European Court of Human Rights

                                                                                                      13 July 2010

 

 

FIFTH SECTION

Application no. 41452/07
by Yurii Ivanov LENEV
against Bulgaria
lodged on 12 September 2007

 

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Yurii Ivanov Lenev, is a Bulgarian national who was born in 1958 and lives in Sofia. He is represented before the Court by Ms D. Fartunova, a lawyer practising in Sofia.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. The alleged torture and ill-treatment

On 1 June 1999 at about 9 p.m. the applicant was arrested in his home in a block of flats in Sofia. He was escorted by police officers down the stairs to a police van. At the door of the van he was hit on his neck and fell inside whereupon he was handcuffed and a sack was placed on his head to blind him. The police vehicle drove to Koprivshtica, a small town some 90 km away from Sofia.

Three or four police officers travelled with the applicant in the van. During the trip they asked him questions and battered him. Several stops were made during which the questioning and beating continued. According to the applicant, he received blows with solid objects in all parts of his body except his face and his genitals. During one of the stops on the road someone held the applicant's legs and another person pushed the van's sliding door to strike them. He was hit in his ankles. At one point, pressure was exercised on his eyes. The applicant lost consciousness several times.

The police van eventually arrived at a villa belonging to the Sofia police. He was brought inside where the torture continued. Objects were inserted under his nails. Solid objects were placed between his fingers and then his hand squeezed.

According to the official minutes drawn up by the police, the applicant was interrogated between 3.45 a.m. and 7.55 a.m. on 2 June 1999 by Mr B.B., head of the relevant department of the national police. The questioning concerned suspicion that the applicant was involved in the assassination in October 1996 of Mr Andrey Lukanov, former Prime Minister.

According to the transcription of the tape on which the interrogation was recorded by the police (see below), Mr B.B. used, inter alia, the following words when addressing the applicant:

“Be careful, if you make a mistake, it will be an enormous one. If you want to go [as a bull] with its horns forward[1], that's your decision. But then we'll also go with our horns forward. And it may turn out that our horns are much sharper than yours... This is because we took our time to sharpen them so as to make them prick cruelly... If you want to play the hero – please, go ahead ... But I would say that this evening is a fateful one for you. It is decisive for you. A life to gain or lose and not only your life... And this is the reason why this conversation takes place here and not elsewhere... Confession and repentance is the only chance for you ...”

At some point the applicant made statements in which he admitted his participation as an intermediary in a plot to assassinate Mr Lukanov.

At about 10 a.m. on 2 June the applicant was brought back to Sofia in a police vehicle. He was again blinded with a sack on his head. In Sofia he was brought before an investigator who charged him with complicity to premeditated murder.

Four other persons, including Mr V., the man who had allegedly ordered the killing, and Mr R., the man who had allegedly shot the victim, were arrested and ill-treated by the police in the end of May and in June 1999 and were also charged. Two of them made confessions.

On 2 June 1999 the applicant was examined by D., the medical doctor of the investigation service, who noted numerous haematomas in the area of his armpits, on his torso under his arms, on his wrists, left buttock and thigh and both ankles. She also found open wounds on his left wrist and the second finger of his left hand.

Despite the applicant's request, he was not allowed to contact a lawyer of his own choosing. An ex officio lawyer was appointed to represent him. The lawyer allegedly did not comply with the applicant's request to contact his relatives and ask them to arrange for a forensic medical examination.

Approximately two weeks after his arrest the applicant's mother and wife were allowed to visit him. After their meeting, the applicant's mother sent letters to the Chief Public Prosecutor, the Minister of the Interior, the President, the Prime Minister and the media describing the traces of serious violence which she had seen on her son's body and requesting an adequate reaction by the authorities.

On the 53rd day of his detention, the applicant was examined by forensic medical doctors. Their findings included the following: falling out of the nail of the second finger of his left hand, haematoma under the nail of the first finger of the same hand and numerous scars on his thighs, left ankle, left elbow, left arm's wrist, the fourth finger of his left hand and his neck.

2. The taping of the applicant's interrogation

The applicant's interrogation on 2 June 1999 in the police villa in Koprivshtica was taped. This was done, apparently, without the applicant's knowledge and without a valid judicial warrant. Judicial authorisation to conduct secret recordings in the police villa in Koprivshtica concerning the applicant was only given on 3 June 1999 by the President of the Sofia City Court and concerned a ten-day period beginning on 3 June 1999.

A visual examination of a photocopy of the document containing the police request for a judicial warrant and the judge's decision shows that the request was dated 1 June and that, apparently, it was not submitted to the judge before 3 June. It is also visible that the initial proposal by the police was for a period starting on 1 June 1999 and that the figure “3” was then written over the figure “1” as the decision was taken on 3 June.

In January 2002 a transcription of the recording was drawn up. According to the applicant, the transcription did not reflect the whole interrogation.

During the applicant's trial (see below), the prosecutor sought to rely on the recording. On 11 March 2003, noting that the interrogation had been taped without a judicial warrant, the Sofia City Court refused to admit it in evidence.

3. Public comments

In May, June and July 1999 the police allegedly made statements before the media implying that they had arrested the persons responsible for the assassination of Mr Lukanov.

On 26 May 2000 the Minister of the Interior, replying in Parliament to a remark that the police had made repeated groundless announcements that they had found Mr Lukanov's assassins, stated that since his appointment as Minister he had only once affirmed that the murderer had been arrested and that had been the day when Mr R. had been detained.

4. The criminal proceedings against the applicant

In the first several months after their arrests, the applicant and two other co‑accused persons maintained their initial confessions and gave evidence in this sense before the investigators. Later, they changed their position and stated that they had never been involved in any plot and that their confessions had been extracted under torture.

During the trial, which started in 2001, the court admitted in evidence medical certificates and witness testimony concerning the ill-treatment to which the applicant had been subjected on 1 and 2 June 1999.

By judgment of 28 November 2003 the applicant and the other four co‑accused persons were found guilty as charged and sentenced to terms of imprisonment. The court relied heavily on the confessions made by the applicant and two other accused persons.

Addressing the argument of the defence that the applicant and the other two accused persons who had admitted had done so under torture, the court accepted that there was solid evidence of serious physical violence and psychological harassment having been used by the police against them immediately after their arrests. The court stated that such acts were inacceptable and necessitated disciplinary and, if appropriate, criminal law measures against the police officers concerned.

The court observed, however, that the accused persons had maintained their confessions for a long period and that they had not been ill-treated after 2 June 1999. The applicant had maintained his admissions at eleven interrogation sessions, held between 8 June and 6 October 1999 in the presence of a lawyer of his own choosing, appointed by him on an unspecified date. The court considered that, therefore, it could rely on the admissions made during those interrogations conducted by investigators.

The applicant and the other accused persons appealed.

The appeals court heard expert evidence about the ill-treatment to which the applicant had been subjected.

On 8 June 2006 the Sofia Court of Appeal quashed the lower court's judgment and acquitted all accused persons on the charges concerning the assassination.

The court analysed the evidence regarding the manner in which the applicant was treated on 1 and 2 June 1999 and concluded that he had been subjected to torture in violation of the Constitution and Article 3 of the Convention. The applicant and the other accused persons had confessed under torture which had left long lasting marks on their bodies. The pain from the injuries had not died out for several months. It was furthermore significant that a comparison of the medical evidence concerning the three accused persons concerned showed that the higher the intensity of the torture the longer the victim had maintained his confession.

The court also noted that there was evidence of an attempt to delay the proper forensic medical examination of the applicant and the other accused persons. While this happened, they had been questioned by investigators despite the fact that their bodies carried marks of torture. The investigators' good faith was therefore questionable.

The Sofia Court of Appeal thus did not accept the accused persons' confessions in evidence and, furthermore, analysing the remaining evidence concluded that the accusation was unproven.

On 15 March 2007 the Supreme Court of Cassation, examining the case on appeal by the prosecutor, upheld the accused persons' acquittal. It upheld the finding that they had been subjected to torture and stated that it could not accept the ensuing confessions which were the “fruit of the poisonous tree”. It stated further that “in democratic legal systems unlawful efforts to extract admissions, as in the present case, are eventually harmful to the prosecution's case”.

5. The criminal proceedings against the police officers

In the end of 1999 criminal proceedings were instituted against the police officers involved in the applicant's alleged ill-treatment. Eventually, only three police officers who travelled with the applicant in the police van which brought him to Koprivshtica were charged under Article 131(1)(2) in conjunction with Article 130(1) of the Penal Code (light bodily injury inflicted by a police officer). None of the officers allegedly responsible for ill-treatment in the villa was charged.

In June 2002 an indictment was submitted to the Sofia Military Court, with which the competence to examine cases against police officers is vested. The court referred the case back to the military prosecuting authorities owing to procedural omissions. It appears that the case was dormant with the prosecuting authorities between 2003 and 2005. The trial eventually started in February 2006. The applicant submitted a civil claim for damages.

On 30 October 2006 the Sofia Military Court acquitted the police officers.

It considered that the applicant's description of the blows which he had received was unreliable as his statement that he had been beaten savagely for a long period in all parts of his body did not correspond to the findings of Dr D. who had examined him on 2 June 1999.

At the same time, the traces on the applicant's body corresponded to the police officer's version of the events. According to them, the applicant had tried to escape at the moment when he had been led to the police van parked outside the entrance of the block of flats. Two police officers had grabbed him and had placed his arms behind his back. The applicant had then resisted the officers' efforts to push him into the van. One police officer had tripped him and he had fallen, face down, on the van's floor, his legs remaining outside. The officer waiting inside the van had tried to pull the applicant in. The police van had then set off and, at the same moment, a police officer who had remained on the street had pushed the van's sliding door to close it. As the applicant's feet had still been outside, he had been hit by the door. The police officers inside the van had continued their efforts to close the van's door and to handcuff the applicant, who had resisted, keeping his arms under his body and trying the get up. The door could not close as the applicant's feet protruded outside. Eventually, the officers had succeeded in pulling in the applicant's legs and handcuffing him. A sack had then been placed on his head to blind him.

Applying Article 12a of the Criminal Code, the court thus found that the force used by the police officers had not exceeded what had been necessary in the circumstances to overcome the applicant's resistance.

On 14 November 2006 the prosecutor appealed to the Military Court of Appeal against the police officers' acquittal.

On 1 December 2006 the statutory time limit for the prosecution of the police officers on the charges brought against them expired.

On 29 January 2007 the Military Court of Appeal held a hearing. The accused police officers declared that they wished to have the accusations against them examined despite the expiry of the statutory time limit.

On 30 July 2007 the Military Court of Appeal upheld the police officers' acquittal while modifying slightly the legal grounds. This judgment was final.

6. Request for reopening of the criminal proceedings against the applicant

On an unspecified date in the second half of 2007 the relevant prosecutor sought the reopening of the criminal proceedings against the applicant on the ground that the acquittal of the police officers on 30 July 2007 was a new relevant fact.

B.  Relevant domestic law and practice

Article 12a § 1 of the Criminal Code 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.

Under Article 24 § 2 of the Code of Criminal Procedure, the accused person may state his wish to have the criminal proceedings against him continued despite the expiry of the statutory time limit for his prosecution.

Under Article 131(1)(2) in conjunction with Article 130(1) of the Penal Code, the punishment for light bodily injury inflicted by a police officer is up to three years' imprisonment.

Under Article 287 of the Penal Code, as in force at the time when the applicant was allegedly ill treated, extracting an accused person's confessions through coercion or other unlawful means was punishable by up to ten years' imprisonment, where the perpetrator was a person in whom relevant State powers were vested.

COMPLAINTS

The applicant complains under Article 3 that he was tortured by the police.

Relying on Articles 3 and 13, the applicant also complains that the police officers who tortured him were not punished and that he could not obtain compensation.

The applicant complains under Article 5 that his arrest and detention on 1 and 2 June 1999 were unlawful.

The applicant complains that Article 6 § 2 was violated in public statements made by the police and the Minister of the Interior.

The applicant complains under Articles 8 and 13 that his interrogation in the villa in Koprivshtica on 1 and 2 June 1999 was taped unlawfully and that he does not have effective remedies in this respect.

The applicant complains under Articles 8 and 13 that as a result of defects in the relevant Bulgarian law and practice he may be subjected to secret surveillance at any time without sufficient guarantees against arbitrariness.

 

QUESTIONS TO THE PARTIES

 

  Has the applicant been subjected to torture and/or inhuman or degrading treatment in breach of Article 3 of the Convention?

 

Having regard to the procedural protection from torture and inhuman or degrading treatment (see paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV), was the handling by the domestic authorities of the investigation and criminal case against the police officers in breach of Article 3 of the Convention?

 

Did the applicant have access to adequate and timely possibility to have his injuries documented in an independent and reliable manner?

 

Did the applicant have at his disposal an effective domestic remedy for his Convention complaint under Article 3, as required by Article 13 of the Convention?

 

The Government are invited to submit copies of the full text of the reasoning of the judgment of the Military Court of Appeal of 30 July 2007 and all other relevant documents from the files of the criminal courts and the military courts. They are also invited to inform the Court whether disciplinary measures have been taken at some stage in respect of the police officers concerned.

 

Can the applicant claim to be a victim of a violation of his right to respect for his private life and correspondence on account of the alleged deficiencies in the relevant law and practice on secret surveillance, as they existed in 2007 and as amended thereafter (see Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria, no. 62540/00, §§ 69‑94, 28 June 2007)?

 

Did the applicant have at his disposal effective domestic remedies for his complaint under Article 8, as required by Article 13 of the Convention (ibid., §§ 97‑103)?