MUSIAŁ v. POLAND
Inadmissible
András Sajó;Krzysztof Wojtyczek;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
1. The applicant, Mr Sławomir Musiał, is a Polish national, who was born in 1978. He is currently serving a prison sentence in Strzelce Opolskie Prison. 2. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, of the Ministry of Foreign Affairs. 3. In its judgment Sławomir Musiał v. Poland of 20 January 2009 (app. no. 28300/06), the Court found a violation of Article 3 of the Convention on account of the cumulative effect of the inadequate medical care and inappropriate conditions in which the applicant, who had a history of mental disorder, was held throughout his pre-trial detention. 4. In the operative part of the judgment the Court held that the respondent State was to secure at the earliest possible date adequate conditions of the applicant’s detention in a specialised institution capable of providing him with necessary psychiatric treatment and constant medical supervision (see also § 108 of the judgment). 5. The Government requested that the case be referred to the Grand Chamber; however, their request was rejected and the Chamber’s judgment became final on 5 June 2009. 6. The execution of this judgment is pending before the Committee of Ministers in the framework of enhanced procedure but only with respect to the general measures. The applicant’s judgment belongs to a group of cases against Poland concerning issues of adequacy of medical care provided to prisoners. According to the information submitted by the Government to the Committee of Ministers in February 2013, the applicant, who is now serving a prison sentence, has been provided with appropriate medical care. The Committee of Ministers decided at its 1164th meeting (5-7 March 2013) that no other individual measures appeared necessary in the light of information submitted by the Government, according to which the applicant’s conditions of detention were compatible with his state of health. 7. The facts of the present case, as submitted by the parties, may be summarised as follows. 8. The Government submitted that the applicant had a long criminal record. In the period subsequent to the Court’s judgment of 20 January 2009, the applicant’s criminal record included, inter alia, the convictions for: a) causing bodily injury, aggravated assault, punishable threat, armed robbery and aggravated theft - the Myszków District Court’s judgment of 21 April 2010, case no. II K 42/06; b) aggravated assault – the Zawiercie District Court’s judgment of 29 February 2012, case no. II K 475/11; c) punishable threat, trespass and aggravated theft - the Myszków District Court’s judgment of an unspecified date, case no. II K 1049/11; d) aggravated assault, two counts of armed robbery and property damage - the Jędrzejów District Court’s judgment of 7 March 2013, case no. VIII K 13/13; e) assault on a public official - the Myszków District Court’s judgment of an unspecified date, case no. II K 1438/10. 9. The applicant served various terms of imprisonment and was released in 2008. In 2011 he was imprisoned again. The applicant was detained in the following establishments: a) Łódź Prison No. 2 (psychiatric ward): 22 November 2011 – 13 June 2012; b) Częstochowa Remand Centre: 16 June 2012 – 17 October 2012; c) Przemyśl Prison: 18 October 2012 – 30 October 2012; d) Częstochowa Remand Centre: 30 October 2012 – 5 December 2012; e) Przemyśl Prison: 6 December 2012 – 12 December 2012; f) Częstochowa Remand Centre: 12 December 2012 – 5 January 2013; g) Herby Prison: 15 January 2013 – 30 October 2013; h) Nowy Sącz Prison: 30 October 2013 – 11 March 2014; i) Przytuły Stare Prison: 13 March 2014 – 1 April 2014; j) Kielce Remand Centre: 2 April 2014 – 9 July 2014; k) Herby Prison: 9 July 2014 – 18 September 2014; l) Strzelce Opolskie Prison: 18 September 2014 – present. 10. The applicant submitted that has been suffering from severe mental disorders. He claimed that in 2003 he had been diagnosed with paranoid schizophrenia. The applicant relied, in particular, on three medical opinions of 18 September 2009, 26 June 2011 and 30 May 2014. 11. The Government rebuffed the applicant’s assertion. They maintained that the applicant had been inaccurately diagnosed with paranoid schizophrenia. The Government submitted that the applicant did not mention at least nineteen opinions (twelve psychiatric and seven psychological) which concluded that he was not suffering from schizophrenia or any other mental disorder. The applicant further concealed the fact that at last six opinions (five psychiatric and one psychological) established that he was feigning his mental illness. 12. The Government submitted a complete list of psychiatric and psychological opinions regarding the applicant issued between 2003 and 2014 in the course of various criminal proceedings against him. 13. The Government submitted that four opinions confirmed the applicant’s alleged mental disorder (opinions of 9 August 2007, 18 September 2009, 26 June 2011 and 30 May 2014). However, in their view, these opinions were imprecise; short (1, 3, 4 and 6-page long respectively); based on a short (less than one day) consultation; prepared without reference to opinions in which no mental disorder had been diagnosed and without adequate access to all medical data; and based on documents submitted by the applicant and his suggestions. 14. Due to the discrepancies in the assessment of the applicant’s mental health, the relevant courts and prosecutor’s offices, at least on three occasions, ordered the applicant to undergo a psychiatric observation in hospital. The applicant’s hospital observation took place in the following periods: from 6 June to 18 July 2005; from 4 February 2008 to 17 March 2008 and from 24 November 2011 to 13 June 2012. All opinions issued following the hospital observations (dated 18 July 2005, March 2008, 14 April 2008, 25 June and 29 October 2012) excluded that the applicant was mentally ill. The Government asserted that the above opinions were detailed; long (5, 7, 8, 14, 34 and 41-page long respectively); prepared after a prolonged hospital observation; based on all previous opinions and on a various medical data. 15. The Włoszczowa District Court requested a psychiatric opinion as to whether the applicant could participate in the trial against him (case no. II K 192/08). The applicant was examined on 11 August 2009. In an opinion of 18 September 2009, two psychiatrists noted that verbal contact with the applicant was difficult and that he had difficulties in concentrating. The applicant stated that he had hallucinations and could not sleep well. The psychiatrists concluded that the applicant suffered from a mental disorder similar to paranoid schizophrenia. He did not have acute psychotic symptoms, but anxieties persisted. The psychiatrists concluded that the applicant could not take part in the trial for a period of six months. 16. The Government submitted that the above opinion was one-page long. The opinion also stated that the applicant had refused to be hospitalised in the Opole Psychiatric Hospital. In two previous opinions issued in the course of the same criminal case the psychiatrist opined that the applicant was not suffering from any mental disorder and that his psychiatric treatment between 2004 and 2006 was without prejudice to his ability to recognise his criminal acts. 17. The Częstochowa Regional Court requested a psychiatric opinion on the applicant’s mental condition for the purposes of the appellate proceedings (case no. VII Ka 550/10). In their opinion of 15 November 2010, the two psychiatrists opined that the applicant has suffered from paranoid schizophrenia from his teenage years. Currently his mental condition was relatively stable; however in the last few months, despite regular treatment, he had some psychotic spells leading to self-harm. His condition was chronic and there was a possibility that it will become more acute at any time. However, the psychiatrists concluded that the applicant could take part in the appellate proceedings. 18. On 21 June 2011 the Zawiercie District Disability Evaluation Board declared the level of the applicant’s disability as “moderate”. It noted that the applicant was unfit for work and needed assistance of social services in his daily life. The decision was in force until 30 June 2013. 19. The Zawiercie District Prosecutor’s Office requested a psychiatric opinion on the applicant’s mental condition, including whether he could be held criminally responsible (case no. 1 Ds 884/11). The applicant was examined on 14 June 2011. In their opinion of the same day, the two psychiatrists opined that there were no grounds to diagnose the applicant with mental disorder. They took note of the applicant’s medical records and the two opinions, produced by the applicant, in which he had been diagnosed with paranoid schizophrenia. However, they noted that these opinions did not establish the presence of psychotic symptoms at the time of the applicant’s examination; these symptoms had only been related by the applicant. In the course of the current examination, the applicant did not show any symptoms present in schizophrenia. The psychiatrists concluded that the applicant was not mentally disabled, having regard to the history of his schooling, his subsequent activities and the quality of contact during his examination. They found that the applicant had features of antisocial personality. In their conclusion, the applicant could be held criminally responsible and participate in the proceedings against him. 20. The Myszków District Court requested a psychiatric opinion as to whether the applicant suffered from a mental illness preventing him from serving his sentence (case no. II K 42/06). In their opinion of 26 June 2011, the psychiatrists diagnosed the applicant with acute psychotic disorder in the form of paranoid schizophrenia. His intellectual ability was assessed to fall within a norm. The experts concluded that the applicant’s current mental condition made him unfit for serving a prison sentence. 21. The Government submitted that the above opinion was two-and-a-half page long. It was issued after one day of examination. It corroborated that the applicant, regardless of several referrals to psychiatric hospitals, had refused to be hospitalised in connection with his alleged mental disorder. Furthermore, two weeks earlier, on 14 June 2011 the psychiatrists examining the applicant in connection with another set of criminal proceedings had declared him mentally fit. The psychiatrists disproved the two psychiatric opinions produced by the applicant which attested to his mental illness. They underlined that in the course of the examination leading to the issuance of those two earlier opinions no symptoms of mental disorder had been noticed and that the mental disorder had only been reported by the applicant. 22. The Włoszczowa District Court requested a psychiatric opinion on the applicant’s mental health in connection with the proceedings in which the applicant had been charged, inter alia, with robbery and assault (case no. II K 379/11). The applicant was interviewed at the Łódź Prison Hospital No. 2. In their opinion of 16 January 2012, the two psychiatrists (T.N. and J.M.), having analysed the medical documentation, stated that they were unable to determine the question of the applicant’s sanity at the time of the alleged offences. They noted that in the past the applicant had been diagnosed with paranoid schizophrenia, and that this diagnosis raised doubts and could not have been properly verified during a short stay at the hospital. The applicant’s mental condition did not indicate any psychotic process, but his “rich” medical documentation gave rise to difficulties in making a diagnosis. The psychiatrists requested the district court to order the applicant’s psychiatric observation in hospital and requested access to various medical and penitentiary documentation in order to assess the applicant’s mental health. 23. In a note dated 27 February 2012 the Łódź Prison informed the Włoszczowa District Court that the applicant had been admitted to the psychiatric ward on 24 November 2011 in the light of pharmacological treatment related to suspected schizophrenia. During his stay there, doctors did not notice any symptoms of schizophrenia or other mental illness and it was decided to stop administering antipsychotics. After that the applicant’s mental condition remained good. It was noted on the basis of existing documentation that the applicant had been frequently consulted by psychiatrists, who had diagnosed him with schizophrenia basing themselves solely on the applicant’s “stories”. The most comprehensive opinion on the applicant’s mental health was prepared in 2005 following his observation at the Rybnik Psychiatric Hospital. The psychiatrists of that hospital did not observe any psychotic symptoms. They found that the applicant suffered only from a personality disorder which corresponded to the conclusions of the current observation at the Łódź Prison Hospital. The psychiatrists of the Łódź Prison Hospital requested access to extended medical and penitentiary documentation on the applicant, to which previous experts had no access. It was noted during the applicant’s observation at the Łódź Prison Hospital that in situations which were uncomfortable for the applicant (i.e. when he was summoned to a hearing) he immediately began simulating symptoms of mental illness. 24. The Częstochowa Regional Prosecutor’s Office requested a psychiatric opinion on the applicant’s mental condition in connection with the proceedings in which the applicant had been charged, inter alia, with robbery, punishable threats, insult of a public official, participation in an organised gang and extortion (case no. V Ds 71/11/s). The psychiatric opinion was prepared by the same experts (T.N. and J.M.) who prepared the opinion of 16 January 2012, following the applicant’s observation at the psychiatric ward of the Łódź Prison between 24 November 2011 and 16 June 2012. The psychiatrists verified the applicant’s medical documentation and carried out a number of tests and examinations. They discovered no organic dysfunctions. The psychiatrists noted that the applicant had attempted to feign the symptoms of mental illness. For example, he related in a stereotypical manner that “voices are calling him to commit suicide”. The results of various tests showed no symptoms which could have even suggested the presence of depressive or manic disorders, either at present or in the past. During the examination, the applicant could not say anything about his symptoms and changed the subject of conversation. It was visible that the questions put to him in this respect were distressing. The experts carried out a test to determine the symptoms of schizophrenia, but this proved negative. The experts noted that: “Sławomir Musiał’s behaviour hid a clear motive and intentional effort to achieve a defined goal which was to mislead the experts and, consequently, to avoid his criminal responsibility. To this end, he feigned his mental illness.” The experts further noted that the applicant was unwilling to undergo certain tests. The applicant complained about problems with sleep or anxieties, but his observation at the psychiatric ward did not confirm his assertions. The experts found that the applicant displayed no typical behaviour for a person suffering from psychotic disorders, such as being suspicious vis-à-vis the other patients and staff. The applicant demanded to take anti-psychotic drugs, whereas in reality the mentally-ill avoid taking them. The applicant’s ostentatious behaviour and tendency to focus attention on the alleged hallucinations were also reported. The experts noted that the symptoms showed by the applicant did not correspond to any known illness. 25. In conclusions of their opinion of 29 October 2012, the psychiatrists stated: “1. We conclude that Sławomir Musiał shows no symptoms of mental illness or of mental disability. 2. We conclude that Sławomir Musiał has an antisocial personality and that he feigns his mental illness (...).” They lastly established that the applicant could be held criminally responsible and to participate in the proceedings. 26. The Częstochowa Regional Prosecutor’s Office also requested a psychological opinion on the applicant. The opinion was prepared on the basis of interviews and tests carried in the course of the applicant’s observation in the Łódź Prison. In his opinion of 25 June 2012, the psychologist T.M. concluded that the applicant’s intellectual ability fell within a broad norm and that he had no organic dysfunctions. The psychologist noted that the applicant did not function as a mentally disabled person. This was demonstrated by his ability to adapt, the manner of functioning in a group and of formulating his thoughts orally and in writing. The expert was unable to determine the applicant’s genuine intellectual ability since the latter had not properly participated in the tests. The expert also concluded that the applicant’s personality was improperly developed. In this respect, he noted that the applicant poorly internalised socio-moral norms. 27. The Włoszczowa District Court requested a psychiatric opinion on the applicant’s mental health in connection with the case against him (no. II K 379/11). The opinion was prepared by the same experts in psychiatry as the earlier opinion of 29 October 2012 (T.N. and J.M.) and based, in addition, on the applicant’s examination on 20 September 2012. In their opinion of 22 November 2012, the experts confirmed their earlier findings made in the opinion of 29 October 2012. In addition, they found that the applicant could be transported to court and noted that his earlier behaviour during transport resulted from him feigning a mental illness. 28. The Włoszczowa District Court also ordered a psychological opinion in connection with the same case. In his opinion of 22 November 2012, the psychologist T.M. reached the same conclusions as those presented in his earlier opinion of 25 June 2012. 29. On 4 September 2012 the applicant was consulted by a psychiatrist at the Częstochowa Remand Centre. She noted that the applicant was undergoing psychiatric treatment and had been frequently hospitalised in psychiatric hospitals in Lubliniec, Czeladź and Opole in connection with his schizophrenia. The psychiatrist expressed negative prognosis for the applicant given the chronic nature of his condition which was characterised by remissions. 30. It appears that on 15 January 2013 the applicant was transferred to Herby Prison. On 24 May 2013 the applicant was consulted by a doctor of the prison. Her findings were similar to those made by a psychiatrist on 4 September 2012. 31. In the course of the civil proceedings against the applicant which concerned a claim for increase of child maintenance, the Kraków-Podgórze District Court requested a psychiatric opinion on the applicant. The applicant was interviewed on 30 May 2014 by a psychiatrist in a court building. In his opinion of the same day, based on the interview, the case file of the civil case and some medical documentation, the psychiatrist established that the applicant suffered from chronic mental illness: paranoid schizophrenia. The applicant displayed low level of intellectual ability, hyperactivity and claimed to have hallucinations. It transpired from the medical documentation that despite a pharmacological treatment (large doses of antipsychotics) his condition did not improve and he often showed psychotic symptoms and agitation. There were also attempts to commit suicide. The expert concluded that the applicant was unable to work in prison due to his chronic mental illness. 32. The provisions pertaining to medical care in detention facilities and general conditions of detention, and the relevant domestic law and practice are set out in the Court’s judgments in the case of Kaprykowski v. Poland, no. 23052/05, §§ 36-39, 3 February 2009. More recent developments are described in the Court’s decision in the case of Łatak v. Poland (dec.) (no. 52070/08, §§ 25-54, 12 October 2010).