Communicated on 4 May 2016

FOURTH SECTION

Application no. 42249/15 Łukasz JĘDRUCH against Poland lodged on 12 August 2015

STATEMENT OF FACTS

The applicant, Mr Ł ukasz J ę druch , is a Polish national who was born in 1984 and lives in Wołów .

A. The circumstances of the case

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

The applicant was charged with murder, assault and battery.

On 21 August 2008 the Pozna Å„ Regional Court delivered a judgment and discontinued the criminal proceedings against the applicant. The court, relying on the opinion of psychiatric experts , found that the applicant could not be held criminally liable as he had been suffering from schizophrenia. On 20 October 2008 the court ordered that the applicant be placed in a psychiatric hospital.

On 9 December 2008 t he applicant was placed in the Regional Centre for Forensic Psychiatry in Starogard Gda ń ski ( Regionalny O ś rodek Psychiatrii S ą dowej w Stargardzie Gda ń skim ). On 15 October 2012 he was transferred to the local hospital in Gorzów Wielkopolski ( Publiczny Szpital w Gorzowie Wielkopolskim ). Eventually, on 18 December 2013 he was moved to the Regional Hospital for Psychiatric Patients in Lubi ąż ( Wojewódzki Szpital dla Nerwowo i Psychicznie Chorych w Lubi ążu ), where he is still being detained.

On 14 October 2014 two psychiatric experts and a psychologist from the hospital in Lubi ąż issued a periodical opinion on the applicant ’ s state of health. They noted an improvement in his condition and considered that the risk that he might commit a similar offence was low. Therefore, he did not need to be held in a secure psychiatric facility and could continue his treatment in an outpatient clinic.

On 8 December 2014, during a hearing at the Poznań Regional Court, the applicant ’ s brothers (M and R) and his father declared that they would look after him if he was released from hospital. They also offered to monitor his treatment (consultations with doctors, taking medications). The court requested that a different set of experts prepare an opinion on the applicant ’ s condition.

On 30 March 2015 two psychiatristic experts and a psychologist from the Wrocław region prepared a supplementary opinion on the applicant ’ s condition. They observed that the applicant suffered from schizophrenia which was in remission. T he risk that he might commit a similar offence was low. For that reason there was no need to continue to detain him in a secure psychiatric facility. However, they stressed that the applicant had to continue his treatment in an outpatient clinic. In their opinion, the support of the family was the best way to guarantee an improvement in the applicant ’ s condition and to decrease the risk of his committing a similar offence.

On 22 April 2015 the experts from the hospital in Lubi ąż submitted a further opinion on the applicant ’ s health. They concluded that the applicant ’ s condition was stable, that h e was accepting his treatment and cooperating with medical staff and that therefore he could receive adequate medical care outside the hospital . Assuming that he continued to take his medications and received support from his family, the risk that he would reoffend was low. They also noted that the applicant was receiving a long ‑ acting medication, which was given to him as an injection every two weeks.

On 18 May 2015 the court held a hearing and took evidence from the applicant ’ s father and brother, M. The court also questioned the experts who had prepared the opinion of 30 March 2015. The experts stood by their earlier conclusions and confirmed that the applicant could be treated outside hospital. They stressed that the applicant ’ s family was ready to take care of him at home. They noted that the family was aware that schizophrenia was a life-long illness and referred to the fact that the applicant ’ s father had taken him to see a psychiatrist, even before the applicant had been detained in connection with the offences he had committed.

On 26 May 2015 the Poznań Regional Court refused to release the applicant from hospital. It established that two of the applicant ’ s brothers, R and T, had been treated in Złotów Psychiatric Clinic and that R, like the applicant, suffered from schizophrenia. Despite the opinion of the experts, who all agreed that the risk of the applicant committing a similar offence was low, the court found that it was not possible to discharge him from the hospital. In the court ’ s view, the applicant ’ s father and brother, M, would not be able to take proper care of him. It referred to misconceptions by the applicant ’ s father about psychiatric illnesses and his opinion that schizophrenia could be healed. Consequently, the court considered that the applicant ’ s family would not be able to make sure he continued to have psychiatric treatment on an outpatient basis.

The applicant appealed.

On 29 June 2015 the Poznań Court of Appeal upheld the lower court ’ s decision, agreeing with the findings and conclusions of the court of first instance. It considered that in order for there to be a low risk of the applicant committing a similar offence he would have to continue his psychiatric treatment as an outpatient. That treatment, of regular medical visits and a continuous intake of medications, would have to be monitored by his family. However, the family in the present case could not give such assurances, with the situation being described in detail by the Regional Court. The court further noted that the assessment of the risk of the applicant committing a similar offence had to be made not only in the light of the opinion of experts, but also with reference to the person ’ s life up to that point, his personal and family situation and, in particular, any guarantees as to whether the person would be able to continue treatment on an outpatient basis. In the present case there was no such guarantee.

B. Relevant domestic law and practice

1. Preventive measures

Article 93 of the Criminal Code reads:

“The court may only impose a preventive measure as provided for in this chapter, which involves committal to a secure medical institution, if it is necessary to prevent the repeated commission of a prohibited act by an offender suffering from a mental illness ... mental impairment or addiction to alcohol or other narcotic drugs. Before imposing such a measure, the court shall hear evidence from psychiatrists and a psychologist...”

Article 94 reads:

“1. If an offender has committed a prohibited act in a state of insanity as specified in Article 31 § 1, causing significant harm to the community, and there is a high probability that he will commit such an act again, the court shall commit him to a suitable psychiatric institution.

2. The duration of the stay in the institution shall not be fixed in advance; the court shall release the offender from the institution if his stay there is no longer deemed necessary.

3. The court may reorder the committal of an offender (as specified in paragraph 1) to a suitable psychiatric institution if it is advisable in the light of the circumstances specified in paragraph 1 or Article 93; such an order may not be issued more than five years after release from the institution.”

2. Execution of preventive measures

Article 203 of the Code of Execution of Criminal Sentences reads, in so far as relevant, as follows:

“1. The director of a closed institution in which a preventive measure is being executed shall send to the court, no less than every six months, an opinion on the state of health of the perpetrator placed in the institution and the progress of his or her treatment or therapy. The opinion shall be sent immediately if, owing to a change in the perpetrator ’ s state of health, the director finds that his or her further detention in the institution is unnecessary.

2. The court may request, at any time, an opinion on the state of health of the perpetrator placed in an institution referred to in paragraph 1, the treatment or therapy administered, and the results thereof.”

Article 204 reads as follows:

“1. The court shall, no less than every six months, and in the event of receiving an opinion that further detention of the perpetrator in a closed medical institution in which a preventive measure is being executed is unnecessary, immediately make a decision as regards the further execution of that measure. If necessary, the court shall refer to the opinion of other medical experts.

2. A decision on the further execution of a preventive measure may be appealed against.”

COMPLAINT

The applicant complains under Article 5 § 1 of the Convention of the unlawfulness of his detention. He submits that after 14 October 2014, that is the date of the first expert opinion which concluded that he could be treated as an outpatient, his confinement in a psychiatric institution was contrary to the Convention.

QUESTION TO THE PARTIES

Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, was he reliably shown to be “of unsound mind” and was his deprivation of liberty after 14 October 2014 justified under Article 5 § 1 (e) of the Convention? Reference is made to the experts ’ opinions of 14 October 2014, 30 March 2015 and 22 April 2015.