Communicated on 13 October 2015

FOURTH SECTION

Application no. 49424/12 Helena SKOMOROCHOW against Poland lodged on 27 July 2012

STATEMENT OF FACTS

The applicant, Ms Helena Skomorochow , is a Polish national, who was born in 1957 and lives in Sanniki .

A. The circumstances of the case

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

The applicant, was living alone in an apartment in Warsaw. She has not been legally incapacitated.

On 11 June 2010 the Praga Południe City Centre for Social Services [“The Centre”] ( Ośrodek Pomocy Społecznej Dzielnicy Praga Południe ) requested the Warsaw District Court to place the applicant, against her will, in a social care home. The Centre submitted that the applicant was suffering from schizophrenia, systematically abused alcohol and had been on numerous occasions hospitalized in psychiatric hospitals. The Centre further explained that the applicant refused to take medications, did not take care of her flat and had been neglecting the basic principles of hygiene and nutrition. During the previous year, her condition had worsened. She was repeatedly hosting alcoholic gatherings in her flat. She had also behaved in an aggressive manner towards her neighbours .

On 2 September 2010 the applicant was examined in her home by a court appointed expert psychiatrist. The expert referred to a recent incident when the applicant had threatened with a knife a group of playing children. As a result she was treated in a psychiatric hospital between 25 July and 19 August 2010. The expert confirmed that the applicant was suffering from paranoid schizophrenia ( schizofrenia paranoidalna ) and that she was not able to attend to her basic needs. She required constant care. In particular as she also suffered from diabetes and had to take medications and have regular meals. However, in the expert ’ s opinion, the applicant did not require hospital treatment.

On 18 November 2010 the Warsaw District Court decided to place the applicant involuntarily in a social care home.

Shortly afterwards, the applicant was transported to a social care home in Sanniki .

On an unknown date in 2011 the applicant asked to be released from the social care home. She submitted that she owned a flat and was able to take care of herself on her own.

On 21 February 2012 she was examined by an expert psychiatrist. The expert considered that the applicant was still distrustful, misinterpreted reality and had persecutory delusions. However, her condition had improved due to regular use of medications and proper care. The expert stressed that the applicant had suffered from paranoid schizophrenia which was a chronic condition with periods of remission. She further concluded that despite an improvement of the applicant ’ s mental health she still required constant care.

On 22 May 2012 the Gostynin District Court refused the applicant ’ s request.

In a letter of 31 July 2015 the applicant submitted that she was still detained in the social care home in Sanniki .

B. Relevant domestic law and practice

Admission to a social care home is governed by section 38 et seq. of the 1994 Psychiatric Protection Act ( Ustawa o ochronie zdrowia psychicznego ). It provides that a person who, on account of a mental disorder or mental disability, is unable to take care of himself or herself, cannot be taken care of by somebody else and does not need hospital treatment may be placed in a social care home with his or her consent or the consent of his or her guardian. Only if the person concerned or his or her guardian does not consent to the placement must the decision be taken by a court.

The Ordinance of the Minister of Justice of 22 February 1995 provided that a regional court had to supervise the legality of the admission and “continuing residence” of individuals confined to psychiatric hospitals and social care homes (section 1). However, an obligation to carry out every six months a periodic review of the need for “continuing residence” applied only to those admitted to psychiatric hospitals (section 2(3)). That Ordinance has been replaced by the Ordinance of the Minister of Justice of 11 October 2012. The new Ordinance does not mention any review of the need for “continuing residence” either in psychiatric hospitals or in social care homes. It only imposes an obligation on judges to visit at least once every two years social care homes in which there are persons deprived of their liberty. However, judges are under no obligation to check whether those persons need to remain in the social care home. Their obligations are rather limited to checking whether the facilities in question are properly maintained from an administrative point of view.

Section 41 of the 1994 Psychiatric Protection Act provides as follows:

“1. A person admitted to a social care home [on the basis of a court decision], his or her legal representative, spouse, lineal relatives, brothers and sisters and the patient ’ s official carer may request the court to vary the decision ordering admittance to a social care home.

2. The request referred to above may also be lodged by a manager of the social care home if he or she considers that the circumstances which served as the basis of the decision to compulsorily place a person in a social care home have changed.”

Section 47 of the 1994 Act provides less strict formal requirements for remedies requested by a person admitted to a social care home; such remedies do not have to be reasoned and it is usually sufficient that the person concerned expresses his or her dissatisfaction with the challenged decision.

Under Article 871§ 1 of the Code of Civil Proceedings, parties must be represented by advocates or legal advisers in the proceedings before the Supreme Court. This mandatory representation also concerns procedural measures connected with proceedings before the Supreme Court and undertaken before the courts of lower instances.

The regulations on the functioning of social care homes were also governed by the 1990 Social Assistance Act ( Ustawa o pomocy społecznej ), which was replaced by the Act of 2004. Under the relevant regulations, the costs of a person ’ s stay in a social care home must not exceed 70% of his or her income or pension. Both Acts provided that placement of a totally incapacitated person in a social care home may only be done with the consent of his or her guardian.

The relevant international instruments and the comparative law are set out in the judgment of Stanev v. Bulgaria [GC], no.36760/06 , §§ 72, 73 and 88 ‑ 95, ECHR 2012.

COMPLAINTS

The applicant complains under Article 5 § 1 of the Convention and Article 2 of Protocol No 1 to the Convention that her placement in the social care home constituted an unlawful deprivation of liberty.

She further in substance alleges that she does not have an effective procedure by which she could challenge the necessity of her stay in the social care home and obtain her release.

QUESTIONS TO THE PARTIES

1. Is the applicant ’ s detention in the social care home lawful within the meaning of Article 5 § 1 (e) of the Convention?

2. Did the applicant have at her disposal an e ffective procedure by which she could challenge the lawfulness of her admission to the social care home, and the necessity of her continuing stay there, as required by Article 5 § 4 of the Convention? Was there any obligation on the court to carry out periodic reviews of the continuing necessity of the applicant ’ s stay in the social care home, in particular by subjecting her to regular psychiatric examinations?