JOINT DISSENTING OPINION OF JUDGES PARDALOS AND WOJTYCZEK

1. We are not persuaded by the position of the majority in the instant case. In our view there has been no violation of Article 5 § 1 of the Convention.

2. The difficulty of the present case is connected with the fact that in 2012 two apparently divergent expert opinions concerning the mental health of the applicant were issued. The opinion of 17 June 2012 was prepared in a different set of criminal proceedings with the purpose of assessing his mental health at the time when he committed the acts at the basis of his indictment ( see paragraph 24 of the judgment). The opinion of 20 July 2012 was prepared for the purpose of a periodic review of the applicant ’ s condition ( see paragraph 25 of the judgment).

3. In our view, the judgment is based on a misunderstanding of the factual circumstances of the case. We would like to supplement the facts described in the judgment with the following elements.

The psychiatric opinion of 20 July 2012 stated the following:

“Krzysztof Nawrot has been diagnosed with delusional disorders related to organic lesions in his central nervous system ( zaburzenia omamowo-urojeniowe na podłożu zmian organicznych OUN ). During his stay in this department we have not observed acute psychotic symptoms. However, given the diagnosis and his lifestyle we consider that Krzysztof Nawrot should undergo rehabilitation and resocialisation in the Department of Forensic Psychiatry with basic security. In our view there is a probability that the individual concerned will commit offences causing significant harm.”

The Katowice Regional Court held two hearings, on 28 August 2012 and 24 September 2012, during which experts were questioned in order to clarify discrepancies between the opinions of 17 June 2012 and 20 July 2012. When questioned at the hearing on 24 September 2012, an expert stated “in the strongest possible terms” ( z całą stanowczością ) that the applicant was suffering from a serious mental illness. She expressed the view that the risk of reoffending was high and explained that in the opinion of 20 July the adjective “high” in the assessment of the risk of reoffending was missing owing to a mistake.

The Katowice Regional Court, in its decision of 24 September 2012, stated that it was based on the opinion of 20 July 2012. The reasoning explained why the court had to follow that opinion and why the opinion of 17 June 2012 could not be decisive.

The majority state, in this context, in paragraph 70:

“In the Court ’ s view, having regard to the manner in which the applicant ’ s personality disorder manifested itself, it is doubtful whether the Katowice Regional Court could be said to have established that he was ‘ of unsound mind ’ within the meaning of Article 5 § 1 (e) of the Convention.”

We respectfully disagree. The domestic court relied on expert opinions established on 24 September 2012 stating that the applicant was suffering from a serious mental illness. Later, the courts addressed the dissocial personality disorder and, relying on expert opinions, considered that it was so severe that it warranted compulsory confinement. The reasoning of the decision of 24 September 2012, as well as the reasoning of the subsequent decisions, indicates the elements which justify the conclusion that the applicant was of unsound mind within the meaning of the above-mentioned provision.

Our colleagues, by referring to the manner in which the applicant ’ s personality disorder manifested itself, decided to make their own assessment of the applicant ’ s state of health. For our part we do not have sufficient expert knowledge to contest the findings of the domestic experts in this case.

More generally, we note that the national courts were in a far better position to assess the value of the expert reports and to determine the factual issue whether or not the applicant was suffering from a mental disorder of a kind or degree warranting compulsory confinement.

4. The psychiatric opinion of 15 March 2013 stated as follows:

“ ... in the current state of Krzysztof Nawrot ’ s health there is a high probability that he will commit a criminal offence of significant social harm related to his psychiatric illness. Krzysztof Nawrot still requires treatment as a preventive measure in a department with enhanced security” (emphasis added).

On 27 August 2013 the experts noted that there was still “ ... a high risk of [the applicant ’ s] committing further criminal offences although this risk is not connected with a psychiatric illness but with his deeply disordered personality” (emphasis added) .

The opinion of 12 September 2013 stated:

“There is a high risk of [the applicant ’ s] committing further criminal offences but this risk is not connected to a psychiatric illness. ... We have established a deep personality disorder of a dissocial nature. ... We have not established a psychiatric illness in the sense of long-term psychosis” (emphasis added).

The supplementary opinion of 18 October 2013 stated as follows:

“ ... given that there is a high risk that Krzysztof Nawrot will commit [criminal] acts of a similar nature to the one referred to in the order for his placement in detention, or will escape from an enhanced security facility, we recommend that the patient be placed in a maximum security facility in continuation of the preventive measures” (emphasis added).

The opinion also stated that there was a high risk of suicide.

The majority state in paragraph 75:

“It would thus appear that, with the passage of time and the developments regarding the factual basis for the assessment, the possible risk of his reoffending became less significant ( see paragraphs 24, 31, 33, 34 and 41 above).”

In paragraph 76, they further affirm:

“ In the Court ’ s opinion, in extending the applicant ’ s detention in psychiatric hospital beyond 17 June 2012, no sufficient consideration was given to whether the applicant represented an imminent danger to others or to himself (see, mutatis mutandis , Plesó v. Hungary , no. 41242/08, § 65, 2 October 2012, and Stanev , cited above, § 157).”

We respectfully disagree. The experts clearly stated in 2012 and 2013 that there was a high risk that the applicant would commit further violent crimes.

We note moreover that in Plesó , cited above, the Court referred to the imminent danger test because it was the criterion laid down in the Hungarian legislation for compulsory psychiatric confinement. The Grand Chamber judgment in the case of Stanev ( [GC], no. 36760/06, § 157, ECHR 2012 ) established the criterion of danger to oneself or others as follows:

“In the present case, however, it has not been established that the applicant posed a danger to himself or to others, for example because of his psychiatric condition ... ”

In our opinion, the present judgment departs from the Stanev test in this respect.

5. In paragraph 50 the Court correctly establishes the following circumstances:

“On 20 July 2015 the Katowice Regional Court gave judgment. The court established that the applicant, together with A.I. and a certain T.K. had participated in the assault on P.A. The criminal proceedings against the applicant were subsequently discontinued due to his insanity. The court further thoroughly examined the applicant ’ s mental capacity and found that the applicant had had full mental capacity in the relevant period. It convicted A.I. of P.A. ’ s murder, T.K. of robbery and assault on P.A. and the applicant of several counts of robbery committed on 23 June, 27 June, 4 July, 5 July and 17 August 2005. It also sentenced the applicant to three years ’ imprisonment, suspended for seven years.”

In paragraph 75, however, the majority state the following:

“Initially, the security measure applied in respect of the applicant was indeed mainly based on his involvement in the murder of P.A. ( see paragraphs 7 and 13 above). However, later on, in the course of the third set of proceedings, another person was charged with P.A. ’ s murder and the applicant was only charged with several counts of robbery and theft ( see paragraph 46 above).”

We respectfully disagree. The above-quoted views contradict the factual findings presented in paragraph 50. It has been established that the applicant, together with other persons, participated in the assault during which P.A. was killed. The proceedings against the applicant were discontinued owing to insanity, not because he did not participate in that crime. The other charges were related to completely different crimes committed during the same period.

As the majority see it, the applicant was “only charged with several counts of robbery and theft”. In our view, the applicant was charged with no less than several counts of robbery, that is to say, serious and violent crimes. Moreover, he was finally convicted of all those crimes. At least one of the violent acts for which he was prosecuted resulted in the death of the victim. In those circumstances there were reasonable grounds to consider that there was a serious risk that the applicant might reoffend and again pose a threat to the life or health of other persons. This high risk was stated in the expert opinions on which the domestic courts relied.

6. The majority state the following in paragraph 76:

“The Court further considers that the reasons given by the domestic courts do not appear sufficient for this purpose [of extending the applicant ’ s detention] ( see paragraphs 25, 27, 32 and 34 above).”

We respectfully disagree. We note that the applicant was examined by psychiatrists and a psychologist at regular intervals in the context of periodic reviews, and that each time the result of the psychiatric examination served as the basis for a fresh judicial decision extending his confinement in the psychiatric unit ( see paragraphs 18, 19, 21, 22, 25, 32 and 33 of the judgment). The experts opined that the risk of his committing further violent crimes was high. The domestic courts carefully addressed the mental health of the applicant as well as the severity of the applicant ’ s dissocial personality disorder ( see paragraphs 27 and 32 of the judgment). With reference to the expert opinions, the domestic courts repeatedly held that there was a risk that, if released, the applicant would commit yet another criminal offence of signifi cant harm to the community ( see paragraphs 27, 32, 36 and 38). Later on, in addition to the risk of his committing further similar offences, the court justified continuation of the applicant ’ s detention by referring to his second suicide attempt and his consequent fragile condition ( see paragraphs 36 and 39 of the judgment). The domestic courts took into consideration the evolution of the applicant ’ s mental health, since, depending on his condition as continually assessed by experts, he was transferred between less secure hospitals and facilities with enhanced security ( see paragraphs 20 and 30). When confronted with conflicting experts opinions the judge held extensive hearings in order to question the experts. Moreover, when on 30 April 2014 the experts confirmed that the applicant ’ s condition had improved and that it was unlikely that he would commit similar offences in the future ( see paragraph 41 of the judgment), the court promptly set a hearing date and within one month ordered the applicant ’ s release from hospital ( see paragraphs 42 and 43).

In those circumstances, the authorities, in our view, displayed the necessary diligence in assessing the applicant ’ s condition and the domestic decisions were correctly reasoned.

7. The majority rightly note that the applicant did not contest the initial placement order. We would like to emphasise that, on the other hand, the applicant alleged that he had simulated mental illness. This is a very important factual circumstance in the case and we regret that the majority decided not to address it.

If the mental illness was simulated, then it is necessary to take into account the fact that the applicant himself contributed to his prolonged placement in a psychiatric hospital. He should then bear the consequences of his deliberate choice. His application before this Court could have been dismissed as abusive. We note furthermore that the applicant ’ s mental illness was the basis for the discontinuation of one set of criminal proceedings against him. If the illness was simulated then he should have been criminally liable for the offence for which he was prosecuted. However, his attitude resulted in his obtaining substantial pecuniary compensation for the situation to which he had himself contributed – as is clear from his own statements.

8. The majority restate in paragraph 67:

“The Court has further expressed doubts as to whether a person ’ s dissocial personality or dissocial personality disorder alone could be considered a sufficiently serious mental disorder so as to be classified as a ‘ true ’ mental disorder for the purposes of Article 5 § 1 (e) ( see Petschulies , cited above, § 77).”

We note, in this respect, that in the present case the domestic courts addressed this issue. Firstly, as noted above, the applicant ’ s personality disorder was not the only basis for his confinement, as the experts established, at least until 2012, that the applicant was suffering from a mental illness. Secondly, as mentioned above, the severity of the applicant ’ s personality disorder was analysed and the courts established that it was so severe that it warranted compulsory confinement. We therefore consider that the second criterion laid down in the Winterwerp judgment (“unsound mind”) was fulfilled in the present case.

9. To sum up: in our opinion, in the instant case the majority did not give sufficient consideration to certain important factual circumstances of the case. The reasons given by the majority to justify finding a violation of Article 5 § 1 of the Convention do not appear sufficient for this purpose.