Communicated on 2 September 2019

FIRST SECTION

Application no. 8112/17 Anna SĘDELA against Poland lodged on 18 January 2017

STATEMENT OF FACTS

The applicant, Ms Anna Sędela , is a Polish national who was born in 1981 and lives in Kielce.

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

On 24 February 2016 the Kielce Regional Family Assistance Centre ( Miejski Ośrodek Pomocy Rodzinie w Kielcach ) lodged an application with the Kielce District Court for involuntary placement of the applican t in a psychiatric hospital under the relevant provisions of the 1994 Psychiatric Protection Act ( Ustawa o ochronie zdrowia psychicznego ) (“the 1994 Act”) (see below B. Relevant domestic law and practice) applicable at the material time.

On 13 April 2016 the Kielce District Court adjourned its hearing due to the applicant ’ s absence. The applicant pre sented a sick leave note from a court-approved physician ( lekarz sądowy ), dated 10 April 2016 and informing the court that she could not participate in the court proceedings until 30 April 2016 at the earliest.

On 23 May 2016, during a consecutive court hearing, the district court decided to allow evidence in the form of a psychiatric expert opinion concerning the applicant ’ s mental health and the necessity of her involuntary placement in a psychiatric hospital. The applicant was again absent. However, she informed the court by telephone that she had been unwell and could not participate in the hearing that day. She also requested the court to adjourn the hearing.

The applicant was also absent from the following court hearing on 29 June 2016. Therefore, the Kielce District Court ordered her compulsory delivery to the subsequent court hearing on 18 July 2016 under Section 46, paragraph 1a, of the 1994 Act (see below B. Relevant domestic law and practice), finding that her absence was not justified. However, on 1 July 2016 a court-approved physician issued a sick leave note for the applicant stating that she had been unable to participate in the court hearing on 29 June 2016 for health reasons and that she could not participate in the court proceedings at least until the beginning of August 2016.

On 18 July 2016 the Kielce District Court ordered the applicant ’ s compulsory delivery to the Morawica Psychiatric Centre for psychiatric medical examination by an expert psychiatrist. The court based its decision on Section 46, paragraph 2a, of the 1994 Act (see below B. Relevant domestic law and practice), holding that the applicant had been avoiding appearing in court.

The applicant submitted that she had received a summons for the court hearing of 18 July 2016 on 20 July 2016. She provided in this respect a copy of an electronic advice note confirming that the date of second notification was 19 July 2016 and that she had physically received the summons on 20 July 2016.

The proceedings concerning the involuntary placement of the applicant in a psychiatric hospital were pending before the second-instance court, that is the Kielce Regional Court, at the time when the applicant lodged her application with the Court, that is on 18 January 2017.

On 12 August 2016 the applicant was arrested by the Police and delivered to the Morawica Psychiatric Centre.

The Police acted upon a retention warrant ( nakaz doprowadzenia ) issued on 21 July 2016 subsequent to the court ’ s decision of 18 July 2016 and signed by a judge. The warrant contained information that the applicant should be brought immediately after her arrest to psychiatrist J.S., who worked in Ward No. 3 of the Morawica Psychiatric Centre, from Monday to Friday between 8 and 11.30 a.m.

It is unknown whether the applicant was indeed immediately brought to the psychiatric centre and for how long she was detained there.

On 14 August 2016 the applicant appealed against the court ’ s decision of 18 July 2016.

By letter dated 19 August 2016, the applicant was informed by the presiding judge that, according to law, there existed no possibility of appeal against the decision in question.

On 14 September 2016 an expert psychiatrist was heard by the Kielce District Court. He informed the court that the applicant suffered from persecutory delusion and that she should be compulsorily placed in a psychiatric hospital, since otherwise she would pose a threat to herself.

Involuntary admission to a psychiatric hospital and the course of proceedings in this regard are governed by the 1994 Act.

Section 46, paragraph 1a, of the 1994 Act provides in its relevant part applicable at the material time that a person whose involuntary placement in a psychiatric hospital is petitioned may be brought for trial based on a court order ( zarz Ä…dzenie sÄ…dowe ). Article 547 of the Code of Civil Procedure (see below) shall apply accordingly in this case.

Section 46, paragraph 2a, of the 1994 Act reads as follows:

“If a mentally ill person who is to be examined by a n expert refuses to appear in a designated place or otherwise refrains from the examination, the court may order their detention and forced delivery by the Police to the designated place.”

Section 48 of the 1994 Act, as applicable until 31 December 2017 provides, contrary to the newly-amended provision applicable from 1 January 2018, not an obligation but a possibility for the court to appoint of its own motion a lawyer to represent a person whose involuntary placement in a psychiatric hospital is petitioned before it, if the court considers it useful.

Article 547, paragraph 2, of the Code of Civil Procedure reads as follows:

“In order to hear a person whose legal incapacitation is petitioned, the court may issue a warrant to bring them for trial or hearing by a delegated judge. A warrant to bring a person for trial may be appealed against.”

Finally, under Paragraph 3(4) of Ordinance No. 360 of 26 March 2009 concerning the Methods and Forms of Execution of Convoys and Deliveries by the Police issued by the Police Commander-in-Chief, the delivery of a person under the 1994 Act to a court hearing or psychiatric hospital requires the presence of a medical escort, that is a physician, a nurse or a paramedical unit.

COMPLAINTS

The applicant complains under Article 5 § 1 (b) of the Convention that on 12 August 2016 she was unlawfully deprived of her liberty for the purposes of conducting an involuntary psychiatric examination.

Relying on Article 5 § 4 of the Convention, the applicant complains of the flaws in effectiveness of the domestic procedure to challenge the lawfulness of her detention. In particular, she submits that she was not represented by a lawyer in the proceedings before the Kielce District Court.

QUESTIONS TO THE PARTIES

1. Was the applicant deprived of her liberty in breach of Article 5 § 1 (b) of the Convention on 12 August 2016 when delivered for the purposes of conducting an involuntary psychiatric examination? In particular, were the order of 18 July 2016 by the Kielce District Court and the retention warrant ( nakaz doprowadzenia ) of 21 July 2016 issued against the applicant lawful within the meaning of Article 5 § 1 (b) of the Convention? Did the applicant ’ s delivery by the police on 12 August 2016 to the Morawica Psychiatric Centre, as well as her psychiatric evaluation and detention there in August 2016, correspond to the requirements set out in Article 5 § 1 (b) of the Convention?

2. Did the applicant have at her disposal an effective procedure by which she could challenge the lawfulness of her detention, as required by Article 5 § 4 of the Convention, in particular with respect to the fact that she was not represented by a lawyer in the proceedings before the Kielce District Court; that she was not heard by the court before it issued a decision on her involuntary psychiatric evaluation; and that she could not appeal against the court ’ s decision?