FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Applications nos. 27715/95 and 30209/96 by Roman and Słavomir BERLIŃSKI against Poland

The European Court of Human Rights ( Fourth Section) , sitting on 18 January 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 applications introduced with the European Commission of Human Rights receptively on 10 April 1995 and 22 February 1994 and registered on 26 June 1995 and 15 February 1996,

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

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

Having deliberated, decides as follows:

THE FACTS

The first applicant, Roman Berliński , is a Polish national born in 1971. The second applicant, Słavomir Berliński , is a Polish national born in 1974. The applicants are brothers, and live in Lublin .

A. The circumstances of the case

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

1. Events of 4 October 1993

On 4 October 1993 the applicants, who practice body-building, were attending an athletics club at a Lublin university. The club manager urged the applicants to exit, as they had been present at the club without the appropriate permission. He warned that he would call the police if they did not leave. The applicants did not agree to leave. The manager called the police, and six uniformed officers arrived soon thereafter.

According to the applicants’ account, the officers allegedly “showed a hostile attitude” towards them and “were not interested in checking their [identity documents] but simply to force them out” of the athletics club. The policemen “immediately wanted to handcuff them and pulled their arms backwards”. The applicants state that they “resisted this treatment”. The first applicant “managed to get free for a moment”, while the second applicant was “pushed and pulled” by two police officers. He was treated with gas and struck with a stick.

According to the Government, the applicants not only resisted but also attacked the policemen who were trying to apprehend them. One of the officers was kicked in the face and another in the crotch.

The parties submit that only when one officer drew a gun from his holster did the applicants yield. They were then handcuffed.

The applicants were immediately put in a police vehicle.

The Government state that the applicants still resisted whilst being taken to the vehicle, and force again had to be used against them.

The applicants were taken to a police station situated 4 kilometres from the athletics club. 

According to the applicants’ account, in the police van they were put on the ground and stayed handcuffed. The van had no separate cell for the arrested. The policemen and the applicants were closed together in the rear part of the van. The applicants “had no chance but to expose their bodies to the treatment of the policemen”. They “suffered heavy blows in their heads, kidneys, backs and spines”. The policemen used their police sticks to beat them up. The first applicant lost consciousness.  

The Government deny that any ill-treatment occurred in the van.

At the police station the applicants were briefly questioned. The part of the first applicant’s custody interview record concerning his physical condition reads: “before [the arrest the applicant was] well, at present [he complains of] pain in the left eye, the neck, the left kidney, the jaw and the head”. The relevant part of the second applicant’s custody interview record reads: “pain in the temples, the hands, the nose, the teeth, the right thumb”. In the late evening of the same day the applicants were examined by doctors. The x-ray photograph of the first applicant’s cranium showed no apparent injuries to his head. On the basis of the applicants’ physical examination, which disclosed no problems in their circulatory and respiratory systems, a doctor concluded that they could be regarded as fit for detention.   

The applicants remained in custody until the afternoon of the next day when they were brought before a district prosecutor. They were released after having been questioned by the prosecutor.

The first applicant was taken to a hospital where he remained for 11 days. The second applicant was taken to the same hospital, was immediately released, and later underwent out-patient treatment.

2. Proceedings against the police officers

On 5 October 1993, when being questioned by the prosecutors, the applicants complained that they had been beaten up by the police officers in the athletics club and in the police van. The applicants said that they had doubts as to the officers’ identity, and that they had asked the policemen to present documents attesting to their authority. They alleged that the officers had refused to do so and that the policemen had instead attempted to arrest them. The applicants further stated that, in the police van, which lacked a separate cell for the arrested, the officers had started to inflict heavy blows all over their bodies. They had been defenceless and had not been able to lessen the impact of the blows because of their hands being handcuffed behind their backs and themselves being pushed onto the vehicle’s floor. They submitted that the officers had beaten them all the way to the police station.

On 15 March 1994 a district prosecutor, on suspicion that offences against the applicants’ personal rights had been committed in breach of the Polish Criminal Code and the Police Act, instituted investigations relating to the applicants’ complaints against the police officers.

It appears that the police officers who allegedly ill-treated the applicants were regarded as witnesses, not as accused, in the proceedings.

The applicants did not appear at a hearing of the case before the district prosecutor on 25 March 1994.

On 28 March 1994 the prosecutor examined a witness DK (policeman). On 30 March witnesses MK and MS (police officers) were examined. On 6 April witnesses MW (the applicants’ acquaintance) and EP (the club manager) were questioned. On 13 April the prosecutor summoned witnesses JS and MB, and on 20 April he summoned a witness PW (all police officers).

The applicants were examined on 5 and 9 May 1994. During the inquiries the applicants maintained that the officers had been very hostile towards them from the very beginning, that they had not asked them to leave the athletics club, and that they had, without any reason, beaten them up. The policemen contended that they had been attacked by the applicants that only threatening them with a firearm had permitted their apprehension.

On 23 May 1994 the prosecutor heard witnesses MW, JR and JN (police officers). On 24 May 1994 he summoned witnesses AG and JP (doctors). On 26 May the prosecutor examined a witness DJ, and on 27 May he questioned a witness MH (both doctors).

The investigation into the conduct of the policemen was prolonged by decision of a regional prosecutor of 10 June 1994, with a view to examining further witnesses.

On 14 June 1994 the district prosecutor examined witnesses AW and RM (doctors).    

On 16 June 1994 the Forensic Department of the Białystok Academy of Medicine produced an opinion as to the applicants’ physical condition following the incident. The opinion was delivered at the request of the Lublin District Court in the proceedings against the applicants (see below).

The forensic experts, based on the medical records collected throughout the applicants’ treatment from 5 October 1993, found that immediately after the incident the first applicant had a haematoma around the left eye, a bruise of 2 x 2 cm on the back of his head, a bruise with grazed skin of 7 x 7 cm on the left side of his jaw, four band-like bruises of significant size on his chest, and that his abdomen and spine were sensitive. The second applicant had small isolated bruises on his chin and neck, bruises on a grazed upper lip, an inner wound in the mucous membrane of the upper lip, lesions of the front teeth, and an injury to the right knee and wrist.

The forensic experts also stated that several days after the incident the first applicant had been increasingly complaining of pain in his head, vertigo, diminished clarity of sight and hearing, and that the second applicant had been complaining about a weak right hand, diminished sensitivity of his fingers, severe headaches, vertigo, nausea, pain in the spine and a reduced ability to move. It was noted however that the subsequent expert reports had not confirmed any deviations from the normal state of both applicants. The experts noted that on 8 October 1993 the first applicant should have been released from hospital but remained following an intervention by the applicants’ father. The experts also stressed that the father, himself a doctor, during his visits at the hospital had been instructing the first applicant of what and how he should complain. The first applicant had been released from hospital on 15 October 1993, although after this date he underwent further out-patient treatment of his jaw, chest and spine.

The forensic experts concluded that the injuries sustained by the applicants might have occurred from the use of a rigid, blunt instrument, e.g. a truncheon, and that the lesions might have occurred in the circumstances alleged by them, e.g. from blows by truncheons and fists. The experts held that the damage caused by these injuries to the applicants’ soft tissues did not last more than seven days, but that those injuries were serious enough to warrant application of Article 156 § 2 of the Polish Criminal Code [causing light bodily harm] against the police officers. The experts also emphasised that the applicants’ grievances had contained a certain measure of simulation and exaggeration.      

On 29 June 1994 the district prosecutor requested experts at the WrocÅ‚aw Academy of Medicine to produce a medical opinion specifically in the context of the proceedings concerning the applicants’ allegations against the police officers.

By decisions of 9 September and 15 November 1994 the regional prosecutor again prolonged the investigation.

The opinion of the experts at the Wrocław Academy of Medicine was produced on 6 December 1994. They found that following the arrest the first applicant had had bruises on his face and a swollen left eye, and that the second applicant had isolated bruises on the face, a grazed lip and lesions of three teeth. The experts also found that the first applicant had not been suffering from concussion. The experts stated that the injuries of the applicants could occur in the circumstances alleged by the police officers, the applicants or in other circumstances.

The applicants requested the district prosecutor to hear additional witnesses, namely their parents, two district prosecutors and an American basketball player who had witnessed the events of 4 October 1993. On 9 September 1994 the prosecutor dismissed the request on the ground that the applicants’ parents had not witnessed the incident, that the testimonies of the prosecutors had not been relevant to the determination of the facts, and that the statements of the American basketball player had been recorded in the proceedings against the applicants. On these grounds the prosecutor considered that no examination of further witnesses was necessary.

On 12 December 1994 the prosecutor decided to discontinue the investigation against the policemen. The prosecutor held that there was a lack of evidence in favour of the applicants’ allegations that the officers had committed an offence. On the basis of witnesses’ evidence, he held that the policemen had been compelled to use force only following the applicants’ refusal to leave the sports club. The prosecutor did not establish that any force had been used against the applicants in the police van. By virtue of the medical opinion of the WrocÅ‚aw Academy of Medicine, the prosecutor stated that the fact of the applicants’ hospitalisation for seven days did not necessarily infer that the ample period of seven days had been required to complete the treatment of lesions suffered by the applicants. The prosecutor concluded that “the injuries [sustained by the applicants] could occur both in the circumstances alleged by themselves, as well as in the circumstances alleged by the police officers”. Given the principle of benefit of doubt in favour of the accused, the prosecutor decided to discontinue the case against the police officers. 

The applicants appealed against the decision. On 16 January 1995 a regional prosecutor dismissed the appeal and finally discontinued the proceedings. The regional prosecutor found no “unequivocal evidence” of the officers’ guilt. He held that the district prosecutor had properly assessed the collected material, and that he had adopted a well-motivated decision.

3. Proceedings against the applicants

After questioning the applicants on 5 October 1993, a district prosecutor commenced investigations against them on suspicion that they had attacked the police officers, thereby obstructing them in the course of their duties. On the same day the prosecutor ordered the applicants’ bail on suspicion of their having committed an offence under Article 234 of the Criminal Code in regard to the events of 4 October 1993.  

On 6 October 1993 the applicants appealed against the bail decision, requesting the prosecuting authorities to appoint a free defence lawyer on the ground of their difficult financial situation.

The applicants have presented copies of their applications to the prosecutor of 6 October 1993, whereby they asked, on behalf of each one of them, for free legal assistance, referring inter alia to Article 6 § 3 (c) of the Convention.

The applicants received no reply to the requests.

In the course of the investigation the policemen, the applicants and witnesses of the events of 4 October 1993, including witnesses on the applicants’ behalf, were summoned. The applicants submitted many applications in which they contended that the allegations against them should have been examined from the angle of their own complaints that the officers had beaten them up. However, by virtue of relevant provisions of domestic criminal procedure, the prosecution decided that the material contained in the case-file relating to the applicants’ allegations on their maltreatment by the police officers be separated and that two parallel investigations be conducted in relation to the incident of 4 October 1993.

On 17 February 1994 the applicants were charged with affray, assault and battery on the police officers in the course of the execution of their duties.

On 7 April 1994 the Lublin District Court decided to obtain from the Forensic Department of the BiaÅ‚ystok Academy of Medicine an opinion as to the applicants’ injuries following the incident. The opinion was produced on 16 June 1994 (see above). 

On 17 October 1994 the Lublin District Court decided to obtain an opinion from forensic psychiatrists to establish whether the applicants had been “able to ascertain and measure their actions” to determine their criminal responsibility. The court also decided to appoint a free lawyer to represent the applicants in view of the concern over their state of mind, in accordance with Article 70 § 1 of the Code of Criminal Procedure.

By a letter of 18 October 1994 the applicants informed the court that they refused to undergo a psychiatric examination. They did not appear for the out-patient psychiatric examination at the Lublin Centre for Mental Health on the date fixed by the court on 10 January 1995. The court ordered compulsory appearance of the applicants on the next date fixed for out-patient psychiatric examination on 2 February 1995. The applicants were brought to the experts on the above date, but refused to be subjected to an examination. The above situation repeated itself on 8 March 1995. In view of the fact that the applicants had refused to undergo out-patient psychiatric examination three times, on 8 March 1995 the forensic psychiatrists requested the court to place the applicants at a mental hospital for a forensic-psychiatric opinion to be produced.

On 23 March 1995 the Lublin District Court ordered the applicants’ compulsory placement at the Lublin Centre for Mental Health for a period of no longer than six weeks. The applicants and their counsel appealed against the above decision. In the appeal the applicants’ representative declared that he undertook to ensure their voluntary appearance for out-patient psychiatric examination. On 3 April 1995 the Lublin Regional Court, having regard in particular to the above commitment by the applicants’ defence counsel, quashed the decision of 23 March 1995.

On the next day fixed for the applicants’ out-patient psychiatric examination on 30 May 1995, they again failed to submit to out-patient examination. On 21 June 1995 the experts repeatedly requested the court to order compulsory measures against the applicants in order to produce a forensic-psychiatric opinion.

On 11 July 1995 the Lublin District Court again ordered the applicants’ compulsory placement at a mental hospital for a period of no more than six weeks. On the applicants’ appeal from this decision, on 24 July 1995 the Lublin Regional Court upheld the decision of the District Court.

On 1 December 1995 the first applicant was placed at the Lublin Centre for Mental Health. Upon the experts’ application requesting to prolong the first applicant’s stay at the ward in view of his negative attitude obstructing the production of a proper diagnosis, on 11 January 1996, the Lublin District Court extended the term of the first applicant’s examination until 23 February 1996. On his appeal against the above decision, on 22 January 1996 the Lublin Regional Court upheld the decision of the District Court. The first applicant was released from the psychiatric ward on 15 February 1996.

On 22 February 1996 the final opinion as to the mental condition of the first applicant was issued. The forensic psychiatrists concluded that at the moment of the incident with the police of 4 October 1993 he was able to comprehend the meaning of his acts and to control his conduct. The first applicant was not found to be of unsound mind. The experts also noted that he had been very suspicious and distrustful of the examination.

As the second applicant expressed his willingness to undergo out-patient psychiatric observation, he was not placed in a mental hospital. The forensic psychiatrists delivered their opinion in regard to the second applicant on 27 February 1996. According to the experts’ conclusions, the second applicant was mentally sane. The experts also noted that he had been very stressed throughout the examination, often speaking with a raised voice and not noticing the requests to calm him down.    

On 7 August 1996 the Lublin District Court found the applicants guilty under Article 234 of the Criminal Code in that they had resisted and assaulted the officers on 4 October 1993. It held that the manager of the athletics club had been entitled to demand the applicants’ removal notwithstanding his motives therefor, and that the police had lawfully enforced this demand. The applicants were sentenced: the first applicant to one year and six months’ imprisonment and the second applicant to one year’s imprisonment. The court suspended the sentences for three years for each of the applicants.

On 17 December 1996 the Lublin Regional Court, upon the applicants’ appeal, upheld the first-instance judgment. The Regional Court concluded that “the fact that the defendants did not comply with the request of the five police officers to leave the sports hall shows a lack, on their part, of a critical judgment of their own conduct - this was also confirmed by the forensic psychiatrists”. That decision was final.

It does not appear that the applicants were imprisoned as a result of the conviction.

B. Relevant domestic law

1. Arrest and detention on remand

Pursuant to Articles 205-208 and 217 of the Code of Criminal of the Procedure, the police may arrest a person suspected of having committed an offence where it is reasonably believed that the person may abscond or obstruct the investigation and trial. The reasons for the arrest shall be stated in a special arrest record, which may be served upon the arrested person within 48 hours from the moment of the arrest. A detention order may be issued by a court or prosecutor. If the arrest record or a detention order is not presented to the arrested person within 48 hours, he shall be immediately released.

Where it is reasonably believed that the person may abscond, influence parties to the proceedings, otherwise obstruct the investigation and trial or engage in new offences, the investigating authorities may apply to court for detention on remand to be ordered. Upon the arrest, the closest relative or another person shall be informed of the arrest. The arrested person shall be entitled to appeal to court against his arrest or detention order.

2. Use of force by the police

Articles 15 and 16 of the Police Act entitle the police to arrest a person who obstructs the public order and to use direct coercive force “to accomplish subordination to given orders”.

A special governmental ordinance of 17 September 1990 (DZ.U.90.70.410) provides that coercive means should cause as little ailment as possible, and should be abandoned if a person conforms to orders.

3. Psychiatric examination of the accused

Articles 65 and 184 of the Code of Criminal Procedure provide that the accused shall be under the obligation to submit to an examination of his physical and mental state. When necessary, psychiatric examination of the accused person may be conducted at a medical institution. The decision for such an observation to be carried out can be taken by a court or prosecutor. The psychiatric examination at a medical institution may not exceed six weeks, but it can be extended, on application by the hospital concerned, when the necessary opinion cannot be obtained throughout the statutory time-limit. The accused person is entitled to appeal to court against the decision ordering the psychiatric examination or extending the term thereof.

4. Free legal assistance

Under Article 69 of the Code of Criminal Procedure, an accused may apply to a prosecutor to be appointed a free defence counsel in case of insufficiency of means. The prosecutor must refer the request to the court for a lawyer to be appointed.

Under Article 70 § 1, in the course of the trial the court may of its own motion appoint a lawyer to represent the defendant in view of the justified concern over his state of mind.

COMPLAINTS

1 . Under Article 3 of the Convention the applicants complain that on 4 October 1993 the police officers beat them up while attempting to apprehend them, and while they were conveying the applicants in a police van which lacked a separate cell for the arrested. They allege that the policemen employed excessive and unnecessary physical force against them in breach of the above provision of the Convention. Furthermore, the authorities’ investigations into the alleged ill-treatment were inadequate as the prosecutors did not examine particular witnesses and failed to assess the reports of the Białystok Academy of Medicine when they found that there was lack of evidence of the officers’ guilt.

2 . Under Articles 6 and 13 they further complain that the prosecution, in discontinuing proceedings against the police officers, infringed the right to a fair criminal trial and the right to an effective remedy before a national authority.

3 . Under Article 5 §§ 1 and 2 of the Convention the applicants complain that their arrest on 4 October 1993 was unlawful and that they were not informed of the reasons thereof.

4 . Under Article 5 § 1 (e) the first applicant complains that his compulsory placement at a psychiatric ward was unlawful as he is not of unsound mind. He alleges in particular that the practice of Polish courts shows that domestic law does not permit the placement of a person at a psychiatric hospital contrary to his will.

5 . Under Article 6 of the Convention the applicants complain about the criminal proceedings against them, alleging that the courts reached wrong decisions and thus infringed the right to a fair trial. In addition, the proceedings were allegedly unreasonably long. They further allege that their right to be presumed innocent was violated by their psychiatric examination in the course of the proceedings. They also complain of a violation of their defence rights in that not all witnesses of the events of 4 October 1993 were examined.

6 . Furthermore, under Article 6 of the Convention they complain that their defence rights were violated as their requests of 6 October 1993 to have an official defence counsel was ignored. As a result of their financial incapacity, they had no lawyer from the beginning of the criminal proceedings until 17 October 1994.

7 . Under Article 8 the applicants finally complain about their compulsory psychiatric examination. In this respect the first applicant complains that his placement at a psychiatric ward and the conditions of that confinement amounted to a violation of the right to respect for his private life. The second applicant complains in this regard about his out-patient psychiatric examination.

THE LAW

1. The Government submit first that the applicants abused their right to petition under Article 35 § 3 of the Convention. The Government state in this respect that the main reason of the applicants’ complaints in this application is to support their plans for emigration to the United States of America or to a Western European country.

On the basis of the material in its possession, the Court finds no evidence that the applicants abused their right to petition within the meaning of Article 35 § 3 of the Convention. The case cannot therefore be dismissed under this provision.

2. The applicants allege a violation of Article 3 of the Convention, which states as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Government deny any ill-treatment of the applicants on 4 October 1993. They state that the use of force was necessary to effect the applicants’ submission to the lawful requirements of the police officers. No excessive force was used against them, and no beating occurred in the van. Furthermore, the investigations into the conduct of the policemen were thorough and effective. During the proceedings the prosecutor examined 15 witnesses, and obtained the qualified experts’ conclusions, based on which he discontinued the case against the police officers as lacking plausible evidence. There was thus no violation of Article 3 of the Convention.

The applicants argue that on 4 October 1993 they were ill-treated, and that they were subsequently denied effective investigation of the police officers’ conduct, in breach of Article 3.

In the light of the parties’ submissions, the Court considers that this part of the application raises complex questions of fact and law, the determination of which should depend on an examination of the merits. This aspect of the case cannot therefore be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

3. The applicants allege a violation of their rights to a fair criminal trial under Article 6 of the Convention and to an effective domestic remedy under Article 13 in connection with the discontinuation of the criminal proceedings against the police officers.

The Court observes however that these proceedings involved no determination of a “criminal charge” against the applicants. Accordingly, Article 6 does not apply in this respect. It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention, within the meaning of Article 35 § 3.

The Court considers that the applicants’ complaint under Article 13 of the Convention about the investigation against the police officers falls to be examined under Article 3 of the Convention (see Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV, § 130-136).

Accordingly, this aspect of the case must be rejected under Article 35 §§ 3 and 4 of the Convention.

4. The applicants next allege a violation of Article 5 of the Convention, which provides, insofar as relevant, 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: … ;

(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;

(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; … .

2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.”

The Court recalls the requirement in Article 5 § 1 that a deprivation of liberty be compatible with domestic law and not arbitrary (see Wloch v. Poland [Section IV], no. 27785/95, 19.10.2000, § 109).

To the extent that the applicants complain about their arrest on 4 October 1993, the Court notes that they were apprehended on 4 October 1993 following an incident with the police officers. They were later brought to the police station, questioned, and released on the next day. Subsequently, criminal proceedings were instituted against the applicants on suspicion of their having committed an offence under Article 234 of the Criminal Code in resisting and assaulting the officers. The Court considers therefore that the applicants’ arrest on 4 October 1993 was compatible with purposes in Article 5 § 1 (c) of the Convention.

There is no evidence that the arrest was incompatible with Articles 205-208 and 217 of the Code of Criminal of the Procedure, given that the domestic provisions required no formal order or record in connection with the arrest which lasted not more than 48 hours. It follows that the applicants’ arrest complied with the procedure prescribed by domestic law.

Furthermore, the Court notes that an incident occurred between the applicants and the police officers on 4 October 1993 concerning the requirement for the applicants to leave the sports club. The Court is not called upon to speculate as to the grounds for the police officers’ requirement, even though it may be noted that the lawfulness thereof was later confirmed by the domestic courts. The fact remains that the police officers, in exercising their functions to protect the public order, had the statutory authority to give orders, and that the applicants could be arrested for mere non-compliance therewith. Yet it is undisputed that the applicants argued with the police officers and failed to submit to their orders completely, at least until being handcuffed. In these circumstances the Court considers that the police officers had sufficient grounds to arrest the applicants, and that the arrest was not arbitrary.

Against this background, the Court is satisfied that the applicant’s arrest was compatible with domestic law and “lawful” within the meaning of Article 5 § 1 of the Convention.

To the extent that the applicants complain under Article 5 § 2, the Court recalls that the purpose of this provision is to enable the arrested person to challenge the reasonableness of the suspicion against him and to state whether he admits or denies the offence. It does not require that the necessary information be given in a particular form, or that it consist of a complete list of the charges to be laid against the arrested person (see Visockas v. Lithuania [Section III], no. 49107/99, 6.1.2000 (dec.)).

Nevertheless, the Court notes that the applicants were heard at the police station on the date of their arrest. On the next day they were released and their bail was ordered. The bail decision referred to the suspicion of the applicants’ having committed an offence under Article 234 of the Criminal Code in connection with the events of 4 October 1993. The Court finds that the guarantees of Article 5 § 2 of the Convention were satisfied.

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

5. The first applicant also alleges a violation of Article 5 § 1 (e) of the Convention, which regulates inter alia detention of persons of unsound mind, in connection with his compulsory placement at a mental ward.

However, the Court notes that the first applicant was not detained to be isolated for treatment of a mental illness. His compulsory placement at the mental hospital from 1 December 1995 to 15 February 1996 was carried out in the context of criminal proceedings against him to secure the court obligation to examine his mental state in order to determine his criminal responsibility. The Court considers therefore that this period of detention was ordered for the purposes in Article 5 § 1 (b) of the Convention.

The Court recalls that a period of detention is, in principle, lawful, if it is based on a court order (see the Benham v. the United Kingdom judgment of 10 June 1996, Reports of Judgments and Decisions 1996-III, §§ 42-47).

The Court observes that the first applicant’s compulsory placement at a psychiatric ward was ordered by the Lublin District Court on 11 July 1995. It has not been alleged that the court acted in excess of jurisdiction. Indeed, it clearly acted within its jurisdiction insofar as it had power to secure the obligation to examine the first applicant’s mental state and to make an appropriate order in respect of the experts’ application for his compulsory placement at the hospital, pursuant to Articles 65 and 184 of the Code of Criminal Procedure. Following the first applicant’s placement on 1 December 1995 on the basis of that order, the term of his detention in the hospital was extended by the District Court in accordance with the domestic provisions. The lawfulness of the first instance orders authorising the detention was confirmed on appeal.

Nor was the first applicant’s placement at the mental ward arbitrary. On the facts of the case it appears that the courts ordered his compulsory placement at the hospital as an exceptional measure, as a result of his repeated failure to undergo outpatient examination ordered previously by the court. It must be noted that the second applicant’s compulsory placement at a hospital was not ordered as he submitted to outpatient psychiatric examination. There is no evidence that the domestic courts acted in bad faith in authorising the first applicant’s deprivation of liberty in this respect, or that they neglected to attempt to apply the relevant legislation correctly (see, mutatis mutandis , ibid. ).

Against this background, the Court is satisfied that the first applicant’s compulsory placement at the mental ward complied with “a procedure prescribed by law” and was “lawful” within the meaning of Article 5 § 1 of the Convention.

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

6. The applicants complain under Article 6 of the Convention that they were deprived of a fair trial within a reasonable time, that they were not presumed innocent, and that their right to examine witnesses was violated.

Article 6 provides, insofar as relevant, as follows:

“1.  In the determination of … a criminal charge against him ..., everyone is entitled to a fair ... hearing within a reasonable time by an independent and impartial ... tribunal ... .

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. … .

3. Everyone charged with a criminal offence has the following minimum rights: …

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; … .”

The applicants alleged in this part of the application that the domestic courts had wrongly established facts and applied norms of domestic law in the case. However, the Court recalls that it is not its task to review alleged errors of fact and law committed by the domestic judicial authorities and that, as a general rule, it is for the national courts to assess the evidence before them and to apply domestic law. The Court’s task is to ascertain whether the proceedings as a whole were fair (see, inter alia , the Bernard v. France judgment of 23 April 1998, Reports 1998-II, § 37).

There is no evidence that, in ordering the applicants’ psychiatric examination or otherwise, the domestic authorities declared them guilty of an offence before that guilt was established by the competent court. There has thus been no breach of Article 6 § 2.

To the extent that the applicants complain about the length of the proceedings, the Court notes that they lasted at two levels of jurisdiction from 4 October 1993 to 17 December 1996, i.e. three years, two months and 13 days. Whilst the proceedings could not be regarded as particularly complex, no period can be identified as delayed by the authorities. On the contrary, the applicants’ own behaviour, notably their repeated failure to submit to the psychiatric examination ordered by the court, protracted the trial. In these circumstances, the proceedings viewed as a whole may not be deemed as being unduly long.

To the extent that the applicants allege a violation of their rights under Article 6 § 3 (d) of the Convention, the Court recalls that this provision does not give the defence an absolute right to question every witness or expert it wishes to call. The essential aim of this provision, together with Article 6 § 1, is equality of arms (see the Vidal v. Belgium judgment of 22 April 1992, Series A no. 235-B, § 33). The principle of equality of arms means that both the prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party (see the Belziuk v. Poland judgment of 25 March 1998, Reports 1998-II, § 37).

The Court notes that witnesses, including those on the applicants’ behalf, were questioned, and expert examinations were carried out in the present case. The Court’s task is to review the way in which the witnesses’ and experts’ evidence was taken, not to re-assess its relevance to the finding of the applicant’s guilt. There is no evidence that the way in which the courts handled the evidence in this case breached the applicants’ rights under Article 6 § 3 (d).

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.

7. The applicants also allege a violation of their rights under Article 6 §§ 1 and 3 (c) of the Convention to be given legal assistance “free when the interests of justice so require”.

The Government submit that the first applicant indeed applied for a court appointed lawyer by request of 5 October 1993, in accordance with the relevant domestic requirements. The Government admit that he did not receive any reply to the request, and that “the prerequisites of Article 6 § 3 (c) of the Convention were not satisfied”. They state however that the second applicant made no request to be appointed a free defence counsel, and that he failed to exhaust domestic remedies in this regard.

The applicants submit that on 6 October 1993, when appealing against the bail order of 5 October 1993, they both requested of the prosecutor that a free defence counsel be provided for them. However, the prosecutor did not reply to the request nor referred it to the court, thereby breaching the requirements of Article 69 of the Code of Criminal Procedure. The applicants had no lawyer until 17 October 1994, when the Lublin District Court appointed a defence counsel under Article 70 § 1 of the Code, in view of the concern over their state of mind. As a result they could not properly defend themselves, in breach of Article 6 §§ 1 and 3 (c) of the Convention.

The Court notes that the applicants, in their applications to the prosecutor of 6 October 1993, asked for free legal assistance on behalf of each one of them, referring inter alia to Article 6 § 3 (c) of the Convention. The Court is satisfied that the applicants exhausted domestic remedies in this respect, in accordance with Article 35 § 1 of the Convention.

The Court has had regard to the parties’ other observations on this aspect of the case. It considers that this part of the application raises complex questions of fact and law, the determination of which should depend on an examination of the merits. This aspect of the case cannot therefore be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

8. The applicants finally allege a violation of Article 8 of the Convention, which provides, insofar as relevant, as follows:

“1. Everyone has the right to respect for his private … life … .

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

As regards the first applicant’s compulsory placement at the mental hospital, the Government submit that this interference with his right to respect for his private life was compatible with national law, pursued the legitimate aim of the prevention of crime, and was proportionate to that aim because his compulsory placement was ordered only following his repeated failure to comply with out-patient psychiatric examination ordered by the court. According to the Government, the first applicant to a large degree contributed to the situation where his rights under Article 8 of the Convention were restricted.

The first applicant argues that his placement at a psychiatric ward was not provided in domestic law. In particular, he considers that it has not been proved by the case-law of Polish courts that a compulsory placement at the mental hospital was permitted in domestic law against the will of the person concerned. In any event, his placement at the hospital was unjustified because there were no grounds to doubt that he was a mentally normal person. He objected to the court orders to submit to out-patient psychiatric examination because “there was nothing whatever wrong with him”. His compulsory placement at the mental hospital on the basis of that legitimate objection was arbitrary.

The Court observes that it is undisputed that the first applicant’s compulsory placement at the mental hospital from 1 December 1995 to 15 February 1996 amounted to an interference with his private life under Article 8 of the Convention.

Such interference constitutes a breach of Article 8 unless it was carried out “in accordance with the law”, pursued one or more legitimate aim or aims as defined in paragraph 2 and was “necessary in a democratic society” to attain them.

As to the domestic lawfulness of the interference, the Court has found for the purpose of Article 5 § 1 of the Convention that the first applicants’ compulsory placement at the mental hospital was prescribed by Articles 65 and 184 of the Code of Criminal Procedure (see above). Therefore, the interference was carried out “in accordance with the law” within the meaning of Article 8 § 2 of the Convention.

Furthermore, the Court reiterates that the first applicant was placed at the mental hospital in the context of criminal proceedings against him. The interference therefore sought the legitimate aim in the second paragraph of Article 8, namely the prevention of crime.

It remains to be examined whether the interference was “necessary in a democratic society”. The Court recalls that the notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aims pursued. In determining whether interference was “necessary in a democratic society” the Court will take into account that a margin of appreciation is left to the Contracting States. Furthermore, the Court cannot confine itself to considering the impugned facts in isolation, but must apply an objective standard and look at them in the light of the case as a whole. However, it is not for the Court to take the place of the competent national authorities in the exercise of their responsibilities when determining factual reasons for placement of a person at a mental hospital. The task of the Court is rather to review under the Convention the decisions taken by the national authorities in the exercise of their powers in this respect (see, Matter v. Slovakia [Section II], no. 31534/96, 5.7.1999, §§ 66-72).

On the facts of this case, the Court observes that the applicants’ out-patient psychiatric examination was ordered by the court on 17 October 1994 in order to examine their criminal responsibility and thereby to afford them a fair trial. The applicants’ situation in this respect may be compared with that of any defendant in criminal proceedings who is required to attend trial for equality of arms to be respected. The Court considers therefore that it was certainly justified by the interest of the good administration of justice for the domestic courts to obtain an expert opinion on the state of the applicants’ mental health. It must be noted that the second applicant agreed to undergo out-patient psychiatric examination and no interference with his rights occurred in this respect.

However, the first applicant failed to attend out-patient sessions three times, and subsequently did not comply with the undertaking that he would submit to the court obligation on a voluntary basis. As a result on 11 July 1995 the District Court ordered his compulsory placement at the mental hospital. The Court considers therefore that the interference at issue was largely the result of the first applicant’s own actions (also see the Matter judgment cited above, ibid .). On the basis of the court order the first applicant was held in the hospital for two months and a half during which time the expert opinion on his mental state was produced and the trial could proceed.

Having regard to this background, the Court concludes that the interference in question was not disproportionate to the legitimate aims pursued. It was therefore “necessary in a democratic society” within the meaning of Article 8 § 2 of the Convention. Accordingly, this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

To the extent that the second applicant complains about his out-patient psychiatric examination, the Court observes, on the basis of the material in possession, that these restrictions of his freedom of movement amounted to no more than his attendance at several sessions at a hospital whereby his mental state was examined by way of ordinary medical procedures. While the second applicant’s out-patient psychiatric examination may have caused him certain inconvenience, there is no evidence that the sources of this inconvenience were sufficient to raise an issue of failure to respect private life under paragraph 1 of Article 8 (see, mutatis mutandis , the Stjerna v. Finland judgment of 25 November 1994, Series A no. 299-B, §§ 42-45). In these circumstances it would appear that this complaint is incompatible ratione materiae with the provisions of the Convention, within the meaning of Article 35 § 3.

In any event, even assuming that the second applicant’s out-patient psychiatric examination had attained a degree and intensity to amount to an interference with his rights under Article 8 § 1, the interference would have been justified under the second paragraph of Article 8 given the good reasons adduced by the authorities in this respect, including the protection of his right to a fair trial (also see above). It follows that this aspect of the case should in any event be rejected as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

In respect of the remainder of the applicants’ complaints under Article 8, the Court considers that they do not disclose any appearance of a violation of the Convention.

Hence, this part of the application must be rejected under Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court

Declares , by a majority, admissible, without prejudging the merits, the applicants’ complaints under Article 3 of the Convention and the complaint under Article 6 about the lack of free legal assistance;

Declares, unanimously, inadmissible the remainder of the application.

Vincent Berger Georg Ress Registrar President