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FIFTH
SECTION
CASE OF IVAN VASILEV v. BULGARIA
(Application
no. 48130/99)
JUDGMENT
STRASBOURG
12
April 2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial revision.
In the case of Vasilev v. Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr K. Jungwiert,
Mr R. Maruste,
Mr J.
Borrego Borrego,
Mrs R. Jaeger,
Mr M. Villiger, judges,
and Mrs C. Westerdiek, Section
Registrar,
Having
deliberated in private on 20 March 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 48130/99) against the Republic
of Bulgaria lodged with the European Commission of Human Rights (“the
Commission”) under former Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by Mr Ivan Tsekov Vasilev, a Bulgarian national
born in 1979 and living in Vidin, on 14 April 1998.
- The
application was transmitted to the Court on 1 November 1998, when
Protocol No. 11 to the Convention came into force (Article 5 § 2
of Protocol No. 11).
- The
applicant was represented before the Court by Mr Y. Grozev, a lawyer
practising in Sofia. The Bulgarian Government (“the
Government”) were represented by their Agent, Ms M. Dimova, of
the Ministry of Justice.
- The
applicant alleged that he had been ill treated by two police
officers and that the ensuing criminal proceedings against the
officers, resulting in their acquittal, had failed to adequately
remedy that.
- On
4 November 2003 the Court decided to give notice of the application
to the Government. Under the provisions of Article 29 § 3 of the
Convention, on 30 January 2006 it decided to examine the merits of
the application at the same time as its admissibility. On the same
date it invited the parties to submit additional observations.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. The events of 14 May 1994
- On
the evening of 14 May 1994 the applicant, at that time aged fourteen,
went out with several friends in the centre of Vidin to play
electronic games. On the way back he left the main group to see a
classmate of his and her sister to their door. After he had walked
the girls home at about 9.40 p.m., he ran back to re join his
friends. The applicant was wearing shorts, a yellow tee shirt
and a green sleeveless jacket.
- On
the same evening, some time after 9.00 p.m., the Vidin police
received a report that an ice cream booth in the centre of the
town had been vandalised by two individuals. A police patrol was
dispatched to the scene and arrested the first of them, but the
second managed to get away. All patrols in the area were put on alert
and ordered to track him down. The description given over the police
radio was of a man wearing short pants and a light coloured
tee shirt.
- At
that time Mr G.G. and Mr V.E., both trainee police officers, were in
the area of the incident, patrolling in Mr V.E.'s private car.
Although they were supposed to be accompanied by a supervising police
officer, chief sergeant A., they were patrolling by themselves,
as sergeant A. had been dispatched elsewhere. Their car was in a
street which was not well lit. Seeing the applicant running past the
car, they assumed that he was the offender at large. They got out of
the car and gave chase. The applicant heard their steps, but, seeing
that they had come out of an unmarked rather than a police car, kept
on running. It was disputed whether or not Mr G.G. and Mr V.E.
had shouted “Stop! Police!” after the applicant. They
submitted that they had done so, whereas the applicant and several
witnesses stated that they had not heard the officers shouting. The
chase continued for about a minute. The applicant ran by a Mr I.P.
Shortly afterwards, Mr G.G. caught up with the applicant in front of
a beauty parlour and apparently tripped him over. The applicant fell
on the ground, face down. Mr G.G. then started hitting the
applicant's back and legs with a truncheon and kicking his torso.
Soon after that Mr V.E. caught up with them and also started hitting
the applicant's back and legs with a truncheon and kicking his torso.
The applicant averred that Mr V.E. had sat on his back and had
delivered several truncheon blows to his head. The applicant was
crying and begging the officers to stop, insisting that he had done
nothing wrong. Mr I.P. was an eyewitness to the incident, and so were
a Mr P.S. and a Mr V.K.
- Shortly
afterwards, chief sergeants A.K. and I.G. arrived at the scene. By
that time the physical assault on the applicant had stopped. The
applicant was lying on the ground and Mr G.G. and Mr V.E. were
standing beside him. The applicant's tee shirt was soaked with
blood coming from the neck area.
- Chief
sergeants A.K. and I.G. helped the applicant get into their patrol
car. On the way to the hospital they stopped at a fountain and told
him to wash the blood off his neck. The applicant told the officers
that he felt pain in his legs and in his right lumbar area.
- The
applicant was admitted to the emergency ward of the Vidin Regional
Hospital at 10.01 p.m. Upon his admission he stated that he could not
see. His blood pressure was measured to be 70/0. It was found that he
had a traumatic lacerated injury on the back of his head. He was
also complaining of severe pain in the area of the right kidney. He
was taken to the surgical ward and the injury on his head was
treated.
- From
the hospital the applicant was taken to the police station, where he
was questioned at about 10.30 p.m. It was established that he had
nothing to do with the breaking of the ice cream booth. After
the questioning an officer took the applicant home. When the
applicant's mother saw the state the applicant was in, she asked a
friend to drive the applicant and herself back to the emergency ward
of the Vidin Regional Hospital. There she was informed that the
applicant had already been treated and that there was nothing more
the staff could do, as there were no doctors on the ward at that
time, only paramedics.
- The
applicant and his mother then went to the police station to find out
why he had been beaten and apprise the police of the names of the
eyewitnesses to the incident. They were given the names of the
officers who had assaulted the applicant and sometime around midnight
left the station and went home.
B. The applicant's health condition
and medical treatment after the events of 14 May 1994
- When
the severe pain in the applicant's right lumbar area continued
through the night and blood showed up in his urine, a doctor was
called in and examined the applicant at 2.10 a.m. on 15 May 1994. He
found that the applicant had a reddening of the skin in the groins,
parallel traces of blood suffusions and grazes on the calves, three
on the left leg and two on the right leg, and a head injury.
- At
9.15 a.m. on 15 May 1994 the applicant went once more to the
emergency ward of the Vidin Regional Hospital. At 10 a.m. he was
admitted to the surgical ward. He was diagnosed as suffering from
contusion in the right lumbar area, commotion of the right kidney and
haematuria (blood in the urine), and was treated with styptics and
antibiotics. He remained in hospital until 28 May 1994.
- Two
days later, on 30 May 1994, the applicant was urgently admitted to
the urology centre of the Medical Academy in Sofia because of
macroscopic haematuria (high levels of blood in his urine) and
sustained dull pain in his right lumbar area. His right kidney was
found to be surrounded by a haematoma and retaining liquid. It was
established that his blood pressure was 140/100 because of, among
other reasons, the pressure from the haematoma on the kidney. The
applicant was treated with spasmolytics, analgesics and antibiotics.
The applicant had to be released on 13 June 1994 due to an
in hospital infection outbreak.
- Throughout
the following years the applicant underwent numerous examinations of
his right kidney.
- On
15 July 1996 the applicant was admitted to the urology ward of the
National Institute for Urgent Medical Care “Pirogov”,
after complaining from dull pain in his right lumbar area. He was
diagnosed as suffering from hydronephrosis of the right kidney
(pathological chronic enlargement of the collecting channels of a
kidney, leading to the compression and the eventual destruction of
kidney tissue and the deterioration of the kidney function). On 22
July 1996 he underwent surgery and his right kidney was removed. On 9
August 1996 he was released from hospital.
C. The criminal proceedings against the police officers
- On
14 May 1994 the applicant's mother complained about his beating to
the Vidin Regional Prosecutor's Office. On 16 May 1994 the
applicant's father also lodged a complaint with the Vidin District
Prosecutor's Office.
- On
21 June 1994 the Pleven Military Prosecutor's Office, which was
competent to deal with offences allegedly committed by police
officers, opened criminal proceedings against Mr G.G. and Mr V.E.
- The
investigator to whom the case was assigned conducted a series of
interviews on 27, 28 and 29 June 1994. He questioned the applicant,
Mr I.P., Mr V.K. and several other witnesses. On 16 and 17
August 1994 the investigator questioned chief sergeant A.K. and two
other police officers.
- On
17 August 1994 Mr G.G. and Mr V.E. were charged and questioned.
During questioning Mr G.G. stated that he had tripped the applicant
but had not subjected him to any other violence. Mr V.E. stated that
he had only hit the applicant once with a truncheon on the legs, but
had not subjected him to any other violence.
- On
an unspecified date the investigator ordered a medical expert report
to determine the extent of the applicant's injuries. The report was
drawn up by Dr A.I., head of the forensic medicine ward of the Vidin
Regional Hospital. She found that the applicant had had a wound on
his head, haematomas and grazing on his legs, contusion of the right
lumbar area and haematuria. She concluded that the beating had caused
the applicant a short term life threatening health
disorder, due to a traumatic-haemorrhagic shock resulting from the
contusion of the right kidney and a massive haematoma around the
kidney.
- On
6 July 1995 the applicant's mother, acting for the applicant, who was
still underage, submitted a civil claim against Mr G.G. and Mr V.E.
She sought 400,000 old Bulgarian levs (BGL)
on the applicant's behalf.
- Another
series of interviews was conducted on 20 September 1995 by another
investigator at the Pleven Regional Military Prosecutor's Office.
Mr V.K. and Mr P.S. were questioned.
- On
3 November 1995 the Pleven Military Prosecutor's Office submitted to
the Pleven Military Court an indictment against Mr G.G. and Mr V.E.,
charging them with causing intermediate bodily harm to the applicant.
On 6 November 1995 the case was set down for hearing.
- The
first hearing took place on 12 February 1996. Mr G.G. and Mr V.E.
were represented by Mr L.I., a former military prosecutor general.
The applicant, who was also represented by counsel, amended his civil
claim, seeking interest as from the date of the beating and naming
the Vidin Regional Directorate of Internal Affairs as a third
defendant. The court heard Mr G.G., Mr V.E., the applicant, the
applicant's mother, chief sergeant A.K., several other police
officers, Mr I.P., Mr V.K. and Mr P.S. Noting that the statements of
the accused differed from those of the eyewitnesses, the court
carried out a confrontation. Finally, the court heard Dr A.I., the
medical expert who had given an opinion about the extent of the
applicant's injuries. The accused disputed Dr A.I.'s conclusions and
requested a new medical report to be drawn up by three experts,
excluding Dr A.I. The court acceded to the request and ordered a new
expert report, to be drawn up by three medical experts.
- In
their report the three medical experts (Dr P.L., head of the forensic
medicine and ethics department of the High Institute of Medicine in
Pleven, Dr V.G., head of department at the Urology Clinic of the
Institute, and Dr K.P., senior assistant at the anaesthesiology and
intensive care departments of the Institute) concluded that as a
result of the 14 May 1994 incident the applicant had suffered a
contusion of the right kidney, haematomas and grazing of the two
legs, a wound on the head and a reddening in the right part of the
groins. Unlike Dr A.I., they concluded that the traumatic neurogenic
shock suffered by the applicant had not become truly
life threatening. They also found that before the incident the
applicant had been suffering from a congenital kidney anomaly, which
had been the reason for the applicant's haematuria after the
incident. In the experts' view, the applicant's kidney injury had not
been life threatening and had had no long lasting effects
on his health. The beating had caused the applicant only a temporary
(two or three week) health problem.
- The
next hearing took place on 19 June 1996. The court heard the three
medical experts, who stated that they adhered to the conclusions
given in their report. The prosecutor noted that the first report,
drawn up by Dr A.I., and the second report, drawn up by the
three medical experts, substantially differed on the issue of the
extent of the injuries suffered by the applicant. He therefore
requested an additional expert report, to be drawn up by five
experts, including Dr A.I. The court acceded to the request.
- On
20 May 1997 the report of the five medical experts was ready. They
concluded that the applicant had suffered a traumatic neurogenic
shock, which, however, had not deteriorated and had not become
life threatening. They also concluded that before the incident
the applicant had been suffering from a congenital kidney anomaly,
which had been the reason for his haematuria after the incident. In
the experts' view, the applicant's kidney injury had not become
life threatening. As regards the later surgical removal of the
kidney and its potential causal link with the beating, the experts
were of the opinion that, in view of the long time-span between the
beating (14 May 1994) and the surgery (22 July 1996) and the
nature of the injury, it could not be concluded that the removal of
the kidney had been a direct and proximate consequence of the
beating. Additionally, the applicant's congenital kidney anomaly had
been prone to natural deterioration and could have led on its own to
a decline in the kidney function, which was what had made the removal
necessary. It could not be categorically established that the beating
had not contributed to the need for the removal of the kidney, but
the main factor had been the congenital anomaly.
- After
several adjournments due to difficulties with the attendance of all
five medical experts, the Pleven Military Court listed a hearing for
26 January 1998. At that hearing the court heard all five
medical experts. Four of them stated that they adhered to the
conclusions made in their report. By contrast, Dr A.I. stated that
she did not agree with the conclusions of the report and that she
still maintained the opinion expressed in her initial report. The
applicant presented X rays of his kidneys and, after examining
them, the four experts stated that they still adhered to the
conclusions reached in their report. The applicant increased his
civil claim to BGL 10,000,000. In his concluding argument the public
prosecutor stated that, in view of the experts' opinion, he did not
pursue the charge of intermediate bodily harm, and urged the court to
characterise the officers' act as inflicting minor bodily harm.
- In
a judgment of 26 January 1998 the Pleven Military Court found Mr G.G.
and Mr V.E. guilty of inflicting the applicant minor bodily harm and
not guilty of inflicting him intermediate bodily harm. It sentenced
them to five months' imprisonment, suspended for three years. The
court also partially allowed the applicant's claim for damages,
awarding him BGL 300,000,
to be paid jointly and severally by the two officers and the
vicariously liable Regional Directorate of Internal Affairs in Vidin.
- The
court found that Mr G.G. had tripped the applicant and that the
applicant had fallen on the ground face down. After that Mr G.G. had
delivered a number of blows on the applicant's back and legs with a
truncheon and had kicked several times his torso. When Mr V.E.
had arrived he had also hit the applicant's back and legs with a
truncheon and had kicked his torso. During the beating the applicant
had told the two accused that he had done nothing wrong. The court
stated that it did not find the accused's averment that they had not
beaten the applicant persuasive, because it was disproved by the
testimony of two eyewitnesses – Mr I.P. and Mr V.K. – and
of the applicant himself. The court considered that the eyewitnesses'
and the applicant's testimony was consistent and reliable.
- The
court also examined the officers' assertion that they had acted
lawfully, in a situation calling for the arrest of a suspect, and
that they had inflicted bodily harm in their efforts to subdue the
applicant. In that connection, it noted that the accused were
substantially stronger physically than the applicant, that Mr I.P.,
Mr V.K. and chief sergeant A.K. had testified that the applicant had
not tried to resist, and that at the time of the incident the
applicant had been fourteen years old. The court accordingly rejected
the assertion.
- As
regards the extent of the applicant's injuries, the court held that
the opinion of the four medical experts, which appeared objective,
impartial, consistent, well reasoned and in conformity with the
medical documents in the case file, should be given more credit than
that of Dr A.I. In the court's view, the four experts' arguments
confuted her opinion. The court therefore held that as a result of
the beating the applicant had suffered a temporary (two or
three week) non life threatening health disorder,
which amounted to minor bodily harm within the meaning of Articles
128 to 130 of the Criminal Code of 1968 (“the CC”).
- Finally,
the court rejected Mr G.G. and Mr V.E.'s defence under Article 12a of
the CC that they had only used the force necessary to arrest a
presumed offender, injuring the applicant in the process of subduing
his resistance. The court acknowledged the great disparity in terms
of physical strength between the two policemen and the applicant.
Moreover, the other witnesses had clearly indicated that the
applicant had not put up any resistance requiring the use of force.
Finally, at the time of the incident the applicant had been only
fourteen years old and his age was visible from his physical
features.
- Mr
G.G. and Mr V.E. appealed, arguing that their actions had not
constituted an offence, as they had acted within the bounds allowed
by the National Police Act of 1993. In the alternative, they
submitted that the sentences imposed on them were too harsh. The
applicant also appealed, arguing that the amount of damages awarded
to him was too low.
- The
Military Court of Appeals held a hearing on 8 June 1998. The officers
were represented by their counsel, Mr L.I. The applicant was
represented by two lawyers.
- In
a judgment of 8 June 1998 the Military Court of Appeals upheld the
Pleven Military Court's judgment. It held that the manner in which
the applicant's injuries had been caused had been correctly
established by the lower court. There existed direct evidence that
the applicant had been subjected to violence even after he had been
brought to the ground and had not had the possibility to resist or
run away. Even if the officers had misidentified the applicant, this
had not legally justified the physical assault that they had
inflicted on him. Moreover, the use of force had continued after the
applicant had been subdued. There existed a direct causal link
between the violence and the injuries sustained, as confirmed by all
of the medical expert reports. The court went on to state that it did
not agree with the lower court's conclusion as regards the extent of
the applicant's injury. To exclude the causal link between the
surgical removal of the applicant's right kidney and the incident of
14 May 1994, the Pleven Military Court had relied on the conclusion
of four medical experts and had rejected as illogical the conclusion
of Dr A.I. However, that court had disregarded that conclusion on
purely formal grounds, without discussing its main points. It was
unclear whether the opinion of the four experts was in fact based on
the raw medical data, which in turn cast doubt on its correctness.
The court concluded that if the lower court had taken into account
these considerations, it could have made a different finding as to
the reason for the surgical removal of the applicant's right kidney.
However, since no appeal had been lodged by the prosecution, the
court only noted this factual mistake and did not correct it in its
judgment by holding that the applicant had suffered intermediate
bodily harm, as that would worsen the accused's position.
- Mr
G.G. and Mr V.E. appealed on points of law to the Supreme Court of
Cassation. The applicant also appealed, requesting an increase in the
amount of damages awarded.
- The
Supreme Court of Cassation held a hearing on 17 September 1998. It
heard the applicant's and the officers' oral argument and accepted
their written pleadings for consideration. The prosecutor present at
the hearing submitted that both appeals were groundless and should be
dismissed.
- In
a final judgment of 11 November 1998 the Supreme Court of Cassation
reversed Mr G.G.'s and Mr V.E.'s convictions and acquitted them. It
also dismissed the applicant's civil claim. Its opinion read as
follows:
“...The courts below arrived at the erroneous
conclusion that the two [officers]' act had been wrongful and
contrary to Article 131 [§ 1] (2) of the CC...
This is so for the following reasons:
The [officers'] act does not amount to an offence, as
they acted under the prerequisites of section 40(1), points 1 and 2
of the National Police Act [of 1993] and within the bounds set by
this Act on the use of physical force, namely information about the
perpetration of a publicly prosecutable offence in the centre of
Vidin, which was broadcast over the [police] radio station and was
received by [Mr G.G.] and [Mr V.E.]. Moreover, the description
of the perpetrator who had fled from the crime scene coincided with
the appearance of the [applicant], and for this reason the ...
officers mistook him for the wanted offender. What is more, the
[applicant] did not obey and through his actions refused to comply
with the lawful order of the [officers], who tried to stop him by
shouting 'Stop! Police!' Instead, he tried to escape, in order to
avoid arrest by the [police], who, in line with their duties, gave
chase with a view to arresting the suspect. As it were, not only did
the [applicant] not obey, but he also resisted the [police officers].
Finally, the injuries he sustained upon his arrest are within what is
permissible under sections 40 and 41 of the [National Police Act of
1993].
The overall situation, including the [applicant]'s
inadequate behaviour, led the [officers] to conclude that he was the
offender who was being sought after and who had to be caught,
overawed and apprehended. This conclusion and the lawful actions of
the officers, including the use of force with its consequences for
the [applicant], rule out the criminality of their act. [To hold
o]therwise [would mean to render] the above mentioned provisions
of the [National Police Act of 1993] nugatory.”
II. RELEVANT DOMESTIC LAW
A. Use of force by the police
- Section 40(1) of the now
repealed National Police Act of 1993 („Закон
за националната
полиция“)
read, as relevant:
“... police [officers] may use ... force ... when
performing their duties only if they [have no alternative course of
action] in cases of:
1. resistance or
refusal [by a person] to obey a lawful order;
2. arrest of an
offender who does not obey or resists the police [officers]; ...”
- By
section 41(2) of the Act, the use of force had to be commensurate to,
inter alia, the specific circumstances and the personality of
the offender. Section 41(3) of the Act directed police officers to
“protect, if possible, the health ... of the persons against
whom [force was being used].” Section 41(4) of the Act
provided that the use of force had to be discontinued immediately
after its aim had been attained.
- Article
12a § 1 of the CC, adopted in 1997, provides that the injuring
of alleged offenders during their arrest is not a criminal act,
provided that there exists no other way for their apprehension and
the measures used during the arrest do not exceed what is necessary
and lawful. By paragraph 2 of this Article, there is such an
excess where there exists an obvious disproportion between the
character and the gravity of the offence allegedly perpetrated by the
arrestee and the circumstances of the arrest, and also where the
arrestee is unnecessarily and excessively harmed. The persons
effecting the arrest are criminally liable only if they cause the
harm wilfully.
B. Duty to investigate police ill treatment
- Articles
128, 129 and 130 of the CC make it an offence to inflict grievous,
intermediate or minor bodily harm on another person. The CC defines
intermediate bodily harm as, inter alia, one which involves a
temporary life threatening health disorder or a permanent
non life threatening health disorder (Article 129 § 2
of the CC). Minor bodily harm is one which does involve a health
disorder, but is not specifically referred to in Articles 128 §
2 and 129 § 2 of the CC (Article 130 § 1 of the CC).
- If
the bodily harm is inflicted by a police officer in the course of or
in connection with the performance of his duties, the offence is an
aggravated one (Article 131 § 1 (2) of the CC). It is publicly
prosecutable (Article 161 of the CC).
- Criminal
proceedings for publicly prosecutable offences could be instituted
only by the decision of a prosecutor or an investigator (Article 192
of the CCP, as in force at the relevant time). The prosecutor or the
investigator had to open an investigation whenever they received
information, supported by sufficient evidence, that an offence had
been committed (Articles 187 and 190 of the CCP, as in force at the
relevant time).
- Before
1993 the offences allegedly committed by police officers were tried
by military courts (Article 388 § 1 (2) of the CCP, as in force
at the relevant time). In December 1993 this text was amended to
provide that the military courts no longer had jurisdiction in
respect of such offences (Article 388 § 1 (2) of the CCP,
as amended in December 1993). A new amendment in June 1995 reverted
to the old regime (Article 388 § 1 (2) of the CCP, as amended in
June 1995 and in force until 1 January 2000). If a case falls within
the jurisdiction of the military courts, the preliminary
investigation is handled by military investigators and prosecutors.
C. Civil remedies in respect of police ill-treatment
- Section
45(1) of the Contracts and Obligations Act of 1951 („Закон
за задълженията
и договорите“)
provides that everyone is obliged to make good the damage which they
have, through their fault, caused to another person. Section 49 of
the Act provides that a person who has entrusted another with
performing a job is liable for the damage caused by that other person
in the course of or in connection with the performance of the job.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that in the evening of 14 May 1994 he had been
ill treated by two police officers. He relied on Articles 3, 5 §
1 and 8 of the Convention.
- The
Court considers that the complaint should be examined solely under
Article 3 of the Convention, which provides:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
- The
Government raised an objection, claiming that the applicant had
failed to exhaust domestic remedies. They submitted that he could
have claimed damages under section 45 et seq. of the Contracts and
Obligations Act of 1951. The fact that the officers had been
acquitted did not automatically forestall this possibility, as the
degree of fault required in respect of a tort was lesser than the one
required for a criminal offence. Section 45(2) of that Act created a
presumption of fault. The applicant could thus either sue the police
officers in tort, or try to establish their employer's vicarious
liability.
- The
applicant submitted that after the acquittal of the police officers
and the dismissal of his civil claim by the Supreme Court of
Cassation, he had not had at his disposal any further remedies. In
his view, a civil suit could not provide an effective remedy in
respect of an alleged ill-treatment by State agents; only a criminal
investigation was sufficient to redress such grievances. In any
event, a civil suit was not possible, because a civil court would be
bound by the Supreme Court of Cassation's holding as to the lack of
criminality in the officers' act. Moreover, a fresh civil action by
the applicant, whether against the officers themselves or their
employer, would be rejected on res judicata grounds, as the
applicant's civil claim in the criminal proceedings had already been
dismissed.
- Article
35 § 1 of the Convention provides, as relevant:
“The Court may only deal with the matter after all
domestic remedies have been exhausted, according to the generally
recognised rules of international law...”
- The
aim of the rule of exhaustion of domestic remedies referred to in
Article 35 § 1 is to afford Contracting States an opportunity to
put matters right through their own legal system before having to
answer before an international body for their acts (see, among many
other authorities, Egmez v. Cyprus, no. 30873/96, § 64,
ECHR 2000 XII). Where there is a choice of remedies, the
exhaustion requirement must be applied to reflect the practical
realities of the applicant's position, so as to ensure the effective
protection of the rights and freedoms guaranteed by the Convention
(see Allgemeine Gold- und Silberscheideanstalt A.G. v. the United
Kingdom, no. 9118/80, Commission decision of 9 March 1983,
Decisions and Reports (DR) 32, p. 165; and, more recently,
Krumpel and Krumpelová v. Slovakia, no. 56195/00,
§ 43, 5 July 2005). Moreover, an applicant who has used a remedy
which is apparently effective and sufficient cannot be required also
to have tried others that were also available but probably no more
likely to be successful (see Wójcik v. Poland, no.
26757/95, Commission decision of 7 July 1997, DR 90 A, p. 28;
Assenov and Others v. Bulgaria, judgment of 28 October 1998,
Reports of Judgments and Decisions 1998 VIII, p. 3286,
§ 86; Aquilina v. Malta [GC], no. 25642/94, §
39, ECHR 1999 III; and Günaydin v. Turkey (dec.),
no. 27526/95, 25 April 2002).
- The
Court notes that the applicant's parents complained about the
incident to the prosecution authorities, which opened criminal
proceedings against those responsible. The applicant joined these
proceedings as a civil claimant (see paragraphs 19, 20 and 24 above).
Seeing that the remedies available within the criminal justice system
in Bulgaria are the normal avenue of redress for alleged police
ill-treatment (see Kemerov v. Bulgaria (dec.), no.
44041/98, 2 September 2004, with further references), the Court does
not find the applicant's choice of procedure unreasonable. It may be
true that even after the acquittal of the officers and the dismissing
of the civil claim in the criminal proceedings the applicant could
still bring a tort action against the officers or against the body
vicariously liable for their actions. However, the Court, in line
with its consistent case law, considers that, having used up the
possibilities available to him within the criminal justice system,
the applicant was not required to embark on another attempt to obtain
redress by issuing separate civil proceedings (see Assenov and
Others, cited above, p. 3286, § 86).
- Moreover,
a tort action would have at most resulted in an award of damages,
whereas in cases of serious ill treatment by State agents the
alleged breach of Article 3 cannot be remedied exclusively through
the payment of compensation (see, among many other authorities, İlhan
v. Turkey [GC], no. 22277/93, § 61, ECHR
2000 VII). If the authorities could confine their reaction to
such incidents solely to the payment of compensation, while not doing
enough to identify and punish those responsible, it would be possible
in some cases for agents of the State to abuse the rights of those
within their control with virtual impunity. Thus the general legal
prohibition of torture and inhuman and degrading treatment and
punishment, despite its fundamental importance, would be ineffective
in practice (see Krastanov v. Bulgaria, no. 50222/99, §
60, 30 September 2004, with further references).
- The
Government's objection must therefore be dismissed.
B. Merits
- The
applicant submitted that the physical force employed by the police
officers for his arrest had been clearly excessive and completely
unwarranted. He had been fourteen years old at the time of the
incident. The car from which the officers had come out had not been
marked as a police vehicle. The street in which the chase had started
had not been well lit and the officers had not properly identified
themselves. He had therefore run not to avoid arrest, but because,
fearing for his safety, had tried to get to a place with better
lighting and more bystanders. Having reached such a spot, he had
stopped before the officers had caught up with him. Furthermore,
although he had not resisted arrest, he had received an unwarranted
beating, had been kicked and hit with truncheons while lying on the
ground. This assault had continued long after he had been subdued. As
a result, his kidney had been seriously injured, which had later led
to its surgical removal.
- The
Government submitted that the encroachment upon the applicant's
bodily integrity – a health disorder which had lasted two or
three weeks – had not amounted to inhuman and degrading
treatment within the meaning of Article 3, as it had not exceeded the
threshold of severity under this provision. The use of force against
the applicant had lasted less than a minute, for the sole purpose of
preventing his flight. The officers' actions had been unavoidable and
had been discontinued immediately after the applicant's arrest. The
officers had exhibited no positive intention of injuring or
humiliating the applicant. Immediately after the incident they had
escorted the applicant to a hospital and then to his home. The
applicant's averment that his kidney had been injured as a result of
the incident had been rejected by the national courts. As the
applicant's injuries had not been caused by the use of excessive
force and as he had resisted arrest, it was incumbent on him to prove
the causal link between the use of force and the subsequent kidney
problems. Another point which had to be taken into account was that
in Bulgaria there existed detailed rules on the use of force by law
enforcement officers; these rules provided adequate protection
against ill treatment.
- As
the Court has stressed many times, Article 3 enshrines one of the
fundamental values of democratic society. Even in the most difficult
of circumstances, such as the fight against terrorism or crime, the
Convention prohibits in absolute terms torture or inhuman or
degrading treatment or punishment. Unlike most of the substantive
clauses of the Convention and of Protocols Nos. 1 and 4, Article 3
makes no provision for exceptions and no derogation from it is
permissible under Article 15 of the Convention even in the event of a
public emergency threatening the life of the nation (see, among many
other authorities, Assenov and Others, cited above, p. 3288,
§ 93). To fall within the scope of Article 3 ill-treatment must
attain a minimum level of severity. The assessment of this minimum is
relative: it depends on all the circumstances of the case, such as
the duration of the treatment, its physical and/or mental effects
and, in some cases, the sex, age and state of health of the victim.
Further, in determining whether a particular form of ill-treatment
should be qualified as torture, consideration must be given to the
distinction, embodied in Article 3, between this notion and that of
inhuman or degrading treatment. As noted in previous cases, it
appears that it was the intention that the Convention should, by
means of this distinction, attach a special stigma to deliberate
inhuman treatment causing very serious and cruel suffering (see,
among many other authorities, İlhan, cited above, §§
84 and 85).
- According
to the Court's case-law, Article 3 does not prohibit the use of force
for effecting an arrest. However, such force may be used only if
indispensable and must not be excessive (see, among others, Klaas
v. Germany, judgment of 22 September 1993, Series A no. 269,
p. 17, § 30; Rehbock v. Slovenia, no. 29462/95, §§
68 78, ECHR 2000 XII; Altay v. Turkey, no.
22279/93, § 54, 22 May 2001; Hulki Güneş v. Turkey,
no. 28490/95, § 70, 19 June 2003; Krastanov v.
Bulgaria, no. 50222/99, §§ 52 and 53, 30 September
2004; and Günaydın v. Turkey, no. 27526/95,
§§ 30 32, 13 October 2005).
- The Court finds that the injuries which the applicant
sustained at the hands of the police officers led to grave physical
pain and suffering. Moreover, they had lasting consequences for his
health (see paragraphs 8, 11 and 14 18 above). It is also clear
that the acts of violence against the applicant were committed by the
police officers in the performance of their duties. They took place
during the applicant's arrest (see paragraphs 8 and 9 above). The
exact circumstances of the arrest and intensity of the force used
against the applicant were disputed by the parties and were subject
to conflicting evaluations by the national courts. While the first
and the second instance courts were of the view that the
violence against the applicant had been wrongful and had exceeded
what was necessary to effect his arrest, and accordingly found the
police officers guilty (see paragraphs 34, 36 and 39 above), the
Supreme Court of Cassation held that the use of force had been fully
warranted and reversed the conviction (see paragraph 42 above).
However, the acquittal of the officers by a national court bound by
the presumption of innocence and by the manner in which domestic law
regulates the use of force by the police does not absolve Bulgaria
from its responsibility under the Convention (see, mutatis
mutandis, Ribitsch v. Austria, judgment of 4 December
1995, Series A no. 336, p. 26, § 34). The Court must scrutinise
the alleged breach of Article 3 with heightened vigilance, because
this provision prohibits inhuman treatment in absolute terms,
irrespective of the victim's conduct (ibid., p. 24, § 32).
Bearing in mind the nature and the extent of the applicant's numerous
and serious injuries, the circumstances surrounding his arrest
(including the fact that the officers, who were merely trainees, were
not accompanied by a supervisor – see paragraph 8 in
limine), and the fact that at the material time the applicant was
only fourteen years old and clearly inferior to the officers in terms
of physical strength, and analysing these facts in the light of its
jurisprudence in this domain (see paragraph 63 above), the Court
concludes that the force used against the applicant was clearly
excessive, both in intensity and duration.
- There
has accordingly been a violation of Article 3 of the Convention.
II. ALLEGED VIOLATIONS OF ARTICLES 3, 6 § 1 AND 13 OF
THE CONVENTION
- The
applicant complained that the criminal proceedings against the police
officers, in which he had participated as a civil claimant, had been
unfair. He submitted that the courts had not been objective in their
assessment of the facts and had failed to redress the grievance which
he bore as a result of the beating. He relied on Articles 3, 6 and 13
of the Convention.
- The
text of Article 3 has been set out in paragraph 52 above. Articles 6
and 13 provide, as relevant:
Article 6 § 1
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair and public hearing
within a reasonable time by an independent and impartial tribunal
established by law. ...”
Article 13
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. Admissibility
- The
parties did not comment on the admissibility of this complaint.
- The
Court considers that the complaint is not manifestly ill founded
within the meaning of Article 35 § 3 of the Convention, nor
inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
- The
applicant submitted that the proceedings against the police officers
had been flawed in several respects. The courts had failed to convict
the officers and had rejected his civil claim despite the
availability of clear and overwhelming evidence of the unjustified
use of force against him. The courts had also failed to properly
examine the causal link between the beating and the ensuing surgical
removal of his kidney. The approach adopted by Supreme Court of
Cassation, leading to the officers' acquittal, had been in clear
conflict with the standards under Article 3 of the Convention,
whereas the investigation required under this provision had to be
based on criteria comparable to those developed by the Court.
- The
Government submitted that the authorities had conducted an effective
investigation of the incident of 14 May 1994. The investigation had
been started promptly and had later proceeded at a good pace, with a
slight delay due to the need to prepare medical reports. The
authorities had gathered all relevant pieces of evidence, including
witness' statements and medical opinions. All levels of court had
analysed the evidence in detail. The applicant's initial averment
that they had been influenced by the counsel for the police officers,
who had formerly been a military prosecutor, was completely
groundless.
- The
Court considers that the applicant's complaint concerning the lack of
an effective investigation falls, in the circumstances, to be dealt
with under Article 13 of the Convention rather than Article 3 thereof
(see, mutatis mutandis, İlhan, cited above, §§
89 93).
- The
Court further finds that the applicant's complaints under Article 6
of the Convention are very closely bound up with his criticism of the
manner in which the courts treated his ill treatment and the
repercussions which this had on the capability of the proceedings
against the police officers to redress the grievances which he
harboured as a result of this ill treatment. It is accordingly
appropriate to examine those complaints in relation to the State's
more general obligation under Article 13 to provide an effective
remedy in respect of all alleged violations of the Convention (see,
mutatis mutandis, Kaya v. Turkey, judgment of 19
February 1998, Reports 1998 I, p. 329, § 105; and
Sabuktekin v. Turkey, no. 27243/95, § 108, ECHR
2002 II (extracts)).
- Article
13 requires a domestic remedy to enforce the substance of the
Convention rights and freedoms in whatever form they might be secured
in the national legal order (see, among many other authorities,
İlhan, cited above, § 97).
- The scope of the obligation under Article 13 varies
depending on the nature of the complaint. In the case of an arguable
allegation of a breach of Article 3, Article 13 calls for an
effective mechanism for establishing the liability of State officials
or bodies for acts or omissions involving a breach of the victims'
rights under the Convention (see, mutatis mutandis, Z and
Others v. the United Kingdom [GC], no. 29392/95, § 109, ECHR
2001 V; and Paul and Audrey Edwards v. the United Kingdom,
no. 46477/99, § 97, ECHR 2002 II). In particular, if the
allegations concern torture or serious ill treatment by State
agents, this mechanism must consist, at a minimum, of a thorough and
effective investigation capable of leading to the identification and
punishment of those responsible (see, among many other authorities,
İlhan, cited above, § 97). This investigation must
be based on a standard comparable to the one used by the Court in
assessing complaints under Article 3 (see Tzekov v. Bulgaria,
no. 45500/99, § 71, 23 February 2006, citing Nachova and
Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 113,
ECHR 2005 VII). The same goes for the ensuing judicial
proceedings, should the case come to trial. The national authorities,
while bound by the presumption of innocence and by the terms in which
domestic law is couched (see Ribitsch, cited above, p. 26, §
34), must nevertheless review the acts alleged to amount to a breach
of Article 3 of the Convention in the light of the principles which
lie at the heart of the Court's analysis of complaints under this
provision (see, mutatis mutandis, Soering v. the United
Kingdom, judgment of 7 July 1989, Series A no. 161, pp. 47 48,
§ 121; Vilvarajah and Others v. the United Kingdom,
judgment of 30 October 1991, Series A no. 215, p. 39, §
123; and Smith and Grady v. the United Kingdom, nos. 33985/96
and 33986/96, § 138, ECHR 1999 VI).
- On
the basis of the evidence adduced in the present case, the Court has
found that the respondent State is responsible under Article 3 for
the inhuman treatment suffered by the applicant (see paragraph 65
above). The applicant's complaint in this regard was therefore
arguable for the purposes of Article 13. He was accordingly entitled
to the protection afforded by this provision.
- The
Court notes that while the authorities investigated the applicant's
beating, brought those responsible for it to trial, and convicted and
sentenced them, the conviction and sentence were later quashed and
the police officers who assaulted the applicant were acquitted.
Unlike the situation obtaining in Ribitsch (cited above), in
the case under consideration this acquittal was not due to the lack
of sufficient proof that the officers had committed the act alleged
against them, but was rather the result of the manner in which the
Supreme Court of Cassation construed the domestic law provisions
regulating the use of force by the police (see paragraph 42 above).
It is not for the Court to determine whether this construction was
correct, as it is for the national courts to interpret domestic law.
The Court must however verify whether the manner in which this law
has been applied led to a breach of the applicant's right under
Article 13 of the Convention to an effective remedy. As already noted
(see paragraph 75 above), this right implies that the domestic courts
have to examine allegations of breaches of Article 3 of the
Convention in line with the standards developed by the Court in its
case law under that provision.
- As
is apparent from this case law, in each case the Court carefully
examines whether the force used during arrest operations is excessive
and goes beyond what may be considered strictly necessary in the
circumstances (see the cases cited in paragraph 63 above). Indeed,
sections 40 and 41 of the National Police Act of 1993, which
expressly direct the police to minimise the use of force and tailor
it to the surrounding circumstances and the person against whom it is
being used, seem to reflect similar concerns (see paragraphs 43 and
44 above).
- However,
in the instant case the Supreme Court of Cassation did not embark on
an assessment of the proportionality of the force used against the
applicant. While it referred to sections 40 and 41 of the National
Police Act of 1993, it did not endeavour to analyse the degree of
force and whether it was necessary and proportionate in the
circumstances (see paragraph 42 above). The courts below it had
clearly established that the applicant had suffered numerous injuries
and that these were the result of excessive force (see paragraphs 34,
36 and 39 above). Without subjecting these findings to doubt, the
Supreme Court of Cassation gave them a different legal qualification,
holding that the officers had lawfully assaulted the applicant, as he
had tried to escape and had been – albeit wrongfully –
identified as the person wanted by the police. In so doing, that
court treated as irrelevant a number of other factors – that at
the time of the events the applicant was fourteen years old, that the
violence against him had continued after he had been subdued, and
that the beating had been wilful –, all of which were material
for determining whether the act complained of amounted to a breach of
Article 3 of the Convention. This approach was fully inconsistent
with the standards stemming from this Court's case law in this
domain. The Supreme Court of Cassation thus failed to address the
substance of the applicant's Convention complaint.
- There
has therefore been a violation of Article 13 of the Convention.
III. ALLEGED VIOLATIONS OF ARTICLE 5 §§ 1 AND 2
OF THE CONVENTION
- The
applicant complained that after being examined in the emergency ward
of the Vidin Regional Hospital at 10.01 p.m. on 14 May 1994 he was
taken to the police station where he was questioned and was not
informed of what offence he was being suspected. He relied on Article
5 §§ 1 and 2 of the Convention.
- Article
5 §§ 1 and 2 provide, as relevant:
“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:
...
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so;
...
2. Everyone who is arrested shall be informed
promptly, in a language which he understands, of the reasons for his
arrest and of any charge against him.”
- The
Court notes that the applicant was taken to the police station at
about 10.30 p.m. on 14 May 1994 and was released half an hour later
(see paragraph 12 above). It does not appear that later he tried to
use any domestic remedy in respect of the violations he alleged. Even
assuming that no such remedies existed, the Court considers that, in
so far as the complaints under Article 5 §§ 1 and 2 are
concerned, the six month period under Article 35 § 1 of the
Convention started to run at the time of the applicant's release from
custody, that is on 14 May 1994. However, the applicant lodged his
application with the Court on 14 April 1998, long after its
expiration.
- It
follows that these complaints have been introduced out of time and
must be rejected in accordance with Article 35 §§ 1 and 4
of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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. Pecuniary damage
- The
applicant claimed 40,000 euros (EUR) in respect of pecuniary damage.
He submitted that the injuries necessitating the surgical removing of
his kidney had been the direct and proximate result of his beating by
the police officers. According to the information in his possession,
the average price of a kidney transplantation was between EUR 40,000
and EUR 50,000. The applicant did not submit any documents in
corroboration of his claim.
- The
Government did not comment.
- The
Court notes that the applicant does not aver that he has already
undergone a kidney transplantation, nor has he produced any proof of
the exact cost of such a transplantation, such as an estimate from an
appropriate medical institution. The Court, even assuming that the
removing of the applicant's kidney was the result of the violence
against him, cannot speculate on this issue and therefore rejects the
applicant's claim as unsubstantiated.
B. Non pecuniary damage
- The
applicant claimed EUR 25,000 in non pecuniary damages. He relied
on the relevant case law and submitted that he had sustained
extremely serious injuries as a result of his ill treatment and
had experienced acute pain while being ill treated. The injury
to his kidney had also caused him severe pain for the two years after
his beating, until the kidney was removed. The applicant further
submitted that he has suffered emotionally as a result of the manner
in which the authorities had handled the case against the police
officers who had ill treated him.
- The
Government did not comment.
- The
Court found above that the applicant, who was only fourteen years old
at the time of his ill treatment, suffered serious injuries at
the hands of police officers. It also found that in the instant case
the remedies in the domestic legal system did not turn out to be
effective. Having regard to the awards made in previous similar cases
and to the circumstances of this case, the Court decides to award in
respect of non pecuniary damage the sum of EUR 12,000, plus any
tax that may be chargeable.
C. Costs and expenses
- The
applicant sought the reimbursement of EUR 2,880 incurred in legal
fees for the proceedings before the Court. He submitted a time sheet
of the hours which his representative had spent working on the case
and the fee agreement between them.
- The
Government did not comment.
- According
to the Court's case law, an applicant is entitled to
reimbursement of his costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, the Court, having
regard to the information in its possession, the above criteria and
the fact that the applicant has received EUR 715 by way of legal aid
from the Council of Europe, considers it reasonable to award the sum
of EUR 2,165, plus any tax that may be chargeable.
C. Default interest
- The
Court considers it appropriate that the default interest 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
- Dismisses the Government's objection of
non exhaustion of domestic remedies;
- Declares admissible the applicant's complaints
about his ill treatment by two police officers and about the
ineffectiveness of the domestic remedies in this regard;
- Declares the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
3 of the Convention;
- Holds that there has been a violation of Article
13 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts:
(i) EUR
12,000 (twelve thousand euros) in respect of non pecuniary
damage;
(ii) EUR
2,165 (two thousand one hundred sixty five euros) in respect of
costs and expenses;
(iii) any
tax that may be chargeable on the above amounts;
(b) that
from the expiry of the above mentioned three months until
settlement simple interest shall be payable on the above amounts at a
rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 12 April 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
