Information Note on the Court’s case-law 196

May 2016

D.L. v. Bulgaria - 7472/14

Judgment 19.5.2016 [Section V]

Article 5

Article 5-1-d

Minors

Placement of minor in closed boarding school owing to antisocial behaviour and risk she would engage in prostitution: no violation

Article 5-4

Review of lawfulness of detention

Take proceedings

Lack of direct access to periodical judicial review of placeme nt of endangered minor in closed boarding school: violation

Article 8

Article 8-1

Respect for correspondence

Blanket and indiscriminate surveillance of correspondence and telephone conversations for minors placed in closed boarding school: violation

Facts – In August 2012, when she was 13 years old, the applicant was placed by social services in an open educational institution (while attending school outside) at the request of her mother, who was concerned that she was frequenting men registered on police files and considered herself unable to look after her daughter. The applicant, who was unaware of the seriousness of her situation, behaved aggressively towards the staff, ran away several times and allegedly started drifting towards prostitution. As her p lacement in that open institution had failed, a court placed her in a closed educational institution in 2013 pursuant to the Juveniles Antisocial Behaviour Act. The duration of the measure was not specified, but could legally extend to three years. The app licant subsequently made a number of attempts to commit suicide, sometimes in the company of other girls from the centre.

The application, examined under Article 5 of the Convention, concerned the alleged lack of educational aims of the system implemented and the lack of periodic reviews of the measure. The applicant also complained, under Article 8, of the regime applied to contact with the outside world in the centre: while she had admittedly been able to receive visits and to return home during the schoo l holidays, written correspondence and telephone conversations had been subject to blanket authorisation and monitoring arrangements imposed by the staff.

Law

Article 5 § 1 (a) and (d): Placement in this type of centre for juveniles did indeed constitute deprivation of liberty, having regard in particular to the system of permanent monitoring and that of subjecting leave to prior authorisation, and the duration of the placement * .

The first limb of Article 5 § 1 d) authorised the deprivation of a minor’s liberty in his or her own interests, irrespective of the question whether he or she was suspected of having committed a criminal offence or was simply a child “at risk” ** . As the applicant had not reached the age of majority, the only question of relevance here was the extent to which the purpose of the measure had indeed been her “educational supervision”. The conclusion subsequently reached by the Court would dis pense it from examining whether the detention could be justified under Article 5 § 1 a).

(a) Lawfulness – In the present case the decision to place the applicant had been made in accordance with the Juveniles Antisocial Behaviour Act. The domestic authori ties had justified the need to place the applicant on grounds of the risk that she would be caught up in prostitution, and on account of her failure to cooperate, her aggressive behaviour and her attempts to run away.

Based, historically, on a “punitive” r ather than a “protective” philosophy, the Juveniles Antisocial Behaviour Act appeared obsolete, and did not contain an exhaustive list of acts considered as “antisocial”. However, according to established judicial practice, prostitution and running away we re regarded as antisocial acts liable to justify educational measures, particularly placement in a specialised institution. The measure had therefore been foreseeable.

(b) Educational purpose – Regarding implementation of a pedagogical and educational sys tem, the State had to be afforded a certain margin of appreciation.

In the present case the Court could not but observe that the applicant had been able to pursue her school studies, that individual efforts had been made to attempt to mitigate her schoolin g difficulties, that she had obtained a mark allowing her to go up a grade and that, lastly, she had been able to obtain a professional qualification allowing her to envisage her subsequent reintegration into society.

Those factors were sufficient to concl ude that the State could not be accused of having failed to comply with its obligation to give the placement measure an educational objective.

(c) Proportionality – Where detention concerned a minor, an essential criterion of its proportionality was that it be decided as a measure of last resort, in the best interests of the child *** , and that it be intended to prevent serious risks for the child’s development.

The Bulgarian legislation provided for a wide range of educational measures to deal with antisoc ial behavior of juveniles. The strictest of these – placement in an educational institution – could only be applied as a measure of last resort.

In the present case the applicant had already been the subject of educational measures in the past, including less stringent ones. The courts had heard all the parties involved – the applicant’s mother, who had attended the hearing, not having requested leave to address the court – and had concluded that there was no longer any real alternative to placement in an educational institution. While the reasons might appear succinct, the courts’ decisions had clearly reflected the statements of the two social workers who had had direct responsibility for the applicant in the open centre where she had initially been place d. There was no basis on which their conclusion could be called into question.

In short, the placement measure in issue had not been punitive but part of a series of enduring efforts to place the applicant in a supervised educational environment enabling h er to pursue her school studies. It should be pointed out here that protecting minors and, where applicable, removing them from a harmful environment, constituted positive obligations for the State.

Conclusion : no violation (six votes to one).

Article 5 § 4: Although there had been an initial review of the need for the measure, incorporated into the court decision ordering the placement, the measure had been ordered for an indefinite period which, under the applicable legislation, could extend to three year s. Furthermore, having been ordered for educational purposes in order to correct the applicant’s behaviour, which was deemed to be antisocial, the need for the measure could depend on how her behaviour evolved over time. She should therefore have had a reg ular court review of the placement decision, carried out automatically at reasonable intervals and at her request.

However, the applicable legislation did not authorise minors placed in a closed educational institution to apply to the courts for a review of their detention. Nor was there an appropriate regular and automatic review under domestic law.

With regard to the possibility of having the placement measure reviewed by the courts on a proposal of the local committee, the applicant could not be deemed to have had an “available” remedy for the purposes of Article 5 § 4. The committee in question had a discretionary power to assess the person’s situation before deciding whether or not to seek a review by the courts; it was not therefore bound to grant suc h a request by the minor concerned.

Accordingly, the applicant had not had a proper opportunity to request a review of the measure in accordance with the development of her situation.

Conclusion : violation (unanimously).

Article 8: The margin of appreciati on afforded the authorities regarding the monitoring of correspondence and telephone conversations of minors placed in a closed institution for educational purposes was narrower than in the area of monitoring prisoners who had committed a criminal offence: restrictions had to be as lenient as possible.

Everything had to be done to enable minors placed in an institution to have sufficient contact with the outside world as that was an integral part of their right to be treated with dignity and was absolutely essential in preparing their reintegration into society **** . This applied as much to visits as to written correspondence or telephone conversations.

The internal rules of the educational institution in question allowed the authorities of that institution f ull discretion to monitor all correspondence of the residents, with no distinction drawn regarding the category of persons with whom they corresponded, the duration of the measure or the reasons justifying it. Even correspondence with a lawyer or with non- governmental organisations for the protection of children’s rights was subject to the general monitoring measures.

Likewise, the monitoring regime imposed on residents wishing to converse by telephone with persons on the outside made no distinction betwee n, for example, family members, representatives from organisations for the protection of children’s rights or other categories of persons, and was not based on any individualised analysis of the risks involved.

In the Court’s view, the automatic monitoring of correspondence and telephone conversations, which was a blanket measure drawing no distinction regarding the type of exchange, could not be regarded as necessary in a democratic society.

Conclusion : violation (unanimously).

Article 41: EUR 4,000 in res pect of non-pecuniary damage.

*  See A. and Others v. Bulgaria , 51776/08 , 29 November 2011.

**  See the recent case of Blokhin v. Russia [GC], 47152/06, 23 March 2016, Information Note 194 .

***  The Court referred here to the United Nations Convention on the Rights of the Child .

****  The Co urt referred here to the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (“Havana Rules”).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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