CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 22 octobre 1997

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                      AS TO THE ADMISSIBILITY OF                         Application No. 25429/94                     by Damazy KIELCZEWSKI                     against Poland          The European Commission of Human Rights (Second Chamber) sitting in private on 22 October 1997, the following members being present:             Mrs   G.H. THUNE, President           MM    J.-C. GEUS                G. JÖRUNDSSON                A. GÖZÜBÜYÜK                J.-C. SOYER                H. DANELIUS                F. MARTINEZ                M.A. NOWICKI                I. CABRAL BARRETO                J. MUCHA                D. SVÁBY                P. LORENZEN                E. BIELIUNAS                E.A. ALKEMA                A. ARABADJIEV             Ms    M.-T. SCHOEPFER, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 29 June 1994 by Damazy Kielczewski against Poland and registered on 15 October 1994 under file No. 25429/94;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      16 October 1995 and the observations in reply submitted by the      applicant on 15 January 1996;        Having deliberated;        Decides as follows:   THE FACTS        The applicant, a Polish citizen born in 1952, is a farmer residing in Jedwabne in Poland.        The facts of the case, as submitted by the parties, may be summarised as follows:        On 19 April 1993 the applicant's wife informed the police in Jedwabne that the applicant had been ill-treating her since October 1992.   She stated that the applicant had become violent towards her, had threatened to kill her and on several occasions had forced her to leave the apartment and seek shelter with her friends.   At these occasions the applicant had been intoxicated.   He had suspected her of adultery allegedly committed in 1979.   On the same day an investigation was opened and, subsequently, three witnesses were heard.        On 27 May 1993, on the Public Prosecutor's order, the applicant was brought by the police to an outpatient psychiatric clinic in Lomza and underwent an examination by two expert psychiatrists.        On 27 May 1993 the applicant's wife complained to the police that her husband had beaten her on 24 May 1993 and submitted a medical certificate to this effect.   On 19 June 1993 she complained about a next incident and also submitted a relevant certificate.        In an opinion of 15 June 1993, numbering eight pages, the psychiatrists stated that an interview as to the applicant's past life and the events which had led to the opening of the investigation had been taken.   They had considered also the material gathered in the investigation, in particular the submissions of the witnesses, from which it transpired that from October 1992 the applicant had often been aggressive towards his wife.   He had threatened her with killing her and had assaulted her, accusing her of marital infidelity committed allegedly in the years 1979-81 and trying to make her confess that his allegations were true.   During these attacks he had normally been drunk.   The witnesses had stated that he had been heavily drinking for years. The psychiatrists further had regard to the police notes from which it transpired that there had been three police interventions at the applicant's home since October 1992 as he had been violent.   They concluded that the applicant suffered from paranoid syndrome of pathological jealousy against the background of alcoholism.   At critical times, the applicant had not comprehended the meaning of his acts and had been unable to control his conduct.   His remaining at liberty would pose a threat to public order.   He should be treated in a closed ward for alcoholics.        By a decision of 23 June 1993 the Public Prosecutor decided to discontinue the criminal proceedings.   The Prosecutor found it established by two medical experts that the applicant was not criminally responsible on psychiatrical grounds.   The experts considered that the applicant was dangerous to public order and to his wife and children.        On 23 June 1993 the applicant's wife complained again about next altercation caused by the applicant and requested the police assistance.        On 25 June 1993, upon the Public Prosecutor's order, eight policemen took the applicant to the psychiatric outpatient clinic in Lomza.   The applicant resisted the arrest.   The police beat him and the police dog attacked him.   He was handcuffed.   In view of the applicant's behaviour a psychiatrist in an outpatient clinic of the Regional General Hospital in Lomza, the same doctor Z.D. who had prepared the medical opinion of 15 June 1993, decided that he should be placed in a mental hospital for observation, given that he was suffering from acute psychosis and a paranoid syndrome of jealousy against the background of alcoholism.   On the same day the police took the applicant to the hospital in Choroszcz for observation.        On 30 June 1993 his brother demanded the applicant's discharge and the applicant was released, although the doctors objected thereto. A medical report issued upon the applicant's discharge stated that the applicant had been observed with a view to determining whether he was suffering from syndrome of paranoid jealousy against the background of alcoholism, but no diagnosis had been established as there had not been enough time to do so.        On 30 June 1993 the applicant was examined by a forensic medicine expert, who stated that the applicant had numerous bruises, which could have originated during his arrest.        On 19 July 1993 the Lomza Public Prosecutor submitted a request to order the applicant's psychiatric internment to the Lomza District Court.        On 4 August 1993 the Lomza District Court decided that the applicant should be placed in psychiatric detention in Choroszcz Hospital.   In the proceedings the Court   heard two psychiatrists who had prepared the expert opinion in the criminal proceedings.   The Court also considered the findings of the Prosecutor according to which the applicant had committed the offence at issue, but was not criminally responsible on psychiatric grounds.   The Court had furthermore regard to the unequivocal medical expert opinion that the applicant could be dangerous to the public order and in particular his wife and thus should be placed in psychiatric detention.        On 13 August 1993 the Lomza Regional Court upheld this decision. Subsequently the applicant went into hiding in order to avoid internment.        On 29 December 1993 the Minister of Justice refused leave for an extraordinary appeal against this decision considering that the decision was well-founded.        On an unspecified later date the applicant requested the Lomza District that he be placed in Pruszków Mental Hospital.   On 2 March 1994 the Court complied with this request.   On 15 March 1994 the applicant was admitted to that hospital.        On 9 August 1994 the applicant requested the Lomza District Court to give to his brother a photocopy of his case-file.   On 10 August 1994 the President of the Criminal Division informed him that the relevant provisions allowed only that parties to the proceedings be given copies of court decisions and copies of documents which they had submitted themselves.        On 19 September 1994 the Forensic Psychiatry Department of the Pruszków Hospital submitted an expert opinion to the Lomza District Court to the effect that the applicant should be released.        On 27 September 1994 the Court decided to release the applicant and he was released on 29 September 1994.     COMPLAINTS        The applicant complains that he was ill-treated by the police upon his arrest on 25 June 1993. He complains that his detention in Choroszcz hospital in June 1993 was unjustified as he was not suffering from any mental illness.   This detention was not ordered by the Court, but was the result of an illegal decision of the Prosecutor. He complains that his later detention was also unjustified.        The applicant complains that the Court refused his request of 9 August 1994 to provide him with a copy of the medical expert opinion.        The applicant finally complains under Article 6 of the Convention that the proceedings concerning his psychiatric detention were not fair.   He submits that the Public Prosecutor failed to appoint a lawyer to represent him in the proceedings relating to his internment immediately after the psychiatrists were called in to examine him as provided for by law.   He contends that the officially appointed lawyer failed to act in these proceedings.   He complains that the Public Prosecutor did not comply with the procedural requirements as his order to call experts did not specify their task and the exact scope of the opinion.     PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 29 June 1994 and registered on 15 October 1994.        On 22 February 1995 the Commission decided to communicate the application to the Polish Government, pursuant to Rule 48 para. 2 (b) of the Rule of Procedure, who were invited to submit their observations on its admissibility and merits before 28 April 1995.        The Government   submitted their observations on 16 October 1995.        The applicant submitted his reply to the Government's observations on 15 January 1996.     THE LAW   1.    The applicant complains under Article 5 para. 1 (e) (Art. 5-1-e) of the Convention that his detention, ordered by the decision of the Lomza District Court of 4 August 1994, was unjustified.        Article 5 (Art. 5) of the Convention in its relevant part reads:        "1.   Everyone has the right to liberty and security of person.      No one shall be deprived of his liberty save in the following      cases and in accordance with a procedure prescribed by law:...        e.    the lawful detention of persons...of unsound mind,      alcoholics...;"        The Government concede that the applicant exhausted all relevant domestic remedies in this respect.        As to the substance, they first recall that in order to comply with the requirements of Article 5 para. 1 (e) (Art. 5-1-e) of the Convention, detention must be lawful, i.e. in conformity with both procedural and substantive rules and the mental disorder, confirmed by an objective medical expertise, must be such as to justify a compulsory hospitalisation (Eur. Court HR, Winterwerp v. Netherlands judgment of 24 October 1979, p. 17, para. 39).        The Government maintain that all those requirements were complied with in the present case.   The Court's decision to place the applicant in a mental hospital was based on a written medical opinion of two psychiatrists of 15 June 1993 and later confirmed by their oral testimony given before the Court.   The psychiatrists diagnosed the applicant as suffering from mental illness.   In their opinion they considered the statements made in the investigations by the applicant's wife and three other witnesses.   They further took into account the police notes regarding the applicant's behaviour.   In their conclusions they found that the applicant posed a serious threat to public order. They found that he   suffered from syndrome of imaginary adultery against the background of alcoholism.   It was further established that the applicant should undergo treatment against his alcohol addiction.        The Government further state that those psychiatrists were later heard by the Lomza District Court and in their testimony they confirmed their earlier findings, in particular as to the danger that the applicant's remaining at liberty would entail danger to his family. They stated inter alia that the applicant's conduct after the examination of the applicant on 27 May 1993 corroborated their conclusions as in that period he had committed several acts of violence against persons closest to him, in particular against his wife.        The Government submit that in view of the applicant's conduct he was brought by the police to the outpatient clinic at the Lomza General hospital on 25 June 1993 and that the psychiatrist who examined him stated that the applicant suffered from acute psychosis and that the observation in a mental hospital was necessary.   The Government conclude that in the light of the above, the court's decision as to the applicant's internment was well-founded.        The applicant submit that, as it is evident from the case-file, his psychiatric assessment took the form of an interview carried out in the outpatients' clinic.   The written statement entitled "Opinion" includes quotations from evidence assembled by the Prosecutor in the investigations, a description of the interview with the suspect and a final decision without any statement of what it is based upon.   On the basis of superficial, incomplete and unsubstantiated material obtained under circumstances stressful for the applicant, (i.e. being   brought to the interview by the police) the psychiatrists produced a   statement on the activities undertaken which, regardless of its designation, could not and should be not recognised as an independent and objective opinion.        It is further stated that a crucial factor in a psychiatric assessment is a direct contact between doctor and patient and a wide- ranging family interview.   Yet despite these obvious principles, the statement of 15 June 1993 makes it quite clear that the psychiatrists concerned conducted no interviews with anyone in the applicant's family nor did they carry out specialised testing considered indispensable in the light of the current psychiatric knowledge.   The examination confirmed that the applicant manifested a heightened degree of fear, helplessness and expectations of help.    Despite the applicant's state at the time when he was examined, no additional tests, at a time more suitable to the applicant, were proposed.   In the light thereof, the Court's decision to have the applicant detained in a mental hospital was entirely unfounded, regard being had in particular to the contents of the psychiatric opinion of 19 September 1994 in which it was stated that the applicant did not pose a serious threat to others and should be released.        The applicant further refers to the medical certificate issued upon his release from the hospital on 30 June 1993 and contends that it cast doubt on the expert opinion as it only recommends further check-ups in an outpatient clinic.        He further submits that the proposals expressed in the opinion of 15 June 1993 indicate solely that he required treatment for his alcohol addiction, not because of his psychiatric illness.   Imaginary marital infidelity arising from abuse of alcohol is not a recognised illness.   Moreover, the experts' conclusions given to the Lomza District Court differ substantially from these of 15 June 1993 as it was stated therein that the applicant suffered from alcohol-induced paranoia and recommending his detention in a psychiatric hospital.        The applicant further indicates that the expert psychiatrist Z.D. who participated in drawing up the opinion of 15 June 1993 and was later heard by the Court was the same doctor who on 25 June 1995 decided that the applicant should be put into hospital.   Thus, in the applicant's view, the court was obliged to admit evidence from another expert.   The failure to do so amounts to a flagrant lack of fairness.        The Commission first observes that doubts arise as to whether the applicant lodged his application with the Commission within the time- limit of six months, pursuant to Article 26 (Art. 26) of the Convention.   It is to be noted that the final decision was taken by the Lomza Regional Court on 13 August 1993.   The decision was executed on 15 March 1994 when the applicant was interned in the Pruszków Mental Hospital and the application lodged on 29 June 1994.        The applicant submits in this respect that after the decision was pronounced on 13 August 1993 he went into hiding for over six months and thus could not lodge his application within the time-limit. The Government do not address this issue.        The Commission is not required to decide whether the applicant complied with the requirement under Article 26 (Art. 26) of the Convention to lodge the application within six months from the final decision since, even assuming that he did so, the application is manifestly ill-founded for the following reasons.        The Commission recalls that, according to the Convention organs' case-law, a psychiatric detention must first of all be "lawful", including the observance of a procedure prescribed by law; it requires in addition that it should be consistent with the purpose of Article 5 (Art. 5), namely to protect the individual from arbitrariness; consequently the fact that a person is of unsound mind must be established conclusively.   To this end an objective medical report must demonstrate to the competent national authority the existence of a genuine mental disturbance whose nature or extent is such as to justify such deprivation of liberty (Eur. Court. HR, Herczegfalvy judgment of 24 September 1992, Series A no. 244, p. 21, para. 63).        The Commission observes that the court decision ordering the applicant's psychiatric internment was taken on the basis of the medical examination carried out by two psychiatrists.   They relied on the information gathered by the police in the course of the investigations and on the testimony given by the witnesses, but also on their own clinical observations taken during the interview with the applicant on 27 May 1993.   They were further heard by the court in the subsequent proceedings before the Lomza District Court concerning the Prosecutor's order for the applicant's internment.   Their testimony confirmed the conclusions contained in their earlier opinion.   The difference between the designation of the syndrome from which the applicant suffered contained in the opinion of 15 June 1993 and given at the hearing before the Lomza District Court, referred to by the applicant, do not invalidate their conclusion that in view of his mental condition he posed a threat to the public order and in particular to his family.        It has further to be borne in mind that in the period preceding the decision on the applicant's internment he had shown a repeated violent behaviour towards his wife, as shown by the medical certificates which she submitted to the Public Prosecutor, thus lending credibility to the conclusion that he posed a threat to public order and to his wife in particular.   There is reliable evidence to this effect other than the medical opinion which credibility the applicant calls into question.   The fact that it was the same psychiatrist who prepared the opinion of 15 June 1993 as to the advisability of the applicant's internment and later on 25 June 1993 ordered that in view of his violent conduct he should be placed in a psychiatric hospital for observation does not in fact cast doubt on the well-foundedness of the court's decision of 4 August 1993.   The Commission considers that the medical assessment of the applicant's condition was sufficient to establish the need for his internment.   On the whole, the Commission considers that there is no indication that the decision on the applicant's detention was arbitrary.   In conclusion, it complied with the requirements of Article 5 para. 1 (e) (Art. 5-1-e) of the Convention.        It follows that this complaint is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.    The applicant complains that the Court refused his request of 9 August 1994 to provide him with a copy of the medical expert opinion prepared by the psychiatrists.   The applicant examined this complaint under Article 25 (Art. 25) of the Convention.        The Government submit that the applicant did not exhaust domestic remedies in this respect.   The applicant contests this.        The Commission recalls that the general rules of admissibility, including the provisions concerning the exhaustion of domestic remedies, are not applicable with regard to the complaints which raise a question under Article 25 para. 1 (Art. 25-1) of the Convention (3591/68, Dec 5.2.70, CD 12, p. 45).        As to the substance, the Commission notes that the applicant submitted the request to obtain a photocopy of the case-file to the Lomza District Court on 9 August 1994.   By a letter of 10 August 1994 the President of the Court replied that, in accordance with the relevant provisions, a party to the proceedings could receive only copies of the court's decisions or of the documents which he had submitted himself.   However, the Commission notes that it was open to the applicant to appoint a representative in order to have access to the file and make notes.   Further, it was open to him to have access to the case-file after he was released on 29 September 1993.   He has not shown that he did so. There is no indication that the court's refusal to make a photocopy of his case-file in any way hampered his efforts to lodge an application with the Commission.        The Commission does not consider, therefore, that the applicant was hindered in the exercise of his right to individual petition under Article 25 (Art. 25) of the Convention.   3.    The applicant further complains about his ill-treatment upon his arrest on 25 June 1993.   He submits that his arrest and interment in the mental hospital from 25 to 30 June 1993 was unjustified.   He further submits various complaints concerning the proceedings in which his second detention was ordered by the Lomza District Court.        The Commission is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of the Convention.   In accordance with Article 26 (Art. 26) of the Convention, the Commission may only deal with the matter within a period of six months from the date on which the final decision was taken.   As regards the applicant's first detention in the psychiatric hospital, the applicant was taken by the police, acting upon an order of the Public Prosecutor, to the psychiatric outpatient clinic on 25 June 1993. Subsequently, in accordance with the psychiatrist's decision, he was brought to the hospital and detained there until 30 June 1993.   There was no remedy at the time to complain against such decision.        The Commission recalls the Convention organ's case-law according to which, where no domestic remedy is available, the six months' period runs from the date of the act complained of (No. 5759/72, Dec. 5.7.76, D.R.6, p. 15,   No. 8007/77, Dec. 10.07.78, D.R. 13, p. 85).   As the applicant introduced his application on 29 June 1994, he did not comply with the six months' requirement provided for by Article 26 (Art. 26) of the Convention.        As regards the complaints concerning the proceedings in which the Lomza District Court ordered the applicant's subsequent detention by the decision of 4 August 1993, the Commission notes that these complaints were submitted in the applicant's observations of 15 January 1996.   The applicant has not therefore submitted these complaints within the six-months' time-limit provided for in Article 26 (Art. 26) of the Convention.        It follows that this part of the application is inadmissible within the meaning of Article 27 para. 3 (Art. 27-3) of the Convention.          For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE;        DECIDES TO TAKE NO FURTHER ACTION in respect of the applicant's      complaint of the alleged hindrance of his right to individual      petition under Article 25 of the Convention.          M.-T. SCHOEPFER                               G.H. THUNE       Secretary                                   President to the Second Chamber                       of the Second Chamber