EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 31365/96

D.V.

against

Bulgaria

REPORT OF THE COMMISSION

(adopted on 21 April 1999)

I. INTRODUCTION

(paras. 1-16) .................................................... 1

A. The application

(paras. 2-4) ................................................. 1

B. The proceedings

(paras. 5-11) ................................................ 1

C. The present Report

(paras. 12-16) ............................................... 2

II. ESTABLISHMENT OF THE FACTS

(paras. 17-41) ................................................... 3

A. The particular circumstances of the case

(paras. 17-37) ............................................... 3

B. Relevant domestic law

(paras. 38-41) ............................................... 5

III. OPINION OF THE COMMISSION

(paras. 42-70) ................................................... 8

A. Complaints declared admissible

(para. 42) .................................................. 8

B. Points at issue

(para. 43) .................................................. 8

C. As regards Article 5 para. 1 of the Convention

(paras. 44-60) ............................................... 8

CONCLUSION

(para. 61) ................................................. 10

D. As regards Article 5 para. 4 of the Convention

(paras. 62-67) .............................................. 10

CONCLUSION

(para. 68) ................................................. 11

E. Recapitulation

(paras. 69-70) ................................................ 11

APPENDIX: DECISION OF THE COMMISSION AS TO

THE ADMISSIBILITY OF THE APPLICATION ................. 12

I. INTRODUCTION

1 . The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A. The application

2 . The applicant is a Bulgarian citizen, born in 1930 and resident in Sofia.

3 . The application is directed against Bulgaria. The respondent Government were represented by Mrs Violina Djidjeva, Ministry of Justice, co-Agent.

4 . The case concerns the lawfulness of the applicant’s detention in a psychiatric hospital and the alleged lack of judicial control in this respect. The applicant invokes Article 5 paras. 1 and 4 of the Convention.

B. The proceedings

5 . The application was introduced on 10 January 1996 and registered on 6 May 1996.

6 . On 21 May 1997 the Commission (Second Chamber) decided, pursuant to Rule 48 para. 2(b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.

7 . The Government’s observations were submitted on 16 September 1997 after an extension of the time-limit fixed for this purpose. The applicant replied on 20 January 1998 also after an extension of the time-limit. On 22 April 1998 the Commission granted the applicant legal aid for the representation of his case.

8 . On 16 April 1998 the Commission declared admissible the applicant’s complaints that his forced stay in a psychiatric clinic was unlawful and that it was not possible to appeal to a court in this respect. It declared inadmissible the remainder of the application.

9 . The text of the Commission’s decision on admissibility was sent to the parties on 30 April 1998 and they were invited to submit such further information or observations on the merits as they wished.

10 . After declaring the case admissible, the Commission, acting in accordance with former [1] Article 28 para. 1(b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement. In the light of the parties’ reaction, the Commission now finds that there is no basis on which such a settlement can be effected.

11 . Pursuant to the entry into force of Protocol No. 11 to the Convention on 1 November 1998, the application was transferred to the Commission sitting in plenary.

C. The present Report

12 . The present Report has been drawn up by the Commission in pursuance of former Article 31 of the Convention and after deliberations and votes, the following members being present:

MM. S. TRECHSEL, President

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

M. F. MARTINEZ

Mrs J. LIDDY

J.-C. GEUS

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

I. BÉKÉS

D. ŠVÁBY

A. PERENIĆ

P. LORENZEN

K. HERNDL

E. BIELIŪNAS

M. VILA AMIGÓ

Mrs M. HION

MM. R. NICOLINI

A. ARABADJIEV

13 . The text of this Report was adopted on 21 April 1999 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with former Article 31 para. 2 of the Convention.

14 . The purpose of the Report, pursuant to former Article 31 of the Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.

15 . The Commission’s decision on the admissibility of the application is annexed hereto.

16 . The full text of the parties’ submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

17 . The applicant is a Bulgarian national born in 1930 and residing in Sofia. He is an economist, currently retired.

18 . On 6 October 1993 a Mr Z. lodged with the District Prosecutor’s Office ( Районна прокуратура ) in Sofia a complaint against the applicant, stating that he was mentally ill and dangerous. The applicant and Mr Z. had been involved in a dispute about money which had been the object of judicial proceedings between them. The applicant apparently threatened Mr Z., stating in a letter to him that, inter alia , the only possible method to get the money back was “the axe”, and that “a dog merits a dog’s death”. In their report of 9 November 1995, the medical experts who examined the applicant (see para. 35 below) concluded that he had a paranoic psychosis, that he was aggressive and posed a threat to others. In a later certificate, issued on 4 March 1996, another doctor who examined the applicant found that he was mentally healthy. The applicant did not have a history of psychiatric problems.

19 . Following the receipt of Mr Z.’s complaint the District Prosecutor’s Office opened an inquiry. The purpose of the inquiry was, initially, to establish whether there were grounds to institute criminal proceedings against the applicant for having threatened to kill a person. On 14 October 1993 the prosecutor transmitted the file to the local police department with instructions to investigate Mr Z.’s complaint and to serve the applicant with a warning that he should cease his unlawful behaviour. On 20 October 1993, after having heard the applicant, a police officer drew up a report in which he stated , inter alia , that the applicant had repeated his threats against Mr Z., and that he appeared to have mental problems and was likely to realise his threats. The police officer also heard a neighbour of the applicant who stated that he was a trouble maker.

20 . In February 1994 the District Prosecutor’s Office instructed the local police department to inquire whether it was necessary to request, from the competent court, the applicant’s compulsory psychiatric treatment under Section 36 of the Public Health Act ( Закон за народното здраве ).

21 . In the course of the inquiry the applicant was invited on 9 May and again on 5 September 1994 by the director of the City Psychiatric Hospital ( Градски психиатричен диспансер ) in Sofia to appear for a psychiatric examination. The applicant refused to undergo any examination and responded with letters qualifying the hospital as a “place of corruption” and “department of the state security police”.

22 . On 27 January 1995 a prosecutor from the District Prosecutor’s Office ordered that the applicant should be forcefully brought to a psychiatric hospital, and that he should be kept there for 20 days for a psychiatric examination. This was necessary in view of the prosecutor’s intention to seize the competent court with a request for the applicant’s commitment to compulsory psychiatric treatment. The order also stated that it was issued pursuant to Section 36 of the Public Health Act, Section 22 of guidelines No. 295/85 of the Chief Public Prosecutor’s Office ( Указание на Главна прокуратура ), and Section 4 para. 2 of Instruction No. 1/81 of the Ministry of Public Health ( инструкция на Министерство на народното здраве ).

23 . On 30 January 1995 the prosecutor’s file was sent to a psychiatric clinic in Sofia, with a copy to the local police. On 3 May 1995 the District Prosecutor’s Office inquired before the police about their failure to enforce the order of 27 January 1995. On 16 August 1995 the police returned the file to the District Prosecutor’s Office with the explanation that the applicant did not provide access to his home. On 23 August 1995 the District Prosecutor’s Office again transmitted the file to the police and insisted on the enforcement of the order of 27 January 1995.

24 . On 31 August 1995, on the basis of the prosecutor’s order of 27 January 1995, the applicant was taken from his home by the police and was brought to a psychiatric hospital.

25 . The applicant underwent psychiatric examinations. He was given sedatives as he allegedly behaved violently. The doctors also interviewed his wife asking her questions about his past.

26 . On 4 September 1995 the applicant was diagnosed as suffering from pneumonia. A treatment with antibiotics was applied.

27 . On 5 September 1995 the applicant’s wife submitted a complaint to the Sofia City Prosecutor’s Office ( Градска прокуратура ). She stated inter alia that the manner in which her husband was treated was inhuman, that she was not given a copy of the prosecutor’s order, and that she had not been allowed to visit her husband in the hospital until 2 September 1995. She asked the prosecutor to release the applicant from the psychiatric clinic.

28 . On 15 September 1995 the applicant was transferred to a general hospital in a critical condition because of the developing pneumonia. In the following days his health improved.

29 . It appears that during the first several days after his transfer to the general hospital the applicant remained under the control of a psychiatrist and was tied to his bed during the night.

30 . On 18 September 1995 the psychiatrists who were in charge of conducting the applicant’s compulsory examination at the psychiatric hospital informed the District Prosecutor’s Office about the applicant’s transfer and requested an extension until 20 October 1995 of “the time-limit for the forensic psychiatric report”. The request was granted orally by telephone. It appears that the prosecutor did not make any formal order terminating the compulsory stay of the applicant at the psychiatric clinic.

31 . On 11 October 1995 a regional prosecutor wrote to the applicant’s wife in relation to her complaint of 5 September 1995. The letter stated only that her husband had been transferred to a general hospital and that, therefore, the district prosecutor would be given additional time to deal with his inquiry.

32 . On 16 October 1995 the applicant was discharged from the general hospital and went home as “no psychiatric treatment was necessary at [that] moment”, according to a psychiatrist who had examined him.

33 . In November 1995 and later again the applicant complained in respect of the events of August –September 1995 to the prosecution authorities stating inter alia that the district prosecutor had acted unlawfully. The complaints were examined by the Sofia City Prosecutor’s Office and then by the Chief Public Prosecutor’s Office which replied by letters of 1 February and 12 June 1996 respectively that the district prosecutor had complied with the applicable procedure.

34 . The applicant also sent numerous letters to the Minister of Health, to the courts and to other institutions complaining that he had been ill-treated and that the doctors and the prosecutors wanted to kill him. He received answers from the public health authorities reciting the sequence of events and assuring him that his suspicions were unfounded.

35 . In the continuing inquiry of the district prosecutor three medical experts, who had examined the applicant at the time when he was at the psychiatric hospital, delivered a report dated 9 November 1995 in which they recommended compulsory treatment because, inter alia , he did not understand his condition, refused any form of voluntary treatment, and was extremely aggressive.

36 . In January 1996 the district prosecutor submitted a request to the Sofia District Court ( Районен съд ) for an order committing the applicant to compulsory psychiatric treatment under Section 36 para. 3 of the Public Health Act. On 30 April 1996, after a hearing, the Court dismissed the request.

37 . On an unspecified date in 1996 the applicant brought against the State a civil action for damages. He alleged inter alia that the district prosecutor had acted beyond his competence and in breach of the law. The applicant has not submitted information about any further developments in these proceedings.

B. Relevant domestic law

38 . The Public Health Act and the Regulations to this Act (as in force at the relevant time)

According to Section 36 paras. 3 - 6 read in conjunction with Sections 59 para. 2, 61 and 62 para. 1 of the Public Health Act, a mentally ill person can be committed to compulsory psychiatric treatment by a decision of a district court.

The court is seized by a district prosecutor. The prosecutor can submit a request to the court only after having undertaken an inquiry, including a psychiatric examination.

The Public Health Act, as in force at the relevant time, did not contain a provision expressly authorising a prosecutor to order a person being brought by force to a hospital and his detention at the hospital for purposes of a psychiatric examination. Under Section 62 para. 2 a prosecutor could issue an order for a compulsory examination, but only in respect of alcoholics or drug addicts.

Certain powers are given to the prosecutor in case the person’s state of health requires emergency measures. In this situation the chief medical doctor of a hospital can order a person’s temporary compulsory treatment. The doctor has to inform immediately the competent prosecutor, who then seizes the court (Section 36 para. 5 of the Act and Section 70 of the Regulations to the Act). According to Section 70 para. 2 of the Regulations to the Act, if the prosecutor refuses to seize the court the chief medical doctor shall release the patient immediately.

Also, the Public Health Act does not provide for an appeal to a court in cases of persons brought by force for an examination in the framework of a district prosecutor’s inquiry. Section 105 para. 4, read in conjunction with the Administrative Procedure Act ( Закон за административното производство ), provides for a judicial appeal, but only against orders for compulsory treatment of persons suffering from a contagious disease (Section 36 para. 2) and against “[other orders] of the public health authorities”, not of the prosecution authorities.

39 . Instruction No. 1/81 of the Ministry of Public Health

This instruction is a piece of delegated legislation. It is based on Section 2 of the supplementary provisions to the Public Health Act, which stipulates that the Minister of Public Health shall issue regulations and instructions for the implementation of the Public Health Act. The instruction is published in the State Gazette.

Section 4 para. 2 of the instruction, insofar as relevant, provides as follows:

“… the [forensic psychiatric] examination shall be effected by the health care authorities with the consent of the person concerned. Where the person concerned does not consent, the health care authorities shall promptly request a written order and assistance from a prosecutor or a court for the [person’s] examination without admission to a hospital, or for the [person’s] temporary committal to a stay in a psychiatric clinic for the purpose of effecting a forensic psychiatric examination.”

“…[ съдебно-психиатричното изследване] на лицето се извършва от здравните органи само при неговото съгласие. Когато лицето не даде съгласие, здравните органи незабавно изискват от прокурора или от съда писмено нареждане и съдействие за амбулаторно изследване или настаняване на лицето временно в психиатричен стационар за извършване на съдебно-психиатричната експертиза. ”

40 . Guidelines No. 295/85 of the Chief Public Prosecutor’s Office

These guidelines are an internal document for prosecutors in their work in cases of compulsory medical treatment. They have not been published.

Sections 16 et seq. concern the steps to be undertaken where there has been information that a person may be liable to a compulsory psychiatric or other treatment. These provisions deal with compulsory examinations and treatment of persons of unsound mind, alcoholics and drug addicts, without distinguishing between these three categories (in contrast to the provisions of the Public Health Act where separate rules exist).

According to the guidelines, following the receipt of a complaint or other information the prosecutor has to conduct an inquiry and, if there are doubtless indications that a psychiatric problem is involved, to invite the person concerned for a psychiatric examination. Section 21 para. 2 provides as follows:

“In case the person concerned does not appear [for the examination] within the time-limit indicated to him, the prosecutor shall order him to be brought by force by the police (Section 62 para. 2 of the Public Health Act).”

“ Ако лицето без основателни причини не се яви доброволно в определения му срок, прокурорът нарежда принудителното му завеждане чрез органите на МВР /чл. 62 ал. 2 ЗНЗ/.”

Section 22 of the guidelines provides as follows:

“Upon the proposal of the chief medical doctor of the psychiatric clinic the prosecutor may, on the basis of the provided medical documentation, authorise in writing the temporary internment of mentally ill persons in a specialised hospital, for a psychiatric examination (Section 70 of the Regulations to the Public Health Act). The prosecutor shall promptly thereafter submit a request for a compulsory treatment.”

“Когато главният лекар на психиатричното заведение предложи, прокурорът писмено, въз основа на предоставената му медицинска документация може да разреши временното настаняване на психично болни в специализираното болнично заведение за освидетелствуване и експертиза /чл. 70 ППЗНЗ/, и във възможно най-къс срок внася предложение за настаняване на принудително лечение.”

41 . Amendments to the Public Health Act of February 1997

These amendments, in paras. 2 - 4 of Section 61, introduced the possibility for a prosecutor, in the framework of his inquiry, to confine a person to a psychiatric hospital for up to 30 days (up to three months in exceptional cases) for a medical examination, if this person has refused to undergo such an examination voluntarily. However, no provision for a judicial review of the prosecutor’s order has been introduced.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

42 . The Commission has declared admissible the applicant’s complaints that:

- his forced stay in a psychiatric hospital was unlawful, and

- it was not possible to appeal to a court in this respect.

B. Points at issue

43 . Accordingly, the points at issue in the present case are:

- whether there has been a violation of Article 5 para. 1 of the Convention; and

- whether there has been a violation of Article 5 para. 4 of the Convention.

C. As regards Article 5 para. 1 of the Convention

44 . This provision, insofar as relevant, provides as follows:

“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 of unsound mind…;”

45 . The applicant complains that he was unlawfully detained in a psychiatric clinic pursuant to a prosecutor’s order, which has never been officially served on him. Furthermore, the order referred to secret instructions which date from the communist past.

46 . The Government submit that the provisions concerning the compulsory treatment of persons of unsound mind aim at protecting the mentally ill person himself as well as other persons who may be threatened by his behaviour. It is the duty of the prosecution authorities to discharge their obligations in this respect and seize the competent court after having verified, through a compulsory medical examination if necessary, that the person concerned is mentally ill and dangerous. The Government state that the applicant was considered mentally ill and aggressive by medical experts. As he refused the invitation to undergo an examination, it was by no means unlawful to detain him for a short period of time, provisionally, for the purpose of effecting the necessary medical checks and in order to establish whether a request for a compulsory treatment should be submitted by the prosecutor to the competent court.

47 . The Government submit that the applicant’s confinement in a psychiatric hospital was based on Section 62 para. 2 of the Public Health Act and also on Section 4 para. 2 of Instruction No. 1/81 of the Ministry of Public Health. The latter instruction is a piece of delegated legislation and has been published. The Government further clarify that guidelines no. 295/85 of the Chief Public Prosecutor’s Office, referred to in the prosecutor’s order in the applicant’s case, have no formal legal force. However, the fact that they were mentioned by the prosecutor did not render his order unlawful.

48 . The Government finally assert that the applicant’s confinement to the psychiatric clinic lasted until 15 September 1995, when he was admitted to a general hospital.

49 . The Commission observes that it has been common ground between the parties that the applicant’s confinement to a psychiatric hospital between 31 August and 15 September 1995 amounted to “deprivation of liberty” within the meaning of Article 5 para. 1 of the Convention. Noting the facts in respect of the applicant’s arrest and confinement (see paras. 24 - 29 above) and the relevant provisions of domestic law (see paras. 38 - 41 above), the Commission sees no reason to reach a different finding (cf. Eur. Court HR, Ashingdane v. the United Kingdom judgment of 28 May 1985, Series A no. 93, p. 19, paras. 41 and 42).

50 . In the absence of concrete submissions on the part of the Government capable of refuting the applicant’s statement that he was under control and was tied to his bed at night during the first several days after his transfer to a general hospital, and noting that there was no order for the termination of the applicant’s confinement, the Commission finds that the applicant’s deprivation of liberty continued for at least several days after 15 September 1995, it not being possible to establish with certainty the exact date on which it ended (see paras. 29 and 30).

51 . The Commission recalls that for a deprivation of liberty to be compatible with Article 5 para. 1 of the Convention it must fall within one of the categories set out in subparagraphs (a) to (f) of this provision, and must be “lawful” and “in accordance with a procedure prescribed by law”. The latter two requirements do not merely refer back to domestic law, but also relate to the quality of the law, requiring it to be compatible with the rule of law, a concept inherent in the Convention. Given the importance of personal liberty, it is essential that the applicable national law meet the standard of sufficient precision and accessibility to allow the citizen – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (cf., Eur. Court HR, Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 74, para. 194; Amuur v. France judgment of 25 June 1996, Reports of Judgments and Decisions 1996-III, p. 850, para. 50; Steel and Others v. the United Kingdom judgment of 23 September 1998, to be published in Reports 1998, para. 54; mutatis mutandis, Petra v. Romania judgment of the same date, to be published in Reports 1998, paras. 37 - 40).

52 . The Government, without expressly stating their view on the classification of the applicant’s detention under the subparagraphs of Article 5 para. 1 of the Convention, submit that it was necessary in view of his mental disorder.

53 . The Commission recalls that according to the Court’s established case-law, an individual cannot be considered to be of “unsound mind” and deprived of his liberty unless the following three minimum conditions are satisfied: firstly, he must reliably be shown to be of unsound mind; secondly, the mental disorder must be of a kind or degree warranting compulsory confinement; thirdly, the validity of continued confinement depends upon the persistence of such a disorder (Eur. Court HR, Winterwerp v. the Netherlands judgment of 24 October 1979, Series A no. 33; Johnson v. the United Kingdom judgment of 24 October 1997, Reports 1997-VII, p. 2409, para. 60 ).

54 . In the present case, on the basis of a complaint from a person threatened by the applicant, a report of a police officer who had heard the applicant personally, the testimony of a neighbour and letters in which the applicant had written threats and other inappropriate statements, the District Prosecutor’s Office considered that there were reasons to believe that the applicant was mentally ill and his behaviour dangerous. The applicant was then repeatedly invited to appear for an examination but refused to do so. On the basis of these facts, and with a view to establishing whether it was justified to institute proceedings for the applicant’s compulsory psychiatric treatment, the prosecutor ordered his temporary detention for a medical examination (see paras. 18 - 22). The Commission accepts that in principle such detention may fall within the scope of Article 5 para. 1(e) of the Convention if it complies with the three conditions laid down in the Court’s case-law summarised above. In view of its findings below the Commission need not examine whether these conditions were satisfied in the present case.

55 . The Commission notes that the Public Health Act, as in force at the relevant time, did not contain any provision empowering prosecutors to commit a person to a compulsory confinement in a psychiatric clinic for the purpose of effecting a psychiatric examination. The Government rely on Section 62 para. 2 of that Act, which is also referred to in Sections 21 and 22 of the internal guidelines of the Chief Public Prosecutor’s Office. However, Section 62 para. 2 of the Act concerns only alcoholics and drug addicts (see paras. 22 and 38).

56 . The Public Health Act and the Regulations to it contained at the relevant time provisions which authorised the chief medical doctor ( главен лекар ) of a hospital, or a prosecutor, to temporarily detain a patient in emergency situations (see para. 38). However, it has not been claimed that the applicant’s case involved an emergency.

57 . Instruction No. 1/81 of the Minister of Public Health could be interpreted as implying the prosecutor’s competence to order a compulsory psychiatric examination when it stipulated that a doctor needed to obtain a written order “from a prosecutor or from a court” before proceeding to a compulsory psychiatric examination and confining the patient to the clinic against his or her will. However, the object of this Instruction was apparently to provide guidance to medical personnel and not to set out rules in respect of provisional detention with a view to a psychiatric examination. In any event, the Instruction did not lay down any requirement as regards the conditions and procedure to be followed by the prosecutor in such cases and therefore lacked the requisite precision (see para. 39).

58 . It is true that the internal guidelines of the Chief Public Prosecutor’s Office provided that a prosecutor could order a compulsory psychiatric examination. However, as indicated by the Government, the guidelines were an unpublished document without formal legal force (see paras. 40 and 47).

59 . Finally, the fact that no decision terminating the applicant’s detention was issued is another indication of the ambiguous legal procedure and the lack of certainty as regards his deprivation of liberty (see para. 30).

60 . The Commission finds, therefore, that the applicant’s deprivation of liberty had no basis in domestic law, as in force at the relevant time. It was thus unlawful and not in accordance with a procedure prescribed by law.

CONCLUSION

61 . The Commission concludes, unanimously, that in the present case there has been a violation of Article 5 para. 1 of the Convention.

D. As regards Article 5 para. 4 of the Convention

62 . This provision reads as follows:

“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.”

63 . The applicant complains that he was detained by order of a prosecutor without any possibility for judicial control.

64 . The Government admit that Bulgarian law does not provide for a judicial appeal in circumstances such as the applicant’s but assert that he could seize a court by relying on the direct applicability of the Convention. Furthermore, the Government stress that the structure of the prosecution system is similar to that of the court system. In fact, the applicant appealed to the higher prosecutor and his complaint was duly examined, the prosecutor having found after careful analysis that the applicant’s committal to a compulsory stay in hospital for a preliminary medical check was lawful.

65 . The Commission recalls that the existence of a remedy must be sufficiently certain, failing which it will lack the accessibility and effectiveness required for purposes of Article 5 (Eur. Court HR, Sakik v. Turkey judgment of 26 November 1997, Reports 1997-VII, p. 2625, para. 53).

66 . In the admissibility decision in the present case (see the appendix) the Commission noted that the Government had not provided any example of a person having successfully seized a court on the strength of the Convention’s direct applicability in Bulgarian law and found that in these circumstances the theoretical possibility to do so was not an accessible and effective remedy, within the meaning of former Article 26 of the Convention (Article 35 para. 1 after the entry into force of Protocol no. 11). The Commission finds, accordingly, that the lack of precedents indicates the uncertainty in practice of the remedy whose existence is alleged by the Government (cf. the Sakik v. Turkey judgment cited above, para. 53 in fine ).

67 . Nor can the Commission accept the Government’s statement that the possibility to appeal to the prosecution authorities secured the remedy required by Article 5 para. 4 of the Convention. This provision guarantees to every arrested or detained person the right to appeal to a court.

CONCLUSION

68 . The Commission concludes, unanimously, that in the present case there has been a violation of Article 5 para. 4 of the Convention.

E. Recapitulation

69 . The Commission concludes, unanimously, that in the present case there has been a violation of Article 5 para. 1 of the Convention (para. 61).

70 . The Commission concludes, unanimously, that in the present case there has been a violation of Article 5 para. 4 of the Convention (para. 68).

M.-T. SCHOEPFER S. TRECHSEL

Secretary President

to the Commission of the Commission

[1] The term “former” refers to text of the Convention before the entry into force of Protocol No. 11 on 1 November 1998.