CASE OF K.C. v. POLAND
Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Article 5-1-e - Persons of unsound mind);No violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention)
Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney
6. The applicant was born in 1936 and lived in Żary. She is currently residing in a social care home in K. 7. The applicant, who is a widow, was living alone in an apartment in Żary. She was receiving a pension from the Social Security Board. She has a daughter, with whom she apparently had had no contact for several years. 8. On 24 March 1981, at the request of the applicant’s daughter, the Zielona Góra Regional Court declared the applicant to be partially incapacitated. The court established that she had been suffering from psycho-organic dementia syndrome with elements of paranoia and that she had a tendency to abuse alcohol and medications. It reasoned that it was necessary to declare her to be partially incapacitated because she needed help in making the right decisions, particularly as regards her treatment and the amount of money she spent on alcohol. 9. On 19 December 2007 the Żary City Centre for Social Services (Miejski Ośrodek Pomocy Społecznej) requested the Żary District Court to place the applicant, against her will, in a social care home. The City Centre for Social Services submitted that the applicant was suffering from mental disorders, did not go to doctors and behaved in a way that departed from “socially accepted norms”, which posed a threat to her health and life. The Centre explained that the applicant had been “walking in the streets incompletely dressed, untidy and dirty. She smelled, talked to herself and often looked as if she was under the influence of alcohol”. A medical certificate dated 3 December 2007 was attached to the request. The certificate had been issued by a psychiatrist on the basis of an examination of the applicant in the psychiatric ward of the Żary Military Hospital. It had been found that the applicant had been suffering from organic personality disorders (organiczne zaburzenie osobowości) and that she needed constant care. However, she did not require hospital treatment. 10. The Żary District Court scheduled several hearings at which the applicant failed to appear. Therefore, it was decided to hear the applicant at her place of residence on 25 March 2008. On that day contact with the applicant was difficult; her answers to some of the court’s questions were illogical. She made it clear, however, that she did not want to be placed in the social care home. At the end of the hearing she refused to sign the relevant document and told the people present in her apartment to get out. 11. On 19 June 2008 the Żary District Court decided to place the applicant in a social care home. The court based its decision on an opinion given by a psychiatrist, I.S., who had examined the applicant once, on 8 May 2008, and had diagnosed her with chronic schizophrenia and a disorder of the central nervous system. The doctor found that until the time of the examination the applicant had been in the care of a social guardian, R.D. However, the doctor claimed that “care was not provided properly or was not provided at all”. The applicant had been neglecting the basic principles of hygiene and nutrition, which might lead to infections or undernourishment. He stressed however that she did not pose a direct danger to her own or other peoples’ health or life. The doctor also found that the applicant needed to be under the constant care of a third person. The relevant part of the opinion read as follows: “Through her behaviour she poses a risk to her life, i.e. in certain circumstances leaving her without constant care significantly raises the probability of risk to her life. It is not however a direct risk, but it results rather from the applicant’s neglect of basic hygiene principles, place of residence and nutrition. [The applicant is therefore exposed to] a risk of malnutrition, [and] infections.” The court also examined the possibility of the applicant’s stay at her home and referred in this respect to the possibility of taking care of the applicant by third persons and to the assistance provided by the Local Social Care Centre. The relevant part of the court’s decision read as follows: “...there are no members of family or third persons who could take care of the applicant on permanent basis. In particular the applicant’s daughter declared that she did not want to look after her mother on permanent basis and that she would not take her mother to her place... ... The expert opinion is clear in so far as it states that (the applicant) needs constant care lack of which poses a danger to her life. ... As regards the assistance from the employees of the Żary Social Care Centre it is to be noted that this assistance is not of a permanent nature. This means that social employee does not spend the whole day with a person concerned and does not take care of that person on permanent basis because, as a rule, social employees [...] assist at the same time many persons living in the area covered by their activity. The applicant in turn, requires permanent care which cannot be secured by the social employees.” 12. The applicant was placed in a social care home in K. on 10 September 2008. 13. It appears that the District Court granted the applicant a legal aid lawyer in 2007. However, according to the applicant’s submission the lawyer was not present at the hearing before the first-instance court and de facto she was not represented in the judicial proceedings. 14. On 8 December 2008 the applicant’s daughter appealed against the decision of 19 June 2008. She also requested that her mother be granted a legal aid lawyer and that she be served with the decision of 19 June 2008 with written reasoning. 15. On 29 December 2008 the Żary District Court dismissed the request for a legal aid lawyer, finding that the applicant’s daughter had sufficient knowledge and abilities to represent her mother before the court. It also rejected the appeal and the request for the reasoning of the first-instance decision. 16. On 7 February 2009 the applicant lodged another appeal against the decision of 19 June 2008 and requested leave to appeal out of time. 17. On 3 March 2009 the applicant was granted a legal aid lawyer. Since she was not satisfied with the lawyer who represented her, on 2 June 2009 she was granted another lawyer, who subsequently requested that the court grant the applicant leave to appeal out of time. 18. On 25 August 2009 the Żary District Court granted the applicant’s request for leave to appeal out of time. 19. On 7 December 2009 the Zielona Góra Regional Court dismissed the applicant’s appeal. The minutes of the court decision reveal that nobody was present at the hearing on that day. The same minutes state, however, that “the applicant, who was not represented by a lawyer, was informed that she could request reasons for the decisions in writing if she lodged a relevant request within seven days from the day of publication [of the decision].” The applicant submitted that she had not been served with the court’s decision and that she had found out about it by chance two years later. In the meantime she lodged a complaint with the court about the excessive length of the proceedings. Her complaint was rejected by the Zielona Góra Regional Court on 31 October 2011. 20. When the applicant learned that her appeal had been dismissed she requested the leave of the Regional Court to lodge a request for written reasons for the decision out of time. She also requested leave to lodge a cassation appeal out of time, to be exempted from the court fees and to be granted a legal aid lawyer who would prepare and lodge a cassation appeal on her behalf. 21. On 21 November 2011 the Zielona Góra Regional Court dismissed her request for leave to appeal out of time and therefore she could not lodge a cassation appeal with the Supreme Court. 22. On the same day the Zielona Góra Regional Court dismissed the applicant’s request for exemption from the court fees and for the appointment of a legal aid lawyer to lodge a cassation appeal on her behalf. 23. On 20 November 2008 the applicant’s daughter requested the District Court to vary the measure applied to her mother and to amend the decision of 19 June 2008. 24. The Żary District Court ordered that the applicant be examined by a psychiatrist in order to check whether she needed to remain in the social care home. It also ordered that the applicant be heard by the Gorzów Wielkopolski District Court by way of judicial assistance. 25. The applicant was examined by a psychiatrist on 6 April 2009. The relevant part of the psychiatric opinion reads as follows: “In her current mental state the applicant does not need to be admitted and treated in hospital. ... As a result of her sickness she requires help in day-to-day matters, first of all, taking care of her treatment process and controlling her expenses so that she does not spend money on alcohol. She also needs assistance in preparing meals, personal hygiene and shopping. ... The applicant needs the twenty-four-hour care that may be offered in a social care home. It is admissible that she be placed in a family home provided that the family is able to assure twenty-four-hour care. ... There has been no change in the applicant’s mental state or circumstances which constituted the basis for her placement in the social care home. The applicant does not require to be placed in a psychiatric ward ... She does not pose a direct danger to her own or a third person’s health or life.” 26. On 6 April 2009 the applicant was also heard by the Gorzów Wielkopolski District Court. The hearing lasted fifteen minutes. The applicant’s statement reads as follows: “I am afraid that I could be locked up. I would need a sanatorium where they treat heart disease. I do not feel at ease in the social care home because the people there are not normal, they are constantly asking for cigarettes and I do not smoke. Medical care is assured there. The doctor is a colleague of mine, because I was manager of a chemist and he was the doctor. I take the medication promazyn because I was exposed to radiation during the war, but now I am fine. I am in good hands, I need my home, my daughter comes to see me. She comes every week. I lived in my home in Żary for 30 years. My daughter, when she became an adult, used to come to see me and she helped me out. I want to stay in my apartment in Żary, which is situated not far from my daughter’s apartment.” 27. On 15 June 2009 the court summoned the applicant’s daughter in order to establish whether she was capable of providing care for her mother. She failed to appear, so a further hearing was scheduled for 10 August 2009. The applicant’s daughter again failed to appear. The court then decided to close the case, finding that the facts had been sufficiently established to make a final decision. 28. On 20 August 2009 the Żary District Court dismissed the request lodged by the applicant’s daughter to vary the measure applied to the applicant. Neither the applicant, her daughter, nor the applicant’s guardian was present when the court announced its decision. The decision was not appealed against and became final on 10 September 2009. 29. On 5 April 2009 the applicant requested the Żary District Court to reopen the proceedings which had resulted in her placement in the social care home. If it was not possible to re-open the proceedings, she requested that the respective decision be varied. 30. On 21 May 2009 the District Court rejected her request. The court found that there were no grounds for reopening the proceedings. It further informed the applicant that, under section 41 of the 1994 Psychiatric Protection Act, an applicant placed in a social care home or members of his or her family could request that the court vary the decision on placing him or her in the social care home. The court disregarded the applicant’s alternative request in that regard. 31. On 9 February 2009 the applicant requested the District Court to supplement the decision of 19 June 2008 and allow her to leave the social care home for one hour a day in order to go to a shop, as well as allow her to stay in her room all day. 32. On 25 August 2009 the Żary District Court dismissed the request to supplement the original decision, finding that those matters fell outside the court’s jurisdiction and that they were provided for by the internal regulations of each social care home. 33. On 19 July 2009 the applicant again asked the court to vary the measure applied to her. She also requested legal aid; she submitted that she could not afford to appoint a lawyer at her own expense because 70% of her pension was retained by the social care home. 34. On 1 October 2009 the Żary District Court refused to grant a legal aid lawyer, finding that the applicant was able to deal with her affairs herself and that her case was not complicated from a legal or factual point of view. 35. The applicant appealed against that decision. 36. On 18 November 2009 the Zielona Góra Regional Court quashed the challenged decision and granted the applicant a legal aid lawyer. 37. As regards the applicant’s request to vary the measure, a hearing took place on 6 November 2009 in the presence of both the applicant and her lawyer. Following a request by the lawyer, the court decided to stay the proceedings. They were resumed on 5 February 2010. 38. On 15 March 2010 the Żary District Court dismissed the applicant’s request. The applicant did not appeal against that decision and it became final on 6 April 2010.