CASE OF D.L. v. BULGARIA
No violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Article 5-1-d - Minors);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
André Potocki;Angelika Nußberger;Ganna Yudkivska;Khanlar Hajiyev;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev
5. The applicant was born in 1999 and lives in Pleven. 6. On 2 August 2012 the applicant, aged 13, was admitted to the Open Door children’s crisis centre in Pleven. Her placement was ordered as a protective measure under the Child Protection Act by the Pleven municipal director of social assistance, at the request of the applicant’s mother, who had claimed to be unable to look after her daughter. 7. In a decision of 1 October 2012 a criminal bench of the Pleven District Court (Районен съд) confirmed the applicant’s placement and extended its validity for a further three months. In its reasoning the court found that the conditions for the placement of a minor in a specialist institution were satisfied, namely that the child’s parents were unable to provide her with adequate care and that she was living in a dangerous social environment, as she associated with “men identified as delinquents”. Lastly, it stated that no member of the applicant’s family was able to take on responsibility for her upbringing. 8. On 16 January 2013, finding that the conditions for the applicant’s return to her family environment were not satisfied, the municipal director of social assistance ordered the extension of her placement in the centre. On 1 April 2013 a civil bench of the District Court in turn confirmed the measure and extended it for a further six months. 9. On 3 April 2013 the local committee for combating juvenile antisocial behaviour (“the local committee”) asked the District Court to order the applicant’s placement in a correctional boarding school. On 19 April 2013 a criminal bench of the District Court held a hearing, following which it gave a decision imposing a less severe educational measure on the applicant, namely “a ban on meeting and making contact with certain individuals”. In its reasoning the court specified that placement in a correctional boarding school was liable to have a negative impact on the child’s psychological and social development, given the “unfavourable environment offered by that type of institution”. It added that following the expiry of her placement in the Open Door centre, it would be appropriate to admit the applicant to another institution regulated by the Child Protection Act in order to keep her away from the people who had forced her into prostitution. 10. On 17 May 2013 the local committee sent the District Court a new proposal for the applicant’s admission to a correctional boarding school under the Juvenile Antisocial Behaviour Prevention Act. It argued that the applicant did not have a favourable family environment and that, in particular, her father was serving a prison sentence and her mother had trouble assuming her parental responsibilities. This had caused the applicant to run away from home and develop a circle of friends including both adults and juveniles who were identified as “delinquents” and had allegedly incited her to engage in immoral conduct, such as the provision of “sexual services”. Lastly, the local committee noted that the applicant had also run away twice from the children’s crisis centre and had behaved aggressively towards the staff. 11. On 10 June 2013 a criminal bench of the District Court held a hearing. The applicant’s mother was present, having been summoned to appear at the hearings, and asked to have a lawyer officially appointed to represent her daughter in the proceedings. The applicant also asked to have a lawyer appointed. The court granted their request. It heard evidence from the applicant, her officially appointed lawyer, a representative of the local committee, an inspector from the child protection team (Детска педагогическа стая), a representative of the district prosecutor’s office, a representative of the municipal child protection department and two social workers from the children’s crisis centre where the applicant was living. The inspector from the child protection team stated that the applicant engaged in prostitution and had been found offering prostitution services on a motorway near Devnia, some 270 km from her home town. The two social workers from the children’s crisis centre pointed out that that factor had served as a ground for placing her in the centre as a protective measure for a child at risk. They added that after her admission to the centre, the child had remained in contact with the people who had incited her to engage in prostitution despite the steps that had been taken to protect her. In the social workers’ opinion, the applicant’s family environment was unsuitable for her. She came from a large family where the mother did not exert any parental control. The mother did not have a job and her partner drank and was violent towards her and her children. The mother had also stayed at the children’s crisis centre with two of her other children. After intensive psychological and social counselling, a positive development had been noted in the applicant and there were plans to find different accommodation arrangements for her. However, the social workers added that by the time of the hearing the applicant’s situation had worsened as she did not follow the rules in place, came back late from school or was brought back by the police when she failed to return, and continued to associate with individuals known to the police, to engage in sexual relations and to behave aggressively towards the staff. She had attended a series of talks on prevention of “lover boy”-type human trafficking but had not been receptive to the protective measures recommended. The social workers expressed the opinion that the applicant faced a strong risk of being driven into prostitution and that the arrangements in place at the crisis centre did not afford her the necessary protection. In their view, such protection would only be provided in a secure centre with a restrictive regime. Lastly, the representative of the local committee stated that four educational measures had already been imposed on the applicant, including strict monitoring by a supervisor, the ban on associating with certain individuals and the warning recommending placement in a correctional boarding school. He viewed those measures as insufficient. 12. The court also obtained welfare reports. The applicant stated that she did not wish to be admitted to a correctional boarding school and preferred to remain in the children’s crisis centre. The officially appointed lawyer called for the adoption of less severe educational measures. The representatives of the district prosecutor’s office and of the municipal child protection department supported the proposal by the local committee. The representative of the municipal child protection department stated that during the hearing all the safeguards laid down in the Child Protection Act had been observed. In his opinion, the possibilities for the child’s upbringing in the crisis centre had been exhausted, the risk of her renewed involvement in human trafficking was very high and she was unaware of this. Accordingly, the measure of placement in a correctional boarding school was in fact in her interests. 13. Later on 10 June 2013 the District Court gave a judgment ordering the applicant’s placement in the correctional boarding school in Podem (“the Podem school”), a village 20 kilometres away from Pleven. In its reasoning the court held that despite the judicial decision of 1 April 2013 in which a compromise solution had been adopted for the applicant, namely the confirmation and extension of her placement in the children’s crisis centre, she was still failing to abide by the institution’s internal rules, was not returning to the centre by the designated time after school, was in contact with individuals identified as “delinquents” and was still behaving rudely and aggressively towards the social workers at the centre. It noted that, in the absence of adequate parental control, the applicant had developed serious antisocial habits and that her placement in a children’s crisis centre no longer had the intended educational and preventive effect on her behaviour. In the court’s view, the applicant no longer displayed any willingness to abide by the rules of society, or even those of the institution in which she was living, and it was therefore advisable to remove her from her circle of acquaintances who were harming her personal development, and to provide her with enhanced educational support in order to eradicate her negative behavioural traits. The court noted that educational measures had already been imposed on her, but they had not produced a positive result. It concluded that the measure of admission to a correctional boarding school was necessary not only for her own benefit but in the interests of society. 14. The applicant, represented by her lawyer, appealed against that judgment. She challenged the measure imposed on her, arguing in particular that the court had not specified its duration, that her mother had not been given a hearing by the first-instance court and that she herself had not committed any criminal acts. 15. In a final judgment of 16 July 2013 a criminal bench of the Pleven Regional Court upheld the first-instance court’s decision. In its reasoning it held that the law did not oblige the court to hear evidence from the parents – in this instance the applicant’s mother – and that the applicant’s other complaints were unsubstantiated and ill-founded. 16. On 13 September 2013 the applicant attempted to commit suicide and was admitted to the toxicology department of Pleven Hospital. According to a medical certificate dated 15 September 2013, she had taken ten 500 mg paracetamol tablets and ten Remotiv tablets and was in a fragile state. After her stomach was pumped, the effects of the intoxication were brought under control. 17. On 15 September 2013 the applicant was taken to the Podem school. She was still there at the time of the most recent information submitted to the Court, on 11 June 2015. 18. Regarding life at the school, the applicant submitted in her application that the level of teaching was much lower than at her previous institution. In the four years prior to her application, only six pupils had obtained the secondary-school leaving certificate, and none at all in 2011 or 2012. Three pupils had been awarded the certificate in 2013 with an overall average mark of 3.67 out of 6, the minimum pass mark being 3. The applicant added that in 2012 and 2013 the pedagogical council had not given any positive assessments of pupils’ behaviour or school results, meaning that no proposals for the end of a placement had been submitted to the District Court. 19. The applicant also asserted that she had continued to be threatened with forced prostitution by her former contacts after being admitted to the Podem school. On 19 November 2013 she had attempted suicide for the second time, as part of a group with four other girls, by ingesting chemical substances. She had then been taken to hospital for three days. There had been other suicide attempts at the school. 20. The applicant further submitted that her telephone conversations were monitored by a supervisor. For that purpose, a loudspeaker had been attached to the telephone and switched on during each conversation. 21. In addition, because of the significant number of violent incidents at correctional boarding schools, the prosecutor’s office on 7 November 2013 ordered an inspection of all secure educational institutions, including the Podem school. The results of the inspection are not known. 22. When submitting their observations on the admissibility and merits of the application, the Government included a report dated 30 January 2015 by the head of the Podem school about the applicant’s situation. According to the report, during her previous placement in the Open Door centre, the applicant had been aggressive towards the staff, had encouraged other girls to engage in prostitution and had run away on two occasions (4 and 27 February 2013). The report also stated that she had unashamedly admitted to having been sexually active since the age of 12 and that she provided “sexual services” in return for payment. 23. The report mentioned, in addition, that the applicant did not have a favourable family background and that she was left unsupervised, which explained why she had previously run away and led a vagrant lifestyle. 24. According to the report, the Podem school offered an educational environment with experts qualified to work as teachers or supervisors in accordance with the requirements of the Ministry of Education and Science. The school curriculum and the courses followed in all specific subjects had been developed and approved in line with the Ministry’s standard procedures. The applicant had been deficient in many areas and the teachers had worked with her on a one-to-one basis as well as during lessons. 25. The file does not include a copy of the individual development plan that was supposed to have been drawn up at the time of the applicant’s admission to the school and updated every six months. However, according to the report, the plan indicated that she was unaware of the risks she ran on account of her “erratic sexual relations”, that she did not question the consequences of such acts and that she was not ready to live independently. It added that she was naïve, easy to manipulate, impulsive, emotionally fragile and prone to dishonesty. 26. The report went on to state that the individual plan as updated on 29 September 2014 noted a positive change in the child’s behaviour. Although she did not apply herself consistently, she had nevertheless shown some interest in schoolwork. The individual plan had recommended that she step up her efforts to acquire knowledge on an ongoing, in-depth basis. 27. The report also noted that at the end of the 2013/14 school year, the applicant had achieved an average mark of 3.69 out of 6 and had therefore moved up to the next class, that she had also been awarded a certificate as a qualified seamstress and that she would be receiving a similar mark for the first semester of the 2014/15 school year. 28. With regard to the applicant’s telephone conversations, the report explained the applicable rules and stated that she had not been “deprived of telephone contact with her mother” or subjected to any restrictions on visits from her family, even though these had often taken place outside the times specified in the school’s internal rules. In addition, the applicant had never received any letters or parcels from her family. She had gone on home leave five times during the school holidays, from 21 December 2013 to 5 January 2014, from 30 January to 4 February 2014, from 28 March to 6 April 2014, from 4 July to 15 September 2014, and from 19 December 2014 to 4 January 2015. Each time, the applicant had returned late to the Podem school. 29. The report also stated that according to information from the police, the child had been suspected of stealing a mobile phone and jewels from a house on 4 January 2014. On being questioned by the police, she had handed over the items in question of her own accord. 30. Lastly, the report noted that the school’s committee on preventing the risks of assault and harassment of juveniles had not received any information to suggest that the applicant had been “sexually exploited” within the school itself. 31. Two reports issued in 2009 and 2013 by the State Agency for Child Protection include a summary of the findings of an assessment of the operation of the four correctional boarding schools in Bulgaria, including the one in Podem. They indicate that these schools had a total capacity of 405 places and that in 2013 there were 166 children attending them. There were 44 girls at the Podem school, all of whom had been admitted under the Juvenile Antisocial Behaviour Act. 32. The reports also note that there is a high pupil turnover rate during the school year because of the admission of juveniles on the basis of a placement order and because of their departure, in most cases on reaching the age of majority (18 years of age) or on the expiry of the statutory maximum duration of the placement. During 2009, twenty children ran away from the schools and eight left them following a positive annual assessment by the pedagogical council. During 2012/13, fewer than four children had a positive assessment and were therefore able to leave the correctional boarding schools. During the 2013/14 school year, there were no instances of children leaving the schools following a positive assessment. As regards the results achieved across all secure educational institutions in Bulgaria, the reports indicate that in 2009, 10% of pupils were awarded a vocational qualification, 35% successfully completed their secondary education up to the age of 14 and 3% successfully completed their secondary education up to the age of 18. The remaining 52% of pupils failed to complete their education. The 2013 report mentions a low success rate among pupils, with average marks of between 3 and 4 out of 6. According to the reports, these figures point to a problem as to the effectiveness of educational and rehabilitative measures, and even raise questions as to whether “such measures exist in practice”. 33. The reports further state that, in accordance with the applicable legislation, each correctional boarding school has a team responsible for educational and psychological assessment of pupils and a team of supervisors responsible for educational and rehabilitative support. The teams draw up annual individual plans for pupils, which in most cases are set out in a standardised form. Objectives relating to learning, education and development are general in nature and do not include any specific activities tailored to the individual needs, abilities, age and interests of the children concerned. The 2013 report is particularly critical of the prevalence of serious incidents involving suicide attempts or assaults on other pupils, and deplores the fact that no provision is made for follow-up action in the individual plans of the pupils concerned so that consideration can be given to the reasons for their actions and to their psychological state. 34. In addition, the reports note that the staff of the institutions concerned have undergone training covering matters such as alternative education methods for children in difficulty, development of their potential for autonomy and catering for individual needs. With regard to the Podem school in particular, the teaching and support staff are subject to external educational supervision. The reports nevertheless conclude that the number of people employed to run extracurricular activities is insufficient, although the children’s wide-ranging needs and their vulnerability suggest that educational activities should be arranged in small groups. They also criticise the lack of any programme to foster closer relations between children and their families. 35. Two types of problems are highlighted. The first type concerns the school curriculum and the second concerns the programme for social integration and rehabilitation. 36. Regarding schoolwork, the reports note, among other things, that illiteracy levels are a cause for concern, particularly as children of a wide range of ages and abilities are grouped together in the same class. A large number of pupils are unable to read or write on their arrival at the schools, and the curricula taught do not allow them to redress their shortcomings and make progress. Furthermore, many children with behavioural difficulties also encounter problems at school and the development of their ability for effective learning and independent work is impaired. These children often run away, do not attend lessons regularly and have insufficient contact with adults. 37. As far as the programme for social integration and rehabilitation is concerned, the reports state that, in addition to staff shortages, the existing groups of more than seven or eight children in difficulty cannot be effectively supervised, the activities on offer do not follow an appropriate methodology for vulnerable children, and no arrangements are made at the institutions to encourage contact between the children and their families, a shortcoming identified as a cause of aggressive behaviour. 38. Lastly, the 2009 report recommends in particular: (a) a general reform of the status of the institutions in question and of their operation, through the inclusion of alternative educational and preventive methods; (b) the introduction and development of units for preventing deviant behaviour, and their involvement as soon as children display the first signs of such behaviour; (c) shorter placements, with more emphasis on social rehabilitation and psychological support for children than on teaching; (d) returning the children in question to the ordinary school system, including in schools in their home area, rather than keeping them apart in specialist institutions, through an intensive individual integration scheme managed by teams of educational experts; (e) the introduction of programmes allowing young people to acquire vocational skills; (f) instilling an atmosphere of cooperation with families; (g) a reform whereby local committees for combating juvenile antisocial behaviour would no longer have a decisive role in taking educational measures and such decisions would be taken by a specialist judge alone; (h) abolition of punishments for juvenile antisocial behaviour; (i) abolition of criminal penalties for children under 14 years of age and their replacement by exclusively social and protective measures, applicable only in exceptional cases; (j) admitting children under 14 years of age to specialist institutions only where there is a social need or a need for protection; and (k) closure of the institutions in question, subject to the introduction of alternative protective and judicial measures in legislation and practice. 39. It appears that, following the 2009 report by the State Agency for Child Protection, the Ministry of Education and Science undertook to reform the secure institutions for juveniles in order to ensure that the system was entirely focused on the child and offered an individually tailored approach. Measures were subsequently put forward in an action plan for the implementation of the national policy strategy on juvenile justice for 2013-2020. Among the measures envisaged were: the repeal of the Juvenile Antisocial Behaviour Act and the introduction of a new Juvenile Justice Act for children in conflict with the law, with the aim of offering a wide range of social, educational and learning services to children in difficulty. ...