FOURTH SECTION

CASE OF KANEVA v. BULGARIA

( Application no. 33606/05 )

JUDGMENT

STRASBOURG

13 November 2012

This judgment is final but it may be subject to editorial revision.

In the case of Kaneva v. Bulgaria ,

The European Court of Human Rights ( Fourth Section ), sitting as a committee composed of:

George Nicolaou , President, Ledi Bianku , Vincent A. D e Gaetano , judges, and Fatoş Aracı , Deputy Section Registrar ,

Having deliberated in private on 6 November 2012 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 33606/05 ) against the Republic of Bulgaria lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Ms Velichka Zheleva Kaneva (“the applicant”), on 9 September 2005 .

2 . The applicant was represented by Ms S. Razboynikova , a lawyer practising in Sofia . The Bulgarian Government (“the Government”) were represented by their Agent, Mrs N. Nikolova , of the Ministry of Justice .

3 . On 2 November 2010 the President of the Fifth Section decided to give notice of the application to the Government.

4 . The application was later transferred to the Fourth Section of the Court, following the re ‑ composition of the Court ’ s sections on 1 February 2011.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5 . The applicant was born in 1951 and lives in Tryavna .

A . Background

6 . In 1999 the relations between the ap plicant and her partner N.B., a local police officer, deteriorated and they separated.

7 . On an unspecified date in 2000 the applicant filed a request to the district prosecutor to open criminal proceedings against N.B. for p hysical and psychological abuse. That was refused by a decision of 4 March 2002 .

B . The applicant ’ s first placement in a psychiatric hospital

8 . On 27 July 2000 G.I. and D.M., who according to the applicant were friends of N.B., filed complaints again st the applicant to the district prosecutor, stating that she was harassing t hem as she was mentally i ll. The prosecutor sent the complaints to the police to gather information concerni ng the applicant ’ s mental state . He instructed them, in particular, to interview friends and family of the applicant.

9 . On 8 August 2000 the police reported to the prosecutor that the applicant should be subjected to compulsory psychiatric treatment. On 28 September 2000 th e district prosecutor ordered the applicant ’ s psychiatric examination with a view to establishing whether it was necessary to initiate judicial proceedings for her compulsory psychiatric treatment . The applicant maintains that she never received a summons to voluntarily appear before the authorities in order to undergo any such examination .

10 . In the morning of 4 October 2000 a police officer visited the applicant in her house and requested her appearance at the police station in relation to her complaint against N.B. The applicant contends that when she arrived at the police station, she was forced into an ambulance . There she was ser ved with a prosecutor ’ s order for her detention in a psychiatric hospital in order to undergo a psychiatric examination.

11 . On the same day t he applicant was taken to the Sevlievo State Psychiatric Hospital where she was kept for a month for a psychiatric examination. The doctors noted in their opinion that the applicant was suffering from certain, apparently not very serious, disorders. They did not express an opinion on the need for the applicant ’ s confinement. The applicant was discharged from the hospital on 3 November 2000.

12 . On 13 November 2000 the prosecutor decided not to request the applicant ’ s committal for compulsory psychiatric treatment, noting that the applicant did not suffer from a mental disease.

13 . On an unspecified date in 2001 the applicant filed a complaint to the Supreme Cassation Prosecutor ’ s Office, claiming that her detention in a psychiatric hospital constituted an abuse of office on the part of the district prosecutor. The complaint was referred to the regional prosecutor who dismissed it on 22 April 2002. He stated, in particular, that the actions of the district prosecutor in respect of the applicant ’ s detention had been lawful.

C. The applicant ’ s second placement in a psychiatric hospital

14 . On 29 August 2001 G.I. filed a fresh complaint to the district prosecutor, claiming again harassment on the part of the applicant. Following another police inquiry, on 20 September 2001 the district prosecutor ordered the applicant ’ s psychiatric examination.

15 . In a letter of 26 September 2001 the director of the Sevlievo State Psychiatric Hospital required the applicant ’ s appearance in order to undergo a psychiatric examination. The applicant did not respond to the letter.

16 . On 23 January 2002 the applicant appeared before the local police station in order to obtain her new identification document when she was detained and sent to the Sevlievo State Psychiatric Hospital . The applicant was kept there for a month for another examination. The doctors noted the same disorders as in their previous opinion. They did not express an opinion on the need for the applicant ’ s confinement. The applicant was discharged from the hospital on 22 February 2002.

17 . In an order of 25 February 2002 the district prosecutor decided not to proceed with the matter as the applicant did not suffer from a mental disease .

18 . Upon the applicant ’ s initiative, on 6 March 2002 experts from the Forensic Psychiatry and Psychology Clinic in Sofia issued a report concerning her mental state. They concluded that the applicant did not suffer from a mental disease. The experts further noted that her detention in a psychiatric hospital had considerably traumatis ed her.

D. The proceedings against the police and the Prosecutor ’ s Office

19 . Relying on the Convention, the Bulgarian Constitution, section 1 of the 1988 State Responsibility for Da mage Caused to Citizens Act (see Relevant domestic law, below) and the Court ’ s judgments in the cases of Varbanov v. Bulgaria (no. 31365/96, ECHR 2000 ‑ X ) and Kepenerov v. Bulgaria (no. 39269/98, 31 July 2003 ) , o n 7 May 2003 the applicant lodged claims for damages with the Dryanovo District Court against the police and the Prosecutor ’ s Office. The applicant claimed , in particular, that her first detention had been in breach of the relevant procedure as she had never been officially requested to appear before the authorities (see paragraph 9 above). She further maintained, referring to the Court ’ s findings in the abovementioned judgments, that both detentions had been unlawful within the meaning of Article 5 § 1 of the Convention, which had a priority over the domestic legislation in case of discrepancy with its provisions , and that she had not had access to a court. She also argued that the actions of the police and the prosecutor had interfered with her right to a good reputation in violation with the Bulgarian Constitution and Article 8 of the Convention.

20 . In a judgment of 13 February 2004 the District Court allowed the claims. The court observed that when detaining the applicant the police had acted without a written order and thus in breach of section 1 of the 1988 Act. The court also discussed the impossibility for the applicant to have her detention be examined by a court. The court further held that by ordering the applicant ’ s detentions the prosecution authorities had acted in violation of Article 5 of the Convention. In view of that the court awarded compensation for the sustained damage.

21 . The respondents appealed. In a final judgment of 15 March 2005 the Gabrovo Regional Court quashed the lower court ’ s ruling and d ismissed the applicant ’ s claims . As regards the claim against the police, the court stated that the police had acted lawfully and in execution of the prosecutor ’ s order s . As regards the actions of the Prosecutor ’ s Office, the court found that they had been lawful. The court further acknowledged that the national legislation was deficient in that it did not provide for judicial control over the prosecutor ’ s order for forced psychiatric examination. However, any claims for compensation in this regard should have been brought against the State and not the Prosecutor ’ s Office.

II. RELEVANT DOMESTIC LAW

22 . The relevant domest ic law regarding placement in a psychiatric hospital by virtue of a prosecutor ’ s order, as in force at the relevant time and following the legislative reform of 1 January 2005, was summaris ed in the judgment in the case of Kayadjieva v. Bulgaria (no. 56272/00, §§ 17-19, 22, 23, 28 September 2006) .

23 . Section 1 ( 1) of the State Responsibility for Damage Caused to Citizens Act 1988 ( Закон за отговорността на държавата за вреди, причинени на граждани ) , in July 2006 renamed the State and Municipalities Responsibility for Damage Act ( Закон за отговорността на държавата и общините за вреди – “the 1988 Act”) , as in force at the material time, provided that the State was liable for damage suffered by private individuals as a result of unlawful decisions, actions or omissions by state officials, committed in the course of or in connection with the performance of administrative action. Section 1( 2) provided that compensation for damage resulting from unlawful decisions might be claimed after those decisions have been quashed in prior proceedings. The court which examined the claim for damages would, however, set aside decisions which had been null and void ab initio or any unlawful actions or omissions of the authorities.

24 . Section 2 (1) (1) provides that the State is liable for damage caused to individuals by the investigation or the prosecution authorities or the courts through unlawful detention, provided that such detention has been set aside for lack of legal grounds.

THE LAW

I. ALLEGED VIOLATION S OF ARTICLE 5 OF THE CONVENTION

25 . The applicant complained , relying on Article 5 §§ 1, 4 and 5 and Articles 8 and 13 of the Convention about her confinement on two occasions in a psychiatric hospital and the alleged lack of remedies in this respect.

26 . The Court considers that these complaints fall to be examined under Article 5 §§ 1, 4 and 5 of the Convention, which , in so far as relevant, reads 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:

...

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

...

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.

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

A. Admissibility

27 . The Government maintained that the complaints were inadmissible as the applicant had failed to observe the six-month time limit. They stated, in particular, that the claim under the 1988 Act was not capable to bring her redress and to remedy her grievances and that, therefore, the applicant should not have made recourse to it.

28 . The applicant did not comment.

29 . The Court reiterates that in accordance with Article 35 § 1 of the Convention it may only deal with a matter within a period of six months of the final decision in the process of e xhaustion of domestic remedies. Where it is clear from the outset that no effective remedy was available to the applicant, the period runs from the date of the acts or measu res complained of. Article 35 § 1 cannot be interpreted, however, in a manner which would require an applicant to bring a complaint before the Court before his position in connection with the matter has been finally determined at the domestic level (see Pavlenko v. Russia , no. 42371/02 , § 70 , 1 April 2010 ).

30 . The Court observes that the application was introduced on 9 September 2005 , several years after the applicant ’ s release. However, the introduction date was less than six months after the date on which the proceedings under the 1988 Act were completed (see paragraph 21 above).

31 . In the majority of cases against Bulgaria treating placement in a psychiatric establishment on the strength of a prosecutor ’ s order, the question whether the six-month time limit was observed did not pose any problem as the applicants had submitted their application either within six months of their release (see D.V. v. Bulgaria , no. 31365/96 , Commission decision of 16 April 1998; and Kayadjieva v. Bulgaria , no. 56272/00, § 28 , 28 September 2006 ) or of proceedings on appeal before the higher police authority (see Kepenerov v. Bulgaria ( dec .), no. 39269/98 , 12 September 2002) . In the absence of a Government ’ s objection in this respect, the Court did not have the opportunity to examine whether a claim under the 1988 Act could have remedied the raised grievances. It should be noted, however, that in the very similar case of Stoychev v. Bulgaria ([Committee], no. 29381/04 , 30 November 2010) the applicant had availed himself of the possibility to bring proceedings under the 1988 Act and the Court calculate d the six ‑ month period as starting from the date of the final decision rendered in those proceedings.

32 . In the Court ’ s view in the case at hand it need not examine in abstract whether the 1988 Act could be regarded as a remedy to be exhausted for the alleged violations of Article 5. The salient issue is whether in the particular circumstances it was reasonable for the applicant to suggest that the domestic court would review the legality of her detention and award compensation for any damage sustained. In respect of that it should be noted that when in 2003 the applicant brought an action against the police and the Prosecutor ’ s Office she relied, inter alia , on section 1 of the 1988 Act, claiming breaches in the domestic procedure and thus unlawfulness of the actions of the police. She also relied on Article 5 of the Convention and on several judgments against Bulgaria (see paragraph 19 above). In those judgments the Court, after examining similar complaints, found that the relevant domestic legislation was falling foul of the requirements of the Convention and thus detention ordered on the strength of it was unlawful for the purposes of Article 5.

33 . The Court observes that the domestic courts dealing with the claim under the 1988 Act examined the facts and dealt with the merits of the applicant ’ s complaints. It is noteworthy that the first-instance court allowed the claim (see paragraph 20 above) .

34 . Therefore and in the light of the above considerations the said proceedings cannot be regarded as inap propriate or misconceived (see, conversely, Fernie v. the United Kingdom ( dec .), no. 14881/04, 5 January 2006).

35 . In these circumstances the judgment in the 1988 Act proceedings was the final decision within the meaning of Article 35 § 1 of the Convention. Therefore, noting that the present application was lodged less than six months after the end of those proceedings, the Court finds that the six-month time-limit was observed.

36 . The Government ’ s objection is therefore dismissed.

37 . The Court further notes that these complaints are not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Conv ention. It also notes that they are not inadm issible on any other grounds. They must therefore be declared admissible.

B. Merits

38 . The Government contended that with the adoption of the new Health Act in 2005 the Bulgarian legislation provided sufficient safeguards for protection against the alleged violations.

39 . The applicant maintained her complaints.

1. Article 5 § 1

40 . The Court observes that the applicant was placed in a psychiatric hospital in execution of a prosecutor ’ s order and against her will on two occasions: from 4 October to 3 November 2000 and from 23 January to 22 February 2002. It is not disputed between the parties that the applicant ’ s compulsory confinement in a psychiatric hospital constituted “deprivation of liberty” within the meaning of Article 5 § 1 of the Convention.

41 . The Court has already found that Bulgarian law governing detention ordered by a prosecutor for the purpose of a psychiatric examination, as in force at the relevant time and until the legislative reform of 1 January 2005, was deficient notably as it did not require seeking the opinion of a medical expert (see Varbanov , cited above, §§ 50-53; Kayadjieva , cited above , §§ 33-41; Krushev v. Bulgaria , no. 66535/01, §§ 41 and 44 , 3 July 2008 ; Stoychev , cited above , §§ 27-28).

42 . The Court sees no reason to distinguish from this position in the present case. On two occasions the applicant was detained in a psychiatric establishment on the strength of prosecutor ’ s orders without a prior medical opinion and in accordance with deficient legal provisions. It also appears that a prior appraisal by a psychiatrist was possible. This is even more so, seeing that there was no indication or claim that the case involved any emergency.

43 . In these circumstances, the Court finds that the applicant ’ s detention in the period from 4 October to 3 November 2000 and from 23 January to 2 2 February 2002 was not “the lawful detention ...of [a person] of unsound mind” within the meaning of Article 5 § 1 (e).

44 . There has been therefore a violation of Article 5 § 1 (e).

2. Article 5 § 4

45 . As in a number of similar cases (see the cases cited in paragraph 41 above), i n the case at hand the district prosecutor ’ s order s were subject to appeal solely to higher prosecutors , not to a court . The domestic legislation , as it stood at the relevant time and as interpreted by the domestic courts in the present case (see paragraphs 20 and 21 above), did not provide for a judicial review of the placement in a psychiatric hospital. It cannot be considered, therefore, that the remedy required by Article 5 § 4 of the Convention was available to the applicant. The necessary supervision of lawfulness was thus neither incorporated in the initial decision for the applicant ’ s detention nor ensured through the existing possibilities to appeal.

46 . The Court therefore finds that there ha s been a violation of Article 5 § 4 of the Convention.

3. Article 5 § 5

47 . The Court notes that in the present case the applicant ’ s placement in a psychiatric hospital entailed a violation of Article 5 §§ 1 (e) and 4. It follows that Article 5 § 5 is applicable. The Court must therefore establish whet her or not Bulgarian law afforded the applicant an enforceable right to compensation for the breaches of Article 5 in her case.

48 . The Court observes that the applicant brought an action under the State Responsibility Act. However, the Regional Court , acting as a last instance, found that the actions of the police and the prosecutor had been lawful despite deficiencies in the domestic law and did not award any compensation (see Stoychev , cited above, §§ 43-44). It has no been alleged that other remedies were available to obtain compensation.

49 . The Court thus finds that Bulgarian law did not afford the applicant an enforceable right to compensation, as required by Article 5 § 5 of the Convention. There has therefore been a violation of that provision.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

50 . Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

51 . The applicant claimed 10,000 euros (EUR) in respect of non ‑ pecuniary damage.

52 . The Government contested this claim as excessive.

53 . The Court considers that the applicant must have suffered anxiety and frustration as a result of the violations found. Accordingly, deciding on an equitable basis, it awards her EUR 5,500.

B. Costs and expenses

54 . The applicant claimed 1,727.14 Bulgarian levs ((BGN) 883.30 euros (EUR)) for the cost s and expenses incurred before the domestic courts of which BGN 1,100 (EUR 562.60) in legal fees and BGN 627.14 (EUR 320.70) in court fees and lawyer ’ s travel expenses when travelling to hearings in Dryanovo and Gabrovo . In support of these claims she presented a contract for legal representation with her lawyer and the relevant receipts, some of which indicated that the lawyer ’ s travel expenses were on the account of the Bulgarian Lawyers for Human Rights Foundation

55 . For the proceedings before the Court, she claimed EUR 2,320 for legal work by her lawyer and EUR 40 for postage, photocopying and stationery material. In support of these claims she submitted a legal fees agreement between her and her lawyer, a time sheet, according to which for the proceedings before the Court her lawyer had charged her for 29 hours of work at the hourly rate of EUR 80 and the relevant invoices.

56 . The applicant requested the costs and expenses to be transferred directly into the bank account of her representative.

57 . The Government contested these claims as excessive.

58 . According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,500 covering costs under all heads to be paid directly into the bank account of Ms S. Razboynikova .

C. Default interest

59 . The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the application admissible ;

2 . Holds that there has been a violation of Article 5 § 1 (e) of the Convention;

3 . Holds that there has been a violation of Article 5 § 4 of the Convention;

4. Holds that there has been a violation of Article 5 § 5 of the Convention;

5 . Holds

(a) that the respondent State is to pay the applicant, within three months , the following amounts, to be converted into Bulgarian levs at the rate appli cable at the date of settlement:

( i ) EUR 5,5 0 0 (four thousand five hundred euros ), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 1,500 (one thousand five hundred euros ), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, payable directly into the bank account of the a pplicant ’ s legal representative ;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

6 . Dismisses the remainder of the applicant ’ s claim for just satisfaction.

Done in English, and notified in writing on 13 November 2012 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı George Nicolaou Deputy Registrar President