" B. THE COURT' S ASSESSMENT §§ 168 - 178
1. GENERAL PRINCIPLES §§ 168 - 171
168. The Court reiterates that Article 5 § 4 entitles detained persons to institute proceedings for a review of compliance with the procedural and substantive conditions which are essential for the "lawfulness", in Convention terms, of their deprivation of liberty. The notion of "lawfulness" under paragraph 4 of Article 5 has the same meaning as in paragraph 1 , so that a detained person is entitled to a review of the "lawfulness" of his detention in the light not only of the requirements of domestic law but also of the Convention , the general principles embodied therein and the aim of the restrictions permitted by Article 5 § 1. Article 5 § 4 does not guarantee a right to judicial review of such a scope as to empower the court, on all aspects of the case including questions of pure expediency , to substitute its own discretion for that of the decision - making authority. The review should, however, be wide enough to bear on those conditions which are essential for the "lawful" detention of a person according to Article 5 § 1 (see E. v. Norway , 29 August 1990, § 50, Series A no.181 - A). The reviewing "court" must not have merely advisory functions but must have the competence to "decide" the "lawfulness" of the detention and to order release if the detention is unlawful ( see Ireland v. the United Kingdom, 18 January 1978, § 200, Series A, no 25; WEEKS v. the United Kingdom, 2 March 1987, § 61 , Series A no.114 ; CHAHAL v. the United Kingdom, 15 November 1996, § 130, Reports of Judgements and decisions 1996 - V ; and A. and Others v. the United Kingdom [GC], no. 3.455/05, § 202, 19 February 2009).
169. The forms of judicial reviews satisfying the requirements of Article 5 § 4 may vary from one domain to another, and will depend on the type of deprivation of liberty in issue. It is not the Court's task to inquire into what would be the most apppropiate system in the sphere under examination (see SHTUKATUROV , cited above, § 123).
170. Nevertheless, Article 5 § 4 guarantees a remedy that must be accessible to the person concerned and must afford the possibility of reviewing compliance with the conditions to be satisfied if the detention of a person of unsound mind is to be regarded as "lawful" for the purposes of Article 5 § 1 (e) (see ASHINGDANE ; cited above, § 52). The convention requirement for an act of deprivation of liberty to be amenable to independent judicial scrutiny is of fundamental importance in the context of the underlying purpose of Article 5 of the Convention TO PROVIDE SAFEGUARDS AGAINST ARBITRARINESS. What is at stake is both the protection of the physical liberty of individuals and their personal security ( see VARBANOV, cited above, § 58). In the case of detention on the ground of mental illness, special procedural safeguards may be called for in order to protect the interests of persons who, on account of their mental disabilities , are not fully capable of acting for themselves ( see, among other authorities, WINTERWERP, cited above , § 60.
171. Among the principles emerging from the Court's case - law under Article 5 § 4 concerning "persons of unsound mind " are the following:
(a) a person detained for an indefinite or lengthy period is in principle entitled, at any rate where there is no automatic periodic review of a judicial character, to take proceedings " at reasonable intervals " before a court to put in issue the "lawfulness" - within the meaning of the Convention - of his detention;
(b) Article 5 § 4 requires the procedure followed to have a judicial character and to afford the individual concerned guarantees appropiate to the kind of deprivation of liberty in question; in order to determine whether proceedings provide adequate guarantees, regard must be had to the particular nature of the circumstances in which they take place;
(c) the judicial proceedings referred to in Article 5 § 4 need not always be attended by the same guarantees as those required under Article 6 § 1 for civil or criminal litigation. Nevertheless, it is essential that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary , through some form of representation ( see MEGYERI v. Germany , 12 May 1992, § 22, Series A no. 237-A).
2. APPLICATION OF THESE PRINCIPLES IN THE PRESENT CASE §§ 172 - 178
172. The Court observes that the Government have not indicated any domestic remedy capable of affording the applicant the direct opportunity to challenge the lawfulness of his placement in the Pastra social care home and the continued implementation of that measure. It also notes that the Bulgarian courts were not involved at any time or in any way in the placement and that the domestic legislation does not provide for automatic periodic judicial review of placement in a home for people with mental disorders . Furthermore, since the applicant's placement in the home is not recognised as a deprivation of liberty in Bulgarian law ( see § 58 above), there is no provision for any domestic legal remedies by which to challenge its lawfulness in terms of a deprivation of liberty. In addition, the Court notes that, according to the domestic courts' practice, the validity of the placement agreement could have been challenged on the ground of lack of consent only on the guardian's initiative (see § 54 above).
173 In so far as the Government referred to the procedure for restoration of legal capacity under Article 277 of the CCP (see § 167 above ), the Court notes that the purpose of this procedure would not have been to examine the lawfulness of the applicant's placement per se, but solely to review his legal status (see §§ 233 - 246 below). The Government also referred to the procedures for reviewing steps taken by the guardian ( see §§ 165 - 166 above). The Court considers it necessary to determine whether such remedies could have given rise to a judicial review of the lawfulness of the placement as required by Article 5 § 4.
174. In this connection, it notes that the 1985 FC entitled close relatives of a person under partial guardianship to challenge decisions by the guardianship authority, which in turn was required to review steps taken by the guardian - including the placement agreement - and to replace the latter in the event of failure to discharge his or her duties (see §§ 48 - 50 above). However, the Court notes that those remedies were not directly accessible to the applicant. Moreover, none of the persons theoretically entitled to make use of them displayed any intention of acting in Mr Stanev's interests, and he himself was unable to act on his own initiative without their approval.
175. It is uncertain whether the applicant could have requested the mayor to demand explanations from the guardian or to suspend the implementation of the placement agreement on the ground that it was invalid. In any event, it appears that since he had been partially deprived of legal capacity, the law did not entitle him to apply of his own motion to the courts to challenge steps taken by the mayor ( see § 49 above); this was not disputed by the Government.
176. The same conclusion applies as regards the possibility for the applicant to ask the mayor to replace his guardian temporarily with an AD HOC REPRESENTATIVE on the basis of an alleged conflict of interests and then to apply for the termination of the placement agreement. The Court observes in this connection that the mayor has discretion to determine whether there is a conflict of interests (see § 50 above). Lastly, it does not appear that the applicant could have applied of his own motion to the courts for a review on the merits in the event of the mayor's refusal to take such action.
177. The Court therefore concludes that the remedies referred to by the Government were either inaccessible to the applicant or were not judicial in nature. Furthermore, none of them can give rise to a direct review of the lawfulness of the applicant's placement in the Pastra social care home in terms of domestic law and the Convention.
178. Having regard to those considerations, the Court DISMISSES the Government's OBJECTION of failure to exhaust domestic remedies ( see §§ 97 - 99 above) and
1. GENERAL PRINCIPLES §§ 168 - 171
168. The Court reiterates that Article 5 § 4 entitles detained persons to institute proceedings for a review of compliance with the procedural and substantive conditions which are essential for the "lawfulness", in Convention terms, of their deprivation of liberty. The notion of "lawfulness" under paragraph 4 of Article 5 has the same meaning as in paragraph 1 , so that a detained person is entitled to a review of the "lawfulness" of his detention in the light not only of the requirements of domestic law but also of the Convention , the general principles embodied therein and the aim of the restrictions permitted by Article 5 § 1. Article 5 § 4 does not guarantee a right to judicial review of such a scope as to empower the court, on all aspects of the case including questions of pure expediency , to substitute its own discretion for that of the decision - making authority. The review should, however, be wide enough to bear on those conditions which are essential for the "lawful" detention of a person according to Article 5 § 1 (see E. v. Norway , 29 August 1990, § 50, Series A no.181 - A). The reviewing "court" must not have merely advisory functions but must have the competence to "decide" the "lawfulness" of the detention and to order release if the detention is unlawful ( see Ireland v. the United Kingdom, 18 January 1978, § 200, Series A, no 25; WEEKS v. the United Kingdom, 2 March 1987, § 61 , Series A no.114 ; CHAHAL v. the United Kingdom, 15 November 1996, § 130, Reports of Judgements and decisions 1996 - V ; and A. and Others v. the United Kingdom [GC], no. 3.455/05, § 202, 19 February 2009).
169. The forms of judicial reviews satisfying the requirements of Article 5 § 4 may vary from one domain to another, and will depend on the type of deprivation of liberty in issue. It is not the Court's task to inquire into what would be the most apppropiate system in the sphere under examination (see SHTUKATUROV , cited above, § 123).
170. Nevertheless, Article 5 § 4 guarantees a remedy that must be accessible to the person concerned and must afford the possibility of reviewing compliance with the conditions to be satisfied if the detention of a person of unsound mind is to be regarded as "lawful" for the purposes of Article 5 § 1 (e) (see ASHINGDANE ; cited above, § 52). The convention requirement for an act of deprivation of liberty to be amenable to independent judicial scrutiny is of fundamental importance in the context of the underlying purpose of Article 5 of the Convention TO PROVIDE SAFEGUARDS AGAINST ARBITRARINESS. What is at stake is both the protection of the physical liberty of individuals and their personal security ( see VARBANOV, cited above, § 58). In the case of detention on the ground of mental illness, special procedural safeguards may be called for in order to protect the interests of persons who, on account of their mental disabilities , are not fully capable of acting for themselves ( see, among other authorities, WINTERWERP, cited above , § 60.
171. Among the principles emerging from the Court's case - law under Article 5 § 4 concerning "persons of unsound mind " are the following:
(a) a person detained for an indefinite or lengthy period is in principle entitled, at any rate where there is no automatic periodic review of a judicial character, to take proceedings " at reasonable intervals " before a court to put in issue the "lawfulness" - within the meaning of the Convention - of his detention;
(b) Article 5 § 4 requires the procedure followed to have a judicial character and to afford the individual concerned guarantees appropiate to the kind of deprivation of liberty in question; in order to determine whether proceedings provide adequate guarantees, regard must be had to the particular nature of the circumstances in which they take place;
(c) the judicial proceedings referred to in Article 5 § 4 need not always be attended by the same guarantees as those required under Article 6 § 1 for civil or criminal litigation. Nevertheless, it is essential that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary , through some form of representation ( see MEGYERI v. Germany , 12 May 1992, § 22, Series A no. 237-A).
2. APPLICATION OF THESE PRINCIPLES IN THE PRESENT CASE §§ 172 - 178
172. The Court observes that the Government have not indicated any domestic remedy capable of affording the applicant the direct opportunity to challenge the lawfulness of his placement in the Pastra social care home and the continued implementation of that measure. It also notes that the Bulgarian courts were not involved at any time or in any way in the placement and that the domestic legislation does not provide for automatic periodic judicial review of placement in a home for people with mental disorders . Furthermore, since the applicant's placement in the home is not recognised as a deprivation of liberty in Bulgarian law ( see § 58 above), there is no provision for any domestic legal remedies by which to challenge its lawfulness in terms of a deprivation of liberty. In addition, the Court notes that, according to the domestic courts' practice, the validity of the placement agreement could have been challenged on the ground of lack of consent only on the guardian's initiative (see § 54 above).
173 In so far as the Government referred to the procedure for restoration of legal capacity under Article 277 of the CCP (see § 167 above ), the Court notes that the purpose of this procedure would not have been to examine the lawfulness of the applicant's placement per se, but solely to review his legal status (see §§ 233 - 246 below). The Government also referred to the procedures for reviewing steps taken by the guardian ( see §§ 165 - 166 above). The Court considers it necessary to determine whether such remedies could have given rise to a judicial review of the lawfulness of the placement as required by Article 5 § 4.
174. In this connection, it notes that the 1985 FC entitled close relatives of a person under partial guardianship to challenge decisions by the guardianship authority, which in turn was required to review steps taken by the guardian - including the placement agreement - and to replace the latter in the event of failure to discharge his or her duties (see §§ 48 - 50 above). However, the Court notes that those remedies were not directly accessible to the applicant. Moreover, none of the persons theoretically entitled to make use of them displayed any intention of acting in Mr Stanev's interests, and he himself was unable to act on his own initiative without their approval.
175. It is uncertain whether the applicant could have requested the mayor to demand explanations from the guardian or to suspend the implementation of the placement agreement on the ground that it was invalid. In any event, it appears that since he had been partially deprived of legal capacity, the law did not entitle him to apply of his own motion to the courts to challenge steps taken by the mayor ( see § 49 above); this was not disputed by the Government.
176. The same conclusion applies as regards the possibility for the applicant to ask the mayor to replace his guardian temporarily with an AD HOC REPRESENTATIVE on the basis of an alleged conflict of interests and then to apply for the termination of the placement agreement. The Court observes in this connection that the mayor has discretion to determine whether there is a conflict of interests (see § 50 above). Lastly, it does not appear that the applicant could have applied of his own motion to the courts for a review on the merits in the event of the mayor's refusal to take such action.
177. The Court therefore concludes that the remedies referred to by the Government were either inaccessible to the applicant or were not judicial in nature. Furthermore, none of them can give rise to a direct review of the lawfulness of the applicant's placement in the Pastra social care home in terms of domestic law and the Convention.
178. Having regard to those considerations, the Court DISMISSES the Government's OBJECTION of failure to exhaust domestic remedies ( see §§ 97 - 99 above) and
FINDS THAT THERE HAS BEEN A VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION "
Damit ist also auch in dieser Hinsicht eine einstimmige Verurteilung Bulgariens durch die 17 Richter der GRAND CHAMBER erfolgt, weil die angeblichen Rechtsbehelfe für den Betroffenen in der Praxis nicht zugänglich oder sonstwie nicht effektiv waren. Mindestens genauso schlimm schaut die "Rechtslage" hierzulande aus : zwangsverheimte schwerbehinderte Mitmenschen haben in der Praxis überhaupt keine Chance, die Rechtmäßigkeit ihrer Zwangsverheimung gerichtlich überprüfen zu lassen und einen versklavenden Sachwalter abzuschütteln. Umso spannender nun, was die längst überfällige Rekursentscheidung des Landesgerichtes Salzburg zu diesen Problemstellungen aussagen wird . Wir werden diese Rekursentscheidung selbstverständlich in geeignetem Ausmaße hier publizieren und wir werden uns keinen Maulkorb umhängen lassen bei der weiteren Rechtsdurchsetzung für WOLFGANG S. !
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