Musial v Poland 24557/94  ECHR 15
Requesting a second opinion did not amount to a waiver of the right to a speedy hearing; the court’s agreement to request a second opinion did not absolve it of the duty to ensure speediness (including using powers such as the fining of witnesses); complexity of a medical file was relevant to the issue of speediness; reliance on an out-of-date medical report could breach Art 5. [MHLR.]
The summary below has been supplied by Kris Gledhill, Editor of the Mental Health Law Reports. The full report can be purchased from Southside Online Publishing (if there is a "file not found" error, it means this particular report is not yet available online). More similar case summaries from the year 1999 are available here: MHLR 1999.
Whether a review of the lawfulness of detention was speedy for the purposes of Art 5(4) ECHR - Musial v Poland  MHLR 35
Points Arising: Requesting a second opinion did not amount to a waiver of the right to a speedy hearing; the court’s agreement to request a second opinion did not absolve it of the duty to ensure speediness (including using powers such as the fining of witnesses); complexity of a medical file was relevant to the issue of speediness; reliance on an out-of-date medical report could breach Art 5.
Facts and Outcome: M had been committed to hospital following the killing of his wife and a finding that he was not criminally responsible; his detention had been upheld on several reviews, which had to occur every 6 months under domestic law. On 16 March 1993, a further request for release was made: the court upheld detention on 26 April 1993 on the basis of opinions from the detaining hospital, but also decided to seek further psychiatric opinions from the University of Cracow, which M requested. On 17 May 1993, the court directed M’s admission to the Psychiatric Department of Cracow Detention Centre on 31 May, but the Centre refused to admit him as he was not a remand prisoner. Arrangements were then made for his admission to the University hospital: the date was put back, in part because it took 5 months for M’s medical file to be transferred, and it did not occur until 31 January to 3 February 1994, and the report based on M’s examination was not prepared until 30 November 1994. On 9 January 1995, the court upheld detention: it took no action in relation to the delays. The Grand Chamber decided that there was a breach of Art 5(4) ECHR: the period considered was when Poland allowed the right of individual petition (which was 1 May 1993) until the court decision on 9 January 1995; the delays in the process included 5 months for M’s medical file to be sent to the University hospital, 4 months for him to be admitted, and 10 months for the expert report to be prepared. It was held that this lapse of time was incompatible with the notion of speediness required by Art 5(4) unless there were exceptional grounds. Poland relied on the fact that M had requested a further examination from Cracow University and the complexity of the case: the Court held that there had been a breach of Art 5(4) and awarded compensation: (i) M did not waive his Art 5(4) right by requesting a second opinion; (ii) the court still had to rule speedily even though it had appointed experts, and it was relevant that it had not used its powers of control, such as fining the experts who were delaying submission of the report; (iii) the complexity of a medical dossier is relevant in the assessment of speediness, but had not been shown to be causative of delay; (iv) reliance on an out-of-date report could breach the purpose of Art 5, namely avoiding arbitrariness; (v) there had been no other reviews during the period concerned, even though domestic law required a review every 6 months.
Old wiki summary
The lawfulness of the applicant's detention had not been decided speedily (there had been a delay of 20 months between application and determination) so Article 5(4) had been violated.