Communicated on 8 July 2016

FOURTH SECTION

Application no. 16103/15 Andrzej ŻELAWSKI against Poland lodged on 27 April 2015

STATEMENT OF FACTS

The applicant, Mr Andrzej Żelawski , is a Polish national who was b orn in 1955 and lives in Nowy S ą cz .

A. The circumstances of the case

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

The applicant has been undergoing psychiatric treatment since 1979. He suffers from schizophrenia .

1. Incapacitation proceedings

On 31 May 2000 the Nowy S Ä… cz Regional Court declared the applicant totally legally incapacitated. This decision was upheld by the Cracow Court of Appeal on 10 November 2000.

On 3 March 2009 the Nowy Sacz Regional Court amended its previous decision and declared the applicant only partially legally incapacitated. Following an appeal by the applicant this decision was upheld by the Cracow Court of Appeal on 26 May 2009. The courts noted that although the applicant ’ s condition had improved, he still needed help in everyday life.

On 20 January 2010 the Nowy S ą cz Regional Court appointed the applicant ’ s brother, J.Z., as his guardian ( kurator ).

On 23 November 2010 the applicant lodged a request with the Nowy S ą cz Regional Court to have his full legal capacity restored. He submitted that since 2000 he had not suffered from any psychotic episodes and that his legal status as partially incapacitated prevented him from taking up paid employment. The applicant ’ s guardian lodged an application with the same court for the applicant ’ s request to be refused and for him to be declared totally incapacitated.

On 29 February 2012 a psychiatric expert, T.Z., issued an opinion on the applicant ’ s state of health. He considered that the applicant ’ s illness was in remission but that although he did not suffer from alcohol dependence syndrome he was nevertheless abusing alcohol. He further noted an improvement in his condition and considered that there was no need to maintain his legal status as partially incapacitated.

On 11 January 2013 two psychiatric experts, S.T and M.G., submitted a further opinion on the applicant ’ s health. They concluded that the applicant suffered from residual schizophrenia and still needed help with medical treatment and in his everyday life.

On 5 June 2013 the Nowy S ą cz Regional Court refused the applicant ’ s and his brother ’ s requests. The court relied on the latest expert opinion – that of 2013 – and ruled that in view of the applicant ’ s condition it was necessary to maintain his legal status as partially incapacitated .

On 14 November 2013 the Cracow Court of Appeal dismissed a further appeal lodged by the applicant. The court repeated the reasons given by the Regional Court and referred to the applicant ’ s condition and the fact that he had abused alcohol in the past.

On 15 October 2014 the Supreme Court dismissed a cassation appeal lodged by the applicant as manifestly ill-founded. The decision was served on the applicant on 10 December 2014.

2. Placement in a social care home

On 3 September 1998 the Nowy S Ä… cz Regional Court placed the applicant in a social care home ( Dom Pomocy Spolecznej ).

On 7 December 2001 the applicant was placed in the social care home in Zaskale .

On 13 February 2013 the Director of the Nowy Targ Regional Family Aid Centre ( Dyrektor Powiatowego Centrum Pomocy Rodzinie ) decided to transfer the applicant to a social care home in Nowy S Ä… cz for persons with chronic mental illness.

The applicant appealed against this decision.

On 28 March 2013 the Nowy S ą cz Self-Government Board of Appeal ( Samorz ą dowe Kolegium Odwo ł awcze ) dismissed the applicant ’ s appeal.

On 19 July 2013 the Cracow Administrative Court rejected on legal grounds the applicant ’ s appeal against the decision to place him in the Nowy S ą cz social care home. The court considered that in view of his partial legal incapacity the applicant had lacked legal standing to appeal against that decision. The court further noted that the appeal had not been supported by the applicant ’ s guardian.

On 7 November 2013 the applicant ’ s legal-aid lawyer informed him that there were no grounds for filing a cassation appeal on the applicant ’ s behalf.

On 15 November 2013 the applicant lodged a request for leave to lodge a cassation appeal out of time.

On 19 December 2013 the Cracow Administrative Court refused the applicant ’ s request.

B. Relevant domestic law and practice

The relevant domestic law is set out in the judgment of Kędzior v. Poland , no. 45026/07, §§ 38-45, 16 October 2012 .

COMPLAINTS

The applicant complains under Article 5 § 1 of the Convention and Article 8 of the Convention that his placement in the social care home constituted an unlawful deprivation of liberty. He further alleges that in view of his partial incapacity it has not been possible for him to cha llenge this decision.

QUESTIONS TO THE PARTIES

1. Was the applicant deprived of his liberty, in breach of Article 5 § 1 of the Convention (cf. K.C. v. Poland , no. 31199/12 , §§ 68-71, 25 November 2014) ?

2. Did the applicant have at his disposal an effective procedure by which he could challenge the lawfulness of his admission to the social care home, and the necessity of his continuing stay in it, as required by Article 5 § 4 of the Convention? Reference is made to the fact that the applicant is partially incapacitated and to the case of Kędzior v. Poland , no. 45026/07 , 16 October 2012.