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FOURTH SECTION

CASE OF SALIHIĆ v. BOSNIA AND HERZEGOVINA

(Application no. 6056/14)

JUDGMENT

STRASBOURG

6 February 2018

This judgment is final but it may be subject to editorial revision.

In the case of Salihić v. Bosnia and Herzegovina,

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:

Carlo Ranzoni, President,
Faris Vehabović,
Péter Paczolay, judges,
and Andrea Tamietti, Deputy Section Registrar,

Having deliberated in private on 16 January 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 6056/14) against Bosnia and Herzegovina lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by a national of Bosnia and Herzegovina, Mr Muhamed Salihić ("the applicant"), on 19 December 2013.

2. The applicant was represented by Vaša Prava, a local non-governmental organisation, until he died on 26 September 2016. On 20 April 2017 the applicant's children, Mr Edis Salihić, Mr Adis Salihić and Mrs Emina Salihić expressed their wish to pursue the proceedings on behalf of the applicant. The Government of Bosnia and Herzegovina ("the Government") were represented by their Deputy Agent, Mrs S. Malešić.

3. On 12 December 2016 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1951 and lived in Sarajevo.

5. By its decision of 3 August 2004, and at the recommendation of the Sarajevo Psychiatric Clinic (the "Psychiatric Clinic"), the Sarajevo Municipal Court instituted proceedings for the applicant's placement in a psychiatric facility.

6. On 18 August 2004, the Sarajevo Municipal Court decided to keep the applicant in the Psychiatric Clinic for a maximum of 45 days (counting from the date of his placement, that is 1 August 2004).

7. On 22 September 2004 the Sarajevo Canton Social Care Centre (the "Social Care Centre") placed the applicant in the Drin Social Care Home (the "Drin Home").

8. On 7 January 2005, the Sarajevo Municipal Court deprived the applicant of his legal capacity.

9. On 10 March 2005 the Social Care Centre placed the applicant under the guardianship of D.M., one of its employees. Several other employees were subsequently appointed as the applicant's successive guardians.

10. By its decisions of 25 February 2010 and 25 December 2014, the Social Care Centre decided that the applicant should remain in the Drin Home.

11. On 16 September 2015 the Constitutional Court of Bosnia and Herzegovina ("the Constitutional Court") held that the applicant's deprivation of liberty had not been "in accordance with a procedure prescribed by law" within the meaning of Article 5 § 1 of the Convention as he had been held in psychiatric detention without a decision of a competent civil court. It also found that Article 5 § 4 of the Convention had been breached because of the lack of judicial review of the lawfulness of the applicant's detention. The Constitutional Court ordered the Social Care Centre to take measures to ensure respect for the applicant's rights under Article 5 §§ 1 and 4 of the Convention.

12. On 7 December 2015, the Sarajevo Municipal Court restored the applicant's legal capacity.

13. The applicant was released from the Drin Home on 14 December 2015.

14. At the applicant's request, the Social Care Centre again admitted him to the Drin Home, between 1 January 2016 and 31 March 2016.

15. The applicant requested an extension of his stay in social care, which request was granted on 1 April 2016. The applicant was thus placed in the Social and Health Care Home for Persons with Disabilities and Other Persons (the "Social and Health Care Home").

16. The applicant died on 26 September 2016, while in the Social and Health Care Home.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 §§ 1 AND 4 OF THE CONVENTION

17. The applicant complained that his placement in the Drin Home had not been ordered in accordance with "a procedure prescribed by law" within the meaning of Article 5 of the Convention, which in so far as relevant reads as follows:

"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

...

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

A. Admissibility

1. Locus standi

18. The Government argued that the applicant's heirs (see paragraph 2 above) could not continue the application on his stead, as the rights guaranteed by Article 5 of the Convention are not-transferable.

19. In the case of Vaščenkovs v. Latvia (no. 30795/12, § 27, 15 December 2016,), the Court reiterated the difference between applications where the direct victim has died before the application was lodged with the Court, and those where he or she has died after the application was lodged. In the latter case, the decisive factor is not whether the rights at issue are transferable to heirs willing to pursue an application, but whether the persons wishing to pursue the proceedings can claim a legitimate interest in seeking that the Court decide the case on the basis of the applicant's desire to use his or her individual and personal right to lodge a case before the Court (see also Ergezen v. Turkey, no. 73359/10, §§ 27 and 29, 8 April 2014). In the present case, the applicant died after lodging his application with the Court and the applicant's heirs, Mr Edis Salihić, Mr Adis Salihić and Mrs Emina Salihić, expressed their interest in pursuing the proceedings before the Court, in their letter of 4 March 2017. Therefore, the principles outlined in Vaščenkovs apply to the present case.

20. The Court considers that, in the specific circumstances of the present case, the applicant's heirs have legal standing to continue the proceedings in the applicant's stead, and that the Government's objection in this regard should hence be dismissed. For practical reasons, however, Mr Muhamed Salihić will continue to be referred to as the applicant in this judgment, although his heirs are now to be regarded as such (see, mutatis mutandis, Dalban v. Romania, 28114/95, § 1, 28 September 1999).

2. Exhaustion of domestic remedies

21. The Government further argued that the application should be rejected for being premature, as the applicant introduced his application to the Court before the Constitutional Court had delivered its decision on appeal.

22. The Court observes that even though the applicant has introduced his application before his constitutional appeal was decided upon, in the meantime the Constitutional Court has rendered its decision on the matter.

23. The Court considers that the Government's objection must therefore be dismissed.

3. Loss of victim status

24. The Government submitted that the applicant could no longer claim to be a victim of the alleged violations within the meaning of Article 34 of the Convention. They noted that the applicant had obtained a decision of the Constitutional Court, which had found a violation of Article 5 of the Convention and ordered his release. Hence, he could not still claim to be a victim of the alleged violation.

25. The Court recalls that an applicant's status as a "victim" within the meaning of Article 34 of the Convention depends on the fact whether the domestic authorities acknowledged, either expressly or in substance, the alleged infringement of the Convention and, if necessary, provided appropriate redress in relation thereto. Only when these conditions are satisfied does the subsidiary nature of the protective mechanism of the Convention preclude examination of an application (see Cocchiarella v. Italy [GC], no. 64886/01, § 71, ECHR 2006-�V, and Cataldo v. Italy (dec.), no. 45656/99, ECHR 2004-VI).

26. The Court, in this respect, notes that the Constitutional Court found that the applicant's right to liberty and security had been violated (see paragraph 11 above), thereby acknowledging the breach complained of and, effectively, satisfying the first condition laid down in the Court' s case law.

27. The applicant's victim status then depends on whether the redress afforded was adequate and sufficient having regard to just satisfaction as provided for under Article 41 of the Convention (see Dubjaková v. Slovakia (dec.), no. 67299/01, 19 October 2004).

28. In the present case, the Constitutional Court, besides the finding of a violation and the ordering of the applicant's release, did not offer him any compensation for the non-pecuniary damage suffered.

29. The Court therefore concludes that the applicant did not lose his status as victim within the meaning of Article 34 of the Convention. The Government's preliminary objection in this regard must hence be rejected (see, mutatis mutandis, Hadžimejlić and Others v. Bosnia and Herzegovina, nos. 3427/13, 74569/13 and 7157/14, §§37-40, ECHR 2015).

4. Other grounds for inadmissibility

30. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. Alleged violation of Article 5 § 1 of the Convention

31. The Court reiterates that Article 5 of the Convention is, together with Articles 2, 3 and 4, in the first rank of the fundamental rights that protect the physical security of an individual and as such its importance in a democratic society is paramount (see, amongst others, McKay v. the United Kingdom [GC], no. 543/03, § 30, ECHR 2006-�X, and Rudenko v. Ukraine, no. 50264/08, § 98, 17 April 2014).

32. In Hadžimejlić and Others (cited above, §§ 51-59) the Court found a violation of Article 5 § 1 of the Convention in circumstances which are very similar to those of the present case. The Court does not see any reason to depart from that jurisprudence and from the findings of the domestic Constitutional Court (see paragraph 11 above).

33. There has accordingly been a violation of Article 5 § 1 of the Convention.

2. Alleged violation of Article 5 § 4 of the Convention

34. Having regard to the finding relating to Article 5 § 1 of the Convention, the Court considers that it is not necessary to examine whether, in this case, there has also been a violation of Article 5 § 4 of the Convention (see David v. Moldova, no. 41578/05, § 43, 27 November 2007; Tokić and Others v. Bosnia and Herzegovina, nos. 12455/04 and 3 others, § 70, 8 July 2008; and Hadžimejlić and Others, cited above, § 60).

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

35. Article 41 of the Convention provides:

"If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party."

A. Damage

36. The applicant claimed 150,000 euros (EUR) in respect of non-pecuniary damage.

37. The Government made no comments in this regard.

38. The Court accepts that the applicant suffered considerable distress as a result of the breach found which justifies an award of non-pecuniary damage. Having regard to the duration of the applicant's unlawful detention, the Court awards the applicant EUR 27,500 in respect of non-pecuniary damage. This amount is to be paid to the applicant's heirs.

B. Costs and expenses

39. The applicant did not submit a claim in this respect. Accordingly, the Court considers that there is no call to award him any sum on that account.

C. Default interest

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

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 5 § 1 of the Convention;

3. Holds that there is no need to examine separately the complaint under Article 5 § 4 of the Convention;

4. Holds

(a) that the respondent State is to pay jointly the applicant's heirs, within three months, EUR 27,500 (twenty seven thousand five hundred euros), plus any tax that may be chargeable to the applicant's heirs, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 6 February 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Andrea TamiettiCarlo Ranzoni
              Deputy RegistrarPresident