CASE OF GULUB ATANASOV v. BULGARIA
Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);No violation of Art. 5-3;Violation of Art. 5-1;Violation of Art. 5-4;Violation of Art. 5-5;Remainder inadmissible;Non-pecuniary damage - award
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
5. Prior to the events at issue, in the 1980s, the applicant was convicted of theft and served a prison term. Several other sets of criminal proceedings were opened against him, some of which were terminated on the basis that the applicant, who suffered from schizophrenia, was found to be of unsound mind and therefore not criminally liable. 6. After 1990 the applicant spent several years in Germany until his expulsion on an unspecified date. 7. On 27 June 1999 two persons were robbed and murdered in their home in Plovdiv. 8. On 2 July 1999 the applicant was arrested, remanded in custody and charged with two counts of murder. The charges were later amended to robbery aggravated by murder. 9. In the course of the investigation approximately twenty witnesses were examined, some of them repeatedly. The investigator ordered numerous expert reports, including autopsies, analyses of blood stains and tissue, ballistic reports and reports by psychiatrists on the applicant's mental health. Several witness confrontations and identity parades were organised and other evidence was collected. 10. For several months in 2000 the case was dealt with by prosecution authorities at a number of levels in relation to the applicant's request for a third psychiatric examination (see paragraphs 29-31 below) and, additionally, on account of divergent views expressed by the investigator and prosecutors as regards the precise legal characterisation of the charges. On 27 December 2000 the Plovdiv Regional Prosecutor's Office submitted to the Regional Court an indictment against the applicant. 11. The trial started in January 2001. During the period when the applicant was deprived of his liberty three hearings were held. The hearing held on 19 February 2001 was adjourned as some of the psychiatric experts who had examined the applicant were absent. The next hearing took place on 8 and 9 May 2001, when the court examined twelve witnesses and twenty experts. Another hearing was held on 3 July 2001. 12. In a judgment of 4 June 2003 the Plovdiv Regional Court acquitted the applicant, holding that the charges against him had not been proven. 13. This judgment was quashed on 29 December 2003 by the Plovdiv Appeals Court, acting on an appeal by the prosecutor, on the basis that, inter alia, the lower court had failed to examine all relevant facts. The case was remitted to the Plovdiv Regional Court for a fresh examination. 14. The proceedings were terminated on an unspecified date following the applicant's death on 31 January 2006. 15. Following the applicant's arrest on 2 July 1999, he was remanded in custody by decision of an investigator and a prosecutor who found on the basis of witness testimony and other evidence that there was a reasonable suspicion as to the applicant's having been involved in the murders committed on 27 June 1999. 16. The applicant spent an unspecified period in the detention facility of the Plovdiv Investigative Service. Between 17 August and 28 September 1999 he was at the Psychiatric Department of Sofia Medical University for a psychiatric examination (see paragraphs 27 and 28 below). 17. On an unspecified date prior to March 2000 he was transferred to Plovdiv prison. 18. On an unspecified date in March 2000, while detained in Plovdiv prison, the applicant underwent a medical examination which detected the presence of a lump in his salivary gland. On 22 June 2000 he was transferred to Sofia and admitted to the Sofia prison hospital for the purpose of surgically removing the lump and analysing it with a view to establishing whether it was cancerous or benign. The applicant refused to undergo surgery and on 24 June 2000 was transferred back to Plovdiv prison. 19. On an unspecified date in June 2000 the applicant appealed against his detention, arguing that he had been unlawfully detained, that he was ill and needed immediate surgery and that there was no longer any risk of his absconding, re-offending or hindering the investigation. 20. On 30 June 2000 the Plovdiv Regional Court examined the applicant and his lawyer in person and dismissed the appeal on the basis that as the applicant had had a previous conviction for a serious wilful offence (theft) and had been charged with murder, there was a risk of his absconding or re-offending. As regards the applicant's health condition, the court noted the medical experts' opinion that the applicant could undergo surgery and receive adequate treatment in the Sofia prison hospital. 21. The applicant appealed stating, among other things, that he did not want to undergo surgery in the Sofia prison hospital because it did not offer appropriate conditions. 22. On 6 July 2000 the Plovdiv Appeals Court decided to release the applicant from custody and place him under house arrest. It held that there was sufficient evidence supporting a reasonable suspicion that the applicant had committed an offence and considered that, as correctly assessed by the Regional Court, there was a real risk of his absconding or re-offending. However, the court took into account the applicant's health. It noted the medical experts' opinion that the applicant might have developed a tumour of the salivary gland and decided that he would have greater freedom to choose the medical treatment he wished to have if placed under house arrest. 23. Following his release from custody the applicant sought and obtained, on 13 July 2000, permission to undergo surgery in a Plovdiv hospital. That was performed on an unspecified date before 26 July 2000, when he was discharged from hospital. 24. In July 2001 the applicant sought his release from house arrest. That was granted by a decision of 23 July 2001 of the Plovdiv Appeals Court on the basis that the proceedings against him risked exceeding a reasonable time. The applicant was released on bail on an unspecified date. 25. In the course of the criminal proceedings it was established that the applicant had been suffering from paranoid schizophrenia since 1984 and had been treated in psychiatric hospitals in 1985, 1986, 1988 and 1989. 26. The investigator in charge of the case ordered an expert report on the applicant's mental health. He was examined on 22 July 1999. The experts, relying mainly on the history of his illness, concluded that the applicant was of unsound mind. 27. The investigator ordered a second, more detailed examination by a larger group of experts, and, for that purpose, the applicant's placement at the Psychiatric Department of Sofia Medical University. 28. The applicant stayed at the psychiatric hospital between 17 August and 28 September 1999, when he was remanded in custody. In their ensuing report submitted on 19 October 1999 the medical experts considered that the applicant suffered from a form of schizophrenia but was not of unsound mind within the meaning of the Penal Code. The report mentioned that the applicant's stay in hospital had been effected “under the conditions of pre-trial detention”. 29. In January 2000, and again at a later date, the applicant and his lawyer insisted on a third detailed psychiatric examination in view of the divergent conclusions of the first two examinations. The investigator initially refused and the applicant appealed. By decisions of 15 and 20 March 2000 of the prosecuting authorities, the applicant's request was granted. 30. On 13 July 2000 the prosecutor in charge of the case wrote to the investigator stating that he did not object to a third examination and that the applicant could be placed in a psychiatric hospital for a period of up to thirty days. 31. On 3 August 2000 the investigator in charge of the case ordered a third psychiatric report to be prepared by a commission of eleven experts and, accordingly, the applicant's placement at the Psychiatric Department of Sofia Medical University. The investigator considered that the length of the applicant's stay was to be decided by the experts. The order referred to Article 117 of the Code of Criminal Procedure, which concerned the commissioning of expert reports. No reference was made to Article 155 of that Code (see paragraphs 34-37 below). 32. The applicant, who was under house arrest at that time, spent twenty-six days (from 8 August to 4 September 2000) at the Psychiatric Department of Sofia Medical University. In their ensuing report, eight of the experts came to the conclusion that despite his mental illness the applicant had been of sound mind at all relevant times and the remaining three experts considered that he was of unsound mind within the meaning of the Penal Code. 33. The experts also stated that the applicant had been placed at the Psychiatric Department “under conditions of house arrest” and had complied “relatively strictly” with the ensuing restrictions. They stated that towards the end of his stay in the hospital he had occasionally been tense and had made statements that he had been “fed up” and would commit suicide or “blow up the hospital”. 34. The relevant legislation at the time of the events in the present case was the Code of Criminal Procedure (“CCP”) of 1974 (abrogated with effect from April 2006). 35. Until 1 January 2000, Article 155 of the CCP provided that confinement in a psychiatric institution for the purpose of effecting a psychiatric examination of a person charged in criminal proceedings could be ordered by a prosecutor or a court. In practice, such measures were ordered by prosecutors where the case was pending at the investigation stage and by judges where the case was pending before a court. 36. This provision was amended with effect from 1 January 2000. The amended text required a judicial decision in all cases and also introduced a thirty-day maximum period of confinement (subject to not more than one extension) and other procedural guarantees. 37. Article 155 was in a chapter of the CCP entitled “Measures of procedural compulsion”. This chapter contained separate provisions for various such measures – pre-trial detention, house arrest, bail, undertaking not to leave the place of residence, suspension from office, confinement to a psychiatric hospital and several others. The provisions concerning each measure were phrased and structured as separate rules governing separate measures. The same structure was reproduced in the new CCP in force since April 2006. 38. At all relevant times, paragraph 6 of Article 155 provided that the period spent in psychiatric hospital for examination should count as a period of pre-trial detention. The effect of this provision was that persons sentenced to imprisonment could deduct from their prison term the time spent in a psychiatric hospital. 39. The Ministry of Health has issued an instruction for the guidance of health care personnel dealing with persons confined to psychiatric institutions (Инструкция No. 1 за дейността на здравните органи при настаняване на лица в психиатрични стационари по принудителен ред, ДВ бр.бр. 58/1981, 44/1991 и 48/2004). It clarifies, in its sections 4 and 5, that persons in pre-trial detention or serving a prison term are to be placed in facilities for detained persons and held under conditions of detention. The instruction does not mention persons under house arrest. 40. Under Article 181 of the CCP of 1974, decisions of an investigator could be appealed against to a prosecutor and prosecutors' decisions to a higher prosecutor. 41. Under section 2(4) of the Act, the State is liable for damage caused by forced medical treatment ordered by a court if its decision has been set aside for lack of lawful grounds. Under section 2(1) of the Act compensation is available for pre-trial detention set aside for lack of lawful grounds (construed in judicial practice as compensation in cases of acquittal or discontinuation of criminal proceedings). Persons seeking redress for damage occasioned by decisions of the investigating and prosecuting authorities or the courts in circumstances falling within the scope of the SMRDA have no claim under general tort law as the Act is a lex specialis and excludes the application of the general regime (section 8(1) of the Act; реш. № 1370/1992 г. от 16 декември 1992 г., по г.д. № 1181/1992 г. на ВС ІV г.о.).