KALISZ v. POLAND
Inadmissible
George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney
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. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 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. 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’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. 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. 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. 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. 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.” 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.”