FOURTH SECTION

Application no. 31199/12 K.C . against Poland lodged on 17 May 2012

STATEMENT OF FACTS

The applicant, K.C. , is a Polish national, who was born in 1936 and lives in Å» ary . Since 2008 she has been living in a social care home in K .

A. The circumstances of the case

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

1. Decision to place the applicant in a social care home

The applicant, who is a widow, lived alone in an apartment in Å» ary . She was receiving a pension from the Social Security Board. She has a daughter but at the relevant time apparently she had no contact with her.

On 19 December 2007 the Ż ary City Centre for Social Services ( Miejski Ośrodek Pomocy Społecznej ) requested the Ż ary District Court to place the applicant, against her will, in a social care home. The City Centre for Social Services submitted that the applicant suffered from mental disorders, did not go to doctors and behaved in a way departing from “socially accepted norms” which posed a threat to her health and life. According to the reasoning of the request the applicant was “walking in the streets incompletely dressed, untidy and dirty. She smelled, spoke to herself and often looked as if she was under the influence of alcohol”.

On 19 June 2008 the Ż ary District Court decided to place the applicant in the social care home. The court based its decision on an opinion given by a psychiatrist I.S. who examined the applicant once. She was diagnosed with chronic schizophrenia and central nervous system disorder. The doctor found that the applicant neglected the basic principles of hygiene and nutrition which might lead to infections or undernourishment. However, he stressed that she did not pose a direct danger to her own or other peoples ’ health or life. The doctor also found that the applicant needed to be under the constant care of a third person.

The applicant was placed in the social care home in K . on 10 September 2008.

It appears that already in 2007 the District Court granted the applicant a legal-aid lawyer. However, according to the applicant ’ s submission the lawyer was not present at the hearing before the first instance court and de facto she was not represented in the judicial proceedings.

The applicant appealed against the decision of 19 June 2008.

On 7 December 2009 the Zielona Góra Regional Court dismissed her appeal. From the minutes of the publication of the court ’ s decision it emerges that nobody was present at the hearing on that day. The same minutes state however that “the applicant who was not represented by a lawyer was informed that she could request reasons for the decisions in writing if she lodged a relevant request within seven days from the day of publication.” The applicant submitted that she was not served with the court ’ s decision and that she found out about it by chance two years later. In the meantime she lodged a complaint with the court about the excessive length of the proceedings, which was rejected by the Zielona Góra Regional Court on 31 October 2011.

When the applicant learned that her appeal had been dismissed she requested the Regional Court for leave to lodge a request for written reasons for the decision out of time.

On 21 November 2011 the Zielona Góra Regional Court dismissed her request and therefore she could not lodge a cassation appeal with the Supreme Court.

2. The applicant ’ s attempts to vary the decision on her compulsory plac ement in the social care home

On 5 April 2009 the applicant requested the Å» ary District Court to re ‑ open the proceedings which had resulted in her placement in the social care home. She stressed that if the re-opening was not possible she requested that the respective decision be varied.

On 21 May 2009 the District Court rejected her request. The court found that there were no grounds for re-opening the proceedings. It further informed the applicant that, according to Section 41 of the 1994 Psychiatric Protection Act, an applicant placed in a social care home or members of his or her family may request the court to vary the decision on placing him or her in the social care home. The court disregarded the applicant ’ s alternative request which indeed aimed at varying its original decision.

On 9 February 2009 the applicant requested the District Court to supplement the decision of 19 June 2008 and allow her to leave the social care home for one hour every day to be able to go to a shop, as well as to allow her to stay in her room all day. This request was apparently left without consideration.

On 19 July 2009 the applicant again requested to vary the measure applied to her. She also requested to be granted legal-aid; she submitted that she could not afford to appoint a lawyer at her own cost because 70% of her pension was retained by the social care home.

On 1 October 2009 the Å» ary District Court refused to grant a legal-aid lawyer finding that the applicant was able to deal with her matters herself and that her case was not complicated from the legal nor factual point of view.

The applicant appealed against this decision.

On 18 November 2009 the Zielona Góra Regional Court amended the challenged decision and granted the applicant a legal-aid lawyer. It is however unclear whether the lawyer in fact ever contacted the applicant.

As regards the applicant ’ s request to vary the measure, the court dismissed it on an unspecified date. The applicant failed to produce a copy of the relevant decision.

On 20 November 2008 the applicant ’ s daughter requested the District Court to vary the measure applied to her mother and to amend the decision of 19 June 2008. This request was dismissed. The applicant failed to produce a copy of the relevant court ’ s decision.

B. Re levant 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 zdrow i a psychicznego ). It provides that a person who, on account of mental disorder or mental disability, is unable to take care of himself or herself and 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.

According to the Ordinance of the Minister of Justice of 22 February 1995, 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 periodic reviews every six months of the need for continuing residence applie d only to those admitted to psychiatric hospitals (section 2 (3)). This Ordinance was replaced by the Ordinance of the Minister of Justice of 11 October 2012. The new Ordinance does not mention the verification of the need for continuing residence either in psychiatric hospitals or in social care homes. It only regulates verification of legality of admission and continuing residence in these facilities.

The regulations on the functioning of social care homes were also governed by the 1990 Social Assistance Act ( Ustawa o pomocy społecznej ), replaced by the Act of 2004. According to the relevant regulations, the costs of the 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 his or her guardian ’ s consent.

The relevant international instruments and conclusions on 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 of the Convention that she is deprived of her liberty against her will .

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? In particular , were the Winterwerp judgment criteria fulfilled in the applicant ’ s case?

What is the legal basis for preventing the applicant from leaving the social care home during the day?

2 . Did the applicant have at her disposal an effective 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 a psychiatric examination?

3 . Finally, the Government are invited to submit copies of the following decisions:

- the order of partial incapacitation concerning the applicant;

- the decision of the Å» ary District Court of 19 June 2008 (IIIR Ns503/07) with reasoning;

- copy of a decision given by the District Court as a result of the applicant ’ s request of 19 July 2009 to vary the measure applied to her;

- copy of a decision given by the District Court as a result of the applicant ’ s request of 8 February 2009 to supplement the Court ’ s decision of 19 June 2008;

- copy of a decision given by the District Court as a result of the applicant ’ s daughter ’ s request of 20 November 2009 to vary the measure applied to her mother .