CASE OF NOWICKA v. POLAND
Violation of Art. 5-1;Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
Gaukur Jörundsson
9. The applicant was born in 1940 and lives in Łódź, Poland. 10. On an unspecified date the applicant inherited from her mother a 25% share in a property situated in Łódź at 6 Piotrowska Street. The property consisted of an apartment building and a plot of land. On 18 October 1990 the Łódź District Court (Sąd Rejonowy) appointed the applicant as the administrator of the property. 11. Subsequently, the applicant requested the previous administrator of the property, the association Z.W.Z.D., to cease all of its activities relating to the administration of the property. However, the association ignored her request and continued to collect rent from tenants living in the apartment building. In addition, the applicant challenged the right of Mr H.D. to collect rent from tenants leasing business premises located in the building, claiming that his title to a part of the property had been obtained under false pretences. These challenges resulted in an on-going dispute between the applicant on the one side and the association and Mr H.D. on the other. 12. On 8 March 1994, Mr H.D., acting through his counsel Mr L.B., brought a private prosecution against the applicant. A private bill of indictment filed by Mr H.D. alleged that the applicant was guilty of criminal libel since, on 19 January 1994, she had sent to a bank, which had made a loan to Mr H.D., a letter stating that he had obtained the loan under false pretences and had been repaying it from income obtained from her property. 13. During the hearing before the Łódź District Court held on 12 April 1994, counsel for Mr H.D. and the applicant refused to settle the case. The applicant confirmed that on 19 January 1994 she had sent the impugned letter, which had led Mr H.D. to bring the private prosecution against her. Counsel for Mr H.D. asked the court to request the Łódź Psychiatric Clinic (Poradnia Zdrowia Psychicznego) for information on whether the applicant was a patient of that clinic and, if so, to instruct it to provide the court with her medical file. Counsel based his request on the fact that, according to his knowledge, the applicant was indeed a patient at that clinic. The applicant denied that she had ever undergone psychiatric treatment and stated that counsel's submission was slanderous. The court decided that it would consider counsel's request in camera at a later date, and that it would request information about the applicant's criminal record and background (wywiad środowiskowy). 14. On 14 April 1994 the District Court granted the request made on 12 April 1994 and asked the Łódź Psychiatric Clinic to provide information about any medical treatment which the applicant had received there. 15. On 19 April 1994 the Łódź Psychiatric Clinic informed the District Court, in a letter signed by Dr B.K., that on 23 October 1973 the applicant had visited the clinic and that her medical file included a reference to “suspected paranoid schizophrenia” (podejrzenie schizofrenii urojeniowej). 16. On 6 May 1994 police constable Z.A. issued a statement concerning the outcome of the background check, which had been conducted at 4 Sienkiewicza Street where the applicant resided at that time. He concluded, inter alia, that the applicant's neighbours had a good opinion of her, that she did not drink heavily and that she was not involved in any quarrels with her neighbours. 17. On 11 May 1994 counsel for Mr H.D. requested the Łódź District Court to order an expert opinion on the state of the applicant's mental health. He also submitted several letters written by the applicant and pointed out that they showed that the applicant had claimed rent from certain tenants occupying retail and office space located on the property, despite the fact that the association Z.W.Z.D. had been letting out those premises. 18. On 19 May 1994 the court appointed two psychiatrists and a psychologist and instructed them to prepare a report on the applicant's condition at the time of the commission of the alleged crime. On 30 May 1994 the experts scheduled an appointment with the applicant for 10 June 1994. 19. On 1 June 1994 the applicant asked the Łódź District Chamber of Doctors (Okręgowa Izba Lekarska) to initiate disciplinary proceedings against Dr B.K. for making a false representation in her letter of 19 April 1994. The applicant contested the contents of that letter, claiming that it had been based on fabricated medical records since she had never visited the Łódź Psychiatric Clinic. The applicant's requests for an investigation into the circumstances in which the letter had been issued were rejected by the Łódź District and Regional Prosecutors. 20. On an unspecified date, the Łódź District Court ordered the applicant to report on 10 June 1994 for an examination in a psychiatric ward of the Babiński Hospital headed by Dr B.K. The applicant's appeals and complaints concerning that decision were rejected by the Łódź District and Regional Courts. The applicant submitted that she had asked the District Court to change the venue of her examination as she had considered that no objective opinion on her mental health could be issued after an examination in a ward headed by Dr B.K. 21. On 10 June 1994 the applicant failed to attend the psychiatric examination. 22. On 14 June 1994 the applicant filed an application challenging all judges of the Criminal Section of the Łódź District Court, but it was dismissed on 23 June 1994. 23. On 13 July 1994 the Łódź District Court issued an arrest warrant in order to secure the applicant's compliance with its order concerning her psychiatric examination. 24. The Government submitted that on 27 July 1994 the police informed the court that the applicant had refused to open the door to her flat and the police officers had therefore been unable to enforce the arrest warrant. The applicant denied that, and pointed to the fact that on 25 October 1994 she had voluntarily gone to the police station (see below). 25. On 1 August 1994 the District Court issued an order fixing 12 August 1994 as the new date for the applicant's compulsory psychiatric examination. However, the applicant did not keep the appointment. 26. On 1 September 1994 the District Court issued a new arrest warrant and scheduled the applicant's examination for 23 September 1994. The applicant again failed to attend the examination. 27. On 4 October 1994 the Łódź District Court decided that the applicant should be arrested and detained on remand in order to secure her compliance with its order. 28. On 25 October 1994 the applicant visited the Łódź-Śródmieście District Police Station (Komenda Rejonowa Policji) in order to file a complaint about a breaking and entry into one of her apartments. However, her complaint was not accepted by the police and she was arrested under the District Court's warrant. On 26 October 1994 the applicant was transferred to the Łódź Prison No. 1. 29. On 26 October 1994 the applicant's daughter filed an appeal against the District Court's decision of 4 October 1994 ordering the applicant's arrest and detention. However, the appeal was rejected on 27 October 1994 because the court considered that the applicant's daughter was not authorised to file an appeal on behalf of her mother. 30. On 28 October 1994 the applicant's counsel appealed the decision of 4 October 1994, but the appeal was dismissed on an unknown date. 31. On 2 November 1994 the applicant underwent a psychiatric examination. The psychiatrists who examined the applicant concluded that they could not make a diagnosis based on a single examination, and recommended that the applicant undergo a psychiatric examination in a public hospital. They also stated that only if the applicant failed to present herself for an examination at the public hospital should she be subjected to an examination in a prison hospital. On 3 November 1994 she was released from detention. 32. Between 25 October and 3 November 1994 the applicant's daughter applied twice to the Łódź District Court for leave to visit the applicant. Both applications were allowed. 33. On 8 November 1994 the Łódź District Court decided that the applicant should undergo a psychiatric examination in a medical establishment (zakład leczniczy). On 23 November 1994 the Łódź Regional Court (Sąd Wojewódzki) dismissed the applicant's appeal against that decision. 34. On 12 December 1994 the experts appointed by the court to examine the applicant informed it that the examination could take place between 2 and 7 January 1995. 35. On 6 January 1995 the applicant again failed to report for an examination. 36. On 9 January 1995 the Łódź District Court issued an arrest warrant because of the applicant's failure to attend a psychiatric examination at a public hospital. The court decided that she would be detained on remand under Article 217 § 1(2) of the Code of Criminal Procedure. It considered that the applicant had obstructed the criminal proceedings against her since she had not attended the hospital, despite being served with a summons, and because the police were unable to bring her to the hospital. 37. On 22 February 1995 the Łódź District Court issued a search warrant, considering that the applicant was in hiding since she was not staying at her residence. 38. On 23 March 1995 the applicant was arrested. On 24 March 1995 she was transferred to prison. 39. On 24 March 1995 the District Court allowed an application for leave to visit the applicant filed by the applicant's daughter. 40. On 29 March 1995 the Łódź Regional Court dismissed the applicant's appeal against the District Court's decision to arrest her. On the same day the experts advised the court that the applicant's examination could start on 19 April 1995. 41. On 31 March 1995 the applicant's daughter, Astrid Nowicka, filed with the Łódź District Court an application for leave to visit the applicant. She asked for two separate authorisations, for herself and her sister Inez Nowicka, to visit their mother on “multiple occasions” (wielokrotne widzenia). On 4 April 1995 the judge noted the following instruction to the registry: “Inform A. Nowicka that the court gives 1 authorisation per month as far as meetings with a detainee are concerned, and other [authorisations] only in exceptional cases.” 42. On 4 April 1995 the Łódź District Court dismissed the applicant's request that she be released from prison. 43. On 10 April 1995 the District Court allowed the application for leave to visit the applicant filed by the applicant's daughter. 44. On 19 April 1995 the Regional Court dismissed the applicant's appeal against the District Court's decision of 4 April 1995. 45. Between 19 April and 26 May 1995 the applicant underwent a psychiatric examination in the prison hospital at the Łódź Prison No. 2. A medical opinion issued after that examination concluded that the applicant's intellectual ability was substantially above average and that she showed no signs of being either mentally ill or retarded. The opinion also stated that she had a paranoid personality and that she had understood what she was doing at the time of the commission of the alleged offence. 46. In the meantime, on 5 May 1995 the District Court allowed the application for leave to visit the applicant filed by the applicant's daughter. 47. In a letter of 22 May 1995 the Vice-President of the Łódź Regional Court advised the applicant that her examination in a medical establishment had been ordered by a court in response to the request by psychiatrists, who had concluded that they had been unable to draw up an expert opinion on the applicant's mental health after a single examination. 48. On 30 May 1995 the applicant was transferred to the Łódź Prison No. 1. On 2 June 1995 the District Court allowed the application for leave to visit the applicant filed by her daughter. 49. On 3 June 1995 the applicant was released from prison. 50. Subsequently, the Łódź District Court discontinued the criminal proceedings against the applicant. 51. Article 25 § 1 of the Code of Criminal Procedure 1969 (“the Code”), in so far as relevant, provides: “A person who, because of being mentally retarded or ill ..., could not understand his acts or who could not control his behaviour [at the time of the commission of the offence] shall not be criminally responsible.” 52. Article 217 § 1(2) of the Code, in so far as relevant, provides: “Detention on remand may be imposed if: ... 2. there is a reasonable risk that [the accused] will attempt to induce witnesses to give false testimony or to obstruct the proper course of proceedings by any other unlawful means ...” 53. Article 65 § 1(1) of the Code, in so far as relevant, reads as follows: “If it proves necessary for the purposes of taking evidence, the accused shall submit to: (1) the external examination of the body and other examinations not involving interference with the body ...” 54. Paragraph 34(1) of the Resolution of the Minister of Justice 1989 concerning the rules governing detention on remand provides as follows: “A person detained on remand may have visits after obtaining permission from the organ at whose disposal he remains, unless that organ decides otherwise.”