Psychiatric Detention in Prison

Pankiewicz v Poland [2008] ECHR 34151/4 (12 February 2008) In this case, the European Court of Human Rights considered the legality of:

  1. detaining a mentally ill prisoner pending transfer to a psychiatric hospital; and
  2. the length of pre-trial detention

-- under arts 5(1) and 5(3)of the European Convention on Human Rights.



Mr Pankiewicz was detained at Nowa Sól District Court from 6 March 2003 to 30 March 2004 following suspicion he had uttered threats against his wife and the man with whom she was allegedly in a relationship.  Grounds for detention included a reasonable belief Mr Pankiewicz had committed the offence, and the likelihood he would induce witnesses to give false testimony in his favour.

Mr Pankiewicz had a history of psychiatric illness.  On 2 June 2003, the court ordered he undergo a psychiatric examination to determine if he could be held criminally responsible for his acts.  His detention was extended a number of times, and he remained under medical care.

On 5 January 2004, the court found Mr Pankiewicz had committed the offence but because of an organic delusional disorder, he was not criminally responsible.  The court ordered that Mr Pankiewicz be placed in Kościan psychiatric hospital.  He remained in detention, untreated, because the hospital could not finalize a date for his admission.  On 30 March 2004, some of two months and twenty-five days later, he was placed in Cibórz Psychiatric Hospital, as the Kościan hospital remained full.

The Zielona Góra Regional Court found that Mr Pankiewicz’s stay in custody from 3 March 2003 to 5 January 2004 was a breach of Poland's Code of Criminal Procedure Article 264(3), which provides that if proceedings are discontinued by reason of insanity of the accused, preliminary detention may be maintained pending application of a preventive measure such as placement in a psychiatric facility.  He had not been placed under the care of the State Treasury, the body normally responsible for detention of people whose cases were discontinued due to mental disorder.  His compensation was (1) 25,609 Polish zlotys in pecuniary and non-pecuniary damage and (2) acknowledgement by authorities that the detention was unlawful.  However, these remedies did not relate to 5 January to 30 March 2004.

The period from 5 January to 30 March 2004, which Mr Pankiewicz spent in detention without the aid of psychiatric care, therefore formed the basis of his claim to the European Court.

Mr Pankiewicz complained that he had been detained despite his mental illness, in breach of his right to freedom from deprivation of liberty and security under art 5(1) of the Convention.  Mr Pankiewicz also complained that the length of detention was unreasonable in breach of art 5(3).



Article 5(1)

The legality of Mr Pankiewicz’s detention required consideration of whether:

  1. the domestic law was lawful; and
  2. the detention was ‘lawful’ according to the terms set out in art 5(1).

The European Court accepted that Mr Pankiewicz’s detention was lawful under domestic law because it prevented him inflicting harm on himself or others.  It also accepted that the detention prima facie fell within the scope of art 5(1)(e), under which a party can be lawfully detained because of unsound mind.

However, the Court noted that in giving effect to art 5(1)(e), a reasonable balance must be struck between the competing interests of the detained and detaining parties.  It accepted that it was unrealistic to require the Government to have a place immediately available in a selected psychiatric facility for Mr Pankiewicz.  Nonetheless, Mr Pankiewicz was held in a detention centre which lacked adequate medical facilities and his admission to hospital was delayed for a significant period.  Both of these acts were harmful to a person clearly in need of treatment.  The Court found a reasonable balance was not struck and art 5(1) was violated.

Article 5(3)

Article 5(3) entitles everyone arrested or detained to trial within a reasonable time or to release pending trial.  The European Court held that while the period Mr Pankiewicz had waited was long, the redress provided by the Zielona Góra Regional Court in respect of his complaint of the excessive length of his detention precluded any claim to breach of this section.  Therefore, he could no longer claim to be a victim of a violation of this provision of the Convention.


Implications for the Victorian Charter

The Charter provides that a person must not be subjected to arbitrary arrest or detention under s 21(2), in terms which are very similar to those of art 5(1) of the Convention.  However, unlike the Convention, the Charter does not enumerate circumstances in which deprivation of liberty is permitted, such as those involving persons of unsound mind.  This case may prove illustrative for instances in which detention is necessary to prevent parties from causing harm to themselves or others, as well as the conditions under which the detention may be allowed to continue pending a party's admission into an appropriate facility.

Sections 21(5)(a) and (b) of the Charter are almost identical to art 5(3) of the Convention.  They provide that a person who is arrested or detained on a criminal charge must be promptly brought before a court and has the right to be brought to trial without unreasonable delay.

Louise Fahy is a Lawyer with DLA Phillips Fox