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FIFTH
SECTION
CASE OF DODOV v. BULGARIA
(Application
no. 59548/00)
JUDGMENT
STRASBOURG
17
January 2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Dodov v. Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Snejana
Botoucharova,
Karel Jungwiert,
Rait Maruste,
Javier
Borrego Borrego,
Renate Jaeger,
Mark Villiger, judges,
and
Claudia Westerdiek, Section Registrar,
Having
deliberated in private on 11 December 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 59548/00) against the Republic
of Bulgaria lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Bulgarian national, Mr Nikolai Ivanov Dodov
(“the applicant”), on 9 December 1998.
- The
applicant, who had been granted legal aid, was represented by Mr R.
Semerdzhiev, a lawyer practising in Sofia. The Bulgarian Government
(“the Government”) were represented by their Agent,
Mrs M. Kotzeva, of the Ministry of Justice.
- The
applicant alleged, in particular, that his mother's life had been put
at risk through negligence on the part of the staff of a State-run
nursing home, that the police had not undertaken all necessary
measures to search for the applicant's mother immediately after her
disappearance, that the ensuing investigation had not resulted in
criminal or disciplinary sanctions, that the applicant's attempt to
obtain compensation in civil proceedings had been frustrated by the
dilatory approach of the defendant State authorities and that the
proceedings had been excessively lengthy.
- On
7 June 2005 the Court decided to give notice of the application to
the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the application at
the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1961 and lives in Sofia.
A. The disappearance of the applicant's mother
- In
May 1994 the applicant's mother, Mrs Stoyanova, sixty-three years old
and suffering from Altzheimer's disease, was admitted to the Sofia
nursing home for elderly persons. The home was located on a busy
boulevard in Kniazhevo, a neighbourhood of Sofia. Mrs Stoyanova was
placed in the hospital unit, which was staffed with several medical
doctors and nurses. According to a medical opinion on Mrs Stoyanova's
health at that time, her memory and other mental capacities
progressively deteriorated. She needed constant supervision and the
nursery home staff had been instructed not to leave her unattended.
In the following months, the applicant visited his mother regularly
and on occasion accompanied her for medical visits outside the
nursing home.
- During
his visit on 2 December 1995, the applicant noticed spots on his
mother's skin and reported it to the nurse on duty.
- The
applicant visited again on 4 December 1995 at about 6.30 p.m. but was
informed that his mother was missing. Earlier that day, his mother
had been sent to consult a dermatologist outside the home,
accompanied by Mrs V., a medical orderly. According to the
explanation given to the applicant, upon their return, at around
11.30 a.m., the medical orderly had left Mrs Stoyanova alone in the
yard and had not found her there several minutes later. The nursing
home's staff had looked for Mrs Stoyanova in the area but in vain.
- The
staff alerted the police approximately two hours after the incident.
On the same day, and again on 11 December 1995, the police heard
several witnesses to the events and recorded their statements. Some
of them explained that they had searched the area immediately upon
discovering Mrs Stoyanova's disappearance.
- On
8 December 1995, Mrs Stoyanova was recorded as a person sought by the
police in the region of Sofia and on 22 December 1995, her data were
entered in the national list of missing persons. On 11 December 1995,
the Sofia police issued a press release containing information about
Mrs Stoyanova's physical appearance and a request to the public
to report any relevant information. It appears that the description
of Mrs Stoyanova's appearance contained errors. On 13 December
1995, the area in the proximity of the nursing home was searched
unsuccessfully using a police dog. The police also checked the
identity of patients admitted to psychiatric clinics during the
relevant period. The police also verified information according to
which, in January 1996, a woman resembling the applicant's mother had
spent a night in a monastery. In February 1996, an announcement was
broadcast on national television.
- In the days following his mother's disappearance, the
applicant himself did what he could to find her. He contacted all
persons that had last been in contact with her, published calls for
witnesses in several newspapers and posted announcements carrying his
mother's photograph.
- The
applicant's mother has not been found to date. In 1998, a District
Court issued a decision declaring Mrs Stoyanova missing and appointed
the applicant as her representative.
B. The applicant's criminal complaints against the
staff of the nursing home
- On
5 July 1996, the applicant filed a complaint with the Sofia District
Prosecutor's Office alleging that the administrative and medical
staff of the nursing home had been responsible for his mother's
disappearance.
- Nothing
was done in the case until December 1997, despite the applicant's
numerous complaints to all levels of the prosecuting authorities.
- In
December 1997, the District Prosecutor's Office opened a preliminary
investigation in the matter.
- The
applicant participated actively in the ensuing proceedings. He
made specific requests for the collection of evidence in respect of
the events of 4 December 1995 and the alleged negligence on the part
of the nursing home staff. In other submissions, often voluminous, he
exposed at length his suspicion that his mother might have been
abducted by a criminal gang trading in human organs.
- On
19 March 1998, after having heard doctor G., the head of the medical
staff at the nursing home, the investigator recommended that the
investigation be discontinued. On 10 April 1998, the prosecutor
followed this recommendation. The investigator and the prosecutor
noted that it had not been uncommon in the practice of the nursing
home for residents suffering from Alzheimer's decease to be sent for
outside examinations by public transport, accompanied by a medical
orderly. Also, it had been the normal practice to leave residents in
the yard for several minutes, the time necessary to report to the
doctor on duty, and then to accompany them to their rooms. The yard
had been enclosed by a fence and staff had usually been present in
the area. There had been a gatekeeper whose duty had been to check
the identity of those entering. Having noted those facts, the
investigator and the prosecutor stated that no criminal offence had
been committed.
- The
applicant was not informed of the above decisions. He became aware of
it on 14 December 1998, when he visited the District Prosecutor's
Office to inquire about the examination of his complaint.
- On
8 January 1999 the applicant appealed, insisting on the examination
of other witnesses, such as the medical orderly who had accompanied
his mother, the medical doctor who had directed his mother for an
examination and the gatekeeper.
- On
22 January 1999 the Sofia City Prosecutor's Office quashed the lower
prosecutor's decision and referred the case back for renewed
investigation. In June and August 1999 the file was transmitted to an
investigator. The investigator heard the medical orderly and the
gatekeeper.
- On
12 April 2000 the prosecutor terminated the proceedings. He noted
that Ms V., the medical orderly, had left the applicant's mother in
the yard for two or three minutes as she had been asked to see a
senior medical staff member. At that moment, the applicant's mother
had left and could not be found. The gatekeeper had stated that she
had not seen Mrs Stoyanova. The prosecutor further noted that, in
accordance with the relevant job descriptions, it was the medical
orderlies' duty to accompany residents and that the gatekeeper's
duties did not include responsibility for the residents' safety. On
that basis the prosecutor concluded that “there [was] no
indication that a staff member had exposed Mrs Stoyanova [to a
danger] ...; and, as regards the [possible perpetrator's] mens
rea, no wilful conduct could be proven.”
The
applicant appealed.
- On
an unspecified date, the prosecutor's decision of 12 April 2000 was
quashed and the case remitted for renewed investigation. In the
ensuing investigation, it was established that the gatekeeper had not
been at the portal when the applicant's mother had been left alone
there on 4 December 1995, as the she had left to have a
tea.
- On
18 June 2001, the District Prosecutor's Office terminated the
proceedings. The decision stated, inter alia:
“Ms V. had left [the applicant's mother] alone in
the yard, in dereliction of her duty to accompany and assist the
seriously ill [residents]. However, her act did not constitute a
criminal offence under Article 137 of the Criminal Code. That
provision makes punishable the failure to assist a person in a
helpless state, in circumstances of a real danger for that person's
life, if the perpetrator is aware of the danger but fails to act. Ms
V. stated that she had not thought that leaving [the applicant's
mother alone] in the yard might result in a danger for her life, as
the yard was closed by a fence and a gatekeeper was usually present.
The gatekeeper had committed a serious dereliction of her duties as
she had left the portal to have a tea. However, the gatekeeper is not
criminally liable as she had not understood that [the applicant's
mother] was in danger. Ms V. and the gatekeeper have undoubtedly
committed disciplinary offences, which should have led to
disciplinary sanctions but their behaviour is not criminally
punishable.”
- The
applicant was not informed of the prosecutor's decision. Having
learned about it, on 29 September 2001 he appealed to the Sofia
District Court.
- On
21 November 2001, the Sofia District Court quashed the prosecutor's
decision and referred the case for renewed investigation, considering
that there were inconsistencies in the prosecutor's reasoning and
that not all relevant evidence had been collected.
- After
having heard additional witnesses, on 15 August 2003 the Sofia
District Prosecutor's Office terminated the investigation. The
prosecutor noted the following facts that had not been mentioned in
earlier decisions: i) it had not been uncommon for elderly
residents of the nursing home to scale the fence around the house;
ii) there was a second entrance to the yard, used for service cars,
which had usually been kept closed by means of a metal bar placed on
the inner side of the portal; and iii) the order in the nursing home
and the duties of its staff were not clearly regulated.
The
prosecutor stated that in view of the absence of clear rules on the
duties of staff in the nursing home it was not possible to draw
conclusions as to the criminal liability of staff members. Also, the
facts did not disclose a criminal offence under Article 137 of the
Criminal Code.
The
prosecutor also stated that in any event the relevant statutory
limitation period for the prosecution of the alleged perpetrators had
expired.
- Upon
the applicant's appeal, on 20 January 2004 the Sofia District Court
upheld the prosecutor's decision of 15 August 2003 as the relevant
statutory limitation period for the prosecution of the alleged
perpetrators had expired on 4 June 2003.
C. The applicant's criminal complaint against the
police
- In
July 1996, the applicant complained to the prosecution authorities
against the police alleging that they had not undertaken the
necessary steps to search for his mother following her disappearance.
The prosecuting authorities examined the matter and, by decisions of
1997 and 1999, refused to open criminal proceedings considering that
the police had acted diligently.
D. Civil proceedings instituted by the applicant
1. Proceedings before the Sofia City Court
- On
10 July 1996, the applicant brought before the Sofia City Court a
civil action for non-pecuniary damages resulting from his mother's
disappearance. He claimed damages from the Ministry of Labour and
Social Care and the Sofia municipality (the institutions responsible
for the nursing home) on the grounds that the employees of the
nursing home had been negligent. He also sought damages from the
Ministry of the Interior on the grounds that insufficient efforts had
been made to find his mother. The applicant indicated the State
Responsibility for Damage Act as the legal grounds for his action.
- Throughout
the proceedings before the Sofia City Court, the applicant made
voluminous written submissions and numerous requests for the
collection of evidence.
- At
the first hearing on 24 February 1997, the court could not proceed
with the examination of the case as one of the defendants had not
been summoned. The court ordered the applicant to indicate the full
addresses of the Ministry of Labour and Social Care and of the Sofia
municipality and stated that failure to comply could lead to
discontinuation of the proceedings.
- Hearings
were held on 2 June 1997 and 19 January 1998. The Sofia City Court
admitted several documents in evidence and refused to admit other
documents. The applicant's request for several witnesses to be
examined was refused as it had been unclear and related to facts
whose establishment required documentary proof.
- On
13 April 1998, the representative of the Sofia Municipality which
managed the nursing home stated that the case did not fall to be
examined under the State Responsibility for Damage Act. The
representative of the Ministry of the Interior, one of the
defendants, stated that the applicant's allegations in reality
concerned not the Ministry as a whole but one of its regional units,
the Sofia Directorate of Internal Affairs. The court decided to
adjourn the hearing and instructed the applicant to submit proof of
the locus standi of the Ministry of the Interior.
- On
an unspecified date, the applicant requested that the Sofia
Directorate of Internal Affairs be added to the action as a further
defendant. The request was granted at the next hearing, on 16 October
1998, and the case was adjourned. The court instructed the applicant
to submit another copy of the evidence already admitted to the file,
to be transmitted to the new defendant.
- At
the hearing on 26 March 1999, the representative of the Sofia
Directorate of Internal Affairs stated that the case did not fall to
be examined under the State Responsibility for Damage Act as it did
not concern the administrative powers of the police. The applicant
sought to involve the nursing home as defendant. The court instructed
the applicant to prove that the nursing home had a legal personality
separate from that of the Sofia Municipality and adjourned the
hearing. The court eventually found that the nursing home did not
have separate legal personality.
- The
hearing held on 15 October 1999 was adjourned as the court issued a
disclosure order against the Sofia police in respect of specific
documents. The court rejected the applicant's request to summon
witnesses, including the medical doctor on duty on the relevant day.
The applicant had stated that the witnesses would testify about the
daily regime in the nursing home, the identity of staff members
responsible for accompanying the applicant's mother, her state of
health on the relevant day and the exact sequence of events following
her consultation with a dermatologist. The court held that such facts
could only be established on the basis of documentary evidence.
- On
4 February 2000, the hearing could not proceed owing to a defective
summons.
- The
hearing listed for 5 May 2000 was adjourned owing to the prosecutor's
absence.
- On
6 October 2000, the court accepted some of the applicant's requests
for the examination of witnesses and adjourned the hearing.
- The
next hearing was held on 2 February 2001. It was adjourned as the
nursing home had not complied with a disclosure order in respect of
specific documents. One of the summoned witnesses appeared but was
not invited to testify.
- The
hearing listed for 4 May 2001 could not proceed as one of the
defendants and a witness had not been summoned. The court fixed the
next hearing for 12 October 2001.
- On
12 October 2001, the court heard two witnesses, who were employees of
the nursing home.
The
employee responsible for the relevant unit stated that the staff had
been aware of the applicant's mother's illness and her complete lack
of orientation. She had been on a “closed regime”. All
staff had been aware that she had to be accompanied.
Mrs
V., the medical orderly who had accompanied the applicant's mother,
testified that she had left her for a minute at the gate, next to the
gatekeeper's booth. The gate had not been locked. However, the
gatekeeper had been there at that time. Mrs V. further stated that
she had told the gatekeeper to look after the applicant's mother and
that the gatekeeper's statement that she had not seen the applicant's
mother had been untrue.
- The
next hearing was on 15 March 2002. The court heard two witnesses and
adjourned the examination of the case. One of the witnesses, the
gatekeeper at the nursing home, did not appear. Eventually, the court
decided to examine the case on the basis of the available material.
The last hearing was held on 21 June 2002.
-
On 31 July 2002, the Sofia City Court delivered its judgment. It
found that the applicant had no standing to bring an action under the
State Responsibility for Damage Act since his mother had not been
declared dead and, therefore, the applicant could not claim that he
was her heir.
The
court also stated that it was unclear whether the State
Responsibility for Damage Act applied as it only concerned damage
resulting from unlawful administrative decisions or unlawful acts of
the administration.
2. Proceedings before the Sofia Appellate Court
- On
16 August 2002 the applicant appealed. He stated, inter alia,
that it was for the courts to decide on the legal characterisation of
his claim. Therefore, if the court considered that the claim fell to
be examined under general tort law, it should examine it under
general tort law. The applicant also reiterated that he was
personally affected as he had suffered non-pecuniary damage as a
result of his mother's disappearance.
- By
decisions of 21 and 30 January 2003, the Appellate Court, criticising
the Sofia City Court's failure to collect relevant evidence, ordered
the summonsing of witnesses and the production of other evidence in
the appellate proceedings.
- On
8 July 2003, the Appellate Court ordered the examination of a
witness, the gatekeeper.
- On
13 October 2003, the court heard the former gatekeeper, who had
fallen ill, in her home, in the presence of the parties'
representatives and a prosecutor. The former gatekeeper stated that
on the relevant date she had not seen the applicant's mother.
- On
15 January 2004, the Appellate Court delivered its judgment. It found
that the State Responsibility for Damage Act only concerned damages
resulting from administrative decisions or acts in the exercise of
administrative functions. The applicant's claim did not concern such
decisions or acts and fell to be examined under the general
provisions of tort law. For that reason, the Appellate Court annulled
the Sofia City Court's judgment and remanded the case for renewed
examination by the Sofia City Court.
3. Proceedings before the Supreme Court of Cassation
- On
13 February 2004 the applicant filed a cassation appeal. On 25 May
2005 the Supreme Court of Cassation rejected the appeal. It found
that the Sofia City Court had wrongly put the case on a track under
the State Responsibility for Damage Act.
4. Renewed examination of the case by the Sofia City
Court
- On
an unspecified date the case was transmitted to the Sofia City Court
for a fresh examination under general tort law.
- On
7 July 2005 the Sofia City Court instructed the applicant to clarify
his claims.
- On
1 September 2005 the court found the clarifications made insufficient
and gave him additional instructions.
- On
1 February 2006 the Sofia City Court held a hearing. It issued
disclosure orders against the nursing home and the Sofia Directorate
of Internal Affairs and allowed the collection of other evidence. The
hearing was adjourned until 14 June 2006. The proceedings are
pending.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Regulations on the activities of the nursing home
and its staff
- At
the relevant time, the activities of nursing homes for the elderly
and other social care homes were governed by regulations issued by
the Ministry of Public Health (State Gazette no. 91 of 1965, amended
by State Gazette no. 30 of 1987), in force until 1999, when new
regulations replaced them.
- In
accordance with the regulations, nursing homes were funded and
managed by the local municipal councils and were required to follow
the standards established and instructions given by the Ministry of
Public Health. It appears, however, that in 1994 nursing homes were
placed under the management of the Ministry of Labour and Social
Care. That was not reflected in the regulations.
- The
regulations set out the duties of the main staff categories –
the director, medical doctors, nurses and administrative staff. On
that basis, each nursing home adopted its own internal rules. The
nursing home where the applicant's mother lived also had internal
rules regulating in detail the organisation and distribution of tasks
and duties among staff. In addition, the specific duties attached to
each position were set out in job descriptions. For example,
according to the job description for a gatekeeper, one of the main
duties was control over the entry and exit of persons and
vehicles. The nursing home also maintained a presence/absence
table and daily instructions book.
B. The Criminal Code
- Article
137 of the Criminal Code makes it a punishable offence to place a
person in a situation endangering his life and, being aware of the
situation, to fail to render assistance, despite the fact that the
person concerned was unable to take care of himself owing to young or
old age, illness, or any other state of helplessness.
There
is no reported case-law under that provision.
C. The State Responsibility for Damage Act and general
tort law
- The
State Responsibility for Damage Act provides, in its section 1, that
the State shall be liable for damage occasioned by State bodies or
State officials in the exercise of their administrative functions.
For damage caused in other circumstances, the State and State bodies
are liable under general tort law.
According
to the established practice in civil proceedings, the courts examine
and determine the legal characterisation of claims submitted to them,
without regard to the legal characterisation proposed by the
plaintiff. The plaintiff must identify the disputed issue by
clarifying the facts and the claim made but is under no duty to
specify its characterisation in law. Even if the plaintiff indicated
a legal characterisation of the claim, the courts are not bound
thereby. They must make their own independent assessment (see, among
many other authorities the following judgments: 1208-98-V (Supreme
Court of Cassation), 38-97-VII (Supreme Administrative Court) and
75-88- ОСГК
(Supreme Court)).
- According
to section 10, unlike civil proceedings under general tort law,
proceedings under the Act are conducted in the presence of a
prosecutor and court fees are only payable following the entry into
force of the final judgment.
- In
2005, the Supreme Court of Cassation issued an interpretative
decision on certain aspects of the implementation of the Act, noting
the existence of disputes and divergent practice. One of the issues
dealt with was the identity of the State administrative bodies having
locus standi to answer claims under the Act. The Supreme Court
of Cassation clarified that the action must be brought against the
State body employing the relevant agent or, where that State body did
not have separate legal personality, against the superior State organ
meeting that condition.
D. Missing persons and persons presumed dead
- By
virtue of sections 8-19 of the Persons and Family Act, the courts may
declare missing a person whose whereabouts have been unknown for more
than one year. If the person is still missing after five years, the
courts may declare the person presumed dead.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
- The
applicant complained that the events surrounding the disappearance of
his mother disclosed violations of Articles 2, 13 and 17 of the
Convention. In particular, his mother's life had been put at risk
through inexcusable negligence on the part of nursing home staff and
deficient regulations. Moreover, the ensuing investigation had not
resulted in criminal or disciplinary sanctions and the applicant's
attempt to obtain compensation in civil proceedings had been
frustrated by the dilatory approach of the defendant State
authorities and delays imputable to the courts. The
applicant also complained that the police had not undertaken all
necessary measures to search for the applicant's mother immediately
after her disappearance. The Government contested the applicant's
arguments.
- The
Court considers that the relevant provision is Article 2 § 1 of
the Convention, which reads, in its pertinent part:
“Everyone's right to life shall be protected by
law.”
- The
Court notes that the applicant's complaints concern two different
sets of facts that require separate examination.
A. Alleged violation of Article 2 § 1 in respect
of the alleged impossibility to hold accountable the relevant
institutions and staff
1. Admissibility
(a) Applicability of Article 2
-
The Government stated that the substantive guarantee of Article 2 of
the Convention was inapplicable as the present case did not concern
death in custody or use of force by State agents. Furthermore,
Article 2 did not apply even in its procedural limb since it had not
been established that the applicant's mother had died.
- The
applicant, stressing that the case concerned the life of his mother,
stated that Article 2 of the Convention was clearly applicable.
- The
Court notes that the applicant's mother suffered from Alzheimer's
disease at an apparently advanced stage and more than eleven years
have elapsed since she disappeared in December 1995, at the age of
sixty-four, at a time when her mental capacities had deteriorated and
she needed constant supervision. In these conditions, under Bulgarian
law it is possible to obtain a judicial declaration of Mrs
Stoyanova's presumed death (see paragraphs 6-12 and 62 above),
although it does not appear that such a declaration was sought in the
present case. The Court finds it reasonable, for the purposes of the
case, to presume that the applicant's mother has died.
- The
question arises, however, as to whether there was a direct causal
link between her presumed death and the impugned negligence on the
part of the nursing home staff so as to trigger the application of
Article 2 in respect of the alleged deficiencies in the legal
system's reaction to such negligent acts.
- The
Court observes that the domestic authorities in the course of the
criminal investigation against the staff of the nursing home
established (although the finding never became final) that Mrs
Stoyanova had been on a “closed regime” and the staff had
known that she should not be left unattended as that could result in
danger for her health or life. It also became clear that the staff
had left her unattended and there was a direct connection between
that failing on their part and the applicant's mother's disappearance
(see paragraphs 23 and 42 above). Furthermore, the Court considers
that the sphere of application of Article 2 of the Convention cannot
be interpreted as being limited to the time and direct cause of the
individual's death. Chains of events that were triggered by a
negligent act and led to loss of life may also fall to be examined
under Article 2 (see Öneryıldız v. Turkey
[GC], no. 48939/99, ECHR 2004 XII).
- It
follows that the events in the present case – while they by no
means involve deprivation of life – fall within the scope of
application of Article 2, the Convention provision safeguarding the
right to life.
(b) Other admissibility issues
- The Court considers that the above complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. It is not inadmissible on any other grounds and must
therefore be declared admissible.
2. Merits
(a) The parties' submissions
- In
the Government's submission, in so far as Article 2 might be
applicable in its procedural aspect, the respondent State had
fulfilled its duties under that provision, as interpreted by the
Court in its case law and, notably, in Calvelli and Ciglio v.
Italy [GC], no. 32967/96, ECHR 2002 I. In particular,
the Bulgarian legal system had made available to the applicant the
possibility to seek compensation in civil proceedings. The fact that
the civil proceedings issued by the applicant had not yet ended in a
judgment on the merits was the result of the applicant's own
procedural behaviour. He had wrongly brought his action under the
State Responsibility for Damage Act, whereas the applicable regime
was that under general tort law.
- The
Government also argued that the authorities had discharged their duty
under Article 2 of the Convention to provide an adequate legal
framework protecting life. In particular, the activities of nursing
homes were legally regulated in detail.
- In
the applicant's view, his case was different from the above cited
Calvelli and Ciglio judgment in two essential aspects. First,
in Calvelli and Ciglio the Italian authorities had prosecuted
the person who had caused death through negligence and had even
convicted him at first instance, whereas the Bulgarian authorities
had refused to indict the perpetrators despite the evidence clearly
pointing to criminally punishable negligence. Second, in Calvelli
and Ciglio the relatives of the victim had received a pecuniary
compensation, albeit through a settlement, whereas the applicant had
had to endure a protracted procedure and saw no realistic perspective
of obtaining redress.
- The
applicant also considered that civil proceedings should not be seen
as satisfying the requirements of Article 2 in cases such as the
present one, as that would amount to “privatising” the
protection of the right to life. Also, civil proceedings did not
guarantee a complete and exhaustive investigation of the full factual
background.
- In
any event, as regards the effectiveness of the civil proceedings as a
means to secure accountability and provide redress, the applicant
averred that the conduct of the Sofia City Court in general and, in
particular, its failure to determine in good time the legal
characterisation of the facts of the case, had destroyed any
remaining hope that the truth about his mother's death would come to
light and that he would be compensated.
- The
applicant also contended that the activities of nursing homes in
general and the duties of its staff in particular had not been
regulated in a satisfactory manner. In particular, the regulations in
force at the relevant time had been outdated. Furthermore, in
contradiction with the regulations, after 1994 nursing homes had been
placed under the management of the Ministry of Labour and Social
Care. As a consequence, in the civil proceedings he had instituted,
the applicant had had difficulty in establishing whether or not the
nursing home had had legal personality and in naming the
administrative entity having locus standi to answer his claim.
(b) The Court's assessment
- The
first sentence of Article 2, which ranks as one of the most
fundamental provisions in the Convention and also enshrines one of
the basic values of the democratic societies making up the Council of
Europe enjoins the State not only to refrain from the “intentional”
taking of life, but also to take appropriate steps to safeguard the
lives of those within its jurisdiction (see Calvelli and Ciglio v.
Italy, cited above, § 48, and the case-law referred to
there).
- Those
principles apply in the public-health sphere too. States are required
to make regulations compelling hospitals, whether public or private,
to adopt appropriate measures for the protection of their patients'
lives and to set up an effective independent judicial system so that
the cause of death of patients in the care of the medical profession,
whether in the public or the private sector, can be determined and
those responsible made accountable (Calvelli and Ciglio, referred
to above, § 49, again with further references).
- Unlike
Calvelli and Ciglio, which concerned medical doctors' errors,
in this case the negligent act that endangered Mrs Stoyanova's life
was apparently committed by a medical orderly and/or technical
auxiliary staff. However, there is no reason why the requirement to
regulate the activities of public health institutions and afford
remedies in cases of negligence should not encompass such staff, in
so far as their acts may also put the life of patients at risk, the
more so where patients' capacity to look after themselves is limited,
as in the present case.
- Where
a Contracting State has made adequate provision for securing high
professional standards among health professionals and the protection
of the lives of patients, it cannot be accepted that matters such as
error of judgment on the part of a health professional or negligent
co-ordination among health professionals in the treatment of a
particular patient are sufficient of themselves to call a Contracting
State to account from the standpoint of its positive obligations
under Article 2 of the Convention to protect life (Powell v.
the United Kingdom (dec.), no. 45305/99, ECHR 2000 V;
see also Nitecki v. Poland, no. 65653/01, dec. 21 March 2002).
- The
Court must examine, therefore, whether or not an issue of State
responsibility under Article 2 of the Convention may arise in respect
of the alleged inability of the legal system to secure accountability
for negligent acts that had led to Mrs Stoyanova's disappearance. It
must examine whether the available legal remedies, taken together, as
provided in law and applied in practice, could be said to have
secured legal means capable of establishing the facts, holding
accountable those at fault and providing appropriate redress to the
victim (see Byrzykowski v. Poland, no. 11562/05, §§
104-118, 27 June 2006). Article 2 of the Convention will not be
satisfied if the protection afforded by domestic law exists only in
theory: above all, it must also operate effectively in practice (see
Calvelli and Ciglio, cited above, § 53).
(i) The regulations on nursing homes
- The
Court notes that the activities of nursing homes were regulated by
law. The nursing home in Sofia also had its internal rules and job
descriptions setting out the duties of staff (see paragraphs 55-57
above).
- The
Court also observes that the regulations in force at the relevant
time dated from 1965 and apparently did not reflect changes in State
administrative structures (see paragraphs 55 and 56 above). One of
the prosecutors who dealt with the case expressed the opinion that
the duties of the nursing home staff had not been clearly regulated
which made it impossible to determine any criminal liability (see
paragraph 26 above).
- The
Court is not required, however, to arrive at general conclusions
about the relevant legal regime in abstracto. It must examine
whether the legal system as a whole dealt adequately with the case at
hand.
(ii) The adequacy of the judicial
remedies
- As
the Court stated in its above cited Calvelli and Ciglio
judgment, if the infringement of the right to life or to personal
integrity is not caused intentionally, the positive obligation
imposed by Article 2 to set up an effective judicial system does not
necessarily require the provision of a criminal-law remedy in every
case. In the specific sphere of medical negligence, the obligation
may for instance also be satisfied if the legal system affords
victims a remedy in the civil courts, either alone or in conjunction
with a remedy in the criminal courts, enabling any liability of the
medical staff concerned to be established and any appropriate civil
redress, such as an order for damages and for the publication of the
decision, to be obtained. Disciplinary measures may also be envisaged
(see, Calvelli and Ciglio, cited above, § 51).
- In
the present case, the relevant domestic law provided for
possibilities to seek accountability through criminal, disciplinary
and civil proceedings.
(α) Criminal law remedies
- The
Court observes that the criminal investigation was characterised by
lengthy periods of inactivity and that basic investigative measures,
such as questioning the nursing home staff, were only undertaken
several years after the events, upon the insistence of the applicant
(see paragraphs 13-27 above). The delays not only hampered the
investigation's prospects in the particular case but also
demonstrated disregard for the public interest that possible errors
committed in the health care sphere should be established promptly,
to allow the dissemination of information and thereby prevent the
repetition of similar errors and contribute to the safety of health
service users (see Byrzykowski, cited above, § 117).
- Furthermore,
in the present case the prosecuting authorities issued contradictory
decisions, refusing to indict nursing home staff each time on the
basis of different factual versions and unclear legal grounds. In
particular, in 1998 and 2000, the District Prosecutor's Office and
the Sofia City Prosecutor's Office decided to discontinue the
proceedings essentially on the basis that the staff had acted in
accordance with their usual practice, without analysing whether or
not that practice disclosed culpable neglect (see paragraphs 17 and
21 above). In 2001, the factual basis and the grounds for
discontinuation changed – the prosecutors agreed that nursing
home staff had acted in dereliction of their duties but considered in
substance that under Bulgarian penal law such violations were not
punishable (see paragraph 23 above). Finally, in 2003 the prosecutors
changed yet again their factual findings and made suppositions such
as that the applicant's mother might have scaled the fence of the
nursing home or left through another exit. Eventually, the
prosecution became time-barred (see paragraphs 26 and 27 above).
- On
the basis of all the material in its possession, the Court considers
that the relevant criminal law remedies did not secure the
accountability of those responsible for the disappearance of the
applicant's mother. The Court must examine, therefore,
whether the respondent State made available other legal remedies that
satisfied the relevant Convention requirements.
(β) Disciplinary or administrative
measures
- The
Court notes that no disciplinary measures were taken against nursing
home staff despite the prosecutors' finding that staff members –
the medical orderly and the gatekeeper – had acted in breach of
their duties (see paragraph 23 above). Moreover, it appears that at
no time did the relevant authorities – the Ministry of Labour
and Social Care, the Ministry of Public Health and the Sofia
municipality – seek to identify any errors in management,
training or control that may have made the impugned violations
possible.
(γ ) Civil law remedies
- The
Court observes that, more than ten years after their beginning, the
civil proceedings for damages brought by the applicant have not yet
produced even a first instance decision on the merits of the dispute
(see paragraphs 29-54 above).
- The
Court further refers to its finding below that the excessive length
of the proceedings was imputable to the authorities and violated
Article 6 of the Convention (see paragraphs 106-119 below).
- It
reiterates that the requirements of Article 2 of the Convention will
not be satisfied if the available remedies did not operate
effectively within a time-span such that the courts can complete
their examination of the merits of each individual case (see;
Calvelli and Ciglio v. Italy, cited above, §§ 51-53
and Vo v. France [GC], no. 53924/00, §§ 89-90, ECHR
2004 VIII).
- While
the proceedings are still pending and the Court cannot speculate
about their outcome, it finds that, in the particular circumstances,
the lapse of time is in itself sufficient to conclude that the civil
proceedings did not bring about the result wished by Article 2 of the
Convention – establishing the facts surrounding the
disappearance and presumed death of Mrs Stoyanova and holding
accountable those responsible in an effective and timely manner.
(iii) Conclusion
- The
Court found that despite the availability in Bulgarian law of three
avenues of redress in cases such as the present one – criminal,
disciplinary and civil, in practice the authorities did not secure an
effective possibility to establish the facts surrounding the
disappearance of the applicant's mother and hold accountable persons
or institutions that have breached their duties. Deficiencies in the
relevant regulations undoubtedly contributed to that result (see
paragraph 85 above). The Government have not argued that other means
of redress existed.
- In
these circumstances, the Court considers that the legal system as a
whole, faced with an arguable case of negligent acts endangering
human life, failed to provide an adequate and timely response,
consonant with the State's procedural obligations under Article 2.
There has been, therefore, a violation of Article 2 § 1 in this
respect.
B. Alleged violation of Article 2 in respect of the
reaction of the police after Mrs Stoyanova's disappearance
1. Admissibility
- The Court considers that the above complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. It is not inadmissible on any other grounds and must
therefore be declared admissible.
2. Merits
-
The State duty to take appropriate steps to safeguard the lives of
those within its jurisdiction also extends in appropriate
circumstances to a positive obligation to take preventive operational
measures to protect an individual whose life is at risk from the
criminal acts of another individual, or from self-harm (see Osman
v. the United Kingdom, judgment of 28 October 1998, Reports
1998 VIII, p. 3159, § 115 and Keenan v. the
United Kingdom, no. 27229/95, §§ 89 and 90, ECHR
2001-III). In such cases, the Court's task is to determine whether
the authorities knew or ought to have known of the existence of a
real and immediate risk and, if so, whether they did all that could
have been required of them to prevent the life of the individual
concerned from being, avoidably, put at risk (see Uçar v.
Turkey, no. 52392/99, § 86, 11 April 2006).
- The
Court considers that it is not necessary in the present case to
determine the modalities of application of the above principles to
situations where an individual of ill health goes missing. It
observes that the police undertook a series of steps aimed at
locating Mrs Stoyanova. Having being informed about her
disappearance, the police immediately proceeded to hearing witnesses
who testified that they had searched the area of the nursing home in
vain (see paragraphs 9-11 above). Four days later, Mrs Stoyanova was
recorded as a person sought by the police and within a week a press
release was issued. Later, the police made verifications in respect
of patients admitted to psychiatric clinics and information received
by the public (see paragraphs 6 and 9-11 above).
- In
the applicant's view, the police should have undertaken intensive
searches in the area immediately after his mother's disappearance.
The Court reiterates, however, that bearing in mind the difficulties
in policing modern societies, the unpredictability of human conduct
and the operational choices which must be made in terms of priorities
and resources, the scope of the authorities' positive obligation in
cases such as the present one must be interpreted in a way which does
not impose an impossible or disproportionate burden on the
authorities (see Osman, cited above, pp. 3159-60, § 116
and Akdoğdu v. Turkey (no. 46747/99, § 45,
18 October 2005). While there is little doubt that more could
have been done by the police in the present case, the decisive
question is whether their reaction was adequate in the circumstances,
having regard to the concrete facts and practical realities of daily
police work. In this respect, the Court notes that the nursing home
was located on a busy boulevard in Sofia – a city of more than
one million inhabitants. Since the staff of the nursing home, who –
unlike the police – knew Mrs Stoyanova's physical
appearance well, had searched the area in vain, it is difficult for
the Court to accept that the police officers' decision not to deploy
forces for an immediate search was unreasonable.
- In
sum, the Court is not convinced that the reaction of the police to
the information about Mrs Stoyanova's disappearance was inadequate in
the circumstances or otherwise in breach of Bulgaria's positive duty
to protect life.It finds, therefore, that there has not been a
violation of Article 2 of the Convention in this respect.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained that the length of the civil proceedings in his
case exceeded reasonable time and thus violated Article 6 § 1 of
the Convention which reads, in so far as relevant.
“In the determination of his civil rights and
obligations ..., everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal...”
A. Admissibility
- The
Court considers, in the light of the criteria established by its
case-law on the question of “reasonable time”, and having
regard to all the material in its possession, that an examination of
the merits of the complaint is required.
B. Merits
- The
applicant stated that most delays had been imputable to the
authorities. In particular, unnecessary adjournments had been ordered
by the Sofia City Court to “enable” the applicant to
indicate the addresses of State institutions whose location was
publicly known or to “prove” their locus standi,
an uneasy task owing to administrative restructuring and
contradictions in the applicable statutory and administrative
regulations. Several adjournments had been caused by the failure of
the defendants – State institutions – to disclose
documents in their possession. Also, the Sofia City Court's refusals
to admit certain evidence had been unjustified and the Appellate
Court had eventually collected that evidence, which had also
engendered delays. The applicant also submitted that hearings had
often been listed at lengthy intervals. He stressed, furthermore,
that the failure of the Sofia City Court to determine in good time
the legal characterisation of the facts of the case had caused the
referral of the case for renewed examination.
- The
Government considered that the applicant had organised his case
badly, kept requesting changes, failed to provide evidence in respect
of the defendants' locus standi in time despite the Sofia City
Court's instructions and failed to clarify the nature of his claim.
At the same time the courts proceeded with due diligence – they
organised hearings at regular intervals and gave instructions to the
applicant.
- The
Court observes that the period to be taken into account started on 10
July 1996 when the applicant brought his action. In June 2006 the
proceedings were again pending before the first instance court. They
have thus lasted ten years and are probably still pending.
- Having
regard to the subject matter of the civil proceedings – which
concerned liability for negligent acts that might have resulted in
loss of life – the authorities were under a duty to exercise
special diligence and conduct the proceedings with particular
expedition.
- The
Court observes that the overall length of the proceedings was due to
two main factors – the numerous adjournments in the examination
of the case by the Sofia City Court in the period 1996 - 2002 and the
courts' decision of 2002, upheld in 2004 and 2005, to recommence the
proceedings under a different procedure (see paragraphs 29-54 above).
- In
respect of the first factor, the Court notes that the applicant made
numerous submissions throughout the proceedings, requesting at an
advanced stage the collection of evidence he could have sought at the
outset. That must have caused difficulties for the Sofia City Court.
It does not appear, however, that the ensuing delays exceeded several
months (see paragraphs 30 and 39 above).
- Significant
delays occurred, however, as a result of the fact that the case was
repeatedly adjourned for reasons imputable to the authorities:
failure to summon defendants or witnesses, the prosecutor's absence,
failure of the defendant State bodies to comply with disclosure
orders (see paragraphs 31, 37, 38, 40 and 41).
- In
respect of the adjournments ordered to clarify addresses of State
institutions and their locus standi (see paragraphs 31, 33, 34
and 35 above), the Court considers that the responsibility for the
ensuing delays was shared or – in respect of others –
rested entirely with the authorities. In particular, the question of
which administrative entity had standing to answer civil claims
concerning the activities of the nursing home was not clearly
regulated – despite the fact that under the relevant
regulations nursing homes were under the control of municipalities,
in practice they had been placed under the management of the Ministry
of labour and social care (see paragraphs 56 and 62 above).
Furthermore, the approach of the Sofia City Court, which adjourned
hearings requiring from the applicant “proof” of the
locus standi or the address of State organs such as the
Ministry of the Interior and the Ministry of labour and social care,
was excessively formalistic. In a legal system governed by the rule
of law, the identity of the State administrative entities responsible
for different sectors of activity and designated to answer civil
claims must be transparent and easily accessible.
- The
Court considers, therefore, that while the applicant bore
responsibility for delays of several months, the delay accumulated
between 1996 and 2002 was in its most part imputable to the
authorities.
- The
Court further notes that the proceedings are still pending as a
result of the decision to recommence them afresh under a different
procedure. That decision was taken in January 2004, more than seven
years after the examination of the case had started in July 1996 (see
paragraphs 29 and 49 above).
- It
is striking that the courts did not realise earlier that the case had
been wrongly put on a track under the State Responsibility for Damage
Act and that the correct procedure had been that under general tort
law. That is particularly surprising having regard to the fact that
the problem was raised repeatedly by some of the parties, including
the applicant, and that the Sofia City Court noted it in its
judgement of 31 July 2002 (see paragraphs 33, 35, 44, 49 and 50
above). The ensuing delay is entirely imputable to the courts which
were under a duty to determine the legal characterisation of the
claim (see paragraph 59 above).
- Furthermore,
as to the courts' decision to recommence the proceedings afresh, the
Court observes that the procedure under general tort law differed
from that under the State Responsibility for Damage Act in some
rather technical aspects – court fees and the presence of a
prosecutor (see paragraph 60 above). Having regard to the nature of
those differences, the Court finds it difficult to accept that in
2004 and 2005 it was justified to begin the proceedings afresh and
invalidate the procedural steps undertaken since 1996, including the
collection of witnesses' testimonies and documentary evidence. The
rule according to which the proceedings had to restart might have had
sound basis in legal theory, however, it must have been obvious to
the national courts that its implementation in the particular
circumstances would engender significant difficulties, having regard
to the limited possibilities to collect evidence, including witness
testimony, a decade or more after the events. The duty of Contracting
States to secure the enjoyment of such fundamental human rights as
the right to life requires the implementation of legal remedies that
are capable of producing effective practical results without
excessive formalism. It was for the national authorities to conceive
such procedural rules as to avoid unjustified delays.
- In
sum, the Court considers that the authorities' decision to undo all
procedural acts and commence afresh the collection of evidence was
unjustified and incompatible with their duty to act with particular
expedition in cases concerning the right to life.
- Furthermore,
the applicant's civil claim having been, inter alia, that the
responsibility of the State was engaged in that nursing home staff
had left Mrs Stoyanova without supervision, it was incumbent on the
Sofia City Court to determine the legal characterisation of that part
of the claim and conduct the proceedings accordingly. It never did
so, despite repeated statements by the parties in that sense. Indeed,
the Sofia Appellate Court and the Supreme Court of Cassation
expressly criticised the Sofia City Court for having conducted the
proceedings under the wrong procedure (see paragraph 50 above).
- The foregoing considerations are sufficient to enable
the Court to conclude that the “reasonable time”
requirement was not observed. There has accordingly been a violation
of Article 6 §1 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed EUR 20,000 in respect of non-pecuniary damage on
account of the alleged failure of the police to take the necessary
measures to find his mother, the authorities' failure to hold
accountable the institutions and persons who were responsible for his
mother's disappearance and the excessive length of the civil
proceedings.
- The
Government did not comment.
- The
violation of Article 2 of the Convention found in the present case
concerned the authorities' failure to investigate or otherwise
provide a possibility to hold accountable the persons who might have
committed negligent acts related to Ms Stoyanova's disappearance. The
Court considers that these omissions on the part of the authorities,
which were partly the result of protracted proceedings, must have
caused significant distress to the applicant. Deciding on an
equitable basis, the Court awards EUR 8,000 in respect of
non-pecuniary damage.
- The
Court also found a violation of Article 6 § 1 of the Convention
in respect of the excessive length of the civil proceedings. It does
not consider, however, that a separate sum of money should be awarded
in this respect since the anguish the applicant suffered as a result
of the excessive length of the proceedings was taken into
consideration in determining the award made in respect of the
violation of Article 2.
B. Costs and expenses
- The
applicant, who received legal aid from the Council of Europe, did not
formulate a claim in respect of costs.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
2 of the Convention in respect of the State's positive duty to make
available judicial remedies capable of establishing the facts and
holding accountable those responsible for imperilling the life of Mrs
Stoyanova;
3. Holds that there has not been a violation of Article 2 of
the Convention in respect of the reaction of the police to the
information about Mrs Stoyanova's disappearance;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 8,000
(eight thousand euros) in respect of non-pecuniary damage, plus any
tax that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 17 January 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
