CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 26 août 2014

.s800EAC49 { font-size:12pt } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .sBB9EE52A { font-family:Arial } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sB8987CE9 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .sC8702D41 { width:154.61pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block }       FOURTH SECTION DECISION Application no. 26874/08 Ivan Yordanov LAZAROV and others against Bulgaria The European Court of Human Rights (Fourth Section), sitting on 26   August 2014 as a Chamber composed of:   Ineta Ziemele, President ,   Päivi Hirvelä,   George Nicolaou,   Ledi Bianku,   Zdravka Kalaydjieva,   Krzysztof Wojtyczek,   Faris Vehabović, judges , and Françoise Elens-Passos, Section Registrar , Having regard to the above application lodged on 17 April 2008, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants, Having deliberated, decides as follows: THE FACTS 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. A.     The circumstances of the case 1.     Placement of Valya Lazarova in the Radovtsi Home 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. 2.     Disappearance and death of Valya Lazarova 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. 3.     Criminal proceedings 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 above ‑ mentioned 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. 4.     Conclusions of the Ministry of Labour and Social Policy 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. 5.     Civil proceedings 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 above ‑ mentioned decision was upheld by the Supreme Administrative Court. B.     Relevant domestic law and practice 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. ). COMPLAINTS 26.     Relying on Articles 3 and 8 of the Convention, the applicants complained that Valya Lazarova had not been adequately cared for in the Radovtsi Home, that she had been the victim of violence on the part of the staff and other residents, and that the authorities had failed to investigate her ill-treatment. 27.     Relying on Article 2 and Article 8 of the Convention, the applicants also complained that the authorities were responsible for Valya Lazarova’s death. They argued that the Radovtsi Home staff had left their relative unattended and, more generally, had failed to take appropriate care of her and take the necessary security measures following previous escapes from the home. In addition, once Ms Lazarova’s disappearance had been discovered, the search had not been organised and carried out in a vigorous and effective manner. The applicants complained that they had been informed belatedly of her disappearance from the home. They also complained about the subsequent investigation of the accident and the authorities’ failure to establish individual responsibility. THE LAW A.     Victim status of Valya Lazarova and of the remaining applicants 28.     The Court notes at the outset that the present application, which concerns chiefly the death of Valya Lazarova, was lodged by her relatives, who also stated that they were lodging it on her behalf (see paragraph 1 above). The Court has held that, in principle, an application cannot be brought in the name of a deceased person, since such a person cannot, even through a representative, lodge an application with the Court, (see Macedonia Gavrielidou and Others v. Cyprus , no. 73802/01, 13 November 2003; Kaya and Pulat v. Turkey (dec.), nos. 2794/05 and 40345/05, 21   October 2008; Dupin v. Croatia , no. 36868/03, 7 July 2009; and Vidić   and Others v. Serbia , nos. 60/10, 77/10 and 110/10, 14 January 2014). Under Article 2 of the Convention the Court will thus examine the complaints raised by the remaining applicants, namely Ms Dimitrina Yoncheva Lazarova, Mr Yordan Ivanov Lazarov and Mr Ivan Yordanov Lazarov. It recalls that it has recognised the standing of the victim’s next ‑ of ‑ kin to complain to it where the victim died in circumstances which were alleged to engage the responsibility of the State (see Dvořáček and   Dvořáčková v. Slovakia , no. 30754/04, § 40, 28 July 2009; Kats   and   Others v. Ukraine , no. 29971/04, § 135, 18 December 2008; and Konashevskaya and Others v. Russia , no. 3009/07, § 30, 3 June 2010). 29.     As to the complaints by these applicants under Article 3 and Article   8 of the Convention, concerning the quality of the care provided to Valya Lazarova in the Radovtsi Home and her alleged ill-treatment (see paragraph 26 above), the Court is of the view that these applicants cannot claim to be victims of these alleged violations (see Sanles Sanles v. Spain (dec.), no. 48335/99, 26 October 2000; Fairfield and Others v. the United Kingdom (dec.), no. 24790/04, 8 March 2005; and Kaburov v. Bulgaria (dec.), no. 9035/06, 19 June 2012; compare Koch v. Germany , no. 497/09, §§   43 ‑ 50, 19 July 2012). Accordingly, that this part of the application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a). B.     Complaints under Article 2 of the Convention 30.     The applicants complained that the authorities were responsible for their relative’s death (see paragraph 27 above). 31.     The Government argued that the applicants had failed to exhaust all available domestic remedies, as they had failed to duly bring a tort action against the mayor of Dryanovo, in his capacity as employer of the staff of the Radovtsi Home. In support of that argument the Government submitted several judgments in which the national courts had allowed tort actions against municipalities under the relevant provisions of the Obligations and Contracts Act. In addition, the Government relied on the Court’s findings in the case of Vo v. France ([GC] no. 53924/00, ECHR 2004 ‑ VIII). They were also of the opinion that the State had created the statutory framework necessary for the protection of life. 32.     The applicants disagreed. They pointed out that they had brought an action under the SMRDA which had not been examined. They considered that their case should be differentiated from cases of medical negligence, such as Calvelli and Ciglio v. Italy ([GC] no. 32967/96, ECHR 2002 ‑ I), since Ms Lazarova had not died as a result of such negligence but owing to deficient security measures at the Radovtsi Home. In their view, the result of applying the standards developed by the Court in cases of medical negligence would be to “excuse the absence of a thorough and meaningful criminal investigation”. 33.     The Court reiterates that the first sentence of Article 2 – which ranks as one of the most fundamental provisions in the Convention and also enshrines one of the basic values of the democratic societies making up the Council of Europe – enjoins the State not only to refrain from the “intentional” taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see Calvelli and Ciglio , cited above, § 48, with further references). The Court has held this positive obligation to be applicable, inter alia , in the medical sphere (see, for example, Calvelli and Ciglio and Vo , both cited above) and to the provision of social care to the elderly (see Dodov v. Bulgaria , no. 59548/00, 17   January 2008) and to other vulnerable persons confined into the care of the State (see Nencheva and Others v. Bulgaria , no. 48609/06, 18 June 2013). 34.     In addition, where lives have been lost in circumstances potentially engaging the responsibility of the State, Article 2 of the Convention entails a duty for the State to ensure, by all means at its disposal, an adequate response (see, for example, Budayeva and Others v. Russia , nos. 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02, § 138, ECHR 2008 (extracts)). The Court has held that this obligation does not necessarily require the provision of a criminal-law remedy. Where death has been caused through negligence, the State’s procedural obligation could also be satisfied if the legal system afforded victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts (see Calvelli and Ciglio , § 51, Vo , § 90, and Dodov , § 80, all cited above; Šilih   v.   Slovenia [GC], no. 71463/01, § 194, 9 April 2009; Zavoloka v.   Latvia , no. 58447/00, § 34, 7 July 2009; and Anna Todorova v. Bulgaria , no.   23302/03, § 73, 24 May 2011). 35.     Furthermore, the Court reiterates that under the terms of Article 35 §   1 of the Convention it can only deal with a matter after all domestic remedies have been exhausted. The purpose of Article 35 § 1 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V, and Estrikh v. Latvia , no. 73819/01, § 92, 18 January 2007). Article 35 § 1 normally requires that the complaints intended to be made subsequently at Strasbourg should have been raised before the domestic authorities in compliance with the formal requirements laid down in national law (see Cardot v. France , 19 March 1991, § 34, Series A no. 200; Gäfgen v.   Germany [GC], no. 22978/05, § 142, ECHR 2010; and Vučković and   Others v. Serbia [GC], no. 17153/11, § 72, 25 March 2014). 36.     In the instant case, there is nothing to indicate that Valya Lazarova’s death was caused intentionally, and the circumstances in which it occurred were not such as to raise suspicions in that regard. Therefore, Article 2 of the Convention did not necessarily require a criminal-law remedy and could be satisfied if the applicants had at their disposal an effective civil-law remedy (see paragraph 34 above and the case law referred to therein). 37.     Nevertheless, the Court observes that the applicants had recourse to a criminal-law remedy and that the prosecution authorities examined the circumstances of Valya Lazarova’s death. The Court does not see as problematic the fact, complained of by the applicants, that the criminal investigation did not establish any individual criminal liability on the part of the members of staff of the Radovtsi Home or other persons. It notes that where criminal proceedings have been had recourse to, Article 2 of the Convention does not necessarily require a subsequent criminal conviction (see Stoyanovi v. Bulgaria , no. 42980/04, § 66, 9 November 2010). 38.     The applicants also had at their disposal a civil-law remedy, namely an action for damages. The Court sees no reason to question the effectiveness of this remedy in theory, and notes that it has been successfully made use of in a case comparable to the present one, where it led to the establishment of responsibility for the death of the claimants’ relative, a mentally ill person who had been placed in a social care institution, and to the award of appropriate redress (see paragraph 25 above). 39.     As to the effectiveness of the civil-law remedy in practice, the Court notes that when the applicants brought a tort action under the SMRDA, their statement of claim was left unexamined by the Gabrovo Administrative Court, because it found that they had failed to refer to unlawful actions or omissions on the part of the authorities which were directly causally linked to their relative’s death. Thus, it considered that the applicants had failed to submit the requisite clarification as requested by it (see paragraphs 19-23 above). 40.     The Court notes that after this finding it remained open for the applicants to bring a new action, under the SMRDA or under the Obligations and Contracts Act (see paragraphs 24-25 above), complying with the relevant requirements. They have not done so. 41.     The Court thus accepts the Government’s argument (see paragraph   31 above) that the applicants failed to exhaust available domestic remedies. 42.     It follows that the complaint under Article 2 must be rejected under Article 35 §§ 1 and 4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible. Françoise Elens-Passos   Ineta Ziemele   Registrar   President