FOURTH SECTION
DECISION
Application no. 15753/12
Kazimierz KALISZ
against Poland
The European Court of Human Rights (Fourth Section), sitting on 7 July 2015 as a Chamber composed of:
Guido Raimondi, President,
Päivi Hirvelä,
George Nicolaou,
Nona Tsotsoria,
Paul Mahoney,
Krzysztof Wojtyczek,
Faris Vehabović, judges,
and Françoise Elens-Passos, Section Registrar,
Having regard to the above application lodged on 13 March 2012,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having regard to the comments submitted by the Polish Government,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Kazimierz Kalisz, is a Polish national, who was born in 1952 and lives in Straszęcin. He was represented before the Court by Ms M. Gąsiorowska, a lawyer practising in Warsaw.
2. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, of the Ministry of Foreign Affairs.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Proceedings concerning the applicant’s legal capacity
4. On 5 October 2006 the applicant’s wife, J.K., lodged a request with the court to have the applicant deprived of his legal capacity.
5. In the course of the proceedings, the applicant was examined by two psychiatrists and a psychologist. The medical opinion issued by one of the psychiatrists on 22 November 2006 reads as follows:
“...the applicant suffers from severe mental disorders (nasilone zaburzenia psychiczne)... progressive, gradual changes to the central nervous system have resulted in a significant deterioration in his insight into his own situation and social relations. They constitute a basis for impulsive behaviour and aggression towards others.”
The psychiatrist concluded that there was a need to provide the applicant with help with everyday matters and therefore a partial deprivation of his legal capacity and the appointment of a guardian would be recommended. The expert saw no grounds to fully deprive him of his legal capacity.
6. On 20 December 2006 the Rzeszów Regional Court granted J.K.’s request and decided to fully deprive the applicant of his legal capacity on the grounds of mental illness.
7. After the expiry of the time-limit for appeal, the applicant appointed a lawyer, who on 22 January 2007, lodged an appeal against the decision of 20 December 2006 together with a request for leave to appeal out of time.
8. On 20 February 2007 the request was rejected because the applicant, being deprived of his legal capacity, could not effectively appoint a lawyer. The request and appeal had thus been lodged by someone who did not have the proper authorisation to act on the applicant’s behalf.
9. On 22 March 2007 the Strzyżów District Court appointed J.K. as the applicant’s guardian.
2. Criminal proceedings against the applicant and his placement in a psychiatric hospital
10. On 4 December 2007 an investigation into the alleged mental and physical mistreatment of the applicant’s wife and son, A.K., was opened.
11. On 28 January 2008, at the request of the prosecutor, the applicant was appointed a lawyer, B.L.
12. In the course of the criminal proceedings, the applicant was examined by two psychiatrists and a psychologist, who on 4 February 2008 issued their opinion. The relevant parts read as follows:
“From the medical documentation available, it appears that the applicant has not continued ambulatory treatment, does not take [his] medication, abuses alcohol and displays aggressive behaviour towards his family...
...the applicant is mentally ill. He was also mentally ill at the time of commission of the prohibited acts in question; at that time, he was incapable of recognising the significance of his behaviour and controlling his conduct...he absolutely requires treatment within the confines of a psychiatric unit...because there is a high probability that he might commit another similar prohibited act.”
13. On 23 June 2008 a hearing before the Strzyżów District Court was held, at which the expert witnesses confirmed the conclusions reached in their opinion of 4 February 2008.
14. On 23 June 2008 the Strzyżów District Court, relying on Article 94 of the Criminal Code, discontinued the proceedings against the applicant. It found that at the time of commission of the prohibited acts in question, he could not recognise the significance of his behaviour because of his mental illness. It also found that there was a high probability that he would commit further similar prohibited acts because he had refused to undergo systematic treatment, did not take his medication, abused alcohol and was completely uncritical as regards the prohibited acts he had committed and his state of health. The court also decided to impose on the applicant a preventive measure, namely placement in a closed psychiatric facility where he would undergo the necessary psychiatric treatment.
15. The applicant’s lawyer appealed against this decision.
16. On 30 July 2008 the Rzeszów Regional Court upheld the challenged decision, agreeing with the reasoning of the District Court. It also held that since the applicant had been completely uncritical as regards the prohibited acts committed and had refused treatment, there was a high probability that he would commit similar prohibited acts in future.
17. On 13 August 2008 the Psychiatric Commission on Preventive Measures at the Ministry of Health decided to admit the applicant to a psychiatric hospital in J. The applicant requested to have this decision varied as he preferred to be placed in a hospital in D.
18. On 21 October 2008 the Strzyżów District Court granted the applicant’s request.
19. On 20 November 2008 the applicant was admitted to the psychiatric hospital in D. He has been detained there ever since, having had his detention extended by the Strzyżów District Court on a regular six-monthly basis on the following dates: 7 April, 23 June and 15 December 2009 (psychiatric opinions of 9 March, 3 June and 20 November 2009 respectively), 20 May and 28 October 2010 (psychiatric opinions of 27 April and 27 September 2010), 12 April and 22 September 2011 (psychiatric opinions of 9 March and 23 August 2011), 20 March and 18 September 2012 (psychiatric opinions of 20 February and 8 August 2012), 7 March, 26 July and 27 September 2013 (for the two first decisions, a psychiatric opinion of 31 January and for the latest, an opinion of 18 July 2013). On 13 December 2013, following an appeal by the applicant’s lawyer, the decision of 27 September 2013 was upheld by the Rzeszów Regional Court which found that the District Court had properly assessed the circumstances of the case basing its decision on logical and coherent psychiatric opinion. According to the documents submitted to the Court the latest extension of the applicant’s detention in a psychiatric hospital was given on 30 January 2014 on the basis of a psychiatric opinion dated 8 January 2014.
20. Each time the court considered extending the preventive measure, it appointed a legal aid lawyer for the applicant. Both the applicant and his lawyer were informed of every hearing with one exception, a hearing which took place on 7 March 2013. The applicant’s lawyer appealed. He contested the court’s findings made in the decision of 7 March 2013 that there was a high probability that the applicant would commit a further prohibited act and that his state of health required his continued confinement in a psychiatric institution. On 19 June 2013 the Rzeszów Regional Court quashed the challenged decision however on other grounds than those which had been relied on by the applicant’s lawyer. It referred to a judgment of the Supreme Court of 27 February 2013, according to which a lawyer whose participation in the execution proceedings is mandatory must also be present at any hearings concerning the extension of a preventive measure imposed on his client.
21. The court’s decisions extending the applicant’s detention in the psychiatric hospital were reasoned in a similar way. The court stressed the fact that the experts had found that the applicant, due to the state of his mental health, required further confinement in a unit with reinforced security measures, because of the high probability that he might commit a similar prohibited act.
3. The applicant’s attempts to have his legal capacity partially restored
22. On 11 April 2008 the applicant requested the Rzeszów Regional Court to partially restore his legal capacity.
23. On 14 January 2009 it dismissed the request on the grounds that the applicant’s health had not improved to an extent that would justify such a decision being taken.
24. The applicant appealed.
25. On 14 May 2009 the Rzeszów Court of Appeal dismissed the appeal. It found, among other things, that the Regional Court had based its decision on complete psychiatric opinions, and that it had been unnecessary to appoint other medical experts to determine the applicant’s state of health.
26. On 11 August 2009 the applicant’s lawyer lodged a cassation appeal with the Supreme Court.
27. On 13 April 2010 the Supreme Court refused to examine the appeal.
4. Proceedings for the appointment of another guardian
28. On 12 March 2012 the applicant’s sister, A.G., requested the Strzyżów District Court to dismiss the applicant’s wife as guardian. She submitted that there had been a situation of extreme conflict between the applicant and his wife, who she alleged had had mental health problems in the past and had undergone psychiatric treatment.
29. On 26 June 2012 the Strzyżów District Court dismissed the request, finding that the applicant’s wife had properly fulfilled her obligations. As regards her alleged mental health problems, the court found that she had undergone some treatment for depression; however, this did not prevent her from acting as her husband’s guardian.
30. The applicant’s sister appealed against the first-instance decision and, since her appeal was lodged after the expiry of the time-limit, she requested the court for leave to appeal out of time. She submitted that the court’s correspondence had not been served on her because it had been stolen from her postbox.
31. On 10 May 2013 the Rzeszów Regional Court dismissed the request for leave to appeal out of time. It found that A.G.’s statements as regards the alleged theft of correspondence from her postbox had not been credible. The appeal was dismissed the same day.
5. Ban imposed on the applicant’s sister from visiting him in hospital
32. The applicant’s sister regularly visited him in hospital. According to the director of the psychiatric unit, after each visit, the applicant would behave aggressively and refuse to take his medication.
33. On 31 August 2009 the director took the decision to ban the applicant’s sister from visiting him. She relied on Article 204c of the Code of Execution of Criminal Sentences and reasoned her decision by “repetitive incidents of internal rule breaking by A.G. and a risk of the applicant behaving dangerously”.
34. On the same day the applicant was served with a copy of that decision, which included a notice of his right to appeal to the director of the psychiatric unit and, subsequently, to the Penitentiary Court. The applicant failed to appeal.
B. Relevant domestic law and practice
1. Preventive measures
35. Article 93 of the Criminal Code reads as follows:
“The court may impose a preventive measure provided for in this chapter which involves committal to a closed medical institution only if necessary to prevent the repeated commission of a prohibited act by a perpetrator suffering from mental illness...mental impairment, or addiction to alcohol or other narcotic drugs. Before imposing such a measure, the court shall hear evidence from psychiatrists and a psychologist...”
36. Article 94 reads as follows:
“ 1. If a perpetrator has committed a prohibited act causing significant harm to the community, in a state of insanity as specified in Article 31 § 1, and there is a high probability that he will commit such an act again, the court shall commit him to a suitable psychiatric institution.
2. The duration of the stay in the institution shall not be fixed in advance; the court shall release the perpetrator from the institution if his stay there is no longer deemed necessary.
3. The court may reorder the committal of a perpetrator specified in paragraph 1 to a suitable psychiatric institution if it is advisable in the light of the circumstances specified in paragraph 1 or in Article 93; such an order may not be issued more than 5 years after release from the institution.”
2. Execution of preventive measures
37. Article 203 of the Code of Execution of Criminal Sentences reads, in so far as relevant, as follows:
“ 1. The director of a closed institution in which a preventive measure is being executed shall send the court, no less than every six months, an opinion on the state of health of the perpetrator placed in the institution and the progress of his or her treatment or therapy. The opinion shall be sent immediately if, due to a change in the perpetrator’s state of health, the director finds that his or her further detention in the institution is unnecessary.
2. The court may request, at any time, an opinion on the state of health of the perpetrator placed in an institution referred to in paragraph 1, the treatment or therapy administered, and the results thereof.”
38. Article 204 reads as follows:
“ 1. The court shall, no less than every six months, and in the event of receiving an opinion that further detention of the perpetrator in a closed medical institution in which a preventive measure is being executed is unnecessary, immediately make a decision as regards the further execution of that measure. If necessary, the court shall refer to the opinion of other medical experts.
2. The decision as regards the further execution of a preventive measure may be appealed against.”
39. Article 204 c reads as follows:
“Personal contact of a perpetrator detained in an institution referred to in [paragraphs 2 and 3 of] Article 200 § 2 and Article 200 § 3 [reinforced and maximum security psychiatric hospitals and drug rehabilitation institutions] with visitors may only take place with the approval of the director of the institution. Approval may be refused, particularly if such contact could cause an increased risk of dangerous behaviour.”
COMPLAINTS
40. The applicant complained under Articles 5 §§ 1 and 4 and under Article 8 of the Convention.
THE LAW
A. Alleged violation of Article 5 § 1 of the Convention
41. The applicant complained that his detention in a psychiatric unit had been unlawful. The complaint falls to be examined under Article 5 § 1 of the Convention, which reads, in so far as relevant, as follows:
“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 for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants ...”
1. The parties’ submissions
42. The Government submitted that the applicant’s placement in the psychiatric institution had been ordered in accordance with Article 5 § 1 (e) of the Convention. In particular, his detention had been ordered by the relevant court after a psychiatric examination, which had shown that his mental disorders had been serious enough to require treatment in a closed psychiatric facility. The Government further submitted that the necessity of the applicant’s continued confinement had been verified and confirmed by the relevant court at regular intervals.
43. The applicant disagreed in general terms with the court’s decisions to fully deprive him of his legal capacity and to continue to hold him in the closed psychiatric institution.
2. The Court’s assessment
(a) General principles
44. The Court reiterates that an individual cannot be deprived of his liberty on the basis of unsoundness of mind unless three minimum conditions are satisfied: he must reliably be shown to be of unsound mind, that is to say, a true mental disorder must be established before a competent authority on the basis of objective medical expertise; the mental disorder must be of a kind or degree warranting compulsory confinement; and the validity of continued confinement must depend upon the persistence of such a disorder (see Winterwerp v. the Netherlands, 24 October 1979, § 39, Series A no. 33; Johnson v. the United Kingdom, 24 October 1997, § 60, Reports of Judgments and Decisions 1997-VII; and Sabeva v. Bulgaria, no. 44290/07, § 56, 10 June 2010).
45. The national authorities have a certain margin of appreciation regarding the merits of clinical diagnoses, since it is in the first place for them to evaluate the evidence in a particular case: the Court’s task is to review under the Convention the decisions of those authorities (see Winterwerp, cited above, § 40, and Luberti v. Italy, 23 February 1984, § 27, Series A no. 75).
46. The Court further reiterates that the expressions “lawful” and “in accordance with a procedure prescribed by law” in Article 5 § 1 essentially refer back to national law and enshrine the obligation to conform to the substantive and procedural rules thereof. Although it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law, under Article 5 § 1 failure to comply with domestic law entails a breach of the Convention and the Court can and should review whether this law has been complied with (see, among many other authorities, Benham v. the United Kingdom, 10 June 1996, § 41, Reports 1996-III).
47. Compliance with national law is not, however, sufficient: Article 5 § 1 requires in addition that any deprivation of liberty be in keeping with the purpose of protecting the individual from arbitrariness (see, among many other authorities, Winterwerp, cited above § 37, and Witold Litwa v. Poland, no. 26629/95, § 78, ECHR 2000-III).
(b) Application of these principles to the present case
48. Turning to the circumstances of the present case, the first question is whether the applicant has been reliably shown to be suffering from a mental disorder. The Court notes that he was deprived of his liberty as a person “of unsound mind”, in accordance with the relevant provisions of the domestic law. He had been charged with several offences, in particular domestic violence. In the course of the criminal proceedings against him, he was examined by two psychiatrists and a psychologist who, in their opinion of 4 February 2008, established that he had been suffering from a mental illness and required treatment. They also found that there was a high probability that he might commit another similar prohibited act (see paragraph 12 above). Subsequently, they were heard by the trial court at a hearing on 23 June 2008, at which they confirmed their conclusions (see paragraph 13 above).
49. On the basis of the experts’ opinion, on 23 June 2008 the Strzyżów District Court discontinued the proceedings against the applicant and ordered his confinement in a psychiatric unit under Article 94 of the Criminal Code (see paragraph 14 above).
50. The Court concludes that it has been reliably shown that the applicant was “of unsound mind” within the meaning of Article 5 § 1 (e) of the Convention. It follows that the first criterion laid down in the Winterwerp judgment has been fulfilled in the present case.
51. As regards the need to justify placement by the severity of the disorder, the Court observes that having established the applicant’s mental illness, the experts found that he would not submit to treatment voluntarily, refused to take his medication and displayed aggressive behaviour towards his family (see paragraph 12 above). The Court considers that there are no grounds to doubt that the experts who had examined the applicant were fully qualified and had based their conclusions on their best professional judgment. In view of these considerations, and noting that the national court was in a far better position to assess the value of the expert reports and, more generally, to determine the factual issue of whether or not the applicant was suffering from a mental disorder of a kind or degree warranting compulsory confinement, it follows that the second criterion laid down in the Winterwerp judgment has also been fulfilled in the present case.
52. It remains to be examined whether the validity of the applicant’s continued confinement depended upon the persistence of his mental disorder. In this regard, the Court notes that he was placed in the psychiatric unit on 20 November 2008, where he still remains (see paragraph 19 above). He is examined by a psychiatrist at regular six-monthly intervals and the result of psychiatric examination serves each time as basis for a fresh judicial decision extending his confinement in the psychiatric unit.
53. It is true that, as the Government put it in their observations (see paragraph 56 below), the reasoning of the decisions had not been “particularly extensive” and that the courts had limited themselves to referring to the results of psychiatric examination and to the conclusion of forensic experts. However, given that the courts had relied on well-reasoned opinions, which were never contested by the applicant, there was no need to repeat the details of the psychiatrists’ findings in the judicial decisions. Neither the applicant nor his lawyer produced any evidence showing that the domestic courts had failed to address any arguments put forward by the parties. In particular, the applicant failed to show that he contested before the domestic courts the fact that they had not ordered his examination by a specialist employed outside the facility in which he is confined. What is more, the applicant, who for the purpose of every extension of his confinement was granted a lawyer to represent him in the relevant proceedings, did not appeal against most of the courts’ decisions. From the documents submitted by the parties it appears that he appealed twice; on one occasion his appeal was dismissed by the second instance court (see paragraph 19 above ) and on the other it was allowed, albeit on other grounds than those relied on by the applicant (see paragraph 20 above).
54. Having regard to the foregoing, the Court concludes that the third criterion laid down in the Winterwerp judgment has likewise been fulfilled in the present case, that is that the applicant’s placement in the unit was ordered “in accordance with a procedure prescribed by law” and that his continued deprivation of liberty was justified by sub-paragraph (e) of Article 5 § 1 of the Convention.
It follows that the complaint under Article 5 § 1 of the Convention is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
B. Alleged violation of Article 5 § 4 of the Convention
55. The applicant further complained that the procedure by which his continued deprivation of liberty was verified did not meet the “fairness” requirement, in that the court extending the preventive measure would rely on the psychiatric opinions of the same experts from the institution in which he was being deprived of his liberty. These complaints are to be examined under Article 5 § 4 of the Convention, which provides as follows:
“4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
56. The Government considered that the applicant had at his disposal an effective remedy to have the lawfulness of his deprivation of liberty verified. They submitted that he had been appointed a legal aid lawyer before each hearing at which the extension of the preventive measure applied to him was to be decided. On the one occasion when his lawyer had not been properly informed of a hearing, the decision taken by the court on 7 March 2013 had subsequently been quashed because of the lawyer’s absence. As regards the quality of the reasoning of the decisions extending the applicant’s deprivation of liberty, the Government admitted that they had not been “particularly extensive”; however, they had been based on “extensive medical opinions”.
57. The applicant submitted that the necessity of his continued deprivation of liberty had not been properly shown because he was always examined by the same doctors from the same institution. The courts had never ordered an independent opinion from an expert outside the psychiatric unit to have his state of health examined and the necessity of his continued deprivation of liberty verified.
1. General principles
58. The Court reiterates that Article 5 § 4 entitles detained persons to institute proceedings for a review of compliance with the procedural and substantive conditions which are essential for the “lawfulness”, in Convention terms, of their deprivation of liberty. The notion of “lawfulness” under paragraph 4 of Article 5 has the same meaning as in paragraph 1, so that a detained person is entitled to a review of the “lawfulness” of his detention in the light not only of the requirements of domestic law but also of the Convention, the general principles embodied therein and the aim of the restrictions permitted by Article 5 § 1. The reviewing “court” must not have merely advisory functions but must have the competence to “decide” the “lawfulness” of the detention and to order release if the detention is unlawful (see Ireland v. the United Kingdom, 18 January 1978, § 200, Series A no. 25; Weeks v. the United Kingdom, 2 March 1987, § 61, Series A no. 114; Chahal v. the United Kingdom, 15 November 1996, § 130, Reports 1996‑V; and A. and Others v. the United Kingdom [GC], no.3455/05, § 202, ECHR 2009).
59. Nevertheless, Article 5 § 4 guarantees a remedy that must be accessible to the person concerned and must afford the possibility of reviewing compliance with the conditions to be satisfied if the detention of a person of unsound mind is to be regarded as “lawful” for the purposes of Article 5 § 1 (e) (see Ashingdane v. the United Kingdom, 28 May 1985, § 52, Series A no. 93). The Convention requirement for an act of deprivation of liberty to be amenable to independent judicial scrutiny is of fundamental importance in the context of the underlying purpose of Article 5 of the Convention to provide safeguards against arbitrariness. What is at stake is both the protection of the physical liberty of individuals and their personal security (see Varbanov v. Bulgaria, no. 31365/96, § 58, ECHR 2000‑X). In cases of detention on the grounds of mental illness, special procedural safeguards may be called for in order to protect the interests of persons who, on account of their mental disabilities, are not fully capable of acting for themselves (see, among other authorities, Winterwerp, cited above, § 60).
60. Among the principles emerging from the Court’s case-law on Article 5 § 4 concerning “persons of unsound mind” are the following:
(a) A person detained for an indefinite or lengthy period is in principle entitled, where there is no automatic periodic review of a judicial character, to bring proceedings “at reasonable intervals” before a court to challenge the “lawfulness” – within the meaning of the Convention – of his detention. The "detention of persons of unsound mind" constitutes a special category with its own specific problems (see Winterwerp, cited above, §§ 23-24, § 57 and § 60). In particular, "the reasons initially warranting confinement of this kind may cease to exist". This leads, as noted in the Winterwerp judgment, to a consequence of some importance (ibid., § 55):
"... it would be contrary to the object and purpose of Article 5 (art. 5) ... to interpret paragraph 4 ... (art. 5-4) as making this category of confinement immune from subsequent review of lawfulness merely provided that the initial decision issued from a court. The very nature of the deprivation of liberty under consideration would appear to require a review of lawfulness to be available at reasonable intervals."
(b) Article 5 § 4 requires the procedure followed to have a judicial character and to afford the individual concerned guarantees appropriate to the kind of deprivation of liberty in question; in order to determine whether proceedings provide adequate guarantees, regard must be had to the particular nature of the circumstances in which they take place.
(c) The judicial proceedings referred to in Article 5 § 4 need not always be attended by the same guarantees as those required under Article 6 § 1 for civil or criminal litigation. Nonetheless, it is essential that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation (see Megyeri v. Germany, 12 May 1992, § 22, Series A no. 237‑A, and Stanev v. Bulgaria [GC], no. 36760/06, § 171, ECHR 2012).
61. As mentioned above, Article 5 § 4 of the Convention entitles arrested or detained persons to a review bearing upon the procedural and substantive conditions which are essential for the “lawfulness”, in Convention terms, of their deprivation of liberty. This means that the competent court has to examine not only compliance with the procedural requirements of domestic law but also the reasonableness of the suspicion underpinning the arrest and the legitimacy of the purpose pursued by the arrest and the ensuing detention (see Grauslys v. Lithuania, no. 36743/97, § 53, 10 October 2000). In order to satisfy the requirements of Article 5 § 4, a review of the “lawfulness” of the applicant’s detention must comply with both the substantive and procedural rules of the national legislation and, moreover, be conducted in conformity with the aim of Article 5, namely to protect the individual against arbitrariness (see Keus v. the Netherlands, 25 October 1990, § 24, Series A no. 185‑C).
2. Application of these principles to the present case
62. Turning to the circumstances of the present case, the Court accepts that the procedure for reviewing the need for the applicant’s continued deprivation of liberty was accessible to him; the domestic law provided for a periodic review of detention in psychiatric hospitals and this procedure was followed. The procedure had a judicial character and the applicant had access to a court; although he was never heard in person by the court extending his detention, a lawyer was appointed each time to represent him, and, on the one occasion when the lawyer had not been properly informed of a hearing, the relevant decision was quashed by the court of second instance (see paragraph 20 above).
63. It remains to examine whether in the course of the procedure referred to above the “lawfulness” of the applicant’s deprivation of liberty was thoroughly examined.
64. In this regard the Court notes that it has already examined the facts of the instant case and concluded that the applicant’s placement in the unit was ordered “in accordance with a procedure prescribed by law” and that his continued deprivation of liberty was justified by the persistence of his mental disorders, thoroughly examined by the domestic courts (see paragraphs 48-54 above).
65. As regards the applicant’s arguments that he was examined constantly by the same doctors who were employed in the institution in which he is confined there is no evidence that the applicant did raise this issue in the domestic proceedings. In contrast to the case of X. v. Finland, in which the Court found a violation where a medical evaluation of a patient was done by two physicians of the same mental hospital in which the patient was detained, in the Polish legal system there is a power for the domestic court to order an outside opinion. Under the relevant domestic provisions, the court extending an applicant’s confinement in a psychiatric institution is not under an obligation to refer to the opinion of other medical experts but may do so only if such need arises (see paragraph 38 above). In the X. case the Court found that an opportunity to receive an opinion from an outside physician constituted an important safeguard against possible arbitrariness in decision-making where the continuation of confinement in involuntary care is concerned (X v. Finland, no. 34806/04, § 169, ECHR 2012 (extracts)). It was possible for the present applicant to request the court to order such an opinion.
Furthermore, there is no ground to doubt that the psychiatrists who examined the applicant for the purpose of judicial proceedings acted professionally. It is not upon the Court to impose an obligation that in every case where an applicant is deprived of his liberty in a psychiatric institution an outside psychiatrist must examine an applicant even if he or she did not put forward any plausible grounds for seeking a second expert opinion.
66. Taking into consideration the reasons referred to above and its finding as regards the applicant’s allegations as to the alleged violation of Article 5 § 1 of the Convention, it cannot be said that the remedy under Article 5 § 4 of the Convention was not conducted in conformity with the aim of Article 5, namely to protect individuals against arbitrariness.
It follows that the complaint under Article 5 § 4 of the Convention is likewise manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
C. Alleged violation of Article 8 of the Convention
67. The applicant further complained that since 2009 his sister had been banned from visiting him in hospital, even though she was the only person with whom he had a good relationship. This complaint falls to be examined under Article 8 of the Convention, which provides as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interest of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health and morals, or for the protection of the rights and freedoms of others.”
68. The Government submitted that this complaint should be declared inadmissible for non-exhaustion of domestic remedies; the applicant had failed to appeal against the decision of 31 August 2009 (see paragraph 34 above) even though he had been expressly informed of such a possibility. Although the decision in question could be varied at any time, since then neither the applicant nor his sister had requested the hospital authorities to lift the ban and allow A.G. to visit her brother.
69. The Government further submitted that in the event the Court considered the complaint admissible, the interference with the applicant’s private and family life was justified and necessary in a democratic society. It was based on the relevant provisions of the domestic law, served a legitimate aim, namely the protection of the applicant’s health and morals, and was proportionate in the circumstances of the case.
70. As regards the Government’s objection concerning non-exhaustion of domestic remedies, the applicant’s lawyer submitted that since the applicant had been fully deprived of his legal capacity, it was unlikely he would appeal against the decision of 31 August 2009.
71. The Court notes that the applicant was expressly informed that he had a right to appeal against the decision of 31 August 2009, which he failed to do. Even assuming that he might have difficulties in lodging his appeal within the prescribed time-limit of seven days, he could and still can request that the decision concerned be amended. From the Government’s submissions, it emerges that the applicant has not lodged such a request.
72. Taking into account the facts outlined above, the Court considers that the applicant’s complaint under Article 8 of the Convention is inadmissible for non-exhaustion of domestic remedies and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 30 July 2015.
Françoise Elens-PassosGuido Raimondi
RegistrarPresident
Full & Egal Universal Law Academy