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
Full & Egal Universal Law Academy