Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 31365/96

by D.V.

against Bulgaria

The European Commission of Human Rights (Second Chamber) sitting

in private on 16 April 1998, the following members being present:

MM J.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

A. GÖZÜBÜYÜK

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

MM F. MARTINEZ

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

E. BIELIUNAS

E.A. ALKEMA

A. ARABADJIEV

Ms M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 10 January 1996

by D.V. against Bulgaria and registered on 6 May 1996 under file

No. 31365/96;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

16 September 1997 and the observations in reply submitted by the

applicant on 20 January 1998;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Bulgarian national born in 1930 and residing

in Sofia. He is an economist, currently retired.

The facts of the case as submitted by the parties may be

summarised as follows.

A. Particular circumstances of the case

In October and November 1993 a Mr Z. lodged with the District

Prosecutor's Office (Raionna prokuratura) in Sofia a complaint against

the applicant, stating that the latter was mentally ill and was

dangerous as he had been threatening him. 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 below) concluded that he had a paranoic

psychosis, that he was aggressive and that he posed a danger 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.

Following the receipt of Mr Z.'s complaint, in the end of 1993,

the District Prosecutor's Office opened an inquiry to establish whether

it was necessary to request, from the competent court, the applicant's

compulsory psychiatric treatment under Section 36 of the Public Health

Act (Zakon za narodnoto zdrave).

In the course of the inquiry the applicant was invited, on

9 May and again on 5 September 1994, to appear for a psychiatric

examination, but he refused and allegedly responded with threatening

letters.

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. 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 (Ukazanie

na Glavna prokuratura), and Section 4 para. 2 of Instruction No. 1/81

of the Ministry of Public Health (Instruktzia na Ministerstvotot na

narodnoto zdrave).

On 30 January 1995 the prosector'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.

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.

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.

On 4 September 1995 the applicant was diagnosed as suffering from

pneumonia. A treatment with antibiotics was applied.

On 5 September 1995 the applicant's wife submitted a complaint

to the Sofia City Prosecutor's Office (Gradska prokuratura). 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.

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.

It appears that the prosecutor did not make any formal order

terminating the compulsory stay of the applicant at the psychiatric

clinic.

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.

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.

The applicant submits that during the first several days after

his transfer to the general hospital he was still under the control of

a psychiatrist and was tied to his bed during the night.

In November 1995 and later again the applicant complained to the

prosecution authorities stating inter alia that the district prosecutor

had acted unlawfully. The complaints were examined by the Sofia City

Prosecutor's Office and then by the Chief Public Prosecutor's Office

which replied by letters of 1 February and 12 June 1996 respectively

that the district prosecutor had complied with the applicable

procedure.

The applicant also sent numerous letters to the Minister of

Health, to the courts and to other institutions complaining that he had

been ill-treated and that the doctors and the prosecutors wanted to

kill him. He received answers from the public health authorities

reciting the sequence of events and assuring him that his suspicions

were unfounded.

In the continuing inquiry of the district prosecutor three

medical experts, who had examined the applicant, 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.

In January 1996 the district prosecutor submitted a request to

the Sofia District Court (Raionen sad) 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.

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 first wrote to the Commission on 10 January 1996

complaining about the allegedly unlawful detention and the treatment

he received.

B. Relevant domestic law

a. 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, 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 providing that a prosecutor could order

a person to be forcefully brought 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 did not provide expressly for an

appeal to a court in cases of persons brought forcefully for an

examination in the framework of a district prosecutor's inquiry.

Section 105 para. 4, read in conjunction with the Administrative

Procedure Act (Zakon za administrativnoto proizvodstvo), provided 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.

b. 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 of the instruction, insofar as relevant, provides as

follows:

"(1) Forensic psychiatric examinations shall be effected

... [with or without admission to a general or specialised

hospital].

(2) In the cases under the preceding paragraph the

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."

c. 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 with 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)."

Section 22 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."

d. Amendments to the Public Health Act of February 1997

According to paras. 2 - 4 of the amended Section 61, the

prosecutor, in the framework of his inquiry, can order a compulsory

stay in a psychiatric hospital of up to 30 days for a medical

examination, if the person concerned has refused to undergo such an

examination voluntarily. As an exception, the same prosecutor can

prolong the stay in hospital up to three months.

The new paragraph 7 of Section 36 stipulates:

"(7) The detained mentally ill person shall be provided

with an opportunity to challenge the lawfulness of the court

decision [sic]. The court shall decide promptly."

It appears unclear from this provision whether a prosecutor's

order under the amended Section 61 para. 2 could be subject to a

judicial review.

COMPLAINTS

The applicant complains that his forced stay in hospital was in

breach of Article 5 of the Convention. Thus, there was no court

decision and he could not seize the court. Also, the prosecutor acted

unlawfully and the applicable law created possibilities for abuse and

arbitrariness in respect of detention of allegedly mentally ill

persons.

The applicant asserts also that the doctors in fact made medical

experiments with him, gave him dangerous drugs, tortured him and

wanted to kill him. Furthermore, the doctors forced his wife to give

false information about him. Also, the unlawful acts against him were

related to the fact that he had asked the President of Bulgaria to

recognise the Macedonian nation. The applicant invokes Articles 2, 3,

6, 8, 9 and 10 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 10 January 1996 and registered

on 6 May 1996.

On 21 May 1997 the Commission decided to communicate the

application to the respondent Government.

The Government's written observations were submitted on

16 September 1997, after an extension of the time-limit fixed for that

purpose. The applicant replied on 20 January 1998, also after an

extension of the time-limit.

THE LAW

1. The applicant complains under Article 5 (Art. 5) of the

Convention that his compulsory stay in a psychiatric hospital was

unlawful and that he could not challenge its lawfulness before a court.

Article 5 (Art. 5) of the Convention insofar as relevant provides

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:

...

b. the lawful arrest or detention of a person for non-

compliance with the lawful order of a court or in order to secure

the fulfilment of any obligation prescribed by law;

...

e. the lawful detention ... of persons of unsound mind

...

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.

..."

a) The Government argue that the applicant has not exhausted all

domestic remedies as required by Article 26 (Art. 26) of the

Convention. The Government admit that Bulgarian law does not contain

a provision expressly providing for a possibility to appeal against an

order of a prosecutor committing a person to a compulsory psychiatric

examination in the framework of the prosecutor's preliminary

consideration whether to request that person's psychiatric internment.

However, the Government state that pursuant to the Constitution the

Convention is directly applicable in Bulgaria and that therefore the

applicant could have appealed to a court invoking the Convention.

The Government further state that the six months' time-limit

under Article 26 (Art. 26) of the Convention ran from the applicant's

discharge from the psychiatric clinic on 15 September 1995 and ended

on 16 March 1996. However, the application was registered by the

Commission on 6 May 1996, after the expiry of the six months' time-

limit.

The Government finally assert that the application constitutes

an abuse of the right to petition because it is "obviously ungrounded"

and misleads the Commission in respect of the question of the

exhaustion of all domestic remedies.

The applicant has not commented on the Government's preliminary

objections. He asks the Commission to examine his case and to find

that his rights have been violated.

The Commission recalls that under Article 26 (Art. 26) of the

Convention normal recourse should be had by an applicant to remedies

which are available and sufficient to afford redress in respect of the

breaches alleged. The existence of the remedies in question must be

sufficiently certain not only in theory but in practice, failing which

they will lack the requisite accessibility and effectiveness. In

respect of the burden of proof in these matters, it is incumbent on the

Government claiming non-exhaustion to satisfy the Convention organs

that the remedy was an effective one (cf.,inter alia, Eur. Court HR,

Akdivar v. Turkey judgment of 16 September 1996, Reports of Judgments

and Decisions 1996-IV, No. 15, pp. 1210, 1211, paras. 66 and 68).

The Commission notes that the Government have not provided any

example of a person having successfully seized a court by relying on

the direct applicability of the Convention. The Commission does not

consider, therefore, that the theoretical possibility to do so was an

accessible and effective remedy. It follows that the applicant was not

required to embark on such an attempt in order to comply with the

requirements of Article 26 (Art. 26) of the Convention. Furthermore,

the applicant complained to the higher prosecution authorities.

As regards the six months' time-limit the Commission recalls the

Court's case-law confirming its practice according to which an

application is lodged on the date of the applicant's first letter,

provided the applicant has sufficiently indicated the purpose of the

application. Registration - which is effected when the Secretary to

the Commission receives the full case file relating to the application

- has only one practical consequence: it determines the order in which

applications will be considered by the Commission (Eur. Court HR,

Papageorgiou v. Greece judgment of 22 October 1997, Reports-VI no. 54,

para. 32).

In the present case the Commission need not decide whether the

six months' time-limit expired on 16 March 1996, as asserted by the

Government, or on a later date. The Commission finds that in any event

the applicant has complied with the time-limit under Article 26

(Art. 26) of the Convention by sending his first letter, in which he

raised in substance his complaints, on 10 January 1996.

The Commission further finds that the Government's objection that

there has been an abuse of the right to petition within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention is unsubstantiated,

there having been no indication that the application was knowingly

based on untrue facts (cf. Akdivar v. Turkey judgment, loc. cit.,

paras. 53 and 54; No. 28626/95, Dec. 3.7.97)

b) As regards the lawfulness of the measure against the applicant

the Government submit that it 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, have no

formal legal force. However, the fact that they were mentioned by the

prosecutor did not render his order unlawful.

The Government further 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. In the

present case the applicant was found by the medical experts to have

been mentally ill and dangerous. As the applicant 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.

As regards the possibility to appeal to a court against the short

detention, the Government repeat their submission that although

Bulgarian law does not contain a provision expressly providing for a

judicial appeal in circumstances such as the applicant's it was

possible to 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.

The applicant submits that he was unlawfully locked 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.

The Commission considers, in the light of the parties'

submissions, that this part of the application raises complex issues

of law and of fact under the Convention, the determination of which

should depend on an examination of the merits. The Commission

concludes, therefore. that this part of the application is not

manifestly ill-founded, within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention. No other grounds for declaring it

inadmissible have been established.

2. The applicant also complains, invoking Articles 2, 3, 6, 8, 9 and

10 (Art. 2, 3, 6, 8, 9, 10) of the Convention, that the doctors carried

out medical experiments upon him, gave him dangerous drugs, tortured

him and wanted to kill him.

The Commission, having examined the applicant's above complaints

in the light of all the material in its possession, and in so far as

the matters complained of are within its competence, finds that they

do not disclose any appearance of a violation of the rights and

freedoms set out in the Convention.

For these reasons, the Commission, unanimously,

DECLARES ADMISSIBLE, without prejudging the merits, the

applicant's complaint that his forced stay in a psychiatric

hospital was unlawful and that it was not possible to appeal to

a court in this respect;

DECLARES INADMISSIBLE the remainder of the application.

M.-T. SCHOEPFER J.-C. GEUS

Secretary President

to the Second Chamber of the Second Chamber

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D.V. v. BULGARIA

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