BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FOURTH
SECTION
DECISION
Application no.
9548/07
Patka Georgieva ILIEVA and Petya Silvestrova
GEORGIEVA
against Bulgaria
The
European Court of Human Rights (Fourth Section), sitting on 17 April
2012 as a Chamber composed of:
Lech
Garlicki,
President,
David
Thór Björgvinsson,
Päivi
Hirvelä,
George
Nicolaou,
Ledi
Bianku,
Zdravka
Kalaydjieva,
Vincent
A. De Gaetano,
judges,
and Fatoş Aracı, Deputy
Section Registrar,
Having
regard to the above application lodged on 5 December 2006,
Having
regard to the observations submitted by the respondent Government and
the observations in reply submitted by the applicants,
Having
deliberated, decides as follows:
THE FACTS
- The
applicants, Ms Patka Georgieva Ilieva and her daughter, Ms Petya
Silvestrova Georgieva, are Bulgarian nationals who were born in 1950
and 1969 respectively and live in Trastenik. The respondent
Government were represented by Mrs M. Dimova, of the Ministry of
Justice.
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
- The applicants lived together next door to the first
applicant’s brother, G.M. G.M. lived with his wife T.M. and
their son S.M. The first applicant’s mother, an elderly woman,
used to live with G.M., but following a dispute with him moved in
with the first applicant and her daughters.
- The first applicant and G.M. had also had a
long-running dispute. The move of their mother exacerbated the rift
between the neighbours. It appears that their ongoing conflict
prompted the police to warn them several times not to harass each
other or their families. On various occasions the applicants and G.M.
lodged actions and complaints with the competent authorities,
alleging harassment and unlawful conduct.
- On 28 July 2002 the first applicant and her other
daughter argued with G.M. over the presence of a brick wall between
the two yards. The tension escalated and someone called the police.
There is contradictory information regarding the incident but, in any
event, the police officers warned G.M. not to physically or
psychologically harass the applicants.
- At about 7.30 a.m. the next day, 29 July 2002, the
applicants, the first applicant’s other daughter and two
grandchildren, who were minors, were walking past G.M.’s house,
heading towards the children’s school. The first applicant’s
mother was standing at the front door of their house.
- There is conflicting evidence about the events which
followed. During the ensuing investigation, the applicants claimed
that when G.M. noticed them walking down the street, he started
throwing stones at them. According to the applicants he was still
feeling angry about the incident of the day before. Despite the
provocation, the applicants simply told him to stop and continued
walking. According to the applicants, G.M. and T.M. took advantage of
the fact that the applicants were leaving and started verbally
abusing G.M.’s mother. The latter began calling for help.
- G.M. and T.M. contested this account of the events and
maintained that the argument had started when, while having their
morning coffee, they heard the mother murmuring obscenities at G.M.
and were drawn into an argument with her. In their view, at that
point the elderly woman started complaining loudly of harassment.
- It appears that when they heard the elderly woman’s
cries, the first applicant and her daughters rushed back and engaged
in a physical fight with T.M. G.M. got involved and started hitting
the applicants, according to them with something resembling a hoe.
The first applicant allegedly started exerting pressure on his
testicles. Having heard the commotion, S.M. ran out of the house and
joined in the fight, hitting the applicants with a stick. In their
statements during the investigation the applicants claimed that G.M.,
T.M. and S.M. also shouted obscenities at them.
- The fight apparently did not last a long time. Shortly
after it was over the applicants made a complaint at the police
station and visited a doctor. The doctor noted in his report that the
first applicant had sustained the following injuries: a wound of 5 by
15 mm with uneven sores around the edges on the left side of the back
of her head; swelling, a bruise and a small wound of 5 by 7 mm in the
left corner of her mouth; a bruise of 40 by 80 mm on the back of
her left forearm; a welt across the buttocks of 100 by 250 mm; and
abrasions on both knees. The second applicant had swelling and a
bruise of 8 by
10 mm with a ruptured mucous membrane on the inside of
her left cheek.
- On the same day the applicants filed a complaint with
the Pleven district prosecutor. On 10 October 2002 the police warned
G.M., T.M. and S.M., in writing, not to physically and
psychologically harass the applicants.
- It appears from the applicants’ submissions that
by a decree of an unspecified date the district prosecutor refused to
open criminal proceedings on the ground that the actions complained
of constituted minor bodily harm and proceedings were to be taken on
the basis of a private criminal complaint lodged with the court.
- Following that, on 8 November 2002 the applicants
brought a private criminal complaint before the Pleven District Court
against G.M., T.M. and S.M for inflicting minor bodily harm and
insulting them in public.
- At a hearing on 20 November 2003 the court accepted
for examination the applicants’ civil claims together with
their private criminal complaint.
- Between 20 November 2003 and 16 June 2005 the court
held several hearings and heard a number of witnesses.
- In a decision of 16 June 2005 the court discontinued
the proceedings and transferred the case to the prosecutor on the
ground that the actions complained of constituted hooliganism, a
crime which was subject to public prosecution. The parties did not
appeal against the decision.
- The
prosecutor examined the case file in the light of the court’s
findings that the legal characterisation of the offence was
hooliganism. By a decree of 7 July 2005 he refused to open
criminal proceedings against G.M., T.M. and S.M., stating once again
that the criminal characterisation of the actions complained of was
minor bodily harm, to be prosecuted by means of a private criminal
complaint.
- The
applicants learned about the prosecutor’s decree of 7 July 2005
on an unspecified date. It appears that the first applicant’s
appeal against the decree resulted in the case being remitted to the
district prosecutor with instructions. However, the applicants failed
to submit any information about the reasons for the remittal or about
any subsequent actions of the district prosecutor.
- Meanwhile, the prosecutor sent his decree of 7 July
2005 to the Pleven District Court. By a judicial order of 13 July
2005 the judge rapporteur who had previously been in charge of the
case withdrew and, on the same date, another judge was appointed.
- On 21 April 2006 the court held a hearing but decided
to discontinue the examination of the case against G.M., T.M. and
S.M., noting that the court’s decision of 16 June 2005 had
become final and put an end to the criminal proceedings against G.M.,
T.M. and S.M. The court further noted that in view of the
discontinuance of the proceedings by a final act, the steps
undertaken by the court, namely the withdrawal of the previous judge
rapporteur and the appointment of a new one, were irrelevant. In view
of this, it also stated that its findings were not subject to appeal.
- Nevertheless, the applicants challenged the court’s
decision. In a decision of 12 July 2006 the Pleven Regional
Court upheld the District Court’s findings, in particular its
conclusion that the court’s decision of 16 June 2005 had
put an end to the criminal proceedings against G.M., T.M. and S.M.
- On
an unspecified date, but apparently before 12 July 2006, the first
applicant sent another complaint concerning the same matter to the
Pleven District Court, which transferred it to the district
prosecutor. On 9 October 2006, the district prosecutor refused to
open criminal proceedings. The prosecutor stated that at the time the
applicants submitted their complaint to the District Court, criminal
proceedings had been pending before the District Court on the same
facts, which prevented the institution of criminal proceedings by a
public prosecutor. It appears that the decree became final shortly
thereafter.
COMPLAINTS
- Relying
on Articles 3, 8 and 13 of the Convention, the applicants complained
that the authorities had failed to prosecute diligently individuals
who had assaulted them. They complained, in particular, that the
judicial proceedings had been unfair and had been discontinued and by
changing the legal characterisation of the offence on several
occasions, the authorities had acted in an unfair manner.
THE LAW
- The
Court considers that the applicants’ complaints fall to be
examined under Articles 3 and 8 of the Convention, which provide, in
so far as relevant:
Article 3
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
Article 8
“1. Everyone has the right to respect
for his private ... life...”
- The
applicants complained that the criminal proceedings against G.M., T.M
and S.M had failed to provide effective protection in respect of the
ill-treatment to which they were subjected. The respondent Government
submitted that the ill-treatment complained of did not reach the
level of severity required by Article 3. They also stated that, in
any event, the applicants could have brought a civil claim before the
civil courts seeking compensation for the alleged damage.
- The
Court notes at the outset that while the Convention does not
guarantee as such a right to have criminal proceedings against third
persons or to have such persons convicted, 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). Positive obligations on the State are also
inherent in the right to effective respect for private life under
Article 8 and they may involve the adoption of measures even in the
sphere of the relations of individuals between themselves. In cases
of serious ill treatment, the State’s positive obligations
under Article 3 entail enacting criminal law provisions and
applying them in practice through effective investigation and
prosecution (see, in this connection, Nikolay Dimitrov v.
Bulgaria, no. 72663/01, §§ 66-68, 27 September
2007 and M.C. v. Bulgaria, no. 39272/98, §§ 150-153,
ECHR 2003-XII).
- The
Court observes, however, that 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 level depends on all the
circumstances of the case. Factors such as the nature and context of
the treatment, the manner and method of its execution, its duration,
its physical and mental effects and, in some instances, the sex, age
and state of health of the victim must all be taken into account
(see, among other authorities, Costello Roberts v. the United
Kingdom, 25 March 1993, § 30, Series A no. 247-C).
28. Where
an individual raises an arguable claim of ill-treatment contrary to
Article 3, including of ill-treatment administered by private
individuals, that provision gives rise to a procedural obligation to
conduct an official investigation (see Šečić,
cited above, § 53; Nikolay Dimitrov, cited above, §
67). The investigation must be capable of leading to the
identification of those responsible with a view to their punishment.
- The Court notes that in the previous cases where the
Court has found that the State’s positive obligations under
Article 3 were engaged in relations between private individuals
serious instances of ill-treatment were at issue: beating
of a child with a garden cane applied with considerable force
on more than one occasion (see A. v. the United Kingdom,
23 September 1998, § 21, Reports of Judgments and
Decisions 1998-VI); very serious neglect and abuse of children
for a number of years (see Z and Others v. the
United Kingdom [GC], no. 29392/95, §§ 11-36, 40 and
74, ECHR 2001-V); extremely serious sexual and physical abuse over a
long period of time (see E. and Others v. the United Kingdom,
no. 33218/96, §§ 43 and 89, 26 November 2002);
multiple rape (see M.C. v. Bulgaria, cited
above, §§ 16-21, 30 and 153); beating all over the body
with wooden planks, leading to multiple rib fractures
(see Šečić, cited above, § 8,
11 and 51); and anal fissure caused by several attackers in highly
intimidating circumstances (see Nikolay Dimitrov, cited above,
§§ 9 and 70).
- In
contrast to the above cases, the Court observes in the present case
that the injuries inflicted upon the applicants, while wilful, were
not very serious (see, for the same approach, Tonchev v. Bulgaria,
no. 18527/02, § 39, 19 November 2009). The first applicant
had two small wounds, swelling, two bruises, a welt across the
buttocks, and abrasions on both knees. The second applicant had
swelling and a bruise. Also, the injuries were inflicted during a
brawl which broke out in the context of an ongoing family dispute in
which the applicants apparently participated actively or at the least
behaved in a threatening and aggressive manner
(see Kulakov v. Ukraine (dec.) no. 12944/02, 16
November 2010). In these circumstances the
Court is not persuaded that the applicants had an arguable claim of
ill-treatment contrary to Article 3, capable of triggering the
State’s procedural obligation to conduct an official
investigation. In respect of the domestic court’s finding that
the treatment complained of stemmed from an act of hooliganism (see
paragraph 16 above), the Court is of the view that that finding in
itself does not raise an issue under Article 3. Lastly, the Court
cannot overlook the fact that at the time of the events the
applicants had the possibility to file a claim before the civil
courts, seeking compensation for the alleged damage.
- The
Court likewise considers that the treatment complained of did not
entail such adverse effects for the physical or moral integrity of
the applicants as to give rise to the State’s positive
obligations under Article 8 (see Tonchev, cited above, §
41, and mutatis mutandis, Costello-Roberts, cited
above, § 36).
32. In the light of the above considerations, the
Court considers that the complaints are manifestly ill-founded and
must be rejected in accordance with Article 35 §§ 3 (a) and
4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Fatoş Aracı Lech
Garlicki
Deputy Registrar President
