CASE OF VARBANOV v. BULGARIA
Preliminary objection rejected (abuse of right of petition);Violation of Art. 5-1;Violation of Art. 5-4;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
Georg Ress
8. The applicant is a Bulgarian national born in 1930 and living in Sofia. He is an economist, now retired. 9. On 6 October 1993 a Mr Z. lodged with the District Prosecutor's Office (Районна прокуратура) in Sofia a complaint against the applicant, stating that he was mentally ill and dangerous. The applicant and Mr Z. had been involved in disputes related to their joint business activity which had been the object of five sets of judicial proceedings between them. The applicant had apparently threatened Mr Z., stating in a letter to him that, inter alia, the only possible method of getting his money back was “the axe”, and that “a dog deserves a dog's death”. Mr Z., for his part, threatened the applicant with punishment according to medieval laws. 10. Following the receipt of Mr Z.'s complaint, the District Prosecutor's Office opened an inquiry. The purpose of the inquiry was, initially, to establish whether there were grounds to institute criminal proceedings against the applicant for having threatened to kill someone. On 14 October 1993 the prosecutor transmitted the file to the local police department with instructions to investigate Mr Z.'s complaint and to serve the applicant with a warning that he should cease his unlawful behaviour. On 20 October 1993, after hearing the applicant, a police officer drew up a report in which he stated, inter alia, that the applicant had repeated his threats against Mr Z., and that he appeared to have mental problems and was likely to carry out his threats. The police officer also heard a neighbour of the applicant who stated that he was a troublemaker. 11. The parties have submitted to the Court documents in respect of the applicant's mental health. A certificate issued on 18 October 1993 by a doctor at the Sofia City Psychiatric Clinic (Градски психиатричен диспансер) established that the applicant, who had requested a psychiatric examination declaring that he needed to have his capacity to make a will certified, was mentally healthy. In their report of 9 November 1995, the medical experts who examined the applicant during his confinement in a psychiatric hospital (see paragraph 26 below) concluded that he had a paranoiac psychosis, that he was aggressive and posed a threat to others. In a later certificate, issued on 4 March 1996, another doctor who had examined the applicant found that he was mentally healthy. The applicant did not have a history of psychiatric problems. 12. In February 1994 the District Prosecutor's Office instructed the local police department to inquire whether it was necessary to request, from the competent court, the applicant's compulsory psychiatric treatment under section 36 of the Public Health Act (Закон за народното здраве). 13. According to the applicant's version of the facts, in October 1993 and again in April 1994 he submitted to the prosecution authorities a copy of the certificate of 18 October 1993 which established that he was mentally healthy (see paragraph 11 above) and another document to that effect. He alleged that he had gone to the Sofia City Psychiatric Clinic on two occasions requesting to be examined, but that had been refused. 14. As it transpires from the summary of facts contained in the medical report of 9 November 1995 (see paragraph 26 below), in the course of the prosecutor's inquiry the applicant was invited on 9 May and again on 5 September 1994 by the director of the Sofia City Psychiatric Clinic to come for a psychiatric examination. It appears that the applicant received these invitations. He sent letters in reply stating, inter alia, that he would not undergo an examination unless an international commission were set up, and described the hospital as “corrupt” and as a “department of the State security police”. 15. On 27 January 1995 a prosecutor from the District Prosecutor's Office ordered that the applicant should be brought by force to a psychiatric hospital, and be kept there for twenty days to undergo a psychiatric examination. This was necessary in view of the prosecutor's intention to submit to the competent court a request for the applicant's committal for compulsory psychiatric treatment. The order also stated that it was issued pursuant to section 36 of the Public Health Act, section 22 of Guidelines no. 295/85 of the Chief Public Prosecutor's Office (Указание на Главна прокуратура) and section 4(2) of Instruction no. 1/81 of the Ministry of Public Health (инструкция на Министерство на народното здраве). It was based on the material collected in the course of the inquiry (see paragraphs 10-14 above). 16. On 30 January 1995 the prosecutor's file was sent to the psychiatric clinic in Sofia, with a copy to the local police. On 3 May 1995 the District Prosecutor's Office asked the police to explain their failure to enforce the order of 27 January 1995. On 16 August 1995 the police returned the file to the District Prosecutor's Office with the explanation that the applicant had not allowed access to his home. On 23 August 1995 the District Prosecutor's Office again transmitted the file to the police and insisted on the enforcement of the order of 27 January 1995. 17. On 31 August 1995, on the basis of the prosecutor's order of 27 January 1995, the applicant was taken from his home by the police and brought to a psychiatric hospital. The applicant underwent psychiatric examinations. He was given sedatives. The doctors also interviewed his wife, asking her questions about his past. 18. On 4 September 1995 the applicant was diagnosed as suffering from pneumonia. A treatment with antibiotics was applied. 19. On 5 September 1995 the applicant's wife submitted a complaint to the Sofia City Prosecutor's Office (Градска прокуратура). She stated, inter alia, that the manner in which her husband was treated was inhuman, that she had not been given a copy of the prosecutor's order and that she had not been allowed to visit her husband in the hospital until 2 September 1995. She asked the prosecutor to release the applicant from the psychiatric clinic. 20. On 15 September 1995 the applicant was transferred to a general hospital in a critical condition because of the developing pneumonia. In the following days his health improved. 21. It appears that during the first few days after his transfer to the general hospital the applicant remained under the control of a psychiatrist. He was instructed not to leave the room where he had been placed and was tied to his bed during the night. The applicant stated, and the Government did not dispute, that this situation lasted until 24 September 1995, when his health started to improve. 22. On 18 September 1995 the psychiatrists who were in charge of conducting the applicant's compulsory examination at the psychiatric hospital informed the District Prosecutor's Office about the applicant's transfer and requested an extension until 20 October 1995 of “the time-limit for the forensic psychiatric report”. The request was granted orally by telephone. It appears that the prosecutor did not make any formal order terminating the compulsory stay of the applicant at the psychiatric clinic. 23. On 11 October 1995 a regional prosecutor wrote to the applicant's wife in relation to her complaint of 5 September 1995. The letter stated only that her husband had been transferred to a general hospital and that, therefore, the district prosecutor would be given additional time to deal with his inquiry. 24. On 16 October 1995 the applicant was discharged from the general hospital and went home as “no psychiatric treatment was necessary at [that] moment”, according to a psychiatrist who had examined him. 25. In November 1995 and later again the applicant complained in respect of the events of August-September 1995 to the prosecution authorities stating, inter alia, that the district prosecutor had acted unlawfully. The complaints were examined by the Sofia City Prosecutor's Office and then by the Chief Public Prosecutor's Office, which replied by letters of 1 February and 12 June 1996 respectively that the district prosecutor had complied with the applicable procedure. The applicant also sent numerous letters to the Minister of Health, to the courts and to other institutions complaining that he had been ill-treated and that the doctors and the prosecutors wanted to kill him. He received answers from the public-health authorities reciting the sequence of events and assuring him that his suspicions were unfounded. 26. In the continuing inquiry of the district prosecutor, three medical experts, who had examined the applicant at the time when he was at the psychiatric hospital, delivered a report dated 9 November 1995 in which they recommended compulsory treatment because, inter alia, he did not understand his condition, refused any form of voluntary treatment and was extremely aggressive. 27. In January 1996 the district prosecutor submitted a request to the Sofia District Court (Районен съд) for an order committing the applicant for compulsory psychiatric treatment under section 36(3) of the Public Health Act. On 30 April 1996, after a hearing, the court dismissed the request. The applicant's and the prosecutor's ensuing appeals were rejected as being out of time. 28. According to section 36(3) to (6) read in conjunction with section 59(2), section 61 and section 62(1) of the Public Health Act, a mentally ill person can be committed for compulsory psychiatric treatment by a decision of a district court. Such judicial proceedings are instituted by a district prosecutor who is under the obligation to undertake a prior inquiry, including a psychiatric examination, in order to assess the need for instituting proceedings. The prosecutor therefore would normally invite the person concerned to undergo an examination in the framework of his inquiry. The Public Health Act, as in force at the relevant time, did not contain any provision expressly authorising a prosecutor to order a person to be brought by force to a hospital and detained there for the purpose of such a psychiatric examination. Under section 62(2), a prosecutor could issue an order for a compulsory examination, but only in respect of alcoholics or drug addicts. Certain powers were given to the prosecutor where the person's state of health required emergency measures. In such a situation the chief medical officer of a hospital could order a person's temporary compulsory treatment. The doctor had to inform immediately the competent prosecutor, who had to institute proceedings before the competent court (section 36(5) of the Act and section 70 of the Act's implementing regulations). According to Section 70(2) of the Act's implementing regulations, if the prosecutor refused to institute judicial proceedings, the chief medical officer had to release the patient immediately. 29. The relevant law did not provide for an appeal to a court where persons were detained for an examination in the framework of a district prosecutor's inquiry. Section 105(4) of the Public Health Act, read in conjunction with the Administrative Procedure Act (Закон за административното производство), provided for a judicial appeal, but only against orders for compulsory treatment of persons suffering from a contagious disease (section 36(2)) and against “[other orders] of the public-health authorities”, not of the prosecution authorities. 30. Instruction No. 1/81 of the Ministry of Public Health is a piece of delegated legislation. It is based on section 2 of the supplementary provisions to the Public Health Act, which stipulates that the Minister of Public Health shall issue regulations and instructions for the implementation of the Public Health Act. The instruction is published in the Official Gazette. Section 4(2) of the instruction, in its relevant part, provides as follows: “... the [forensic psychiatric] examination shall be effected by the health-care authorities with the consent of the person concerned. Where the person concerned does not consent, the health-care authorities shall promptly request a written order and assistance from a prosecutor or a court for the [person's] examination without admission to a hospital, or for the [person's] temporary committal to a psychiatric clinic for the purpose of effecting a forensic psychiatric examination.” 31. Guidelines no. 295/85 of the Chief Public Prosecutor's Office is an internal document for prosecutors in their work in cases of compulsory medical treatment. It has not been published. Sections 16 et seq. concern the steps to be taken where there has been information that a person may be liable to compulsory psychiatric or other treatment. These provisions deal with compulsory examinations and treatment of persons of unsound mind, alcoholics and drug addicts, without distinguishing between these three categories (in contrast to the provisions of the Public Health Act, where separate rules exist). According to the guidelines, following the receipt of a complaint or other information the prosecutor has to conduct an inquiry and, if there are clear indications that a psychiatric problem is involved, to invite the person concerned for a psychiatric examination. Section 21(2) provides as follows: “In case the person concerned does not appear [for the examination] within the time-limit indicated to him, the prosecutor shall order him to be brought by force by the police (section 62(2) of the Public Health Act).” Section 22 of the guidelines provides as follows: “Upon the proposal of the chief medical officer of the psychiatric clinic the prosecutor may, on the basis of the medical documentation provided, authorise in writing the temporary internment of mentally ill persons in a specialised hospital, for a psychiatric examination (section 70 of the Public Health Act's implementing regulations). The prosecutor shall then promptly submit a request for compulsory treatment.” 32. Certain amendments to the Public Health Act were introduced in February 1997. These amendments, in paragraphs 2 to 4 of section 61, provide that a prosecutor, in the framework of his inquiry, can order the confinement in a psychiatric hospital for up to thirty days (up to three months in exceptional cases), for the purpose of a medical examination, of a person who has refused to undergo such an examination voluntarily. However, no provision allowing judicial review of the prosecutor's order was introduced. The Code of Criminal Procedure, by virtue of an amendment in force since 1 January 2000, introduced a judicial procedure for the confinement in a psychiatric clinic of a person against whom criminal proceedings have been brought. This procedure, however, does not concern persons who have been confined in a clinic for a psychiatric examination pursuant to a prosecutor's order under section 61 of the Public Health Act.