ITEMID: 001-113293
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF PLESÓ v. HUNGARY
IMPORTANCE: 3
CONCLUSION: Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-e - Persons of unsound mind);Non-pecuniary damage - award
JUDGES: András Sajó;Françoise Tulkens;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque
TEXT: 6. The applicant was born in 1975 and lives in Dunakeszi.
7. At the time of introducing the application, the applicant, a university dropout and unemployed, lived on financial support from his mother and grandmother.
8. On 12 September 2006 the applicant’s mother consulted her psychiatrist, Dr M., complaining of suffering from distress due to the “strange behaviour” of her son. According to the mother’s medical file, she stated that the applicant “kept wandering in town”, “did not have any friends” and “did not look after himself”. In response, Dr M. informed her of the possibilities either to commit the applicant to a psychiatric hospital for emergency treatment or to initiate a procedure for obtaining his mandatory institutional treatment, if necessary.
9. On 6 November 2006 the mother informed Dr M. that the reason for her having previously moved out of their common flat was the applicant’s “strange behaviour” and that she was afraid of returning. On 4 December 2006 Dr M. noted in the mother’s medical file that she was discussing with her the problems concerning the applicant, whom his mother perceived as psychotic.
10. During their subsequent consultations, the mother repeatedly mentioned to Dr M. that the reason for her anguish was that the applicant had not taken up a proper job and still lived on financial support from his family. In her medical file Dr M. reiterated the view that the mother’s problem originated in her son’s conduct perceived as psychotic by the mother.
11. On 17 September 2007 the applicant was called on to meet Dr M. They discussed the applicant’s dropping out of university and his inability to meet his mother’s expectations. Dr M.’s diagnosis was “paranoid schizophrenia under observation”.
12. Subsequently Dr M. gave the applicant an appointment for a psychological examination, which took place on 22 September 2007. On that day, Dr L. examined the applicant and found that he was characterised “by schizoid isolation, sensitive attitude and paranoid behaviour”.
13. Further sessions involving the applicant, Dr M. and Dr L. took place on 24 and 28 September and 3 and 5 October 2007. At these sessions he expressed his interest in politics and voiced hopes of being elected Mayor of Budapest. Dr M. was trying to find out the reasons for his social isolation and convince him about the need to reconcile his projects with reality. The applicant missed two sessions scheduled for 12 and 19 October 2007.
14. Having noted that the applicant’s ideas had remained megalomaniac, on 24 October 2007 Dr M. confronted the applicant with her view that his social isolation was due to a psychiatric disorder.
15. On 31 October 2007 the applicant renounced further counselling by Dr M. About the same time, he also stopped seeing Dr L.
16. On 5 and 6 November 2007 the mother complained to Dr M. that she, in despair because of the applicant’s condition, was unable to pay her utility bills, exorbitant due to the applicant’s habit of using too much water for “ritual bathing”. Dr M. explained to her that the applicant was expected to seek treatment voluntarily.
17. Since the applicant did not do so, on 26 November 2007 Dr M. requested the Dunakeszi District Court to order his mandatory institutional treatment. This application consisted of a pre-printed form stating that there was a possibility that the applicant’s conduct would become dangerous because of a mental disorder. Dr M. completed the form by adding that the applicant’s mother asked her for assistance since she had the suspicion that her son was mentally ill, that the applicant had contacted Dr M. upon notice, that he had not worked for eight years, was supported by his mother, lived an isolated life, and did not get in touch with anyone, and finally that he was shorttempered towards his mother, who had moved away from the flat as the patient’s behaviour was threatening.
18. On 11 December 2007 the Dunakeszi District Court held a hearing. For the purposes of the ensuing proceedings, a guardian ad litem was appointed for the applicant. The District Court heard Dr M. In her testimony, she repeated in essence the elements contained in the application for mandatory treatment. She stated that she had suspected that the applicant might have a psychiatric illness when, on 12 September 2006, the mother had told her that the applicant had refused to use a micro-wave oven for fear of radiation, and that she had concluded that the applicant was psychotic on 24 September 2007 when he had mentioned his hope of being elected Mayor of Budapest.
19. Dr M. related that, in addition to the applicant’s mother, his grandmother and her partner, living next door to the applicant, were also concerned about his odd conduct. She stated that she had the suspicion that the applicant suffered from paranoid schizophrenia. She also mentioned that the applicant had on several occasions visited a psychologist, Dr L., who had observed stress and paranoid symptoms which, however, did not amount to a pathological or psychotic mental state, although the applicant had been capable of disguising his symptoms.
20. Dr M. specified that she had instituted proceedings for the applicant’s mandatory treatment after he had refused to be counselled by her.
21. The District Court then heard the applicant. It noted that his replies were disoriented and erratic. He was asked questions about his lifestyle and hobbies, his relationship with his grandmother, his willingness to take up a job as well as any illnesses he had. He said he was considering the necessity of a job and of seeking advice from social workers or medical help from health professionals, excluding Dr M.
22. During the hearing the court ordered a forensic psychiatrist, Dr H., to prepare a medical opinion about the applicant’s condition. This psychiatric evaluation was done during the break in the court hearing, in approximately forty minutes. Neither the guardian ad litem nor the applicant had the opportunity to learn about the expert opinion prior to the resumed hearing. Dr H. did not produce any written opinion at this stage; she presented her testimony to the court verbally following the break. Its written version was faxed to the court on 13 December 2007.
23. Dr H. considered that the applicant suffered from delusional schizophrenia, characterised by grandiose delusions, bizarre elements of lifestyle and partial insight into his condition. She specified that she considered the applicant’s treatment necessary since otherwise his health would decline, whereas therapy might improve his condition. She was of the view that the applicant could not take care of himself, by which he represented a significant danger to himself. She was not convinced that the applicant would voluntarily seek outpatient care but suggested that a decision on compulsory treatment be postponed for six months, in order to observe the applicant’s conduct. The judge pointed out that no such option was allowed under the relevant law.
24. On 18 December 2007 the District Court held another hearing, at the beginning of which Dr H.’s report was handed over to the applicant and his guardian ad litem. Dr M. was summoned but failed to appear. The guardian argued in essence that the applicant’s behaviour was not dangerous and that he posed no significant threat either to himself or others. He noted that neither Dr M.’s nor Dr H.’s testimony contained elements pointing to the applicant’s representing any danger.
25. On the same day the District Court ordered the applicant’s mandatory institutional treatment. Relying on the medical opinions, it accepted that he suffered from schizophrenia with grandiose delusions and was satisfied that he posed a danger to his own health by failing voluntarily to subject himself to psychiatric treatment and by not looking after himself. The court affirmed that “appropriate medical treatment would improve [the applicant’s] condition” and that, if untreated, his health would decline. It observed the applicant’s statement about his willingness to seek medical help voluntarily but was not convinced that he would actually do so.
The court’s decision was based on sections 188(b) and 200(1) of the Act no. CLIV of 1997 on Health Care (“the Health Act”) and on the Supreme Court’s leading case (EBH2004.1130) (see below paragraphs 32-33).
26. On 27 December 2007 Dr H. submitted to the court her opinion in hard copy. On the same day the applicant contacted the MDAC seeking advice on possible remedies against the court order. He was advised to appeal against the decision. During the second-instance proceedings, the applicant continued to be represented by the guardian ad litem appointed for him by the District Court, whereas MDAC provided him with additional legal advice.
27. On 14 January 2008 the guardian ad litem appealed to the Pest County Regional Court. He argued that the conditions for mandatory treatment as required by the Health Act were not fulfilled, since the evidence provided by the two psychiatrists involved did not prove the applicant’s significant dangerous character but consisted of no more than vague predictions of an eventual deterioration in the applicant’s condition. The decision was not in conformity with the Health Act, since the District Court had established the applicant’s dangerous character relying on his lifestyle rather than a mental illness and its symptoms; in fact, the forensic expert had merely suspected the presence of a mental disorder and her opinion did not contain a proper diagnosis or substantiate that the degree of the applicant’s mental illness warranted mandatory treatment.
28. On 12 February 2008 the Regional Court dismissed the applicant’s appeal and upheld the first-instance decision, endorsing in essence its reasoning. This decision was served on the applicant on 4 March 2008; the time-limit to file a petition for review by the Supreme Court accordingly expired on 3 May 2008.
29. On 27 March 2008 the applicant’s treatment commenced at Vác Hospital. On admission, he was held in the closed ward of the psychiatric department. Two weeks later he was transferred to the regular ward of the department.
30. On 25 April 2008 the geographically competent Vác District Court conducted a review of the applicant’s hospitalisation. Relying on the opinion of forensic expert Dr T. – according to whom the applicant, whose condition had improved, suffered from schizophrenia hallmarked by residual symptoms of a psychotic state, but represented no direct danger and was willing to accept voluntary treatment – it held that the conditions for mandatory treatment were no longer met in the applicant’s case and ordered his release.
31. On 6 May 2008 the MDAC attempted to obtain a copy of the petition for review from the court for their records and found out that it had never been lodged by the applicant’s guardian ad litem, despite his exclusive entitlement and his promise to do so.
32. The relevant provisions of the Health Act read as follows:
“... b) Dangerous conduct is constituted by a condition in which a patient, due to his disturbed state of mind, may represent significant danger to his or others’ life and limb or health, but, given the nature of the illness, ‘urgent hospitalisation’ [within the meaning of section 199] is not warranted.”
“(1) The treatment may be considered voluntary if, prior to admission to the psychiatric institution, the [mentally] competent patient has consented to it in writing.
(2) A partly or fully incompetent patient may be subjected to treatment in a psychiatric institution at the request of the person referred to in sections 16(1) and 16(2).”
“(1) In cases under sections 197(1) and 197(2), the court shall regularly review the necessity of hospitalisation. Such review shall take place every 30 days in psychiatric hospitals and every 60 days in psychiatric rehabilitation institutions.”
“(1) The doctor in charge shall directly make arrangements to commit a patient to an appropriate psychiatric institution, if the patient’s conduct is imminently dangerous because of his psychiatric or addictive disease and can only be controlled by urgent treatment in a psychiatric institution. ...
(2) The head of the psychiatric institution shall, within 24 hours of the patient’s admission, notify the court thereof and shall thereby initiate steps to establish the necessity of the patient’s admission and the order of compulsory psychiatric treatment. ...
(5) The court shall order the compulsory treatment of a patient subjected to urgent hospitalisation if the patient’s conduct is dangerous and his treatment in an institution necessary.
(6) Before deciding, the court shall hear the patient and obtain the opinion of an independent expert psychiatrist. ...
(8) The court shall review the necessity of the treatment every 30 days.
(9) The patient must be released from the psychiatric institution if his treatment in an institution is no longer necessary.”
“(1) The court shall order the compulsory institutional treatment of a patient whose conduct is dangerous because of his psychiatric or addictive disease but whose urgent treatment is not warranted. ...
(2) Proceedings for ordering compulsory institutional treatment shall be initiated by the specialist of the psychiatric health care institution which established the necessity of this treatment ... by notifying the court; s/he shall make a proposal as to the psychiatric institution which should administer the treatment.
(3) The court shall decide whether to order compulsory institutional treatment within 15 days following receipt of the notification.
(4) Before giving its decision, the court shall hear the patient and an independent ... forensic expert psychiatrist ... as well as the psychiatrist who has initiated the proceedings. ...
(7) The court shall review the necessity of compulsory institutional treatment at the intervals specified in section 198. ...
(8) A patient subjected to compulsory institutional treatment must be released once his treatment is no longer warranted. ...”
33. Supreme Court leading case no. EBH2004.1130 contains the following passages:
“The court ... ordered [Mrs X’s] mandatory inpatient psychiatric treatment and committed her to the Psychiatric Ward of Sz. J. Hospital. The court was of the opinion that [Mrs X] was suffering from a psychiatric disease imperatively requiring inpatient treatment, this being the only way to improve her health status. The patient refuses medical help or medicines, thereby endangering her own health. Against the final order a petition for review was filed by [Mrs X]. ... She [argued that she had] refused medical help only because her trust in doctors had been shattered. Her letters written, sometimes in injurious tone, to various authorities could be evaluated as the outrages of a person having grown tired of seeking the truth but could not represent imminent endangering behaviour or a ground for committing her to imminent inpatient psychiatric treatment. There had been no elements whatsoever indicating that the life or health of others had been in imminent danger. She endangered solely her own health; and the authorities’ measure restricting personal liberty could not override her right to self-determination enjoyed as a person of full capacity .... On this question of law, an issue of principle, the Supreme Court has to date not taken a published decision of principle and in the interest of developing the jurisprudence it is necessary to carry out a review of the final order. ...
The Health Act contains sui generis regulation in respect of psychiatric patients. Because of the nature of the disease, the law contains a system of special and interlinked provisions. These provisions allow, among other measures, for deprivation of personal liberty subject to sufficient statutory guarantees. Under the Health Act, psychiatric patients may be subjected to inpatient treatment in three cases: if they consent thereto, if they are in a state endangering other persons and therefore in need of emergency inpatient treatment, and if mandatory inpatient treatment is ordered in a court decision ...
Under the Health Act, emergency treatment (section 199) is linked to imminent endangering behaviour whereas mandatory inpatient treatment (section 200) is linked to endangering behaviour. Circumstances giving rise to imminent endangering behaviour or endangering behaviour are differentiated on the basis of acute disturbance or disturbance of the patient’s psychic status, respectively. If, in consequence of an acute disturbance of the patient’s psychic status, the patient imminently and seriously endangers his or others’ life or limb (imminent endangering behaviour) or, in consequence of a disturbance of the patient’s psychic status, the patient may significantly endanger his or others’ life or limb, but the nature of the disease does not justify emergency treatment, the court may order mandatory inpatient treatment (Health Act, section 188 (b) (c)). The Health Act ... contains sufficient legal safeguards in respect of all the three options of admission into institutional care (including voluntary admission) and requires court proceedings and a judicial decision as to whether the treatment is justified ...; mandatory institutional treatment may be ordered [only] by a court (Health Act, section 200(1)) ...
Thus, as to the applicability of sections 199 and 200, a distinction is to be made not on the basis of the degree, let alone the severity of the disease, but on the basis of the urgent nature of the treatment required ...
The patient’s right to self-determination and her personal liberty was not violated, given that a treatment appropriate for her health status – to be carried out in an institution – had to be ordered, since the treatment previously voluntarily received by the patient could not be continued because of the patient ...
According to the expert opinion and the opinion of the Institute’s medical practitioner, the endangering behaviour required for such a decision indeed existed in the patient’s case, since due to her lack of capacity to understand and appreciate her illness, she failed to appear for treatment for some half a year. The deterioration of her health status as a result of the absence of treatment was ... medically foreseeable ...
This constitutes health-endangering behaviour on the part of the patient, and the right to self-determination of a person otherwise enjoying full capacity cannot be violated when the proceedings are being conducted before a court and a judicial decision is taken on the basis of provisions containing legal guarantees ... (Supreme Court no. Pfv.III.20.304/2004.)”
34. The Government submitted the following elements concerning the law on the subject matter of the application in various European jurisdictions.
According to the findings of the Final Report of a Research Project financed by the European Commission in 2002 on the “Compulsory Admission and Involuntary Treatment of Mentally Ill Patients – Legislation and Practice in EU Member States”, the legal criteria qualifying a person for involuntary placement in a psychiatric facility differ widely across the Member States of the European Union. The research focused on 15 EU Member States but its findings can be generalised as regards all 47 Member States of the Council of Europe, only the number of States belonging to different models varies.
When determining the criteria for compulsory admission, a basic conflict between a medical model and a civil liberties approach can be identified. These two approaches can also be characterised as the “parens patriae” approach or the “police powers” approach, respectively. The medical model emphasises the need for treatment as a sufficient prerequisite for the involuntary confinement of a mentally ill patient. Supporters of the medical model consider compulsory admission to be essential and inevitable to secure treatment for patients whose mental illness interferes with their capacity to accept treatment on a voluntary basis. Similarly, the “parens patriae” approach is the public-policy power of the State to act as the parent of an individual who is in need of protection but cannot protect himself. On the basis of this power, State authorities may make decisions regarding mental health treatment on behalf of one who is mentally incompetent to make the decision himself. A strict human-rights approach accepts forced hospital admission only when a mentally ill person threatens to do harm to others or himself. This is the only criterion (“dangerousness criterion”) justifying or permitting someone to be admitted involuntarily. This is similar to the police-power approach which authorises and requires the State only to interfere in order to protect the public order and the rights and safety of others.
The first and common condition for compulsory admission is the existence of a “mental disorder”. This term is generally not defined by legislation and is given a wide definition in practice. Among the States covered by the comparative analysis, only Denmark restricts this condition to “psychosis”. The same restricted meaning is given to this term in practice in Finland. Schizophrenia is generally included in the notion of psychosis. Therefore it can be concluded that schizophrenia is regarded in the Member States of the Council of Europe as a mental disorder of a kind or degree warranting compulsory confinement.
As to the further conditions of compulsory admission, danger to oneself or to others is not an essential prerequisite everywhere. It is completely absent as a criterion in Italy and Spain. A serious threat of harm to the person himself and/or to others is an essential prerequisite for compulsory admission in Austria, Belgium, Germany, Luxembourg, Sweden and the Netherlands. Many States, including Denmark, Finland, France, Greece, Ireland, Portugal, the United Kingdom and Latvia apply both the dangerousness criterion and the need-for-treatment criterion, as alternatives, to admit mentally ill patients involuntarily. The dangerousness criterion is not applied in a uniform manner in the Member States of the European Union. Some States qualify the level of danger required for admitting a person involuntarily, others do not. The defined thresholds, however, are rather vague, requiring that the danger to health or safety of the person concerned or to the public be “serious”, “immediate”, “significant” or “substantial”. Some countries include only public threats, while others add the element of possible harm to the patient himself. In some jurisdictions, the risk of deterioration of the patient’s health is expressly mentioned in the law (Denmark, Finland, Portugal, Latvia and the United Kingdom (in respect of certain psychiatric conditions)), but it is not clear whether and to what extent the risk of deterioration is included by judicial interpretation in the danger to one’s own health in other States. Among those countries that stipulate the need for treatment as a criterion, Finland, France, Ireland, Portugal and Spain additionally emphasise the lack of insight by the patient.
Guardianship rules may also affect the conditions of involuntary admission and treatment of patients with mental disorders. In Germany, there are 16 different admission laws (Unterbringungsgesetz) in force in the public laws of the Länder and one guardianship law (Betreuungsgesetz) in force in the federal civil law, regulating the detention of mentally ill persons under certain circumstances. The public-law aspect is fundamentally determined by a decision of the Federal Constitutional Court, confirming an overall “right to be ill” and largely exempting the society from responsibility for improving the condition of citizens by infringing upon their personal freedom. The function of public law is to avert danger to public order and security relating to mentally ill persons, whereas that of guardianship law is to secure appropriate personal, medical and economic care for those in need due to disability or illness. Such persons are taken care of by a court-appointed guardian who can decide on the necessity of psychiatric treatment, including hospitalisation.
Similarly, in Luxembourg, the Mental Health Act authorises compulsory admission only if the person suffering from severe mental disorder is dangerous to himself or to other persons, whereas the Act on the incapacity of adults (guardianship) is regarded as serving the protection of mentally ill persons.
The same dichotomy is reflected in the law of France where different conditions are applicable depending on the initiator of compulsory admission: if it is initiated by a “third party” (a relative or other private party), the person suffering from mental disorder rendering his consent impossible must be in a state that requires immediate care and constant supervision in a hospital, whereas if it is initiated by the police, it must be shown that the person whose mental disorder jeopardises law and order or public safety may cause danger to others.
In Ireland, if a police officer has reasonable grounds for believing that a person suffers from a mental disorder and that there is a serious likelihood of that person causing immediate and serious harm to himself or to others, the police may take the person into custody. If confinement is initiated by other persons, it is sufficient that a registered medical practitioner be satisfied that the person is suffering from a mental disorder.
In Denmark, compulsory admission is justified if the psychotic patient is either dangerous to self/others or if the prospect for recovery will diminish substantially if detention in a psychiatric ward will not take place. The involuntary admission of a patient to a Danish psychiatric ward will always be for a therapeutic reason; the placement of incurably mentally disordered people without medical aims is illegal. The Act on guardianship is applied to placement in nursing homes of incurably mentally disordered people.
In Finland, involuntary treatment is allowed both due to “need for treatment” and “dangerousness”. For the purposes of “need for treatment”, the possible deterioration of the mental illness is expressly referred to. The process of ordering compulsory confinement is organised as a primarily medical decision-making one, similarly to Ireland and Luxembourg.
In Greece, in addition to preventing acts of violence against himself or others, a person suffering from a severe psychiatric disorder can be admitted and treated involuntarily when this disorder makes the patient unable to look after his own well being, and (or) treatment is expected to improve his condition and reverse the deterioration of his mental health.
In Portugal, compulsory admission can be ordered by a court either if the person concerned represents real danger to himself/others as the result of a mental anomaly and he refuses treatment or if the absence of adequate treatment would entail a risk of further deterioration, of which the person himself is unaware.
In the United Kingdom (England and Wales), the criteria for detention (admission for assessment or treatment) specify that it must be necessary either in the interests of the patient’s health, or his safety, or for the protection of other persons. In the case of treatment orders of those with psychopathic disorder or mental impairment, there is a further condition, namely that treatment must be “likely to alleviate or prevent a deterioration” of the condition in question. Compulsory admission for treatment is justified only if appropriate treatment is available for the person concerned.
In Latvia, psychiatric assistance without the consent of a patient is provided for not only if the patient behaves violently or threatens to cause personal injuries to himself or to another person but also if the patient with a mental health disorder has disclosed an inability to care for himself (or for a person under his guardianship) and his health might unavoidably and seriously deteriorate.
Romanian law also allows for compulsory hospitalisation of a mental patient on account of the risk of a serious deterioration of his health.
In sum, the majority of the Member States of the European Union perceive the risk of deterioration of the patient’s health as justifying his compulsory hospitalisation if he refuses to receive treatment voluntarily. In those States where compulsory hospitalisation is more restricted, guardianship laws are applied to provide treatment to persons suffering from a mental disorder without their consent.
As regards the condition that the person detained under Article 5 § 1 (e) must be reliably shown to be of unsound mind, the expertise required to assess the medical criteria for admitting a person involuntarily are heterogeneous across the Member States of the European Union. The laws of several States permit doctors other than trained psychiatrists to be involved in the initial medical assessment of the persons concerned not only in emergency cases but also during routine involuntary placement procedures (and thorough assessments are performed by psychiatrists only when a patient is admitted to a psychiatric facility), whereas the expert testimony of a psychiatrist is mandatory in the remaining countries (Austria, Greece, Ireland, the Netherlands, Portugal, Spain, the United Kingdom and some of the 16 German Länder). Most Member States (Austria, France, Finland, Greece, Ireland, Italy, Luxembourg, Portugal, Spain, Sweden and the United Kingdom) require the opinion or certificate of more than one expert (but not necessarily all of them being a psychiatrist and not necessarily prior to ordering compulsory admission); the opinion of one expert is sufficient in Belgium, Denmark and the Netherlands. In Denmark, Finland, Ireland, Luxembourg and Sweden, the decision is left to psychiatrists or other health care professionals, whereas in 10 other States the decision is made either by judges, prosecutors, mayors or other agencies independent from the medical system (e.g. social workers in the United Kingdom).
Several States require that less restrictive treatment options be considered before ordering compulsory hospitalisation. In Belgium, compulsory admission is applicable only when there is no other adequate treatment option. In practice, this is equivalent to the patient’s refusing voluntary treatment. In the United Kingdom (England and Wales) the criteria for detention specify that the patient must be suffering from a mental disorder “of a nature or degree” which makes it “appropriate” for the patient to receive assessment or treatment in hospital. In effect, this means that treatment in the community must be impractical or impossible, the latter being most commonly because the patient cannot be relied upon to be compliant with assessment or treatment on a voluntary basis. Compulsory outpatient treatment as a possible less restrictive alternative to compulsory hospitalisation is mentioned in the laws of only four Member States (Belgium, Luxembourg, Portugal and Sweden).
35. The applicant submitted that from the academic literature it was evident that Western European countries recognised dangerousness and incapacity to consent to treatment as two separate issues in their mental health systems. Most provided for involuntary treatment separately on both grounds (e.g. the United Kingdom), some only on the basis of incapacity (e.g. the Netherlands), but they did not conflate the two issues.
36. In a decision of 23 March 2011 – 2 BvR 882/09 – the German Federal Constitutional Court accepted a constitutional complaint lodged by a convicted felon committed to a psychiatric hospital as a measure of correction and prevention, holding that the relevant legislation in Rhineland-Palatinate was unconstitutional. The Federal Constitutional Court summarised the case as follows:
“Medical treatment performed against the natural will of a person who, as a measure of correction and prevention, has been committed to an institution (compulsory treatment) is an especially serious encroachment on the person’s fundamental right to physical integrity under Article 2.2 sentence 1 of the Basic Law (Grundgesetz – GG). The legislature is not as a matter of principle prevented from permitting such encroachments. This also applies to a treatment which serves to achieve the objective of the measure, i.e. is to enable the person committed to an institution to be released. The legal interest of the person’s own freedom, which is protected as a fundamental right (Article 2.2 GG), may be suitable to justify such an encroachment if due to his or her illness, the person lacks insight into the gravity of his or her illness and the necessity of treatment measures, or is unable to act according to such insight. To the extent that under this condition, an authorisation to perform compulsive treatment is to be recognised by way of exception, this does not establish a “reason-based sovereignty” of state bodies over the holder of fundamental rights in such a way that the will of the latter may be disregarded merely because it deviates from average preferences or appears to be unreasonable from an outside perspective. Compulsory treatment measures may only be used if they are promising with regard to the objective of the treatment that justifies their use and if they do not involve burdens to the person affected which are out of proportion to the benefit that can be expected.” [press release]
The Federal Constitutional Court held in particular as follows:
“Zwangsmaßnahmen dürfen ferner nur als letztes Mittel eingesetzt werden, wenn mildere Mittel keinen Erfolg versprechen ... Für eine medikamentöse Zwangsbehandlung ... bedeutet dies erstens, dass eine weniger eingreifende Behandlung aussichtslos sein muss. Zweitens muss der Zwangsbehandlung, soweit der Betroffene gesprächsfähig ist, der ernsthafte, mit dem nötigen Zeitaufwand und ohne Ausübung unzulässigen Drucks ... unternommene Versuch vorausgegangen sein, seine auf Vertrauen gegründete Zustimmung zu erreichen.”
[Unofficial translation by the European Court’s Registry:]
(“Furthermore, coercive measures may only be used as a last resort, when a less restrictive one offers no prospect of success ... In the case of ... compulsory medical treatment, this means that, firstly, a less incisive treatment must appear hopeless. Secondly, if the person concerned is able to communicate, the compulsory treatment must have been preceded by a serious attempt, with the necessary time devoted to it and without exerting impermissible pressure, ... to obtain the trust-based consent of the person.” [translation])
The case summary continues as follows:
“Additionally, a person committed to a closed institution depends to a particularly large extent on procedural safeguards in order to preserve his or her fundamental rights. At any rate in case of planned treatment measures, a sufficiently specific announcement is necessary which provides the person affected with the possibility of seeking legal protection in good time. To preserve proportionality, it is essential for compulsive medication to be ordered and supervised by a physician. To ensure proportionality and the effectiveness of legal protection, it is necessary to extensively document treatment measures taken against the will of the person affected. With a view to the special situation-related threats to fundamental rights to which the person who is committed to an institution is exposed, it must furthermore be ensured that compulsory treatment performed in order to achieve the objective of the measure of correction and prevention be preceded by a review taking place under conditions which secure its independence of the institution to which the person is committed. It is for the legislature to elaborate the way in which this will be done.
The essential substantive and procedural prerequisites of the encroachment require legal regulation.” [press release]
37. Article 12 of the United Nations Convention on the Rights of Persons with Disabilities reads as follows:
“1. States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.
2. States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.
3. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.
4. States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests.
5. Subject to the provisions of this article, States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property.”
38. The United Nations Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care (adopted by General Assembly, resolution 46/119 of 17 December 1991) contain the following passage:
“1. A person may (a) be admitted involuntarily to a mental health facility as a patient; or (b) having already been admitted voluntarily as a patient, be retained as an involuntary patient in the mental health facility if, and only if, a qualified mental health practitioner authorized by law for that purpose determines, in accordance with Principle 4, that person has a mental illness and considers:
(a) That, because of that mental illness, there is a serious likelihood of immediate or imminent harm to that person or to other persons; or
(b) That, in the case of a person whose mental illness is severe and whose judgement is impaired, failure to admit or retain that person is likely to lead to a serious deterioration in his or her condition or will prevent the giving of appropriate treatment that can only be given by admission to a mental health facility in accordance with the principle of the least restrictive alternative.
In the case referred to in subparagraph (b), a second such mental health practitioner, independent of the first, should be consulted where possible. If such consultation takes place, the involuntary admission or retention may not take place unless the second mental health practitioner concurs.
2. Involuntary admission or retention shall initially be for a short period as specified by domestic law for observation and preliminary treatment pending review of the admission or retention by the review body. The grounds of the admission shall be communicated to the patient without delay and the fact of the admission and the grounds for it shall also be communicated promptly and in detail to the review body, to the patient’s personal representative, if any, and, unless the patient objects, to the patient’s family.
3. A mental health facility may receive involuntarily admitted patients only if the facility has been designated to do so by a competent authority prescribed by domestic law.”
39. The World Health Organization’s (WHO) International Statistical Classification of Diseases and Related Health Problems (10th Revision) (ICD-10) defines paranoid schizophrenia as follows:
“Paranoid schizophrenia is dominated by relatively stable, often paranoid delusions, usually accompanied by hallucinations, particularly of the auditory variety, and perceptual disturbances. Disturbances of affect, volition and speech, and catatonic symptoms, are either absent or relatively inconspicuous.”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
VIOLATED_BULLETPOINTS: 5-1-e


ITEMID: 001-61076
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: GRANDCHAMBER
DATE: 2003
DOCNAME: CASE OF TAHSIN ACAR v. TURKEY
IMPORTANCE: 1
CONCLUSION: Government’s request to strike the application out of the list rejected
JUDGES: Luzius Wildhaber;Nicolas Bratza;Paul Mahoney
TEXT: 14. The applicant was born in 1970 and lives in Sollentuna (Sweden). A summary of the facts as submitted by the parties in the proceedings before the Chamber is set out below.
15. The applicant’s brother Mehmet Salim Acar was a farmer living in Ambar, a village in the Bismil district in south-east Turkey. On 20 August 1994, while Mehmet Salim was working in a cotton field near Ambar, a white or grey Renault car without any registration plates stopped. Two armed men in plain clothes – claiming to be police officers – got out of the car and asked Mehmet Salim to accompany them in order to help them find a field. When Mehmet Salim refused to get into the car, the two men threatened him with their weapons. They then took his identity card, tied his hands, blindfolded him, punched him in the head and stomach, forced him into their car and drove off.
16. The scene was witnessed by Mehmet Salim’s son İhsan Acar, and İlhan Ezer, another farmer. After the car had driven off, İhsan ran to his home and told his mother Halise Acar what had happened, and she in turn informed the village headman. Abide Acar, Mehmet Salim’s daughter, had seen her father in the back seat of a “grey-coloured” car passing through the village while she and a neighbour were washing clothes in a stream. Another villager had allegedly seen Mehmet Salim being taken to the riverbank, where five other people had been waiting in another car. Mehmet Salim’s hands and feet had been tied, he had been blindfolded and his mouth had been taped. The two cars had reportedly driven off in the direction of Bismil. Nothing has been heard from Mehmet Salim since.
17. Mehmet Salim’s family filed a series of petitions and complaints about his disappearance with the authorities, including the Deputy Governor and the Bismil gendarmerie, in order to find out where and why he was being detained.
18. On or about 27 August 1994 Mehmet Salim’s sister Meliha Dal personally handed a written petition about her brother’s disappearance to the Deputy Governor of Diyarbakır. After reading the petition and speaking to Ahmet Korkmaz, a non-commissioned officer of the gendarmerie, the Deputy Governor told her that Mehmet Salim was in the hands of the State and that there was nothing she could do for the time being.
19. When leaving the Deputy Governor’s office, Meliha Dal was approached by a police officer, Mehmet Sen, who volunteered to make enquiries about her brother with a friend in the “torture place” of the Bismil gendarmerie station. This police officer rang Meliha Dal three days later and told her that he had seen Mehmet Salim at the Bismil gendarmerie command and that he could bring him some clothes and cigarettes. After Meliha Dal had fetched some clothes, the police officer told her that he would take these to her brother in one or two days’ time. On 31 August 1994 the police officer called Meliha Dal again and told her that her brother had been taken away from the Bismil gendarmerie command and that he did not know where to.
20. On 29 August 1994 Hüsna Acar, Mehmet Salim’s mother, filed a petition with the Bismil public prosecutor requesting an investigation of her son’s disappearance.
21. By a letter of 2 September 1994 the public prosecutor requested information from the Bismil gendarmerie commander about the case. On the same day the public prosecutor took statements from Hüsna, Halise and İhsan Acar, and the farmer İlhan Ezer.
22. On 19 October 1994 Hüsna Acar asked the Bismil Chief Public Prosecutor for information about the progress of the investigation, but she received no reply.
23. In his letters of 29 November 1994 and 19 January 1995, the applicant asked the public prosecutor at the Diyarbakır National Security Court to investigate the whereabouts of his brother Mehmet Salim. These letters remained unanswered.
24. By letters of 15 March and 17 May 1995 the Bismil public prosecutor asked the Bismil gendarmerie commander for information about the case.
25. On 20 July 1995 the applicant requested the Bismil Chief Public Prosecutor for information about the case of Mehmet Salim Acar and accused the gendarmes İzzetin and Ahmet and the village guard Harun Aca of being responsible for his brother’s abduction.
26. On 26 and 27 July 1995 the applicant sent letters to the Minister for Human Rights and the Minister of Justice, seeking information about his brother’s whereabouts and condition. On 24 August 1995 the Minister for Human Rights informed the applicant that his petition had been transmitted to the office of the Diyarbakır Governor. In his reply of 30 August 1995 the applicant requested the Minister for Human Rights to ensure his brother’s safety and to take urgent action.
27. On 21 August 1995 the Bismil public prosecutor informed the Minister of Justice that Mehmet Salim Acar had been abducted by two armed men whose identities had not yet been established.
28. On 8 September 1995 gendarmes took further statements from Hüsna, Halise and İhsan Acar.
29. On 27 September 1995 the applicant was contacted by an unknown person who asked for 1,100,000,000 Turkish liras in return for his brother’s release. The applicant was told that his brother would be interrogated at the Bismil gendarmerie command and that he would be able to meet him within a week. On 5 October 1995 Mehmet Salim’s family were contacted by a person called Murat, who informed them that Mehmet Salim had been detained in Bolu and subsequently at a military base. He was alive and was working as an agent for the authorities. In order to have him released, the family would have to comply with the conditions of the Diyarbakır Regiment Commander, namely to keep secret the names of those who had abducted him, as well as the place where and the persons by whom he had been detained. The family refused to accept these demands.
30. On 25 October 1995 Meliha Dal gave a statement to the Bismil gendarmerie command to the effect that, in her opinion, the gendarmes İzzet Cural and Ahmet Korkmaz and the village guard Harun Aca were responsible for her brother’s abduction.
31. On 30 October 1995 the home of Meliha Dal was raided by officers of the Diyarbakır Anti-Terrorism Branch, who threatened her with death and attempted to abduct her 12-year-old son.
32. The applicant was informed in November 1995 by the Diyarbakır general gendarmerie command that his brother had not been apprehended by the gendarmerie but had been abducted by two unidentified civilians who claimed to be policemen.
33. The applicant also filed a petition about his brother’s disappearance with the Human Rights Commission of the Turkish Grand National Assembly. On 1 December 1995, in reply to a request for information, the office of the Diyarbakır Governor informed the Human Rights Commission that the case had been investigated, that the two gendarmes whose names had been given by the applicant and his sister had not apprehended Mehmet Salim, that he had been abducted by two unidentified individuals and that the investigation of the case by the Bismil public prosecutor was ongoing. This information was transmitted by the Human Rights Commission to the applicant on 18 December 1995.
34. On 10 June 1996 Hüsna Acar asked the Bismil public prosecutor for information about the investigation.
35. On 17 June 1996 the Bismil public prosecutor issued a decision of non-jurisdiction (görevsizlik kararı) and transmitted the investigation opened in respect of the gendarmes İzzet Cural and Ahmet Babayiğit and the village guard Harun Aca to the Diyarbakır Provincial Administrative Council (İl İdare Kurulu) for further proceedings under the Law on the Prosecution of Civil Servants (Memurin Muhakematı Kanunu).
36. On 25 November 1996 Meliha Dal requested the Diyarbakır Governor to open an investigation into Mehmet Salim’s disappearance. On 10 December 1996 the applicant wrote a letter to the President of Turkey and filed a further petition with the Diyarbakır Provincial Administrative Council. On 11 December 1996 Hüsna Acar wrote a letter to the President of Turkey and to the Minister of the Interior, asking them to investigate the disappearance of her son Mehmet Salim. Both petitions were transmitted to the office of the Batman Governor.
37. On 17 January 1997 the Diyarbakır Governor informed Meliha Dal in response to her petition of 25 November 1996 that an investigation into the matter had been carried out by the Bismil Chief Public Prosecutor and that those responsible for the abduction of her brother had remained unidentified.
38. In a decision of 23 January 1997 the Diyarbakır Provincial Administrative Council decided, on the ground that there was insufficient evidence, not to take any proceedings against the two gendarmes and the village guard.
39. On 2 February 2000 at 11.00 p.m., Meliha Dal and Hüsna and Halise Acar watched a news broadcast on the NTV television channel. The newsreader announced that four persons had been apprehended in Diyarbakır, one of whom was named Mehmet Salim Acar. Pictures of the apprehended men were shown and all three of them recognised Mehmet Salim Acar. The three women continued to watch the television news all night and saw him again on the following day during the 8 a.m. television news broadcast.
40. On 4 February 2000 Meliha Dal and Hüsna and Halise Acar informed the Bismil public prosecutor in person of what they had seen. The public prosecutor telephoned the office of the Diyarbakır public prosecutor and told the women afterwards that three persons by the name of Mehmet Salim Acar had been apprehended, but that, apart from the name, the particulars of the three men did not match those of their relative.
41. Two days later the Bismil public prosecutor informed Meliha Dal that her brother had in fact been apprehended, that he was being held in prison in Muş, and that he would be released after having given a statement.
42. On 16 February 2000 Meliha Dal told the Diyarbakır public prosecutor of her sighting of her brother on television and asked the public prosecutor for information about his fate. The public prosecutor referred her to the Şehitlik police station, from where she was referred to the police headquarters for verification of the police computer records. There she was told that she would be informed about her brother and was asked to leave. She has subsequently received no further information from the police headquarters.
43. On 18 February 2000 Meliha Dal made a similar request to the office of the Diyarbakır Governor, and was again referred to the Şehitlik police station, which directed her to the Anti-Terrorism Branch, where a police officer took a statement from her and recorded her particulars. After about an hour, Meliha Dal was told that her brother had not agreed to see his family. When she refused to accept this answer and insisted on seeing him, she was asked to leave. She was informed three days later that her brother was not in fact at the Anti-Terrorism Branch. She was subsequently told to go to the prison in Muş. When she and İhsan Acar went to the prison, they were shown a person who was not Mehmet Salim Acar.
44. On 23 March 2000 three officers of the Anti-Terrorism Branch came to the home of Halise Acar and asked her for a copy of her family’s entry in the population register. She was told that they were looking for Mehmet Salim Acar everywhere in Turkey and that he had not been found to be dead.
45. According to a decision of non-jurisdiction issued on 2 May 2000 by the Muş Chief Public Prosecutor, the person placed in pre-trial detention in Muş was a Mehmet Salih Acar whose year of birth and whose parents did not match the particulars of the applicant’s brother.
46. On 11 May 2000 Meliha Dal filed a petition with the Diyarbakır public prosecutor seeking an investigation into the sighting of her brother Mehmet Salim Acar during the television news broadcast.
47. On 30 May 2000 the Diyarbakır Chief Public Prosecutor issued a decision not to open an investigation (tapiksizlik kararı) on the basis of the petition of 11 May 2000. That decision reads as follows:
“The complainant stated in her petition that her brother had disappeared six years ago and that nothing had been heard from him since, that she recognised one of the persons shown on a news programme in February about persons apprehended during operations conducted against the terror organisation Hizbullah, that this person’s name was the same as her brother’s name, and that she wished to be given the opportunity to watch a video recording [of the news broadcast] so that she could identify her brother.
it has been stated in the Muş Chief Public Prosecutor’s decision of non-jurisdiction dated 2 May 2000 that the person detained in the province of Muş – a Mehmet Salih Acar, born in 1964 and the son of Yahya and Ayşe – is not the complainant’s brother, and it appears from the above decision of non-jurisdiction and from the birth records that the person detained in Muş, who was put on trial by the Chief Public Prosecutor of the Van State National Court, is not the complainant’s brother.
It is therefore concluded, in accordance with Article 164 of the Code of Criminal Procedure and subject to the right of appeal, that there is no basis for pursuing the matter ...”
48. Later in 2000 Meliha Dal spoke with a prison officer in Muş Prison. The officer confirmed that he had seen Mehmet Salim Acar when he and five or six others had been apprehended and taken to Muş Prison. According to Meliha Dal, the officer’s description of Mehmet Salim corresponded to her brother’s appearance.
49. On 29 August 1994 the applicant’s mother filed a petition with the Bismil public prosecutor’s office requesting an investigation into the whereabouts of her son Mehmet Salim Acar, who had been kidnapped by two men.
50. The public prosecutor opened an investigation, in the course of which statements were taken from Hüsna and Halise Acar and from the two eyewitnesses of the events, İhsan Acar and İlhan Ezer.
51. İhsan Acar’s statement of 2 September 1994 to the public prosecutor, which was read out to him before he signed it, reads:
“On the day of the incident, my father and I were working in the field. When we went to sit under a tree to have lunch, İlhan Ezer, who was working in the field, joined us. There was a twenty-metre distance between my father and me. At this point, a grey-coloured taxi with no number plates came and stopped near my father. The persons in the car spoke with my father. I saw them take the identity cards of my father and of the person called İlhan and then return İlhan’s identity card, and I saw my father get into the taxi. This taxi immediately headed towards the village of Ambar. Later, I went home and informed my mother. As I was far away, I was unable to recognise these people, but I heard that they were speaking Turkish. These people were wearing hats and glasses. That is all I know and what I have witnessed.”
52. İlhan Ezer’s statement of 2 September 1994 to the public prosecutor, which was read out to him before he signed it, reads:
“On the day of the incident, while Mehmet Salih Acar and I were having lunch in the field below the village of Ambar, a Renault TX model grey taxi without number plates approached us. The persons in the car asked us to hand over our identity cards. When we refused, they forced us by saying that they were the police and that we were therefore obliged to hand over our identity cards. The persons who asked for our cards had a western accent. Both of them were about 25 or 26 years old. One of them was wearing glasses. They did not give back Mehmet Salih’s identity card. They said that ‘Mehmet Salih will show us someone’s field and then we will send him back’. That is all I know and what I have witnessed in relation to the incident.”
53. On 19 October 1994 Hüsna Acar filed another petition with the Bismil public prosecutor.
54. On 15 March 1995 the Bismil public prosecutor requested the Bismil gendarmerie command to investigate whether or not Mehmet Salim Acar had been kidnapped.
55. On 8 September 1995 gendarmes took statements from Hüsna, Halise and İhsan Acar and from İlhan Ezer. On the basis of the applicant’s allegation that Mehmet Salim Acar had been taken away by two officers of the Bismil gendarmerie and a local village guard, İlhan Ezer was asked whether the persons whom he had seen worked at the Bismil gendarmerie command. He replied:
“Those persons were not persons working at the Bismil gendarmerie command. As I have already stated above, I have not seen these persons before. Moreover, Mehmet Salim Acar did not behave as if he knew them.”
56. On 17 June 1996 the Bismil public prosecutor issued a decision of non-jurisdiction and referred the case to the Diyarbakır Provincial Administrative Council. The Administrative Council appointed Sergeant İrfan Odabaş as inspector for the investigation of the applicant’s allegations that his brother had been taken into detention by the gendarmerie captain İzzet Cural and NCO Ahmet Babayiğit under the guidance of the temporary village guard Harun Aca.
57. On 23 January 1997 the Provincial Administrative Council issued a decision of non-prosecution, finding that there was insufficient evidence to take proceedings against İzzet Cural, Ahmet Babayiğit or Harun Aca.
58. Mehmet Salim Acar has been included in the list of persons who are being searched for by the gendarmerie in the entire territory of Turkey, and the search for him continues.
59. The person who was apprehended and shown during a television news broadcast in February 2000 was not the applicant’s brother. Several persons being held in detention have the same name as the applicant’s brother. However, their dates and places of birth and particulars are different from those of the applicant’s brother.
60. By a letter of 27 August 2001 the Deputy Permanent Representative of Turkey to the Council of Europe informed the Court as follows:
“... I have the pleasure to enclose herewith the text of a declaration which the Government would be willing to make unilaterally with a view to resolving the ... application.
The Government kindly requests the Court to decide that it is no longer justified to continue the examination of the application and to strike the case out of the list under Article 37 of the Convention.”
The relevant parts of the appended declaration read as follows:
“I declare that the Government of the Republic of Turkey offer to pay ex gratia to the applicant, Mr Tahsin Acar, the amount of 70,000 pounds sterling [in respect of] the application registered under no. 26307/95.
This sum, which covers any pecuniary and non-pecuniary damage as well as costs, shall be paid in pounds sterling, free of any taxes that may be applicable and to an account named by the applicant. The sum shall be payable within three months from the date of delivery of the judgment by the Court ... This payment will constitute the final resolution of the case.
The Government regret the occurrence of the actions which have led to the bringing of the present application, in particular the disappearance of the applicant’s brother Mr Mehmet Salim Acar and the anguish caused to his family.
It is accepted that unrecorded deprivations of liberty and insufficient investigations into allegations of disappearance constitute violations of Articles 2, 5 and 13 of the Convention. The Government undertake to issue appropriate instructions and adopt all necessary measures with a view to ensuring that all deprivations of liberty are fully and accurately recorded by the authorities and that effective investigations into alleged disappearances are carried out in accordance with their obligations under the Convention.
The Government consider that the supervision by the Committee of Ministers of the execution of Court judgments concerning Turkey in this and similar cases is an appropriate mechanism for ensuring that improvements will be made in this context. To this end, necessary cooperation in this process will continue to take place. ...”


ITEMID: 001-61758
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF GĘSIARZ v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1 with regard to the length of the proceedings;Inadmissible under Art. 6-1 with regard to the fairness of the proceedings;Inadmissible under Art. 13;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1933 and lives in Częstochowa, Poland.
5. The applicant shared a house and a plot of land with three family members (“the neighbours”). On 6 February 1989 he instituted non-contentious proceedings (postępowanie nieprocesowe) before the Częstochowa District Court (Sąd Rejonowy w Częstochowie) in which he requested that the co-ownership of the property be dissolved.
6. Until November 1991 the court held eight hearings and ordered two expert opinions.
7. On 30 April 1992 the court stayed the proceedings because the applicant had failed to pay an advance fee towards the costs of an expert opinion.
8. On 22 September 1994 the proceedings were resumed as the applicant paid the costs ordered by the court.
9. On 6 and 20 December 1994 the court held hearings. It ordered a supplementary expert opinion.
10. In February and March 1995 the applicant requested the court to appoint another expert. Subsequently, he challenged an expert opinion and the expert who prepared it. The court dismissed his applications on 22 March and 31 May 1995.
11. On 23 June 1995 the court ordered another expert opinion. The opinion was submitted to the court on 5 September 1995.
12. On 17 October 1995, 16 January, 2 April and 15 May 1996 the court held hearings. It ordered three supplementary expert opinions.
13. Between 12 August and 5 December 1996 the proceedings were stayed because the applicant failed to pay an advance fee towards the costs of a supplementary expert opinion.
14. In December 1996 an expert opinion was submitted to the court; subsequently, the court ordered another expert opinion.
15. In February 1997 the applicant challenged the appointment of a new expert.
16. On 17 September 1997 the expert submitted his opinion to the court.
17. On 24 November 1997 the court held a hearing.
18. On 28 November 1997 the Częstochowa District Court gave a decision in which it dissolved the coownership.
19. The neighbours appealed against it.
20. On 26 May 1998 the Częstochowa Regional Court (Sąd Wojewódzki) quashed the impugned decision and remitted the case to the firstinstance court.
21. On 22 October 1998 the court held a hearing at which it decided to hold a view of the property. The applicant requested the court not to schedule any hearing until 16 November 1998.
22. On 21 May 1999 the judge held a view of the property.
23. On 10 June 1999 the court held a hearing. Subsequently, the court ordered another expert opinion and ordered the applicant to pay an advance fee towards the costs of it.
24. On 10 September 1999 the Częstochowa District Court stayed the proceedings because the applicant had failed to pay the advance fee. The applicant’s appeal against this decision was allowed by the Częstochowa Regional Court on 15 November 1999.
25. On 12 April 2000 the court held a hearing.
26. Subsequently, the neighbours challenged a court expert. Their challenge was finally dismissed on 2 June 2000.
27. On 14 July 2000 the applicant challenged another court expert. On 2 August 2000 the Częstochowa District Court dismissed his application.
28. On 18 November 2000 the expert submitted another opinion to the court.
29. On 2 April 2001 the District Court held a hearing.
30. On 11 June 2001 the applicant instituted another set of civil proceedings in which he requested permission to be connected to the public water supply and to carry out construction works on the co-owned property. The proceedings are pending before the Częstochowa District Court.
31. On 12 June 2001 the court again decided to stay the proceedings because administrative proceedings concerning a porch built by one of the neighbours were pending. The applicant appealed against this decision.
32. On 20 August 2001 the Częstochowa District Court resumed the proceedings.
33. At the hearing held on 14 January 2002 the court for the second time decided to stay the proceedings due to the administrative proceedings concerning the porch. The applicant’s appeal was dismissed on 14 March 2002.
34. On 19 April 2002 the applicant applied to resume the proceedings.
35. In December 2002 and January 2003 the court requested certain municipal and central authorities to provide some information necessary for the case.
36. On 4 April 2003 the proceedings were resumed and on 12 June 2002 the court held a hearing.
37. On 7 April 2003 the Częstochowa District Court gave a decision. It dissolved the co-ownership.
38. On 28 April 2003 the applicant lodged an appeal against that decision.
39. On 1 July 2003 the Częstochowa Regional Court dismissed the appeal.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-114782
LANGUAGEISOCODE: ENG
RESPONDENT: HRV
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF GOLUBOVIĆ v. CROATIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Impartial tribunal);Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos
TEXT: 4. The applicant was born in 1940 and lives in Zagreb.
5. The applicant worked as a professor of philosophy at the Faculty of Philosophy of the University of Zagreb (Filozofski fakultet Sveučilišta u Zagrebu - hereinafter the “Faculty”).
6. On 2 March 1994 the Dean of the Faculty (hereinafter: the “Dean”), relying on section 21(1) and (2) of the Employment Relations Act, suspended the applicant from work (stavljen na čekanje) for a period of six months on the minimum salary on the grounds that his job had become redundant. The applicant appealed against that decision to the Dean but his appeal was dismissed on 2 May 1994.
7. On 7 March 1995 the Dean, relying on section 23(1) of the Employment Relations Act, issued a decision to terminate the applicant’s employment.
8. On 26 May 1994 the applicant brought a civil action in the Zagreb Municipal Court (Općinski sud u Zagrebu) contesting the Dean’s decisions of 2 March 1994 and 2 May 1994 and seeking payment of his full salary. The case file was assigned number Pr-1158/94. This subsequently changed a number of times and the case bore numbers Pr-3166/97, Pr-1143/99 and Pr-4675/00.
9. On 12 June 1995 the Zagreb Municipal Court declared the Faculty’s decisions of 2 March 1994 and 2 May 1994 null and void and ordered that the applicant’s salary for the period claimed be paid to him on the ground that the Faculty’s decisions had been based on its lack of money for salaries which was not a lawful reason for suspending the applicant’s employment.
10. The Faculty appealed against the above-mentioned judgment to the Zagreb County Court (Županijski sud u Zagrebu), and on 11 November 2007 that court quashed the first-instance judgment and remitted the case to the Zagreb Municipal Court for re-examination, on the grounds that all the relevant facts had not been established.
11. On 17 September 1998 the Zagreb Municipal Court declared the Faculty’s decisions of 2 March 1994 and 2 May 1994 null and void on the same grounds as before ordering it to pay the salary claimed by the applicant.
12. Following an appeal by the Faculty, on 23 March 1999 the Zagreb County Court again quashed the first-instance judgment of the Zagreb Municipal Court and ordered a re-examination on the ground that the first-instance court had misinterpreted the relevant law.
13. The applicant complained to the Zagreb Municipal Court on 7 October 1999 that the Zagreb County Court had treated him differently from other parties in similar cases.
14. On 9 December 1999 the Zagreb Municipal Court again declared the Faculty’s decisions of 2 March 1994 and 2 May 1994 null and void and ordered that salary claimed by the applicant be paid to him, stating that there had been no legal ground on which to suspend the applicant.
15. Following a further appeal by the Faculty, on 27 June 2000 the Zagreb County Court quashed the first-instance judgment and ordered a re-examination, reiterating its previous reasoning that the Zagreb Municipal Court had failed to establish all the relevant facts.
16. On 21 November 2002 the Zagreb Municipal Court dismissed the applicant’s action, on the ground that the Faculty’s decision to suspend the applicant’s employment had been lawful.
17. The applicant appealed against the above judgment, and on 18 January 2005 a panel of judges at the Zagreb County Court, including Judge D.M., dismissed the applicant’s appeal and upheld the Zagreb Municipal Court’s judgment of 21 November 2002. In its decision the court referred, in passim, to the parallel civil proceedings the applicant had instituted against the Dean’s decision of 7 March 1995 terminating his employment (see paragraph 23). That part of the Zagreb County Court’s judgment reads as follows:
“The case file shows that in case no. Pr-3903/99 [pending before the Zagreb Municipal Court] a judgment was adopted whereby the plaintiff’s action challenging the defendant’s decision of 7 March 1995 to permanently terminate the plaintiff’s employment with the defendant was dismissed.”
18. The applicant then lodged an appeal on points of law with the Supreme Court (Vrhovni sud Republike Hrvatske) on 20 March 2005.
19. In this appeal the applicant, inter alia, challenged Judge D.M. on grounds of bias. The applicant explained that in the parallel civil proceedings (case no. Pr-1158/95), Judge D.M. had sat as the president of the panel of the first-instance court. In those proceedings Judge D.M. had delivered the judgment against the applicant, to which the County Court had referred in its judgment of 18 January 2005 (see paragraphs 17 and 27). However, Judge D.M.’s judgment in those proceedings had later been quashed and the case remitted to the Zagreb Municipal Court for re-examination, after which that judge had on the resumption of proceedings, expressed a hostile attitude towards the applicant’s representative on several occasions and had eventually issued the decision to stay those proceedings pending the outcome of the case no. Pr-1158/94 (see paragraphs 23-29).
20. On 21 December 2006 the Supreme Court dismissed the applicant’s appeal on points of law. The relevant part of the Supreme Court’s judgment reads as follows:
“The appellant considers that there was a serious breach of procedure in that the judge who had sat as the first-instance judge in proceedings between the same parties before the Zagreb Municipal Court no. Pr-3903/99, had also sat in the panel which handed down the second-instance judgment.
...
... there is no serious breach of procedure raised by the plaintiff because, under section 71 subsection 5 of the Civil Procedure Act, a judge is disqualified from sitting in a case only if he or she had previously participated in the same proceedings before a lower court, whereas the plaintiff in his appeal on points of law refers to a judge of the second-instance court who did not sit as the first-instance judge in the case at issue but in another case before a lower court. ”
21. The applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) on 24 March 2007, in which he complained, inter alia, of the lack of impartiality of Judge D.M.
22. On 26 November 2009 the Constitutional Court declared the applicant’s constitutional complaint inadmissible. It found that even though the applicant had correctly relied on the relevant Articles of the Constitution, he had not substantiated his complaint by any constitutional law arguments but had merely repeated those arguments raised in the proceedings before the ordinary courts. Therefore, the Constitutional Court was unable to examine the merits of his constitutional complaint. Its decision was served on the applicant’s representative on 23 December 2009.
23. On 8 May 1995 the applicant brought a civil action in the Zagreb Municipal Court, asking that the Dean’s decision of 7 March 1995 be declared null and void and that all the money he had claimed be paid to him. The case file was assigned number Pr-1158/95. This subsequently changed and the case bore numbers Pr-3903/99 and Pr-10588/01.
24. Judge D.M. presided over the panel of the Zagreb Municipal Court in this case.
25. On 10 April 1997 the Zagreb Municipal Court accepted the applicant’s claim and ordered that his salary be paid on the ground that the applicant should not have been made redundant from work because of the Faculty’s lack of financial means.
26. Following an appeal by the Faculty on 7 November 1997, the Zagreb County Court on 23 March 1999 quashed the first-instance judgment and ordered a re-examination of the case on the ground that all the relevant facts had not yet been established.
27. On 22 March 2001 a panel of the Zagreb Municipal Court, presided over by Judge D.M., dismissed the applicant’s action on the ground that the impugned decision had been based on the relevant law.
28. The applicant lodged an appeal and on 20 November 2001 the Zagreb County Court quashed the judgment of 22 March 2001 and ordered a re-examination, on the ground that all the relevant facts had not been established.
29. On 22 May 2003 Judge D.M., acting as the president of the panel of the Zagreb Municipal Court, ordered that those proceedings be stayed until the adoption of a final decision in the case no. Pr-1158/94, since the outcome of those proceedings was crucial to the case.
30. The applicant lodged an appeal, complaining, inter alia, that Judge D.M. had expressed a hostile attitude towards his representative and his complaint.
31. On 22 May 2003 the Zagreb County Court dismissed the applicant’s appeal as ill-founded.
32. The relevant part of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 4/1977, 36/1977 (corrigendum), 36/1980, 69/1982, 58/1984, 74/1987, 57/1989, 20/1990, 27/1990 and 35/1991, and Official Gazette of the Republic of Croatia nos. 53/1991, 91/1992, 58/1993, 112/1999, 88/2001, 117/2003, 88/2005, 2/2007, 84/2008, 123/2008, 57/2011 and 148/2011) provides as follows:
“A judge ... shall be disqualified from exercising his functions:
1. if he or she himself or herself is a party...;
...
5. if, in the same case, he or she participated in the proceedings before a lower court or other authority;
...
7. if other circumstances exist which cast doubt on his or her impartiality.”
Under section 72 of the Civil Procedure Act, the grounds enumerated in section 71 subsections 1-6 are considered absolute grounds for the judge concerned to be automatically disqualified from sitting in the case. Subsection 7 concerns situations in which a judge is obliged to inform the president of his court of any circumstances which might cast doubt on his or her impartiality. The president of the court must then, in view of the circumstances of the given case, make a decision regarding the possible disqualification of the judge.
33. The relevant provisions of the Employment Relations Act (Zakon o radnim odnosima, Official Gazette of the Republic of Croatia nos. 19/1990, 28/1990 (corrigendum), 19/1992, 25/1992 (consolidated text), 26/1993 and 29/1994), which was in force between 11 May 1990 and 1 January 1996, read as follows:
“(1) An employer may make an employee temporarily redundant if during a period of six months it cannot provide him or her with the job he or she has been assigned to.
(2) In the circumstances referred to in subsection 1 of this section, the employer may temporarily, but for a maximum period of six months:
- ...
- suspend the employee’s employment, during which period he or she has the right to a salary established by a collective agreement, ... , or the minimum salary;
- ...”
“(1) The employer may make an employee permanently redundant if for a period exceeding six months it cannot provide him or her with the job he or she has been assigned to.”
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-98687
LANGUAGEISOCODE: ENG
RESPONDENT: UKR
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: LEVADNA v. UKRAINE
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste
TEXT: The applicant, Ms Ganna Georgiyivna Levadna, who has Ukrainian and Italian nationality, was born in 1975 and lives in Dnipropetrovsk.
In August 2003 the applicant left Ukraine for Italy in order to settle there with B., an Italian national. They lived there together in a house belonging to B.'s parents. On 30 October 2003 the applicant married B. and on 26 November 2003 she gave birth to their son. On 19 April 2004 the child was re-registered by the Ukrainian consular authorities in Italy as a Ukrainian national. In May 2007 the applicant acquired Italian citizenship.
According to the applicant, between 2004 and 2007 she and her son paid regular visits to her parents in Ukraine. In 2006 alone she and her son stayed in Ukraine for more than five months.
On 29 June 2007 the applicant took her son to Ukraine for a summer break, with her husband's consent. They were supposed to return on 28 September 2007 and had plane tickets purchased for that date.
According to the applicant, she had to put off their return as her mother fell ill and was hospitalised. Because her husband had refused to join her in Ukraine and to help her financially, she decided to settle permanently in Ukraine with the child. She stayed there, living with her son in a two-room flat she owned.
On 5 October 2007 the applicant filed an application for divorce and determination of the child's place of residence, with the Amur-Nyzhnyodniprovsk Town Court. She did not provide any information concerning the outcome of the divorce application.
On 27 February 2008 the local board of guardians (“опікунська рада”) decided, at the applicant's request, that the child should live with his mother in her flat in Ukraine, which would be in the interests of the child.
According to the applicant, by decisions of 22 July 2008 and 14 May 2009 taken in her absence, the Italian courts instituted criminal proceedings against her on charges of child abduction and granted her husband custody of the child, while placing unspecified limitations on her contact with her son. The courts also ordered the child to be returned to his father's place of residence. No further details concerning those proceedings were given by the applicant.
On 28 August 2008 the Ministry of Justice of Ukraine lodged with the Amur-Nyzhnyodniprovsk Town Court an application on behalf of B., seeking to return the child to Italy under the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 (“the Hague Convention”). It submitted that the applicant had unlawfully removed the child from Italy and that B. was thus prevented from having regular contact with him.
The applicant, relying mainly on Articles 12 §§ 1 and 2 and 13 § 1 (b) of the Hague Convention, objected to the return of her son to Italy. She argued that he was a Ukrainian national, that his habitual place of residence was in Ukraine and that he had attended school in Ukraine since June 2007, and that his living conditions in that country were of benefit to his stable development. She stated that her son's return to Italy would expose him to a risk of major psychological harm.
In support of her submissions the applicant provided copies of several reports issued by local authorities responsible for family matters and by doctors, confirming that the child's living conditions were satisfactory, that he did not have health problems, that he was attached to his mother and had a good relationship with her, and that a change of his place of residence and social environment would have a negative influence on him emotionally.
The applicant also alleged that her husband did not work and could not support his family, that before she returned to Ukraine they had had to live in his parents' house in Italy, that her husband and his parents had treated her without respect, and that they had forced her to do all the household work and had not allowed her to find a job in that country. She further submitted that there were criminal proceedings pending against her in Italy and that the Italian courts had already decided on the custody of the child. In her view, in such circumstances she would not be able to accompany her son to Italy or, in any event, her contact with the child in that country would be substantially limited.
On 18 February 2009 the court rejected B.'s claim, finding that the applicant had not violated the Hague Convention, Italian or Ukrainian legislation.
On 20 July 2009 the Dniproterovsk Regional Court of Appeal quashed the first-instance court's judgment and allowed B.'s claim in full, having noted that in the course of the proceedings his claim had been amended to the effect that the applicant's keeping the child in Ukraine was alleged to be unlawful. It found that the child's return to Italy would be in his best interests, which included the need to ensure that he was developing in conditions allowing him free linguistic and ethnic self-identification in the future.
In this context, the court observed that the child had habitually resided in Italy before the actual separation of his parents, who enjoyed equal custody rights, that the child had been lawfully removed from Italy, but that he was being kept in Ukraine by his mother in violation of Article 3 of the Hague Convention. Although the child had adequate living conditions in Ukraine and had already adapted to the new circumstances, he had closer links with Italy than with Ukraine, as he had been born in wedlock under the laws of the former country and had lived permanently on its territory since his birth. The child's retention by his mother prevented contacts with his father and the result was that he was losing his knowledge of the Italian language. The court held that the applicant's reliance on the decision of the local board of guardians of 27 February 2008 was akin to an attempt to legitimise the situation created by her and to bring it within the sphere of Ukrainian law, and that the question of the determination of the child's place of residence fell outside the scope of the case.
The court further found that the applicant's allegations of inadequate treatment in Italy were wholly unsubstantiated. It observed that the parents of the applicant's husband had concluded a lease contract with B. in respect of a part of their house in Italy and did not object to her living there, that there was nothing to suggest that B. would not be able to maintain his family, that the applicant retained her Italian passport, and that at the court's request the Italian authorities had provided the information that the criminal proceedings against the applicant had been discontinued. Accordingly, there were no circumstances preventing the applicant from returning and settling with her son in Italy.
The court added that the decisions of the Italian courts of 22 July 2008 and 14 May 2009 had been adopted in the applicant's absence, which was contrary to the principles of administration of justice envisaged by the Constitution of Ukraine, and that these decisions were therefore irrelevant in the applicant's case.
It based its findings on documents obtained from the Ukrainian and Italian authorities, the child's medical data, the parties' submissions in the proceedings and written statements of witnesses on behalf of both parties. It also questioned the child concerning his living conditions in Italy and noted that he had not forgotten his family in Italy, though sometimes he had difficulty in recognising his father.
Relying on Article 8 of the Convention and on the judgments of the European Court of Human Rights in cases concerning the application of that provision, including Monory v. Romania and Hungary (no. 71099/01, 5 April 2005); Maumousseau and Washington v. France (no. 39388/05, ECHR 2007XIII); and Carlson v. Switzerland (no. 49492/06, 6 November 2008), the Court of Appeal found that the reunion of B. with his child at his habitual place of residence under the Hague Convention would be in accordance with the requirement to strike a fair balance between the competing interests of the applicant, her husband, their child, and of public order in this matter.
For all those reasons, the court found that the applicant had kept the child in Ukraine unlawfully and ordered that the child, accompanied by his father and mother, if she so wished, be returned to his habitual place of residence in Italy by 1 September 2009.
The applicant appealed in cassation, stating that her son's return to Italy was not in his best interests as, in particular, he did not understand or speak the Italian language. She further argued that the Court of Appeal, having questioned the child, failed to ask him about his personal attitude to a possible return to Italy. She also submitted that no claim had been made in respect of the court's finding that the retention of her child in Ukraine was unlawful.
On 10 September 2009 the Supreme Court rejected the applicant's appeal in cassation as unsubstantiated.
The relevant provisions of the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980, which entered into force in respect of Ukraine on 1 September 2006, read as follows:
“The objects of the present Convention are:
(a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
(b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.”
“The removal or the retention of a child is to be considered wrongful where:
(a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
(b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.
The rights of custody mentioned in sub-paragraph (a) above may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.”
“The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years.”
“For the purposes of this Convention –
(a) 'rights of custody' shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence;
(b) 'rights of access' shall include the right to take a child for a limited period of time to a place other than the child's habitual residence.”
“The judicial or administrative authorities of Contracting States shall act expeditiously in proceedings for the return of children.
If the judicial or administrative authority concerned has not reached a decision within six weeks from the date of commencement of the proceedings, the applicant or the Central Authority of the requested State, on its own initiative or if asked by the Central Authority of the requesting State, shall have the right to request a statement of the reasons for the delay. ...”
“Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.
The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.
Where the judicial or administrative authority in the requested State has reason to believe that the child has been taken to another State, it may stay the proceedings or dismiss the application for the return of the child.”
“Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that:
...
(b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence.”


ITEMID: 001-4566
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: TUZINSKI v. POLAND
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Christos Rozakis
TEXT: The applicant, a Polish citizen born in 1969, is a carpenter residing in Świecie.
On 18 July 1990 the applicant, while serving in the army, was injured in a car accident. He was admitted to a military hospital and had an operation. After his discharge, on 20 September 1990 the applicant fell and his injury was renewed.
By a decision of 28 August 1992 the military medical panel declared that the applicant was permanently unfit for military service.
In 1993 the applicant began to receive military disability benefit.
On 23 April 1993 he lodged a civil action with the Regional Court in Bydgoszcz. He claimed that his second accident occurred during work which he had been carrying out on orders of his military superior. He submitted that in the military hospital he had not received adequate treatment. Before the first-instance court the applicant was represented by J.M., a lawyer officially assigned to the case within the framework of the system of free legal assistance.
By a decision of 2 February 1994 the Employment and Disability Medical Board assessed his disability as minor (of third degree), preventing him from carrying out any hard work in standing position.

On 8 August 1996 the Bydgoszcz Regional Court dismissed the applicant’s claim. The Court found that in July 1990, during his military service, the applicant had a car accident and his leg was broken. He had been treated in Grudziądz Military Hospital from 18 July 1990 to 1 August 1990. An operation had been made and a special device had been put in his leg to join the broken bones. On the latter date he was discharged from the hospital and transferred to medical ward in his military unit. Doctors recommended that in ten weeks he should undergo a hospital check. During his stay in the ward the applicant disregarded medical recommendations, in particular he refused to use crutches, and repeatedly kept leaving the ward. On 20 September 1990, having left the ward, he had accompanied another private who had been ordered to mow a lawn at the local school. During the break in the work, the applicant had fallen and felt pain in his leg. On the same day he had been transferred to the Grudziądz hospital where the doctors decided that he should be operated on. A day before the operation the applicant, despite medical recommendations to the contrary, had drank alcohol, which made the operation impossible. His leg had been put in a plaster cast. Subsequently he had again been transferred to the ward in his unit and a recommendation had been made that he should report to a hospital later. He did not do so. The applicant had been discharged from the military service on 10 May 1991, retaining for a further three months the right to use military health services. He had failed to report to any military medical institution. In 1993 his disability had been assessed as minor and he was receiving military disability pension.
The court interviewed the applicant and heard evidence from, inter alia, one of the doctors who had treated him, two of his military superiors, and two other persons. The court had also considered as evidence, inter alia, the applicant’s medical records, the report of a medical expert appointed by the court, the decision of the military medical panel of 28 August 1992 and the decision of the Employment and Disability Medical Board of 2 February 1994.
The court considered that, regard being had to the applicant’s persistent failure to comply with the medical recommendations, his treatment could not have been effective. There were no indications of any medical negligence on the part of persons who had been treating him. Moreover, there was no evidence to support his argument that had had his second accident while working as ordered by his superiors. The court concluded that there was nothing to show that there had been any causal link between any orders of the applicant’s military superiors and his second accident, or that there had been any medical negligence on the part of the military health services.
Subsequently the applicant’s lawyer J.M. requested the Gdańsk Bar to designate a lawyer residing in the vicinity of the appellate court, the Gdańsk Court of Appeal, to represent the applicant in the proceedings before that Court. The Gdańsk Bar complied with his request and designated W.B. to represent the applicant.
The Court duly informed W.B. of the date of hearing and on 27 February 1997 he attended the hearing before that court. On the same day, the court dismissed the applicant’s appeal.
On 19 June 1997 the applicant’s lawyer J.M. requested a reinstatement in proceedings and requested that the judgment of 27 February 1997 with written grounds be served on him. He submitted that W.B. had failed to inform both him and the applicant about the outcome of the proceedings. He also failed to request that written grounds of the judgment be drafted and served on him which made it impossible for the applicant to lodge a cassation appeal with the Supreme Court. W.B. had only requested that the judgment be served on him. The applicant had learned that the Court of Appeal had found against him when he had come to the court in connection with other proceedings, long after the expiry of the time-limit for the lodging of the cassation appeal. In reply to the applicant’s subsequent query about the outcome of the case, W.B. had informed him that he had lodged a request for the written judgment to be served on him. This information had later proved untrue. Therefore the applicant had been deprived of a possibility of lodging the cassation appeal. The lawyer concluded that the applicant could have legitimately expected that he would be informed of the outcome of the proceedings and consulted about further steps to be taken in order to protect his interests. Thus he should be reinstated in the proceedings in order to be able to lodge an appeal in cassation against the judgment of 27 February 1997 as he had been deprived of this possibility without any fault on his part.
On 17 September 1997 the Gdańsk Court of Appeal dismissed the applicant’s request for the reinstatement in proceedings. The Court also refused to draft the written grounds for the judgment. The Court considered that the acts of a lawyer appointed to represent a party before a civil court within the framework of a legal aid system aid were to be deemed to be the acts of the party. Thus, any failure on the part of the officially appointed lawyer to comply with the procedural requirements entailed negative consequences directly for the party to the proceedings. It fell to the Bar, and in particular to the lawyers appointed by it to represent the parties, to organise their work in a manner which would ensure effective representation of parties before civil courts. Even the fact that the lawyers concerned resided in different towns could not discharge the Bar and themselves from their obligation to do so. Therefore, the court concluded, there were no grounds on which to grant the applicant’s request for the reinstatement in the proceedings.
Relevant domestic law
1. Assistance of an officially appointed lawyer
Pursuant to Article 113 of the Code of Civil Procedure, a person may request the court to grant him or her exemption from court fees if he submits a declaration that he cannot afford to pay court fees without a substantial reduction in his and his family’s standard of living. Such a declaration shall contain details of the family situation, assets and income of the person concerned. A decision whether the financial situation of the person as set out in the declaration justifies granting exemption is left to the court’s discretion.
2. Cassation appeal
Following amendments made to the Code of Civil Procedure by the Law on Amendments to the Code of Civil Procedure of 1 March 1996, a party can lodge a cassation appeal with the Supreme Court against a final judicial decision of a second-instance court which has terminated the civil proceedings.
Pursuant to Article 393 of the Code, a cassation appeal may be lodged on the ground that the courts have committed errors of law in that they have incorrectly interpreted or wrongly applied substantive laws; or on the ground of such flagrant breach of procedural provisions as could have seriously affected the outcome of the proceedings.