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FIFTH
SECTION
CASE OF
SABEVA v. BULGARIA
(Application
no. 44290/07)
JUDGMENT
STRASBOURG
10
June 2010
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 Sabeva v. Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Karel
Jungwiert,
Rait Maruste,
Mark Villiger,
Isabelle
Berro Lefèvre,
Mirjana Lazarova Trajkovska,
Zdravka
Kalaydjieva,
judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 11 May 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 44290/07) 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, Ms Evgeniya Ivanova
Sabeva (“the applicant”), on 24 September 2007.
- The
applicant was represented by Ms S. Stefanova and Mr M. Ekimdzhiev,
lawyers practising in Plovdiv. The Bulgarian Government (“the
Government”) were represented by their Agent, Ms S. Atanasova,
of the Ministry of Justice.
- The
applicant alleged, in particular, that her confinement in a
psychiatric hospital was unlawful, that she had no opportunity to
seek judicial review of that confinement, that she did not have an
enforceable right to compensation in respect of these matters, and
that the conditions of her detention were inhuman and degrading.
- On
20 January 2009 the Court decided to give priority to the application
under Rule 41 of its Rules. On the same date it decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3 of the Convention).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1962 and lives in Stara Zagora.
- On
27 December 2005 the Stara Zagora District Court granted the
applicant’s petition for divorce from her husband, with whom
she had two daughters.
A. The proceedings for the applicant’s
confinement in a psychiatric hospital
- On 14 July 2006 the applicant’s former husband
asked the Stara Zagora District Prosecutor’s Office to apply
for a court order for the applicant to be subjected to compulsory
treatment. He asserted that her mental health had deteriorated
sharply and that she was not taking care of their children. That
Office carried out a inquiry, in the course of which it took
statements from the applicant, her former husband, and their two
daughters. The applicant said that, if necessary, she would
voluntarily submit to a psychiatric examination. Her former husband
alleged that she had been delusional and paranoiac for many years,
and had been harassing both him and their two children. The two
daughters, at that time aged eighteen and eleven, made similar
statements. The social services drew up a report which said that the
applicant had expressed her fears of persecution by the former
communist secret services, which in their view showed that she had
psychiatric problems and needed treatment.
- On 8 September 2006 the Stara Zagora District
Prosecutor’s Office applied to the Stara Zagora District Court
for an order for the applicant’s compulsory treatment. It
described the allegations of her former husband, and asserted that
her mental condition had deteriorated and that there was a risk that
she would cause harm to herself, her relatives or third parties, or
would seriously endanger her health.
- The court appointed counsel for the applicant and
examined the case at a hearing held on 3 October 2006. It heard the
applicant, who denied that she was suffering from any mental
disorder, and a psychiatric expert, who was of the opinion that she
did have such a disorder, but that the question as to whether it
required compulsory treatment could be answered only after a more
detailed examination. The court accordingly ordered a psychiatric
expert report, asking the expert to determine, inter alia,
whether the applicant was suffering from a mental disorder, whether
she presented a risk for others or herself, and whether she could be
effectively treated as an out patient.
- The report, drawn up by Dr I.D., head of the
in patient department of the Stara Zagora Regional Psychiatric
Clinic, on the basis of the materials in the case file and an
examination of the applicant, concluded that she had a “persistent
mental disorder” and a “paranoid syndrome with
persecution delusions”. It further stated that the risk of her
committing a violent act or an offence was low, but could not be
fully ruled out. It expressed the view that she was unlikely to be
able to cope with everyday tasks and especially those relating to
parenting. It finally stated that lack of treatment could have a
negative impact on her health, and recommended that she be treated in
a closed psychiatric establishment for at least two months. If she
showed a more critical attitude towards her disorder she could also
be treated as an out patient.
- At a hearing held on 16 October 2006 the court heard
Dr I.D., who maintained his conclusions and expressed the opinion
that unless committed to a psychiatric hospital the applicant would
not submit to treatment. The applicant replied that she was perfectly
healthy and did not need treatment. The court admitted Dr I.D.’s
report in evidence and heard the parties’ arguments. In her
closing statement the applicant mentioned that in 2006 her former
husband had been convicted on the basis of information she had
supplied to the prosecution authorities. In view of this new
information, and noting that Dr I.D.’s report relied heavily on
information furnished by the applicant’s former husband, the
court decided to order a second report, to be drawn up by three
different experts.
- The report was prepared by three psychiatrists of the
Stara Zagora Regional Psychiatric Clinic, on the basis of the
materials in the case file and an examination of the applicant. It
made, almost verbatim, the same findings as the initial report, but
in its conclusion also stated that the applicant presented a risk to
her relatives, society and her own health.
- At a hearing held on 1 November 2006 the court heard a
witness called by the applicant and the three experts, who maintained
their findings and said that the applicant could not be treated as an
out patient. In reply to a question by counsel for the
applicant, one of the experts specified that Dr I.D. was not
their direct superior. The court admitted the report in evidence and
heard the parties’ closing arguments.
- In a judgment of 1 November 2006 the Stara Zagora
District Court ordered that the applicant be subjected to compulsory
treatment in a closed psychiatric hospital in Radnevo for a period of
two months. It found that she was suffering from the disorder
described in the two expert reports, both of which it fully credited,
observing that they had been to a decisive extent based on an
examination of the applicant by the experts. It further found that
she posed a risk to herself and others and that, failing treatment,
which could only be administered in a closed psychiatric
establishment, her condition would worsen. It noted that the experts
were unanimous that the applicant could not be effectively treated as
an out patient.
- The applicant appealed, arguing that the expert
reports were flawed because they had chiefly been based on the
assertions of her former husband and their daughter, who was living
with him and was under his influence. She requested a fresh
psychiatric report, to be drawn up by other experts.
- On 24 November 2006 the Stara Zagora Regional Court
rejected the applicant’s request, saying that it was unclear on
what grounds she was seeking a fresh expert report.
- At a hearing held on 17 January 2007 the applicant
expressed her misgivings about the second expert report, saying that
the three psychiatrists were probably influenced by the conclusions
of Dr I.D.
- On 31 January 2007 the Stara Zagora Regional Court
upheld the order for the applicant’s detention, fully agreeing
with the lower court’s reasoning. It found that the expert
reports were objective and clear, and had been predominantly based on
the examinations of the applicant and not on other materials.
B. The applicant’s stay in the hospital in
Radnevo
- On 6 February 2007 the applicant was informed that the
order for her confinement had become final. As she feared that she
might be forcibly detained, she went to the psychiatric hospital in
Radnevo in order to learn when she needed to voluntarily attend and
what items she needed to take with her. The doctor on duty insisted
that the applicant stay at the hospital. Despite her protestations
and her explanations that she needed to go back to her house to
arrange for someone to take care of her dog during her absence, she
was taken into custody.
- The applicant alleged that, while in the hospital in
Radnevo, she was kept in a ward reserved for the most difficult
patients and deprived of any contacts with the outside world. She
could leave the ward only during the three daily meals. In her
submission, the physical and hygienic conditions in the ward were
appalling, with faeces and urine on the floor, stained bedsheets,
rendering peeling off the walls, windows which could not be closed
properly but at the same time did not let in enough light because of
the bars, and no locks on the internal doors. She had to block the
door of her room with furniture to avoid being assaulted by
aggressive patients. Her room was not lit at night, because there
were light bulbs only in the corridors. Despite the cold temperatures
outside, the heating was turned on only during the doctors’
rounds. The food consisted of soup and bread, which were allegedly
being thrown on the floor with the patients fighting for them. The
applicant’s requests to be transferred to another ward were
allegedly turned down. However, towards the end of her stay she was
allowed to take walks in the hospital’s yard. She was treated
with pills, which she took because she feared penalties, which were
allegedly customary in the ward.
- According to information submitted by the Government,
on admission to the hospital on 6 February 2007 the applicant was put
in a closed ward. On 8 February 2007 her detention regime was changed
to “normal”, and on 15 March 2007 she was placed under an
“open door” regime. After 8 February 2007 she was
involved in a physical rehabilitation programme, after 14 February
2007 in work therapy outside her ward, and after 22 February 2007 in
art therapy at an art workshop.
- The Government did not submit information about the
conditions of the applicant’s detention. They produced a letter
from the Ministry of Health which said that the physical conditions
in the ward where the applicant had been kept had been in line with
the applicable hygienic and safety requirements, and that she had
been treated with haloperidol and chlorprothixene.
- The applicant submitted that during her stay in the
hospital she had repeatedly enquired whether it would be possible for
her to be discharged before the expiry of the two month period
ordered by the court, and had received the reply that it would not
be.
- Less than a month after her admission the applicant
was visited by a friend and learned that this friend, who had a key
to her flat, had gone there and was taking care of her dog.
- The applicant was discharged from the hospital on 30
March 2007.
II. RELEVANT DOMESTIC LAW
- The
compulsory confinement and treatment of those suffering from mental
disorders are governed by sections 155-65 of the 2005 Health Act.
- Section 155, read in conjunction with section
146(1)(1) and (1)(2), makes such confinement subject to two
pre conditions. First, the persons concerned must suffer from
(i) serious malfunction of the psychological functions (psychosis or
a serious personality disorder), (ii) enduring psychological damage
due to a mental illness, (iii) moderate, serious or profound mental
retardation, or (iv) vascular or senile dementia. Second, their
condition must create a risk that they might commit a criminal
offence which would put their relatives, third parties, society at
large, or their own health in danger. Case law provided by the
Government (реш. от
29 март 2006 г. по н.
ч. д. №
3235/2006 г., СРС, НК, 103
състав; реш. от
26 април
2006 г. по н. ч.
д. № 3863/2006 г., СРС,
НК, 7 състав; реш.
№ 187 от 20
юли 2007 г. по
в. ч. н.
д. № 317/2007 г., ОС Велико
Търново) shows
that in applying section 155 the Bulgarian
courts take into account both the
risk to others and to the persons concerned themselves.
- The assessment of whether or not an individual has a
mental disorder cannot be based on family, professional or other
conflicts, or on information about such disorders in the past
(section 147(2)).
- The procedure for deciding whether or not to order
compulsory confinement is set out in detail in sections 156 63.
Matters not specifically covered by these provisions are regulated by
the 2005 Code of Criminal Procedure – section 165(1). It takes
place before the district court with territorial jurisdiction. The
proceedings start at the request of the public prosecutor or, in
certain cases, the head of a psychiatric establishment. The request
has to be sent to the individual concerned, who can comment on it in
writing and adduce evidence. The court then has to hold a public
hearing in the presence of the individual; the participation of a
psychiatrist and counsel is mandatory. The court must hear the
individual and the psychiatrist. If it then proposes to order
confinement, it must order a psychiatric expert report. A special
regulation (Наредба
№ 16 от 13 май 2005 г. за
съдебно-психиатричните
експертизи
за задължително
настаняване
и лечение на
лица с психични
разстройства)
sets out in detail the manner in which the report must be drawn up.
The individual concerned must then be given an opportunity to comment
on the report. The district court’s order for his or her
confinement can be appealed before the regional court.
- Compulsory confinement is discontinued either after
the expiry of its allowed term, or earlier, by decision of the
competent district court (section 164(1)), at the request of the
individual concerned, the public prosecutor, or the head of the
establishment in which the detainee is being treated (section
164(3)). The court must in addition review the matter of its own
motion every three months, and decide, on the basis of a psychiatric
report drawn up by the hospital where the individual concerned is
being treated, whether or not to extend the confinement (section
164(2)). This procedure must be attended by all the safeguards
available in the initial confinement procedure (ibid.).
III. REPORTS BY THE COMMITTEE FOR THE PREVENTION OF
TORTURE AND THE BULGARIAN HELSINKI COMMITTEE
- During its visit to Bulgaria between 10 and 21
September 2006, the European Committee for the Prevention of Torture
and Inhuman or Degrading Treatment or Punishment (“the CPT”)
inspected two psychiatric hospitals, in Karlukovo and Byala, and one
psychiatric dispensary with in patient wards, in Ruse. In its
ensuing report (CPT/Inf (2008) 11) it noted, inter alia, that,
with the exception of one ward, the material conditions in both
hospitals were respectively “in an advanced state of
dilapidation” and “in a poor state of repair”
(paragraphs 131 and 134). The blankets and the bed linen in Karlukovo
were fraying, and in Byala, while “[a]ll patients had been
provided with new bed linen shortly before the visit [but] there was
no spare bed linen in stock” (paragraphs 131 and 135). Also,
the funding allocated for food was quite limited, amounting to 1.98
Bulgarian levs (BGN)
and BGN 1.39
per patient per day, which did not allow patients to be properly fed
(paragraphs 132 and 136). It also observed that in both Karlukovo and
Byala acute and chronic patients were not duly separated (paragraph
142). Concern was also expressed about the low number of staff
present in the wards, especially at night, which increased the risk
of inter patient violence (paragraphs 129 and 145).
- In a report drawn up in December 2005 (“Inpatient
Psychiatric Care and Human Rights in Bulgaria in 2005”) the
Bulgarian Helsinki Committee described its findings relating to,
among other things, various aspects of the conditions in a nineteen
psychiatric hospitals, including that in Radnevo, which it visited
between May and August 2005.
- The report contains the following findings in respect
of the hospital in Radnevo. There was a serious problem with heating
and hot water supply (p. 61 of the Bulgarian version of the report
and p. 20 of the English version). In 2004 some of the toilets had
been renovated (p. 59 of the Bulgarian version of the report). The
hospital had a library which was open for one or two hours a day, and
a small foodstuffs shop for
the patients (p. 62 of the Bulgarian version of the report and
p. 21 of the English version). It also had a sports room, an
occupational therapy farm and a
workshop (p. 63 of the Bulgarian version of the report and p. 21 of
the English version), and ran a program for accompanying therapy and
social rehabilitation (p. 82 of the Bulgarian version of the report).
The hospital did not have a dedicated space for drying patients’
clothes, with the result that patients had to use their beds or the
window bars as washing lines, with water flowing directly on the
floor (p. 109 of the Bulgarian version of the report). No data was
available on the funding allocated for food in 2004 05, but in
1998 and 2001 it had been BGN 1.08
(p. 97 of the Bulgarian version of the report). However, the hospital
was also using production from its own farm (p. 97 of the Bulgarian
version of the report). During the visit, some patients had expressed
the view that, although food was insufficient, they were not entitled
to complain because they would not have had even that amount of food
at their homes (p. 98 of the Bulgarian version of the report).
- In its description of the conditions of one of the
wards of the hospital in Karlukovo, the report mentioned, at p. 58 of
the Bulgarian version and by reference to an earlier CPT report
(CPT/Inf (2004) 21), that there was crumbling plaster, peeling paint,
and a pervasive smell of urine in several patients’ rooms
despite the fact that windows and doors were left wide open.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained about the conditions of her detention in the
hospital in Radnevo. She relied on Article 3 of the Convention, which
provides as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. The parties’ submissions
- In their observations the Government stated that they
had informed the competent authorities about the applicant’s
complaint. Those authorities had undertaken to carry out an inquiry
into the matter, and the results of that inquiry would be provided to
the Court. Later the Government transmitted to the Court a letter
from the Ministry of Health, which said that the material conditions
in the ward where the applicant had been kept were in line with the
applicable hygiene and safety requirements.
- The
applicant reiterated her allegations set out in paragraph 20 above
and argued that her detention in such conditions amounted to inhuman
and degrading treatment. She additionally relied on several reports,
published by the Bulgarian Helsinki Committee and Amnesty
International in 2001, 2002, 2005 and 2007, and describing the
conditions in various psychiatric hospitals in the country (but not
in the one in Radnevo). According to those reports, the material
conditions and the standard of care in those hospitals were often
unacceptable.
B. Admissibility
- The
Court considers that the complaint is not manifestly ill founded
within the meaning of Article 35 § 3 of the Convention or
inadmissible on any other grounds. It must therefore be declared
admissible.
C. The Court’s assessment
- According
to the Court’s case law, allegations of ill treatment
must be supported by appropriate evidence. In assessing evidence, the
Court has generally applied the standard of proof “beyond
reasonable doubt” (see, as a recent authority, Gavazov v.
Bulgaria, no. 54659/00, § 93, 6 March 2008). However,
Convention proceedings do not in all cases lend themselves to a
rigorous application of the principle affirmanti incumbit probatio
(he who alleges something must prove that allegation), as in certain
instances the respondent Government alone have access to information
capable of corroborating or refuting allegations. A failure on their
part to submit such information without a satisfactory explanation
may therefore give rise to the drawing of inferences as to the
well foundedness of the applicant’s allegations (see
Timurtaş v. Turkey, no. 23531/94, §§ 66 and 70,
ECHR 2000-VI; Taniş and Others v. Turkey, no.
65899/01, § 163, ECHR 2005 VIII; Fedotov v. Russia,
no. 5140/02, § 60, 25 October 2005; Khudoyorov v. Russia,
no. 6847/02, § 113, ECHR 2005 X (extracts); Yordanov v.
Bulgaria, no. 56856/00, § 83, 10 August 2006; Staykov
v. Bulgaria, no. 49438/99, § 74, 12 October 2006;
Kostadinov v. Bulgaria, no. 55712/00, § 48, 7 February
2008; and Gavazov, cited above, § 95). Indeed, Rule 44C §
1 of the Rules of Court, inserted on 13 December 2004, expressly
provides that “[w]here a party fails to adduce evidence or
provide information requested by the Court ... the Court may draw
such inferences as it deems appropriate”.
- It
should however be added that the specificity of the Court’s
task – to ensure the observance by the Contracting States of
their engagement to secure the fundamental rights enshrined in the
Convention – conditions its approach to the issues of evidence
and proof. In the proceedings before it, there are no procedural
barriers to the admissibility of evidence or pre determined
formulae for its assessment. The Court adopts the conclusions that
are, in its view, supported by the free evaluation of all evidence,
including such inferences as may flow from the facts and the parties’
submissions. The level of persuasion necessary for reaching a
particular conclusion and, in this connection, the distribution of
the burden of proof are intrinsically linked to the specificity of
the facts, the nature of the allegation made and the Convention right
at stake. The Court is also attentive to the seriousness that
attaches to a ruling that a Contracting State has violated
fundamental rights (see Nachova and Others v. Bulgaria [GC],
nos. 43577/98 and 43579/98, § 147, ECHR 2005 VII, with
further references).
- In
the instant case, save for her own assertions – which were
apparently made for the first time in the proceedings before the
Court and were not brought to the attention of any domestic authority
–, the applicant did not provide any concrete evidence relating
to the conditions of her detention. She did not submit statements by
co detainees (contrast Khudoyorov, §§ 71 and
113, and Gavazov, §§ 59 and 94, both cited above),
or by other persons who might possess relevant information, such as
the friend who visited her less than a month after her admission in
the hospital (see paragraph 24 above). Nor did she submit any medical
evidence showing the impact of the conditions in which she was kept
on her physical or psychological well being (compare Georgiev
v. Bulgaria, no. 47823/99, § 64, 15 December 2005 and
contrast Staykov, cited above, § 41). In the specific
circumstances of the case, the Court must treat the applicant’s
assertions with certain caution, for two reasons. Firstly, it may
sometimes be unreasonable to expect mentally disturbed persons to
give a detailed or coherent description of what they have experienced
during their detention (see Aerts v. Belgium, 30 July 1998, §
66, Reports of Judgments and Decisions 1998 V). Secondly,
the applicant might have a tendency to exaggerate the inadequacy of
the conditions in the hospital partly because she had a negative
attitude towards an establishment in which she considered she should
have never been detained (see B. v. the United Kingdom, no.
6870/75, Commission’s report of 7 October 1981, Decisions and
Reports (DR) 32, p. 29, §§ 174 and 175). The Court is
unable to find any definite corroboration of her allegations in the
CPT’s report, which relates to other establishments and not to
the hospital in Radnevo (see paragraph 31 above, and contrast Iovchev
v. Bulgaria, no. 41211/98, § 130 in limine, 2
February 2006, and Todor Todorov v. Bulgaria, no. 50765/99,
§ 47, 5 April 2007), and makes no general observations
about the conditions in psychiatric hospitals in Bulgaria (contrast
I.I. v. Bulgaria, no. 44082/98, §§ 37 and 71, 9 June
2005, as well as Iovchev, 130, and Staykov, §§
60 and 79, both cited above). By contrast, the report of the
Bulgarian Helsinki Committee, which, while relating to a period which
pre dates the applicant’s stay in Radnevo by almost two
years, did make specific findings in respect of that hospital (see
paragraph 32 above). It identified problems with heating and hot
water, with the arrangements made for drying patients’ clothes,
and, to a certain extent, with the quality and quantity of food (see
paragraph 33 above). However, the Court is not persuaded that those
matters – which are in stark contrast with the findings that
the report makes in respect of one of the wards of the hospital in
Karlukovo (see paragraph 34 above) and fall far short of the very
serious allegations made by the applicant (see paragraph 20 above) –
were sufficient for the conditions of her detention to be described
as inhuman and degrading.
- In
view of the foregoing, and despite the Government’s failure to
provide a detailed account of the conditions of the applicant’s
detention (see paragraphs 22 and 36 above), the Court is not
satisfied “beyond reasonable doubt” that she suffered
treatment that could be classified as inhuman or degrading.
- There
has therefore been no violation of Article 3 of the Convention.
II. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION
- The applicant alleged that her confinement to a
psychiatric hospital was in breach of Article 5 § 1 of the
Convention because it did not comply with the requirements of its
sub paragraph (e).
- She also alleged that she had no opportunity to seek
judicial review of her confinement as required by Article 5 § 4
of the Convention.
- Lastly,
she complained under Article 5 § 5 of the Convention that she
did not have an enforceable right to compensation in respect of the
alleged breaches of Article 5 §§ 1 and 4.
- Article
5 of the Convention, in so far as relevant, reads as follows:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
...
(e) the lawful detention of persons for the
prevention of the spreading of infectious diseases, of persons of
unsound mind, alcoholics or drug addicts or vagrants;
...
4. Everyone who is deprived of his liberty by
arrest or detention shall be entitled to take proceedings by which
the lawfulness of his detention shall be decided speedily by a court
and his release ordered if the detention is not lawful.”
5. Everyone who has been the victim of arrest
or detention in contravention of the provisions of this Article shall
have an enforceable right to compensation.”
A. The parties’ submissions
- The
Government conceded that the applicant had been deprived of her
liberty, but asserted that her detention had been fully compliant
with the requirements of Article 5 § 1 (e). In particular, she
was reliably shown to be suffering from a mental disorder. The
national courts ordered two expert reports, which were competently
made and unanimous on this point. The courts moreover saw the
applicant in person. There was no need for them to require the
experts to carry out additional tests because the diagnostic methods
of psychiatry were outside their competence. The applicant’s
misgivings as to the objectivity of the expert reports were
groundless. Her disorder was later confirmed upon her admission to
hospital. The experts also found that the applicant’s disorder
was of a degree and kind warranting confinement, because she could
not be effectively treated as an out patient, whereas lack of
treatment would lead to a worsening of her condition. Lastly, the
applicant’s assertion that section 155 of the 2005 Health Act
did not allow the detention of persons who posed a risk only to
themselves found no support in the national courts’ case law.
- The
Government further submitted that there had been no breaches of
paragraphs 4 and 5 of Article 5. They argued that the risk of
improper confinement was minimal, and that in the rare cases where a
mistake occurred those concerned could bring a tort claim.
- The
applicant submitted that it had not been reliably shown that she was
suffering from a mental disorder. The only information supporting
such a conclusion came from the allegations of her former husband.
The first expert asked by the court to report on her mental condition
did not examine her properly, did not consult with other specialists,
and based his findings predominantly on the assertions of her former
husband and their children, who harboured an interest in confining
her to a psychiatric establishment. Indeed, this prompted the
district court to order a second expert report. However, the experts
who drew it up were directly subordinate to the expert who had
prepared the initial report, and their conclusions unsurprisingly
matched his. On appeal counsel for the applicant requested a fresh
expert report, but his request was turned down without any reasoning.
- The
applicant further argued that her alleged disorder was not of a kind
or degree to justify her detention. The experts concluded that she
was unlikely to commit an offence and was a risk solely to her own
welfare, without even specifying in what way. The courts found that
she was such a risk, but section 155 of the 2005 Health Act did not
allow detention on such grounds. It contained an exhaustive
enumeration of hypotheses in which individuals could be compulsorily
confined, and those concerned solely situations where they would
endanger another or commit an offence.
- The
applicant also submitted that she did not have a realistic
opportunity of applying to a court to obtain a ruling on the
lawfulness of her detention, for three reasons. First, since release
was conditional upon the grounds for continued confinement ceasing to
exist, she could not herself, without expert assistance, assess
whether a request for release would stand any chances of success.
Second, while in the hospital she could not consult with a lawyer and
did not have pen and paper to draft a request for release. Third, the
law did not lay down any procedure or time limits for
transmitting such a request from the hospital to the court. She had
asked the doctors whether it would be possible for her to be released
and had received a negative answer. There was therefore no assurance
that any request submitted by her would be dealt with. Moreover, the
correspondence of those confined in psychiatric establishments was
being routinely monitored.
- Lastly,
the applicant argued that she could not obtain compensation in
respect of her detention. There were no examples of persons receiving
compensation in such circumstances. The general rules of tort were
not applicable, because the decision to confine her was taken by a
court, whereas court liability could be invoked only under section 2
of the 1988 State Responsibility for Damage Act, which did not cover
her case.
B. Admissibility
- The
Court considers that this part of the application is not manifestly
ill founded within the meaning of Article 35 § 3 of the
Convention or inadmissible on any other grounds. It must therefore be
declared admissible.
C. The Court’s assessment
1. Article 5 § 1
- It
was common ground between the parties that the applicant was deprived
of her liberty within the meaning of Article 5 § 1 and that her
detention falls to be examined under sub paragraph (e) of that
provision. The Court sees no reason to hold otherwise.
- An
individual cannot be considered to be of “unsound mind”
and deprived of his liberty under Article 5 § 1 (e) unless the
following three conditions are satisfied: he or she must be reliably
shown to be of unsound mind, that is to say the existence of a true
mental disorder must be established before a competent authority on
the basis of objective medical expertise; the mental disorder must be
of a kind or degree warranting compulsory confinement; and the
validity of continued confinement depends upon the persistence of
such a disorder (see, among other authorities, X v. the United
Kingdom, 5 November 1981, § 40, Series A no. 46). With
regard to the second of those conditions, the Court observes that the
persons mentioned in Article 5 § 1 (e) may be deprived of their
liberty in order to, inter alia, be given medical treatment,
that is, not only because they are a danger to the public but also
because their own interests may necessitate their detention (see
Guzzardi v. Italy, 6 November 1980, § 98 in fine,
Series A no. 39; Witold Litwa v. Poland, no. 26629/95, §
60, ECHR 2000 III; Koniarska v. the United Kingdom
(dec.), no. 33670/96, 12 October 2000; and Gorshkov v.
Ukraine, no. 67531/01, § 37, 8 November 2005). That
said, detention 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 the public interest
(see Varbanov v. Bulgaria, no. 31365/96, § 46, ECHR
2000 X). However, while the Court undoubtedly has jurisdiction
to verify the fulfilment of those conditions, the logic of the system
of safeguard established by the Convention places limits on the scope
of this control. Since the national authorities are better placed to
evaluate the evidence adduced before them, they are to be recognised
as having a certain discretion in the matter and the Court’s
task is limited to reviewing under the Convention the decisions they
have taken (see X v. the United Kingdom, cited above, §
43, and Wassink v. the Netherlands, 27 September 1990, §
25, Series A no. 185 A).
- The
Court additionally observes that the expressions “in accordance
with a procedure prescribed by law” and “lawful”
used in Article 5 § 1 (e) require the impugned measure to have a
basis in domestic law and that this law should be accessible to the
persons concerned and foreseeable as to its effects (see Varbanov,
cited above, § 51). However, while the Court is competent to
satisfy itself as to compliance with this law, the scope of its task
in this connection is also subject to limits inherent in the logic of
the European system of protection, because it is in the first place
for the national authorities, notably the courts, to interpret and
apply domestic law (see Bozano v. France, 18 December 1986, §
58, Series A no. 111).
- In
the instant case, the first question is whether the applicant was
reliably shown to be suffering from a mental disorder. On this point,
the Court observes that the court examining the proposal for her
compulsory confinement first heard from a psychiatric expert, who
considered that she was suffering from such a disorder, but that
further expert assessment was necessary for a definite conclusion.
The court then ordered two medical expert reports, both of which
concluded that the applicant was suffering from a mental disorder
(see paragraphs 9 13 above). Those reports were criticised by
the applicant as predominantly based on the allegations of her former
husband and their daughter. However, the Court notes that before
drawing up each of the two reports the experts examined the applicant
in person (see paragraphs 10 and 12 above). Both levels of court
specifically found that these examinations had been the decisive
factor in the experts’ assessment (see paragraphs 14 and 18
above). It is true that in the light of the fresh information
supplied by the applicant on 16 October 2006 the first instance
court felt that it could not unconditionally rely on the initial
report and needed to obtain the opinion of other experts (see
paragraph 11 above). However, these experts arrived at the same
conclusions as the first one, Dr I.D. While the applicant tried to
undermine their credibility, alleging that they were his
subordinates, the Court observes that in reply to a question from her
counsel those experts made it clear that Dr I.D. was not their direct
superior (see paragraph 13 above). Moreover, it cannot be overlooked
that the court eventually came to rely on both reports (see paragraph
14 above). In any event, the Court sees no reason to doubt that the
experts were fully qualified and had grounded their conclusions on
their best professional judgment, informed by the entirety of the
relevant information. In view of these considerations, and noting
that the national courts were in a far better position to assess the
probative value of the expert reports and, more generally, to
determine the factual issue as to whether or not the applicant was
suffering from a mental disorder, the Court finds no grounds to
interfere with their assessment on this point, or to impugn the
appellate court’s refusal to order a fresh expert report (see
paragraph 16 above).
- The
second issue is whether the applicant’s disorder was of a kind
or degree warranting confinement. Here, the Court observes that while
the experts found that she was not aggressive or likely to commit an
offence, they considered that, in view of the nature of her disorder,
she would not submit to treatment voluntarily, whereas, failing
treatment, her situation was likely to worsen (see paragraphs 10 and
12 above). The Court is therefore satisfied that the applicant’s
disorder was of a degree and kind warranting confinement. In as much
as the she expressed doubts about the reliability of the experts’
and courts’ findings on this point, it refers to its reasoning
above.
- The
Court also notes that the experts were specifically asked to consider
the possibility of treating the applicant as an out patient, and
eventually ruled it out (see paragraphs 9, 10, 11 and 13 above),
prompting the courts to opt for compulsory confinement (see
paragraphs 14 and 18 above). It is thus satisfied that, as required
under its case law, less severe measures than detention were
considered and found to be insufficient.
- Lastly,
the Court observes that the interpretation of section 155 of the 2005
Health Act advanced by the applicant – that it does not allow
the compulsory confinement of individuals who present a risk only to
themselves – seems to find support neither in the Bulgarian
courts’ case law nor in the courts’ decisions in the
present case (see paragraph 27 above). As already noted, it is
primarily for the national courts’ task to construe and apply
domestic law, and to dispel any interpretational doubts. Finding no
arbitrariness in the interpretation adopted by them in the present
case, the Court is satisfied that the applicant’s deprivation
of liberty was lawful within the meaning of Article 5 § 1 of the
Convention.
- There
has therefore been no violation of that provision.
2. Article 5 § 4
- While
persons deprived of their liberty by virtue of a decision taken by an
administrative body are entitled to have the lawfulness of this
decision reviewed by a court, the same does not apply when the
decision is made by a court at the close of judicial proceedings. In
those cases, the review required by Article 5 § 4 is
incorporated in the decision (see, among other authorities, Luberti
v. Italy, 23 February 1984, § 31, Series A no. 75). However,
provision should always be made for subsequent review to be available
at reasonable intervals, in as much as the reasons initially
warranting confinement may cease to exist (ibid.). Thus, persons of
unsound mind detained for an indefinite or lengthy period are
entitled, where there is no automatic periodic review of a judicial
character, to take proceedings at reasonable intervals before a court
to put in issue the lawfulness – within the meaning of the
Convention – of their detention, whether it was ordered by a
court or by some other authority (see X v. the United Kingdom,
cited above, § 52 in fine, and, more recently,
Shtukaturov v. Russia, no. 44009/05, § 121, 27 March
2008).
- In
the instant case, the applicant’s committal to a psychiatric
hospital was decided by a court at the close of judicial proceedings
attended by full procedural safeguards (see paragraphs 8 18 and
29 above). All that was required under Article 5 § 4 in these
circumstances was for her to have at her disposal the opportunity of
subsequent review of the continued validity of her detention at
reasonable intervals. The length of the applicant’s confinement
is thus of some importance, because, in the context of compulsory
confinement of persons of unsound mind, the Convention organs,
without specifying exactly what amount of time can be considered a
“reasonable interval”, have accepted periods of up to six
and nine months and even a year (see Megyeri v. Germany, 12
May 1992, § 26, Series A no. 237 A; Herczegfalvy v.
Austria, 24 September 1992, § 77, Series A no. 244; X
v. Belgium, no. 6692/74, Commission decision of 13 March 1975, DR
2, p. 109; and Turnbridge v. the United Kingdom, no. 16397/90,
Commission decision of 17 May 1990, unreported). By contrast, the
length of the applicant’s confinement was only two months. It
could not be extended without a further judicial order, and if
extended for more than three months it would have periodically been
subject to automatic judicial review attended by the full panoply of
safeguards required under Article 5 § 4 (see paragraph 30
above and contrast Gorshkov, cited above, §§ 42 and
43). The additional opportunity for the applicant herself to bring a
challenge to the continued validity of her detention was therefore of
limited importance.
- The
Court does not therefore consider that, in the circumstances, the
alleged impossibility for the applicant to bring proceedings
challenging the continued lawfulness of her confinement raises an
issue under Article 5 § 4. However, it additionally observes
that there is no indication that she tried to avail herself of that
opportunity and was rebuffed (see paragraph 23 above). To this extent
her grievances concerning the alleged shortcomings of this procedure
appear speculative (see, mutatis mutandis, Belchev v.
Bulgaria (dec.), no. 39270/98, 6 February 2003, and Pekov v.
Bulgaria, no. 50358/99, § 91, 30 March 2006).
- There
has therefore been no violation of Article 5 § 4 of the
Convention.
3. Article 5 § 5
- Article 5 § 5 guarantees an enforceable right to
compensation only to those who have been the victims of arrest or
detention in contravention of the preceding provisions of Article 5
(see Benham v. the United Kingdom, 10 June 1996, §
50, Reports 1996 III). In view of its findings that there
was no violation of Article 5 § 1 or Article 5 § 4, the
Court concludes that Article 5 § 5 is not applicable.
- There
has therefore been no violation of this provision.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Article 8 of the Convention that upon her
admission to the hospital she had not been allowed to make
arrangements for someone to take care of her dog, which represented
an important element of her private life.
- She
also complained under Article 13 of the Convention that she did not
have at her disposal effective remedies for her complaint under
“Article 6 § 1”.
- In
the light of all the material in its possession, and in so far as the
matters complained of are within its competence, the Court finds that
they do not disclose any appearance of a violation of the rights and
freedoms set out in the Convention or its Protocols.
- It
follows that these complaints are manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
FOR THESE REASONS, THE COURT
- Declares unanimously the complaints concerning
the conditions of the applicant’s detention, the lawfulness of
this detention, the availability of judicial review of the detention,
and the alleged lack of an enforceable right to compensation
admissible and the remainder of the application inadmissible;
- Holds by five votes to two that there has been
no violation of Article 3 of the Convention;
- Holds unanimously that there has been no
violation of Article 5 § 1 of the Convention;
- Holds unanimously that there has been no
violation of Article 5 § 4 of the Convention;
- Holds unanimously that there has been no
violation of Article 5 § 5 of the Convention.
Done in English, and notified in writing on 10 June 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Judges
Lorenzen and Villiger is annexed to this judgment.
P.L.
C.W.
PARTLY DISSENTING OPINION OF JUDGES LORENZEN AND
VILLIGER
- We
regret that we cannot follow the views of the majority in respect of
Article 3 of the Convention.
- In
the instant case, the only specific account of the conditions in
which the applicant was detained was the account furnished by her
(see paragraph 20 of the judgment). However, in view of her
vulnerable situation, she cannot be criticised for not providing
documentary evidence – such as, for example, photographs –
to support it. Similarly, given the nature of her allegations, it
could not be expected from her to back them with medical
certificates, since the conditions complained of were not such as to
necessarily leave physical or mental scars detectable on medical
examination. The applicant’s allegations do not find direct
corroboration in the CPT’s report, since it refers to other
establishments and does not make any general observations about the
conditions in psychiatric hospitals in Bulgaria (see paragraph 31 of
the judgment). However, the findings in that report can at least be
used to establish, albeit indirectly, that the applicant’s
allegations cannot be discarded as prima facie untenable.
- The
Government, on the other hand, had ample opportunity to investigate
the conditions in which the applicant was detained, by, for instance,
conducting an on site inspection and questioning the hospital
staff or other witnesses (see, mutatis mutandis, Fedotov v.
Russia, no. 5140/02, § 61, 25 October 2005). However,
despite a specific question by the Court, they only submitted a
letter by the Ministry of Health, which contained merely the general
statement that the conditions in the ward where the applicant was
kept were in line with the applicable hygiene and safety requirements
(see paragraphs 22 and 35 of the judgment). Regrettably, they did not
offer any explanation for their failure to submit further information
in response to the Court’s query. We therefore consider that
the Court could have legitimately drawn inferences from their conduct
(see Alver v. Estonia, no. 64812/01, § 52, 8 November
2005), and could have examined the matter solely on the basis of the
applicant’s submissions (see Kostadinov v. Bulgaria,
no. 55712/00, § 50, 7 February 2008, and Gavazov v. Bulgaria,
no. 54659/00, § 97, 6 March 2008).
- To
reach its definitive findings, the Court did not need to rely on the
CPT’s report, which, as noted in the judgment, relates to other
establishments (contrast Iovchev v. Bulgaria, no. 41211/98, §
130 in limine, 2 February 2006, and Todor Todorov v.
Bulgaria, no. 50765/99, § 47, 5 April 2007) and makes
no general observations about the conditions in psychiatric hospitals
in Bulgaria (contrast I.I. v. Bulgaria, no. 44082/98, §§ 37
and 71, 9 June 2005; Iovchev, cited above, 130; and Staykov
v. Bulgaria, no. 49438/99, §§ 60 and 79, 12
October 2006). The report of the Bulgarian Helsinki Committee, while
containing specific findings in respect of the hospital in Radnevo,
relates to a period which pre dates the applicant’s stay
there by almost two years (see paragraph 32 of the judgment) and is
thus also of limited evidentiary value. Nonetheless, it seems to
confirm at least some of her allegations (see paragraph 33 of the
judgment).
- The
relevant principles for assessing conditions of detention under
Article 3 have recently been summarised in paragraphs 52 to 57 of the
Court’s judgment in the case of Kostadinov (cited
above).
- In
the present case, the applicant was confined in the hospital in
Radnevo for a period of fifty three days (see paragraphs 19 and
25 of the judgment). During the last fifteen days of her stay there
she could leave the ward where she was being kept, and even before
that she was apparently not kept there all the time, as she was
involved in a physical rehabilitation programme, as well as in work
and art therapies (see paragraphs 20 and 21 of the judgment).
- We
consider that the sanitary conditions in the ward where the applicant
was kept, as described by her, fell foul of basic hygienic norms. We
additionally observe that the ward was not properly lit or heated,
and that the food provided to the applicant was scarce and of poor
quality (see paragraph 20 of the judgment). For us, such failures in
respect of vulnerable individuals who are kept in custody primarily
for the purpose of receiving appropriate medical treatment are
intolerable.
- We
also note the applicant’s assertions concerning the inadequate
arrangements to prevent inter patient violence (see paragraph 20
of the judgment). We consider that it is unacceptable for a
psychiatric hospital to make it possible, though lack of appropriate
arrangements and supervision, for mentally disturbed patients to
subject each other, unchecked, to acts of violence.
- Those
elements, taken together, lead us to conclude that the distress and
hardship endured by the applicant during her stay in the hospital
amounted to degrading treatment, in breach of Article 3 of the
Convention.
