1177th meeting – 11 September 2013

Appendix 3

( Item H46-1 )

Resolution CM/ ResDH (2013) 151

Dodov against Bulgaria

Execution of the judgment of the European Court of Human Rights

(Application No. 59548/00, judgment of 17 January 2008, final on 17 April 2008)

(Adopted by the Committee of Ministers on 11 September 2013 at the 1177th meeting of the Ministers ’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Having regard to the final judgment transmitted by the Court to the Committee in the above case and to the violations established;

Recalling the respondent State ’ s obligation , under Article 46, paragraph 1, of the Convention , to abide by all final judgments in cases to which it is party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with the above-mentioned obligation;

Having examined the action report provided by the government indicating the measures adopted in order to give effect to the judgment, including the information provided regarding the payment of the just satisfaction awarded by the Court (see document DH-DD(2013)728 );

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted,

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination thereof.

A ction report

on the implementation of the judgment of the ECtHR in the case of

Dodov v. Bulgaria

Ap plication N o. 59548/00

Judgment of 17 January 2008

Final on 17 April 2008

The f acts

The case relates to failure of the authorities to offer in practice effective judicial remedies allowing to establish the circumstances of the disappearance of the applicant ’ s mother and to engage the responsibility of the persons and instit utions concerned (violation of A rticle 2 of the Convention) and excessive length of civil proceedings concerning the action for compensation lodged by the applicant (violation of A rticle 6 § 1 of the Convention) .

Individual measures

a) The compensation was duly transferred to the applicant ’ s account on 9 July 2008.

b) Current state of civil proceedings

Since the issue of the ECHR judgment under the present case , the Sofia City Court continued to review the applicant ’ s civil claim in a number of sessions (more than eight). As the proceedings were governed by the repealed Civil Procedure Code , the applicant was allowed to present and require new evidence throughout the entire first-instance procedure. He has done so in every session as well as via additional requests and has required numerous check-ups and documents from various institutions. This significantly hampered the timely review of the case. Furthermore, three sessions (in 2009 and 2010) were postponed due to illness of his legal representative and respectively to other omissions in the documentation presented by the applicant. Meanwhile the applicant also contested some of the court ’ s rulings in front of higher instances which additionally slowed down the proceedings.

In 2011 , the applicant requested modification of his claim by decreasing its amount, thus changing its jurisdiction to another court. As a consequence , the claim fell under the competence of the Sofia Regional Court (“SRS”). On 24 February 2012 , the Sofia City Court issued an order by which the case was transferred to SRS. Since May 2012 until now , there have been four sessions of SRS and a decision is awaited in the nearest future.

The government notes that the SRS decision will be subject to appeal in front of the higher instances and the date of the final decision may not be predicted exactly. The obvious attempts of the applicant to slow down the procedure with every procedural means available should be noted though. The government observes that it will continue the close follow-up of the court case

c) Disciplinary sanctions

None of the staff working in the Home for Elderly People with Dementia in Kniajevo at the time an d having any connection with Ms Stoyanova ’ s disappearance are currently employed in this institution. The orderly who accompanied Ms Stoyanova during her disappearance is deceased. The doorkeeper ’ s employment is terminated.

It should be noted that , according to Article 194 of the Bulgarian Labour Code , disciplinary sanctions may be imposed within two months after detection of the breach of labour obligations and not later than one year after it was committed. This provision was applicable at the time of Ms Stoyanova ’ s disappearance as well. The terms in it are preclusive. Considering the above, the failure of the director of the home at the time to initiate disciplinary proceedings against the responsible personnel may not be remedied because the imposition of disciplinary penalties is time-barred.

General measures

a) Publication and dissemination of the judgment

The translation of the judgment in Bulgarian is available on the Ministry of Justice website at http://www.justice.government.bg/47/73/ .

The judgment was expressly disseminated by letters from the Procedural Representation of Bulgaria to the Chief Prosecutor ’ s Office, the Supreme Court of Cassation, the Sofia regional, city and appellate courts, the Ministry of Labour and Social Care, the Ministry of Interior and the Sofia Municipality.

b) Amendments in legislation in view of the length of proceedings

The present judgment relates to the pilot judgments against Bulgaria concerning length of proceedings. The general measures taken by the government in this regard are included in the action plans presented to the Committee of Ministers under the Dimitrov and Hamanov and Finger group of cases.

c) Positive duty to make available judicial remedies capable of establishing the facts and holding accountable those responsible for imperilling the life of a person placed in a nursing home

The Court found that despite the availability in Bulgarian law of three avenues of redress – criminal, disciplinary and civil – in the present case the authorities did not secure an effective possibility to establish the facts surrounding the disappearance of the applicant ’ s mother and hold accountable the persons or institutions that breached their duties. The main problems pointed out by the ECHR concerned difficulties to establish the body responsible for the functioning of the nursing home as well as a lack of proper job descriptions of the personnel. On the one hand, the Court observed that “the regulations in force at the relevant time dated from 1965 and apparently did not reflect changes in State administrative structures”. These old regulations were in force until 1999, when new regulations replaced them, taking into account the new administrative structure of the State. The Court also noted that one of the prosecutors who dealt with the case expressed the opinion that the duties of the nursing home staff had not been clearly regulated, which made it impossible to determine any criminal liability.

* * *

It should be mentioned that there are a number of measures which have been taken with regard to potential omissions in the management, training, control or definition of duties of the different categories of staff in the nursing homes.

In 2002 , amendments were made in the Social Assistance Act which established a new structure – the Social Assistance Agency (SAA). The functions of SAA include :

The Inspectorate to the Executive Director of SAA performs specialised control over the application of the criteria and standards by the specialised institutions for social services as well as by the service providers within the community. In case there are breaches of the respective legislative provisions , the inspectors are entitled to apply compulsory administrative measures. If the breach is committed by a municipal institution or provider, the respective mayor is also informed in order to take the necessary measures for curing it. The Inspectorate issues compulsory instructions and may propose deletion from the Register of Social Service Providers kept in SAA as well.

SAA elaborates and imposes compulsory methodical instructi ons and guidelines and organis es trainings and supervisions which foster the social service providers ’ activities. All instructions and guid elines are published on the web site of the Agency . [1]

The subsequent changes made in SAA and the Rules for its application in 2003 became an additional guarantee for the quality of social services as they explicitly regulated the order and conditions for starting, changes in capacity or terminating of the provision of social services and introduced for the first time criteria and quality standards for the services provided in specialised institutions and the community. Thus minimal state criteria and standards became mandatory for all service providers and included requirements for material conditions, personnel, food, healthcare, educational s ervices and information, organis ing of the spare time and personal contacts.

The legislative amendments from 2003 also envisaged for the first time the preparation of individual plans for users which formulated the goals to be achieved in each separate case in order to improve their quality of life. The individual plan includes activities connected to everyday, healthcare, educational, rehabilitation and other needs, including those connected to spare time and contacts with relatives and loved ones. Each individual plan is assessed and updated every six months. If the user is in a specialised institution, the plan also includes measures for removal from the institution and social inclusion.

Another aspect in the legislative changes from 2003 was the establishment of public councils whose task was to carry out control, support and help with regard to activities concerning social assistance.

At present , the conditions and order for the use of social services in the homes for elderly with dementia are regulated by SAA, the Rules for its application as well as by a number of methodologies issued by the Ministry of Labour and Social Policy and the Social Assistance Agency, including but not limited to:

in the Community;

Services in the Community in Execution of the Standards and Criteria for Catering;

With regard to the functioning of the Home for Elderly People with Dementia in Kniajevo , a number of steps were taken in order to apply the abovementioned legislative acts and measures and to ensure the security and well-being of the users of social services there. The management of the Home elaborated and imposed Internal Order Rules, the Internal Labour Rules, Order for Control of the Access to the Home, Procedure for Submission of Complaints and Signals. All users have concluded contracts for use of social services which clearly define their rights and obligations. Furthermore, and in line with Bulgarian legislation , there are detailed job descriptions for every position in the Home – orderlies, nurses, rehabilitators, doctors, guards, which fully describe their obligations towards the persons using social services in the home. The director of the Home monitors strictly the training and instructions of the staff and performs direct control over their activities.

The Public Council to the respective municipality performs inspections for the application of S tate standards and good practices on a regular basis and upon necessity. Regular control s are also performed by the Social Assistance Agency via the Inspectorate and by other S tate institutions.

The Government of the Republic of Bulgaria believes that the measures taken have fulfilled the requirements that arise from the Court ’ s judgment and that as a result similar violations will be prevented in the future. In view of the above , the government considers that the supervision over the present case should be discontinued and the case should be closed.

Sofia, 13 May 2013

[1] http://www.asp.government.bg/ASP_Client/ClientServlet?cmd=add_content&lng=1&sectid=13&selid=13 .