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FOURTH
SECTION
CASE OF BISER KOSTOV v. BULGARIA
(Application
no. 32662/06)
JUDGMENT
STRASBOURG
10
January 2012
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 Biser Kostov v.
Bulgaria,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Lech Garlicki, President,
David
Thór Björgvinsson,
George Nicolaou,
Ledi
Bianku,
Zdravka Kalaydjieva,
Nebojša
Vučinić,
Vincent A. De Gaetano, judges,
and
Fatoş Aracı, Deputy
Section Registrar,
Having
deliberated in private on 6 December 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 32662/06) 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 Biser Milanov Kostov
(“the applicant”), on 1 August 2006.
- The
applicant was represented by Ms Zh. Aldinova, a lawyer practising in
Yambol. The Bulgarian Government (“the Government”) were
represented by their Agent, Ms N. Nikolova, of the Ministry of
Justice.
- The
applicant alleged, in particular, that the authorities had failed to
prosecute diligently individuals who had assaulted him.
- On
4 March 2010 the President of the Fifth Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
- The
application was later transferred to the Fourth Section of the Court,
following the re composition of the Court’s sections on 1
February 2011.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1951 and lives in Yambol.
A. The incident of 21 April 2004
- Around
9 a.m. on 21 April 2004, while shopping in a small supermarket in the
town of Yambol, the applicant was stopped by supermarket employees on
suspicion of stealing a small bottle of vodka. The bottle cost 1.2
Bulgarian levs, the equivalent of approximately 61 euro cents. The
supermarket employees took the applicant to an office at the back of
the supermarket and left him with the manager, S.F. The owner of the
store, P.D., was also informed and arrived at the supermarket before
the police came.
- Meanwhile,
someone called the police and notified them that a theft had been
committed in the supermarket.
- According
to the applicant, he was searched and his shopping basket was taken
away from him. S.F. then accused him of theft, punched him in the
face, knocked him down and began kicking his chest, while the
applicant was yelling and pleading with him to stop. When S.F.
stopped, the applicant managed to stand up and realised that a small
amount of his money was missing. When he asked for the money back, as
well as his glasses, which had fallen off during the beating, S.F.
punched him again in the side of the head and knocked him down, after
which P.D. also kicked him several times and told him that people
like him caused damage to his business.
- Shortly
thereafter, two police officers arrived and found the applicant
squatting by the wall in the presence of S.F. and P.D. The latter
left immediately after the police had arrived, apparently using the
back door.
- According
to the applicant’s statements, made during the ensuing
investigation, he had told the police officers that he had been
beaten up by two men and that he needed medical help. He also claimed
that after the incident he could hardly walk and the police officers
had helped him to the police car. During the investigation the police
officers stated that upon their arrival they had been informed by the
applicant about the beating. They contested the applicant’s
assertions that he had requested medical help and maintained that he
had not been injured and had been able to walk on his own.
- The
policemen drove the applicant to the police station in order to
establish the circumstances surrounding the theft. While waiting in
the reception hall to meet the officer in charge of the case, the
applicant apparently felt severe pain, so he left and asked a
stranger to drive him home.
- Soon
after that two police officers headed towards the applicant’s
apartment. They found him sitting on a bench in front of the
apartment building and accompanied him to the apartment. There the
applicant signed a record in connection with the theft. During the
ensuing investigation one of the police officers contended that while
the officers had been at his apartment the applicant had lain in bed
and had looked ill.
- After
the police officers had left, the applicant felt very sick and his
wife called an ambulance.
B. The applicant’s medical condition
- On
the same day the applicant was admitted to the emergency department
of the Yambol Hospital, where it was established that he had five
broken ribs, bilateral pneumothorax, subcutaneous emphysema of the
upper part of the body and bruising to the head, chest and abdomen.
- Two
days later, on 23 April 2004, the applicant was transferred to Stara
Zagora Hospital, where he underwent several examinations. According
to the medical reports he had ten broken ribs, subcutaneous
emphysema, haematomas on the front, the back, and both sides of the
chest, large hematomas in the lumbar area and bilateral
hemopneumothorax. On 28 April 2004 he underwent an abdominal
ultrasound scan which revealed two-sided pleurisy and traumatic
functional changes in the kidneys.
- The
applicant underwent several medical procedures, including, inter
alia, thoracentesis for the removal of 200 ml of liquid from the
pleural space.
- The
applicant was discharged on 5 May 2004 and was granted forty five
days’ sick leave.
- On
14 May 2004 the applicant underwent a chest and lung examination. In
his report the doctor noted, in particular, old fractures of ten ribs
and pulmonary fibrosis. At another check up, on 4 June 2004, the
doctors reiterated those conclusions.
C. The criminal investigation
- In
the afternoon of 21 April 2004 the authorities of Yambol Hospital
informed the police about the admission of the applicant and his
condition. A police officer was dispatched to the hospital but was
unable to see the applicant because of the latter’s serious
medical condition.
- On
the next day, 22 April 2004, the same police officer visited the
applicant in hospital. This time the applicant was able to
communicate and informed the officer that he had been beaten up by
two men at the supermarket who he could identify.
- On
the same day a police investigation (дознание)
was instituted against unknown perpetrators.
- On
23 April 2004 the applicant’s wife filed an official complaint
with the Yambol District Police Administration, describing the events
and requesting that an investigation be opened and the responsible
individuals punished.
- Between
23 April and 18 May 2004 a police investigator questioned P.D., S.F.
and two employees of the shop, the police officers who had been
dispatched to the scene of the incident, the police officer who had
visited the applicant in hospital and the applicant. The policemen
who had been in the supermarket stated that the applicant had smelled
of alcohol and had told them he had been beaten up, but that there
had been no visible signs of violence on his body. They further
stated that he had been able to walk unaided and had not requested
medical help. S.F. claimed that while he had been calling the police,
the applicant had tried to leave the room. S.F had put a hand against
the applicant’s chest to stop him and the latter had bumped
into the door. He denied having beaten the applicant up and
maintained that the applicant had been drunk and had threatened him.
P.D. claimed that when he had arrived at the supermarket the
applicant and S.F. had indeed been in the back room but the applicant
had been drunk and had not had any injuries. He denied having hit the
applicant. He further added that he was not aware of what had
happened between the applicant and S.F. while they had been by
themselves in the room. The applicant provided a detailed account of
the events, although he claimed to have vague memories of certain
moments immediately after the incident due to the shock he had
experienced.
- On
18 May the police investigator ordered a forensic medical report,
which was submitted on 23 May 2004. It reiterated the information
contained in the applicant’s hospital file. The expert
concluded that the applicant’s injuries could have been
inflicted in the manner described by the applicant, namely by
punching and kicking, but not in the manner asserted by S.F.
- The
investigator organised a line up on 25 May 2004 during which the
applicant identified the supermarket manager, S.F., and the owner,
P.D., as the individuals who had beaten him up.
- On
27 May 2004 the applicant was questioned before a judge of the Yambol
District Court. He reiterated his account of the events and said that
he would bring a civil claim against the alleged perpetrators during
the judicial phase of the proceedings.
- On
2 June 2004 S.F. was questioned as a suspect (уличен).
He decided to remain silent. On the same day the police investigator
concluded the police investigation and transferred the file to the
Yambol district prosecutor’s office with the opinion that S.F.
should be brought to trial for causing the applicant an intermediate
bodily harm. It appears that no charges were brought against P.D.
- On
8 June 2004 prosecutor R.L. at the Yambol district public
prosecutor’s office terminated the proceedings against S.F.,
finding that there was not sufficient evidence that he and P.D. had
beaten the applicant up. The prosecutor stated, in particular, that
the account of the events asserted by the applicant had been
contradictory. She made two points in this regard. First, the
applicant had not informed the police officers that he had needed
medical help. Secondly, despite his allegations that he had been
punched in the head twice the witnesses had not reported any injuries
and the doctors who had examined the applicant had not recorded any
such injuries in their reports. She further added that in addition,
the applicant had vague memories of the period immediately after the
incident.
- On
an unknown date the applicant appealed to the court. He maintained
that he had informed the police officers that he had been beaten up
and that it had been natural for his injuries to become visible
later. He also contested the prosecutor’s version of events,
which, in the applicant’s view, could have been interpreted as
implying that the applicant had inflicted his injuries by himself.
- On
2 July 2004 the Yambol District Court quashed the prosecutor’s
decree as ill-founded and remitted the case for further
investigation. Judge D.S. held that there was substantial
circumstantial evidence that the applicant had been beaten up by two
men in the shop. As regards the conclusions of the prosecutor, the
court noted that right after the incident the applicant had informed
the police officers that he had been beaten up by two individuals and
had later identified them and that the alleged punching in the head
had been recorded in the medical documents which stated, inter
alia, that the applicant had suffered from subcutaneous emphysema
of the upper part of the body and contusion of the head. The court
also specifically referred to the expert’s report, which found
that the applicant’s injuries could have been inflicted in the
manner described by the applicant, namely, by punching and kicking,
but not in the manner asserted by S.F.
- Following
the remittal, on 15 July 2004 the prosecutor instructed the
investigator to question the police officers who had seen the
applicant in the police department in order to elucidate whether the
applicant had had visible injuries, had requested medical help, had
needed assistance walking and whether he had consumed alcohol. On 16
and 19 July 2004 the police investigator questioned several officers.
The witnesses stated, in particular, that the applicant had been able
to move on his own and had not had any visible injuries.
- On
20 July 2004 the police investigator concluded the investigation and
transferred the file to the prosecutor’s office with the
opinion that S.F. should be brought to trial for inflicting
intermediate bodily harm.
- On
22 July 2004 prosecutor R.L. once again terminated the criminal
proceedings against S.F., finding with identical reasoning that
despite the additional investigative measures taken there was no
evidence that the alleged perpetrators had beaten the applicant up.
She stated, in particular, that the applicant had not requested
medical help and had had no visible injuries.
- The
applicant appealed against that decree, maintaining that the
prosecutor had failed to discuss crucial evidence. He further argued
that the evidence collected supported accusations not only against
S.F., but also against P.D.
- On
4 October 2004 the Yambol District Court quashed the decree of 22
July 2004 as ill-founded and remitted the case. Judge G.K. noted, in
particular, that the applicant had complained to the police officers
that he had been beaten up and had later identified the alleged
offenders; furthermore, his statements regarding his injuries had
been corroborated by the doctors’ opinions. In view of that the
court concluded that there was sufficient evidence allowing the
prosecutor to bring the accused to trial. Nevertheless, in order to
supplement the evidential material, the court instructed the
prosecution authorities to question the applicant’s wife and an
employee at the shop, who had not been questioned earlier.
- Following
the remittal, in accordance with the court’s instructions the
police investigator questioned the said witnesses. On 15 October 2004
the police investigator concluded the investigation and transferred
the file to the prosecutor with the opinion that S.F. should be
brought to trial.
- On
3 November 2004 prosecutor R.L. once again terminated the
criminal proceedings against S.F. with identical reasoning. She
further concluded that the statements of the witnesses who had been
additionally questioned could not alter her prior conclusions.
- The
applicant appealed, reiterating his earlier arguments against the
discontinuation. In a decision of 9 December 2004 the District Court
quashed the decree of 3 November 2004 and remitted the case to the
prosecution authorities for a third time. Judge N.N. noted that most
of the inflicted injuries had been internal and therefore the
witnesses could not have noticed them. The court found that the
prosecutor’s conclusions did not correspond to the facts of the
case, that she had failed to take into account the medical reports
and that there had been sufficient evidence to bring the offenders to
trial. It also instructed the prosecutor to question one of the
police officers who had been at the scene of the incident.
- In
the meantime the applicant filed a complaint with the Yambol regional
public prosecutor’s office, stating that prosecutor R.L. was
not impartial and should be replaced. By a decree of 27 December 2004
the regional prosecutor dismissed the complaint. He stated that the
discontinuation of the investigation had been based on the
prosecutor’s opinion, which had been formed on the basis of the
additional investigation carried out in compliance with the court’s
instructions, and that in the absence of other indications the mere
fact that the prosecutor had discontinued the proceedings on several
occasions did not cast doubt on her impartiality.
- On
17 January 2005 the police investigator questioned one of the police
officers who had been in the supermarket and on 21 January 2005
concluded the investigation with the opinion that the accused should
be brought to trial. On 25 February 2005 the same prosecutor
terminated the criminal proceedings for the fourth time with
identical reasoning. She stated that the applicant’s
memory about events was extremely vague and that there was no
information indicating what exactly had happened in the period
between his leaving the police department and his arrival at his
home.
- The
applicant appealed. On 11 July 2005 the District Court quashed the
decree of 25 February 2005 as unlawful and unsubstantiated and
remitted the case. Judge A.A. held, inter alia, that
the prosecutor’s conclusions suggested that after leaving the
police department the applicant had somehow injured himself or had
been attacked by unknown individuals. The court stated that, having
regard to the time and location of the incident as suggested by the
prosecutor, namely while the applicant was retuning home, it was very
unlikely that it would have gone unnoticed.
D. The discontinuation of the criminal proceedings
- Meanwhile
on an unspecified date S.F. made a request under Article 239a of
the Code of Criminal Procedure 1974 that the case against him be
examined by a court or terminated as the proceedings had already
lasted for too long. In a decision of 24 November 2005 the District
Court instructed the prosecutor to either submit an indictment within
two months or terminate the proceedings.
- It
appears that no investigation was conducted in the period between 11
July and 2 December 2005. On 2 December 2005 the case was assigned to
another prosecutor as prosecutor R.L. had been promoted.
- On
10 January 2006 the prosecutor instructed a different police
investigator to proceed with the investigation.
- On
17 January 2006 the police investigator ordered a medical report. On
an unspecified date before 2 February 2006 the medical expert
presented his conclusions. He stated that the injuries sustained by
the applicant had aggravated with time, therefore he had been able to
walk independently immediately after the incident. He also stated
that it normally took thirty minutes to up to two hours for
haematomas to become visible; therefore it was possible that the
applicant’s injuries could not have been seen immediately after
they had been inflicted.
- As
in the meantime the two-month deadline under Article 239a for
discontinuing the proceedings or filing an indictment to the court
had expired, by a decision of 9 February 2006 the District Court
terminated the criminal proceedings.
- The
applicant appealed against the decision, arguing that although
intermediate bodily harm was a serious offence within the meaning of
Article 93 § 7 of the Criminal Code and the accused was
therefore entitled to request discontinuation of the proceedings
after two years of investigation, the two-year period had not expired
and the accused’s request in this respect had therefore been
premature.
- On
8 May 2006 the Yambol Regional Court upheld the decision. It held
that intermediate bodily harm was an offence which did not fall
within the scope of Article 93 § 7 of the Criminal Code and
therefore the accused’s request had not been premature. It
reasoned that pursuant to Article 239a of the Code of Criminal
Procedure of 1974 after a certain period of time the suspect was
entitled to have his case examined by the court or terminated and
that in this case the court was only competent to verify whether the
prosecution authorities had observed the statutory deadlines and
could not examine the merits of the case.
E. Other developments
- On
3 August 2006 the applicant lodged a complaint with the Chief Public
Prosecutor, stating, in particular, that prosecutor R.L. had
repeatedly terminated the criminal proceedings despite the court’s
instructions to bring the accused to trial and that the second
prosecutor in charge of the case had been inactive, which had led to
the termination of the proceedings.
- On
16 August 2006 a prosecutor from the Supreme Cassation Prosecutor’s
Office opened an inquiry into the applicant’s allegations and
requested an explanation from the second prosecutor in charge of the
case and his superior in respect of the delay in filing an indictment
with the court.
- On
30 August 2007 the district prosecutor of Yambol informed the Supreme
Cassation Prosecutor’s Office that no disciplinary penalty had
been imposed on the prosecutor as he was considered a reliable
employee and that the failure to file an indictment on time had been
an unintentional mistake.
- There
is no information on whether disciplinary action was pursued against
prosecutor R.L.
II. RELEVANT DOMESTIC LAW AND PRACTICE
1. Intermediate bodily harm
- The Criminal Code 1968 defines intermediate bodily
harm (средна
телесна повреда)
as, inter alia, involving a temporary life-threatening health
disorder or a permanent non-life-threatening health disorder
(Article 129 § 2). At the relevant time the wilful
infliction of intermediate bodily harm was an offence punishable by
up to five years’ imprisonment (Article 129 § 1). It
is publicly prosecutable (Article 161).
-
Article 93 § 7 provides that offences punishable by more than
five years’ imprisonment shall be considered “serious”
for the purposes of the Code.
2. Taking a case to court at the request of the accused
- Article 239a of the Code of Criminal Procedure of
1974, in force at the relevant time, provided, inter alia,
that individuals accused of committing a crime, the preliminary
investigation against whom had not been completed within one year,
were entitled to request to have their case examined by a court or
terminated. For serious offences such a request could be lodged if
the authorities failed to complete the preliminary investigation
within two years.
- In
such instances the court would send the case to the public
prosecutor’s office with instructions to either submit an
indictment within two months or discontinue the criminal proceedings.
If the prosecutor’s office failed to take action, the court had
to terminate the criminal proceedings.
- The
provision was reproduced almost verbatim in Articles 368 and 369
of the new Code of Criminal Procedure 2005. On 25 March 2010
Parliament repealed Articles 368 and 369 with effect from 28 May
2010. In a decision of 28 September 2010 (реш.
№ 10 от 28 септември
2010 г., по к. д. № 10/2010 г.,
обн., ДВ, бр. 80 от
12 октомври 2010 г.)
the Constitutional
Court dismissed the request of the
President of the Republic to strike down the repeal, finding that the
repeal was not contrary to the Constitution. It
noted, inter alia, that the main weakness of the repealed
procedure was that it used a formal, purely quantitative criterion to
determine what constituted a “reasonable time” for the
pre trial phase of the proceedings to last. It further stated
that while in most cases that approach would lead to a correct
assessment, in some complex cases that criterion might, contrary to
the public interest that all offenders be brought to justice, give
the accused an undue advantage.
3. State liability for damages
- Pursuant
to section 1 of the State and Municipalities Responsibility for
Damage Act of 1988 (hereafter “the State Responsibility Act”)
the State is liable, in particular, for damage suffered by
individuals as a result of unlawful decisions, actions or omissions
by its organs and officials, committed in the course of or in
connection with the performance of administrative action. According
to the Supreme Court of Cassation’s case law, the actions
of the investigative and the prosecuting authorities in the context
of a criminal investigation do not amount to administrative action
and those authorities are therefore not liable under section 1 of the
Act (тълк. реш. № 3
от 22 април 2005 г.
на ВКС по тълк.д.
№ 3/2004 г., ОСГК).
- Section
2 of the State Responsibility Act sets out that the State is liable
for damage caused to individuals by, inter alia, the organs of
investigation and prosecution for: (i) unlawful pre-trial detention,
(ii) unlawful accusation of a crime, (iii) execution of a
sentence above and beyond the specified period.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that the criminal investigation into the act of
violence against him had been ineffective. He relied on Article 6 §
1 of the Convention.
- The
Court considers that this complaint falls to be examined 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. The parties’ submissions
1. The Government
- The
Government submitted that the applicant had failed to exhaust
domestic remedies as he did not bring an action against the
investigative authorities under the State Responsibility Act or a
civil claim against the alleged perpetrators.
- In
addition, the Government noted that the investigation into the
alleged ill-treatment had started immediately and had been swift and
comprehensive. The prosecutor had strictly followed the court
instructions at remittal and had undertaken additional investigatory
steps accordingly.
- The
authorities had made efforts to establish the facts and had gathered
significant evidential material. Thus in the Government’s view
it had been established that the applicant had consumed alcohol, had
committed theft in the supermarket and instead of having sought
assistance from the police officers had practically fled from the
police station.
- The
Government further argued that the applicant’s account of the
events had been contradictory and had not been corroborated by the
witnesses’ statements or by the medical documents. The
Government stated that the expert report had not established with
sufficient certainty that the applicant’s injuries had been
inflicted in the manner asserted by him and that the doctor’s
record of 4 June 2004 had noted “old injuries” on his
ribs, thus casting doubt on the exact moment when these fractures had
been inflicted.
2. The applicant
- The
applicant stated that the State Responsibility Act was not applicable
in his case as he had been neither accused nor convicted.
- The
applicant further argued that he had never committed theft and even
if he had done so, the latter could not have justified his
ill-treatment. Furthermore, he had requested medical help on the day
of the incident and several medical documents had recorded his
injuries. In view of the Government’s statement that the expert
report had not been convincing enough, the applicant asserted that it
clearly stated that the injuries could have been inflicted in the
manner described by him.
- The
applicant further argued that the investigation could not be regarded
as effective. He pointed out that the prosecutor had failed to
conduct a proper investigation despite the court’s numerous
instructions in this regard. As a result of the protracted and
belated investigation, the accused had obtained discontinuation of
the proceedings under Article 239a of the Code of Criminal Procedure
1974.
B. The Court’s assessment
1. Admissibility
- The
Government contended that the applicant had failed to exhaust
domestic remedies as he could have lodged an action under the State
Responsibility Act against the investigative authorities or a civil
claim against the alleged perpetrators.
- The
Court notes that a potential claim against the investigative
authorities does not appear to fall within
the scope of the State Responsibility Act. Under the domestic
case-law investigative and prosecuting
authorities are not liable under section 1 of the State
Responsibility Act. At the same time, while section 2 contains a list
of specific circumstances under which the responsibility of the
investigative authorities can be engaged, this list does not include
a situation similar to that of the applicant (see paragraphs
59-60 above). In any event the Government failed to substantiate its
assertion that the State Responsibility Act was applicable in the
present case by providing relevant domestic case-law concerning
awards of damages in similar situations.
- In
respect of a possible claim against the alleged perpetrators for the
damage sustained, the Court considers that having exhausted the
possibilities available to him within the criminal justice system,
the applicant was not required to use the civil remedy invoked by the
Government (see, mutatis mutandis, Assenov and Others v.
Bulgaria, 28 October 1998, § 86, Reports of
Judgments and Decisions 1998 VIII). Moreover, the civil
remedy relied on by the Government cannot be regarded as sufficient
for the fulfilment of a State’s obligation under Article 3 in
cases such as the present one, as it is aimed at awarding damages
rather than identifying and punishing those responsible (see
Beganović v. Croatia, no. 46423/06, § 56, 25
June 2009).
- It
follows that the Government’s objection of non-exhaustion of
domestic remedies in respect of the applicant’s complaint under
Article 3 must be dismissed.
74. The
Court further notes that the complaint is not manifestly ill founded
within the meaning of Article 35 § 3 (a) of the Convention and
not inadmissible on any other ground. It must therefore be declared
admissible.
2. Merits
a) General principles
- The
Court reiterates that Article 3 enshrines one of the most fundamental
values of a democratic society. It prohibits in absolute terms
torture or inhuman or degrading treatment or punishment.
- Ill-treatment
must attain a minimum level of severity if it is to fall within the
scope of Article 3 of the Convention. The assessment of this minimum
is relative: it depends on all the circumstances of the case, such as
the nature and context of the treatment, its duration, its physical
and mental effects and, in some instances, the sex, age and state of
health of the victim (see A. v. the United Kingdom, 23
September 1998, § 20, Reports of Judgments and Decisions
1998 VI).
- The
Court reiterates that the obligation of the High Contracting Parties
under Article 1 of the Convention to secure to everyone within their
jurisdiction the rights and freedoms defined in the Convention, taken
together with Article 3, requires States to take measures designed to
ensure that individuals within their jurisdiction are not subjected
to ill-treatment, including ill-treatment administered by private
individuals (see, among other authorities, Šečić
v. Croatia, no. 40116/02, § 52, 31 May 2007).
- Where
an individual raises an arguable claim of ill-treatment, including of
ill-treatment administered by private individuals, Article 3 of the
Convention gives rise to a procedural obligation to conduct an
independent official investigation (see Šečić,
cited above, § 53; Nikolay Dimitrov v. Bulgaria, no.
72663/01, § 67, 27 September 2007 and, mutatis mutandis,
Menson and Others v. the United Kingdom (dec.), no. 47916/99, 6
May 2003). The investigation must be capable of leading to the
identification of those responsible with a view to their punishment.
- The
scope of this obligation by the State is one of means, not of result;
the authorities must have taken all reasonable steps available to
them to secure the evidence concerning the incident (see Nikolay
Dimitrov, cited above, § 69, and, mutatis mutandis,
Menson and Others, cited above). A requirement of promptness
and reasonable expedition is implicit in this context. Tolerance by
the authorities towards such acts cannot but undermine public
confidence in the principle of lawfulness and the State’s
maintenance of the rule of law (see, for example, Members (97) of
the Gldani Congregation of Jehovah’s Witnesses v. Georgia,
no. 71156/01, § 97, ECHR 2007 V, and Milanović
v. Serbia, no. 44614/07, § 86, 14 December 2010).
b) Application of those principles to the
present case
- On
the basis of the submitted medical evidence, which appears reliable
and comprehensive and which established that the applicant had ten
broken ribs, large bruises on the upper part of his body, suffered
from emphysema and pneumothorax and was in need of major surgery, the
Court considers that the treatment complained of was sufficiently
serious to amount to ill-treatment within the meaning of Article 3
of the Convention.
- Therefore
the authorities had a procedural obligation to conduct an official
investigation. The Court notes at the outset that the authorities
took a number of investigatory steps. They instituted criminal
proceedings shortly after the incident, questioned a number of
witnesses, commissioned a medical report and conducted a line up. At
the close of both the original and the renewed investigations the
police investigator, having assessed the evidence, proposed to the
prosecutor that S.F. be brought to trial. All of that shows that in
the early stages of the investigation the authorities deployed
reasonable efforts to gather the evidence and establish the facts.
- Having
said that, the Court further observes that the prosecutor decided to
terminate the proceedings, concluding that no ill-treatment had taken
place in the supermarket, on two main grounds: the fact that the
applicant had not requested the police officers to provide him with
medical help and the fact that despite his allegations that he had
been punched in the head twice the witnesses had not reported any
injuries on his person and the doctors who had examined him had not
recorded any such injuries. The Court notes that the applicant sought
judicial review of the prosecutor’s decrees, contesting on all
occasions her reasoning, and when examining the applicant’s
appeals the domestic court acceded to his arguments and rejected the
prosecutor’s conclusions as ill-founded (see paragraphs 30
and 31 above). Nevertheless, despite the court’s findings,
which clearly disproved the two basic arguments for the
discontinuation of the proceedings, the prosecutor terminated the
proceedings three more times with identical reasoning, thus rendering
the judicial review practically ineffective.
- In
the light of the aforementioned, while acknowledging the fact that
the prosecutor has a certain discretion when assessing the evidence
and deciding whether to bring an accused to trial, the Court
considers that in the particular circumstances of the instant case,
by discontinuing the criminal proceedings on four occasions with
identical reasons despite court findings which disproved the
prosecutor’s position and even explicitly stated that there was
sufficient evidence to bring the accused to trial, the prosecution
authorities failed to act diligently and also unjustifiably delayed
the proceedings.
- Furthermore,
following the District Court’s decision of 24 November
2005, which gave a two-month deadline for submitting an indictment,
the prosecution authorities were required to react promptly. Instead,
they did not resume working on the case until 10 January 2006 and
only commissioned a medical report on 17 January 2006. The report was
presented to the authorities before 2 February 2006 but despite its
findings the authorities failed to react immediately. Thus, as a
result of the procrastination of the prosecutor, the proceedings were
terminated under Article 239a of the Code of Criminal Procedure of
1974.
- In
respect of the procedure under Article 239a, the Court has already
observed that it was the only remedy which could be considered
effective (at least in some situations) in respect of complaints
about the excessive length of criminal proceedings. However, as was
pointed out by the Bulgarian Constitutional Court (see paragraph 58
above), that remedy used a formal criterion to measure “reasonable
time”, which in some cases could, contrary to the public
interest that offenders be brought to justice, result in the undue
discontinuance of criminal prosecutions (see Dimitrov and Hamanov
v. Bulgaria, nos. 48059/06 and 2708/09, § 119, 10 May
2011). In the Court’s view, that is precisely what occurred in
the instant case. The successful invocation by the accused of the
Article 239a remedy brought to an abrupt end a deficient
investigation marked by an obstinate refusal of the prosecutor to
address the concerns repeatedly expressed by the courts. The result
must be regarded as at variance with the requirements of the
respondent State’s procedural obligation under Article 3 (see,
in this connection, Beganović, cited above, §§
85-87).
- In
the light of the foregoing the Court concludes that in the present
case the authorities failed to conduct an effective investigation
into the applicant’s allegations of ill-treatment which led to
the expiration of the relevant deadline and the impossibility to
prosecute any further. Accordingly, there has been a violation of
Article 3 of the Convention in its procedural limb.
II. THE REMAINDER OF THE APPLICANT’S COMPLAINTS
- The
applicant also complained, relying on Article 6 § 1, that the
inactivity of the public prosecutor had precluded him from seeking
damages from his attackers.
- The
Court has examined this complaint as submitted by the applicant.
However, in the light of all the material in its possession, and in
so far as the matters complained of are within its competence, the
Court finds that they do not disclose any appearance of a violation
of the rights and freedoms set out in the Convention or its
Protocols.
- It
follows that this part of the application must be rejected as being
manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and
4 of the Convention.
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
applicant claimed 15,000 euros (EUR) in respect of non pecuniary
damage.
- The
Government contested this claim as unfounded and excessive.
- The
Court considers that the applicant must have suffered anxiety and
frustration as a result of the violation found. Accordingly, deciding
on an equitable basis, it awards him EUR 4,000.
B. Costs and expenses
- The applicant also claimed EUR 1,500 for costs and
expenses incurred for legal work carried out by his lawyer after the
communication of the present application to the Court. In support of
the claim he submitted a contract for legal representation,
stipulating the said amount as remuneration for the legal services
provided.
- The
Government contested this claim as unfounded and excessive.
- 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, the Court, noting that
the exact number of hours of legal work done was not indicated and
that the applicant’s lawyer did not represent him at the
initial stage of the proceedings (see, for the same approach,
Bachvarovi v. Bulgaria, no. 24186/04, § 40, 7 January
2010), considers it reasonable to award the sum of EUR 1,000 covering
costs and expenses under all heads.
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 complaint concerning the alleged
ineffectiveness of the criminal investigation into the applicant’s
ill-treatment admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
3 of the Convention under its procedural limb;
- 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, to be converted into Bulgarian levs at the rate applicable
at the date of settlement:
(i) EUR
4,000 (four thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(ii) EUR
1,000 (one thousand euros), plus any tax that may be chargeable, 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;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 10 January 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Lech Garlicki
Deputy Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Judges
Kalaydjieva and De Gaetano is annexed to this judgment.
LG
FA
JOINT SEPARATE OPINION OF JUDGES KALAYDJIEVA AND DE
GAETANO
- We
fully subscribe to the conclusion that the Bulgarian authorities
failed to meet their obligations under the procedural limb of Article
3 of the Convention. However, quite apart from considerations
relating to delay, we are of the view that the case raises serious
questions concerning another aspect of the positive obligation to
conduct “an independent official investigation...capable of
leading to the identification of those responsible with a view to
their punishment” (§ 78), which aspect has not been
adequately addressed in the present judgment.
- While
we are prepared to accept that a prosecutor must be accorded a degree
of discretion to decide whether the facts and the evidence justify a
decision to bring an alleged offender before the courts in order to
seek his punishment, we also believe that this power is based on the
premise that the discretion is exercised in good faith; and,
generally speaking, the exercise of this discretion will be
compatible with the positive obligation under Article 3 only if
accompanied by some system of appropriate checks and balances capable
of preventing abuse. Where this discretion is capable of being
exercised arbitrarily or in bad faith, as is suggested by the facts
of the instant case, the very object of the procedural requirement of
Article 3 is undermined, since the punishment component can never
materialise notwithstanding that the investigation was capable
of identifying the offender or offenders.
- The
applicant’s appeals against the successive orders for the
discontinuation of the investigation proceedings provided for a
semblance of such checks at the national level and, indeed, resulted
in four different independent judges expressing in clear terms their
concern as to the good faith of the prosecution authorities when the
latter repeatedly found the facts and evidence in the case
insufficient for the purposes of indictment. Even assuming that the
prosecutors in the present case acted in the sincere belief that
these facts and evidence did not justify a decision to indict the
suspect/s in question, we fail to see any justification for the
absence of further diligent investigation of other avenues which the
prosecution authorities might have seen as a more plausible
explanation of the origin of the applicant’s serious injuries.
In the opinion of one of the judges in the appeal proceedings, “the
prosecutor’s conclusions suggested that ... the applicant had
somehow injured himself or had been attacked by unknown
individuals...[H]aving regard to the time and location of the
incident as suggested by the prosecutor, namely while the applicant
was retuning home, it was very unlikely that this would have gone
unnoticed.”
- The
questionable good faith with which the investigation proceedings were
repeatedly discontinued also raised a sufficient degree of concern
with the higher prosecution authorities which led them to consider
the possibility of disciplinary measures against the responsible
prosecutors. We see no reason not to share their concerns. However,
such concerns were clearly insufficient to either bring the
identified suspects before the courts, or to trigger any further
investigation to ascertain other circumstances or perpetrators.
- In
the instant case the situation amounted to de facto tolerance
by the authorities towards violence causing suffering beyond the
threshold of Article 3, which cannot but undermine public confidence
in the principle of lawfulness and maintenance of the rule of law. We
regret that the present judgment fails to examine the
extent to which the demonstrated arbitrary exercise of prosecutorial
discretion contributed to the respondent Government’s failure
to meet the obligations under Article 3. Unaccountable discretion
renders meaningless the positive obligation to conduct an
investigation capable of leading to punishment and, in practice,
relegates the victim to the position obtaining before the development
of the positive obligation doctrine in the context of Articles 2 and
3.
