FOURTH SECTION
\nCASE OF SALIHI\u0106 v. BOSNIA AND HERZEGOVINA
\n(Application no. 6056\/14)<\/p>\n
JUDGMENT
\nThis version was rectified on 6 March 2018
\nunder Rule 81 of the Rules of Court.
\nSTRASBOURG
\n6 February 2018<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of Salihi\u0107 v. Bosnia and Herzegovina,<\/strong><\/p>\n The European Court of Human Rights (Fourth Section), sitting as a\u00a0Committee composed of:<\/p>\n Carlo Ranzoni, President, Having deliberated in private on 16 January 2018,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in an application (no. 6056\/14) against Bosnia\u00a0and Herzegovina lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a national of Bosnia and Herzegovina, Mr Muhamed Salihi\u0107 (\u201cthe applicant\u201d), on 19 December 2013.<\/p>\n 2.\u00a0\u00a0The applicant was represented by Va\u0161a Prava, a local non-governmental organisation, until he died on 26 September 2016. On 20\u00a0April 2017 the applicant\u2019s children, Mr Edis Salihi\u0107, Mr Adis Salihi\u0107 and Mrs Emina Salihi\u0107 expressed their wish to pursue the proceedings on behalf of the applicant. The Government of Bosnia and Herzegovina (\u201cthe Government\u201d) were represented by their Deputy Agent, Mrs S. Male\u0161i\u0107.<\/p>\n 3.\u00a0\u00a0On 12 December 2016 the application was communicated to the Government.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 4.\u00a0\u00a0The applicant was born in 1951 and lived in Sarajevo.<\/p>\n 5.\u00a0\u00a0By its decision of 3 August 2004, and at the recommendation of the Sarajevo Psychiatric Clinic (the \u201cPsychiatric Clinic\u201d), the Sarajevo Municipal Court instituted proceedings for the applicant\u2019s placement in a\u00a0psychiatric facility.<\/p>\n 6.\u00a0\u00a0On 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).<\/p>\n 7.\u00a0\u00a0On 22 September 2004 the Sarajevo Canton Social Care Centre (the \u201cSocial Care Centre\u201d) placed the applicant in the Drin Social Care Home (the \u201cDrin Home\u201d).<\/p>\n 8.\u00a0\u00a0On 7 January 2005, the Sarajevo Municipal Court deprived the applicant of his legal capacity.<\/p>\n 9.\u00a0\u00a0On 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\u2019s successive guardians.<\/p>\n 10.\u00a0\u00a0By its decisions of 25 February 2010 and 25 December 2014, the Social Care Centre decided that the applicant should remain in the Drin Home.<\/p>\n 11.\u00a0\u00a0On 16 September 2015 the Constitutional Court of Bosnia and Herzegovina (\u201cthe Constitutional Court\u201d) held that the applicant\u2019s deprivation of liberty had not been \u201cin accordance with a procedure prescribed by law\u201d within the meaning of Article 5 \u00a7 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 \u00a7 4 of the Convention had been breached because of the lack of judicial review of the lawfulness of the applicant\u2019s detention. The Constitutional Court ordered the Social Care Centre to take measures to ensure respect for the applicant\u2019s rights under Article 5 \u00a7\u00a7 1 and 4 of the Convention.<\/p>\n 12.\u00a0\u00a0On 7 December 2015, the Sarajevo Municipal Court restored the applicant\u2019s legal capacity.<\/p>\n 13.\u00a0\u00a0The applicant was released from the Drin Home on 14 December 2015.<\/p>\n 14.\u00a0\u00a0At the applicant\u2019s request, the Social Care Centre again admitted him to the Drin Home, between 1 January 2016 and 31 March 2016.<\/p>\n 15.\u00a0\u00a0The 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 \u201cSocial and Health Care Home\u201d).<\/p>\n 16.\u00a0\u00a0The applicant died on 26 September 2016, while in the Social and Health Care Home.<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 5\u00a7\u00a7 1 AND 4 OF THE CONVENTION<\/p>\n 17.\u00a0\u00a0The applicant complained that his placement in the Drin Home had not been ordered in accordance with \u201ca procedure prescribed by law\u201d within the meaning of Article 5 of the Convention, which in so far as relevant reads as follows:<\/p>\n \u201c1.\u00a0\u00a0Everyone 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:<\/p>\n …<\/p>\n (e)\u00a0\u00a0the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;<\/p>\n …<\/p>\n 4.\u00a0\u00a0Everyone 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.<\/p>\n A.\u00a0\u00a0Admissibility<\/strong><\/p>\n 1.\u00a0\u00a0Locus standi<\/em><\/p>\n 18.\u00a0\u00a0The Government argued that the applicant\u2019s heirs (see paragraph 2 above) could not continue the application on his stead, as the rights guaranteed by Article 5 of the Convention are non-transferable.<\/p>\n 19.\u00a0\u00a0In the case of Va\u0161\u010denkovs v. Latvia (no. 30795\/12, \u00a7 27, 15\u00a0December 2016), the Court reiteratedthe 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\u00a0legitimate interest in seeking that the Court decide the case on the basis of the applicant\u2019s desire to use his or her individual and personal right to lodge a case before the Court (see alsoErgezen v. Turkey, no. 73359\/10, \u00a7\u00a727 and 29, 8 April 2014). In the present case, the applicant died after lodging his application with the Court and the applicant\u2019s heirs, Mr Edis Salihi\u0107, Mr\u00a0Adis Salihi\u0107 and Mrs Emina Salihi\u0107, expressed their interest in pursuing the proceedings before the Court, in their letter of 4 March 2017. Therefore, the principles outlined in Va\u0161\u010denkovs apply to the present case.<\/p>\n 20.\u00a0\u00a0The Court considers that,in the specific circumstances of the present case, the applicant\u2019s heirs have legal standing to continue the proceedings in the applicant\u2019s stead, and that the Government\u2019s objection in this regard should hence be dismissed. For practical reasons, however, Mr Muhamed Salihi\u0107 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, \u00a7 1, 28 September 1999).<\/p>\n 2.\u00a0\u00a0Exhaustion of domestic remedies<\/em><\/p>\n 21.\u00a0\u00a0The Governmentfurther 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.<\/p>\n 22.\u00a0\u00a0The Court observes that even though the applicanthas introduced his application before his constitutional appeal was decided upon, in the meantime the Constitutional Court has rendered its decision on the matter.<\/p>\n 23.\u00a0\u00a0The Court considers that the Government\u2019s objection must therefore be dismissed.<\/p>\n 3.\u00a0\u00a0Loss ofvictim status<\/em><\/p>\n 24.\u00a0\u00a0The 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\u00a0victim of the alleged violation.<\/p>\n 25.\u00a0\u00a0The Court recalls that an applicant\u2019s status as a \u201cvictim\u201d 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\u00a0Cocchiarella\u00a0v.\u00a0Italy [GC], no. 64886\/01, \u00a7 71, ECHR 2006\u2011V, and Cataldo v. Italy (dec.), no. 45656\/99, ECHR 2004-VI).<\/p>\n 26.\u00a0\u00a0The Court, in this respect, notes that the Constitutional Court found that the applicant\u2019s right to liberty and security had been violated (see paragraph 11above), thereby acknowledging the breach complained of and, effectively, satisfying the first condition laid down in the Court\u2019 s case law.<\/p>\n 27.\u00a0\u00a0The applicant\u2019s victim status then depends on whether the redress afforded was adequate and sufficient having regard to just satisfaction as provided for under Article\u00a041 of the Convention (see Dubjakov\u00e1 v. Slovakia (dec.), no. 67299\/01, 19 October 2004).<\/p>\n 28.\u00a0\u00a0In the present case, the Constitutional Court, besides the finding of a\u00a0violation and the ordering of the applicant\u2019s release, did not offer him any compensation for the non-pecuniary damage suffered.<\/p>\n 29.\u00a0\u00a0The Court therefore concludes that the applicant did not lose his status as victim within the meaning of Article 34 of the Convention. The Government\u2019s preliminary objection in this regard must hence be rejected (see, mutatis mutandis, Had\u017eimejli\u0107 and Others v. Bosnia and Herzegovina, nos. 3427\/13, 74569\/13 and 7157\/14, \u00a7\u00a737-40, ECHR 2015).<\/p>\n 4.\u00a0\u00a0Other grounds for inadmissibility<\/em><\/p>\n 30.\u00a0\u00a0The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n B.\u00a0\u00a0Merits<\/strong><\/p>\n 1.\u00a0\u00a0Alleged violation of Article 5\u00a71 of the Convention<\/em><\/p>\n 31.\u00a0\u00a0The 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\u00a0democratic society is paramount (see, amongst others, McKay v.\u00a0the\u00a0United Kingdom [GC], no. 543\/03, \u00a7 30, ECHR 2006\u2011X, and Rudenko v.\u00a0Ukraine, no.\u00a050264\/08, \u00a7 98, 17 April 2014).<\/p>\n 32.\u00a0\u00a0In Had\u017eimejli\u0107 and Others (cited above, \u00a7\u00a7 51-59) the Court found a\u00a0violation of Article 5 \u00a7 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 11above).<\/p>\n 33.\u00a0\u00a0There has accordingly been a violation of Article 5 \u00a7 1 of the Convention.<\/p>\n 2.\u00a0\u00a0Alleged violation of Article 5 \u00a7 4 of the Convention<\/em><\/p>\n 34.\u00a0\u00a0Having regard to the finding relating to Article 5 \u00a7 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 \u00a7 4 of the Convention(see David v. Moldova, no. 41578\/05, \u00a7 43, 27 November 2007;Toki\u0107 and Others v. Bosnia and Herzegovina, nos. 12455\/04 and 3 others, \u00a7\u00a070, 8 July 2008; and Had\u017eimejli\u0107 and Others,cited above, \u00a7 60).<\/p>\n II.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n 35.\u00a0\u00a0Article 41 of the Convention provides:<\/p>\n \u201cIf 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.\u201d<\/p>\n 36.\u00a0\u00a0In his application form only, the applicant claimed 150,000 euros (EUR) in respect of non-pecuniary damage.<\/p>\n 37.\u00a0\u00a0On 26 September 2016, the applicant died (see paragraph 2 above). On 20 April 2017 the applicant\u2019s heirs informed the Court that they wished to continue the proceedings in the applicant\u2019s stead. The applicant\u2019s heirs, however, failed to submit their just satisfaction claims, despite the instruction in this regard contained in the Court\u2019s letter of 6 July 2017 addressed to them.<\/p>\n 38.\u00a0\u00a0Rule 60 \u00a7 2 of the Rules of Court provides that \u201cthe applicant must submit itemised particulars of all claims, together with any relevant supporting documents, within the time-limit fixed for the submission of the applicant\u2019s observations on the merits unless the President of the Chamber directs otherwise\u201d. Paragraph 5 of the Practice Direction on Just Satisfaction Claims further provides, in so far as relevant, that the Court will \u201creject claims set out on the application form but not resubmitted at the appropriate stage of the proceedings\u201d.<\/p>\n 39.\u00a0\u00a0In view of the above, the Court cannot but dismiss the claim for any non-pecuniary damage suffered. It also finds no exceptional circumstances which would warrant a different conclusion (see Nagmetov v. Russia [GC], no. 35589\/08, \u00a7\u00a7 74-82, 30 March 2017).[1]<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1.\u00a0\u00a0Declares the application admissible;<\/p>\n 2.\u00a0\u00a0Holds that there has been a violation of Article 5 \u00a7 1 of the Convention;<\/p>\n 3.\u00a0\u00a0Holds that there is no need to examine separately the complaint under Article 5 \u00a7 4 of the Convention;<\/p>\n 4.\u00a0\u00a0Dismisses the applicant\u2019s claim for just satisfaction.[2]<\/p>\n Done in English, and notified in writing on 6 February 2018, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Andrea Tamietti\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Carlo Ranzoni __________________<\/p>\n [1] Rectified on 6 March 2018: the text was:<\/p>\n \u201cA.\u00a0\u00a0Damage<\/p>\n 36. The applicant claimed 150,000 euros (EUR) in respect of non-pecuniary damage.<\/p>\n 37. The Government made no comments in this regard.<\/p>\n 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\u2019s 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\u2019s heirs.<\/p>\n B.\u00a0\u00a0Costs and expenses<\/p>\n 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.<\/p>\n C.\u00a0\u00a0Default interest<\/p>\n 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.\u201d \u201c4. Holds<\/p>\n (a)\u00a0\u00a0that the respondent State is to pay jointly the applicant\u2019s heirs, within three months, EUR 27,500 (twenty seven thousand five hundred euros), plus any tax that may be chargeable to the applicant\u2019s 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;<\/p>\n (b)\u00a0\u00a0that 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;<\/p>\n 5. Dismisses the remainder of the applicant\u2019s claim for just satisfaction.\u201d<\/p>\n
\nFaris Vehabovi\u0107,
\nP\u00e9ter Paczolay, judges,
\nand Andrea Tamietti, Deputy Section Registrar,<\/p>\n
\nDeputy Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n
\n[2] Rectified on 6 March 2018: the text was:<\/p>\n