Rusi Kosev STANEV v Bulgaria - 36760/06 [2010] ECHR 1182 (29 June 2010)

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The European Court of Human Rights (Fifth Section), sitting on 29 June 2010 as a Chamber composed of:

Peer Lorenzen, président,
Renate Jaeger,
Karel Jungwiert,
Rait Maruste,
Isabelle Berro-Lefèvre,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges
and Claudia Westerdiek, Section Registrar,

Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having regard to the parties' oral submissions at the hearing on 10 November 2009 held in the applicant's presence,

1. The applicant, Mr Rusi Kosev Stanev, is a Bulgarian national who was born in 1956 and lives in Pastra. He is represented before the Court by Ms A. Genova, a lawyer practising in Sofia, and by Ms B. Bukowska and Ms V. Lee, of the Mental Disability Advocacy Center (a non-governmental organisation based in Budapest). The Bulgarian Government (“the Government”) are represented by their Agents, Ms N. Nikolova and Ms R. Nikolova, of the Ministry of Justice.

2. The facts of the case, as submitted by the parties, may be summarised as follows.

1. The applicant's placement under trusteeship and admission to a social care home for adults with mental disorders

3. The applicant was born in Ruse and lived there until December 2002. His half-sister and his father's second wife, who are his only close relatives, also live there.

4. On an unspecified date in 2000, at his relatives' request, the Ruse regional prosecutor applied to the Ruse Regional Court (Окръжен съд) for a declaration of the applicant's total legal incapacity. In a judgment of 20 November 2000 the court declared the applicant to be partially lacking legal capacity on the ground that he had been suffering from simple schizophrenia since 1975 and his ability to manage his own affairs and interests and to realise the consequences of his own acts had been impaired. The court found that the applicant's condition was not so serious as to warrant a declaration of total legal incapacity. It observed, in particular, that between 1975 and 2000 he had been admitted to a psychiatric hospital on several occasions. An expert medical report was produced in the course of the proceedings and the court interviewed the applicant. According to the evidence it heard, he had sold all his possessions and now begged for a living. He spent all his money on alcohol and became aggressive whenever he drank.

5. That judgment was upheld by the Veliko Tarnovo Court of Appeal (Апелативен съд) on 12 April 2001 on an appeal by the applicant, and was subsequently transmitted to the Ruse Municipal Council on 7 June 2001 for the appointment of a trustee.

6. On 23 May 2002 the Ruse Municipal Council appointed R.P., a council officer, as the applicant's trustee until 31 December 2002.

7. On 29 May 2002 R.P. asked the Ruse social services to place the applicant in a social care home for adults with mental disorders. The social services drew up a welfare report, concluding on 23 July 2002 that the applicant lived alone in a small run-down annexe to his half-sister's house and that his half-sister and stepmother had stated that they did not wish to act as his trustees; the conditions for his placement in a social care home were therefore satisfied.

8. On 10 December 2002 an agreement on placement in a welfare institution was signed between R.P. and the social care home for adults with mental disorders near the village of Pastra in the municipality of Rila (“the Pastra social care home”), an institution under the authority of the Ministry of Labour and Social Policy.

9. Later that day, the applicant was taken by ambulance to the Pastra social care home, some 400 km from Ruse. He maintained, and the Government did not deny, that he had not been given any explanation of the reasons for and the length of his placement in the home.

10. On 14 December 2002, at the request of the director of the Pastra social care home, the applicant was registered as having his home address in the municipality of Rila. The residence certificate stated that the purpose of the change of address was the applicant's permanent supervision.

11. On 9 September 2005 the applicant's lawyer requested the Rila Municipal Council to appoint a trustee to her client. In a reply dated 16 September 2005 she was informed that the Rila Municipal Council had decided on 2 February 2005 to appoint the director of the Pastra social care home as the applicant's trustee.

12. The agreement signed between the trustee R.P. and the Pastra social care home on 10 December 2002 did not mention the applicant's name or the duration of its validity. Its provisions required the home to provide food, clothing, medical services, hearing and, apparently, accommodation, in return for payment of an amount determined by law. It appears that the applicant's entire invalidity pension was transferred to the home. According to the agreement, 80% of it was to cover the services provided and the remaining 20% was to be set aside for his personal use. According to the information in the case file, the applicant's invalidity pension, as updated in 2008, was 130 Bulgarian levs (BGN – approximately 65 euros (EUR)).

13. The Pastra social care home is located in an isolated area of the Rila mountains in south-western Bulgaria. The nearest locality is the village of Pastra, which is about 8 km away and connected to the home by a rough track.

14. The home, built in the 1920s, comprises three buildings where around 90 residents, all male, are placed according to the state of their mental health. Each block has a yard surrounded by a high metal fence. The applicant was housed in block 3 of the home, reserved for residents with the mildest disorders, who could move around the home's premises and go alone to the nearby village with special permission.

15. The home is decaying, dirty and rarely heated in winter, with the result that the applicant and the other residents were obliged to sleep in their winter coats. The applicant shared a room measuring 16 sq. m with three other persons and the beds were positioned almost side by side. The only furniture available to the applicant for storing his clothes was a bedside table, but he preferred to keep them in his bed at night for fear that they might be stolen and replaced with old clothes. The home's residents had no personal clothing as clothes could be exchanged after being washed.

16. The applicant's identity papers were kept by the home's management. He was allowed to leave the home with special permission from the director.

17. The applicant regularly went to the village of Pastra. It appears that during the visits he mainly provided domestic help to certain villagers or carried out tasks at the roadside restaurant.

18. Between 2002 and 2006 the applicant returned to Ruse three times on home leave. The trips were authorised for a period of approximately ten days. The journey cost BGN 60 (approximately EUR 30), the sum being allocated to the applicant by the home's management.

19. Following his first two trips to Ruse, the applicant returned to Pastra before the end of his authorised period of leave. According to a statement made by the director of the home to the public prosecutor's office on an unspecified date, the applicant returned home early as he was unable to manage his finances and did not have his own accommodation.

20. The third period of leave was authorised from 15 to 25 September 2006. After the applicant failed to return on this occasion, the director of the home sent a letter to the Ruse municipal police on 13 October 2006, asking them to search for the applicant and transfer him to Sofia, where employees of the home would be able to collect him and take him back to Pastra. On 19 October 2006 the Ruse police informed the director that the applicant's whereabouts had been discovered but that the police could not take him back because a wanted notice had not been issued. He was driven back to the social care home on 31 October 2006, apparently by employees.

21. It appears from the medical certificate of 15 June 2005 (see paragraph 26) that since his placement in the home in 2002 the applicant was given anti-psychotic medication (carbamazepine (600mg)), under the monthly supervision of a psychiatrist.

22. The applicant asserted that the food provided at the home was insufficient and of poor quality. He had no say in the choice of food and could not assist in its preparation.

23. Access to the bathroom was permitted once a week; it was unhealthy and decaying. The toilets, situated in the courtyard, consisted of holes in the ground covered by dilapidated shelters. Unhygienic and in a very poor state, each of them was used by a minimum of eight people. Toiletries were available only sporadically.

24. The applicant had access to a television set, several books and a chessboard in a common room at the home until 3 p.m., when the room was locked shut. The room was not heated in winter and the residents kept their coats, hats and gloves on when they were there. No other social, cultural or sports activities were available.

25. The applicant submitted that the staff at the social care home had refused to supply him with envelopes for his mail and that as he did not have access to his money, he could not buy any either. The staff had asked him to give them his sheets of paper so that they could put them in envelopes and post them for him. The Government did not comment on those allegations.

26. On 25 November 2004 the applicant, through his lawyer, asked the public prosecutor's office to apply to the Regional Court to restore his legal capacity. On 2 March 2005 the public prosecutor asked the Pastra social care home to send him a doctor's opinion and other medical certificates concerning the applicant's condition in preparation for a possible application to the courts for restoration of his legal capacity. It appears that, following the request, the applicant was admitted to a psychiatric hospital for a medical assessment from 31 May 2005 to 15 June 2005. In a certificate issued on the latter date, the doctors attested that the applicant showed symptoms of schizophrenia. His health had not deteriorated since his admission to the social care home in 2002, with the result that the conditions of his stay there remained unchanged. He had been on maintenance medication since 2002 under the monthly supervision of a psychiatrist. A psychological examination revealed that he was agitated, tense and suspicious. His communication skills were poor and he was not aware of his illness. He expressed a desire to leave the social care home at all costs. The doctors did not express an opinion on the applicant's ability to integrate into society or the need to keep him in the Pastra social care home.

27. On 10 August 2005 the regional prosecutor refused to apply for restoration of the applicant's legal capacity on the ground that, in the view of the doctors, the director of the Pastra social care home and the social worker at the home, the applicant was unable to cope on his own and the institution was the most appropriate place for him to live and undergo medical treatment. The regional prosecutor's refusal was upheld on 11 October 2005 by the appellate prosecutor, and subsequently by the chief public prosecutor's office at the Supreme Court of Cassation on 29 November 2005.

28. On 9 September 2005 the applicant, assisted by his lawyer, asked the mayor of Rila to institute legal proceedings for the discontinuation of his trusteeship. In a letter of 16 September 2005 the mayor of Rila refused to request the institution of such proceedings, stating that such a request would be unjustified in view of the medical certificate of 15 June 2005, the opinions of the director and the social worker and the submissions of the public prosecutor's office to similar effect. On 28 September 2005 the applicant's lawyer applied to the Dupnitza District Court under Article 115 of the Family Code for judicial review of the refusal. In a letter of 7 October 2005 the District Court advised the applicant to submit a valid form of authority for his representation by the lawyer, bearing in mind that he was partially lacking legal capacity. On that account it was necessary to clarify whether the trustee would be joining the proceedings. On an unspecified date the applicant's lawyer submitted a copy of the form of authority signed by the applicant. She also asked for the trustee to be joined in the proceedings as an interested party. The court held a hearing on 18 January 2006 at which the mayor's representative objected that the application was inadmissible, arguing that the form of authority was invalid as it had not been countersigned by the trustee. The trustee attended the hearing on 18 January 2006. He stated that he did not contest the application, but expressed the view that the applicant's retirement pension was insufficient to meet his needs and therefore the Pastra social care home was the best place for him to live.

29. The Dupnitza District Court gave judgment on 10 March 2006. On the issue of admissibility, it held that although the lawyer had been instructed to act by the applicant, she was not validly empowered to exercise procedural rights on his behalf since the trustee had not signed the form of authority. However, seeing that the trustee had indicated his approval of the application at the public hearing, all steps taken by the lawyer had been validated and the application was therefore admissible. On the merits, the court dismissed the application, holding that the trustee had no legitimate interest in contesting the mayor's refusal, since he himself could apply directly for the discontinuation of the trusteeship. Since no appeal lay against the judgment, it became final.

30. Lastly, the applicant submitted that on several occasions he had orally requested his trustee to institute proceedings for his release from trusteeship, but that the trustee had always refused to do so.

4. Assessment of the applicant's social skills during his stay in Pastra and conclusions of the psychiatric report drawn up at his lawyer's request

31. Once a year, the director of the social care home and the social worker at the home drew up evaluation reports on the applicant's behaviour and social skills. The reports indicated the applicant had an uncommunicative personality, preferred to stay on his own rather than join in group activities, refused to take his medication, and had no close relatives to stay with while on home leave. He was not on good terms with his half-sister and it was unclear whether he had anywhere to live outside the social care home. The reports concluded by observing that it was not possible for the applicant to reintegrate into society and set the objective for him to acquire the skills and knowledge for resocialisation and, in the long term, reintegration into his family. It appears that he was never offered any therapy geared towards his rehabilitation and integration into community life.

32. The case file indicates that in 2005 the applicant's trustee asked the Municipal Council to grant a social allowance to facilitate the applicant's integration into the community. Further to the request, on 30 December 2005 the Municipal Council's social assistance department carried out a “social assessment” (социална оценка) of the applicant. According to the assessment, he was incapable of working even in a special environment, and had no need for training or retraining. That being so, he was entitled to a social allowance to cover the costs of his transport, special diet and medication. On 7 February 2007 the social assistance department granted the applicant a monthly allowance of BGN 16.50 (approximately EUR 8). On 3 February 2009 the allowance was increased to BGN 19.50 (approximately EUR 10).

33. In addition, on 31 August 2006, at his lawyer's request, the applicant was examined by Dr V.S., a different psychiatrist from the one who regularly visited the social care home, and by a psychologist, Ms I.A. A report was drawn up and concluded that the previous diagnosis of schizophrenia was imprecise in that the applicant did not display all the symptoms associated with that condition. Although the applicant had suffered from this condition in the past, at the time of the examination he had not had an aggressive personality but rather a suspicious attitude and a slight tendency towards “verbal aggressiveness”. Between 2002 and 2006 he had not undergone treatment for the condition and his health had visibly stabilised. No risk of future deterioration of his mental health had been observed. The report stated that in the opinion of the director of the social care home, the applicant was capable of reintegrating into society.

34. According to the report, the applicant's stay in the Pastra social care home was very destructive for his health. It recommended that he leave the home because of the risk of developing “institutionalisation syndrome” the longer he stayed there. It would have been more appropriate for his mental health and social development to allow him to integrate into community life with as few restrictions as possible. The only aspect to monitor was his tendency towards alcohol abuse, which had been apparent prior to 2002. In the experts' view, the behaviour of an alcohol-dependent person could have similar characteristics to that of a person with schizophrenia and there was therefore a need to remain vigilant and not to confuse the two conditions in the applicant's case.

1. Legal status of persons placed under trusteeship and their representation in the courts

35. Section 5 of the Persons and Family Act of 9 August 1949 provides that persons who are unable to look after their own interests on account of mental illness or mental deficiency are fully deprived of legal capacity and become legally incapable. Adults with a mild form of such disorders are partially deprived of legal capacity. In accordance with sections 4 and 5 of the Act, persons who have been declared to be partially lacking legal capacity may validly enter into legal transactions with the consent of their trustee. They may perform ordinary acts relating to everyday life independently and have access to the means received as payment for their work. It follows that trustees on their own cannot perform legal transactions that are binding on the person under trusteeship. Accordingly, contracts signed by the trustee alone, without the consent of the person partially deprived of legal capacity, are not valid.

36. Under Article 16 § 2 of the Code of Civil Procedure (CCP), persons under guardianship are represented before the courts by their guardian. Persons under trusteeship exercise their procedural rights autonomously with the consent of their trustee. It follows that trustees do not perform the role of a legal representative. They cannot act on behalf of the person under trusteeship and express only their agreement or disagreement with the person's individual transactions (Сталев, Ж., Българско гражданско процесуално право, София, 2006 г., стр. 171). In particular, persons under trusteeship may instruct a lawyer provided that the form of authority is signed by the trustee (ibid., стр. 173).

37. The procedure for placing a person under trusteeship consists of two stages: the declaration of partial incapacity and the appointment of a trustee.

38. The first stage concerns a judicial procedure which at the material time was governed by Articles 275-277 of the 1952 CCP (the rules have remained unchanged in the new 2007 CCP (Articles 336-340)). A declaration of partial incapacity may be sought by the spouse, close relatives, public prosecutor or any other interested party. The court reaches its decision after examining the person concerned at a public hearing – or, in any event, after forming a first-hand impression of his or her condition – and the person's close relatives. The court shall obtain other evidence, including expert medical assessments. According to domestic case-law, the court orders such assessment in all cases where the other elements in the file do not allow to conclude that a request for declaration of legal incapacity is unfounded (Решение на ВС № 1538 от 21.VIII.1961 г. по гр. д. № 5408/61 г. ; Решение на ВС № 593 от 4.III.1967 г. по гр. д. № 3218/1966 г.).

39. The second stage consists of an administrative procedure for the appointment of a trustee under Chapter X (Articles 109-128) of the 1985 Family Code (FC – the rules have remained unchanged, with the exception of a few minor amendments, in the new 2009 FC (Articles 153-174)), conducted by the guardianship and trusteeship authority, namely the mayor or another official designated by him or her.

40. The trustee is preferably appointed from among the relatives of the person concerned who are capable of acting in his or her best interests.

41. Measures taken by trustees are subject to review by the guardianship and trusteeship authority (the mayor or another municipal official designated by him or her). At the authority's request, trustees must provide explanations of their activities. If any irregularities are observed, the authority may request that they be rectified or order the suspension of the measures in question (Article 126 § 2 and Article 125 of the 1985 FC, and Article 170 and Article 171 §§ 2 and 3 of the 2009 FC). It is difficult to know whether persons under trusteeship are entitled to autonomously request the mayor to suspend measures taken by the trustee or whether they must act with the approval of the appointed trustee.

42. Acts of the mayor, when acting as a guardianship and trusteeship authority, and his refusal to appoint a trustee or take other measures provided for in the FC are amenable to judicial review. They may be challenged by interested parties or the public prosecutor before the District Court, which gives a final decision on the merits (Article 115 of the 1985 FC). This procedure enables close relatives to request a change of trustee if there is a conflict of interests (Решение на ВС № 1249 от 23.XII.1993 г. по гр. д. № 897/93 г.). According to domestic case-law, the “interested parties” who are entitled to initiate such proceedings do not include the person deprived of legal capacity (Определение № 5771 от 11.06.2003 г. на ВАС по адм. д. № 9248/2002).

43. Furthermore, the guardianship and trusteeship authority may at any time replace trustees who are failing to discharge their duties (Article 113). By Article 116 of the FC, a person cannot be appointed as a trustee where there is a conflict of interests between that person and the person placed under trusteeship. Article 123 of the FC provides that a deputy trustee is to be appointed where the trustee is unable to discharge his or her duties or where there is a conflict of interests. In such circumstances, the guardianship and trusteeship authority may also appoint an ad hoc representative.

44. By Article 277 of the CCP, the procedure for restoration of legal capacity is identical to that for the examination of a trusteeship application. The procedure may be initiated by anyone entitled to apply for the person to be placed under trusteeship, the guardianship and trusteeship authority or the trustee. On 13 February 1980 the Plenary Supreme Court delivered a decision aimed at clarifying certain questions concerning the procedure for deprivation of legal capacity. Paragraph 10 of the decision refers to the procedure for restoration of legal capacity and reads as follows:

“In the procedure for restoration of legal capacity, the applicable rules are the same as those governing the procedure for deprivation of legal capacity (Article 277 and Article 275, paragraphs 1 and 2, of the CCP). The persons who requested the measure or the close relatives of the person concerned are treated as the respondent party. There is nothing to prevent the party that applied for the person to be deprived of legal capacity from requesting the termination of the measure if circumstances have changed.

Persons placed under trusteeship may request, either individually or with the consent of their trustee, that the measure be lifted. They may also ask the guardianship and trusteeship authority or the guardianship council to bring an action under Article 277 of the CCP in the regional court that decided to deprive them of their legal capacity. In such circumstances, persons deprived of legal capacity must show that the application is in their interests by producing a medical certificate. The person in question will be treated as the applicant in the proceedings. Where the trustee of a partially incapacitated person, the guardianship and trusteeship authority or the guardianship council in the case of a fully incapacitated person refuses to institute proceedings for restoration of legal capacity, the incapacitated person may ask the public prosecutor to bring an action to that end (Постановление № 5/79 от 13.II.1980 г., Пленум на ВС).”

45. Section 26(2) of the Obligations and Contracts Act 1950 provides that contracts that are in breach of the law or have been entered into in the absence of consent are deemed null and void.

46. In accordance with section 27 of the same Act, contracts entered into by representatives of individuals deprived of legal capacity in breach of the applicable rules are deemed voidable. A ground of incurable nullity may be raised on any occasion, whereas a ground of voidability may be raised only by means of a court action. The right to raise a ground of voidability becomes time-barred after a period of three years from the date of release from trusteeship (section 32(2) of the Act).

47. By virtue of Article 120 and Article 122 § 3 of the 1985 FC, the place of residence of persons deprived of legal capacity is deemed to be the home address of the guardian or trustee, unless “exceptional reasons” require them to live elsewhere. Where the place of residence is changed without the consent of the guardian or trustee, the latter may request the District Court to order the return of the person concerned to the designated place of residence. By Article 163 §§ 2 and 3 of the new 2009 FC, before ruling on the return of the person under guardianship or trusteeship, the court is required to interview the person. If it finds that “exceptional reasons” exist, it must refuse to order the person's return and must immediately inform the municipal council's social assistance department with a view to taking protective measures.

48. The District Court's order may be appealed against to the President of the Regional Court, although its execution may not be stayed.

7. Placement of legally incapacitated persons in social care homes for adults with mental disorders

49. Under the Social Assistance Act 1998, social assistance is available to people who, for medical and social reasons, are incapable of meeting their basic needs autonomously through employment, their assets or the assistance of persons required by law to care for them. Social assistance consists of the provision of various financial benefits, benefits in kind and social services, including placement in specialised institutions.

50. In accordance with Decree no. 4 of 16 March 1999 on the conditions for providing social services (Наредба № 4 за условията и реда за извършване на социални услуги), adults with mental deficiencies are placed in specialist social care homes when the specific care for their condition cannot be provided in a family environment (section 12, point (4), and section 27). Section 33(1), point (3), of the Decree requires the production of a medical certificate concerning the person in need of protection where that person is placed in a social care home.

8. Appointment of an ad hoc representative in the event of a conflict of interests

51. Article 16 § 6 of the CCP provides that, in the event of a conflict of interests between a representative and the person being represented, the court is to appoint an ad hoc representative. The Bulgarian courts have applied this provision in certain situations involving a conflict of interests between minors and their legal representative. Thus, the failure to appoint an ad hoc representative has been found to amount to a substantial breach of the procedural rules governing the establishment of paternity (Решение на ВС № 297 от 15.04.1987 г. по гр. д. № 168/87 г., II г. о.), disputes between adoptive and biological parents (Решение на ВС № 1381 от 10.05.1982 г. по гр. д. № 954/82 г., II г. о.) or property (Решение № 643 от 27.07.2000 г. на ВКС по гр. д. № 27/2000 г., II г. о.; Определение на ОС – Велико Търново от 5.11.2008 г. по в. ч. гр. д. № 963/2008).

52. The 1988 State and Municipalities Responsibility for Damage Act (Закон за отговорността на държавата и общините за вреди – title amended in 2006) provides in section 2-1 that the State is liable for damage caused to private individuals as a result of their detention, where the detention order has been set aside for lack of legal basis.

53. Section 1-1 of the Act provides that the State and municipalities are liable for damage caused to private individuals and other legal entities as a result of unlawful decisions, actions or omissions by government bodies or officials acting in the performance of their administrative duties.

54. In a number of recent decisions, various domestic courts have found this provision to be applicable where prisoners have suffered damage as a result of poor conditions or inadequate medical treatment in prison and have, where appropriate, partly or fully upheld claims for compensation brought by the persons concerned (реш. от 26.01.2004 г. по гр. д. № 959/2003, ВКС, IV г. о. and реш. № 330 от 7.08.2007 г. по гр. д. № 92/2006, ВКС, IV г. о.).

55. There are no examples of court decisions in which this approach has been applied to allegations of poor conditions in social care homes.

56. It appears from the domestic courts' case-law that under section 1-1 of the Act in question, the administrative authorities may be held liable and compensation may be awarded for the deterioration of a person's health where bodies under the authority of the Ministry of Health have failed to provide a regular supply of medicines (реш. № 211 от 27.05.2008 г. по гр. д. № 6087/2007, ВКС, V г. о.).

57. Lastly, the State and its authorities are subject to the ordinary rules on tortuous liability for other forms of damage resulting, for example, from the death of a person placed under guardianship during an attempted escape from a social care home, on the ground that the staff of the home have failed to discharge their duty of permanent supervision (реш. № 693 от 26.06.2009 г. по гр. д. № 8/2009, ВКС, III г. о.).

58. This Act authorises the police to arrest, inter alia, persons who, on account of severe mental disturbance and their conduct, threaten public order or put their own life in manifest danger (section 63(1)-(3)). The persons concerned may challenge the lawfulness of the arrest before a court, which must give a ruling immediately (section 63(4)).

59. Furthermore, the police's activities include searching for missing persons (section 139(3)).

11. Information submitted by the applicant about searches for persons escaping from social care homes for adults with mental disorders

60. The Bulgarian Helsinki Committee has conducted a survey of police stations regarding practice in searching for people who have escaped from social care homes. It appears from the survey that practice is not standardised across the country. Some police officers said that when they were asked by staff of a home to search for a missing person, they carried out the search and escorted the person to the police station, before informing the home. Other officers explained that they searched for such people but, not having the right to arrest them, simply notified the staff of the home, who took them back.

12. Statistics submitted by the applicant on judicial proceedings concerning deprivation of legal capacity

61. The Bulgarian Helsinki Committee has produced statistics on the outcome of proceedings for restoration of legal capacity in eight regional courts between January 2002 and September 2009. During this period 677 persons were deprived of legal capacity. Thirty-six sets of proceedings for restoration of legal capacity were instituted: ten of them ended with the lifting of the measure; full incapacitation was changed to partial incapacitation in eight cases; the applications were rejected in four cases; the courts discontinued the proceedings in seven cases; and the proceedings are still pending in the remaining cases.

1. United Nations Convention on the Rights of Persons with Disabilities, adopted by the United Nations General Assembly on 13 December 2006 (Resolution A/RES/61/106)

62. This Convention entered into force on 3 May 2008. It was signed by Bulgaria on 27 September 2007. Article 12 § 4 provides:

“States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person's circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person's rights and interests.”

2. Recommendation No. R (99) 4 of the Committee of Ministers of the Council of Europe on principles concerning the legal protection of incapable adults (adopted on 23 February 1999)

63. The fundamental principle underlying all the principles set forth in the Recommendation is that of respect for the dignity of each person as a human being. States' legislative framework should, so far as possible, recognise that different degrees of incapacity may exist and that incapacity may vary in time. Procedures for the taking of measures to protect incapable adults should be fair and efficient. Adequate procedural safeguards should be in place to protect the human rights of the persons concerned and to prevent possible abuses.

64. The Recommendation suggests that when measures for the protection of an incapable adult are implemented, the past and present wishes and feelings of the adult should be ascertained as far as possible, and should be taken into account and given due respect.

65. Lastly, protective measures should, whenever possible, be of limited duration and consideration should be given to the institution of periodic reviews. The measures should be reviewed when there is a change of circumstances, in particular a change in the adult's condition. They should be discontinued if the conditions for them are no longer satisfied. States should make appropriate remedies available.

3. Reports on visits to Bulgaria by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT)

(a) The CPT's report on its visit from 16 to 22 December 2003, published on 24 June 2004

66. This report describes the situation of persons placed by the public authorities in social care homes for persons with mental disorders/mental retardation, which are under the authority of the Ministry of Labour and Social Policy. Part II.4 of the report is devoted to the Pastra social care home.

67. According to the CPT's findings, the premises of the Pastra social care home were in a deplorable state of repair and hygiene and the home was inadequately heated.

68. In particular, the buildings did not have running water and the residents washed in cold water in the yard. They were often unshaven and dirty. The bathroom, to which they had access once a week, was rudimentary and dilapidated.

69. The toilets, likewise located in the yard, consisted of decrepit shelters with holes dug in the ground. They were in an execrable state and access to them was dangerous. Furthermore, basic toiletries were rarely available.

70. The report notes that the provision of food was inadequate. Residents received three meals a day, including 750 g of bread. Milk and eggs had never been supplied, and fresh fruit and vegetables were rarely on offer. No provision was made for special diets.

71. Residents were examined by a psychiatrist and a general practitioner, both from outside the home. Nearly all residents were on psychiatric medication, which was administered by nurses, none of whom had had psychiatric training.

72. Apart from the administration of medication, no therapeutic activities were organised for residents, who led passive, monotonous lives.

73. The CPT concluded that these conditions had created a situation which could be said to amount to inhuman and degrading treatment. It requested the Bulgarian authorities to replace the Pastra social care home as a matter of urgency. In their response of 13 February 2004 the Bulgarian authorities acknowledged that the home was not in conformity with European care standards. They stated that it would be closed as a priority and that the residents would be transferred to other institutions.

74. The CPT further observed, in part II.7 of the report, that in most cases, placement of people with mental disabilities in a specialised institution amounted to a de facto deprivation of liberty. It was therefore essential that these persons should have the right to bring proceedings by which the lawfulness of their placement could be decided speedily by a court. The CPT recommended that such a right be guaranteed in Bulgaria.

(b) The CPT's report on its visit from 10 to 21 September 2006, published on 28 February 2008

75. This report again recommended that provision be made for the introduction of judicial review of the lawfulness of placement in a social care home (see paragraphs 176-177 of the report).

76. It also recommended that efforts be made to ensure that the placement of residents at homes for persons with mental disorders and/or retardation occurs in full conformity with the letter and the spirit of the law. Contracts for the provision of social services should specify the legal rights of residents, including the possibilities for lodging complaints to a relevant outside authority. Further, residents unable to understand the contracts should receive appropriate assistance (see paragraph 178 of the report).

77. Lastly, the CPT urged the Bulgarian authorities to take the necessary steps to avoid conflicts of interest arising through the appointment of an employee of a social care home as the guardian of a resident within the same institution (see paragraph 179 of the report).

78. A comparative study of the domestic law of twenty Council of Europe member States indicates that in the vast majority of cases, the law entitles anyone who has been deprived of legal capacity to apply directly to the courts for discontinuation of the measure (Croatia, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Luxembourg, Monaco, Poland, Portugal, Romania, Slovakia, Sweden, Switzerland and Turkey).

79. In Ukraine, persons who have been partially deprived of legal capacity may personally apply for the measure to be lifted, whereas persons declared to be fully lacking legal capacity are not entitled to do so, but may challenge any measures taken by their guardian before a court.

80. Judicial proceedings for the discontinuation of an order depriving a person of legal capacity cannot be instituted directly by the person concerned in Latvia, where an application may be made by the public prosecutor's office or the guardianship council, and in Ireland.

81. A comparative-law study of the legislation of eighteen States Parties to the Convention shows that there is no uniform approach in Europe to the question of placement in specialised institutions of persons lacking legal capacity, particularly as regards the decision-making entity and the guarantees afforded to the person in question. It can, however, be observed that in some States, if a long-term placement is ordered against the wishes of the person concerned, the decision is taken directly or approved ex post facto by a judge (Austria, Estonia, Finland, France, Germany, Greece, Poland, Portugal and Turkey).

82. In other legal systems, the guardian or close relatives or an administrative body are entitled to take a decision to place a person in a specialised institution without the need for approval by a court (Belgium, Denmark, Hungary, Ireland, Latvia, Luxembourg, Monaco and the United Kingdom). It also appears that in all the above-mentioned States, the placement is subject to a number of material requirements, relating in particular to the person's health, the existence of a danger or risk and/or the production of medical certificates. In addition, the obligation to interview or consult the person concerned as to the placement, the existence of a time-limit fixed by law or by the judge for the termination or review of the placement, as well as the possibility of legal assistance, are among the safeguards provided in several countries' legislation.

83. The possibility of challenging the initial placement order before a judicial body is available to the persons concerned without requiring the consent of their guardian or trustee in Denmark, Estonia, Germany, Greece, Hungary, Ireland, Latvia, Poland, Slovakia, Switzerland and Turkey.

84. Lastly, several States afford the persons concerned the opportunity to apply directly for periodic judicial review of the lawfulness of their continued placement (Denmark, Estonia, Finland, Germany, Greece, Ireland, Latvia, Poland, Switzerland and Turkey).

85. It should also be noted that many countries' laws on legal capacity or placement in specialised institutions have recently been, or are in the process of being, amended (Ireland: amendment in progress, Austria: 2007, Denmark: 2007, Estonia: 2005, Finland: 1999, France: 2007, Germany: 1992, Greece: 1992, Hungary: 2004, Latvia: 2006, Poland: 2007, Ukraine: 2000, the United Kingdom: 2005). These legislative amendments are designed to increase the protection of individuals lacking legal capacity either by affording them the right of direct access to court to have their status reviewed or by providing for additional safeguards when they are placed in specialised institutions against their wishes.

86. Paragraph 23 of the Czech Constitutional Court's judgment of 18 August 2009 (I. ÚS 557/09), in a case in which the appellant had complained of the courts' refusal to restore his legal capacity, reads as follows:

“Where the courts decide to place restrictions on a person's legal capacity, they must systematically ensure that such capacity is not limited any more than is required by the protection of the fundamental rights of others ... From that standpoint, the limitation of legal capacity – a term which is constitutionally very problematic – is a manifest relic of the former regime. The ordinary courts should always consider more moderate alternatives ... by which the aim could well have been achieved. The aim is the protection of competing practical rights or public interests which can be inferred from the constitutional order. At the same time, restriction of legal capacity must be viewed as an extreme measure.

The mere fact that a person suffers from mental illness does not in itself constitute a reason to restrict that person's legal capacity ... but in all cases a precise indication must be given of who or what is threatened by the person's having full legal capacity and why the situation cannot be resolved by a more moderate measure. ...”

87. Relying on Article 5 § 1 of the Convention, the applicant considers that he had been unlawfully and arbitrarily deprived of his liberty on account of his placement in the Pastra social care home against his will. Under Article 5 § 4, he complained that he was not entitled under Bulgarian law to take proceedings by which the lawfulness of his detention was to be decided by a court. He further complained, under Article 5 § 5, that there was no judicial procedure by which he could obtain compensation for the alleged violation of the above-mentioned provisions.

88. Relying on Article 3, taken alone and in conjunction with Article 13, the applicant complained about the conditions in the Pastra social care home.

89. Under Article 6, he complained that he had no access to a court to seek the restoration of his legal capacity.

90. Relying on Article 8, taken alone and in conjunction with Article 13, the applicant complained about the trusteeship system, including the lack of regular reviews of the continued justification of such a measure, the appointment of the director of the Pastra social care home as his trustee and the alleged lack of scrutiny of the director's decisions, and also about the restrictions on his private life resulting from his admission to the home against his will, extending to the lack of contact with the outside world and the conditions attached to correspondence.

91. Under Article 5 of the Convention, the applicant complained about his placement in the Pastra social care home and submitted that he had been deprived of the right to have the lawfulness of that measure reviewed by a court, and also of the effective right to compensation for the alleged violations of that Article, the relevant parts of which read as follows:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

92. The Government submitted that the facts of the present case could not give rise to a conclusion that there had been a deprivation of liberty within the meaning of Article 5 § 1. The applicant had not been detained on the basis of decisions by a public authority as a person of unsound mind, but he had been housed in a social care home at his trustee's request, on the basis of a civil-law contract and in accordance with the rules on social assistance. Persons in need of assistance, including those with mental disorders, could request various social services, either personally or through their representatives. Homes for adults with mental disorders provided a vast range of social and medical services.

93. The Government pointed out that the applicant had been encouraged to work in the village restaurant to the extent of his abilities and had availed himself on three occasions of his right to home leave. He had twice returned from Ruse before the end of his period of leave because of a lack of accommodation. The Government contended that the applicant had never been brought back to the home by the police. It was true that in September 2006 the director had been obliged to ask the police to search for the applicant because he had not come back. In that connection, referring to the case of Dodov v. Bulgaria (no. 59548/00, ECHR 2008-...), the Government observed that the State had a positive obligation to take care of people housed in specialised institutions and that the steps taken by the director fell within the scope of such protection.

94. The Government further observed that the applicant lacked legal capacity and did not have the benefit of a supportive family environment, accommodation and sufficient resources to lead an independent life. The Government referred in that connection to the judgments in H.M. v. Switzerland (no.^.39187/98, ECHR 2002-II) and Nielsen v. Denmark (no. 10929/84, 28 November 1988, Series A no. 144) and submitted that the applicant's placement had simply been a protective measure taken in his interests alone, had constituted an appropriate response to a social and medical emergency and could not be regarded as involuntary.

95. The Government lastly submitted that the prospects of the applicant's return to the community had regularly been assessed. He had been provided with social and medical services and a resettlement plan. On the basis of the results of these assessments, it had been concluded that his return to the community could not yet be envisaged.

96. The Government concluded that Article 5 should not apply in the instant case.

97. The applicant contested those submissions. He argued that his placement in the Pastra social care home was indeed a deprivation of liberty, despite the fact that, according to domestic law, placement in a social care home was considered “voluntary”. He submitted that, as in the case of Storck v. Germany (no. 61603/00, ECHR 2005-V), the objective and subjective elements of detention had been present in his case.

98. With regard to the nature of the measure, the applicant asserted that living in the Pastra social care home, far away in the mountains, represented physical isolation from society. He had not been able to choose to leave of his own free will since, having no identity papers or money, he was likely to be stopped promptly by the police for a routine check, which was a widespread practice in Bulgaria.

99. Absences from the social care home were subject to permission. The distance of approximately 420 km between the institution and his home town and the fact that he was not allowed to manage his invalidity pension had made it impossible for him to return home more often than the three journeys he had undertaken. The applicant added that, in accordance with a practice that had no legal basis, residents who left the premises for longer than the authorised period were treated as fugitives and were searched for by the police. He observed in that connection that on one occasion the police had arrested him in Ruse. Although they had not taken him back to the home, the fact that the director had asked for him to be located and transferred back had constituted a significant restriction of his right to individual liberty. He submitted that he had been arrested and detained by the police while waiting for the staff from the home to come and collect him. He did not know the reason for the arrest. The fact that he had been escorted back mainly by employees of the home did not alter the conclusion that he had been deprived of his liberty, since his transfer had been carried out by force.

100. The applicant further submitted that his placement in the home had already lasted more than seven years and that his hopes of being able to leave one day were futile, as the decision had to be approved by the trustee.

101. As regards the effects of the placement, the applicant emphasised the severity of the rules. The staff of the home were engaged in permanent and effective supervision of his occupational activities, care and movements. He was subject to a strict daily routine whereby he had to wake up, go to bed and eat at set times. He was unable to make decisions on how to dress, prepare his meals, develop relationships with people of his choice, including intimate relationships as the home was designed for men only, or take part in cultural events. Even watching television was allowed only in the morning. His stay in the home had therefore caused a perceptible deterioration in his well-being and the onset of institutionalisation syndrome, or inability to reintegrate into normal community life.

102. With regard to the subjective element, the applicant submitted that his case differed from that of H.M. v. Switzerland (cited above) in that the applicant in that case had consented to her placement in a nursing home. For his own part, he had never expressed the wish to live in the Pastra social care home. His trustee had not consulted him on the subject and, moreover, he had not even known her and had not been informed of the existence of the relevant agreement. The applicant emphasised that those circumstances reflected a widespread practice in Bulgaria whereby once they were deprived of legal capacity, even partially as in his case, people were deemed incapable of expressing their wishes. In addition, it was clear from the medical documents that the applicant's desire to leave the home had never been seen as a freely expressed wish, but rather as a symptom of his psychiatric disorder.

103. Furthermore, in the case of H.M. v. Switzerland (cited above), the authorities had based their decision to place the applicant in a nursing home on a thorough examination showing that the living conditions in her own home had severely deteriorated as a result of her lack of cooperation with a social-welfare authority. In his own case, on the contrary, he had never been offered alternative social care and had never refused such assistance.

104. The Court considers that the question whether there was a “deprivation of liberty” within the meaning of Article 5 in the present case is closely linked to the merits of the complaint under that Article. The issue of applicability should therefore be joined to the merits of this complaint.

105. In response to the questions put by the Court at the hearing in the present case, the Government referred to certain remedies in Bulgarian law and, in conclusion, objected that domestic remedies had not been exhausted.

106. Firstly, the applicant could at any time have applied personally to a court for restoration of his legal capacity, under Article 277 of the CCP. If he had been released from trusteeship, he would be free to leave the home.

107. Secondly, no close relatives had availed themselves of the possibility of requesting the guardianship and trusteeship authority to appoint a different trustee, under Articles 113 and 115 of the FC. In the event of a refusal, the close relatives to whom these provisions applied could have appealed to a court, which would have considered the merits of the case and, if appropriate, appointed a new trustee. The trustee could then have terminated the placement agreement. The Government also submitted in substance that the applicant's close relatives could have challenged the contract between the trustee R.P. and the Pastra social care home.

108. Lastly, the applicant himself could have requested the guardianship and trusteeship authority to appoint an ad hoc representative on account of the alleged conflict of interests with his trustee with a view to requesting to leave the institution and establish his home elsewhere (Article 123 § 1 of the FC).

109. The applicant argued in reply that no accessible and effective remedies were available in domestic law to raise his complaints under Article 5.

110. With regard to the proceedings for restoration of legal capacity envisaged by Article 277 of the CCP, the applicant asserted that he was not permitted to apply to the courts and that, moreover, such proceedings did not relate to his allegations of unlawful deprivation of liberty but to the review of trusteeship.

111. As to the procedure provided for in Articles 113 and 115 of the FC, it was true that in theory it afforded close relatives the right to ask the mayor to replace the trustee or to order the existing trustee to terminate the placement agreement. However, this was an indirect remedy for the applicant and, in the absence of close relatives prepared to initiate such a procedure, it was not accessible to him.

112. Accordingly, these domestic remedies did not need to be exhausted in respect of his complaints under Article 5.

113. The applicant did not submit any observations on the remedy provided for in Article 123 § 1 of the FC as referred to by the Government.

114. The Court observes that the Government objected that the domestic remedies had not been exhausted after the presentations of their written observations, during the oral pleadings. Therefore, an issue may arise in the present case whether the Government validly raised their objection of failure to exhaust domestic remedies, since Rule 55 of the Rules of Court provides that “[a]ny plea of inadmissibility must, in so far as its character and the circumstances permit, be raised by the respondent Contracting Party in its written or oral observations on the admissibility of the application” (see Velikova v. Bulgaria, no. 41488/98, § 57, ECHR 2000 VI, and Tanribilir v. Turkey, no. 21422/93, § 59, 16 November 2000).

115. However, the Court considers that it is not necessary to examine whether the Government are estopped from raising their objection, seeing that in the present case the question whether the applicant properly exhausted domestic remedies to challenge the lawfulness of his continued placement in the Pastra social care home is so closely linked to his allegations under Article 5 § 4 that it should be joined to the merits under that provision.

116. The Government submitted that, if the Court were to decide to apply Article 5 § 1, the applicant's placement in the home should be considered lawful within the meaning of Article 5 § 1 (e). They contended in particular that the medical assessment conducted during the proceedings for deprivation of the applicant's legal capacity in 2000 had provided a clear indication that he suffered from psychiatric disorders that justified his placement in a specialised institution.

117. The applicant submitted that his placement in the social care home had not been contrary to domestic law as the trustee was empowered to choose the place of residence of the person under trusteeship. However, he observed that the agreement between the trustee R.P. and the Pastra social care home was unlawful under the Persons and Family Act since he had not given his consent to the placement and had not signed the agreement in question.

118. The applicant further argued that his placement in the home for an indefinite period had not taken account of an up-to-date psychiatric assessment but only of medical documents produced in the course of the proceedings for deprivation of his legal capacity, which had taken place approximately a year and a half earlier and had not strictly concerned his admission to a specialised institution. Referring to the Varbanov v. Bulgaria case (no. 31365/96, § 47, ECHR 2000-X), the applicant contended that he had been admitted to the Pastra social care home without any objective assessment of his current psychiatric condition.

119. Furthermore, the authorities had not shown how the applicant's admission to the home had been justified by the protection of the rights and interests of others and no consideration had been given to the possibility of alternative measures that were less restrictive of his individual liberty.

120. The Court considers, in the light of the parties' submissions, that this complaint raises serious issues of fact and law which cannot be resolved at this stage in the examination of the application, but require examination on the merits. It follows that the complaint cannot be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established, subject to the questions joined to the merits.

121. The Government submitted that an application for restoration of legal capacity constituted a remedy for the purposes of Article 5 § 4 since if the applicant's health had been found to have improved sufficiently and he had been released from trusteeship, he would have been free to leave the social care home.

122. As regards the complaint under Article 5 § 5, the Government submitted that the compensation procedure under the 1988 State Responsibility for Damage Act could have been applicable if the applicant's placement in the home had been found to have no legal basis. Since the placement had not been in breach of domestic law and had been ordered in his own interests, he could not have instituted compensation proceedings.

123. The applicant asserted that domestic law had not afforded him the possibility of applying to a court to leave the Pastra social care home as he was deemed incapable of taking legal action on his own.

124. As to the circumstances in which compensation could be awarded for unlawful detention, the applicant submitted that they were exhaustively listed in the 1988 State Responsibility for Damage Act and that his situation did not fall within the ambit of that Act. He had therefore not had the possibility of seeking compensation on that account under domestic law.

125. The applicant further maintained that no legal remedies had been available to him to seek compensation for the alleged violation of Article 5 § 4.

126. The Court considers, in the light of the parties' submissions, that these complaints raise serious issues of fact and law which cannot be resolved at this stage in the examination of the application, but require examination on the merits. It follows that the complaints cannot be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established, subject to the questions joined to the merits.

127. The applicant complained that the living conditions at the Pastra social care home were poor and that no remedies were available in Bulgarian law to remedy the situation. He relied on Article 3, taken alone and in conjunction with Article 13 of the Convention. These provisions are worded as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

128. The Government acknowledged the deficiencies in living conditions at the home. They explained that the inadequacy of the financial means for institutions of that kind formed the main obstacle to maintaining the requisite minimum standard of living. They also stated that, following an inspection by the Social Welfare Agency, the authorities planned to close the Pastra social care home and to take steps to ensure the best possible living conditions for the current residents. With regard to the applicant's specific circumstances, the Government contended that he had not been subjected to degrading treatment since the living conditions were the same for all residents of the home.

129. The Government further submitted that proceedings for restoration of legal capacity constituted a remedy by which the applicant could have sought a review of his status and that, in the event of being released from trusteeship, he could have left the institution and thus ceased to endure the living conditions he described.

130. The applicant asserted that the poor living conditions at the Pastra social care home, in particular the inadequate food, the deplorable sanitary conditions, the lack of heating, the enforced medical treatment, the overcrowding of rooms and the absence of therapeutic and cultural activities arranged for residents, exceeded the minimum level of severity for treatment to be in breach of Article 3.

131. The applicant further observed that the Government had already acknowledged in 2004 that such conditions did not comply with the relevant European standards and had undertaken to make improvements (see paragraph 73 above). However, the living conditions in the Pastra social care home had remained the same.

132. With regard to the remedy referred to by the Government, the applicant submitted that the procedure in question was not accessible to him in the absence of consent from his trustee. Furthermore, no trustee had been appointed during a period of approximately three years and the one appointed in 2005 was also the director of the social care home. There was thus a conflict of interests between the applicant and his trustee in the event of any dispute as to the living conditions at the home and the applicant could not have expected the director to support his allegations. No other remedy had been available to him in domestic law.

133. The Court considers, in the light of the parties' submissions, that these complaints raise serious issues of fact and law which cannot be resolved at this stage in the examination of the application, but require examination on the merits. It follows that the complaints cannot be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.

134. The applicant alleged that he had not had the possibility under Bulgarian law of directly bringing judicial proceedings for restoration of legal capacity, and relied on Article 6 § 1, the relevant parts of which provide:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”

135. The Government submitted that the applicant had not exhausted domestic remedies in that he had never personally instituted judicial proceedings for restoration of his legal capacity, despite having that option under Article 277 of the CCP.

136. The applicant argued in reply that persons declared to be even partially lacking legal capacity were not entitled to initiate such proceedings on their own but had to do so through a person authorised by law.

137. The Court observes that the applicant disputed the accessibility of the remedy providing for a review of his legal status and that this allegation lies at the heart of his complaint under Article 6 § 1 that the legal framework applied in his case did not satisfy the requirements of that provision.

138. The Government's objection should therefore be joined to the merits of the complaint under Article 6.

139. The Government submitted that Article 277 of the CCP had at all times offered the applicant direct access to a court for a review of his status. They relied in that connection on the Supreme Court's decision no. 5/79 of 1980. The only condition for making such an application was to submit evidence of an improvement in his condition. However, the applicant had clearly not had any such evidence available, as was indicated by the medical assessment carried out at the public prosecutor's request, which had stated that his condition persisted and that he was incapable of looking after his own interests. The Government thus suggested that the applicant had not attempted to apply to the court on his own because he had been unable to show that his application was well-founded.

140. The applicant asserted that he could not personally institute proceedings under Article 277 of the CCP. A reading of the full decision of the Supreme Court cited by the Government, rather than of isolated extracts, bore out that position. This was also demonstrated by the fact that the Dupnitza District Court had refused to examine his application for judicial review of the mayor's refusal to bring proceedings under Article 277 of the CCP on the ground that the trustee had not signed the form of authority.

141. The applicant added that despite his lack of direct access to proceedings for restoration of legal capacity, he had attempted to have such proceedings instituted by the public prosecutor's office, the mayor and his trustee (the director of the home). However, all his attempts had failed and no such application had ever been lodged with the courts. Accordingly, the applicant had never had the opportunity to obtain a court ruling on his case.

142. The Court considers, in the light of the parties' submissions, that this complaint raises serious issues of fact and law which cannot be resolved at this stage in the examination of the application, but require examination on the merits. It follows that the complaint cannot be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established, subject to the question of exhaustion of domestic remedies, which has been joined to the merits of this complaint.

143. The applicant alleged that he had suffered unjustified interference with his right to respect for his private life and home as a result of the restrictive trusteeship regime, including his placement in the Pastra social care home and the physical living conditions there. He asserted that Bulgarian law did not afford him a sufficient and accessible remedy in that respect. As well as citing Article 13 (see paragraph 125 above), he relied on Article 8, which provides, in so far as relevant:

“1. Everyone has the right to respect for his private and family life, his home ...

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

144. The Government submitted, during the oral pleadings, that the remedies to which they had referred in relation to the complaint under Article 5 (see paragraphs 103-106 above) also constituted remedies in respect of an infringement of the rights protected by Article 8. They thus concluded that domestic remedies had likewise not been exhausted in respect of the complaint under that Article.

145. The applicant submitted the same arguments as those in relation to the exhaustion of domestic remedies in respect of his Article 5 complaint.

146. The Court refers to the considerations it set out under Article 5 as to whether the Government are estopped from raising their objection (see paragraphs 112-113 above). However, it observes that the remedies referred to by the Government are part of the overall regulations governing trusteeship and restoration of legal capacity – including the rules on placement in social care homes of persons declared to be lacking legal capacity – which form the subject of the applicant's complaint under Article 8 of the Convention. The issues of the effectiveness and accessibility of those remedies are therefore closely linked to his allegations that the legal framework applied in his case was in breach of that Article.

147. Accordingly, the Court considers that it is not necessary to rule on the validity of the Government's objection and that the question of exhaustion of domestic remedies should be joined to the merits of the complaints under Article 8, taken alone and in conjunction with Article 13.

148. The Government accepted that the applicant's legal status meant that he faced a number of restrictions in his private life. However, they asserted that his rights under Article 8 had not been infringed. He had been kept under trusteeship because of his diminished faculties. The restrictions on his private life as a result of his placement in the Pastra social care home had been justified by the need to maintain a range of care services for the residents. The Government pointed out that all the restrictions had been merely temporary; they had pursued the legitimate aim of protecting the applicant's health and could be lifted as soon as there was an improvement in his health and he recovered his ability to take care of himself.

149. The applicant submitted that deprivation of legal capacity was a measure with continuous effect and that the restrictions resulting from trusteeship, including placement in the Pastra social care home, had not been geared to his particular case. Instead, they were automatic restrictions imposed on anyone deprived of legal capacity following a judicial decision. There was no mechanism for assessment of a person's capacity for autonomy in relation to the various aspects of daily life; nor were there any periodic reviews of the applicant's status or a system for scrutiny of the trustee's decisions by an independent body. Moreover, in his case the authorities had failed to appoint a trustee for approximately three years.

150. The applicant submitted in particular that on account of the living arrangements in the Pastra social care home, he was unable to take part in the life of the community or to develop and maintain relations with persons of his choosing. The authorities had not made any effort to provide alternative care in the community and to devise a regime that was less restrictive of his individual liberty, to such an extent that he had developed “institutionalisation syndrome” and suffered the adverse effects of that condition. The lack of activities, stimulation and self-determination had all been acknowledged as factors that accelerated the loss of social skills and individual personality traits. The applicant had suffered a considerable loss of identity as an individual and a member of the community.

151. The Court considers, in the light of the parties' submissions, that these complaints raise serious issues of fact and law which cannot be resolved at this stage in the examination of the application, but require examination on the merits. It follows that the complaints cannot be declared manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established, subject to the question of exhaustion of domestic remedies, which has been joined to the merits of these complaints.

Joins to the merits the question of the applicability of Article 5 and the Government's objection of failure to exhaust domestic remedies in respect of the complaints under Articles 5 and 6, and also under Article 8, taken alone and in conjunction with Article 13 of the Convention;

Declares the application admissible, without prejudging the merits of the case.

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You are here: BAILII >> Databases >> European Court of Human Rights >> Rusi Kosev STANEV v Bulgaria - 36760/06 [2010] ECHR 1182 (29 June 2010) URL: http://www.bailii.org/eu/cases/ECHR/2010/1182.html Cite as: [2010] ECHR 1182