LAZAROVI v. BULGARIA
Inadmissible
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva
1. The applicants, Mrs Dimitrina Yoncheva Lazarova, Mr Yordan Ivanov Lazarov and Mr Ivan Yordanov Lazarov, are Bulgarian nationals who were born in 1946, 1949 and 1969 respectively and live in Veliko Tarnovo. They were represented before the Court by Ms A. Mircheva, a lawyer practising in Sofia, and Ms L. Nelson and Ms A. Tamamović from the Mental Disability Advocacy Center in Budapest, Hungary. The applicants stated that they were also submitting the application on behalf of their relative Ms Valya Yordanova Lazarova, who had died on an unspecified date at the beginning of 2007. 2. The Bulgarian Government (“the Government”) were represented by their Agent, Mr V. Obretenov, of the Ministry of Justice. 3. In 1992 Valya Lazarova, who was the daughter of the first and second applicants and the sister of the third applicant, and was born in 1974, was diagnosed with schizophrenia. In December 1998 she was declared mentally incapable by the Veliko Tarnovo Regional Court and was deprived of legal capacity. No guardian was appointed as it was decided that she would be represented by her parents. 4. As Valya’s state of health deteriorated, on 6 June 1998 the family placed her in an institution, the Social Care Home for Mentally Ill Adults in the village of Radovtsi (hereafter referred to as “the Radovtsi Home”). The home was financed by the State and managed by the mayor of the Dryanovo municipality. 5. An inspection by the Social Assistance Agency carried out in October 2006 established that the Radovtsi Home housed 114 mentally ill patients at the time. The building was in a poor state of repair due to the lack of funds to carry out renovation work. 6. The inspectors also established that during the day twenty inmates of the home whose state of health was especially poor were kept in a locked room, known as the “room for special care”. The inspectors recommended the closure of the room, which was implemented on 1 November 2006. After that date the inmates were allowed to move around freely within the building, the doors of which nevertheless remained locked. The yard outside, occupying an area of about 6,000 square metres, was enclosed by a wire fence. Even though on some occasions inmates managed to leave the home, they always returned promptly. 7. At around 11.30 a.m. on 3 January 2007 a member of the staff of the Radovtsi Home administered a medication with a sedative and tranquilising effect to Ms Lazarova. Sometime later, around lunchtime, Ms Lazarova could not be found. Another inmate had seen her shortly beforehand, when Ms Lazarova had said that she was very hungry and was going to look for a friend of hers in the village. The gates had been open. 8. At about 12.15 p.m. the staff informed the director of the home of Ms Lazarova’s disappearance. They conducted a search of the area: on foot in the vicinity of the building and by vehicle in the neighbouring villages. They checked abandoned and derelict buildings. It had been snowing, but as the roads had just been cleaned, there were no footprints. It appears that the search may have been suspended at nightfall, although some documents indicate that it continued until 10.30 p.m. The search was resumed the next day. Oral contact with the police was established at around 1.30 p.m. on 3 January, and written contact on 4 January 2007, when Ms Lazarova was officially declared missing. The staff of the home and the police questioned the inhabitants of the neighbouring villages, some of whom said that they had seen a woman they did not know. However, Ms Lazarova was not found when the locations concerned were visited and searched. The search continued over the following days but did not yield any result. 9. The case file contains contradictory information as to the date on which the Radovtsi Home staff informed the applicants about their relative’s disappearance. Some documents indicate that this happened on 3 January, whereas the applicants allege that they were not contacted until 8 January 2007. 10. Valya Lazarova’s body was found on 22 January 2007, approximately eight kilometres away from the home. According to the post mortem, her death was due to hypothermia and physical exhaustion. There were no traces of physical violence. Death had occurred at least ten days before the body’s discovery. 11. On 24 January 2007 the third applicant lodged a complaint with the prosecution authorities alleging that the staff of the Radovtsi Home were responsible for his sister’s disappearance from the home and her subsequent death. 12. In a decision of 9 March 2007 a prosecutor from the Gabrovo regional public prosecutor’s office concluded that there was no indication that Ms Lazarova had been the victim of intentional homicide. 13. A separate investigation was opened in relation to offences under Articles 137 and 138 of the Criminal Code, namely exposing the life of a vulnerable person to risk and failing to assist a vulnerable person. In a decision dated 9 March 2007 a prosecutor from the Dryanovo district public prosecutor’s office refused to institute formal criminal proceedings against identified persons under those provisions, noting that on the day when Valya Lazarova had disappeared there had been three members of the medical staff and four orderlies on duty. None of them had been personally responsible for ensuring the inmates’ physical presence. Accordingly, it did not appear that any of them had committed an offence under Articles 137 or 138 of the Criminal Code. 14. Upon an appeal by the third applicant, on 5 April 2007 a prosecutor from the Gabrovo regional public prosecutor’s office quashed the abovementioned decision and ordered a further investigation into the matter. 15. The Dryanovo district public prosecutor’s office interviewed the staff who had been on duty on 3 January 2007, residents of the village of Radovtsi and the people who had participated in the search following Valya Lazarova’s disappearance. In a decision of 21 May 2007 a prosecutor from that office again refused to institute criminal proceedings, concluding that there was no indication that any of the staff members of the Radovtsi Home had committed an offence. 16. Upon a further appeal by the third applicant, on 22 June 2007 that decision was upheld by the Gabrovo regional public prosecutor’s office. In addition to the findings of the Dryanovo public prosecutor’s office, it noted that the building housing the Radovtsi Home had been in a poor state of repair and that the institution had been understaffed. This, combined with the very poor state of health of the inmates, had facilitated Valya Lazarova’s disappearance from the home; however, these factors had not been within the staff’s control. Accordingly, none of the staff members, including the director of the home, could be held criminally liable. 17. In decisions dated 29 August and 24 October 2007 respectively, the Veliko Tarnovo appellate prosecutor’s office and the Chief Public Prosecutor’s Office upheld the above-mentioned decisions. 18. On an unspecified date the third applicant also complained to the Ministry of Labour and Social Policy, which conducted an inquiry and informed the applicant of its findings in a letter dated 25 March 2007. The inquiry showed that the director of the Radovtsi Home had been informed of Ms Lazarova’s disappearance at about 12.15 p.m. on 3 January 2007. The search had started immediately after that. Members of the staff had searched the neighbouring villages. The police and the mountain rescue service had joined in as well. The enquiry concluded that the search had been prompt and adequate. Moreover, it transpired that Ms Lazarova had left the home on another occasion in 2005, but had been found the same day. 19. On 13 November 2007 the applicants brought a tort action against the Dryanovo municipality, the Ministry of Labour and Social Policy and the State under the State and Municipalities Responsibility for Damage Act (“the SMRDA”, see paragraph 23 below). They claimed 33,000 Bulgarian levs for each of them in compensation for non-pecuniary damage resulting from Valya Lazarova’s death. In their statement of claim they argued that the medical treatment and the care provided to Ms Lazarova in the Radovtsi Home had been inadequate and that her needs had been neglected. They pointed out that the “room for special care” in the home had been closed in 2006, and argued that inmates in a serious state of health had been provided with no alternative care. In addition, they alleged that the staff of the home had not been sufficiently trained and had not treated the inmates in a humane manner. They also pointed out that the living conditions in the home had been poor. They argued that Valya Lazarova’s death was “directly and immediately linked to the lack of appropriate care in the social institution, lack of administrative supervision on the part of the Dryanovo municipality, lack of adequate support for the institution’s work and lack of good practice”. 20. The statement of claim was reviewed by a judge of the Gabrovo Administrative Court, who on 10 July 2008 instructed the applicants to specify those administrative duties performed by the defendants in the course of which the alleged damage had occurred. The judge also asked for clarification of the specific acts and omissions complained of in respect of each defendant and the grounds for viewing these acts or omissions as unlawful. 21. In response, on 22 July 2008 the applicants submitted that the mayor of the Dryanovo municipality, in his role as employer, and the bodies responsible for social assistance (forming part of the centralised Social Assistance Agency) had failed to monitor the staff of the Radovtsi Home as regards the performance of their duty to “provide individually tailored social services and assess the needs of Valya Lazarova” and had failed to ensure the presence of qualified medical personnel. They alleged that the mayor had also failed to ensure that the living conditions in the home were satisfactory in relation to Ms Lazarova’s state of health and that the Minister of Labour and Social Policy had failed to ensure methodical assistance, administrative supervision and the necessary financing. As to the State, represented by the Council of Ministers, they claimed that it had not created the necessary legislative framework, had not adopted policies ensuring that staff of social care institutions were adequately qualified, and had not provided the Dryanovo municipality with the financing needed by the Radovtsi Home. 22. In a decision dated 23 September 2008 the Gabrovo Administrative Court refused to accept the statement of claim for examination, noting that the applicants had failed to provide the information and the clarification requested on 10 July 2008. In particular, it considered that the submissions of 22 July 2008 mostly restated the initial statement of claim and that the inclusion of a new possible defendant, the Social Assistance Agency, led to confusion. It thus concluded that “neither the [statement of claim], nor the additional submissions contain a request to order the cessation of an action that is not based on an administrative decision or on law, nor do they allege failure to take actions which the administrative body is obliged to take pursuant to the law, which actions or omissions are causally linked to the damage they allegedly sustained.” 23. Upon an appeal by the applicants, on 12 January 2009 the abovementioned decision was upheld by the Supreme Administrative Court. 24. The State and Municipalities Responsibility for Damage Act (“the SMRDA”) provides in section 1(1) that the State and the municipalities are liable for damage caused to private individuals and legal entities as a result of unlawful decisions, acts or omissions of their authorities or officials while discharging their administrative duties. Since 1 March 2007 claims under section 1(1) of the SMRDA have been examined by the administrative courts under the rules of the Code of Administrative Procedure. 25. It is also possible to seek damages from the State and the municipalities under the general tort provisions (sections 45 et seq.) of the Obligations and Contracts Act. Legal persons may be vicariously liable under section 49 of the Act, which provides that a person who has entrusted another with performing 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. In this case the employer’s liability is presumed and is to be engaged even where it cannot be established which of its employees has caused the damage (ППВС № 7 от 1959 г., ППВС № 4 от 30.10.1975 г.). Section 49 of the Obligations and Contracts Act has been successfully relied on in a case which, like the present one, concerned the disappearance and the subsequent death of a mentally ill patient placed in a social care institution. The domestic courts, which found that the staff of the institution – by virtue of its internal rules – had been responsible for constantly monitoring and supervising the claimants’ relative, ordered the mayor of the respective municipality, as their employer, to pay the damages sought (Решение от 11.12.2006 г., Софийски градски съд I ГО, гр. д. № 2216/2005 г.; Решение № 91 от 30.07.2008 г., Софийски апелативен съд, Гражданска колегия, гр. д. № 824/2007; Определение № 693 от 26.06.2009 г. по гр. д. № 824/2007, ВКС, III г. о.).