FIRST SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 40061/98 by M.S. against Bulgaria

The European Court of Human Rights (First Section), sitting on 31 January 2002 as a Chamber composed of

Mr C.L. Rozakis , President , Mr G. Bonello , Mr P. Lorenzen , Mrs N. Vajić , Mr E. Levits , Mrs S. Botoucharova , Mr V. Zagrebelsky , judges , and Mr E. Fribergh , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 2 September 1997 and registered on 3 March 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the Court’s (Fourth Section) partial decision of 17 May 2001,

Having regard to the Court’s decision of 1 November 2001 to change the composition of its Sections (Rule 25 § 1), the present case having been assigned to the newly composed First Section (Rule 52 § 1),

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms M.S. , is a Bulgarian national, born in 1953 and living in Gabrovo , Bulgaria. The respondent Government are represented by their agent, Mrs G. Samaras, Ministry of Justice.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 28 June 1996 the applicant was arrested upon the order of a prosecutor and brought to a psychiatric clinic for an examination. She was detained for five days and then released.

She was again detained for a psychiatric examination on 28 August 1996.

On 21 March 1997 the applicant was arrested and detained for a third time. She was brought to a psychiatric clinic where she was detained allegedly incommunicado until 4 April 1997.

Upon the applicant’s complaint, she was informed by letter of 28 March 1997 of the district health authorities that her detention had been ordered by a prosecutor in accordance with the law.

The applicant allegedly submitted another complaint to the Ministry of Health on 25 April 1997 but never received an answer.

B. Relevant domestic law and practice

A summary of the relevant domestic law and practice in respect of detention with the purpose to conduct psychiatric examinations is contained in the Court’s judgment in the case of Varbanov v. Bulgaria (no. 31165/95, 5 October 2000, unreported). Paragraphs 28-32 of that judgment read as follows:

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

Such judicial proceedings are instituted by a district prosecutor who is under the obligation to undertake a prior inquiry, including a psychiatric examination, in order to assess the need for instituting proceedings. The prosecutor therefore would normally invite the person concerned to undergo an examination in the framework of his inquiry.

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 such a psychiatric examination. Under Section 62 § 2 a prosecutor could issue an order for a compulsory examination, but only in respect of alcoholics or drug addicts.

Certain powers were given to the prosecutor in case the person’s state of health required emergency measures. In this situation the chief medical doctor of a hospital could order a person’s temporary compulsory treatment. The doctor had to inform immediately the competent prosecutor, who had to institute proceedings before the competent court (Section 36 § 5 of the Act and Section 70 of the Regulations to the Act). According to Section 70 § 2 of the Regulations to the Act, if the prosecutor refused to institute judicial proceedings, the chief medical doctor had to release the patient immediately.

The relevant law did not provide for an appeal to a court in cases of persons detained for an examination in the framework of a district prosecutor’s inquiry. Section 105 § 4 of the Public Health Act, read in conjunction with the Administrative Procedure Act, provided for a judicial appeal, but only against orders for compulsory treatment of persons suffering from a contagious disease (Section 36 § 2) and against “[other orders] of the public health authorities”, not of the prosecution authorities.

Instruction No. 1/81 of the Ministry of Public Health 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 § 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.”

Guidelines No. 295/85 of the Chief Public Prosecutor’s Office 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 taken where there has been information that a person may be liable to 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 clear indications that a psychiatric problem is involved, to invite the person concerned for a psychiatric examination. Section 21 § 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 § 2 of the Public Health Act).”

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.”

Certain amendments to the Public Health Act were introduced in February 1997. These amendments, in paragraphs 2 - 4 of Section 61, provide that a prosecutor, in the framework of his inquiry, can order confinement to a psychiatric hospital for up to 30 days (up to three months in exceptional cases) for the medical examination of a person who has refused to undergo such an examination voluntarily. However, no provision allowing judicial review of the prosecutor’s order was introduced.

The Code of Criminal Procedure, by virtue of an amendment in force since 1 January 2000, introduced a judicial procedure for confinement in a psychiatric clinic of a person against whom criminal proceedings have been brought. This procedure, however, does not concern persons who have been confined in a clinic for a psychiatric examination pursuant to a prosecutor’s order under Section 61 of the Public Health Act.”

COMPLAINT

The applicant complains that her detention in a psychiatric clinic was unlawful and arbitrary.

THE LAW

The applicant complains that her detention in a psychiatric clinic was unlawful and arbitrary. The complaint falls to be examined under Article 5 of the Convention.

The Court notes that the time-limit for the submission of the Government’s observations was extended upon their request and expired on 3 November 2001. However, the Government have not submitted any observations.

The Court considers, in the light of the material in the case, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that the remainder of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.

For these reasons, the Court unanimously

Declares the remainder of the application admissible.

Erik Fribergh Christos Rozakis Registrar President