Report of the Commissioner for Human Rights on the activities of the National Mechanism for the Prevention of Torture in Poland in 2017 Success Amendment to the Act on Mental Health Protection On 1 January 2018, the amendment to the Act on Mental Health Protection (hereinafter: AMHP) entered into force. The amendment consisted, primarily, in strengthening the rights of persons who are placed in social care homes without their consent, by ensuring the protection of those persons’ procedural rights. Undoubtedly, a ground-breaking case which related to a legally incapacitated person and which was examined by the European Court of Human Rights was that of Mr Kędzior. He was placed at an SCH by his brother who was his legal guardian. Mr Kędzior sought to convince the courts that there was no necessity for him to live at the SCH. However, his efforts were unsuccessful as according to the Polish law, only the legal guardian of an incapacitated person had the right to appear before courts with regard to such matters. Yet, Mr Kędzior did not give up and, as a result of his attempts, in 2012 his case was examined by the European Court of Human Rights in Strasbourg (where he was represented by Adam Bodnar, at that time a lawyer of the Helsinki Foundation for Human Rights). The ECHR issued a judgment in favour of Mr Kędzior and awarded to him a compensation in the amount of EUR 10,000 to be paid by the Polish state. The Court ruled that Poland had violated the provision of Article 1(5) of the European Convention on Human Rights (right to liberty and security of person) applicable to a person suffering from mental illness who, based on a decision of his legal guardian, was placed in a social care home against his will. In 2016, pursuant to the application filed by the Commissioner for Human Rights, the case was examined also by the Polish Constitutional Tribunal. It, too, ruled that the regulations which did not provide for any possibility to appeal to court and initiate a proceeding to verify whether a person’s placement in an SCH was justified, were contrary to the Constitution. The Tribunal pointed out that the possibility for a legal guardian to place a fully incapacitated person in an SCH without taking any account of the person’s will (assuming that the person is able to communicate his/her needs and decisions) constituted a contravention, by a legislative act, of the principle of person’s subjectivity, and a violation of person’s dignity. Furthermore, such person’s placement in an SCH interfered with his/her personal freedom: the necessity to change the place of residence and to follow the home’s regulations were considered to violate the constitutionally guaranteed liberty of person. 51