FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 36426/97 by Andrzej ZYÅšKO against Poland

The European Court of Human Rights ( Fourth Section) , sitting on 22 March 2001 as a Chamber composed of

Mr G. Ress , President , Mr A. Pastor Ridruejo , Mr L. Caflisch , Mr J. Makarczyk , Mr V. Butkevych , Mr J. Hedigan , Mrs S. Botoucharova , judges , and Mr V. Berger , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 1 December 1996 and registered on 10 June 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Polish national, born in 1949, residing in Racibórz

A. The circumstances of the case

In 1994 the applicant wrote a letter to the Regional Office ( Urząd Wojewódzki ) in which he requested that his wish to abandon his Polish citizenship be acknowledged. He formulated at this occasion various complaints about, in his view, catastrophic situation of the country, about poverty of growing parts of population due to ruinous economic policies and about a number of other social and political issues. He also wrote a letter to the Chancellery of the President of Poland, requesting to be divested of his citizenship.

On an unspecified date criminal proceedings were instituted against the applicant on charges of arson.

On 17 September 1996 the Racibórz District Prosecutor submitted a motion to the Katowice Regional Court, requesting that an order be given for the applicant’s placement at a psychiatric institution.

On 30 September 1996 the Katowice Regional Court, after a hearing held on that date in the presence of the applicant, his lawyer and a prosecutor, committed the applicant to a mental hospital. The court established that criminal proceedings had been instituted against the applicant on suspicion of arson. As doubts had arisen as to the applicant’s mental health, the prosecutor appointed experts in order to establish his condition. The experts requested that the applicant undergo a psychiatric observation, and, after the observation had been completed, submitted their report. They concluded that on account of psychiatric illness he could not be held criminally responsible, within the meaning of Article 25 § 1of the Criminal Code applicable at that time, and that he posed a threat to public order. The prosecutor had subsequently requested the court to order the applicant’s committal to a psychiatric institution. The court further stated that in the light of the evidence gathered in the investigations the applicant was, beyond any doubt, an author of the criminal offence in question (“ analizując dowody zgromadzone w toku śledztwa Sąd uznał, że nie budzi wątpliwości, iż podejrzany jest sprawcą zarzucanego mu czynu ”). The court further considered that the prosecutor’s request was supported by unequivocal conclusions of the experts.

The applicant lodged an appeal, arguing that he had not been given the access to the full text of the medical expert opinion, that the charges against him were supported only on circumstantial evidence and his guilt had not been established, and challenged the experts’ argument that his wish to emigrate had been motivated by his mental illness.

On 16 October 1996 the Katowice Court of Appeal, in a session in the presence of a prosecutor, dismissed the applicant’s appeal.  The court stated that the evidence allowed for a finding that the applicant had committed the offence concerned. The court referred in this respect to the applicant’s confession made in the investigations, and to the testimony of a fireman who had been leading action of the fire brigade. In his view, the applicant’s apartment had deliberately been put on fire. He had also found five bottles with petrol in the apartment. The court further had regard to the medical expert opinion to the effect that the applicant, who suffered from paranoid syndrome, could not be criminally responsible on psychiatric grounds and that he should be committed to a hospital as he posed a genuine and serious threat to public order. The court concluded that, in view of the fact that the applicant who had never before been under any psychiatric treatment, was uttering threats that he would escalate his violent actions, the conclusions of the lower court were justified.

Subsequently the applicant was placed in a psychiatric hospital. On an unspecified date he requested the Ombudsman to lodge a cassation appeal against this decision.

On 21 April 1997 the Ombudsman lodged a cassation appeal against the decision of the Katowice Court of Appeal. The Ombudsman argued that the Court of Appeal had failed to inform the applicant and his lawyer about the date of the hearing which was held before that court on 16 October 1996. The applicant had thus been deprived of his defence rights.

On 2 June 1997 the Supreme Court quashed the decision of the Court of Appeal, considering that in view of the fact that the applicant’s lawyer had not been informed about the date and time of the latter court’s session of 16 October 1996, and that the applicant’s interests had not been properly presented and defended in the proceedings. The Supreme Court ordered that the case be remitted to the Court of Appeal for reconsideration.

Apparently later the applicant submitted a request to be discharged from the psychiatric hospital to the Katowice Regional Court.

On 23 July 1997 the Katowice Court of Appeal, having again examined the applicant’s appeal against the decision of the Regional Court of 30 September 1996, upheld the decision. The court took into consideration that the evidence gathered in the investigations conducted by the prosecution allowed for a conclusion that the applicant had been the author of the offence concerned, as shown by his own confession and by the testimony of the witness J.K., relied on by the lower court. The court further referred to the medical expert opinion of psychiatrists from Rybnik hospital who, having regard to the results of a clinical observation of the applicant, established that he had been suffering from paranoid syndrome, and that in view of his illness he posed a serious and genuine threat to legal order.  The court concluded that the decision of the lower court was well-founded.  The court finally observed that, in the light of the letter of the Chief Physician of the Rybnik Hospital of 25 June 1997, apparently concerning the applicant’s condition at that time, a judicial review of the applicant’s detention, provided for by Article 197 of the Code of Enforcement of Sentences, was called for.

By a letter of 16 March 1998 the Katowice Regional Court informed the applicant that a decision concerning his request for release would be given as soon as the medical  expert opinion was submitted to the court.

On 22 April 1998 the applicant complained that the proceedings concerning his request for release lasted too long.

In reply, the Katowice Regional Court, in a letter of 4 May 1998, informed the applicant that the decision would be given as soon as the experts appointed to prepare an opinion as to his continued detention submit their final report. They had been urged by the court to speed up their progress, to no avail. In view of their failure to react, the court had requested them again to accelerate their work.

On 8 June 1998 the Katowice Regional Court, having questioned the experts, decided that the applicant’s detention should be maintained as he still presented a threat to public order.

The applicant and his lawyers lodged appeals against this decision, submitting that, in the view of the applicant’s condition the maintaining of the applicant’s detention had ceased to serve any purpose, and that the decision to detain him had been “politically motivated”.

On 8 July 1998 the Katowice Court of Appeal declined to examine the appeal, considering that under Article 25 of the Code of Enforcement of Sentences it was the Regional Court, composed of one professional judge and two lay judges, which was competent to rule on the applicant’s appeal.

On 31 August 1998 the Katowice Regional Court upheld the decision of 8 June 1998. The court considered that the first-instance court had been thorough in its assessment of the evidence, in particular in respect of the expert medical opinions of psychiatrists W.G. and W.Z., the conclusions of which they had reiterated at a hearing on 8 June 1998, indicating that the applicant’s detention should be maintained. The court further considered that the conclusions of this expert report, contrary to the appearances (“ wbrew pozorom ”), were identical with statements contained in another medical expert opinion drawn by psychiatrists A.J.S. and K.K.K. who had stated that the applicant’s personality had certain paranoiac characteristics. They had further argued that, since the applicant had been uttering threats, he should remain in detention. The court therefore concluded that their conclusions actually strengthened the conclusions of the other two experts.  The court went on to state that in view of the applicant’s past conviction for uttering threats and arson and the fact that during his detention in the hospital he had been submitting numerous complaints to various institutions, his further detention was called for as he had not ceased to pose a serious and genuine threat to legal order.

On 6 July 1998, the applicant requested that criminal proceedings be instituted against certain experts involved in his case. On 9 December 1998 the Racibórz District Prosecutor, to whom the case had been transferred as the prosecutor in whose jurisdiction the proceedings should be conducted, requested that the investigations be conducted by another prosecuting authority, refused to do so. The applicant appealed, and on 29 January 1999 the Katowice Regional Prosecutor set this decision aside.

On 28 April 1999 the Supreme Court refused to re-open the proceedings in which the applicant’s placement at the mental hospital had been ordered, finding that the legal requirements had not been met.

On 2 August 1999 the Katowice Regional Court held a hearing at which it examined the applicant’s request for release, submitted at an unknown date. The court, having regard to doubts as to the applicant’s current health, and in accordance with the applicant’s request, ordered that an opinion of a specialised research institution be sought. The applicant subsequently underwent twelve-weeks observation in the hospital of the Psychiatry Institute of the Warsaw Medical Academy in Pruszków hospital.

On 16 December 1999 the Ruda Śląska District Prosecutor discontinued the investigations against the experts, considering that they had no case to answer. The applicant’s appeal was subsequently transmitted to the Ruda Śląska District Court. On 19 January 2000 the court upheld this decision.

On 21 February 2000 the Katowice Regional Court ordered the applicant’s release .

B. Relevant domestic law

The conditions for detention of persons of unsound mind who are not responsible on medical grounds were laid down in the Criminal Code, as it stood at the material time:

Article 99

"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 entails a serious danger to public order, the court shall commit him to a mental hospital or another appropriate institution."

Article 101

"In cases provided for in Article 99 (...) the period of detention is not determined in the decision of the committal to the psychiatric institution; the court shall order the release if the detention ceases to be necessary."

According to the case-law of the Supreme Court, a threat to public order is to be determined on the basis of a situation obtaining at a time when the offender’s detention in the psychiatric institution is imposed. The assessment of the existence and the degree of such threat should be made in the light of a medical expert opinion. For a decision ordering detention in a psychiatric hospital to be given, it is not necessary that it is expressly stated in the medical expert opinion that it would pose a threat to public order if the offender were to remain at liberty.  It suffices that such a conclusion could be drawn from the medical expert opinion taken as a whole ( Orzecznictwo S ą du Najwy ż szego , Izba Karna i Wojskowa 1974, item 47).

A threat to public order is considered serious if an offender’s remaining at liberty gives rise to a risk of an unlawful act being committed by him ( Orzecznictwo S ą du Najwy ż szego , Izba Karna i Wojskowa 1972, item. 183).

Article 197 of the Code of Execution of Sentences, applicable at the relevant time, reads:

"1. A director of a medical institution is obliged to keep the court informed of the detainee’s health and of the progress in treatment.

...

3. The court, at intervals of not longer than six months, shall decide, on the basis of a medical opinion, on the necessity to maintain further security measures."

COMPLAINTS

The applicant complains that in the proceedings concerning the prosecutor’s motion for his placement in the psychiatric institution, held before the Katowice Regional Court and the Katowice Court of Appeal in 1996, he was refused access to th e case-file and to the expert opinion.

The applicant further complains that the evidence against him was inconclusive, that he was not suffering from any psychiatric disorder and that his detention was therefore not justified and unlawful.

THE LAW

1 . The applicant complains that the evidence against him in the criminal case was inconclusive and that his detention was therefore not justified and unlawful.

The Court has examined this complaint under Article 5 § 1(e) of the Convention which 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 for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;”

The Court recalls that in order to comply with Article 5 § 1 (e), the detention in issue must first of all be “lawful”, including the observance of a procedure prescribed by law; in this respect the Convention refers back essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof. An individual cannot be considered to be of “unsound mind” and deprived of his liberty unless the following three minimum conditions are satisfied: firstly, he must reliably be shown to be of unsound mind; secondly, the mental disorder must be of a kind or degree warranting compulsory confinement; thirdly, the validity of continued confinement depends upon the persistence of such a disorder.

A necessary element of the “lawfulness” of the detention within the meaning of Article 5 § 1 (e) is the absence of arbitrariness. The detention of an individual is such a serious measure that it is only justified where other, less severe measures, have been considered and found to be insufficient to safeguard the individual or public interest which might require that the person concerned be detained. The deprivation of liberty must be shown to have been necessary in the circumstances. No deprivation of liberty of a person considered as being of unsound mind may be deemed to be in conformity with Article 5 § 1 (e) of the Convention if it has been ordered without seeking the opinion of a medical expert. Any other approach falls short of the required protection against arbitrariness, inherent in Article 5 of the Convention. Furthermore, the medical assessment must be based on the actual state of mental health of the person concerned and not solely on past events. A medical opinion cannot be seen as sufficient to justify deprivation of liberty if a significant period of time has elapsed. The national authorities nevertheless have a certain discretion when deciding whether a person is to be detained as “of unsound mind”, as it is for them in the first place to evaluate the evidence put before them in a particular case; the Court’s task is to review their decisions from the point of view of the Convention (see, e.g., the Herczegfalvy v. Austria judgment of 24 September 1992, Series A no. 244, p. 21, § 63, and Varbanov v. Bulgaria , no. 31365/96, §§ 45-46, unreported).

The Court first notes that the first-instance court, when making its decision of 30 September 1996, first referred to evidence gathered in the criminal investigations, which indicated that the applicant had committed the offence of arson. This court considered that this evidence had shown this “beyond any doubt”. The appellate court further had regard to concrete pieces of evidence, such as the applicant’s admission and testimony of J.K. Moreover, both courts relied on the fact that the applicant had undergone a psychiatric observation in a hospital and to the expert report, recommending his placement in a psychiatric institution, which had been prepared on the basis of findings made during this observation.

The Court further notes that the opinion of the experts that the applicant posed a threat to legal order was unequivocal.

As regards the proceedings in which the applicant’s subsequent request for release was examined, the Court notes that the Katowice Regional Court first ordered that two expert opinions drafted by four specialists be prepared as to the applicant’s health. The court gave its decision on the basis of these two opinions. The appellate court, in its decision of 31 August 1998, carefully examined the apparent discrepancies between these opinions and found that their conclusions were in fact concordant. The Court, while having certain reservations as to whether the fact that during his detention the applicant had been submitting numerous complaints to various institutions should have been relied on by the Katowice Regional Court in its decision of 31 August 1998 as indicating that the applicant had been suffering from psychiatric ailments,  on the whole sees no grounds of which to call into question the objectivity and reliability of the medical judgment relied on by the domestic authorities.

In the light thereof, the conclusion of the courts that the applicant posed a threat to public order can not, in the Court’s opinion, be regarded as arbitrary or given on inadequate evidence. Accordingly, there is no indication of a violation of Article 5 § 1 (e) of the Convention. It follows that this part of the application is inadmissible as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and that it must be rejected pursuant to Article 35 § 4.

2 . The applicant complains that in the proceedings concerning the prosecutor’s motion for his placement in the psychiatric institution, held before the Katowice Regional Court in 1996, he was refused access to the case-file and to the expert opinion.

The Court has examined this complaint under Article 5 § 4 of the Convention which reads:

“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.”

The Court recalls its established case-law according to which everyone who is deprived of his liberty is entitled to a supervision of the detention’s lawfulness by a court. The Convention requirement that an act of deprivation of liberty be amenable to independent judicial scrutiny is of fundamental importance in the context of the underlying purpose of Article 5 of the Convention to provide safeguards against arbitrariness. What is at stake is both the protection of the physical liberty of individuals as well as their personal security (see Kurt v. Turkey , judgment of 25 May 1998, Reports 1998-III, § 123).

Although it is not always necessary that the procedure under Article 5 § 4 be attended by the same guarantees as those required under Article 6 § 1 of the Convention for criminal or civil litigation (see Megyeri v. Germany judgment of 12 May 1992, Series A no. 237-A, p. 11, § 22), it must have a judicial character and provide guarantees appropriate to the kind of deprivation of liberty in question. In particular, in the proceedings in which an appeal against detention order is being examined, “equality of arms” between the parties, the prosecutor and the detained person must be ensured ( Nikolova v. Bulgaria [ G.C. ], no. 31195/96, 25.03.1999, § 59).

In the present case the applicant was represented by a lawyer in the proceedings held before the Racibórz District Court in which the prosecutor’s request of 17 September 1996 for an order on his placement in a psychiatric institution was examined. It is not alleged that the lawyer did not have adequate access to the case-file. Neither is it alleged, nor can it be inferred from the case-file, that the assistance of a lawyer was inadequate or that it was such as to impair the applicant’s ability to submit his arguments to the first-instance court. As regards the proceedings following the applicant’s appeal against the decision of 30 September 1996 and insofar as the applicant’s complaint can be understood as referring to these proceedings, it is true that the applicant’s defence rights were not respected therein as the Katowice Court of Appeal failed to inform the applicant and his lawyer about the hearing which was held before that Court on 16 October 1996. However, following the extraordinary appeal proceedings instituted by the Ombudsman on the grounds that the applicant’s interest were not sufficiently represented before the Court of Appeal, the Supreme Court ordered that the decision of the former court be quashed and that the applicant’s appeal be examined again. Therefore, the decision taken in the proceedings in which the procedural safeguards of Article 5 § 4 of the Convention were not observed, ceased to exist. Subsequently, the appeal was re-considered by the Court of Appeal in the proceedings conducted in conformity with the procedural requirements which had not been complied with in the previous proceedings.

It follows that this part of the application is inadmissible as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and that it must be rejected pursuant to Article 35 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

Vincent Berger Georg Ress Registrar President