FOURTH SECTION

DECISION

Application no . 41244/14 Ryszard WIELOGÓRSKI against Poland

The European Court of Human Rights (Fourth Section), sitting on 6 December 2016 as a Committee composed of:

Nona Tsotsoria, President, Krzysztof Wojtyczek, Marko Bošnjak , judges, and Andrea Tamietti, Deputy Section Registrar ,

Having regard to the above application lodged on 25 June 2014,

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

Having regard to the declaration submitted by the respondent Government on 29 July 2016 requesting the Court to strike part of the application out of the list of cases and the applicant ’ s reply to that declaration,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

1. The applicant, Mr Ryszard Wielogórski , is a Polish national, who was born in 1952 and lives in a social care home in Zakrzewo .

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

3. On 14 January 2015 the application was communicated to the Government.

A. The circumstances of the case

1. The proceedings concerning the applicant ’ s incapacitation

4. On an unspecified date in 1999 the applicant was diagnosed with paranoid schizophrenia.

5. On 14 June 2006, at the request of the applicant ’ s sister and brother, the Włocławek Regional Court declared the applicant to be partially incapacitated. The court based its decision, inter alia , on the psychiatric opinion of 27 February 2006 which had confirmed the original diagnosis of chronic paranoid schizophrenia. The opinion further stated that the applicant was capable of functioning independently to a certain degree, but was unable to take legal steps concerning his situation and, for that reason, was in need of assistance.

6. On 26 September 2006 the applicant ’ s sister was appointed his guardian.

2. The proceedings concerning the applicant ’ s placement in a social care home

7. On 26 October 2007 the applicant ’ s sister filed with the Radziej ó w District Court an application for compulsory psychiatric treatment of the applicant. On 3 December 2007 the applicant ’ s sister amended her application and requested that the applicant be placed in a social care home.

8. The court decided to obtain an opinion of a psychiatrist. In his opinion of 20 March 2008, the psychiatrist stated that the applicant was suffering from paranoid schizophrenia. Furthermore, the applicant was unable to take care of his basic needs and required permanent assistance. His condition did not call for hospitalisation, but he could have been placed in a social care home.

9. On 16 June 2008 the Radziejów District Court dismissed the application for the applicant ’ s placement in a social care home ( dom pomocy społecznej ) .

10. On 20 June 2008 the Piotrk ó w Kujawski Municipal Centre for Social Services requested the Radziej ó w District Court to place the applicant, against his will, in a social care home. The claimant requested the court to admit in evidence the psychiatric opinion of 20 March 2008 (see paragraph 8 above) .

11. On 24 July 2008 the Radziejów District Court authorised the applicant ’ s placement in a social care home without his consent.

12. On 1 October 2008 the Aleksandr ó w Kujawski District Mayor decided to place the applicant in a social care home for persons with chronic psychological illnesses. On 8 January 2009 the app licant was placed in that home.

13. Due to his aggressive behaviour and psychotic symptoms, the applicant was hospitalised in a psychiatric hospital from 5 November to 29 December 2007 and fro m 17 July to 24 September 2013.

3. The applicant ’ s attempts to restore his legal capacity

14. On 4 March 2011 the applicant lodged with the Bydgoszcz Regional Court an application to have his legal capacity restored. On 24 May 2011 that court transferred the case to the W Å‚ oc Å‚ awek Regional Court, which was competent to examine the case. On 31 August 2011 the court decided to obtain expert evidence.

15. An opinion of experts in psychiatry and psychology dated 29 September 2011 indicated that the applicant suffered from paranoid schizophrenia; that he wished to be released from the social care home; that his interests should be represented in the proceedings; that he could not live independently and that the court correspondence for the purposes of these proceedings should be served on him.

16. On 20 October 2011 the Włocławek Regional Court appointed a guardian in order to represent the applicant ’ s interests in the proceedings in question. In a decision of the same day, the court dismissed the applicant ’ s application.

17. On 23 May and 16 August 2012 the applicant filed two applications with the Bydgoszcz Regional Court requesting that his legal capacity be restored. The court joined the two applications and dec ided to obtain expert evidence.

18. The expert opinion dated 2 December 2012 confirmed once again the original diagnosis. According to the opinion, the applicant was largely independent in his everyday life, but assistance was necessary in taking major life decisions, dealing with legal questions and supervising his treatment.

19. On 26 February 2013 the Bydgoszcz Regional Court dismissed the applicant ’ s application. On 8 May 2013 the court rejected the applicant ’ s appeal as lodged out of time .

4. The applicant ’ s attempts to revoke the decision on his compulsory pl acement in the social care home

20. On 12 May 2014 the applicant lodged with the Aleksandr ó w Kujawski District Court an application under section 41 of the Psychiatric Protection Act to revoke the decision authorising his placement in the social care home. The judicial proceedings were instituted and, according to the Government, they were still pending on 30 April 2015. It appears that the applicant ’ s application was dismissed. At the date of the last information available to the Court (21 September 2016), the applicant was still detained in the social care home.

B. Relevant domestic law and practice

21. The relevant domestic law and practice concerning the placement of persons in a social care home are set out in the Court ’ s judgment in the case of Kędzior v. Poland ( no. 45026/07, §§ 38-45, 16 October 2012).

COMPLAINTS

22. The applicant complained that his placement in the social care home had been unjustified since he was able to live independently. He alleged that he had been deprived of his liberty in an unlawful manner on the basis of an erroneous medical assessment.

23. The applicant further alleged that he had not had at his disposal any procedure by which he could have challenged the necessity of his continued stay in the social care home.

THE LAW

A. Complaint under Article 5 § 1 (e)

24. The applicant complained about unlawfulness of his detention in the social care home. He did not invoke any Article of the Convention. The Court finds that this complaint falls to be examined under Article 5 § 1 (e) of the Convention.

25. After the failure of attempts to reach a friendly settlement, by a letter of 29 July 2016 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by this part of the application. They further requested the Court to strike out this part of the application in accordance with Article 37 of the Convention. The declaration provided as follows:

“The Government hereby wish to express – by way of the unilateral declaration – their acknowledgement that the applicant was deprived of his liberty in breach of Article 5 § 1 (e) of the Convention due to the lack of periodic review s of the continuing necessity of his stay in the social care home. Simultaneously, they declare that they are ready to pay the applicant the sum of PLN 20,000 which they consider to be reasonable in the light of the individual circumstances of the present case, as well as the Court ’ s case-law in similar cases ( ... ). 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 period plus three percentage points ...

The Government respectfully suggest that the above declaration might 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 ...”

26. On 21 September 2016, the Court received a letter from the applicant stating that he had agreed to the terms of the Government ’ s declaration.

27. With regard to the applicant ’ s complaint under Article 5 § 1 (e) of the Convention, the Court finds that following the applicant ’ s express agreement to the terms of the declaration made by the Government the case should be treated as a friendly settlement between the parties.

28. It therefore takes note of the friendly settlement reached between the parties in so far as it relates to the above complaint. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of the application.

29. In view of the above, it is appropriate to strike the case out of the list in so far as it relates to the complaint under Article 5 § 1 (e) of the Convention.

B. Complaint under Article 5 § 4

30. Without invoking any provisions of the Convention, the applicant complained that he had not had at his disposal an effective procedure by which he could have challenged the necessity of his stay in the social care home. The complaint falls to be examined under Article 5 § 4 of the Convention, which reads as follows:

“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.”

31. The Government argued that the applicant had been able to challenge the decision on his placement in the social care home. The applicant was only partially incapacitated and thus he could have acted on his own before the domestic courts. Pursuant to section 41 of the Psychiatric Protection Act the applicant could, at any time, request the court to change the decision to keep him in the social care home. The applicant used this remedy by lodging on 12 May 2014 an application to revoke the decision authorising his placement in the social care home (see paragraph 20 above).

32. The Court notes firstly that the applicant ’ s placement in the social care home was ordered by a court (see paragraph 11 above).

33. The Court further observes that under domestic law there is no obligation to carry out an automatic judicial review of the lawfulness of admitting a person to, and keeping him or her in, an institution such as a social care home. At the same time, however, persons deprived of their liberty in social care homes may, at any time, request a review of the lawfulness of their detention and the need to remain in the closed facility (see K.C. v. Poland , no. 31199/12 , § 81, 25 November 2014). This possibility was open to the applicant. He was not prevented from instituting judicial proceedings on account of his partial incapacitation.

34. The Court notes in this respect that the applicant himself made use of the available procedure under section 41 of the Psychiatric Protection Act to have the lawfulness of his continued deprivation of liberty examined (see paragraph 20 above).

35. The Court has already concluded that the procedure provided for by the Psychiatric Protection Act satisfies the criteria required under Article 5 § 4 (see K.C. v. Poland , cited above, §§ 79-83).

36. It follows that this part of the application is manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Decides to strike the application out of its list of cases pursuant to Article 39 of the Convention in so far as it relates to the complaint under Article 5 § 1 (e) of the Convention;

Declares the remainder of the application inadmissible.

Done in English and notified in writing on 12 January 2017 .

Andrea Tamietti Nona Tsotsoria              Deputy Registrar President