Resolution CM/ ResDH (2010)40 [1]

Execution of the judgments of the European Court of Human Rights

Varbanov and 3 other cases against Bulgaria

(see details in Appendix)

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 judgments transmitted by the Court to the Committee once they had become final;

Recalling that these cases concern the applicants ’ detention in psychiatric hospital between 1995 and 2000 to undergo medical examinations at the behest of prosecutors in proceedings concerning psychiatric confinement (violations of or complaint under Article 5§1) and the fact that the applicants had no opportunity to bring judicial proceedings to challenge the lawfulness of their detention ( Varbanov and Kayadjeva cases, violations of Article 5§4) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgments;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the a p plicants the just satisfaction provided in the judgments (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of

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

- general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in these cases and

DECIDES to close the examination of these cases.

Appendix to Resolution CM/ ResDH (2010)40

Information on the measures taken to comply with the judgments in the cases of

Varbanov and 3 other cases against Bulgaria

Introductory case summary

These cases concern the applicants ’ detention in psychiatric hospital between 1995 and 2000 to undergo medical examinations at the behest of prosecutors in proceedings concerning psychiatric confinement. The European Court found that their detention had no legal basis in national law as the prosecutor had no power to issue such an order and had not sought a prior medical assessment of the need for the applicants ’ detention (violations of or complaint under Article 5§1).

The Varbanov and Kayadjeva cases also concern the fact that the applicants had no opportunity to bring judicial proceedings to challenge the lawfulness of their detention (violations of Article 5§4).

I. Payments of just satisfaction and individual measures

a) Details of just satisfaction and sums agreed

Name and application number

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Varbanov , No. 31365/96, judgment of 05/10/2000

-

4 000 BGL

300 BGL

4 300 BGL

Paid on 27/12/2000

Kayadjieva , No. 56272/00, judgment of 28/09/2006, final on 28/12/2006

-

2 000 EUR

485 EUR

2 485 EUR

Paid on 28/03/2007

Kepenerov , No. 39269/98, judgment of 31/07/2003, final on 03/12/2003

-

-

-

Lump sum

2 200 EUR

Paid on 1 6/04/2004

M.S., No. 40061/98, judgment of 04/07/02 – Friendly settlement

-

Sum agreed 3 500 BGL

-

3 500 BGL

Paid on 11/07/2002

b) Individual measures

The question of individual measures does not arise since the applicants had all been released before the European Court rendered its judgments and all received just satisfaction either under Article 41 or by virtue of a friendly settlement.

II. General measures

On 29/07/2004, Parliament adopted the new Health Act. The act was published in the Official Journal , No.70 of 10/08/2004, and entered into force on 01/01/2005. According to its provisions, only a court is competent to order an expert opinion and, if necessary to order confinement with a view to obtaining a psychiatric examination, following a public hearing at which the person concerned, assisted by counsel and a psychiatrist, must be heard. The decision may be appealed.

New delegated legislation adopted in this field in 2005 also provides that a medical examination for the purposes of possible psychiatric confinement is ordered by the court (Article 4 of the regulation of medical examinations ordered in the framework of proceedings concerning psychiatric confinement). The authorities confirmed that these regulations are applied by the competent authorities and in particular by the domestic courts in accordance with the principles set out in the case-law of the European Court .

In order to promote awareness of these principles, the Varbanov judgment was communicated to the Ministry of Health and to the Congress of Bulgarian Psychiatrists in November 2000 and was published (in Bulgarian translation) on the Internet site of the Ministry of Justice www.mjeli.government.bg .

III. Conclusions of the respondent state

The government considers that no individual measure was required in these cases, apart from the payment of the just satisfaction awarded to the applicants by the European Court and the sum agreed in the friendly settlement, that the general measures taken will prevent similar violations and that Bulgaria has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 3 June 2010 at the 1086th meeting of the Ministers’ Deputies