"III. ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE CONVENTION §§ 179 - 191
179. The applicant submitted that he had not been entitled to compensation for the alleged violations of his rights under Article 5 §§ 1 and 4 of the Convention. He relied on Article 5 § 5, which provides :
" 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."
A. THE PARTIES' SUBMISSIONS §§ 180 - 181
180. The APPLICANT submitted that the circumstances in which unlawful detention could give rise to compensation were exhaustivly listed in the State Responsibility for Damage Act 1988 (see §§ 62 - 67 above) and that his own situation was not covered by any of them. He further complained that there were no legal remedies by which compensation could be claimed for a violation of Article 5 § 4.
181. The GOVERNMENT maintained that the compensation procedure under the 1988 Act could have been initiated if the supplicant's placement had been found to have no legal basis. Since the placement had been found to be consistent with domestic law and with his own interests, he had not been able to initiate the procedure in question.
B. THE COURT'S ASSESSMENT §§ 182 - 191
182. The Court reiterates that Article 5 § 5 is complied with where it is possible to apply for compensation in respect of a deprivation of liberty effected in conditions contrary to paragraphs 1, 2, 3 or 4 (see WASSINK v. the Netherlands, 27 September 1990, § 38, Series A no. 185-A, and HOUTMAN and MEEUS v. Belgium, no. 22.945/07, § 43, 17 March 2009). The right to compensation set forth in paragraph 5 therefore presupposes that a violation of one of the other paragraphs has been established, either by a domestic authority or by the Convention institutions. In this connection, the effective enjoyment of the right to compensation guaranteed by Article 5 § 5 must be ensured with a sufficient degree of certainty ( see CIULLA v. Italy, 22 February 1989, § 44, Series A no. 148 ; SAKIK and OTHERS v. Turkey, 26 November 1997, § 60, Reports 1997 - VII ; and N.C. v. Italy [GC], no. 24.952/94 , § 49, ECHR 2002 - X).
183. Turning to the present case, the Court observes that, regard being had to its finding of a violation of paragraphs 1 and 4 of Article 5 , paragraph 5 is applicable. It must therefore ascertain whether , prior to the present judgement , the applicant had an enforceable right at domestic level to compensation for damage, or whether he will have such a right following the adoption of this judgement.
184. The Court reiterates in this connection that in order to find a violation of Article 5 § 5 , it has to
establish that the finding of a violation of one of the other paragraphs of Article 5 could not give rise , either before or after the Court's judgement, to an enforceable claim for compensation before the domestic courts (see BROGAN and Others v. the United Kingdom, 29 November 1988, §§ 66 -67, Series A no.145-B).
185. Having regard to the case-law cited above, the Court considers that it must first be determined whether the violation of Article 5 §§ 1 and 4 found in the present case could have given rise , before the delivery of this judgement, to an entitlement to compensation before the domestic courts.
186. As regards the violation of Article 5 § 1, the Court observes that section 2(1) of the State Responsibility for Damage Act 1988 provides for compensation for damage resulting from a judicial decision ordering certain types of detention where the decision has been set aside as having no legal basis ( see paragraph 62 above). However, that was not the case in this instance. It appears from the case file that the Bulgarian judicial authorities have not at any stage found the measure to have been unlawful or otherwise in breach of Article 5 of the Convention. Moreover, the Government's line of argument has been that the applicant's placement in the home was in accordance with domestic law. The Court therefore concludes that the applicant was unable to claim any compensation under the above - mentioned provision in the absence of an acknowledgment by the national authorities that the placement was unlawful.
187. As to the possibility under section 1 of the same Act of claiming compensation for damage resulting from unlawful acts by the authorities ( see § 63 above), the Court observes that the Government have not produced any domestic decisions indicating that that provision is applicable to cases involving the placement of people with mental disorders in social care homes on the basis of civil - law agreements.
188. Furthermore, since no judicial remedy by which to review the lawfulness of the placement was available under Bulgarian law, the applicant could not have invoked State liability as a basis for receiving compensation for the violation of Article 5 § 4.
189. The question then arises whether the judgement in the present case, in which violations of §§ 1 and 4 of Article 5 have been found, will entitle the applicant to claim compensation under Bulgarian law. The Court observes that it does not appear from the relevant legislation that any such remedy exists, nor, indeed, have the Government submitted any arguments to prove the contrary.
190. It has therefore not been shown the applicant was able to avail himself prior to the Court's judgement in the present case, or will be able to do so after its delivery, of a right to compensation for the violation of Article 5 §§ 1 and 4.
191. THERE HAS THEREFORE BEEN A VIOLATION OF ARTICLE 5 § 5.
Soweit also die 3. einstimmige Verurteilung Bulgariens durch die GRAND CHAMBER in Straßburg in der beispielhaften Beschwerdesache des gegen seinen Willen zwangsverheimten Rusi STANEV mit Zuspruch von 15.000 Euro Schadenersatz. Wie nun schaut die Rechtslage diesbezüglich hierzulande aus: rein theoretisch könnte im Beschwerdefall WOLFGANG S. die Haftung des Bundes nach § 24 Heimaufenthaltsgesetz in Anspruch genommen werden
:http://www.ris.bka.gv.at/Dokumente/Bundesnormen/NOR40050338/NOR40050338.pdf
Es dürfte wohl noch keinen einzigen derartigen Fall einer konkreten Amtshaftungsklage gegen den Bund geben wegen Vernachlässigung seiner verfassungsrechtlich vorgegebenen Aufsichtspflicht bezüglich den Schutz der persönlichen Freiheit in Heimen, die von privaten Heimträgern betrieben und fachbehördlich von den Ländern beaufsichtigt werden. Es bleibt nun abzuwarten, ob dieser Aspekt von der längst überfälligen Rekursentscheidung des Landesgerichtes Salzburg beurteilt wird oder ob das ganze Problem erneut verschoben wird in eine beliebige Richtung.
179. The applicant submitted that he had not been entitled to compensation for the alleged violations of his rights under Article 5 §§ 1 and 4 of the Convention. He relied on Article 5 § 5, which provides :
" 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."
A. THE PARTIES' SUBMISSIONS §§ 180 - 181
180. The APPLICANT submitted that the circumstances in which unlawful detention could give rise to compensation were exhaustivly listed in the State Responsibility for Damage Act 1988 (see §§ 62 - 67 above) and that his own situation was not covered by any of them. He further complained that there were no legal remedies by which compensation could be claimed for a violation of Article 5 § 4.
181. The GOVERNMENT maintained that the compensation procedure under the 1988 Act could have been initiated if the supplicant's placement had been found to have no legal basis. Since the placement had been found to be consistent with domestic law and with his own interests, he had not been able to initiate the procedure in question.
B. THE COURT'S ASSESSMENT §§ 182 - 191
182. The Court reiterates that Article 5 § 5 is complied with where it is possible to apply for compensation in respect of a deprivation of liberty effected in conditions contrary to paragraphs 1, 2, 3 or 4 (see WASSINK v. the Netherlands, 27 September 1990, § 38, Series A no. 185-A, and HOUTMAN and MEEUS v. Belgium, no. 22.945/07, § 43, 17 March 2009). The right to compensation set forth in paragraph 5 therefore presupposes that a violation of one of the other paragraphs has been established, either by a domestic authority or by the Convention institutions. In this connection, the effective enjoyment of the right to compensation guaranteed by Article 5 § 5 must be ensured with a sufficient degree of certainty ( see CIULLA v. Italy, 22 February 1989, § 44, Series A no. 148 ; SAKIK and OTHERS v. Turkey, 26 November 1997, § 60, Reports 1997 - VII ; and N.C. v. Italy [GC], no. 24.952/94 , § 49, ECHR 2002 - X).
183. Turning to the present case, the Court observes that, regard being had to its finding of a violation of paragraphs 1 and 4 of Article 5 , paragraph 5 is applicable. It must therefore ascertain whether , prior to the present judgement , the applicant had an enforceable right at domestic level to compensation for damage, or whether he will have such a right following the adoption of this judgement.
184. The Court reiterates in this connection that in order to find a violation of Article 5 § 5 , it has to
establish that the finding of a violation of one of the other paragraphs of Article 5 could not give rise , either before or after the Court's judgement, to an enforceable claim for compensation before the domestic courts (see BROGAN and Others v. the United Kingdom, 29 November 1988, §§ 66 -67, Series A no.145-B).
185. Having regard to the case-law cited above, the Court considers that it must first be determined whether the violation of Article 5 §§ 1 and 4 found in the present case could have given rise , before the delivery of this judgement, to an entitlement to compensation before the domestic courts.
186. As regards the violation of Article 5 § 1, the Court observes that section 2(1) of the State Responsibility for Damage Act 1988 provides for compensation for damage resulting from a judicial decision ordering certain types of detention where the decision has been set aside as having no legal basis ( see paragraph 62 above). However, that was not the case in this instance. It appears from the case file that the Bulgarian judicial authorities have not at any stage found the measure to have been unlawful or otherwise in breach of Article 5 of the Convention. Moreover, the Government's line of argument has been that the applicant's placement in the home was in accordance with domestic law. The Court therefore concludes that the applicant was unable to claim any compensation under the above - mentioned provision in the absence of an acknowledgment by the national authorities that the placement was unlawful.
187. As to the possibility under section 1 of the same Act of claiming compensation for damage resulting from unlawful acts by the authorities ( see § 63 above), the Court observes that the Government have not produced any domestic decisions indicating that that provision is applicable to cases involving the placement of people with mental disorders in social care homes on the basis of civil - law agreements.
188. Furthermore, since no judicial remedy by which to review the lawfulness of the placement was available under Bulgarian law, the applicant could not have invoked State liability as a basis for receiving compensation for the violation of Article 5 § 4.
189. The question then arises whether the judgement in the present case, in which violations of §§ 1 and 4 of Article 5 have been found, will entitle the applicant to claim compensation under Bulgarian law. The Court observes that it does not appear from the relevant legislation that any such remedy exists, nor, indeed, have the Government submitted any arguments to prove the contrary.
190. It has therefore not been shown the applicant was able to avail himself prior to the Court's judgement in the present case, or will be able to do so after its delivery, of a right to compensation for the violation of Article 5 §§ 1 and 4.
191. THERE HAS THEREFORE BEEN A VIOLATION OF ARTICLE 5 § 5.
Soweit also die 3. einstimmige Verurteilung Bulgariens durch die GRAND CHAMBER in Straßburg in der beispielhaften Beschwerdesache des gegen seinen Willen zwangsverheimten Rusi STANEV mit Zuspruch von 15.000 Euro Schadenersatz. Wie nun schaut die Rechtslage diesbezüglich hierzulande aus: rein theoretisch könnte im Beschwerdefall WOLFGANG S. die Haftung des Bundes nach § 24 Heimaufenthaltsgesetz in Anspruch genommen werden
:http://www.ris.bka.gv.at/Dokumente/Bundesnormen/NOR40050338/NOR40050338.pdf
Es dürfte wohl noch keinen einzigen derartigen Fall einer konkreten Amtshaftungsklage gegen den Bund geben wegen Vernachlässigung seiner verfassungsrechtlich vorgegebenen Aufsichtspflicht bezüglich den Schutz der persönlichen Freiheit in Heimen, die von privaten Heimträgern betrieben und fachbehördlich von den Ländern beaufsichtigt werden. Es bleibt nun abzuwarten, ob dieser Aspekt von der längst überfälligen Rekursentscheidung des Landesgerichtes Salzburg beurteilt wird oder ob das ganze Problem erneut verschoben wird in eine beliebige Richtung.
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