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ECtHR 2000 Varbanov V Bulgaria French PDF
ECtHR 2000 Varbanov V Bulgaria French PDF
DE L’EUROPE OF EUROPE
FOURTH SECTION
JUDGMENT
STRASBOURG
5 October 2000
VARBANOV v. BULGARIA JUDGMENT 1
PROCEDURE
1. The case was referred to the Court by the European Commission of
Human Rights (“the Commission”) on 13 September 1999, within the
three-month period laid down by former Articles 32 § 1 and 47 of the
Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”). It originated in an application (no. 31365/96) against
the Republic of Bulgaria lodged with the Commission under former
Article 25 by a Bulgarian national, Mr Dimitar Varbanov (“the applicant”),
on 10 January 1996.
2. The applicant, who was granted legal aid before the Court, was
represented by Mr Y. Grozev, a lawyer practising in Sofia. The Bulgarian
Government (“the Government”) were represented by their Agent,
Mrs V. Djidjeva, co-Agent, of the Ministry of Justice. Having originally
been designated before the Commission by the initials D.V., the applicant
subsequently did not object to the disclosure of his name.
3. The applicant alleged that his confinement in a psychiatric clinic was
unlawful and that it was not possible to appeal to a court in this respect.
4. The application was declared partly admissible by the Commission on
16 April 1998. In its report of 21 April 1999 (former Article 31 of the
Convention) [Note by the Registry. The report is obtainable from the
Registry.], it expressed the unanimous opinion that there had been
violations of Article 5 § 1 and Article 5 § 4.
2 VARBANOV v. BULGARIA JUDGMENT
THE FACTS
16. On 30 January 1995 the prosecutor's file was sent to the psychiatric
clinic in Sofia, with a copy to the local police. On 3 May 1995 the District
Prosecutor's Office asked the police to explain their failure to enforce the
order of 27 January 1995. On 16 August 1995 the police returned the file to
the District Prosecutor's Office with the explanation that the applicant had
not allowed access to his home. On 23 August 1995 the District Prosecutor's
Office again transmitted the file to the police and insisted on the
enforcement of the order of 27 January 1995.
17. On 31 August 1995, on the basis of the prosecutor's order of
27 January 1995, the applicant was taken from his home by the police and
brought to a psychiatric hospital.
The applicant underwent psychiatric examinations. He was given
sedatives. The doctors also interviewed his wife, asking her questions about
his past.
18. On 4 September 1995 the applicant was diagnosed as suffering from
pneumonia. A treatment with antibiotics was applied.
19. On 5 September 1995 the applicant's wife submitted a complaint to
the Sofia City Prosecutor's Office (Градска прокуратура). She stated, inter
alia, that the manner in which her husband was treated was inhuman, that
she had not been given a copy of the prosecutor's order and that she had not
been allowed to visit her husband in the hospital until 2 September 1995.
She asked the prosecutor to release the applicant from the psychiatric clinic.
20. On 15 September 1995 the applicant was transferred to a general
hospital in a critical condition because of the developing pneumonia. In the
following days his health improved.
21. It appears that during the first few days after his transfer to the
general hospital the applicant remained under the control of a psychiatrist.
He was instructed not to leave the room where he had been placed and was
tied to his bed during the night. The applicant stated, and the Government
did not dispute, that this situation lasted until 24 September 1995, when his
health started to improve.
22. On 18 September 1995 the psychiatrists who were in charge of
conducting the applicant's compulsory examination at the psychiatric
hospital informed the District Prosecutor's Office about the applicant's
transfer and requested an extension until 20 October 1995 of “the time-limit
for the forensic psychiatric report”. The request was granted orally by
telephone. It appears that the prosecutor did not make any formal order
terminating the compulsory stay of the applicant at the psychiatric clinic.
23. On 11 October 1995 a regional prosecutor wrote to the applicant's
wife in relation to her complaint of 5 September 1995. The letter stated only
that her husband had been transferred to a general hospital and that,
therefore, the district prosecutor would be given additional time to deal with
his inquiry.
VARBANOV v. BULGARIA JUDGMENT 5
24. On 16 October 1995 the applicant was discharged from the general
hospital and went home as “no psychiatric treatment was necessary at [that]
moment”, according to a psychiatrist who had examined him.
25. In November 1995 and later again the applicant complained in
respect of the events of August-September 1995 to the prosecution
authorities stating, inter alia, that the district prosecutor had acted
unlawfully. The complaints were examined by the Sofia City Prosecutor's
Office and then by the Chief Public Prosecutor's Office, which replied by
letters of 1 February and 12 June 1996 respectively that the district
prosecutor had complied with the applicable procedure.
The applicant also sent numerous letters to the Minister of Health, to the
courts and to other institutions complaining that he had been ill-treated and
that the doctors and the prosecutors wanted to kill him. He received answers
from the public-health authorities reciting the sequence of events and
assuring him that his suspicions were unfounded.
26. In the continuing inquiry of the district prosecutor, three medical
experts, who had examined the applicant at the time when he was at the
psychiatric hospital, delivered a report dated 9 November 1995 in which
they recommended compulsory treatment because, inter alia, he did not
understand his condition, refused any form of voluntary treatment and was
extremely aggressive.
27. In January 1996 the district prosecutor submitted a request to the
Sofia District Court (Районен съд) for an order committing the applicant
for compulsory psychiatric treatment under section 36(3) of the Public
Health Act. On 30 April 1996, after a hearing, the court dismissed the
request. The applicant's and the prosecutor's ensuing appeals were rejected
as being out of time.
THE LAW
and verification of the facts was primarily a matter for the Commission
(former Articles 28 § 1 and 31 of the Convention). While the Court is not
bound by the Commission's findings of fact and remains free to make its
own assessment in the light of all the material before it, it is only in
exceptional circumstances that it will exercise its powers in this area (see, as
a recent authority, İlhan v. Turkey [GC], no. 22277/93, § 47, ECHR 2000-
VII ).
35. The Court takes into account the applicant's statements but does not
consider that they cast doubt on the Commission's conclusions of fact.
These conclusions are supported by documentary evidence, such as a report
by psychiatrists dated 9 November 1995 reciting the facts and reproducing
passages from letters sent by the applicant (see paragraph 14 above). The
Commission approached its task of assessing the evidence with the requisite
caution, giving detailed consideration to the elements which supported the
applicant's claims and those which cast doubt on their credibility. The Court
does not find that the criticisms made by the applicant raise any matter of
substance which might warrant the exercise of its own powers of verifying
the facts. In these circumstances, the Court accepts the facts as established
by the Commission and supplemented by the additional evidence submitted
to the Court (see paragraphs 9-27 above).
...
38. The applicant submitted that at the relevant time the applicable
domestic law did not empower prosecutors to detain for the purpose of a
medical examination persons believed to be of unsound mind. However, the
order for the applicant's detention was issued by a prosecutor and was based
on an unpublished internal instruction which did not have the status of a
legal rule.
In the applicant's submission, even if the prosecutor did have the power
to order detention, the standard of lawfulness would not have been met, as
he had never received proper notification. He maintained that he had never
been informed of the need to undergo an examination and of the
prosecutor's order for his detention. The relevant general administrative and
civil law required that any such notification had to be signed by the person
notified or, where this was not possible, by a witness declaring why this was
not possible.
39. The applicant further argued that the relevant domestic law did not
provide guarantees against arbitrary deprivation of liberty as it did not set
out a clear procedure and substantive criteria for a detention with the
purpose of conducting a psychiatric examination.
In the applicant's view the major deficiency, which allegedly had not
been remedied by the 1997 amendments to the Public Health Act, was that
such detention was not made conditional on medical evidence. No
evaluation by a psychiatrist was made. The relevant law, even that currently
in force, did not oblige the prosecutor to seek a medical opinion as to the
mental health of the person concerned and as to the need for detention.
Finally, the applicable procedure allegedly did not ensure proper
notification prior to a compulsory examination.
40. The Government submitted that sections 36(3), 59(2) and 61 of the
Public Health Act established a procedure whereby the confinement of a
10 VARBANOV v. BULGARIA JUDGMENT
person of unsound mind might be sought. The first stage of this procedure
was an inquiry by a prosecutor who had to establish whether or not there
existed information indicating that the person concerned might be of
unsound mind and whether or not that person posed a threat.
Such an inquiry did take place in the applicant's case. It was conducted
by a prosecutor and police officers and led to the conclusion that the
applicant demonstrated a threatening behaviour and that a medical
examination was necessary. The applicant was then repeatedly invited to
come for an examination.
41. The Government further submitted that the authorities should be
afforded a certain margin of appreciation in the assessment of the medical
condition of a person believed to be of unsound mind and in respect of the
need for a compulsory examination. Indeed, in the applicant's case his
examination had confirmed the opinion that he should be placed in a
psychiatric hospital, as evidenced by the medical report of 9 November
1995.
42. The Commission considered that the applicant was unlawfully
deprived of his liberty between 31 August 1995 and an unspecified date
after 15 September 1995, as the relevant domestic law at the material time
did not empower prosecutors to order confinement in a psychiatric clinic. In
view of this finding, the Commission considered it unnecessary to examine
whether the other requirements of Article 5 § 1 (e) of the Convention had
been met.
judgment of 24 October 1979, Series A no. 33, pp. 17-18, § 39, and the
Johnson v. the United Kingdom judgment of 24 October 1997, Reports
1997-VII, pp. 2409-10, § 60).
46. The Court further reiterates that a necessary element of the
“lawfulness” of the detention within the meaning of Article 5 § 1 (e) is the
absence of arbitrariness. The detention of an individual is such a serious
measure that it is only justified where other, less severe measures, have been
considered and found to be insufficient to safeguard the individual or public
interest which might require that the person concerned be detained. The
deprivation of liberty must be shown to have been necessary in the
circumstances (see Witold Litwa v. Poland, no. 26629/95, § 78,
ECHR 2000-III).
47. The Court considers that no deprivation of liberty of a person
considered to be of unsound mind may be deemed in conformity with
Article 5 § 1 (e) of the Convention if it has been ordered without seeking the
opinion of a medical expert. Any other approach falls short of the required
protection against arbitrariness, inherent in Article 5 of the Convention.
The particular form and procedure in this respect may vary depending on
the circumstances. It may be acceptable, in urgent cases or where a person is
arrested because of his violent behaviour, that such an opinion be obtained
immediately after the arrest. In all other cases a prior consultation is
necessary. Where no other possibility exists, for instance due to a refusal of
the person concerned to appear for an examination, at least an assessment
by a medical expert on the basis of the file must be sought, failing which it
cannot be maintained that the person has reliably been shown to be of
unsound mind (see the X v. the United Kingdom judgment of 5 November
1981, Series A no. 46).
Furthermore, the medical assessment must be based on the actual state of
mental health of the person concerned and not solely on past events. A
medical opinion cannot be seen as sufficient to justify deprivation of liberty
if a significant period of time has elapsed.
48. In the present case the applicant was detained pursuant to a
prosecutor's order which had been issued without consulting a medical
expert. It is true that the purpose of the applicant's detention was precisely
to obtain a medical opinion, in order to assess the need for instituting
judicial proceedings with a view to his psychiatric internment.
The Court is of the opinion, however, that a prior appraisal by a
psychiatrist, at least on the basis of the available documentary evidence, was
possible and indispensable. There was no claim that the case involved an
emergency. The applicant did not have a history of mental illness and had
apparently presented a medical opinion to the effect that he was mentally
healthy. In these circumstances, the Court cannot accept that in the absence
of an assessment by a psychiatrist the views of a prosecutor and a police
officer on the applicant's mental health, which were moreover based on
12 VARBANOV v. BULGARIA JUDGMENT
evidence dating from 1993 and 1994, sufficed to justify an order for his
arrest, let alone his detention for twenty-five days in August and September
1995.
It is also true that when he was arrested the applicant was taken to a
psychiatric clinic where he was seen by doctors.
However, there is no indication that an opinion as to whether or not the
applicant needed to be detained for an examination was sought from the
doctors who admitted him to the psychiatric hospital on 31 August 1995.
The applicant's detention for an initial period of twenty days, later
prolonged, had already been decided by a prosecutor on 27 January 1995,
without the involvement of a medical expert.
It follows that the applicant was not reliably shown to be of unsound
mind.
49. The Court therefore finds that the applicant's detention was not “the
lawful detention ...of [a person] of unsound mind” within the meaning of
Article 5 § 1 (e) as it was ordered without seeking a medical opinion.
50. Furthermore, the Court observes, like the Commission, that the
Public Health Act, as in force at the relevant time, did not contain any
provision empowering prosecutors to commit a person for compulsory
confinement to a psychiatric clinic for the purpose of effecting a psychiatric
examination.
Before the Court, the Government relied on section 59(2) and section
61(1) of the Act, according to which a prosecutor must conduct an inquiry
and arrange for the psychiatric examination of the person concerned before
submitting to the competent court a request for his psychiatric internment.
However, these provisions did not mention any competence of the
prosecutor to order the detention of the individual concerned with the aim of
securing his examination. Instruction no. 1/81 of the Minister of Public
Health, which implied such a competence, did not lay down any rules in this
respect and thus lacked the requisite clarity.
Moreover, the applicable law, as in force at the relevant time and even
after its amendment in 1997, does not provide for the seeking of a medical
opinion as a precondition to ordering detention with a view to compulsory
psychiatric examination and thus falls short of the required standard of
protection against arbitrariness.
51. These shortcomings were not remedied by the fact that internal
Guidelines no. 295/85 of the Chief Public Prosecutor's Office contained
provisions regarding compulsory psychiatric examinations. The guidelines
were an unpublished document without formal legal force.
In this respect, the Court reiterates that the expressions “in accordance
with the law” and “in accordance with a procedure prescribed by law”
require that the impugned measure should have a basis in domestic law and
also refers to the quality of the law in question, requiring that it should be
accessible to the person concerned and foreseeable as to its effects (see
VARBANOV v. BULGARIA JUDGMENT 13
Amann v. Switzerland [GC], no. 27798/95, § 50, ECHR 2000-II, and the
Amuur v. France judgment of 25 June 1996, Reports 1996-III, pp. 850-51,
§ 50).
52. Finally, as the Commission rightly noted, the fact that no decision
terminating the applicant's detention was issued is another indication of the
ambiguous legal procedure and the lack of certainty as regards his
deprivation of liberty.
53. The Court thus finds a violation of Article 5 § 1 of the Convention
on account of the fact that the applicant's deprivation of liberty was not
justified under sub-paragraph (e) of this provision and had no basis in
domestic law which, moreover, does not provide the required protection
against arbitrariness as it does not require the seeking of a medical opinion.
55. The applicant stated that the prosecutor who had ordered his
detention did not have the characteristic features of a “court” and did not
conduct any proceedings of a judicial nature. In particular, the applicant had
no opportunity to present his position or challenge evidence. Neither did the
applicant have access to a court subsequently, after his detention had been
ordered.
56. The Government submitted that what mattered was the nature and
competence of the body reviewing the lawfulness of the detention and not
its name. In the applicant's case, his detention was subject to review by a
district and a regional prosecutor. The applicant could also appeal to the
Chief Public Prosecutor but failed to do so.
The Government admitted that the relevant law did not provide for an
appeal to a court in cases of detention ordered in the framework of an
inquiry prior to the institution of proceedings for psychiatric internment.
That was due to the fact that between 1992 and 1998 opinions were split in
Bulgaria on the question of prosecutors' status. However, since the Court's
judgment in the case of Assenov and Others v. Bulgaria (judgment of
28 October 1998, Reports 1998-VIII) there had been several legislative
14 VARBANOV v. BULGARIA JUDGMENT
amendments in 1999 designed to bring the law into line with the
Convention requirements and the Court's case-law. Therefore, there had
been a sincere effort in this respect on the part of the Bulgarian authorities.
On this basis, and considering that the purpose of the Convention was to
exercise pressure on States with a view to bringing their legislation into line
with it, the Government urged the Court to reject the complaint under
Article 5 § 4 of the Convention.
57. The Commission found that it had not been open to the applicant to
appeal to a court in order to challenge the lawfulness of his deprivation of
liberty.
The accuracy of the Government's statement that the law has been brought
into line with the Convention through legislative amendments adopted in
1999, which is disputed by the applicant, cannot be assessed in the context
of the present case. The Court must limit its examination to the particular
circumstances of the case.
60. The Court notes in this respect that the applicant's detention was
ordered by a district prosecutor, who subsequently became a party to
proceedings against him, seeking his psychiatric internment (see paragraphs
15 and 27 above). The district prosecutor's order was subject to appeal
solely to higher prosecutors.
It cannot be considered, therefore, that the remedy required by Article 5
§ 4 of the Convention was available to the applicant. That provision
guarantees to every arrested or detained person the right to appeal to a court.
The necessary supervision of lawfulness was thus neither incorporated in
the initial decision for the applicant's detention nor ensured through the
existing possibilities to appeal.
61. The Court therefore finds that there has been a violation of Article 5
§ 4 of the Convention in that the applicant was deprived of his right to have
the lawfulness of his detention reviewed by a court.
A. Damage
review of his detention should be taken into account. The fact that he was
detained in a psychiatric clinic where he was treated as an insane person
was a particularly grave encroachment on his human dignity and was the
source of humiliation and pain. He was given sedatives and was tied to his
bed at night. He was detained incommunicado for three days, no visitor
having been allowed to see him until the third day of his detention. When he
developed pneumonia, he was referred for specialised treatment after a long
delay which threatened his life.
65. The Agent of the Government submitted that the applicant was
diagnosed as mentally ill and that the alleged feelings of fear and
helplessness were in fact characteristic of his medical condition.
Furthermore, in the opinion of the Agent, the exorbitant amounts claimed by
the applicant were “the fruit of his mental disorder”.
The Government also presented a detailed analysis of all documents
submitted by the applicant in support of his claim for pecuniary damage,
characterised some of them as forgeries and stated that one of them
concerned what the Agent of the Government described as the applicant's
“heroic communist past” rather than matters relevant to the case.
The Government finally argued that the standard of living in Bulgaria
should be taken into account and urged the Court to reject the claims for just
satisfaction.
66. The Court considers, the gratuitous statements of the Agent of the
Government notwithstanding, that the applicant has not shown a direct
causal link between the violations of the Convention found in the present
case and the alleged pecuniary damage. In particular, the fact that the
applicant had received a business offer is not conclusive evidence of lost
income. In respect of the medical expenses claimed, the Court recalls that
the Commission declared inadmissible the applicant's complaints that the
doctors wanted to kill him and that they damaged his health (see the
Commission's admissibility decision of 16 April 1998).
67. As for non-pecuniary damage, the Court considers that the applicant
must have endured pain and suffering as a result of his unlawful detention,
which lasted twenty-five days, and the impossibility of obtaining a judicial
control, which undoubtedly led to a feeling of helplessness in the hands of
the authorities. The fact that the applicant was detained in a psychiatric
clinic although he had not reliably been shown to be of unsound mind is a
further aggravating circumstance.
Having regard to its case-law (see the Lukanov v. Bulgaria judgment of
20 March 1997, Reports 1997-II; the Sakık and Others v. Turkey judgment
of 26 November 1997, Reports 1997-VII; the Demir and Others v. Turkey
judgment of 23 September 1998, Reports 1998-VI; Baranowski v. Poland,
no. 28358/95, ECHR 2000-III; and Witold Litwa, cited above) and making
its assessment on an equitable basis, the Court awards 4,000 levs (BGN) in
respect of non-pecuniary damage.
VARBANOV v. BULGARIA JUDGMENT 17
68. The applicant claimed FRF 240 in postal expenses and FRF 1,300
for translation of his written observations submitted in the proceedings
before the Commission (the equivalent of about BGN 540). The applicant
presented copies of invoices and postal receipts. He did not claim any
amount in respect of the proceedings before the Court, for which he had
received legal aid.
69. The Government stated that the documents submitted by the
applicant did not prove that he had actually incurred the expenses claimed.
In any event, the amount of legal aid paid by the Council of Europe should
be deducted.
70. The Court notes that the applicant's claims relate solely to the
proceedings before the Commission whereas the legal aid received by him,
in the amount of FRF 4,100, only concerned the proceedings before the
Court. Therefore, no deduction can be made.
The Court observes, however, that in the course of the proceedings
before the Commission the applicant made numerous uninvited submissions
and considers that he cannot claim translation and postal expenses in respect
of all of them. Deciding on an equitable basis, the Court awards BGN 300.
C. Default interest
4. Holds
(a) that the respondent State is to pay the applicant, within three months,
the following amounts:
(i) for non-pecuniary damage, BGN 4,000 (four thousand levs);
(ii) for costs and expenses, BGN 300 (three hundred levs), together
with any value-added tax that may be chargeable;
18 VARBANOV v. BULGARIA JUDGMENT
(b) that simple interest at an annual rate of 13.85% shall be payable from
the expiry of the above-mentioned three months until settlement;