Communicated on 8 December 2014

FOURTH SECTION

Application no. 45285/12 Dzheren Annadurdievna HADZHIEVA against Bulgaria lodged on 27 June 2012

STATEMENT OF FACTS

The applicant, Ms Dzheren Annadurdievna Hadzhieva , is a Turkmen and a Russian national, who was born in 1988 and lives in Varna . She is represented before the Court by Ms D.G. Cherkezova , a lawyer practising in Varna .

A. The circumstances of the case

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

1. Background

The applicant, together with her parents, moved from Turkmenistan to Bulgaria in late 2001. In the summer of 2002 she obtained residency and in September 2007 refugee status. Before the move, the applicant ’ s father had been the deputy chair of the Central Bank of Turkmenistan and later a member of a political movement which criticised the domestic political regime. It appears that because of the applicant ’ s father ’ s political activity , members of the applicant ’ s family were subjected to persecution in Turkmenistan. In 2006 the applicant ’ s aunt was tortured and murdered in prison.

The applicant was accepted in a secondary school with an intensive foreign languages curriculum in the fall of 2002. Her father started his own construction business in Bulgaria, upon moving there from Turkmenistan.

On 22 October 2002 the Turkmen authorities charged both applicant ’ s parents with aggravated embezzlement of p ublic funds amounting to 40,000 0 00 United States dollars (USD), alle gedly committed between 25 July and 3 September 2002. T he Turkmen prosecutor ordered the ir detention in relation to those charges and filed a request for their extradition with the Bulgarian authorities.

2. The applicant ’ s parents ’ arrest, detention and release

On 4 December 2002 the applicant, aged 14 at the time, was alone at home. At around 11 a.m. about ten police officers arrived at the applicant ’ s family apartment. They made her open the front door and entered roughly inside. The officers told the applicant that they had come to arrest her parents, which scared her. She called her parents on the telephone and they said they would return home immediately. The parents took some time to get there because of heavy traffic. In the meantime time the officers prohibited the applicant from moving around the apartment and interrogated her in the absence of a social worker and a psychologist, despite having seen her identity document which showed her age.

The applicant ’ s parents were arrested as soon as they got home that day. They were put in police custody for the period of 24 hours. Upon their request for judicial review of the arrest order, the Varna Regional Court set it aside the following day, finding it was flawed as it did not indicate any legal ground for detention. Immediately upon their release from police custody the applicant ’ s parents were served with a prosecutor ’ s decree ordering their detention for 72 hours in connection with the extradition request; they were accordingly detained again.

On 6 December 2002 the Varna Regional Court extended their detention for a period of 30 days. Allegedly, w hen her mother was asked by the judge via an interpreter during that hearing whether there was anyone who cou ld take care of the applicant, t he mother replied by moving her head sideways . In Bulgaria nodding one ’ s head signifies “no” and shaking it sideways means “yes”. The judge, apparently having interpreted the applicant ’ s mother ’ s response in the Bulgarian way, noted in the protocol of the hearing “The child has someone to take care of her”.

On an appeal by the applicant ’ s parents, the Varna Court of Appeal lifted the detention order. On 17 December 2002 the applicant ’ s parents were released on bail and returned home to the applicant.

The request for their extradition was ultimately refused on 22 May 2003 by the Varna Regional Court; it became final on 30 May 2003 as it was not appealed against. The court found that the criminal proceedings against them were connected to the father ’ s political activities and the extradition request had been made with the aim of persecuting and punishing him for his political beliefs .

3. The applicant ’ s condition during her parents ’ detention

The applicant ’ s parents were arrested so rapidly that they did not manage to leave any money for her, nor to give her any direction as to whom to turn to or how to go about caring for herself . It is alleged that the officers did not tell the applicant for how long they were taking away her parents, nor where or for what reason. Apparently the officers only mentioned that they would either lock her parents in prison or would deport them to Turkmenistan. Both perspectives caused the applicant anguish as she had heard that prisons were horrible both in Turkmenistan and in Bulgaria. In particular, she had heard that her aunts and uncles were severely tortured in prison in Turkmenistan. The applicant was terrified that this could happen to her own parents.

No one took care of the applicant after her parents ’ arrest. She only found 15 levs (about 7 Euros) in the apartment which she used for bus tickets to go to school and for food. The money ran out fast and during the last days of her parents ’ absence she did not eat anything.

She could not fall asleep worrying that she would not wake up on time for school. At night she had frequent nightmares. As a result she was afraid to get up and walk about the house. She permanently dreaded being herself sent back to Turkmenistan where her relatives were in prison and her grandparents were made homeless for having opposed the totalitarian regime.

She went several times to the Police Department for Foreigners, looking for her parents. She also tried to telephone people in Turkmenistan to ask for help. Both steps proved unsuccessful.

She had to ask people in the street how to reach her school as, before the arrest, her father had been taking her there. She had to leave for school shortly after 6.30 every morning and walk in the dark December cold in the snow with frozen feet as she had no appropriate shoes.

She met no understanding or compassion at school and she alleges that her class-mates insulted her directly or talked behind her back. They also read aloud newspaper articles about the arrest where her parents were depicted as thieves. The teachers remained passive observers while the children constantly mocked her. This worsened her condition as she felt continuously humiliated.

At some stage during her parents ’ detention a stray dog bit the applicant on the leg. She did not know what to do or how to seek help. Her mother took her to hospital on 18 December 2002, the day after she was released from detention, fearing the wound might have become infected.

4. The applicant ’ s claim for damages

On 7 March 2006 the applicant, with her parents ’ agreement, brought proceedings for damages under section 45 of the Contracts and Obligations Act before the Varna Regional Court. She directed her claim against the Varna Regional Directorate of the Interior, the Prosecution Service, the Ministry of Justice and the Supreme Judicial Council, and sought to establish the responsibility of the authorities who had left her unattended during her parents ’ detention in December 2002, in breach of the Child Protection Act. In a decision of 27 March 2006 the court invited her to specify the grounds of her claim and to indicate the concrete actions, the particular respondent and the type of damage caused to her. She specified that she sought non-pecuniary damages stemming from the authorities ’ failure to organise support and care for her during her parents ’ detention. O n 10 April 2006 the court, finding that the State and Municipalities Responsibility for Damage Act was not applicable, qualified her claim under section 49 of the Contracts and Obligations Act. It further invited her to specify the names of the officials against whom she had directed her claim, as well as to show that she had paid the State fee of about EUR 10,000 which corresponded to 4% of the total amount of damages sought.

The applicant partially lowered her claim on 9 May 2006, paid the corresponding State fee in the amount of about EUR 6,000 and submitted related proof to the court. On 15 May 2006 the Varna Regional Court terminated the proceedings as it found that the applicant had failed to correct the irregularities in her claim as directed by the court on 10 April 2006.

The applicant appealed on 12 May 2006 before the Varna Appellate Court which confirmed the lower court ’ s decision on 4 October 2006. The applicant brought a cassation appeal, submitting that her claim was directed against the different institutions as legal persons as she could not know the names of the individual officials who had failed to act in order to provide care to her. She also described her condition a fter her parents ’ detention. On 14 February 2007 the Supreme Court of Cassation quashed the lower court ’ s decision and returned the case to the first instance court, the Varna Regional Court, for further examination.

On 25 October 2007 the applicant further specified her claim before the Varna Regional Court, in particular describing her condition in the immediate aftermath of her parents ’ arrest and the continuing psychological trauma which she suffered as a result . She also claimed that the judge during the hearing on 6 December 2002 had wrongly interpreted the applicant ’ s mother ’ s response of shaking her head as a statement that “The child has someone to take care of her”.

A complex forensic psychiatric-psychological report was prepared in the context of the court proceedings. The report established that the applicant was depressed and at times aggressive as a result of the shock she had experienced in relation to her parents ’ detention and ensuing uncertainty. She showed signs of accumulated tension, fear, worries, disappointment and anger towards the officials who had abandoned her to her own devices following her parents ’ arrest. She had no interest in her daily life or in the future and was withdrawn as a result of her loss of confidence in the justice system. This conclusion was confirmed in two additional medical expert reports issued in 2008. The latter found that she suffered from post ‑ traumatic stress disorder which was likely the result of what she had gone through after her parents ’ arrest. The doctors stated in court that no improvement was likely in her case but her condition was expected to become chronic. Another medical report ordered by the court in 2009 confirmed that the applicant suffered of post-traumatic stress disorder.

The Varna Regional Court rejected the applicant ’ s claim on 27 July 2007, finding that it had not been proven that she had remained alone while her parents had been detained in December 2002. The court also held that, in the three days following the court hearing on 6 December 2002, the applicant ’ s mother had not sought to correct the hearing ’ s protocol despite a possibility in law to do so. Given that on 6 December 2002 the Varna Regional Court had accepted that the mother had replied in the affirmative to the question whether there was anyone to care for the applicant, it was not incumbent on the criminal justice system to act in any other way in order to protect the applicant. On 8 October 2009 the court amended the decision by holding that the applicant had to pay for the costs and expenses in the amount of about EUR 450 of the Regional Department of the Interior.

The applicant appealed before the Varna Appellate Court. She again challenged the findings of the lower court about her mother ’ s reply during the court hearing on 6 December 2002. She also submitted that the mother had not been in a position to see the hearing ’ s protocol, given that she had been taken immediately back to remand prison. She further claimed that the authorities had been under an obligation to verify already at the time of the arrest on 4 December 2002 and immediately thereafter whether care was available to her, and in any event should not have waited two days to inquire for the first time during the court hearing about her situation. She submitted that her current state of health was the direct result of the shock and stress she had endured in connection with the arrest, and the non ‑ pecuniary damages she claimed stemmed from there.

The appellate court confirmed the lower court ’ s decision on 10 December 2010 finding that, even if the applicant had remained alone after the arrest, responsibility for that could not be attributed to the authorities. Also, the post-traumatic stress disorder from which it had been established that she suffered could have been the result of additional factors not directly related to her parents ’ arrest. Later the same month the appellate court amended its decision, holding that the applicant had to pay for the costs and expenses incurred by the police.

Following the applicant ’ s cassation appeal, the Supreme Court of Cassation dismissed her claim as inadmissible in a final decision of 18 January 2012.

B. Relevant domestic law

1. Authorities ’ duties in respect of child care

Section 4 of the Child P rotection Act (the Act) provides that child protection shall be carried out through, among other things: 1) assistance, support and services rendered in the child ’ s family environment; 2) placement of the child with relatives or close families; 3) placement of the child with a foster family; 4) placement of the child in a specialised institution; 5) police protection; 6) specialised protection a t public places; 7) provision of information with regard to the rights and obligations of children and parents; 8) provision of preventive measures for security and protection of the child; 9) provision of legal assistance by the state. According to section 6 of the Act as in force at the time, c hild prot ection shall be implemented by: 1) the State Agency for Child Protection; and, 2) t he Social Assist ance Directorates .

According to Article 152 (6) of the Criminal Procedural Code in force at the time of the events, the municipality had to organise the taking of the detained person ’ s children into care, if the latter had no relatives able to look after them.

2. Actions for damages against public authorities

Section 49 of the Obligations and Contracts Act 1951 provides that a person who has entrusted another with carrying out a job is liable for the damage caused by that other person in the course of or in connection with the performance of the job. Liability under that provision – as, indeed, all provisions governing torts – is premised upon the wrongfulness of the impugned conduct ( реш . № 567 от 24 ноември 1997 г. по гр. д. № 775/1996 г., ВС, петчленен състав ).

COMPLAINTS

Relying in particular on Article 8, the applicant complains that the utter absence of assistance by the authorities to her, a minor left alone after her parents ’ arrest in December 2002, resulted in her serious intimidation and suffering.

She also claims under Article 13 in conjunction with Article 8 that she did not have an effective domestic remedy in relation to her complaints.

QUESTIONS TO THE PARTIES

1. Did the Bulgarian authorities comply with their positive obligation under Article 8 of the Convention to protect the applicant ’ s physical and psychological well-being, and in particular:

( a) did the authorities place the applicant ’ s parents in a position to arrange for or otherwise ensure that the applicant was being taken care of during their arrest and detention;

( b) did the authorities seek to verify, either at the time of arrest, or during the court hearing authorising the applicant ’ s parents ’ prolonged detention, or at any point thereafter, that appropriate arrangements were in place for the care of the applicant;

( c) did the authorities seek to ensure compliance with section 4 of the Child Protection Act and Article 152(6) of the Code of Criminal Procedure as applicable at the time?

2. Did the applicant have an effective domestic remedy as provided for in Article 13 of the Convention, in conjunction with her complaint under Article 8?