In 2000 a court declared S.K. to be legally incapacitated due to a chronic illness he suffered from, namely schizophrenia. In 2002 S.K. was placed in a nursing home.

On numerous occasions, he appealed to the court to have his incapacitation quashed but all his requests were rejected. In March 2007 the Constitutional Tribunal made a judgment, in which it found unconstitutional a law depriving an incapacitated person of the right to challenge the legal incapacitation order. As a result relevant provisions of the Code of Civil Procedure were amended. In September 2007 S.K. made another request to the court which once again denied him the right to have his legal capacity restored. The court stated that since the amendments to the CCP would become effective as of October they could not be enforced in the applicant’s case.

In his application to the ECtHR S.K. contended that he had been placed in the nursing home against his will and that since 2002 he had been deprived of any chance to have that decision varied. In addition, he claimed that courts issuing decisions in his case totally disregarded the arguments he had made on psychiatric examinations.

In its decision finding the violation of the right to liberty the ECtHR contended that S.K.: “was under constant supervision and was not free to leave the [nursing] home without permission whenever he wished”. The Strasbourg Court held that the applicant’s confinement in the nursing home was not justified and that he should have been given the possibility of challenging a decision on his placement in such facility.

“It is the first case against Poland heard by the ECtHR in which the placement in a nursing home has been found to constitute the deprivation of liberty”, says Dr. Adam Bodnar, HFHR Deputy President. “It shows the urgent need to introduce the instrument of judicial review of nursing home placement orders”, adds Dr. Bodnar.

The Mental Disability Advocacy Centre submitted an amicus curiae brief in the proceedings pending before the ECtHR. The organisation pointed out that this case might involve not only the violation of the right to liberty but also a breach of the prohibition of discrimination in the exercise of other rights and liberties by incapacitated persons. “The fact that the MDAC filed its own brief in these proceedings proves the systemic nature of the legal problem it involves, that is the rights of the incapacitated not only in Poland but also across Europe”, says Barbara Grabowska, a lawyer with the HFHR.

The ECtHR awarded the applicant EUR 10,000 in respect of non-pecuniary damage.