CASE OF DODOV v. BULGARIA
Violation of Art. 2;No violation of Art. 2;Violation of Art. 6-1;Non-pecuniary damage - award
Javier Borrego Borrego;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova
5. The applicant was born in 1961 and lives in Sofia. 6. In May 1994 the applicant's mother, Mrs Stoyanova, sixty-three years old and suffering from Altzheimer's disease, was admitted to the Sofia nursing home for elderly persons. The home was located on a busy boulevard in Kniazhevo, a neighbourhood of Sofia. Mrs Stoyanova was placed in the hospital unit, which was staffed with several medical doctors and nurses. According to a medical opinion on Mrs Stoyanova's health at that time, her memory and other mental capacities progressively deteriorated. She needed constant supervision and the nursing home staff had been instructed not to leave her unattended. In the following months, the applicant visited his mother regularly and on occasion accompanied her for medical visits outside the nursing home. 7. During his visit on 2 December 1995, the applicant noticed spots on his mother's skin and reported it to the nurse on duty. 8. The applicant visited again on 4 December 1995, at about 6.30 p.m., but was informed that his mother was missing. Earlier that day his mother had been sent to consult a dermatologist outside the home, accompanied by Mrs V., a medical orderly. According to the explanation given to the applicant, upon their return, at around 11.30 a.m., the medical orderly had left Mrs Stoyanova alone in the yard and had not found her there several minutes later. The nursing home staff had looked for Mrs Stoyanova in the area but in vain. 9. The staff alerted the police approximately two hours after the incident. On the same day, and again on 11 December 1995, the police heard several witnesses to the events and recorded their statements. Some of them explained that they had searched the area immediately upon learning of Mrs Stoyanova's disappearance. 10. On 8 December 1995, Mrs Stoyanova was recorded as a person sought by the police in the region of Sofia and on 22 December 1995 her data were entered in the national list of missing persons. On 11 December 1995 the Sofia police issued a press release containing information about Mrs Stoyanova's physical appearance and an appeal to the public to report any relevant information. It appears that the description of Mrs Stoyanova's appearance contained errors. On 13 December 1995 the area in the proximity of the nursing home was searched unsuccessfully using a police dog. The police also checked the identity of patients admitted to psychiatric clinics during the relevant period. They also verified information according to which, in January 1996, a woman resembling the applicant's mother had spent a night in a monastery. In February 1996 an announcement was broadcast on national television. 11. In the days following his mother's disappearance the applicant himself did what he could to find her. He contacted all those who had last been in contact with her, published calls for witnesses in several newspapers and posted announcements carrying his mother's photograph. 12. The applicant's mother has not been found to date. In 1998 a District Court issued a decision declaring Mrs Stoyanova missing and appointed the applicant as her representative. 13. On 5 July 1996 the applicant filed a complaint with the Sofia District Prosecutor's Office alleging that the administrative and medical staff of the nursing home had been responsible for his mother's disappearance. 14. Nothing was done in the case until December 1997, despite the applicant's numerous complaints to all levels of the prosecuting authorities. 15. In December 1997 the District Prosecutor's Office opened a preliminary investigation into the matter. 16. The applicant participated actively in the ensuing proceedings. He made specific requests for the collection of evidence in respect of the events of 4 December 1995 and the alleged negligence on the part of the nursing home staff. In other submissions, often voluminous, he exposed at length his suspicion that his mother might have been abducted by a criminal gang trading in human organs. 17. On 19 March 1998, after having heard doctor G., the head of the medical staff at the nursing home, the investigator recommended that the investigation be discontinued. On 10 April 1998 the prosecutor followed this recommendation. The investigator and the prosecutor noted that it had not been uncommon in the practice of the nursing home for residents suffering from Alzheimer's decease to be sent for outside examinations by public transport, accompanied by a medical orderly. Also, it had been the normal practice to leave residents in the yard for several minutes, the time necessary to report to the doctor on duty, and then to accompany them to their rooms. The yard had been enclosed by a fence and staff had usually been present in the area. There had been a gatekeeper whose duty had been to check the identity of those entering. Having noted those facts, the investigator and the prosecutor stated that no criminal offence had been committed. 18. The applicant was not informed of the above decision. He became aware of it on 14 December 1998, when he visited the District Prosecutor's Office to inquire about the examination of his complaint. 19. On 8 January 1999 the applicant appealed, insisting that other witnesses be examined, such as the medical orderly who had accompanied his mother, the medical doctor who had sent his mother for an examination and the gatekeeper. 20. On 22 January 1999 the Sofia City Prosecutor's Office quashed the lower prosecutor's decision and referred the case back for renewed investigation. In June and August 1999 the file was transmitted to an investigator. The investigator heard the medical orderly and the gatekeeper. 21. On 12 April 2000 the prosecutor terminated the proceedings. He noted that Ms V., the medical orderly, had left the applicant's mother in the yard for two or three minutes as she had been asked to see a senior medical staff member. At that moment the applicant's mother had left and could not be found. The gatekeeper had stated that she had not seen Mrs Stoyanova. The prosecutor further noted that, in accordance with the relevant job descriptions, it was the medical orderlies' duty to accompany residents and that the gatekeeper's duties did not include responsibility for the residents' safety. On that basis the prosecutor concluded that “there [was] no indication that a staff member had exposed Mrs Stoyanova [to a danger] ...; and, as regards the [possible perpetrator's] mens rea, no wilful conduct could be proven.” The applicant appealed. 22. On an unspecified date the prosecutor's decision of 12 April 2000 was quashed and the case remitted for renewed investigation. In the ensuing investigation it was established that the gatekeeper had not been at the gate when the applicant's mother had been left alone there on 4 December 1995, as the she had left to have tea. 23. On 18 June 2001 the District Prosecutor's Office terminated the proceedings. The decision stated, inter alia: “Ms V. had left [the applicant's mother] alone in the yard, in dereliction of her duty to accompany and assist the seriously ill [residents]. However, her act did not constitute a criminal offence under Article 137 of the Criminal Code. That provision makes punishable the failure to assist a person in a helpless state, in circumstances of a real danger for that person's life, if the perpetrator is aware of the danger but fails to act. Ms V. stated that she had not thought that leaving [the applicant's mother alone] in the yard might result in a danger for her life, as the yard was closed by a fence and a gatekeeper was usually present. The gatekeeper had committed a serious dereliction of her duties as she had left the gate to have a tea. However, the gatekeeper is not criminally liable as she had not understood that [the applicant's mother] was in danger. Ms V. and the gatekeeper have undoubtedly committed disciplinary offences, which should have led to disciplinary sanctions but their behaviour is not criminally punishable.” 24. The applicant was not informed of the prosecutor's decision. Having learned about it, on 29 September 2001 he appealed to the Sofia District Court. 25. On 21 November 2001 the Sofia District Court quashed the prosecutor's decision and referred the case for renewed investigation, considering that there were inconsistencies in the prosecutor's reasoning and that not all relevant evidence had been collected. 26. After having heard additional witnesses, on 15 August 2003 the Sofia District Prosecutor's Office terminated the investigation. The prosecutor noted the following facts that had not been mentioned in earlier decisions: i) it had not been uncommon for elderly residents of the nursing home to scale the fence around the house; ii) there was a second entrance to the yard, used for service cars, which had usually been kept closed by means of a metal bar placed on the inner side of the portal; and iii) order in the nursing home and the duties of its staff were not clearly regulated. The prosecutor stated that in view of the absence of clear rules on the duties of staff in the nursing home it was not possible to draw conclusions as to the criminal liability of staff members. Also, the facts did not disclose a criminal offence under Article 137 of the Criminal Code. The prosecutor also stated that in any event the relevant statutory limitation period for the prosecution of the alleged perpetrators had expired. 27. On an appeal by the applicant, on 20 January 2004 the Sofia District Court upheld the prosecutor's decision of 15 August 2003 as the relevant statutory limitation period for the prosecution of the alleged perpetrators had expired on 4 June 2003. 28. In July 1996, the applicant complained to the prosecution authorities alleging that the police had not taken the necessary steps to search for his mother following her disappearance. The prosecuting authorities examined the matter and, by decisions of 1997 and 1999, refused to open criminal proceedings, considering that the police had acted diligently. 29. On 10 July 1996 the applicant brought before the Sofia City Court a civil action for non-pecuniary damages resulting from his mother's disappearance. He claimed damages from the Ministry of Labour and Social Care and the Sofia municipality (the institutions responsible for the nursing home) on the grounds that the employees of the nursing home had been negligent. He also sought damages from the Ministry of the Interior on the grounds that insufficient efforts had been made to find his mother. The applicant indicated the State Responsibility for Damage Act as the legal grounds for his action. 30. Throughout the proceedings before the Sofia City Court the applicant made voluminous written submissions and numerous requests for the collection of evidence. 31. At the first hearing, on 24 February 1997, the court could not proceed with the examination of the case as one of the defendants had not been summoned. The court ordered the applicant to indicate the full addresses of the Ministry of Labour and Social Care and of the Sofia municipality and stated that failure to comply could lead to discontinuation of the proceedings. 32. Hearings were held on 2 June 1997 and 19 January 1998. The Sofia City Court admitted several documents in evidence and refused to admit other documents. The applicant's request for several witnesses to be examined was refused as it had been unclear and related to facts whose establishment required documentary proof. 33. On 13 April 1998 the representative of the Sofia Municipality, which managed the nursing home, stated that the case did not fall to be examined under the State Responsibility for Damage Act. The representative of the Ministry of the Interior, one of the defendants, stated that the applicant's allegations in reality concerned not the Ministry as a whole but one of its regional units, the Sofia Directorate of Internal Affairs. The court decided to adjourn the hearing and instructed the applicant to submit proof of the locus standi of the Ministry of the Interior. 34. On an unspecified date the applicant requested that the Sofia Directorate of Internal Affairs be added to the action as a further defendant. The request was granted at the next hearing, on 16 October 1998, and the case was adjourned. The court instructed the applicant to submit another copy of the evidence already admitted to the file, to be transmitted to the new defendant. 35. At the hearing on 26 March 1999 the representative of the Sofia Directorate of Internal Affairs stated that the case did not fall to be examined under the State Responsibility for Damage Act as it did not concern the administrative powers of the police. The applicant sought to involve the nursing home as defendant. The court instructed the applicant to prove that the nursing home had a legal personality separate from that of the Sofia Municipality and adjourned the hearing. The court eventually found that the nursing home did not have separate legal personality. 36. The hearing held on 15 October 1999 was adjourned as the court issued a disclosure order against the Sofia police in respect of specific documents. The court rejected the applicant's request to summon witnesses, including the medical doctor on duty on the relevant day. The applicant had stated that the witnesses would testify about the daily regime in the nursing home, the identity of staff members responsible for accompanying the applicant's mother, her state of health on the relevant day and the exact sequence of events following her consultation with a dermatologist. The court held that such facts could only be established on the basis of documentary evidence. 37. On 4 February 2000 the hearing could not proceed owing to a defective summons. 38. The hearing listed for 5 May 2000 was adjourned owing to the prosecutor's absence. 39. On 6 October 2000 the court accepted some of the applicant's requests for the examination of witnesses and adjourned the hearing. 40. The next hearing was held on 2 February 2001. It was adjourned as the nursing home had not complied with a disclosure order in respect of specific documents. One of the summoned witnesses appeared but was not invited to testify. 41. The hearing listed for 4 May 2001 could not proceed as one of the defendants and a witness had not been summoned. The court fixed the next hearing for 12 October 2001. 42. On 12 October 2001 the court heard two witnesses, who were employees of the nursing home. The employee responsible for the relevant unit stated that the staff had been aware of the applicant's mother's illness and her complete lack of orientation. She had been on a “closed regime”. All staff had been aware that she had to be accompanied. Mrs V., the medical orderly who had accompanied the applicant's mother, testified that she had left her for a minute at the gate, next to the gatekeeper's booth. The gate had not been locked. However, the gatekeeper had been there at that time. Mrs V. further stated that she had told the gatekeeper to look after the applicant's mother and that the gatekeeper's statement that she had not seen the applicant's mother had been untrue. 43. The next hearing was on 15 March 2002. The court heard two witnesses and adjourned the examination of the case. One of the witnesses, the gatekeeper at the nursing home, did not appear. Eventually, the court decided to examine the case on the basis of the available material. The last hearing was held on 21 June 2002. 44. On 31 July 2002 the Sofia City Court delivered its judgment. It found that the applicant had no standing to bring an action under the State Responsibility for Damage Act since his mother had not been declared dead and, therefore, the applicant could not claim that he was her heir. The court also stated that it was unclear whether the State Responsibility for Damage Act applied as it only concerned damage resulting from unlawful administrative decisions or unlawful acts of the administration. 45. On 16 August 2002 the applicant appealed. He stated, inter alia, that it was for the courts to decide on the legal characterisation of his claim. Therefore, if the court considered that the claim fell to be examined under general tort law, it should examine it under general tort law. The applicant also reiterated that he was personally affected as he had suffered non-pecuniary damage as a result of his mother's disappearance. 46. By decisions of 21 and 30 January 2003, the Appellate Court, criticising the Sofia City Court's failure to collect relevant evidence, ordered the summonsing of witnesses and the production of other evidence in the appellate proceedings. 47. On 8 July 2003 the Appellate Court ordered the examination of a witness, the gatekeeper. 48. On 13 October 2003 the court heard the former gatekeeper, who had fallen ill, in her home, in the presence of the parties' representatives and a prosecutor. The former gatekeeper stated that on the relevant date she had not seen the applicant's mother. 49. On 15 January 2004 the Appellate Court delivered its judgment. It found that the State Responsibility for Damage Act only concerned damages resulting from administrative decisions or acts in the exercise of administrative functions. The applicant's claim did not concern such decisions or acts and fell to be examined under the general provisions of tort law. For that reason, the Appellate Court annulled the Sofia City Court's judgment and remanded the case for renewed examination by the Sofia City Court. 50. On 13 February 2004 the applicant filed a cassation appeal. On 25 May 2005 the Supreme Court of Cassation rejected the appeal. It found that the Sofia City Court had been wrong to examine the case under the State Responsibility for Damage Act. 51. On an unspecified date the case was transmitted to the Sofia City Court for fresh examination under general tort law. 52. On 7 July 2005 the Sofia City Court instructed the applicant to clarify his claims. 53. On 1 September 2005 the court found the clarifications made insufficient and gave him additional instructions. 54. On 1 February 2006 the Sofia City Court held a hearing. It issued disclosure orders against the nursing home and the Sofia Directorate of Internal Affairs and allowed the collection of other evidence. The hearing was adjourned until 14 June 2006. The proceedings are pending. 55. At the relevant time, the activities of nursing homes for the elderly and other social care homes were governed by regulations issued by the Ministry of Public Health (State Gazette no. 91 of 1965, amended by State Gazette no. 30 of 1987), in force until 1999, when new regulations replaced them. 56. In accordance with the regulations, nursing homes were funded and managed by the local municipal councils and were required to follow the standards established and instructions given by the Ministry of Public Health. It appears, however, that in 1994 nursing homes were placed under the management of the Ministry of Labour and Social Care. That was not reflected in the regulations. 57. The regulations set out the duties of the main staff categories – the director, medical doctors, nurses and administrative staff. On that basis, each nursing home adopted its own internal rules. The nursing home where the applicant's mother lived also had internal rules regulating in detail the organisation and distribution of tasks and duties among staff. In addition, the specific duties attached to each position were set out in job descriptions. For example, according to the job description for a gatekeeper, one of the main duties was control over the entry and exit of persons and vehicles. The nursing home also maintained a presence/absence table and daily instructions book. 58. Article 137 of the Criminal Code makes it a punishable offence to place a person in a situation endangering his life and, being aware of the situation, to fail to render assistance, despite the fact that the person concerned is unable to take care of himself owing to young or old age, illness, or any other state of helplessness. There is no reported case-law under that provision. 59. The State Responsibility for Damage Act provides, in its section 1, that the State shall be liable for damage occasioned by State bodies or State officials in the exercise of their administrative functions. For damage caused in other circumstances, the State and State bodies are liable under general tort law. According to the established practice in civil proceedings, the courts examine and determine the legal characterisation of claims submitted to them, without regard to the legal characterisation proposed by the plaintiff. The plaintiff must identify the disputed issue by clarifying the facts and the claim made but is under no duty to specify its characterisation in law. Even if the plaintiff indicates a legal characterisation of the claim, the courts are not bound thereby. They must make their own independent assessment (see, among many other authorities, the following judgments: 1208-98-V (Supreme Court of Cassation), 38-97-VII (Supreme Administrative Court) and 75-88- ОСГК (Supreme Court)). 60. According to section 10, unlike civil proceedings under general tort law, proceedings under the Act are conducted in the presence of a prosecutor and court fees are only payable following the entry into force of the final judgment. 61. In 2005, the Supreme Court of Cassation issued an interpretative decision on certain aspects of the implementation of the Act, noting the existence of disputes and divergent practice. One of the issues dealt with was the identity of the State administrative bodies having locus standi to answer claims under the Act. The Supreme Court of Cassation clarified that the action must be brought against the State body employing the relevant agent or, where that State body did not have separate legal personality, against the superior State organ meeting that condition. 62. By virtue of sections 8-19 of the Persons and Family Act, the courts may declare missing a person whose whereabouts have been unknown for more than one year. If the person is still missing after five years, the courts may declare the person presumed dead.