CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 5 octobre 2000

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .s94935B0F { width:389.85pt; display:inline-block } .sBB9EE52A { font-family:Arial } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sCB27B9E { width:16.66pt; display:inline-block } .sC5412BEF { width:51.05pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s3133A7C8 { font-family:Arial; color:#0069d6 } EUROPEAN COURT OF HUMAN RIGHTS     682   5.10.2000   Press release issued by the Registrar   JUDGMENT IN THE CASE OF VARBANOV v. BULGARIA   In a judgment delivered at Strasbourg on 5 October 2000 in the case of Varbanov v. Bulgaria, the European Court of Human Rights held unanimously that there had been a violation of Article 5   (right to liberty and security) of the European Convention on Human Rights. Under Article 41 (just satisfaction) of the Convention, the Court awarded the applicant 4,300 Bulgarian levs (BGL) for non-pecuniary damage and for legal costs and expenses.   1.     Principal facts   The applicant, Dimitar Varbanov, a Bulgarian national, was born in 1930 and lives in Sofia.   On 6 October 1993 a Mr. Z, with whom the applicant had been involved in disputes related to their joint business, lodged a complaint with the prosecuting authorities alleging that the applicant was mentally ill and dangerous. The applicant and Mr Z. had exchanged letters containing threats.   The District Prosecutor’s Office opened an inquiry. On 20 October 1993 a police officer heard the applicant, who allegedly presented a document issued by a psychiatrist certifying that he was mentally fit. In February 1994 the District Prosecutor’s Office instructed the local police to conduct an inquiry to establish whether it was necessary to institute proceedings before the competent court for the applicant’s compulsory psychiatric treatment. On 5 May and 5 September 1994 the applicant was invited by the director of Sofia City Psychiatric Clinic to appear for a psychiatric examination. He refused. On 27 January 1995, on the basis of the material in the case-file, a prosecutor ordered that the applicant should be taken by force to a psychiatric hospital and detained there for 20 days for a psychiatric examination.   On 31 August 1995 the applicant was taken from his home by the police and was brought to the psychiatric hospital. He was given sedatives and underwent examinations. On 15   September 1995 he was transferred to a general hospital as he had developed pneumonia. Until 24 September 1995 the applicant remained under the hospital’s control and was tied to his bed at night. On 16 October 1995 he was discharged from the general hospital and went home. In their report of 9 November 1995 the doctors who had examined the applicant concluded that he had a paranoiac psychosis. In 1996 Sofia District Court dismissed the prosecutor’s request for the applicant’s confinement to a psychiatric hospital.   Upon the applicant’s complaints, the prosecuting authorities issued decisions in 1995 and 1996 stating that his detention in August and September 1995 had been lawful. Under the applicable domestic law an appeal to a court was not possible.         2.     Procedure and composition of the Court   The application was lodged with the European Commission of Human Rights on 10 January 1996. Having declared the application partly admissible, the Commission adopted a report on 21 April 1999 in which it expressed the unanimous opinion that there had been violations of Article 5 §§ 1 and 4 of the Convention. It referred the case to the Court on 13 September 1999.   Judgment was given by a Chamber of seven judges, composed as follows:   Georg Ress (German), President , Antonio Pastor Ridruejo (Spanish), Lucius Caflisch [1] (Swiss), Jerzy Makarczyk (Polish), Volodymyr Butkevych (Ukrainian), Matti Pellonpää (Finnish), Snejana Botoucharova (Bulgarian), judges ,   and also Vincent Berger , Section Registrar .   3.     Summary of the judgment [2]   Complaints   The applicant complained that he was deprived of his liberty unlawfully, in breach of Article 5 § 1 of the European Convention on Human Rights. He also complained that he was denied his right under Article 5 § 4 to have the lawfulness of his detention reviewed by a court.   Decision of the Court   Government’s preliminary objection   The Government submitted that the application should be rejected as being an abuse of the right to petition, within the meaning of Article 35 § 3 of the Convention, regard being had to the offensive remarks made by the applicant against the Government’s agent.   The Court found that while the use of offensive language in proceedings before the Court was undoubtedly inappropriate, except in extraordinary cases an application may only be rejected as abusive if it was knowingly based on untrue facts. Such was not the applicant’s case.   Conclusion: objection dismissed.   Article 5 § 1   No deprivation of liberty of a person considered as being of unsound mind may be deemed in conformity with Article 5 § 1(e) if it has been ordered without seeking the opinion of a medical expert. Any other approach falls short of the required protection against arbitrariness, inherent in Article 5. The particular form and procedure in this respect may vary depending on the circumstances. It may be acceptable, in urgent cases or where a person is arrested because of his violent behaviour, that such an opinion be obtained immediately after the arrest. In all other cases a prior consultation should be necessary. Where no other possibility exists, for instance due to a refusal of the person concerned to appear for an examination, at least an assessment by a medical expert on the basis of the file must be required, failing which it cannot be maintained that a person has reliably been shown to be of unsound mind. Furthermore, the medical assessment must be based on the actual state of mental health of the person concerned and not solely on past events. A medical opinion cannot be seen as sufficient to justify deprivation of liberty if a significant period of time has elapsed.   The applicant was detained pursuant to a prosecutor’s order which had been issued without consulting a medical expert. It is true that the purpose of the applicant’s detention was precisely to obtain a medical opinion, in order to assess the need for instituting judicial proceedings with a view to his psychiatric internment.   However, a prior appraisal by a psychiatrist, at least on the basis of the available documentary evidence, was possible and indispensable. There was no claim that the case involved an emergency. The applicant did not have a history of mental illness and had apparently presented a medical opinion to the effect that he was mentally healthy. In these circumstances, it cannot be accepted that in the absence of an assessment by a psychiatrist the views of a prosecutor and a police officer on the applicant’s mental health, which were moreover based on evidence dating from 1993 and 1994, sufficed to justify an order for his arrest, let alone his detention for 25 days in August and September 1995.   Upon the applicant’s arrest he was brought to a psychiatric clinic where he was seen by doctors. However, there is no indication that an opinion as to whether or not the applicant needed to be detained for an examination was sought from the doctors who admitted him to the psychiatric hospital on 31 August 1995. The applicant’s detention for an initial period of 20 days, later prolonged, had already been decided by a prosecutor on 27 January 1995, without the involvement of a medical expert. It follows that the applicant was not reliably shown to have been of unsound mind. His detention was not “a lawful detention of [a person] of unsound mind” within the meaning of Article 5 § 1(e) as it was ordered without seeking a medical opinion.   Furthermore, the relevant Bulgarian law, the Public Health Act, as in force at the time, did not contain any provision empowering prosecutors to commit a person to compulsory confinement in a psychiatric clinic for the purpose of effecting a psychiatric examination. Moreover, the law even after its amendment in 1997 does not provide for the seeking of a medical opinion as a pre-condition to ordering detention with a view to compulsory psychiatric examination and thus falls short of the required standard of protection against arbitrariness.   Conclusion: violation of Article 5 § 1 on account of the fact that the applicant’s deprivation of liberty was not justified under subparagraph (e) of this provision and had no basis in domestic law which, moreover, does not provide the required protection against arbitrariness as it does not require the seeking of a medical opinion.       Article 5 § 4   Everyone who is deprived of his liberty is entitled to a review of the detention’s lawfulness by a court. The Convention requirement that an act of deprivation of liberty be amenable to independent judicial scrutiny is of fundamental importance in the context of the underlying purpose of Article 5 to provide safeguards against arbitrariness. What is at stake is both the protection of the physical liberty of individuals as well as their personal security.   Bulgarian law at the relevant time did not provide for an appeal to a court against detention ordered by a prosecutor in the framework of an inquiry with a view to instituting proceedings for psychiatric internment. The accuracy of the Government’s statement that the law has been brought in line with the Convention through legislative amendments adopted in 1999, which is disputed by the applicant, cannot be assessed in the context of the present case.   The applicant’s detention was ordered by a district prosecutor, who became subsequently a party to proceedings against him, seeking his psychiatric internment. The district prosecutor’s order was subject to appeal solely to higher prosecutors. It cannot be considered, therefore, that the remedy required by Article 5 § 4 was available to the applicant. That provision guarantees to every arrested or detained person the right to appeal to a court.   Conclusion: violation.   Article 41   The applicant has not shown a direct causal link between the violations of the Convention found in the present case and the alleged pecuniary damage.   As for non-pecuniary damage, the applicant must have endured pain and suffering as a result of his unlawful detention, which lasted 25 days, and the lack of a possibility for judicial control, which undoubtedly led to a feeling of helplessness in the hands of the authorities. The fact that the applicant was detained in a psychiatric clinic although he had not reliably been shown to have been of unsound mind is a further aggravating circumstance. Having regard to its case-law and making an assessment on an equitable basis the Court awarded BGL 4,000 for non-pecuniary damage.   ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights F – 67075 Strasbourg Cedex Contacts:   Roderick Liddell (telephone: (0)3 88 41 24 92)   Emma Hellyer (telephone: (0)3 90 21 42 15) Fax: (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998 a full-time Court was established, replacing the original two-tier system of a part-time Commission and Court. [1] Judge elected in respect of Liechtenstein. [2] .     This summary by the Registry does not bind the Court.