Nencheva and Others v. Bulgaria

Information Note on the Court’s case-law No. 164

June 2013

Nencheva and Others v. Bulgaria - 48609/06

Judgment 18.6.2013 [Section IV]

Article 2

Positive obligations

Article 2-1

Life

Effective investigation

Failure to take appropriate measures to protect lives of residents of children’s home or to conduct effective investigation into deaths caused by conditions there: violation

Facts – The nine applicants are the parents of seven of the fifteen children and young adults under the age of twenty-two who died during the winter of 1996/97 in a home for children with severe mental disabilities in the village of Dzhurkovo. Before the Court, they alleged that the State had failed in its positive obligations to protect the lives of the persons in its care, in circumstances which created an imminent threat to their lives and well-being, and to conduct an investigation aimed at identifying those responsible for the deaths.

Law – Article 2: It first had to be established what obligations arose for the respondent State out of the specific circumstances of the present case. All the children and young adults had been entrusted to the care of the State in a specialised public facility and had been under the exclusive supervision of the authorities on account of their particular vulnerability, among other factors. The applicants’ children had been subjected to extremely poor conditions: they had had insufficient quantities of food, medicines, clothes and bed linen and lived in rooms that were inadequately heated in the winter. Such conditions had inevitably posed a risk to the lives of vulnerable children suffering from illnesses requiring specific and intensive care. From the month of September, that is, from the early autumn and some three months before the first death in the home, officials at the highest level in the Ministry of Employment and Social Policy and other State institutions had been alerted to the risk to the lives and well-being of the children in the Dzhurkovo home. Moreover, the manager had consistently drawn attention to the serious nature of the conditions and the difficulty of providing the children with the necessary care, and had appealed for help to numerous public and humanitarian structures. The authorities at several levels had therefore had precise knowledge of the real danger to the well-being of the children in the home. Furthermore – and this was a crucial factor – the tragic events had not occurred in a sudden, one-off and unforeseen manner. There had been a series of deaths and the tragedy at the home had thus been spread over time. Fifteen children and young adults, seven of whom were the applicants’ children, had died between 15 December 1996 and 14 March 1997, that is, over a period of around three months. Hence, the present case concerned a situation in which the lives of vulnerable persons in the care of the State had been in danger and of which the authorities had been fully aware. Accordingly, the issue did not just affect the applicants’ individual situation but was a matter of public interest. The national authorities had therefore been under a duty to take the appropriate steps as a matter of urgency to protect the children’s lives, irrespective of their parents’ actions, and to furnish explanations as to the cause of the deaths and the persons who may have been responsible, by means of proceedings instituted of their own motion.

As to the authorities’ obligation to take protective action, numerous elements in the case file, namely the failure over a period of several months to respond to the manager’s warnings concerning conditions in the home and the apparent lack of prompt and appropriate medical assistance, indicated that the authorities had not taken swift, practical and sufficient measures to prevent the deaths, despite having precise knowledge of the real and imminent threat to the lives of the persons concerned. No official explanation had been provided in that regard.

With regard to the duty to institute an effective official investigation, civil proceedings enabling the applicants to claim and obtain individual compensation could not be deemed to be an adequate response in terms of Article 2 of the Convention such as to ensure that the deterrent effect of the judicial system in place and the significance of the role it was required to play in preventing violations of the right to life were not undermined. The facts of the case pointed to an exceptional situation rather than a routine case of negligence. Therefore, although it had been open to the applicants to establish the facts and obtain compensation, the fact that the taking of civil proceedings for compensation depended solely on the victims’ initiative meant that the remedy in question, regardless of the outcome, could not be taken into consideration, since Article 2 imposed an obligation on the Bulgarian authorities in the instant case to conduct an investigation of their own motion.

As to the requirements of diligence and promptness, the official investigation had not commenced until more than two years after the events. Furthermore, the criminal proceedings had subsequently lasted for approximately eight years, including around six years for the preliminary investigation alone. In particular, the prosecuting authorities did not appear to have been active between 2001 and April 2004. It was true that the investigation had been particularly complex. However, the unjustified failure to institute any kind of official proceedings for two years after the tragic events, allied to the length of the preliminary investigation, which had included a period of inactivity of almost four years, had been apt to compromise the effectiveness of the investigation despite the subsequent appearance of diligence on the part of the three judicial bodies concerned. Furthermore, the investigation had not succeeded in establishing the respective importance, as possible factors in the deaths, of each of the failings in the system for protecting the children, bearing in mind in particular their state of health and their natural life expectancy in the conditions in which they had been placed. The delays in the criminal proceedings had also made it impossible to ascertain whether the conduct of other persons responsible for the running of the home might have contributed to the tragic events. Accordingly, the authorities could not be said to have acted with reasonable diligence; this had prevented the swift establishment of the actual causes of the deaths and of a possible link between those causes and the conduct of the various officials responsible.

With regard to the scope of the investigation, the system appeared sufficient in theory to ensure protection of the right to life in the context examined. The Criminal Code made it a punishable offence to cause death through negligence or through a breach of a statutory duty of care in exercising a professional or other activity entailing risks and regulated by law. It was also an offence to knowingly decline to lend assistance to a vulnerable person in danger. The courts had established that the three employees of the children’s home who faced charges had done everything in their power to protect the lives of the children; the courts had stated clearly that the malfunctioning of the system had been attributable to the authorities which had failed to respond to the manager’s appeals. However, the courts had reached those conclusions in the context of proceedings confined to the charges against the three employees of the children’s home. Their findings had not resulted in action being taken to ascertain whether the failings in the system had stemmed from unlawful acts on the part of the representatives of the authorities for which the latter should have been called to account. The investigation carried out had therefore failed to shed light on the circumstances surrounding the tragic events, to establish all the factors contributing to the deaths and to assess the relative importance of natural factors on the one hand and the failure of the system to furnish a prompt and suitable response to the danger posed to the lives and well-being of the children on the other hand. An analysis of that kind, carried out in a prompt and appropriate manner, would have made it possible to identify any individuals who may have been responsible, so as to prevent a recurrence of such events in the future.

Conclusion: violation (unanimously).

Article 41: EUR 10,000 to two of the applicants in respect of non-pecuniary damage; finding of a violation sufficient in respect of the non-pecuniary damage sustained by the remaining applicants.

© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.

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