FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39269/98 by Ivan KEPENEROV against Bulgaria

The European Court of Human Rights (Fourth Section) , sitting on 1 February 2001 as a Chamber composed of

Mr G. Ress , President , Mr I. Cabral Barreto , Mr V. Butkevych , Mrs N. Vajić , Mr J. Hedigan , Mr M. Pellonpää , 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 12 October 1997 and registered on 9 January 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 is a Bulgarian national, born in 1939 and living in Sofia.

A. The circumstances of the case

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

On an unspecified date a prosecutor at the District Prosecutor’s Office in Sofia ordered the applicant’s temporary confinement to a psychiatric clinic for examinations with a view to establishing whether it was necessary to institute proceedings before the competent court for the applicant’s commitment to compulsory psychiatric treatment.

On 22 February 1996 the applicant was arrested and brought to the Sofia psychiatric clinic. On an unspecified date he was transferred to the psychiatric clinic in Kurilo . As far as it can be deduced from the applicant’s submissions and the documents filed by him, he was released either on 24 March or on 17 April 1996.

On an unspecified later date the prosecution authorities submitted to the Sofia District Court a request for the applicant’s compulsory psychiatric treatment under section 36 of the Public Health Act. On 8 April 1997 the proceedings were terminated.

The applicant submits that on the second day of his detention he prepared an appeal against his detention to the Sofia District Prosecutor’s Office but that the document was destroyed and never sent. He also submits that during the detention he repeatedly asked for a lawyer, but his requests were not heard.

On an unspecified date in 1996 the applicant complained to the Sofia City Police Department against his arrest and detention and the behaviour of the police officers involved. On 11 November 1996, in the framework of the proceedings before the Sofia District Court - a party to which were the prosecution authorities -, the applicant again complained about the events of February and March 1996 and enclosed a copy of his complaint to the police.

On 1 September 1997 the applicant submitted complaints to the Chief Public Prosecutor’s Office and to the Minister of the Interior describing the events surrounding his arrest and detention in the psychiatric clinics and stating that the authorities had acted unlawfully. By letter sent on 16 September 1997 the Third District Police Department in Sofia, to which the Ministry of the Interior had transmitted the applicant’s complaint, replied that the police officer involved had acted in accordance with a prosecutor’s order and therefore lawfully. In response to the applicant’s request to meet the director of the district police and obtain other information the same police department, in a letter of 20 October 1997, stated that the police had acted lawfully, under a prosecutor’s order. The applicant has not substantiated whether he had received an answer to his complaint addressed to the prosecution authorities.

B. Relevant domestic law

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 does 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.

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

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

He also complains that he was ill-treated by the doctors and that the proceedings before the Sofia District Court concerning his commitment to compulsory psychiatric treatment were unfair. He also complains that in 1983 and 1985 he was the victim of repression by the communist regime.

THE LAW

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

The Court considers that it cannot, on the basis of the file, determine the admissibility of the above complaint and that it is therefore necessary, in accordance with Rule 54 § 3(b) of the Rules of Court, to give notice thereof to the respondent Government.

2. As regards the applicant’s complaint that he was the victim of repression by the communist regime in 1983 and 1985, the Court recalls that the Convention only governs, in accordance with the general principles of international law, facts, acts or decisions posterior to its entry into force in respect of the Contracting party concerned. The Convention has entered into force in respect of Bulgaria on 7 September 1992. It follows that this complaint falls outside the competence rationae temporis of the Court.

As regards the remainder of the application, in the light of all the material in its possession, and insofar as the complaints fall within its competence and have been substantiated, the Court finds that they do not disclose any appearance of a violation of the Convention.

For these reasons, the Court unanimously

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

Declares inadmissible the remainder of the application.

Vincent Berger Georg Ress Registrar President