CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 1 septembre 2015

.s800EAC49 { font-size:12pt } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .sBB9EE52A { font-family:Arial } .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 } .sA20670C4 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .s5F897A7E { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt } .s7E985A65 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; font-size:1pt } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .sF3B96856 { width:11.87pt; display:inline-block } .s3137C850 { width:204.1pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block }   FOURTH SECTION DECISION Application no. 56668/12 Alisiya Yurieva KORPACHYOVA-HOFBAUER against Bulgaria The European Court of Human Rights (Fourth Section), sitting on 1   September 2015 as a Chamber composed of:   Guido Raimondi, President ,   George Nicolaou,   Ledi Bianku,   Nona Tsotsoria,   Paul Mahoney,   Faris Vehabović,   Yonko Grozev, judges , and Fatoş Aracı, Deputy Section Registrar , Having regard to the above application lodged on 14 August 2012, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS 1.     The applicant, Ms Alisiya Yurieva Korpachyova-Hofbauer, is a Bulgarian national who was born in 1979 and lives in Wanfried, Germany. She was represented before the Court by her mother, Ms V. Shopova, who on 13 October 2014 was granted leave by the President of the Section under Rule 36 § 4 (a) of the Rules of Court to act on her daughter’s behalf in the proceedings before the Court. 2.     The Bulgarian Government (“the Government”) were represented by their Agent, Ms D. Dramova, of the Ministry of Justice. A.     The circumstances of the case 3.     The facts of the case, as submitted by the parties and established by the Court, may be summarised as follows. 1.     The applicant’s detention in Sveti Ivan Rilski State Psychiatric Hospital 4.     On 6 February 2012 the applicant, who suffered from a schizoaffective disorder, attacked her mother with a knife in their home. The police, who had been called by the applicant’s mother, arrested the applicant and took her to a centre for psychiatric health in Sofia. She remained there until 22 February, when the Sofia District Court ordered her to be transferred to Sveti Ivan Rilski State Psychiatric Hospital in Novi Iskar for two months’ compulsory treatment. The applicant appealed against that order, challenging in particular the court’s ruling as to the precise facility in which she was to be treated. Her mother, who was heard as a witness in the course of the appeal proceedings, also stated that she would prefer the applicant to be treated elsewhere, preferably as an outpatient. The Sofia City Court dismissed the appeal on 6 March 2012. 5.     Sveti Ivan Rilski State Psychiatric Hospital, which is State-owned and operated, is situated at the outskirts of the town of Novi Iskar, at about one kilometre from the nearest neighbourhood, about eighteen kilometres from the centre of Sofia, and about four kilometres from Sofia’s ring road. It was created in 1949, using some of the premises of a nearby monastery, and consists of several buildings. 6.     During the first week of her stay in that hospital, the applicant was placed under a “heightened security regime”, which meant she was not allowed to leave her ward unaccompanied. According to the hospital’s director, placing patients whose compulsory treatment had been ordered by a court under that regime was common practice as it allowed for an initial assessment of their condition. 7.     After the first week the applicant’s regime was relaxed and she was allowed to move around the hospital grounds and take part in art therapy sessions. As her mental health improved – according to the Government as a result of the medication that she was given – her regime was relaxed even further, and between 15 and 17 March 2012 she was granted home leave. On 29 March 2012 her treatment continued on an outpatient basis, which meant that after that date she was only required to be present at the hospital during the day for medication and art therapy, but did not have to stay overnight. 8.     The applicant’s compulsory treatment came to an end on 20 April 2012. 2.     The conditions of the applicant’s detention in Sveti Ivan Rilski State Psychiatric Hospital (a)     The applicant’s allegations 9.     The applicant submitted that during the first week of her stay in Sveti Ivan Rilski State Psychiatric Hospital she had been assaulted by another patient. In the course of the hearing of the applicant’s appeal against the Sofia District Court’s order for her compulsory treatment, the applicant’s mother gave evidence that the applicant had told her that on 29 February 2012 a newly arrived patient had assaulted her in the shower, pushing her in the chest. She had however not sustained any injuries as a result, and had not called for help, apparently because she had felt scared. When her mother had visited her the next day, 1 March, the two had brought the incident to the attention of three members of the nursing staff, who had advised the applicant to call for help if such an incident were to occur again. On the basis of that evidence, the appellate court accepted that an incident with another patient had taken place. However, it noted that the proper way to deal with such matters was not to seek transfer to another hospital but to inform the nursing staff and ask them to take steps to avert future incidents, which was exactly what had happened. In the course of the same hearing the applicant said that the temperature in the hospital was too low for her to feel comfortable and that as a result she had a sore throat. 10.     According to the applicant, conditions in the hospital were quite poor, characterised by insufficient funding and staffing levels, inter-patient violence, low temperatures in winter and frequent flooding. The hospital’s director had herself said in media interviews that the premises were old and impractical, with broken and mouldy walls and broken tiles, and that there had been cases of violence, including on one occasion against the director herself. (b)     The Ombudsman’s 2012 report 11.     In support of her allegations, the applicant referred to a report by the Ombudsman of the Republic of Bulgaria drawn up after members of his staff had inspected the hospital on 26 June 2012 in their capacity as designated national preventive mechanism under Article 17 of the 2002 Optional Protocol to the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (2375 United Nations Treaty Series 237), which entered into force in respect of Bulgaria on 1 July 2011. 12.     The report began by noting that one of the hospital’s chief problems was its remoteness, which rendered access for patients’ relatives difficult, especially in winter. The other big problem was that the premises and the hygienic and material conditions did not live up to the applicable medical standards. The buildings were old and in a “deplorable” state of repair, despite partial renovation works carried out about a month before the inspection. The equipment was outdated and inadequate. As a result of a damaged dyke on the nearby Iskar River, the premises were flooded every year. The room in which food was being served to patients had leaks, mould on the ceiling and rusty equipment. 13.     Patients were accommodated in rooms with three or four beds each. Each of the hospital’s wards housed about thirty-five patients and had two bathrooms and two toilets, found by the report to be “utterly insufficient”. Patients were allowed out of their rooms for one to one-and-a-half hours per day. Visits were permitted twice a week and had to take place in the yard, weather permitting. At the time of the inspection the hospital had one hundred and forty patients. Thirty-two of them were in the female ward, which was staffed by three medical doctors, one psychologist, eight nurses and ten orderlies. The hospital lacked almost all of the medical equipment required under the applicable regulations. It had never been audited, and did not properly record medical conditions other than the mental illnesses in connection with which the patients had been admitted. Patients who died in the hospital were not subjected to an autopsy, and patients who had to be restrained were not kept separate from other patients, as required under the applicable regulations. 14.     In view of those findings, the report recommended that the hospital gradually be closed and transferred to new premises in Sofia. 15.     In a letter to the Ombudsman dated 16 August 2014 in response to that recommendation, the Ministry of Health explained that the hospital’s possible relocation had been discussed on several occasions, but no decision had yet been taken. (c)     The 2014 audit report 16.     Between 29 July and 1 August 2014 a team from the Ministry of Health audited the hospital, and on 18 August 2014 drew up a report. With regard to material conditions in the hospital, the audit report likewise noted that its premises were in a very poor state of repair and “dangerous for the health and lives” of patients and staff. It also noted that the buildings were regularly flooded, and that their foundations were not waterproof. Minor repair works such as repainting and a partial renovation of the roof had been carried out in 2012 and 2013. 17.     The report, which also addressed the applicant’s situation, noted that the ward in which she had been kept had rooms with three or four beds each, and two bathrooms and toilets. The building, which had a local steam heating system, did not have proper isolation and could not be optimally heated. The nurses had kept records of room temperatures, taking the following readings at the time of the applicant’s stay: 17 degrees Celsius during the night of 23 February 2012, and 18 degrees Celsius during the nights of 25 February and 3 March 2012. The report also noted that in the applicant’s ward, patients were free to leave their rooms and move around. Those of them who, like the applicant initially, were placed under the “heightened security regime” were not allowed to leave the ward unaccompanied, in order to avoid acts of aggression, suicides or escapes, and were kept under constant supervision. (d)     Other information about conditions in the hospital 18.     A report about the hospital aired by Darik Radio on 4 April 2011 and available online described derelict buildings with cracked walls, missing plaster and mould. According to that report, in winter temperature in some of the wards did not exceed 13 degrees Celsius. At the time of the journalist’s visit the hospital’s kitchen had been flooded. The poor state of the premises was also described in reports aired on 7 April 2011 by TV7 and on 24 January 2014 by Nova TV, also available online. COMPLAINT 19.     The applicant complained under Article 3 of the Convention that the conditions in Sveti Ivan Rilski State Psychiatric Hospital had been such that her stay there could be characterised as inhuman and degrading treatment. THE LAW 20.     In respect of her complaint concerning the conditions in Sveti Ivan Rilski State Psychiatric Hospital the applicant relied on Article 3 of the Convention, which provides as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A.     The parties’ submissions 21.     The Government submitted that the applicant had failed to exhaust domestic remedies, as she had not brought a claim for damages under section 1 of the State and Municipalities Liability for Damage Act 1988 or a general tort claim under sections 45 and 49 of the Obligations and Contracts Act 1951. They referred to a number of judgments and decisions in which the Court had accepted that a claim under section 1 of the 1988 Act was an effective domestic remedy in respect of poor conditions of detention in prisons and pre-trial detention facilities in Bulgaria, and to many domestic decisions allowing such claims. Since the applicant’s case, although concerning conditions in a psychiatric hospital, was analogous to those cases, it was open to her to likewise raise her grievances relating to the conditions of her detention by means of such a claim, directed either against the hospital or against the Ministry of Health. In support of that assertion, the Government referred to two decisions in which the Bulgarian courts had held that State psychiatric hospitals could be held liable under section 1 of the 1988 Act for unlawful detention, and to decisions in which such hospitals had been found liable under section 49 of the 1951 Act. 22.     The applicant submitted that a claim under the 1988 Act did not provide reliable protection against breaches of the Convention and that such a claim would not have secured her release from the hospital. 23.     With regard to the substance of the complaint, the Government argued that the conditions in which the applicant had been kept in Sveti Ivan Rilski State Psychiatric Hospital had not reached the minimum level of severity to be regarded as inhuman or degrading treatment within the meaning of Article 3 of the Convention. They pointed out that after her admission to the hospital, the applicant’s mental health had rapidly improved, to the point that it had been possible quickly to relax the initial strict regime under which she had been placed, grant her home leave, and then continue her treatment as an outpatient, with the result that the amount of time that she had spent in the impugned conditions had been rather limited. According to the Government, the applicant’s allegations with regard to the conditions in the hospital were subjective, untrustworthy and unsupported by evidence. In particular, her allegations that it had been very cold were contradicted by temperature readings carried out by staff at the time of her stay there. The staff’s attitude to her had been very good, she had been allowed to move freely around, and had been provided with the necessary medication. The Government also noted that the hospital had undergone renovation works in 2012 and 2013, and that it was not as inaccessible as the applicant made it out to be. They went on to say that the purpose of the applicant’s detention had not been to subject her to ill ‑ treatment but to provide her with medical care. 24.     The applicant submitted that in the course of her stay in the hospital she had been treated as an object and that the conditions there had been miserable. Cold and hunger had been driving the patients to steal clothes, shoes and food from each other; this had forced her mother to visit her every other day. She had had to put on two coats to keep warm, but her hands had still been very cold. She had developed a common cold and was coughing, but had not been given any medication for that. On one occasion she had been attacked by another patient but had not complained in writing because the orderlies mistreated patients who did so. She had also been threatened with being placed in the isolation unit. B.     The Court’s assessment 25.     In the present case, it is not necessary to determine whether the applicant has complied with the requirement under Article 35 § 1 of the Convention to exhaust domestic remedies with respect to her complaint about the conditions of her detention because this complaint is in any event manifestly ill-founded, for the reasons that follow. 26.     The general principles governing the assessment of conditions of detention in psychiatric institutions by reference to Article 3 of the Convention were recently summarised in Stanev v. Bulgaria ([GC], no.   36760/06, §§ 201-06, ECHR 2012), and there is no need to repeat them here. 27.     It is, on the other hand, important to point out that the Court’s task in these proceedings does not consist in assessing whether the psychiatric hospital in which the applicant was confined for compulsory treatment was properly equipped, fit for its intended purpose, and corresponding to all requirements for the operation of such hospitals under Bulgarian law. The Court must rather examine the specific conditions in which the applicant was kept and decide whether their effect on her was such as to be regarded as inhuman or degrading treatment within the meaning of Article 3 of the Convention. So, while having regard to the findings of the Ombudsman ‑ which provide a description, as of June 2012, of the general situation in the hospital – the Court will focus on the applicant’s individual situation, as it was at the relevant time, and on the extent to which she was personally affected by the failings noted by the Ombudsman (see, mutatis mutandis , Narcisio v. the Netherlands (dec.), no. 47810/99, 27 January 2005, and Ivanova-Sokolova v. Bulgaria (dec.), no. 26057/04, 29 April 2008). 28.     The applicant was admitted to the hospital on 22 February 2012. Although her compulsory treatment there was to continue for two months, until 22 April, after 29 March it continued on an outpatient basis, and she was only required to remain in the hospital during the day for medication and therapy and could go home at night. It should in addition be noted that between 15 and 17 March the applicant was granted home leave. Her detention in allegedly inhuman and degrading conditions thus lasted a total of one month and four days. 29.     The available information and in particular the Ombudsman’s report show that the general conditions in the hospital were far from satisfactory. However, it cannot be overlooked that the applicant did not specify in what way the particular failings identified in that report affected her during her stay there. For instance, it does not appear that the hospital’s location prevented the applicant from being visited by her relatives – indeed, her mother apparently visited her quite frequently. Nor is there any indication that the hospital’s lack of proper medical equipment affected the applicant in any particular way, for instance by rendering impossible any required medical procedures. The same goes for the limited number of bathrooms and toilets (two for up to thirty-five patients): the applicant did not specify whether she was prevented from using those facilities or had difficulties accessing them. Indeed, except for her allegations of low temperatures, the applicant did not describe with any particularity the conditions in which she was kept (see, mutatis mutandis , Pūce v. Latvia (dec.), no. 38068/08, § 34, 9   December 2014), and even those allegations are to some extent contradicted by the three temperature readings provided by the Government, whose accuracy she did not contest. 30.     It is true that it might be unreasonable to expect mentally disturbed persons to give a detailed and coherent description of what they have experienced in the course of their detention (see Aerts v. Belgium , 30 July 1998, § 66, Reports of Judgments and Decisions 1998-V). It is also true that detailed information relating to conditions of detention often falls within the exclusive knowledge of the domestic authorities, and that applicants might experience difficulties in procuring evidence in relation to that. Still, they can be expected to submit at least an account of the circumstances they have experienced and provide, to the greatest extent possible, some evidence in support of their allegations (see Krempl v. Slovenia (dec.), no. 6427/10, 25   June 2013). In this case, this could also have been done by the applicant’s mother, who represented her in the proceedings before the Court and who visited her in the hospital on a number of occasions. 31.     Moreover, the applicant’s and her mother’s claim that the conditions in which the applicant was kept were so poor as to amount to inhuman and degrading treatment should be treated with some caution because the two of them might have a tendency to exaggerate their inadequacy on account of their negative attitude towards an establishment in which they considered the applicant should have never been detained (see B. v. the United Kingdom , no. 6870/75, Commission’s report of 7 October 1981, Decisions and Reports 32, p. 29, §§ 174 and 175, and Sabeva v. Bulgaria , no.   44290/07, § 41, 10 June 2010). 32.     Most importantly, all of these matters must be seen against the backdrop of the relatively limited amount of time spent by the applicant in detention in the hospital – a little over a month. This is a far cry from the situation obtaining in Stanev (cited above, § 210), where the applicant had been kept in poor conditions for about seven years. 33.     The Court accepts that the applicant could have experienced inconvenience as a result of the poor conditions in the hospital. However, in view of the above considerations it is not persuaded that those conditions were so harsh as to reach the threshold of severity required to bring them within the ambit of Article 3 of the Convention. 34.     As regards the incident on 29 February 2012 in which the applicant was assaulted by another patient in the shower, it is in the first place open to doubt whether the treatment to which she was subjected – a push in the chest – could be regarded as inhuman and degrading. 35.     In any event, while it is clear that the authorities have an obligation under Article 3 of the Convention to take reasonable steps to protect a detainee from inhuman and degrading treatment inflicted by other detainees, especially if they have reason to believe that the detainee is particularly vulnerable – for instance because he or she is suffering from a psychological disorder (see Pantea v. Romania , no. 33343/96, §§ 189-92, 3 June 2003), is of young age (see Premininy v. Russia , no. 44973/04, § 86, 10 February 2011), or belongs to a category that is at heightened risk (see Rodić and Others v. Bosnia and Herzegovina , no. 22893/05, §§ 69-70, 27 May 2008 (Serbs convicted of war crimes against Bosniacs and kept, unsegregated, in a prison where about ninety per cent of inmates were Bosniacs); Stasi v.   France , no. 25001/07, § 91, 20 October 2011 (homosexuals); J.L.   v.   Latvia , no. 23893/06, § 68, 17 April 2012 (police collaborators); Aleksejeva v. Latvia (dec.), no. 21780/07, § 34, 3 July 2012 (relatives of prison guards); Starovoitovs v. Latvia (dec.), no. 27343/05, §§ 35-38, 27   November 2012 (private security guards); D.F. v. Latvia , no. 11160/07, §   81, 29 October 2013 (sexual offenders); Totolici v. Romania , no.   26576/10, §§ 48-49, 14 January 2014 (police officers); and M.C.   v.   Poland , no. 23692/09, § 90, 3 March 2015 (persons accused of sexually abusing minors)) – or to believe that the other detainees have an increased propensity to violence (see Paul and Audrey Edwards v. the United Kingdom , no. 46477/99, §§ 57-60, ECHR 2002-II, and Oshurko v.   Ukraine, no. 33108/05, § 72, 8 September 2011), there is no evidence ‑ and the applicant has not elaborated on that point either – that in her case the hospital staff knew or ought to have known that she stood a real risk of being assaulted by the other patient in the shower. The incident, which the applicant has not described in detail, was apparently not very serious, brief in duration, and a one-off (see, mutatis mutandis , Tautkus v.   Lithuania , no. 29474/09, § 58, 27 November 2012, and contrast Premininy , cited above, §§ 79, 80 and 86, and Oshurko , cited above, § 72), and the applicant did not call for help while it was taking place. It is also significant in this connection that there is no indication that after the applicant and her mother informed the nursing staff about the incident the next day, the applicant was ever again assaulted by other patients. It cannot therefore be said that the authorities failed in their duty to take reasonable steps to prevent her from being ill-treated by other patients. 36.     Nor is the Court persuaded that any anxiety on the part of the applicant caused by the risk of further attacks by other patients reached a level of severity that brought it within the scope of Article 3 of the Convention (see Aleksejeva , cited above, § 40, and contrast Alexandru Marius Radu v. Romania , no. 34022/05, §§ 48-49, 21 July 2009). The incident appears to have been minor, and the hospital staff reassured the applicant after it. Moreover, the period of time between the incident and the applicant’s subsequent discharge as an outpatient was only a month (contrast D.F. v. Latvia , cited above, § 95, where the relevant period was more than a year). 37.     It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible.   Done in English and notified in writing on 24 September 2015.   Fatoş Aracı   Guido Raimondi Deputy Registrar   President