FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

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

The European Court of Human Rights (Fourth Section), sitting on 17 May 2001 as a Chamber composed of

Mr G. Ress , President , Mr A. Pastor Ridruejo , Mr L. Caflisch , Mr J. Makarczyk , Mr V. Butkevych , Mr J. Hedigan , Mrs S. Botoucharova , judges , and Mr V. Berger , 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 deliberated, decides as follows:

THE FACTS

The applicant, Ms M.S. , is a Bulgarian national, born in 1953 and living in Gabrovo , Bulgaria.

A. The circumstances of the case

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

1. The eviction of the applicant from her apartment

In 1991 the applicant bought an apartment. She borrowed the amount necessary to pay the price from a State-owned bank under a 30-years repayment scheme.

As the applicant was unable to keep up with the payments due under the loan agreement, in 1993 the bank brought civil proceedings, obtained a writ of execution and then sold the apartment at an auction. On 15 November 1995 an enforcement judge evicted the applicant in her presence. The new owner obtained possession of the apartment.

Upon the applicant’s appeal on 11 March 1997 the Supreme Court of Cassation found that the eviction had been procedurally flawed as the applicant’s refusal to receive the summons informing her of the date of the eviction had not been certified by a witness, as required by law.

The applicant then insisted that the enforcement judge should re-instate her into possession of the apartment. That was refused by the enforcement judge in June 1997 as the applicant had no legal title to the apartment which was already in the possession of its owner, a third party in good faith. The applicant has not appealed to the District Court as she could have under the Code of Civil Procedure.

2. Alleged violations of the rights of the applicant’s son

On several occasions between 1993 and 1996 the applicant’s son, born in 1976, was arrested and detained on criminal charges. He was convicted and sentenced to terms of imprisonment. In 1995 he was allegedly ill-treated by police officers and obtained a medical certificate demonstrating that he had several bruises.

The applicant has not substantiated further detail and has not stated whether or not her son submitted criminal complaints against the police officers or appeals to the courts in respect of the alleged unlawfulness of his detention.

3. The applicant’s detention in a psychiatric clinic

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, ECHR 2000-Vol. X). 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.”

COMPLAINTS

1. The applicant complains that her apartment was unlawfully taken away from her and that she is unable to recover it despite the judgment of 11 March 1997.

2. The applicant also complains that her son was unlawfully arrested and ill-treated by the police.

3. She further complains that her detention in a psychiatric clinic was unlawful and arbitrary. In particular, it was intended to impede her efforts to recover her apartment. The applicant also considers that the police and the doctors wanted to kill her.

THE LAW

1. The applicant complains that her apartment was unlawfully taken from her and that she is unable to recover it despite the judgment of 11 March 1997.

Insofar as the applicant may be understood as complaining under Article 1 of Protocol No. 1 to the Convention that the substantive proceedings which resulted in the sale of the apartment at an auction constituted an unlawful deprivation of property, the Court notes that the applicant has failed to substantiate any detail in respect of these proceedings. It has not been shown that the applicant has exhausted all domestic remedies within the meaning of Article 35 § 1 of the Convention and that the complaint is submitted within the six months’ time-limit under that provision. In any event, there is nothing in the material before the Court which would enable it to consider that the judicial decisions were arbitrary or amounted otherwise to an unlawful deprivation of property.

As regards the applicant’s complaint of the unlawful eviction from her apartment the Court notes that she has not appealed against the refusal of the enforcement judge of June 1997 to reinstate her in possession. In any event, examining that complaint under Article 6 of the Convention (enforcement of a final judgment ) and under Article 1 of Protocol no. 1, the Court observes that in 1997 the applicant had no title in the apartment in issue and could not, therefore, claim the possession thereof. In so far as the eviction in November 1995 could be seen as an unlawful interference with the applicant’s rights under Article 1 of Protocol No. 1, the Court notes that the Supreme Court of Cassation in its judgment of 11 March 1997 acknowledged that it had been procedurally flawed. Having obtained such acknowledgement, the applicant could have brought a civil action for damages under the Law on State Responsibility for Damage. She has not done so.

In these circumstances the Court finds that the complaints concerning the applicant’s apartment, insofar as they have been substantiated and are within its competence, do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

It follows that this part of the application must be rejected, in accordance with Article 35 § 4 of the Convention.

2. The applicant complains that her son was arrested and detained unlawfully and that he was ill-treated by the police.

The Court observes that the applicant has not stated that she represents her son before the Court. In any event, she has not demonstrated that appeals to the prosecution authorities and to the courts have been submitted and that all domestic remedies have been exhausted. Furthermore, the complaints are unsubstantiated.

Therefore, on the basis of all material before it, the Court finds that the complaints concerning the applicant’s son, insofar as they are within its competence, do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Those complaints must be rejected, in accordance with Article 35 § 4 of the Convention.

3. The applicant complains that her detention in a psychiatric clinic was unlawful and arbitrary. She further considers that the police and doctors wanted to kill her.

In so far as the applicant submits that the police and doctors wanted to kill her, in the light of all material before it, the Court finds that that complaint does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols and must be rejected, in accordance with Article 35 § 4 of the Convention.

As regards the complaint that the applicant’s detention in a psychiatric clinic was unlawful and arbitrary the Court considers that it cannot, on the basis of the case-file, determine its admissibility and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaint that her detention in a psychiatric clinic was unlawful and arbitrary;

Declares inadmissible the remainder of the application.

Vincent Berger Georg Ress Registrar President