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FIFTH
SECTION
CASE OF SHISHKOVI v. BULGARIA
(Application
no. 17322/04)
JUDGMENT
STRASBOURG
25
March 2010
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 Shishkovi v.
Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer Lorenzen, President,
Renate
Jaeger,
Karel Jungwiert,
Rait
Maruste,
Isabelle Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 2 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 17322/04) 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 two Bulgarian nationals,
Mr Svetlyu Georgiev Shishkov and Mr Slaveyko Svetlev
Shishkov (“the applicants”), on 5 May 2004.
- The
applicants were represented by Mr G. Blagoev, a lawyer practising in
Sofia. The Bulgarian Government (“the Government”) were
represented by their Agents, Ms N. Nikolova and Ms R. Nikolova, of
the Ministry of Justice.
- The
applicants alleged that they had been beaten by police officers and
that the authorities had failed to investigate this effectively, in
violation of Article 3 of the Convention.
- On
24 June 2008 the President of the Fifth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1953 and 1978 respectively and live in Sofia.
They are father and son.
- On
8 August 1999 the applicants and friends of theirs were holidaying
beside a lake near Sofia. In turns, members of the group were riding
a jetboat. On several occasions some of them rode close to a sports
centre on the opposite shore.
- Some
time later, unexpectedly, two cars without licence plates arrived at
the lakeside location where the applicants' group was situated. Seven
men wearing camouflage uniforms got out of the cars, some of them
wore vests with “Police” written on the back. The men
were armed with sub-machine guns. They started insulting the
applicants and their friends and threatening them, both verbally and
by pointing their guns at them. The men made the applicants and their
friends lie flat on the ground and then hit and kicked them
repeatedly. The beating continued for several minutes. At the same
time, the men repeatedly shot at the applicants' jetboat. After that
they left.
- On
10 and 11 August 1999 the first applicant was examined by doctors who
established that he had four broken ribs, a superficial wound on his
left temple and several bruises on his face, back and legs. The
second applicant suffered bruises on his face, head and right leg.
- On
11 August 1999 the applicants complained to the prosecution
authorities. On 16 and 19 August 1999 the first applicant lodged
additional submissions, stating that he and his son were being
followed and that he had been threatened in an attempt to induce him
to withdraw his complaints.
- The
prosecution authorities opened criminal proceedings in relation to
the beating and, on unspecified dates, brought charges against seven
police officers working in the Operative Investigation Directorate, a
specialised unit of the Ministry of the Interior. It was established
that, at the relevant time, the accused had been dispatched to the
area where the beating had taken place, with the task of guarding a
Ministry of the Interior training centre and a forest reserve.
- The
prosecution authorities collected witness testimonies from the
applicants and their friends, as well as from other witnesses,
including eye witnesses to the beating. They commissioned a
ballistic expert and carried out confrontations and identity parades.
- On
an unspecified date the applicants were admitted as civil claimants
in the criminal proceedings.
- Up
to June 2003 the investigation had not resulted in indictments
against the accused.
- On
an unspecified date after June 2003 the accused, relying on a new
Code of Criminal Procedure provision, Article 239a (see paragraph 24
below), requested that their case be brought to court or terminated.
- In October or November 2003 the prosecution indicted
the seven police officers for causing bodily harm and for disorderly
conduct.
- On 19 December 2003 the Sofia Military Regional Court
remitted the case, finding that the prosecution authorities had
committed procedural violations. In particular, it found that: 1) it
was not clear from the indictment whether the accused had been armed
with sub-machine or automatic guns during the attack against the
applicants; 2) the indictment had been based on insufficient
evidence, and, in particular, on no material evidence; 3) two of the
witnesses had been examined superficially; and 4) the prosecution had
failed to comment on exonerating witness testimony.
- On
21 January 2004 the prosecution filed a revised indictment against
the police officers.
- In
a decision of 26 January 2004 the Military Regional Court established
that the procedural violations found earlier had not been remedied.
In addition, new deficiencies were identified: 1) the prosecution had
not commented on the possibility of bringing charges for the verbal
threats; 2) the date of the record of the examination of a witness
had been amended, but this had not been certified by a valid
signature of the witness; and 3) the records showing that the accused
had been notified of the results of the investigation had been
printed out on a printer but the respective dates and hours had been
added on a typewriter; again, this additional information had not
been certified by the accused's signatures.
- Concluding
that the deficiencies thus identified amounted to material procedural
breaches within the meaning of Article 239a of the Code of Criminal
Procedure (see paragraph 24 below), the Military Regional Court
terminated the criminal proceedings.
- The
applicants and the prosecution authorities appealed against this
decision arguing that the Military Regional Court had erred in
concluding that the prosecution authorities had committed material
procedural breaches. On 22 March 2004 those appeals were rejected by
the Military Court of Appeal because decisions under Article 239a of
the Code of Criminal Procedure were not subject to appeal.
- Apparently,
some internal inquiry into the officers' conduct was carried out by
the Ministry of the Interior, but the Court has not been informed of
its course and findings. No disciplinary punishments were ever
imposed on the police officers allegedly involved in the beating.
II. RELEVANT DOMESTIC LAW
A. Ill-treatment by police officers
- Articles 128, 129 and 130 of the Criminal Code make it
an offence to cause a light, intermediate or severe bodily injury to
another person. Article 131 § 1 (2) provides that if the injury
is caused by a police officer in the course of, or in connection
with, the performance of his or her duties, the offence is an
aggravated one. This offence is a publicly prosecutable one.
- Persons
claiming that they have been beaten by police officers can seek
damages under the State Responsibility for Damage Act 1988. The
remedy has been described in more detail in the Court's judgment in
the case of Krastanov v. Bulgaria (no. 50222/99, §§
45-46, 30 September 2004).
B. Relevant provisions of the Code of Criminal
Procedure 1974
- In June 2003 the new Article 239a of the Code of
Criminal Procedure 1974, in force at the relevant time,
introduced the possibility for an accused person to request to have
his case examined by a court if the preliminary investigation has not
been completed within the statutory time-limit (two years for
investigations concerning serious crimes and one year for all other
investigations). In such instances, the courts would send the case to
the relevant public prosecutor's office with instructions to either
enter an indictment against the accused within two months or
discontinue the criminal proceedings. If the prosecutor's office
failed to take action, or if the case was remitted for material
procedural breaches, which were not remedied within a new time-limit
of one month, the courts would terminate the criminal proceedings
themselves. The alleged victims could not participate in the
proceedings under Article 239a of the Code of Criminal Procedure.
- Under
domestic law, as it stood at the relevant time, victims of crimes
could only participate in pre-trial proceedings as civil claimants.
In this capacity they could acquaint themselves with the case file,
present evidence, make requests and appeal against acts of the courts
to the extent that this was related to their civil claim.
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION
- The
applicants complained, relying on Articles 3 and 13 of the
Convention, that they had been beaten by police officers and that the
authorities had failed to investigate this beating effectively. The
Court is of the view that the complaints fall to be examined solely
under Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
- The
Court notes that the complaints are not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that they are not inadmissible on any other grounds. They must
therefore be declared admissible.
B. Merits
1. Substantive issue: the beating of
the applicants by police
officers
- The
applicants reiterated that they had been beaten by police officers
for no reason.
- The
Government did not contest that the applicants had been beaten by
police officers. However, they contended that the applicants'
suffering had not attained the minimum level of severity required
under Article 3 of the Convention. Furthermore, they considered that
the applicants had themselves provoked the beating because, together
with their friends, they had been spying on other people at a sports
centre by the lake. Lastly, the Government argued that the
applicants' ill-treatment had not been intended to cause them
suffering and humiliation.
- The
Court notes that it is not disputed between the parties that on
8 August 1999 the applicants were beaten by men they did not
know. Some of those men were wearing vests with “Police”
written on the back. The domestic prosecuting authorities brought
charges against seven officers from the Ministry of the Interior's
Operative Investigation Directorate (see paragraph 10 above). In
addition, the Government did not contest the applicants' averment
that the men who had beaten them had been police officers (see
paragraph 29 above) and did not present any evidence which could
disprove it. Thus, the Court sees no reason to doubt the prosecution
authorities' findings and concludes that the applicants were the
victims of violence by State agents for which the respondent
Government are responsible.
- The
Court reiterates that any ill-treatment must attain a minimum level
of severity if it is to fall within the scope of Article 3. The
assessment of this minimum is relative and depends on all the
circumstances of the case (see Labita v. Italy [GC], no.
26772/95, § 120, ECHR 2000 IV). In the present case,
pursuant to the beating on 8 August 1999, the first applicant
suffered serious injuries, including broken ribs and a wound on his
head. The second applicant suffered lighter injuries – bruises
on his face, head and right leg (see paragraph 8 above). The attack
on the applicants was sudden and unprovoked, by armed State agents
who at the same time threatened the applicants and fired repeatedly
at their jetboat (see paragraph 7 above). Therefore, in view of all
the circumstances of the case the Court considers that the
applicants' ill-treatment attained the minimum level of severity
required under Article 3 and can be considered as inhuman treatment.
- The
Court considers that the applicants' ill-treatment by State agents
could not be justified on any valid ground. As to the argument put
forward by the Government, namely, that the applicants had themselves
provoked the attack by spying on other people (see paragraph 29
above), the Court reiterates that Article 3 prohibits ill-treatment
in absolute terms. Furthermore, even if the applicants had encroached
upon the rights of others, in a democratic society governed by the
rule of law the police could never be called upon to respond to
breaches of the law by beating citizens.
- The
Court thus concludes that there has been a violation of Article 3 of
the Convention, taken in its substantive aspect.
2. Procedural issue: the effectiveness of the
investigation
- The
applicants considered that the authorities had failed to investigate
their ill-treatment effectively.
- The
Government contested this argument. They considered that the national
authorities had taken all necessary steps to ensure that the
applicants' attackers be brought to justice. However, as the facts of
the case had been complex and this had prolonged the investigation,
the accused had been entitled to resort to the remedy under Article
239a of the Code of Criminal Procedure 1974 (see paragraph 24 above).
- The
Court reiterates that, where an individual makes a credible assertion
that he has suffered treatment by the police infringing 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. Such investigation should be
capable of leading to the identification and punishment of those
responsible. Otherwise, the general legal prohibition of torture and
inhuman and degrading treatment and punishment would, despite its
fundamental importance, be ineffective in practice and it would be
possible in some cases for agents of the State to abuse the rights of
those within their control with virtual impunity (see, mutatis
mutandis, Labita, cited above, § 131).
- On
the basis of the evidence presented in the present case, the Court
has found that the respondent State is responsible under Article 3
for the applicants' ill-treatment (see paragraph 33 above). The
applicants' complaints in this regard were therefore “arguable”
and the authorities were under an obligation to carry out an
effective investigation.
- In
fact, in the present case, the authorities opened an investigation,
collected evidence and identified and charged those allegedly
responsible (see paragraphs 10-11 above). However, the proceedings
were eventually terminated without the accused having been brought to
trial and punished. The authorities also conducted some sort of
internal inquiry (see paragraph 21 above). Consequently, the question
in the present case is not so much whether there was an
investigation, but whether it was effective, that is, whether it was
conducted diligently and with the required determination to identify
and prosecute those responsible (see Krastanov, cited above, §
59).
- In
that regard, the Court observes that it has not been informed of the
exact course of the criminal proceedings. It notes that those
proceedings continued for four years, from 1999 to 2003, without any
indictments having been filed against the accused (see paragraphs 10
and 13 above). This delay gave rise to an entitlement of the accused
to request that their case be brought to trial or terminated pursuant
to Article 239a of the Code of Criminal Procedure 1974 (see
paragraphs 14 and 24 above). Once the procedure under Article 239a
had commenced, the prosecuting authorities filed an indictment
against the accused and, after receiving instructions from the
Regional Military Court to rectify a number of alleged deficiencies,
filed a revised indictment (see paragraphs 15-17 above). The Court is
thus ready to conclude that, despite their initial delay and despite
committing later some procedural shortcomings, once the procedure
under Article 239a had commenced the prosecution authorities acted
with determination to identify and prosecute those responsible.
- However,
the Regional Military Court terminated the proceedings, finding that
the prosecution authorities had committed material procedural
breaches (see paragraphs 16-19 above). The Court cannot but note that
some of the those “material” breaches were in fact small
flaws of no particular consequence for the proceedings, like the
prosecution's failure to specify whether the accused had been armed
with sub-machine or automatic guns (see paragraph 16 above). Other
deficiencies identified, like the prosecution's alleged failures to
support the charges with sufficient evidence and to discuss
exonerating evidence (see paragraph 16 above), related to the merits
of the case, not the lawfulness of the indictment, and fell to be
examined during an ensuing trial. The Court cannot therefore accept
that they represented a valid ground for terminating the proceedings.
In fact, the Court does not consider that any of the deficiencies
indicated by the Regional Military Court (see paragraphs 16 and 18
above) amounted to a “material procedural breach” within
the meaning of Article 239a of the Code of Criminal Procedure,
warranting the termination of the proceedings. Rather, it is of the
view that the Regional Military Court adopted an excessively
formalistic approach, which resulted in the accused not being brought
to trial and secured their impunity for the beating. It is also
noteworthy in that respect that the prosecution itself lodged an
appeal against the impugned decision of the Regional Military Court,
challenging its conclusions (see paragraph 20 above).
- For
the reasons above, the Court concludes that, as regards the criminal
investigation in the case, the authorities, and in particular the
Regional Military Court which terminated the proceedings for no
convincing reason, failed to act with the effectiveness, diligence
and determination to punish those responsible required under Article
3 of the Convention (see paragraph 37 above).
- The
Court also points out that the applicants had no opportunity to
effectively participate in the criminal proceedings, because domestic
law at the time allowed them to participate only as civil claimants
and, accordingly, in so far as their civil claim was at issue (see
paragraph 23 above). For the Court, this is an additional argument in
support of the conclusion that the criminal investigation was
ineffective.
- As
to the internal inquiry carried out by the Ministry of the Interior
(see paragraph 21 above), the Court notes that it has not been
informed about its course or findings. However, seeing that this
inquiry did not result in any disciplinary action or any other
punishment of those responsible, the Court concludes that, similarly
to the criminal investigation, it was not effective.
- Accordingly,
the Court concludes that there has been a violation of Article 3 of
the Convention in its procedural respect.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION IN
THAT THE APPLICANTS COULD NOT OBTAIN DAMAGES
- The
applicants further complained of a violation of Article 13 of the
Convention, in that they did not have an available domestic remedy to
obtain damages from their attackers. Article 13 of the Convention
reads:
“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.”
- The
Government considered that there was no opportunity available to the
applicants to bring an action for damages outside of the framework of
the criminal proceedings, in view of the grounds on which the
criminal proceedings had been terminated.
A. Admissibility
- The
Court considers that this complaint is linked to the complaints
examined above and must therefore likewise be declared admissible.
B. Merits
- The
Court takes note of the Government's position that there was no
opportunity for the applicants to seek damages outside of the
framework of the criminal proceedings (see paragraph 46 above) and
sees no reason to hold otherwise. Accordingly, it finds that there
has been a violation of Article 13 in the case.
III. 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
applicants did not claim pecuniary damage. In respect of
non-pecuniary damage, the first applicant claimed 50,000 euros (EUR)
and the second applicant claimed EUR 25,000. The applicants submitted
that they had suffered pain and humiliation.
- The
Government urged the Court to dismiss these claims.
- The
Court considers that the applicants must have suffered pain and
frustration as a result of the violations found in the case.
Accordingly, the Court awards EUR 10,000 to the first applicant and
EUR 9,000 to the second applicant in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicants claimed, jointly, EUR 10,000 for the legal fees charged by
their lawyer, Mr Blagoev, and EUR 500 for other costs and expenses
incurred in the proceedings before the Court.
- The
Government argued that the claim for legal fees was excessive and
pointed out that the claim for costs and expenses was not supported
by any documents.
- 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. To this end, Rule 60
§§ 2 and 3 of the Rules of Court stipulates that applicants
must enclose with their claims for just satisfaction “any
relevant supporting documents”, failing which the Court may
reject the claims in whole or in part. In the present case, noting
that the applicants have failed to produce any documents in support
of their claim, the Court does not make any award under this head.
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
- Declares the application admissible;
- Holds that there has been a violation of Article
3 of the Convention in that the State was responsible for the
applicants' ill-treatment on 8 August 1999;
- Holds that there has been a violation of Article
3 of the Convention in that the authorities failed to investigate the
applicants' ill-treatment effectively;
- Holds that there has been a violation of Article
13 of the Convention in that the applicants had no effective remedy
to seek damages;
- Holds
(a) that
the respondent State is to pay the applicants, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts in
respect of non-pecuniary damage, plus any tax that may be chargeable,
to be converted into Bulgarian levs at the rate applicable on the
date of settlement:
(i) to
the first applicant EUR 10,000 (ten thousand euros);
(ii) to
the second applicant EUR 9,000 (nine thousand euros);
(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 applicants'
claims for just satisfaction.
Done in English, and notified in writing on 25 March 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
