EHRM, 17-01-2008, nr. 59548/00

In May 1994 the applicant's mother, Mrs Stoyanova, sixty-three years old and suffering from Altzheimer's disease, was admitted to the Sofia nursing home for elderly persons. The home was located on a busy boulevard in Kniazhevo, a neighbourhood of Sofia. Mrs Stoyanova was placed in the hospital unit, which was staffed with several medical doctors and nurses. According to a medical opinion on Mrs Stoyanova's health at that time, her memory and other mental capacities progressively deteriorated. She needed constant supervision and the nursing home staff had been instructed not to leave her unattended. In the following months, the applicant visited his mother regularly and on occasion accompanied her for medical visits outside the nursing home.

During his visit on 2 December 1995, the applicant noticed spots on his mother's skin and reported it to the nurse on duty.

The applicant visited again on 4 December 1995, at about 6.30 p.m., but was informed that his mother was missing. Earlier that day his mother had been sent to consult a dermatologist outside the home, accompanied by Mrs V., a medical orderly. According to the explanation given to the applicant, upon their return, at around 11.30 a.m., the medical orderly had left Mrs Stoyanova alone in the yard and had not found her there several minutes later. The nursing home staff had looked for Mrs Stoyanova in the area but in vain.

The staff alerted the police approximately two hours after the incident. On the same day, and again on 11 December 1995, the police heard several witnesses to the events and recorded their statements. Some of them explained that they had searched the area immediately upon learning of Mrs Stoyanova's disappearance.

On 8 December 1995, Mrs Stoyanova was recorded as a person sought by the police in the region of Sofia and on 22 December 1995 her data were entered in the national list of missing persons. On 11 December 1995 the Sofia police issued a press release containing information about Mrs Stoyanova's physical appearance and an appeal to the public to report any relevant information. It appears that the description of Mrs Stoyanova's appearance contained errors. On 13 December 1995 the area in the proximity of the nursing home was searched unsuccessfully using a police dog. The police also checked the identity of patients admitted to psychiatric clinics during the relevant period. They also verified information according to which, in January 1996, a woman resembling the applicant's mother had spent a night in a monastery. In February 1996 an announcement was broadcast on national television.

In the days following his mother's disappearance the applicant himself did what he could to find her. He contacted all those who had last been in contact with her, published calls for witnesses in several newspapers and posted announcements carrying his mother's photograph.

The applicant's mother has not been found to date. In 1998 a District Court issued a decision declaring Mrs Stoyanova missing and appointed the applicant as her representative.

On 5 July 1996 the applicant filed a complaint with the Sofia District Prosecutor's Office alleging that the administrative and medical staff of the nursing home had been responsible for his mother's disappearance.

Nothing was done in the case until December 1997, despite the applicant's numerous complaints to all levels of the prosecuting authorities.

In December 1997 the District Prosecutor's Office opened a preliminary investigation into the matter.

The applicant participated actively in the ensuing proceedings. He made specific requests for the collection of evidence in respect of the events of 4 December 1995 and the alleged negligence on the part of the nursing home staff. In other submissions, often voluminous, he exposed at length his suspicion that his mother might have been abducted by a criminal gang trading in human organs.

On 19 March 1998, after having heard doctor G., the head of the medical staff at the nursing home, the investigator recommended that the investigation be discontinued. On 10 April 1998 the prosecutor followed this recommendation. The investigator and the prosecutor noted that it had not been uncommon in the practice of the nursing home for residents suffering from Alzheimer's decease to be sent for outside examinations by public transport, accompanied by a medical orderly. Also, it had been the normal practice to leave residents in the yard for several minutes, the time necessary to report to the doctor on duty, and then to accompany them to their rooms. The yard had been enclosed by a fence and staff had usually been present in the area. There had been a gatekeeper whose duty had been to check the identity of those entering. Having noted those facts, the investigator and the prosecutor stated that no criminal offence had been committed.

The applicant was not informed of the above decision. He became aware of it on 14 December 1998, when he visited the District Prosecutor's Office to inquire about the examination of his complaint.

On 8 January 1999 the applicant appealed, insisting that other witnesses be examined, such as the medical orderly who had accompanied his mother, the medical doctor who had sent his mother for an examination and the gatekeeper.

On 22 January 1999 the Sofia City Prosecutor's Office quashed the lower prosecutor's decision and referred the case back for renewed investigation. In June and August 1999 the file was transmitted to an investigator. The investigator heard the medical orderly and the gatekeeper.

On 12 April 2000 the prosecutor terminated the proceedings. He noted that Ms V., the medical orderly, had left the applicant's mother in the yard for two or three minutes as she had been asked to see a senior medical staff member. At that moment the applicant's mother had left and could not be found. The gatekeeper had stated that she had not seen Mrs Stoyanova. The prosecutor further noted that, in accordance with the relevant job descriptions, it was the medical orderlies' duty to accompany residents and that the gatekeeper's duties did not include responsibility for the residents' safety. On that basis the prosecutor concluded that ‘there [was] no indication that a staff member had exposed Mrs Stoyanova [to a danger]…; and, as regards the [possible perpetrator's]mens rea, no wilful conduct could be proven.’

The applicant appealed.

On an unspecified date the prosecutor's decision of 12 April 2000 was quashed and the case remitted for renewed investigation. In the ensuing investigation it was established that the gatekeeper had not been at the gate when the applicant's mother had been left alone there on 4 December 1995, as the she had left to have tea.

On 18 June 2001 the District Prosecutor's Office terminated the proceedings. The decision stated, inter alia:

The applicant was not informed of the prosecutor's decision. Having learned about it, on 29 September 2001 he appealed to the Sofia District Court.

On 21 November 2001 the Sofia District Court quashed the prosecutor's decision and referred the case for renewed investigation, considering that there were inconsistencies in the prosecutor's reasoning and that not all relevant evidence had been collected.

After having heard additional witnesses, on 15 August 2003 the Sofia District Prosecutor's Office terminated the investigation. The prosecutor noted the following facts that had not been mentioned in earlier decisions:

The prosecutor stated that in view of the absence of clear rules on the duties of staff in the nursing home it was not possible to draw conclusions as to the criminal liability of staff members. Also, the facts did not disclose a criminal offence under Article 137 of the Criminal Code.

The prosecutor also stated that in any event the relevant statutory limitation period for the prosecution of the alleged perpetrators had expired.

On an appeal by the applicant, on 20 January 2004 the Sofia District Court upheld the prosecutor's decision of 15 August 2003 as the relevant statutory limitation period for the prosecution of the alleged perpetrators had expired on 4 June 2003.

In July 1996, the applicant complained to the prosecution authorities alleging that the police had not taken the necessary steps to search for his mother following her disappearance. The prosecuting authorities examined the matter and, by decisions of 1997 and 1999, refused to open criminal proceedings, considering that the police had acted diligently.

At the relevant time, the activities of nursing homes for the elderly and other social care homes were governed by regulations issued by the Ministry of Public Health (State Gazette no. 91 of 1965, amended by State Gazette no. 30 of 1987), in force until 1999, when new regulations replaced them.

In accordance with the regulations, nursing homes were funded and managed by the local municipal councils and were required to follow the standards established and instructions given by the Ministry of Public Health. It appears, however, that in 1994 nursing homes were placed under the management of the Ministry of Labour and Social Care. That was not reflected in the regulations.

The regulations set out the duties of the main staff categories — the director, medical doctors, nurses and administrative staff. On that basis, each nursing home adopted its own internal rules. The nursing home where the applicant's mother lived also had internal rules regulating in detail the organisation and distribution of tasks and duties among staff. In addition, the specific duties attached to each position were set out in job descriptions. For example, according to the job description for a gatekeeper, one of the main duties was control over the entry and exit of persons and vehicles. The nursing home also maintained a presence/absence table and daily instructions book.

Article 137 of the Criminal Code makes it a punishable offence to place a person in a situation endangering his life and, being aware of the situation, to fail to render assistance, despite the fact that the person concerned is unable to take care of himself owing to young or old age, illness, or any other state of helplessness.

There is no reported case-law under that provision.

The State Responsibility for Damage Act provides, in its section 1, that the State shall be liable for damage occasioned by State bodies or State officials in the exercise of their administrative functions. For damage caused in other circumstances, the State and State bodies are liable under general tort law.

According to the established practice in civil proceedings, the courts examine and determine the legal characterisation of claims submitted to them, without regard to the legal characterisation proposed by the plaintiff. The plaintiff must identify the disputed issue by clarifying the facts and the claim made but is under no duty to specify its characterisation in law. Even if the plaintiff indicates a legal characterisation of the claim, the courts are not bound thereby. They must make their own independent assessment (see, among many other authorities, the following judgments: 1208-98-V (Supreme Court of Cassation), 38-97-VII (Supreme Administrative Court) and 75-88- ГК (Supreme Court)).

According to section 10, unlike civil proceedings under general tort law, proceedings under the Act are conducted in the presence of a prosecutor and court fees are only payable following the entry into force of the final judgment.

In 2005, the Supreme Court of Cassation issued an interpretative decision on certain aspects of the implementation of the Act, noting the existence of disputes and divergent practice. One of the issues dealt with was the identity of the State administrative bodies having locus standi to answer claims under the Act. The Supreme Court of Cassation clarified that the action must be brought against the State body employing the relevant agent or, where that State body did not have separate legal personality, against the superior State organ meeting that condition.

By virtue of sections 8–19 of the Persons and Family Act, the courts may declare missing a person whose whereabouts have been unknown for more than one year. If the person is still missing after five years, the courts may declare the person presumed dead.

The Court considers, in the light of the criteria established by its case-law on the question of ‘reasonable time’, and having regard to all the material in its possession, that an examination of the merits of the complaint is required.

The applicant stated that most delays had been imputable to the authorities. In particular, unnecessary adjournments had been ordered by the Sofia City Court to ‘enable’ the applicant to indicate the addresses of State institutions whose location was publicly known or to ‘prove’ their locus standi, an uneasy task owing to administrative restructuring and contradictions in the applicable statutory and administrative regulations. Several adjournments had been caused by the failure of the defendants — State institutions — to disclose documents in their possession. Also, the Sofia City Court's refusals to admit certain evidence had been unjustified and the Appellate Court had eventually collected that evidence, which had also engendered delays. The applicant also submitted that hearings had often been listed at lengthy intervals. He stressed, furthermore, that the failure of the Sofia City Court to determine in good time the legal characterisation of the facts of the case had caused the referral of the case for renewed examination.

The Government considered that the applicant had organised his case badly, kept requesting changes, failed to provide evidence in respect of the defendants' locus standi in time despite the Sofia City Court's instructions and failed to clarify the nature of his claim. At the same time the courts proceeded with due diligence — they organised hearings at regular intervals and gave instructions to the applicant.

The Court observes that the period to be taken into account started on 10 July 1996, when the applicant brought his action. In June 2006 the proceedings were again pending before the first-instance court. They have thus lasted ten years and are probably still pending.

Having regard to the subject matter of the civil proceedings — which concerned liability for negligent acts that might have resulted in loss of life — the authorities were under a duty to exercise special diligence and conduct the proceedings with particular expedition.

The Court observes that the overall length of the proceedings was due to two main factors — the numerous adjournments in the examination of the case by the Sofia City Court in the period 1996 – 2002 and the court's decision of 2002, upheld in 2004 and 2005, to recommence the proceedings under a different procedure (see paragraphs 29–54 above).

In respect of the first factor, the Court notes that the applicant made numerous submissions throughout the proceedings, requesting at an advanced stage the collection of evidence he could have sought at the outset. That must have caused difficulties for the Sofia City Court. It does not appear, however, that the ensuing delays exceeded several months (see paragraphs 30 and 39 above).

Significant delays occurred, however, as a result of the fact that the case was repeatedly adjourned for reasons imputable to the authorities: failure to summon defendants or witnesses, the prosecutor's absence, failure of the defendant State bodies to comply with disclosure orders (see paragraphs 31, 37, 38, 40 and 41).

In respect of the adjournments ordered to clarify addresses of State institutions and their locus standi (see paragraphs 31, 33, 34 and 35 above), the Court considers that the responsibility for the ensuing delays was shared or — in respect of others — rested entirely with the authorities. In particular, the question of which administrative entity had standing to answer civil claims concerning the activities of the nursing home was not clearly regulated — despite the fact that under the relevant regulations nursing homes were under the control of municipalities, in practice they had been placed under the management of the Ministry of Labour and Social Care (see paragraphs 56 and 62 above). Furthermore, the approach of the Sofia City Court, which adjourned hearings requiring from the applicant ‘proof’ of the locus standi or the address of State organs such as the Ministry of the Interior and the Ministry of Labour and Social Care, was excessively formalistic. In a legal system governed by the rule of law, the identity of the State administrative entities responsible for different sectors of activity and designated to answer civil claims must be transparent and easily accessible.

The Court considers, therefore, that while the applicant bore responsibility for delays of several months, the delay accumulated between 1996 and 2002 was in its most part imputable to the authorities.

The Court further notes that the proceedings are still pending as a result of the decision to commence them afresh under a different procedure. That decision was taken in January 2004, more than seven years after the examination of the case had started in July 1996 (see paragraphs 29 and 49 above).

It is striking that the courts did not realise earlier that the case should not have been examined under the State Responsibility for Damage Act and that the correct procedure was that under general tort law. That is particularly surprising having regard to the fact that the problem was raised repeatedly by some of the parties, including the applicant, and that the Sofia City Court noted it in its judgement of 31 July 2002 (see paragraphs 33, 35, 44, 49 and 50 above). The ensuing delay is entirely imputable to the courts, which were under a duty to determine the legal characterisation of the claim (see paragraph 59 above).

Furthermore, as to the courts' decision to recommence the proceedings afresh, the Court observes that the procedure under general tort law differed from that under the State Responsibility for Damage Act in some rather technical aspects — court fees and the presence of a prosecutor (see paragraph 60 above). Having regard to the nature of those differences, the Court finds it difficult to accept that in 2004 and 2005 it was justified to begin the proceedings afresh and invalidate the procedural steps undertaken since 1996, including the collection of witnesses' testimonies and documentary evidence. The rule according to which the proceedings had to restart might have had sound basis in legal theory, however, it must have been obvious to the national courts that its implementation in the particular circumstances would engender significant difficulties, having regard to the limited possibilities to collect evidence, including witness testimony, a decade or more after the events. The duty of Contracting States to secure the enjoyment of such fundamental human rights as the right to life requires the implementation of legal remedies that are capable of producing effective practical results without excessive formalism. It was for the national authorities to conceive such procedural rules as to avoid unjustified delays.

In sum, the Court considers that the authorities' decision to undo all procedural acts and commence afresh the collection of evidence was unjustified and incompatible with their duty to act with particular expedition in cases concerning the right to life.

Furthermore, the applicant's civil claim having been, inter alia, that the responsibility of the State was engaged in that nursing home staff had left Mrs Stoyanova without supervision, it was incumbent on the Sofia City Court to determine the legal characterisation of that part of the claim and conduct the proceedings accordingly. It never did so, despite repeated statements by the parties in that sense. Indeed, the Sofia Appellate Court and the Supreme Court of Cassation expressly criticised the Sofia City Court for having conducted the proceedings under the wrong procedure (see paragraph 50 above).

The foregoing considerations are sufficient to enable the Court to conclude that the ‘reasonable time’ requirement was not observed. There has accordingly been a violation of Article 6 §1 of the Convention.

The applicant claimed EUR 20,000 in respect of non-pecuniary damage on account of the alleged failure of the police to take the necessary measures to find his mother, the authorities' failure to hold accountable the institutions and persons who were responsible for his mother's disappearance and the excessive length of the civil proceedings.

The Government did not comment.

The violation of Article 2 of the Convention found in the present case concerned the authorities' failure to investigate or otherwise provide a possibility to hold accountable the persons who might have committed negligent acts related to Ms Stoyanova's disappearance. The Court considers that these omissions on the part of the authorities, which were partly the result of protracted proceedings, must have caused significant distress to the applicant. Deciding on an equitable basis, the Court awards EUR 8,000 in respect of non-pecuniary damage.

The Court also found a violation of Article 6 § 1 of the Convention in respect of the excessive length of the civil proceedings. It does not consider, however, that a separate sum of money should be awarded in this respect since the anguish the applicant suffered as a result of the excessive length of the proceedings was taken into consideration in determining the award made in respect of the violation of Article 2.

The applicant, who received legal aid from the Council of Europe, did not formulate a claim in respect of costs.

The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.