Stanev v. Bulgaria

S, an adult male diagnosed with schizophrenia, lived for many years with his half-sister and step-mother, his closest living relatives, before they applied in 2000 to the Ruse Regional Court to have S declared legally incapacitated. The court declared S only partially incapacitated. S’s family refused to accept guardianship for S, and the court instead appointed a council officer, RP, to be his temporary legal guardian in 2002. Without the involvement or consent of S and relying on the psychiatric report from the incapacitation proceedings in 2000, RP arranged for S to be placed for an indefinite period of time in a social care home for adults with mental disorders in the village of Pastra (‘the Pastra Home’) in the municipality of Rila. In 2005, S’s lawyer applied to the Rila Municipal Council to have a new guardian appointed for S, and the council appointed the director of the Pastra Home. After being moved into the Pastra Home, S initially took anti-psychotic medication, but in 2006 his condition stabilized and thereafter he did not receive any psychiatric treatment.

The Pastra Home was in a state of decay, with dirty, unsanitary and crowded conditions. It was inadequately heated, had very poor bathroom facilities and provided low quality food to residents in insufficient quantities. In addition, therapeutic services were extremely limited, as were social and entertainment options available to residents, and the home exercised strict oversight of access to people and visits outside of the premises.

S submitted multiple requests to domestic institutions to seek release from partial guardianship and to reinstate his legal capacity. All were denied.

S claimed that (a) he had been deprived of his liberty under Article 5 of the European Convention on Human Rights (ECHR) (b) the living conditions he suffered at the Pastra Home amounted to torture or inhuman and degrading treatment in violation of Article 3; (c) Bulgarian law did not provide S with an opportunity for a fair hearing to restore his legal capacity in violation of Article 6§1 ECHR; and (d) the guardianship regime and his involuntary placement in the Pastra Home violated his right to privacy under Article 8 and Bulgarian law provided no effective remedy for such violation as required under Article 13.

[Adapted from INTERIGHTS summary, with permission]

The Court held that: S’s involuntary placement in the Pastra Home violated Article 5§1 as RP could not legally agree to detention without S’s consent. The court noted that even if a person lacks legal capacity, it does not mean that they are unable to comprehend their situation and make their wishes known. Furthermore, the detention cannot be justified under Article 5§1(e), which allows for the detention of people of unsound mind, as there was no up-to-date psychiatric report at the time of detention.

The Court found that the failure of Bulgarian law to provide an adequate review process that might allow S to reinstate his legal capacity without the need of his guardian violates Article 6§1.

The Court found there was a violation of Article 5§4 ECHR because Bulgarian law does not provide for an appropriate judicial mechanism to enable S to challenge the lawfulness of his detention (also meaning that S had no domestic remedies to exhaust); (3) the lack of any provision under Bulgarian law to provide compensation to S for the violation of his other rights under Article 5 violates Article 5§5 ECHR;

The Court found that the poor living conditions suffered by S while living in the Pastra Home violate Article 3 ECHR, alone and in conjunction with Article 13, as the conditions in the facility constitute degrading treatment and there is no possibility of obtaining compensation under Bulgarian law for the treatment suffered.

 [Adapted from INTERIGHTS summary, with permission]

“128.  Accordingly,  although  the  applicant  was  able  to  undertake  certain  journeys,  the factors  outlined  above  lead  the  Court  to  consider  that,  contrary  to  what  the  Government maintained, he was under constant supervision and was not free to leave the home without permission  whenever  he  wished.  With  reference  to  the  Dodov  case  (cited  above),  the Government  maintained  that  the  restrictions  in  issue  had  been  necessary  in  view  of  the authorities’ positive obligations to protect the applicant’s life and health. The Court notes that in the above-mentioned case, the applicant’s mother suffered from Alzheimer’s disease and that, as a result, her memory and other mental capacities had progressively deteriorated, to the extent that the nursing home staff had been instructed not to leave her unattended. In the present case, however, the Government have not shown that the applicant’s state of health was  such  as  to  put  him  at  immediate  risk,  or  to  require  the  imposition  of  any  special restrictions to protect his life and limb.”

130.  … “[C]ontrary to the requirements of domestic law (see paragraph 42 above), the applicant was not asked to give his opinion on his placement in the home and never explicitly consented to it. Instead, he was taken to Pastra by ambulance and placed  in the home without being informed of the reasons for or duration of that measure, which had been taken by his officially assigned guardian. The Court observes in this connection that there are situations where the wishes of a person with impaired mental  faculties may validly be replaced by those of another person acting in the context of a protective measure and that it is sometimes difficult to ascertain the true wishes or preferences of the person concerned. However, the Court has already held that the  fact that a person lacks legal capacity does not necessarily mean that he is unable to comprehend his situation (see  Shtukaturov, cited above, § 108). In the present case, domestic law attached a certain weight to the applicant’s wishes and it appears that he was well aware of his situation. The Court notes that, at least from 2004, the applicant explicitly expressed his desire to leave the  Pastra  social  care  home,  both  to  psychiatrists  and  through  his  applications  to  the authorities  to  have  his  legal  capacity  restored  and  to  be  released  from  guardianship  (see paragraphs 37-41 above).”

156. … “More  than  two  years  thus  elapsed  between  the  expert psychiatric assessment relied on by the authorities and the applicant’s placement in the home, during  which  time  his  guardian  did  not  check  whether  there  had  been  any  change  in  his condition  and  did  not  meet  or  consult  him.  Unlike  the  Government  (see  paragraph  138 above), the Court considers that this period is excessive….”

241. … “In addition, the Court acknowledges that  restrictions  on  a  person’s  procedural  rights,  even  where  the  person  has  been  only partially  deprived  of  legal  capacity,  may  be  justified  for  the  person’s  own  protection,  the protection  of  the  interests  of  others  and  the  proper  administration  of  justice.  However,  the importance of exercising these rights will vary according to the purpose of the action which the person concerned intends to bring before the courts. In particular, the right to ask a court to  review  a  declaration  of  incapacity  is  one  of  the  most  important  rights  for  the  person concerned since such a procedure, once initiated, will be decisive for the exercise of all the rights  and  freedoms  affected  by  the  declaration  of  incapacity,  not  least  in  relation  to  any restrictions that may be placed on the person’s liberty (see also  Shtukaturov, cited above, § 71). The Court therefore considers that this right is one of the fundamental procedural rights for the protection of those who have been partially deprived of legal capacity. It follows that such persons should in principle enjoy direct access to the courts in this sphere.”