In the case of Velev v. Bulgaria,
The European Court of Human
Rights (Fourth Section), sitting as a Chamber composed of:
Ineta Ziemele, President,
David Thór Björgvinsson,
Päivi Hirvelä,
George Nicolaou,
Zdravka Kalaydjieva,
Vincent A. De Gaetano,
Krzysztof Wojtyczek, judges,
and Lawrence Early, Section Registrar,
Having deliberated in private on 26 March 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
43531/08) against the Republic of Bulgaria lodged with the Court under Article
34 of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Bulgarian national, Mr Anton Velinov Velev
(“the applicant”), on 28 August 2008.
The applicant was represented by Mr Y. Grozev and
Ms N. Dobreva, lawyers practising in Sofia. The Bulgarian Government (“the
Government”) were represented by their Agent, Ms M. Kotseva, of the Ministry of
Justice.
The applicant alleged that he had been beaten by
police officers and that the authorities had not carried out an effective investigation
of his complaints in that regard.
On 20 September 2010 the application was
communicated to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1 of
the Convention).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1979 and lives in Sofia.
A. The applicant’s arrest, alleged ill-treatment and
medical examinations
On 21 March 2005 the applicant and another
person, Mr E.Y., were detained by the police and brought to a police station, on
suspicion of having committed a robbery.
The applicant remained in detention until 24
March 2005. He alleged that he had been beaten by police officers during two
interrogations on 21 and 22 March 2005, with the aim to make him confess
to having committed the robbery.
The facts concerning the applicant’s detention
and allegations of ill-treatment, as well as the findings of the medical
examinations he underwent, are summarised in the Sofia Administrative Court’s
judgment of 6 June 2011, quoted in paragraphs 29-31 below.
The criminal proceedings for robbery against the
applicant and Mr E.Y. were discontinued on 6 March 2006.
C. Criminal proceedings
On 28 August 2006 the applicant lodged a
complaint with the Sofia Military Prosecutor’s Office, stating that on 21 and
22 March 2005, during his detention, he had been beaten by police officers, in
order to force him to confess to an offence. He further stated that he did not
know the names of the officers but would be able to identify them.
On 26 January 2007 the prosecutor instituted
criminal proceedings against Mr G.H., one of the police officers who had
interviewed the applicant. The prosecutor stated that on 21 March 2005, in the performance
of his duties, Mr G.H. had punched the applicant in the face, chest and back.
The prosecutor qualified the criminal conduct as minor bodily injury without
detriment to the applicant’s health, an offence under Article 131 § 1 (2)
taken together with Article 130 § 2 of the Criminal Code.
The applicant was interviewed on 10 January, 31
January and 26 March 2007. On each of these occasions he gave descriptions
of the officers who had assaulted him and of others who had witnessed the
attacks.
On 20 March 2007 the prosecutor conducted a
procedure in which the applicant was confronted with the suspect Mr G.H.; the
applicant stated that Mr G.H. was not one of the officers who had assaulted
him.
On 11 May 2007 the prosecutor terminated the
criminal proceedings on the ground that no offence had been committed. He found
that the applicant’s complaints were unsubstantiated because his statements
were vague and could not be fully verified; he had stated clearly that Mr G.H.
had not beaten him; his description of the offenders was very general; Mr E.Y.,
who had witnessed the alleged physical assault, could not be traced; and no
other witnesses to the applicant’s condition before or after the arrest had
been identified. In addition, it was unclear why the applicant had lodged his
complaint with the prosecutor more than a year after the alleged beating.
The applicant appealed, and by a decision of 6
July 2007 the Sofia Military Court quashed the prosecutor’s order. It stated
that, with the exception of Mr G.H., the prosecutor had failed to interview the
police officers who had been on duty on the night of the events. The prosecutor
had also failed to interview witnesses on behalf of the applicant who could have
testified about his condition before and after his arrest, and to conduct an
identification parade.
Subsequently, the applicant was once again
interviewed on 6 August 2007. His mother was interviewed on the same day. She
stated that after his release the applicant had had bruises all over his body,
had been in pain and had said that he had been beaten by police officers.
On 20 August 2007 the prosecutor suspended the
criminal proceedings on the ground that the whereabouts of Mr E.Y. were
unknown.
On an appeal by the applicant, on 7 November
2007 a prosecutor at the Sofia Appellate Military Prosecutor’s Office quashed
that order, finding that the testimony of Mr E.Y. was not indispensable for the
investigation and that the prosecutor had failed to follow all the instructions
given by the Military Court on 6 July 2007.
On 20 November 2007 the prosecution authorities
conducted a confrontation between the applicant and Mr D.V., one of the officers
who had interviewed him on 22 March 2005. The applicant stated that it had not
been Mr D.V. but another person who had hit him on that day.
By an order of 17 December 2007, the prosecutor
terminated the criminal proceedings against Mr G.H. and sent the case back to
the investigator with instructions to find the perpetrators.
On 19 February 2008 the applicant participated
in a photograph-based identity parade. On the basis of several
photographs of different individuals presented to him, the applicant identified
two of them as the police officers who had beaten him on 21 March 2005 but was
unable to identify the officer who had beaten him on 22 March 2005.
On 25 and 29 February 2008 the applicant was
confronted with D.D. and S.S., but stated that he did not recognise them. It appears
that these were not the officers recognised by the applicant at the earlier
photograph-based identity parade.
On 11 March 2008 the prosecutor terminated the
criminal proceedings. He found that there was no evidence to support the
alleged ill-treatment except for the applicant’s statements, which were
vague and very general; the only eyewitness, Mr E.Y., could not be traced and
thus it was impossible to question him; the applicant had admitted to having
seen the alleged offenders after the incident, which, in the prosecutor’s view,
had corrupted the photograph-based identity parade procedure; and the initial
medical reports of 22 and 23 March 2005 did not record any injuries, while the report
of 26 March 2005 was unclear on whether the injuries had been caused on 21 or
22 March 2005.
On an appeal by the applicant, in a decision of
2 April 2008 the Sofia Military Court quashed the prosecutor’s order and returned
the case for further investigation. As to the investigation conducted so far, the
court found in particular the following:
“During the preliminary investigation the witness Velev was
interviewed and indicated that on the day following his detention he was
brought to the upper floor of the police directorate, where there was a woman
and three men. Velev describes in detail the police officer who punched him in
the area of the ear and the body - about 160 cm in height, with black hair. Velev
describes also the officer who hit him on 21 March 2005 - about 25-30
years old, 175-180 cm in height, with short black hair, a padlock-shaped beard.
The only possible conclusion concerning the identifications in
the case is that they were not conducted in accordance with the requirements of
the [Code of Criminal Procedure], because they were all conducted through
photographs. The photographs cannot show the persons’ height [...]. These
identifications are useless, given the witness’ statements. On the other hand,
as seen from the [albums attached], the witness was shown persons of a
different age, not the one described by him. Moreover, it is not clear why the
identification parade had to be conducted through the showing of photographs,
from which the persons’ height and hair colour are not visible.
In this connection, it is necessary to interview the head of
the police directorate, as well as the officials responsible for criminal
investigations, [so as to establish] which of their subordinates had a
padlock-shaped beard at the time and met the description given by the victim.
The court considers that the investigation was not
comprehensive and objective, because important witnesses have not been
interviewed by the military investigator and, if necessary, confrontations had
to be organised.
Moreover, it was necessary to collect evidence as to which
officers worked on the case on the date at issue; this had to be done though an
interview with their direct superiors. It was necessary to conduct
identification parades, and not photograph identifications, [so as to perceive]
the features such as hair and beard.”
Upon an appeal by the prosecutor, in a decision
of 22 April 2008 the Sofia Military Court of Appeal reversed the above decision
and terminated the criminal proceedings. It found, this time, that given the
expiry of more than three years since the dates of the events, the investigation
had become time-barred (see paragraph 36 below).
The Court has not been informed of disciplinary
or any other measures or an internal inquiry, undertaken in relation to the applicant’s
complaints.
D. Proceedings under the State and Municipalities
Responsibility for Damage Act
On 10 March 2010 the applicant brought an action
against the Sofia Police Directorate under the State and Municipalities
Responsibility for Damage Act (“the SMRDA”), seeking damages for being beaten
by police officers on 21 and 22 March 2005. The action was allowed by a
judgment of the Sofia Administrative Court (“the SAC”) of 6 June 2011.
The Sofia Police Directorate did not take part
in the proceedings and did not comment on the applicant’s claims. A prosecutor
from the Sofia city prosecutor’s office, who took part pursuant to a
requirement of the law, considered the claim well-founded, but also considered
that the amount in damages was exaggerated.
As to the facts of the case, the SAC found, in
particular, the following:
“The plaintiff Anton Velinov Velev was detained [...] on 21
March 2005, at 21.50 p.m.
As seen from the decision of the prosecutor [of 24 March 2006]
discontinuing the criminal proceedings, a preliminary investigation was opened
against [Mr E.Y.] and Anton Velinov Velev on suspicion that on 21 March 2005,
in [Sofia], acting in complicity, the two of them had taken away an item
belonging to another - a purse, containing personal chattels and money - from
[Ms P.]. On the same date [Ms P.] and [Ms V.] had been attacked by two unknown persons,
who had knocked down [Ms P.], had taken her purse and had run away. The two
victims immediately called [the police] and described in general terms the
attackers. [Mr E.Y.] and Velev were detained nearby and brought to the
witnesses. [Ms V.] stated that they had not been the attackers. By the same
decision [of 24 March 2006] the investigation against [Mr E.Y.] and Velev
was discontinued for lack of evidence.
The plaintiff attached to his statement of claim a [medical
report by an in-house doctor], following a medical examination of Anton Velinov
Velev of 23 March 2005. The document reported a “light bruise on the left side
of the chest and back”.
As seen from a medical report of 26 March 2005, a [coroner]
examined the plaintiff [following his release]. During the examination the
doctor established: 1) a 3.5 cm by 2 cm haematoma to his left ear; 2) a 4 cm by
3 cm blue-yellow coloured haematoma above the left breast area; 3) a 2 cm by
0.7 cm red-blue coloured haematoma with yellow edges on the left side of the
chest near the abdomen; 4) yellow-blue coloured haematomas measuring 1 cm by 1 cm
and 2 cm by 1 cm on the left side of the back; 5) a group of yellow-blue
coloured haematomas measuring 2 cm by 1 cm and 6 cm by 2.5 cm on the left side
of the waist; 6) a 4 cm by 2 cm yellow-blue coloured haematoma in the centre of
the waist; 7) a group of blue-yellow coloured haematomas overlapping each
other, measuring 3 cm by 1 cm and 5 cm by 4.5 cm and reaching from the right
side of the chest down to the waist; and 8) a 10 cm by 4 cm yellow-blue
coloured haematoma with red patches on the left side of the waist towards the
pelvis. The doctor was of the opinion that the injuries had been caused by
blunt objects and were consistent with the plaintiff’s account of the events.
The injury to the left ear could have been inflicted on 22 March 2005, while
the rest of the injuries dated from 21 March 2005.
By a decision of 26 January 2007 of a prosecutor from the Sofia
Military Prosecutor’s Office, criminal proceedings were opened against [Mr
G.H.] on suspicion that on 21 March 2005, at about 10 p.m., at the building of the
First police directorate in Sofia, acting as a State official and in the
performance of his duties, had punched and hit with his palm Anton Velinov
Velev in the face, chest and back, as a result of which the latter had received
haematomas in the areas of the left ear, the left part of the chest, the two
sides of the back and the left part of the waist, which amounts to minor bodily
injury causing pain to the victim - an offence under Article 131 § 1 (2)
taken in conjunction with Article 130 § 2 of the Criminal Code.
On 17 May 2011 the plaintiff submitted records from his
examinations as a witness in the criminal proceedings [concerning his beating]
on 10 January 2007, 31 January 2007 and 26 March 2007. In them, the plaintiff
describes the events of 21 March 2005, his detention and transfer to the
[police directorate] together with [Mr E.Y.], his beating by police officers
the same evening, his stay in the corridor, handcuffed to a grill, the next
beating by an officer on 22 March 2005, again during an examination in
connection with [the robbery]. In the afternoon of 22 March 2005 he
participated in an identity parade, and later in the afternoon the two were
brought to the Ministry of the Interior’s hospital, but Velev was not examined.
After that they were brought to the Sofia Investigation Service, where they
were examined by a doctor who filled in some documents. He was released on 24
March 2005, at about 5 p.m. On the next day he went to the [hospital] but the
family doctor told him that she could not issue a medical certificate. On 26
March 2005 he was examined by a coroner.”
On the basis of the facts, as established above,
the SAC reached the following conclusions:
“By Article 7 of the Constitution of the Republic of Bulgaria, the State is liable for damage caused through the unlawful actions and omissions of
its bodies and officials. The provision is of a general character and its
implementation is to be regulated by statute. The tort liability of the State
and the municipalities is thus regulated in the States and Municipalities
Responsibility for Damage Act (SMRDA), which is the applicable special statute
[...] The State’s liability is strict, the victim receives damages directly
from the juridical person to which the respective body or official belongs. The
liability is objective as it is not necessary to show that the damage was
caused through the fault of anyone. [...]
By section 1 (1) SMRDA, the State and the municipalities are
liable for any damage caused to individuals and legal persons from the unlawful
acts, actions or omissions of their bodies and officials, in the course of or
in connection with an administrative activity. By section 7 of the SMRDA, the
action is to be directed against the [bodies] whose unlawful acts, actions or
omissions led to the damage caused. By section 4, the compensation is to cover any
pecuniary and non-pecuniary damage, which is a direct and proximate result of
the harm done. For the liability to be engaged, the following preconditions
have to be met: 1) there has to be pecuniary or non-pecuniary damage -
actual damage or lost profit; 2) it must have been caused by an unlawful act,
action or omission of a body or an official of the State or the municipalities;
3) it has to be in the performance of an administrative activity, namely
the damage has been caused by the unlawful act, action or omission of the body
or official, in the course of or in connection with an administrative activity;
and 4) direct and proximate causal link between the unlawful act, action
or omission and the damage caused. [...]
The analysis of all written evidence in the present case
leads to the unconditional conclusion that on 21 and 22 March 2005 officials
of the First police directorate in Sofia caused to the plaintiff minor bodily
injury. As early as 23 March 2005 the [doctor at the Sofia Investigative
Service] noted a “light bruise on the left side of the chest and the back”.
During the plaintiff’s examination on 26 March 2005 [the coroner] noted eight
different injuries in the areas of the left ear, left part of the chest, left
side of the back, left and central parts of the waist, right side of the chest
down to the waist and left side of the waist towards the pelvis. Part of these
injuries correspond to the one established by [the in-house doctor], at the
same time the coroner himself is explicit in his conclusion that the injuries
could have been caused in the way and at the time indicated by the plaintiff.
The plaintiff’s description of the events of 21 and 22 March 2005 at the
[police directorate’s building] is consistent, as seen from the records of his
[examinations during the criminal proceedings]. During these examinations the
plaintiff was interviewed as a witness, after having been notified of the
criminal sanctions in the event of perjury. [...] The combined assessment of
[these records] together with the remainder of the evidence shows that they all
establish identical factual circumstances. In that regard, objective data are
also contained in the two court decisions given in the framework of the
criminal proceedings [concerning appeals of the applicant against decisions of
the prosecution to discontinue the proceedings], which are obviously based on
evidence collected during the investigation. It has not been disputed that the
[criminal proceedings in question] were opened following a complaint by the
plaintiff against unknown officers of the First police directorate in Sofia
that on 21 and 22 March 2005 they had caused him a minor bodily injury, an
offence under Article 131 § 1 (2) taken in conjunction with Article 130 §
2 of the Criminal Code. As seen from [the decision] of the Sofia Military Court
of 2 April 2008, in the course of the criminal proceedings a medical expert
report was commissioned, which established that Velev’s injuries had caused him
pain and suffering. [...]
On the basis of all the evidence indicated above, the court
concludes that on 21 and 22 March 2005 the plaintiff Anton Velinov Velev was
beaten by officers of the First police directorate in Sofia where he had been
detained. A full description of the injuries is contained in the [coroner’s] medical
report of 26 March 2005. The testimony of the witness V. [the plaintiff’s
mother] establishes that prior to his detention on 21 March 2005 the plaintiff
Velev was completely healthy. The court accepts this testimony as objectively
given, despite the witness’ close relation with the plaintiff, as it is logical
and consistent. The testimony of [Ms V.] corresponds to the remaining evidence
as well. For example, at the time of the arrest the plaintiff was searched, but
nothing irregular was noted on his body or in his behaviour. Also at the time
of his detention on 21 March 2005 the plaintiff filled in a declaration, where
he indicated that he did not have health problems. The witness [V.] explains
that on 21 March 2005 her son left for work in a good state of health, but
in the evening did not come back. He came back in the evening of 24 March 2004,
about 10 p.m., in a deplorable state - his left eye was swollen, he had a
yellow-blue bruise on the chest. They sent him immediately to see a doctor, for
which there are medical documents. [...]
The court has appointed medical experts who submitted a report,
which the court accepts as competently prepared. It has not been challenged by
the parties. It establishes that the injuries described in the medical documentation
in the case [were such] as to cause pain and suffering. The legal definition of
the offence of minor bodily injury contained in Article 130 §§ 1 and 2 of the
Criminal Code covers cases of injuries to health causing pain and suffering.
For the considerations above the court finds that the
preconditions for the liability of the State under section 1 of the SMRDA were
met. It was shown in an unconditional manner that during his detention at the
First police directorate’s building, on 21 and 22 March 2005 the plaintiff
received a number of injuries, amounting to minor bodily injury within the
meaning of Article 130 § 1 of the Criminal Code. Those injuries were caused by
officials [of the directorate], in the course of and in connection with their
activity in relation to the plaintiff’s [detention]. The fact that the
[detention order] has not been quashed is irrelevant, because the plaintiff’s
allegations in the statement of claim did not concern the legality of his
detention, but damages caused as a result of beating of officials of the First
police directorate. On the other hand, it cannot be accepted that the beating
was performed by the officers in their quality of private individuals, since
the circumstances of the case show that it was performed in connection with
their official activity, in their quality of [police officers]. On the other
hand, there is no indication (most notably, no such circumstances were
established during the criminal proceedings [concerning the applicant’s
beating]) that the use of force was justified, within the meaning of [the
provisions of the Ministry of the Interior Act]. That is why it follows that in
the course of the performance of their official activity in [detaining the
applicant] officials of the First police directorate performed unlawful
actions, namely caused a minor bodily injury to the plaintiff [...] The medical
documentation in the case establishes a direct and proximate link between the
officers’ behaviour and the damage caused to the applicant, namely injuries to
his body. The considerations above show that all four preconditions for the
State’s liability under section 1 of the SMRDA have been met.”
As to the amount of damages to be awarded, the
SAC took into account the nature of the injuries caused to the applicant, as
well as the particular circumstances, namely the fact that the injuries were
caused by police officers, in a situation where the applicant had been
particularly vulnerable as he had been deprived of his liberty. It referred
once again to the testimony of the applicant’s mother, who had stated that
after his release the applicant had been in “a deplorable state” and that the
events “had destroyed the family”. The SAC took note, furthermore, of the
amounts awarded by the domestic courts in other similar cases. Lastly, it
dismissed the applicant’s argument that the compensation should be comparable
to the amount awarded in the Court’s case of Ivan Vasilev v. Bulgaria, no. 48130/99,
12 April 2007 (where the Court awarded EUR 12,000 in non-pecuniary
damage). It noted that the circumstances in that case had been much graver and
that, in addition, unlike in Ivan Vasilev, the case before it did not
concern the ineffective investigation into the applicant’s beating by the
police.
On the basis of the above, the domestic court
awarded the applicant 7,000 Bulgarian levs (BGN), the equivalent of
approximately 3,570 euros (EUR), in respect of non-pecuniary damage. The
applicant had initially claimed BGN 10,000.
The above-mentioned judgment does not appear to
have been appealed against, and took effect on an unspecified date. At the
beginning of 2012 the Sofia Police Directorate paid the applicant the sum
awarded.
II. RELEVANT DOMESTIC LAW
Article 130 § 2 of the Criminal Code of 1968
makes it an offence to cause minor bodily injury to another. Under Article 131 §
1 (2), where the injury was caused by police officers in the course of or in
connection with the performance of their duties, the offence is considered
aggravated. The offence is publicly prosecutable (Article 161 of the Code) and,
if the injury was without detriment to the victim’s health (“без
разстройство
на здравето”),
is punishable by up to one year’s imprisonment or probation.
Under Article 287 of
the Criminal Code, forcing an accused to confess or provide information through
coercion or other unlawful means is an offence punishable by three to ten years’
imprisonment where the perpetrator was a person in whom official powers were
vested.
The limitation period for prosecuting offences
under Article 131 § 1 (2) taken in conjunction with Article 130 § 2
of the Criminal Code is two years (Article 80 § 1 (4) of the Code), and the
limitation period for prosecuting offences under Article 287 of the Code is ten
years (Article 80 § 1 (3)). Each act of criminal prosecution carried out
by the competent authorities in relation to the alleged offender interrupts the
limitation period and restarts the running of time (Article 81 § 2). Such
interruptions notwithstanding, the alleged offender can no longer be prosecuted
if the limitation period has been exceeded by one half (Article 81 § 3), which
means that an offence under Article 131 § 1 (2) taken in conjunction with
Article 130 § 2 of the Code cannot be prosecuted if more than three years have
elapsed since its alleged commission.
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE
CONVENTION
The applicant complained under Article 3 of the Convention that he
had been subjected to ill-treatment by the police while in custody and that the
ensuing criminal investigation had been ineffective.
Article
3 reads as follows:
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
A. Arguments of the parties
In their submissions lodged on 10 January 2011,
the Government argued that the application was inadmissible for non-exhaustion
of domestic remedies because the proceedings brought under the SMRDA by the
applicant were still pending at the time.
The Government did not comment on the merits of
the complaint under the substantive aspect of Article 3 of the Convention. As
to the procedural aspect, they argued that the prosecution authorities had
carried out a thorough investigation, and that its discontinuation as a result
of the expiry of the statutory time-limit had to a considerable extent been due
to the applicant, who had not lodged his complaint with the prosecution
authorities until almost a year and a half after the alleged assault on him.
The applicant disputed these arguments. As to
the Government’s objection of non-exhaustion of domestic remedies, in his
submissions dated 29 April 2011 he expressed doubts as to his chances of
success in the proceedings for damages which were pending at the time, and
pointed out that the Government had not presented any examples of successful
similar claims. He considered that he was not required to bring an action for compensation,
which was not an effective remedy to be exhausted in the case.
On the merits, the applicant reiterated that he
had been beaten by police officers. He submitted that it had been established
that when arrested he had been in good health, whereas upon release he had had
numerous injuries on his body; this was recorded in the medical reports.
Further, the applicant considered that the
investigation of his ill-treatment had been biased and that the
prosecution authorities had failed to take obvious investigative steps such as
organising an identification parade. Lastly, he considered that the prosecution
authorities had unnecessarily delayed the criminal proceedings, which had resulted
in their becoming time-barred.
B. Admissibility
The Court takes note of the Government’s
objection of non-exhaustion of domestic remedies (see paragraph 39
above). However, it notes that the objection was based on the fact that the
proceedings under the SMRDA were at the time still pending, and in the meantime
they have ended (see paragraphs 29-33 above). Accordingly, the Court dismisses the
objection.
The Court observes, in the next place, that the
present application was lodged within six months from the discontinuation of
the criminal proceedings concerning the applicant’s beating.
Lastly, the Court notes that the application is
not manifestly ill-founded within the meaning of Article 35 § 3 (a) of
the Convention, nor inadmissible on any other ground. It must therefore be
declared admissible.
C. Merits
As to the complaint that the applicant was
beaten by police officers in the building of First police directorate in Sofia
on 21 and 22 March 2005, the Court refers to the findings of the Sofia
Administrative Court (“the SAC”) in that regard (see paragraphs 29-30 above)
and sees no reason to deviate from those findings; nor did the applicant
contest the outcome of the proceedings.
The applicant further complains that the
investigation into his ill-treatment by the police was ineffective.
The Court reiterates that where an individual
raises an arguable claim that he has been seriously ill-treated by the
police in breach of Article 3, that provision, read in conjunction with
the State’s general duty under Article 1 of the Convention to “secure to
everyone within their jurisdiction the rights and freedoms defined in ... [the]
Convention”, requires by implication that there
should be an effective official investigation (see Assenov and Others v.
Bulgaria, 28 October 1998, § 102, Reports of Judgments and Decisions
1998-VIII; Labita v. Italy [GC], no. 26772/95, § 131, ECHR
2000-IV; and Veznedaroğlu v. Turkey, no. 32357/96, § 32,
11 April 2000). The minimum standards of effectiveness defined by the Court’s
case-law include the requirements that the investigation must be independent,
impartial and subject to public scrutiny, and that the competent authorities
must act with exemplary diligence and promptness (see,
among many other authorities, Menesheva v. Russia, no. 59261/00, § 67, ECHR 2006-III). The
investigation should in principle be capable of leading to the establishment of
the facts of the case and, if the allegations prove to be true, to the
identification and punishment of those responsible (see Mikheyev v. Russia,
no. 77617/01, § 107, 26 January 2006).
In addition, a prompt
response by the authorities in investigating allegations of ill-treatment is
essential in maintaining public confidence in their maintenance of the rule of
law and in preventing any appearance of collusion in or tolerance of unlawful
acts (see Batı and Others v. Turkey, nos. 33097/96 and
57834/00, § 136, ECHR 2004-IV (extracts), and Giuliani and Gaggio v. Italy [GC], no. 23458/02, § 305, ECHR 2011 (extracts)).
In
the present case the Court saw no reason to question the findings of the SAC,
which found that the applicant had been beaten by police officers. His
complaint to the investigation authorities was accompanied by medical evidence,
which should have rendered his claims, at the least, arguable, so as to give
rise to an obligation for the authorities to carry out an effective
investigation of the circumstances in which the applicant sustained his
injuries.
In this regard the Court notes, in the first
place, that the civil proceedings for damages were based on the State’s strict
liability and were not capable of leading to the identification and punishment
of those responsible. Accordingly, they cannot be considered to have met the
requirements of Article 3 of the Convention outlined in paragraphs 49 and 50
above (see Krastanov v. Bulgaria, no. 50222/99, § 60, 30 September 2004,
with further references).
In the next place, the Court observes that the
authorities carried out a criminal investigation, in the course of which they
collected numerous pieces of evidence. They identified a suspect, Mr G.H., but
later on dropped the charges against him as the applicant stated that he was
not one of the officers who had assaulted him (see paragraphs 11 and 13-14
above). The investigation then continued until, eventually, it was terminated after
becoming time-barred (see paragraph 25 above). This investigation could, in principle,
meet the ends defined in paragraph 49 above. The salient question is thus
whether it was effective, that is, whether it was conducted diligently and with
the required determination to identify and prosecute those responsible (see Shishkovi
v. Bulgaria, no.17322/04, § 38, 25
March 2010).
The investigation led to the
collection of evidence establishing, in what appears to be a convincing manner,
that the applicant had been beaten by the police; in fact, subsequently the
same evidence was sufficient for the SAC to reach that very conclusion. Thus, it
appears that the only fact which remained to be ascertained was the identity of
the police officers who had perpetrated the beating, with a view to bringing
charges against them.
In this connection, the Court observes that, albeit
with delay, the prosecution authorities took some steps aimed at identifying
the perpetrators. However, the national courts found them deficient for this
purpose and at the time when the proceedings were discontinued the actual perpetrators
had still not been identified.
In this regard the Court refers to the findings of
the Sofia Military Court, which found in its decision of 2 April 2008 that the
prosecution authorities had failed to take different investigative steps
available to them; in particular they had not organised an identification
parade and had not interviewed the superior officers at the directorate at
issue, who could have given information about their subordinates’ appearance
and about the persons who had been in the directorate’s building at the time of
the applicant’s beating (see paragraph 24 above).
The Court sees no reason to depart from these
conclusions. In view of the prosecution authorities’ failures, as described by
the Sofia Military Court, it cannot be considered that these authorities carried
out the investigation with the determination required under Article 3 of the
Convention to identify and punish those responsible (see paragraph 49 above).
The Court notes, in the next place, that despite
the risk of the investigation becoming time-barred (which eventually occurred),
the prosecution authorities do not appear to have pursued it diligently and at
a reasonable pace. In fact, the investigation continued for almost two years
and during that time there were significant delays. In particular, even though
the applicant complained to the prosecution authorities in August 2006 (see
paragraph 10 above), he was interviewed only on 10 January 2007, and criminal
proceedings were not formally opened until 26 January 2007 (see paragraphs 11-12
above). Further delays were caused through the prosecution authorities’ decisions
to stay or discontinue the proceedings on grounds which were ultimately
rejected, and, in particular, at a time when they had not secured all the available
evidence (see paragraphs 14-15 and 17-18 above).
It is true, as submitted by the Government (see
paragraph 40 above), that the applicant only complained to the prosecution
authorities on 28 August 2006, a year and five months after his arrest and
the events complained of (see paragraph 10 above). However, the Court is not convinced
that this delay was decisive and that, had the authorities pursued the
investigation more diligently, the time left would have been insufficient to
identify those responsible with a view to their appropriate punishment. The
Court reiterates in this connection that in investigating
allegations of ill-treatment the authorities are under an obligation to
act in a prompt manner (see paragraph 50 above).
Moreover, the Court points out that according to
the findings of the national authorities the beating took place in the presence
of superior police officers. The authorities must have been alerted to the possibility
that violence had been used against the applicant by 23 March 2005, when a
doctor at the Sofia Investigation Service noted a bruise on his back. Thus,
even without an express complaint from the applicant, a duty to investigate had
already arisen at that early stage. This is so because Article 3 of the
Convention requires an official investigation in cases where there are sufficiently clear indications that
ill-treatment might have occurred (see Members
of the Gldani Congregation of Jehovah’s Witnesses and Others v. Georgia,
no. 71156/01, § 97, 3 May 2007).
The Court is also struck by the fact that the
prosecution authorities chose to investigate only the possible infliction of minor
bodily injury on the applicant. Although the applicant stated that he had been
ill-treated in order to force him to confess to an offence (see paragraph 10
above), the prosecution authorities did not seek to make any findings in
respect of the motivation behind the ill-treatment, or to explore whether
an offence had in fact been committed under Article 287 of the Criminal Code (see
Lenev v. Bulgaria, no. 41452/07,
§ 123, 4 December 2012). Article 287 of the Code criminalises the use of
coercion or other unlawful means with the aim of forcing an accused to confess,
and provides for a punishment of up to ten years’ imprisonment (see paragraph 35
above); accordingly, the limitation period for prosecution is much longer (see
paragraph 36 above) and would have expired much later.
In view of the deficiencies described above, the
investigation of the applicant’s allegations of ill-treatment cannot be
regarded as having been effective for the purposes of Article 3 of the
Convention, to avoid any impression of impunity and to ensure the appropriate
accountability of State agents.
Lastly, the Court has not been informed of any internal
inquiry or disciplinary proceedings against the officers allegedly responsible
for beating the applicant (see paragraph 26 above).
It follows from the above that there has been a
violation of Article 3 of the Convention in its procedural aspect.
II. 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. Damage
The applicant claimed 8,000 euros (EUR) in
respect of non-pecuniary damage, pointing out that he had suffered
physical pain and that in addition he had felt emotional pain, helplessness and
anguish.
The Government considered the claim exaggerated
and urged the Court to follow its approach in other similar cases against Bulgaria.
The Court notes that it has found a violation of
the procedural aspect of Article 3 of the Convention, in that the authorities
had failed to investigate effectively the applicant’s beating by police
officers. This must have caused the applicant anguish and frustration. Judging
on the basis of equity, the Court awards the applicant EUR 4,500 in respect of
non-pecuniary damage.
B. Costs and expenses
The applicant also claimed EUR 3,100 for his
legal representation in the criminal proceedings at the domestic level and the
proceedings before the Court, for 31 hours of work at an hourly rate of EUR 100.
In support of that claim he presented a contract for legal representation and a
time-sheet. He requested that any award made under this head be paid directly
into the bank accounts of his representatives, Mr Y. Grozev and Ms N. Dobreva.
The Government considered the claim exaggerated.
According to the Court’s case-law, an applicant
is entitled to the reimbursement of costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to the
documents in its possession and the above criteria, the Court awards the amount
claimed in full. In accordance with the applicant’s request, the sum will be paid
directly into the applicant’s representatives’ bank accounts.
C. Default interest
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 3 of the Convention by reason of the authorities’ failure to
investigate the applicant’s ill-treatment effectively;
3. Holds
(a) that the respondent State is to pay the applicant, within three months of the date on which the judgment becomes final in accordance with Article
44 § 2 of the Convention, the following amounts, to be converted into Bulgarian
levs at the rate applicable at the date of settlement:
(i) EUR 4,500 (four thousand five hundred euros),
plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 3,100 (three thousand one hundred euros),
plus any tax that may be chargeable to the applicant, in respect of costs and
expenses;
(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;
4. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 16 April 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Ineta
Ziemele
Registrar President
