CEDH · CASELAW;COMMUNICATEDCASES;ENG — 17 janvier 2022

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s6B505E72 { margin:0pt; padding-left:0pt } .s5E8F5A28 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .sAE6FB95D { margin-top:14pt; margin-left:32.01pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-family:Arial; font-style:italic } .s743F3A55 { margin-right:0pt; margin-left:0pt; padding-left:0pt } .s2044A09A { margin-left:6.51pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-weight:normal; font-style:italic } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s1E26B05F { margin-left:32.01pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-family:Arial; font-style:italic } Published on 7 February 2022   FIRST SECTION Applications nos. 43691/18 and 9173/21 A.W. against Poland and W against Poland lodged on 3 September 2018 and 29 January 2021 respectively communicated on 17 January 2022 STATEMENT OF FACTS 1.     The applicant in the first case (no. 43691/18), Mr A.W., is a Polish national, who was born in 1985. 2.     The applicant in the second case (no. 9173/21), Mr W, is a Polish national, who was born in 1981. He is represented before the Court by Mr   P.   Kładoczny, a lawyer from the Helsinki Foundation of Human Rights, a non ‑ governmental organisation based in Warsaw. 3.     Both applicants are currently detained in the National Centre for the Prevention of Dissocial Behaviour in Gostynin (“the Gostynin Centre”) on the basis of the Act of 22 November 2013 on Procedure regarding Mentally Disturbed Persons Representing a Threat to Life, Health or Sexual Freedom of Others ( Ustawa o postępowaniu wobec osób z zaburzeniami psychicznymi stwarzających zagrożenie życia, zdrowia lub wolności seksualnej innych osób ; “the 2013 Act”). The circumstances of the case The facts of the case, as submitted by the applicants, may be summarised as follows. Application no. 43691/18 4.     On 22 June 2018 the applicant’s mother died. On the same day the applicant requested the Director of the Centre to grant him leave to attend his mother’s funeral. On 26 June 2018 the Director of the Centre replied that he was not competent in this matter and that all decisions concerning the applicant’s release from the Centre, including on compassionate grounds, were to be taken by the Płock Regional Court. 5.     On 26 June 2018 the applicant lodged an application with the court for leave to attend a funeral which was to take place on 30 June 2018. On 27   June 2018 the Płock Regional Court (civil division) rejected his application for lack of jurisdiction. It found that the provisions of the 2013 Act did not confer on the court the competence to decide on the temporary release of a person confined in the Gostynin Centre. Nor was that competence conferred on it by the Code of Civil Procedure. Accordingly, the court held that it had no jurisdiction to rule on the applicant’s request. Application no. 9173/21 6.     On 18 December 2015 the applicant was detained in the Gostynin Centre. The facts related to his detention are set out in his first application no.   43562/17. 7.     On 3 August 2020 the applicant requested the Director of the Centre to grant him compassionate leave to attend the funeral of his father which was due to take place on 5 August 2020. On the same day the Director replied that all matters concerning the applicant’s confinement in the Centre fell within the competence of the Płock Regional Court and forwarded his request to the court. 8.     On 4 August 2020 the Regional Court dismissed the applicant’s request for compassionate leave. The court found that there was no provision in the 2013 Act granting it the competence to decide on temporary release from the Centre. In the absence of a legal basis for the applicant’s request it had to be rejected. 9.     The applicant lodged an appeal. On 25 November 2020 the Łódź Court of Appeal discontinued the proceedings. It found that the appellate proceedings became devoid of purpose since the funeral of the applicant’s father had already taken place. Relevant domestic law and practice The 2013 Act 10.     The Act of 22 November 2013 on Procedure regarding Mentally Disturbed Persons Representing a Threat to Life, Health or Sexual Freedom of Others ( Ustawa o postępowaniu wobec osób z zaburzeniami psychicznymi stwarzających zagrożenie życia, zdrowia lub wolności seksualnej innych osób ; “the 2013 Act”) entered into force on 22 January 2014. 11.     The 2013 Act regulates the procedure applicable to “persons representing a threat” ( osoby stwarzające zagrożenie ). Under section 1 of the 2013 Act such persons must fulfil the following requirements: 1) they are (were) serving a sentence of imprisonment or a sentence of twenty-five years’ imprisonment executed in a therapeutic system; 2)   during the execution of their sentence they suffered from mental impairment, personality disorder or sexual preference disorder; and 3)   their mental disorders are of such a nature or intensity that there is at least a high likelihood of them committing a prohibited violent act against life, health or sexual freedom, punishable by imprisonment of up to at least ten years. Measures provided by the 2013 Act are applied by the civil sections of the regional courts. 12.     A prison Director may file an application with the court declaring an individual to be a person representing a threat within the meaning of the 2013 Act (section 9). In order to determine whether an individual suffers from a mental disorder the court appoints two experts in psychiatry and, in certain cases, additionally an expert in psychology and sexology (section   11). The person concerned must be represented by a lawyer of his choice or appointed by the court. Having regard to the expert reports, results of the therapeutic treatment provided so far and the possibility of undergoing treatment at liberty, the court may subject a person representing a threat to preventive supervision ( nadzór prewencyjny ) if there is a high risk that the person would commit a prohibited act referred to in section 1(3) of the 2013 Act (section   14(2)). If such risk is very high, the court may order the person’s placement in the National Centre for Prevention of Dissocial Behaviour (“the Centre”; section 14(3)). Those measures are applied without maximum duration. 13.     A person detained in the Centre undergoes appropriate therapeutic treatment whose aim is to improve his state of health and behaviour in order to enable him to function in society without posing a threat to the life, health or sexual freedom of others. The Director of the Centre draws up an individual therapy plan for each detained person (section 25). 14.     The detained person may, at any time, apply to the court to determine the need for his continued placement in the Centre. A decision rejecting the application may be appealed against if at least six months have passed since the decision on the previous application was made (section   32(1)). 15.     At least once every six months the court decides whether the continuation of the person’s detention in the Centre is necessary, having regard to a psychiatric report and the results of therapeutic treatment. Every six months the Director of the Centre submits to the court a psychiatric report on the detained person and the results of his treatment (section 46). 16.     On an application from the detained person the Director of the Centre or, of its own motion, the court, may at any time discharge the detained person from the Centre if the results of his therapeutic treatment and his behaviour justify a conclusion that his further confinement is no longer necessary (section 47 (1)). The Constitutional Court’s judgment of 23 November 2016, case   no.   K 6/14 17.     The President of the Republic and the Ombudsman challenged the compatibility of various provisions of the 2013 Act with the Constitution and the Convention. Furthermore, two courts referred legal questions on the constitutionality of the Act. In its leading judgment of 23 November 2016 (no. K 6/14), the Constitutional Court sitting as a bench of five judges held, by a majority of four to one, that practically all of the contested provisions (sections 1, 2(3), 9, 11, 14(1-3), 15(1), 19(3) and 25) were compatible with the Constitution and the Convention. It relied extensively on the Court’s case-law and comparative material. The only provision declared partly unconstitutional was section 46(1) of the 2013 Act. It was found incompatible with Article 41 § 1 in conjunction with Article 31 § 3 of the Constitution in so far as it provided for a report on the necessity of further detention in the Centre to be prepared by only one psychiatrist. The Constitutional Court held that in order to ensure proper procedural safeguards to the person concerned, when deciding on the issue of extension of preventive detention, the court should have at its disposal a report of the same number and type of experts as applicable to a decision on placement in the Centre as specified in section 11 of the 2013 Act. Internal rules of the Centre The internal rules adopted by the Director of the Gostynin Centre specified that no leave may be granted to persons detained in the Centre. The Ombudsman’s letter to the Minister of Justice 18.     In his letter of 31 July 2018, the Ombudsman requested the Minister of Justice to consider certain amendments to the 2013 Act with a view to improving the situation of the persons detained in the Centre. The Ombudsman pointed, among others, to the lack of legal basis in the 2013 Act for the grant of compassionate leave to attend the funeral of a close relative. COMPLAINTS Application no. 43691/18 19.     The applicant complains under Article 8 of the Convention about the refusal to grant him leave to attend his mother’s funeral. Application no. 9173/21 20.     The applicant complains under Article 8 of the Convention about the refusal to grant him leave to attend his father’s funeral. He refers to the Court’s judgment in the case Solcan v. Romania (no. 32074/14, 8 October 2019). 21.     The applicant asserts that the prohibition to grant leave to persons detained in the Gostynin Centre was solely regulated in the internal rules of the Centre, but did not have a statutory basis as required by the Constitution. Accordingly, the interference in his case was unlawful. 22.     The applicant further complains that the refusal to grant him leave was not necessary in a democratic society. In this connection, he argues that the domestic courts did not assess his individual situation or explore alternative ways of ensuring his attendance at the funeral, such as escorted leave. QUESTIONS TO THE PARTIES [for both cases] 1.     Has there been an interference with the applicant’s right to respect for his family life within the meaning of Article   8 §   1 of the Convention on account of the refusal to grant him leave to attend his parent’s funeral? 2.     If so, was that interference in accordance with the law in terms of Article   8 §   2? Reference is made to the fact that the prohibition to grant leave does not have legal basis in the statute and is solely provided for by the internal rules of the Centre. 3.     Did that interference pursue one of the legitimate aims referred to in Article 8 § 2? 4.     Was that interference “necessary in a democratic society” in terms of Article   8 §   2? Reference is made to the fact that the domestic courts did not assess the applicant’s request on the merits and did not explore alternative ways of ensuring his attendance at the funeral (see, Solcan v. Romania , no.   32074/14, 8 October 2019)