Stanev v Bulgaria

Summary: Deprivation of liberty cases before the ECtHR which shed any light upon the considerations applying under the DOLS regime are very rare, and the recent decision of the Grand Chamber in Stanev is therefore of some considerable importance (albeit that it arose in the context of a rather different regime for the provision of residential care, as will become apparent). We therefore make no apology for including significant extracts from the judgment of the Court in our note upon the case.

The Applicant in this case had a diagnosis of schizophrenia and had been living in the community. None of his relatives were willing to act as his guardian, and he therefore met the domestic criteria for admission to a social care home. The authorities decided he should be moved to a care home and he was taken then without any explanation or advance warning and placed under partial guardianship, or trusteeship. His state benefits were paid to the care home. The care home was in an isolated area, 8km from the nearest village. It housed 73 residents with differing degrees of mental illness. The Applicant shared a small room with four other residents. The physical conditions of the home were poor and there was little access to the community or to activities.

The Applicant argued that he had been deprived of his liberty under Article 5:

"102. ... the applicant submitted that living in a social care home in a remote mountain location amounted to physical isolation from society. He could not have chosen to leave on his own initiative since, having no identity papers or money, he would soon have faced the risk of being stopped by the police for a routine check, a widespread practice in Bulgaria. 103. 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 had no access to his invalidity pension had made it impossible for him to travel to Ruse any more than three times. The applicant further submitted that he had been denied permission to travel on many other occasions by the home's management. He added that, in accordance with a practice with 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 stated in that connection that on one occasion the police had arrested him in Ruse and that, 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 amounted to a decisive restriction on his right to personal liberty. He stated that he had been arrested and detained by the police pending the arrival of staff from the home to collect him, without having been informed of the grounds for depriving him of his liberty. Since he had been transferred back under duress, it was immaterial that those involved had been employees of the home. 104. The applicant further noted that his placement in the home had already lasted more than eight years and that his hopes of leaving one day were futile, as the decision had to be approved by his guardian. 105. As to the consequences of his placement, the applicant highlighted the severity of the regime to which he was subject. His occupational activities, treatment and movements had been subject to thorough and practical supervision by the home's employees. He had been required to follow a strict daily routine, getting up, going to bed and eating at set times. He had had no free choice as to his clothing, the preparation of his meals, participation in cultural events or the development of relations with other people, including intimate relationships as the home's residents were all men. He had been allowed to watch television in the morning only. Accordingly, his stay in the home had caused a perceptible deterioration in his well-being and the onset of institutionalisation syndrome, in other words the inability to reintegrate into the community and lead a normal life."

The Government argued that "the applicant's placement in the home was simply a protective measure taken in his interests alone and constituted an appropriate response to a social and medical emergency."

The Court held that the national authorities had been responsible for the Applicant's removal to the care home and that he had been deprived of his liberty:

"124. With regard to the objective aspect, the Court observes that the applicant was housed in a block which he was able to leave, but emphasises that the question whether the building was locked is not decisive.... While it is true that the applicant was able to go to the nearest village, he needed express permission to do so. Moreover, the time he spent away from the home and the places where he could go were always subject to controls and restrictions. 125. The Court further notes that between 2002 and 2009 the applicant was granted leave of absence for three short visits (of about ten days) to Ruse. It cannot speculate as to whether he could have made more frequent visits had he asked to do so. Nevertheless, it observes that such leave of absence was entirely at the discretion of the home's management, who kept the applicant's identity papers and administered his finances, including transport costs. Furthermore, it would appear to the Court that the home's location in a mountain region far away from Ruse (some 400 km) made any journey difficult and expensive for the applicant in view of his income and his ability to make his own travel arrangements. 126. The Court considers that this system of leave of absence and the fact that the papers placed significant restrictions on his personal liberty. 127. Moreover, it is not disputed that when the applicant did not return from leave of absence in 2006, the home's management asked the Ruse police to search for and return him. The Court can accept that such steps form part of the responsibilities assumed by the management of a home for people with mental disorders towards its residents. It further notes that the police did not escort the applicant back and that he has not proved that he was arrested pending the arrival of staff from the home. Nevertheless, since his authorised period of leave had expired, the staff returned him to the home without regard for his wishes. 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 [Dodov v. Bulgaria (Application No. 59548/00, 17 January 2008)], 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. 129. As regards the duration of the measure, the Court observes that it was not specified and was thus indefinite since the applicant was listed in the municipal registers as having his permanent address at the home, where he still remains (having lived there for more than eight years). This period is sufficiently lengthy for him to have felt the full adverse effects of the restrictions imposed on him. 130. As to the subjective aspect of the measure, it should be noted that, contrary to the requirements of domestic law, 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. 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. 131. These factors set the present case apart from H.M. v. Switzerland (cited above), in which the Court found that there had been no deprivation of liberty as the applicant had been placed in a nursing home purely in her own interests and, after her arrival there, had agreed to stay. In that connection the Government have not shown that in the present case, on arrival at the Pastra social care home or at any later date, the applicant agreed to stay there. That being so, the Court is not convinced that the applicant consented to the placement or accepted it tacitly at a later stage and throughout his stay. 132. Having regard to the particular circumstances of the present case, especially the involvement of the authorities in the decision to place the applicant in the home and its implementation, the rules on leave of absence, the duration of the placement and the applicant's lack of consent, the Court concludes that the situation under examination amounts to a deprivation of liberty within the meaning of Article 5 § 1 of the Convention. Accordingly, that provision is applicable."

The Court found that the deprivation of liberty was unlawful because there was no proper evidence that the Winterwerp criteria (Winterwerp v. the Netherlands, 24 October 1979, § 39, Series A no. 33) were satisfied, which meant that Article 5(1)(e) could not be relied on. The court reiterated (at paragraph) that "[a]s regards the deprivation of liberty of mentally disordered persons, an individual cannot be deprived of his liberty as being of 'unsound mind' unless the following three minimum conditions are satisfied: firstly, he must reliably be shown to be of unsound mind; secondly, the mental disorder must be of a kind or degree warranting compulsory confinement; thirdly, the validity of continued confinement depends upon the persistence of such a disorder."

The Court also concluded that there had also been a breach of Article 5(4) (review by a court), Article 5(5) (right to compensation), Article 3 (inhuman and degrading treatment by virtue of the poor living conditions in the home) and Article 6. The Applicant was awarded EUR15,000 in damages.

Comment: Frustratingly, although there were considerable hopes that this case would shed some useful light on the extremely vexed question of precisely what is and is not a deprivation of liberty, this decision promised much but ultimately offered rather less.

The ECtHR clearly rejected the idea that doing something in someone's best interests means that it cannot be a deprivation of liberty, but accepted that measures demonstrated to be necessary to protect life and limb (as in the Dodov case) may not amount to a deprivation of liberty. Both concepts seem consistent with the recent judgment of the Court of Appeal in Cheshire West; how easy they are to apply in practice is another question.

However, what is underlined by the judgment in Stanev is the crucial importance of having regard to the wishes of a person who is deemed to lack capacity. While the court's comments on this issue were made in the context of a system where a person can be deemed to lack 'legal capacity' (rather than one where capacity decisions are made on an issue-specific basis as under the MCA 2005), they do highlight the need to appreciate what P wants, and the heavy burden that is placed on anyone seeking to go against P's wishes.

The judgment is also of interest because of its clear statement that the Winterwerp criteria must be met for a deprivation of liberty under Art.5(1)(e) to be lawful, and the application of this established principle in the context of detention in a care home rather than a psychiatric institution. It is not obvious to the authors that this decision is consistent with the decision of the Court of Appeal in G v E [2010] EWCA Civ 822, in which the court stated 'we do not think that ECHR Article 5 imposes any threshold conditions which have to be satisfied before a best interests assessment under DOLS can be carried out.'