. 53507/99, §§ 24-27, 18 July 2006 ).

T he Court notes that it has specified in a num ber of cases the precise nature and extent of the obligations which arise for Contracting States including the respondent State under Article 5 § 1 of the Convention as regards “lawfulness” of one ’ s deprivation of liberty (see, for example, Benham v. the United Kingdom , judgment of 10 June 1996, Reports 1996 ‑ III; Erkalo v. the Netherlands , judgment of 2 September 1998, Reports of Judgments and Decisions 1998 ‑ VI; Baranowski v. Poland , no. 28358/95, ECHR 2000 ‑ III ; Nowicka v. Poland , no. 30218/96, 3 December 2002 ; Shamsa v. Poland , nos. 45355/99 and 45357/99, 27 November 2003 ; D.P. v. Poland , no. 34221/96, 20 January 2004 and Ambruszkiewicz v. Poland , no. 38797/03 , 4 May 2006 ). Where the Court has found a breach of this Article it has awarded just satisfaction, the amount of which depended on the particular features of the case.

Having regard to the nature of the admissions contained in the Government ’ s unilateral declaration, as well as the amount of compensation proposed , which can be considered reasonable in comparison with the Court ’ s awards in similar cases, the Court considers that it is no longer justified to continue the examination of the relevant part of the application pursuant to Article 37 § 1 (c) (see, for the relevant principles, Tahsin Acar , cited above ).

In the light of all the above considerations, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application ( Article 37 § 1 in fine ) in so far as it concerns the complaint under Article 5 § 1 of the Convention.

The Court further notes that this decision constitutes a final resolution of this application only in so far as the proceedings before the Court are concerned. It is without prejudice to the use by the applicant of other remedies before the domestic courts to claim further compensation in respect of the impugned facts .

Accordingly, this part of the application should be struck out of the list.

B. Remaining c omplaint s

The applicant further alleged that the various above-mentioned civil proceedings had been unfair, in breach of Article 6 § 1 of the Convention. He also complained about the refusal of the prosecution service to prosecute the above-mentioned third parties.

As regards the remaining complaints, the Court, having examined them, and regardless of other possible grounds of inadmissibility, finds nothing in the case file which might disclose any appearance of a violation of the Convention. It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

C. Article 29 § 3 of the Convention

In view of the above conclusions, it is appropriate to discontinue the application of Article 29 § 3 of the Convention to the case .

For these reasons, the Court unanimously

Takes note of the terms of the respondent Government ’ s declaration in respect of the complaint under Article 5 § 1 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike the application out of its list of cases in so far as it relates to the above complaint in accordance with Article 37 § 1 (c) of the Convention;

Declares the remainder of the application inadmissible.

Lawrence Early Nicolas Bratza Registrar President