FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 38361/97 
by Assya ANGUELOVA 
against Bulgaria

The European Court of Human Rights (Fourth Section), sitting on 6 June 2000 as a Chamber composed of

Mr G. Ress, President
 Mr I. Cabral Barreto, 
 Mr V. Butkevych, 
 Mrs N. Vajić, 
 Mr J. Hedigan, 
 Mr M. Pellonpää, 
 Mrs S. Botoucharova, judges,

and Mr V. Berger, Section Registrar,

Having regard to the above application introduced with the European Commission of Human Rights on 20 September 1997 and registered on 30 October 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

 

THE FACTS

The applicant is a Bulgarian national, born in 1959 and living in Razgrad.

She is represented before the Court by Mr Yonko Grozev, a lawyer practising in Sofia.

A. Particular circumstances of the case

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

On 29 January 1996 the applicant’s son, Anguel Zabchekov, aged 17, died after having spent several hours in police custody in Razgrad following his arrest for attempted theft. The ensuing investigations conducted by the prosecution authorities ended with the conclusion that the death must have been caused by an accidental injury which pre-dated Mr Zabchekov’s arrest. The applicant contests this conclusion.

1. Evidence in respect of Mr Zabchekov’s personal circumstances

Mr Zabchekov was illiterate and did not attend school at the relevant time. He had four siblings. His parents were unemployed.

Mr Zabchekov had a record at the Juvenile Offenders Pedagogic Centre (Детска педагогическа стая) and at the police in Razgrad on account of alleged numerous thefts.

A note dated 3 July 1995, issued by the Juvenile Centre and addressed to the police in Razgrad, stated that Mr Zabchekov, who at that time was 16 years old, had a speech defect and was mentally retarded and that, according to his mother(the applicant), was mentally ill. Another note, dated 18 November 1995, reiterated these findings, and added that Mr Zabchekov’s mother demonstrated a tendency to exculpate her son.

On 7 November 1995 the applicant was questioned by an investigator (следовател) in Razgrad in the framework of a criminal investigation into thefts allegedly committed by her son. She stated, inter alia, that her son had always been stammering. He had been ill since the age of three. In particular he had moments when he could not breath and his skin was becoming bluish. Also, his eyes were often swollen and he was fainting in moments of sudden fear. She further explained that Mr Zabchekov had been seen by doctors who had stated that he had problems with his vertebral column. The applicant further mentioned the name of a Dr Miceva who had all documents concerning Mr Zabchekov’s examinations.

On 14 December 1995 Mr Zabchikov was questioned in the framework of criminal proceedings concerning thefts. Asked about his health he stated that he was susceptible to him to faint and to have pain in his head and eyes. On 4 January 1996 an investigator from the District Investigation Service (районна следствена служба) in Razgrad opened criminal proceedings against Mr Zabchekov and other persons on charges of theft. On 15 January 1996 Mr Zabchekov was questioned. He stated, inter alia, that he has been treated by Dr Miceva, a psychiatrist, and that he was taking medicines. Mr Zabchekov’s lawyer requested a psychiatric examination. Mr Zabchekov was invited to an examination scheduled for 30 January 1996.

2. Evidence about the whereabouts of Mr Zabchekov on 28 January 1996

According to the testimony of several witnesses Mr Zabchekov spent part of the day on 28 January 1996 doing some physical work for a neighbour and received in exchange food and a bottle of wine. In the evening he was home a while and then went out with his sister, her boyfriend and a Mr M., another friend of his. He then spent most of the evening in their company at a local bar. He consumed alcohol. At about 10.30 p.m. or 11.30 p.m. Mr Zabchekov’s sister and her boyfriend left the bar, leaving him there with Mr M. The bar closed shortly thereafter. Mr M. testified that he had then left the bar with Mr Zabchekov and that they had parted at the door, Mr M. returning home. All witnesses who have been questioned in respect of those events, the owner of the bar, the person for whom Mr Zabchekov worked that day, his sister and her boyfriend, and Mr Zabchekov’s father, who was at home when his son dropped in on his way to the bar, were unanimous that he had been in good health, that he had no visible injuries on his body, that he had not been involved in any quarrel or fight, and that he had consumed alcohol.

3. The chase on Beli Lom Street and Mr Zabchekov’s apprehension

At about midnight or 0.15 a.m. on 29 January 1996 a Ms I.A.,, who was living in an apartment block at Beli Lom Street, noticed from her balcony a man on a parking lot in front of the building. The man was hanging around the parked cars, bending and “doing something”. Having noticed that the presumed thief, who was later identified as Mr Zabchekov, had approached the car of one of her neighbours, Ms. I.A. telephoned the owner of the car, Ms I.M. The two women then continued observing from their balconies and shouted at Mr Zabchekov to ask him what he was doing. At that moment sergeant Mutafov (“C”), a police officer who was not on duty that day, and a young man (“D”), both of them also living in the same apartment building, were passing on the street. They were alerted by their neighbours. Mr Zabchekov then attempted to run away, and C. ran after him.

It transpires from the testimony of the witnesses that until the moment when Mr Zabchekov and C., who was chasing him, turned around the corner of the building, they could be seen by D., who remained on the street in front of the building, and by the two persons who watched from their balconies overlooking the street. The chase apparently continued for a minute or two. Then D. and his two neighbours saw C. appearing from around the corner, holding Mr Zabchekov and leading him back to the entrance of the building. The witnesses indicated that there was snow on the ground.

C. testified later that when he was running Mr Zabchekov had slipped and fallen down at the corner of the building, stood up and ran quickly again. This was confirmed by Ms I.A. and Ms I.M., the two persons who had been watching from their balconies. They clarified that Mr Zabchekov had fallen at the corner, on a patch covered by grass. D., who remained on the street and also observed the scene, stated that the first falling of Mr Zabchekov which he had seen had been after his apprehension. He maintained this testimony at a confrontation with the other witnesses.

C. was the only witness of the events between the moment when Mr Zabchekov and he had turned around the corner and the moment when they had reappeared in front of the building at Beli Lom Street. C. stated that Mr Zabchekov had slipped and fallen down for a second time several meters after the corner of the building. C. maintained that at that time he had been at a distance of about ten meters behind Mr Zabchekov. C. further stated that Mr Zabchekov had slipped and fallen for a third time when he had reached another apartment building. As a result C. could approach closely and, at a moment when Mr Zabchekov was apparently again on his feet and running, C. tripped him, Mr Zabchekov fell on the ground and C. pounced on him. C. then pulled Mr Zabchikov to stand up, held him by the arm and led him back. Asked to specify on what part of his body was Mr Zabchekov falling, C. testified that he had been falling on his face. C. could not remember whether Mr Zabchekov had succeeded to protect his face with his hands. C. also stated that he had had difficulties to apprehend Mr Zabchekov because of an injury in his right leg, and also because his shoe laces had been untied.

Sergeant Dimitrov (“G.”), one of the police officers who arrived later, testified as follows: “When we arrived on the spot [C.] told us that while he had been trying to arrest Mr Zabchekov the latter had been running and falling two to three times and, had he not been falling, C. would not have been able to catch up with him.”

4. Events between Mr Zabchekov’s apprehension and the arrival of the police

The witnesses were unanimous that when C. had been leading Mr Zabchekov back to the entrance of the apartment building, the latter had slipped and fallen. There were discrepancies as to how precisely that had happened. Ms I.M., who observed the scene from her balcony, stated that when C. and Mr Zabchekov had reappeared from behind the corner of the building, the latter had slipped, fallen and rolled. D. stated, however, that Mr Zabchekov had slipped on his leg and had fallen on his buttocks. C. maintained that Mr Zabchekov had in fact only slipped but had not fallen, as he had been holding him.

C. stated in his testimony that he had not hit Mr Zabchekov and had not seen anyone hitting him. The same was confirmed by Ms I.A. and Ms I.M.. The latter, who was also the owner of one of the cars in the parking, clarified that she had indeed seen Mr Zabchekov rolling on the ground when C. was leading him after the chase, but that she had not seen anyone kicking him or beating him. She added that she had not heard Mr Zabchekov groaning. From her balcony she had heard him saying: “Please release me, I am drunk.” D.’s testimony did not mention anything on the question whether he had seen anyone hitting Mr Zabchekov.

C. also stated that when he had been in close contact with Mr Zabchekov after his apprehension he had not noticed any trace of blood or grazing on his face. C. specified that Mr Zabchekov’s hair had covered part of his forehead and that the colour of his face had been dark. D. stated that he had not noticed any blood or grazing on Mr Zabchekov’s face. He added that the latter smelled alcohol and lisped something to himself.

Having apprehended Mr Zabchekov, C. asked Ms I.M. to call the police which she did at about 0.20 a.m. She then remained inside her apartment and did not witness the events thereafter.

C., D. and Mr Zabchekov stayed in the entrance of the apartment building and waited for the coming of the police. None of the testimonies indicates what happened in the interval between the moment when C., D. and Mr Zabchekov came to the entrance of the apartment building and the arrival of the police. It appears that they were waiting for about 10 minutes.  
According to the witnesses, the police arrived “after a while, quite shortly”. It also appears that Ms I.A., who stayed on her balcony, did not have a view of the entrance to the building where C., D. and Mr Zabchekov had been waiting.

The testimony of the four witnesses contains few details as to whether there had been some verbal communication between Mr Zabchekov and any of them before the arrival of the police. Some of the witnesses stated that Mr Zabchekov had been lisping something hardly understandable. According to Ms I.M., who observed from her balcony, Mr Zabchekov repeated several times that he was drunk. Ms I.A., Ms. I.M. and C. stated that when Mr Zabchekov had fallen on the ground after his apprehension C. had told him: “Get up, I won’t drag you.” D. stated that he had not heard such words having been pronounced. None of the testimonies indicates whether C. or D. spoke with Mr Zabchekov during the time when they were alone with him at the entrance of the apartment building.

In his testimony given on 29 January 1996, C. stated that after the departure of the police together with Mr Zabchekov he had found a wrench on the spot where D., Mr Zabchekov and himself had been waiting for the arrival of the police. C. considered that it had belonged to Mr Zabchekov as it was of the size appropriate for removing a car battery. C. stated in his testimony that he had kept the wrench and had submitted it to the investigator in the morning of 29 January 1996 when he had been called to report to the police station, after the death of Mr Zabchekov. However, in his testimony taken on 31 January 1996 sergeant Atanassov (“H”), who was on duty at the police station when Mr Zabchekov was brought there, stated that he had noticed the wrench on a desk at the police station not later than 1.30 a.m., shortly after the arrival of Mr Zabchekov at the police station. At a confrontation with the other police officers which took place on 26 April 1996, H. recalled that in fact he had seen the wrench in the morning, after its submission by C.

5. The arrival of the police at Beli Lom Street

Upon the telephone call received at the local police station a patrol car with two police officers, sergeants Penchev (“A”) and Kolev (“B”), was immediately dispatched to the address. When they arrived they saw C. and Mr Zabchekov at the entrance of the apartment block. D. was also standing around.

A. recognised Mr Zabchekov, whom he knew as a suspect in several pending theft investigations, and addressed him by name. He handcuffed him. According to his testimony and the testimony of some of the other police officers, A. warned the others to be careful with Mr Zabchekov as the latter had “an illness related to his head”.

Another police car, with three police officers, sergeants Ignatov (“E”), Georgiev (“F”) and Dimitrov (“G”), arrived shortly thereafter. The officers then proceeded to a search in the area for evidence of Mr Zabchekov’s attempt to break into cars. At some point A. led Mr Zabchekov to one of the cars which appeared to have been opened and asked him whether he had been trying to steal. Mr Zabchekov allegedly denied this. He was then handcuffed to a small tree, whereupon the police officers continued to search the area. Having identified two cars which had been opened, the police officers rang at the door bell of their owners. One of the owners was not found. The owner of a car with license plate 1117 came out and went to see the damage done to his car. At that time Mr Zabchekov remained handcuffed to the tree.

The witnesses who gave details about the events between the arrival of the police and their departure with Mr Zabchekov were only the police officers on duty. Ms. I.A., and D. only stated that the police officers had searched the area. C. stated that he had gone to alert the owners of the cars. He had only seen that at a certain point Mr Zabchekov had been with the police officers at the parking lot, where his colleagues had been comparing the soles of Mr Zabchekov’s shoes with traces visible on the snow. The owner of the car with license plate 1117 was questioned by the police officer who visited the site at about 11 a.m. on 29 January 1996 (see below), but only in respect of the damage caused to his car. He was never asked whether he had seen Mr Zabchekov.

According to some of the police officers, at a certain point, when they were searching the area, they noticed Mr Zabchekov lying or sitting on the ground. A. stated that thereupon he had released Mr Zabchekov from the tree, seated him on the back seat of the police car and handcuffed both his hands. All police officers who were present at Beli Lom Street stated that at that time they had not noticed any trace of injury on Mr Zabchekov’s face. Some of them stated that he had been apparently drunk, and that he had been lisping and had not been communicative.

6. Events after Mr Zabchekov’s arrival at the police station

At about 0.50 a.m. Mr Zabchekov was taken to the police station by A. and B.

The sergeant on duty, H., testified that he had seen A. and B. entering, Mr Zabchekov walking between them. The latter’s hands were handcuffed behind his back. A. and B. were holding him by the arms and leading him in. Mr Zabchekov was put in room no. 1 at the police station and his hands released from the handcuffs. He was not handcuffed again at any later moment.

A written order for Mr Zabchekov’s detention was not issued.

According to the testimony of A., B. and H., Mr Zabchekov stayed in the room with B. and H., while A. went to report to the officer on duty, colonel Iordanov (“I.”). H. further testified that at that moment he had noticed a bruise on Mr Zabchekov’s eyebrow. A. and B. did not mention any injury. H. also stated that Mr Zabchekov’s clothes were wet. None of the police officers mentioned in his testimony whether they had noticed that Mr Zabchekov’s wrists had been injured. They all noticed that Mr Zabchekov was drunk and was lisping.

Colonel I. testified that A. had reported to him the bringing of Mr Zabchekov to the police station and had said that the arrested person had been identified, but had been too drunk for questioning. Colonel I. did not see Mr Zabchekov until about 4.30 a.m. According to the testimony of the police sergeants, colonel I. ordered that Mr Zabchekov be seated in the hall-way and be left to sober up. A. then instructed H. to call over the radio whenever Mr Zabchekov would be able to communicate. According to all witnesses A. and B. left the police station and returned to their patrol duties. The exact time of their leaving the police station was not mentioned in their testimony.

H. testified that Mr Zabchekov had fallen asleep soon thereafter, on a chair in the hall-way. He had been snoring. At about 3.00 a.m. H. noticed that Mr Zabchekov was lying on the floor and sleeping. H. woke him up and seated him back on the chair, considering that he could catch a cold. H. further testified that at about 3.50 a.m. he had again gone to see Mr Zabchekov who had been sitting on the chair, sleeping and shivering. H. decided to move him back to room no. 1 where it was warmer. He woke him up and helped him enter the room. Mr Zabchekov was seated again but shortly thereafter slipped from the chair. H. noticed that he was breathing heavily. H. stated that he had thereupon contacted sergeant Dontchev (“J.”), and had told him “to call sergeant [A.] or an ambulance”.

J. testified that, in accordance with the duty schedule, he had slept at the premises of the police station until 2 a.m. on 29 January 1996 when he had been awakened for duty. At that time he had not been informed that there had been a person in detention. The testimony of J. did not mention whether between 2 a.m. and 3.50 a.m. he had passed through the hallway of the police station where at that time, according to H., Mr Zabchekov had been sleeping on a chair. J. testified that it had not been before 3.50 a.m., when H. had reported that Mr Zabchekov had been displaying signs of deteriorating health, that J. had become aware of the latter’s presence. J. also testified that he had then noticed injuries on Mr Zabchekov’s forehead. J. had then called A. and B. by radio.

Approximately at the same time H. or J. alerted colonel I., the officer on duty, who then went to see Mr Zabchekov. I. testified that at that moment he had noticed injuries on the latter’s face.

A. and B. testified that at 4.30 a.m. they had been contacted by radio and had been told that Mr Zabchekov’s condition had rapidly deteriorated. Arriving at the police station the sergeants saw Mr Zabchekov lying on the ground, breathing heavily. B. then drove to the hospital and returned together with an ambulance and with Dr Mihailov, the paediatrician on duty.

Dr Mihailov later testified that about 5 a.m. the hospital employee in charge of emergency calls had requested him to go to the police station “for a 15 year old boy”. Dr Mihailov clarified that he had seen that employee conversing with the police officers. He also recalled that he had not been given any prior information about the boy’s condition. The ambulance with Dr Mihailov arrived at the police station, followed by the police car. Dr Mihailov examined Mr Zabchekov and advised that he should be taken to the hospital as he had a low pulse. Mr Zabchekov was driven to the hospital in the ambulance, A. and B. following in their police car. Upon their arrival at the hospital A. and B. helped move Mr Zabchekov out of the ambulance to the hall way in front of the office of the physician on duty. According to the testimony of A. and B. when later Mr Zabchekov was examined by Dr Ivanova, the internist on duty, there followed a heated discussion between her and Dr Mihailov. The police officers were then informed that Mr Zabchekov had died. B. testified that Dr Ivanova had told him and his colleague that they “had known the condition of Mr Zabchekov and that she had not seen him breathing”.

Dr Mihailov testified that in the police station he had noticed bruises on Mr Zabchekov’s chest. At that time Mr Zabchekov had been unconscious and with a weak pulse. According to Dr Mihailov’s testimony, he had asked the police officers about the time since when the boy had been in such a condition to which the police officers had replied that “he [had been] brought to the police in such a condition”.

Dr Ivanova testified that at about 5 a.m. she had been asked by Dr Mihailov to verify whether a patient who had been brought to the hospital had died. Having found that no cardiac activity was noticeable she attempted cardiac massage, but to no avail. She further testified that, in reply to her query why Dr Mihailov, and not her, the internist on duty, had been dispatched to the police station, the hospital employee in charge of emergency calls had answered that the request for an ambulance had been stated to concern a child, which had prompted the decision to send the paediatrician on duty.

7. The register of the Razgrad police station

According to the normal practice each detention is recorded in a register maintained at the police station. The register contains a series of entries organised in four columns: the number assigned to the detainee, the name of the officer entering information into the register, the name of the detainee, the reasons for detention, the action taken and the time of release. Information corresponding to each detainee is entered in chronological sequence, at the time of initial detention.

Upon the Court’s request the Government submitted a copy of the register of the Razgrad police station for 29 January 1996. It does not contain an entry for the detention of Mr Zabchekov. However, the register contains an entry for an “unidentified person” who was assigned number “72.”

The register form does not contain a separate column for the hour of detention. In respect of some of the detainees listed on the same page of the register the hour of detention is mentioned together with the date of detention. In respect of the “unidentified person”, as well as in respect of some of the other detainees mentioned on the same page, there is no mention of the hour of detention in the column indicating the date of detention. However, immediately after the words “unidentified person”, there appears, spread onto two columns and two lines, the text “29 I 96, 01.°°. A visual examination of the copy of the register shows that there had initially been written “0.3°°” or “5.°°”, but that the figure “1” had then been written over the figure “3” or “5”.

It can be also observed that the registration numbers on the same page have been over-written. From the copy provided by the Government it is difficult to see what were the figures which had been overwritten. Nevertheless, it is clearly seen that an equal empty space separates each of the entries except the numbers “72” and “73,” between which there is a significantly smaller empty space.

The applicant submits that when her lawyer inspected the file he found that the hand-written entry for “70” had been over-written as “69”. Similarly the hand-written entry for “71” had been over-written as “70”, and a previous number “72” had been over-written as “71”. According to the applicant the only number on the page that had not been re-written was 72, which appears on the same line as the words “unidentified person.” It is clear, in the applicant’s view, that the entry for Mr Zabchekov, the “unidentified person”, under number 72, was inserted only after the entire page had been completed, in a subsequent effort to register a detention which had not been registered in the normal course.

The entry under number 72 for the detention of an unidentified person states that that person was brought to the police station by A. At the right hand end of the same line there appears a signature which, as far as it is legible, appears to be that of colonel I.

 

 In the course of the investigation colonel I., the officer on duty, and J., the sergeant who was assistant to the officer on duty that night, were asked questions in relation to the registration of Mr Zabchekov’s presence at the police station. According to the testimony of colonel I., he did not instruct A. to register the detainee since A. knew the procedure. J. testified that shortly after 3.50 a.m., when he had been alerted by H. about the deteriorating health of Mr Zabchekov, he had checked the register of detained persons, but there had not been any entry concerning Mr Zabchekov.

8. Investigation by the general prosecution and investigation authorities

Early in the morning of 29 January 1996 the police officers involved submitted in writing to the director of the local police their account of the events of the night. On 30 January 1996 the latter opened police file ZM-I no. 128/30.1.96 which contains a recital of the events, reports of seven police officers and the written testimony of D. and one of the owners of the cars from which Mr Zabchekov had allegedly tried to steal.

Also early in the morning on 29 January 1996 investigator Neshev of the Regional Investigation Service (Окръжна следствена служба) in Razgrad opened criminal proceedings under file no. 13/1996 to investigate the death of Mr Zabchekov.

According to the applicant, at 8 a.m. on the same day investigator Neshev accompanied by two uniformed police officers visited the house of the applicant’s family to inform them of Mr Zabchekov’s death. They spoke to the boy’s stepfather. According to the applicant the investigator stated that during the night Mr Zabchekov had tried to break into two cars, that the police had chased him, and that, during the chase, Mr Zabchekov had fallen down and had hit his head against the asphalt.

On 29 January 1996 investigator Neshev questioned the police officers involved and D., the young man who had been with sergeant Mutafov during the chase on Beli Lom Street. The investigator also visited the hospital and saw the body of Mr Zabchekov. Pictures of the body were taken.

On 29 January 1996 at about 11.45 a.m. a police officer visited Beli Lom Street in connection with the reported car theft attempt. He noted that two cars bore signs of a theft attempt, questioned the owners of the cars. At about 5 p.m., this time apparently acting in connection with the investigation into the death of Mr Zabchekov, he took a sample from a large red spot on the snow. The laboratory analysis revealed that it was animal blood.

It appears that the investigator never attempted to identify the tree to which Mr Zabchekov had been handcuffed and where he had been lying on the ground.

On 29 January 1996 investigator Neshev ordered an autopsy. He put the following questions to the medical experts:

“What were the causes of Zabchekov’s death? Were there any traumatic injuries on the body of Zabchekov?  Did they have causal relation to the death? How were the injuries inflicted? How long was the period of time between the infliction of the lethal injury and the death and was it possible, as witnesses claimed, that  

Zabchekov was conscious until 4.30 a.m.? Was the lethal injury related to injuries at places where the skin was broken? Were there other visible injuries and did they require, in view of their visible characteristics, immediate medical treatment?”

The autopsy was carried out on 29 January 1996 (commencing at 11.30 a.m.) by three medical doctors at the Regional Hospital in Razgrad. These were Dr Minchev, head of forensic department, Dr Militerov, PhD, head of pathology department, and Dr Marinov, medical doctor at the forensic department. In their report, dated 29 January 1996 the experts found the following injuries:

“[1.] Skull and cerebral trauma: Superficial lacerated contusion (a deep bruise) located at the outer side of the left eyebrow along its orbital rim; haematomas in the skin and the soft tissues around this wound and on the eyelids of the left eye; fracture of the back wall of the left ‘eye bone’ reaching its lower external side, with a bow-like fissure under the external injury described above; epidural haematoma on the left side (haemorrhage between the brain and the skull bones – 110 ml; epidural oedema … [identified as the cause of the death].

[2.] Haematoma in the skin, characteristically spotted, and haematoma in the soft tissues on the right side of the chest, along the frontal armpit line.

[3.] Surface skin grazes on the right side of the forehead and on the upper surface of the left wrist with a limited haematoma in the soft tissues under the skin.

[4.] Haematoma of an oval shape and diameter of 0,5 cm on the mucous membrane of the left lower lip.

[5.] Two strip-like surface bruises on the skin with characteristic shape, and haematoma in the soft inside tissues, in the area of the wrist joint of the right hand.”

The experts further concluded:

“[The death was caused by] accumulated epidural cerebral haematoma on the left side, at the forehead level, containing 110 millilitres of blood, followed by a cerebral oedema, with wedging of the cerebellum tonsils into the great foramen; this oedema has caused the suppression and breaking-off of vital brain centres (those of breathing and heart activity, which in turn caused a pulmonary oedema), being the direct cause of the death.”

Addressing the question of the manner in which all injuries have been inflicted, the experts stated:

“1. The injury in the area of the left orbital rim and the left eye-ball and the epidural haematoma was caused by a blow by, or against, a blunt object, or an object with a blunt edge, [which had] a delineated [limited] and uneven surface. The blow was abrupt and sufficiently strong. It caused the fracture of the back wall of the left ‘eye bone’ in its lower outside part (furthermore, the skull bones are 0.2 cm thick);

 

 2.[The injury on the right side of the chest was caused by] a blow by, or against, a hard blunt object, or an object with a blunt edge, having a larger impact surface. The trace in this area is characteristically spotted, as a negative print of the victim’s clothes.

3.[The injuries on the right side of the forehead and on the wrists were the result of] blows, or pressing, by/against hard edgy objects. [The injury on the left part of the lower lip was caused by] a blow by/against hard blunt object having a delineated [limited] surface.”

The experts also stated that in cases of epidural haematoma of the kind Mr Zabchekov had suffered there was a characteristic lucid interval of 4 to 6 hours during which no visible signs would be displayed, except that

“the victim gradually becomes feeble, apathetic and sleepy, after which he falls into coma and dies - as it happened in the present case (during the period of time between 1.00 a.m. and 5.00 a.m. on 29 January 1996).”

The report concluded that Mr Zabchekov’s death had been inevitable in the absence of an urgent surgical intervention.

The experts did not state their opinion on the question how visible was the fatal injury on Mr Zabchekov’s left eyebrow. Upon their external inspection of the body they noted that:

“[a]t the external end of the left eyebrow, over the orbital rim, a superficial wound can be seen, being of longish shape, measuring 1/0,4 cm, having slightly uneven and grazed edges, covered by a thin brownish skin. The soft tissues around the wound are slightly swollen, the skin being of bluish-purple colour. The eyeball of the left eye is slightly protruded outwardly.”

The laboratory analysis found alcohol concentration of 1,42 per thousand in Mr Zabchekov’s blood and 2.40 per thousand in his urine, which corresponded to a medium level of alcohol intoxication.

According to the applicant, in the morning of 30 January 1996 she visited the office of the Regional Investigation Service in Razgrad and requested information about the circumstances surrounding the death of her son. Mr Neshev, the investigator, informed the applicant that her son had died of a skull fracture. According to the applicant he explained that her son had been trying to steal car parts, and that, when the police had sought to apprehend him, he had run away, had fallen down and had hit his head against the ground.

According to the applicant during this meeting Mr Neshev asserted that police officers had taken her son to the hospital and that the latter had not been brought to the police station prior to his death. When asked how Mr Zabchekov’s skull could have been fractured as a result of his falling down, Mr Neshev allegedly explained that the autopsy had established that the boy had an “abnormally thin skull”.

In the afternoon of 30 January 1996, upon receiving Mr Zabchekov’s body from the hospital, the applicant and other family members noticed bruises on the right side of the boy’s chest; bruises on the left side of his face around the eye and the lips, and on the right side of his forehead; bruises and haemorrhages on his back, right hand, right thigh and face and what looked to be indentations from handcuffs on both wrists. Family members also saw what the applicant alleges to have been boot marks on her son’s clothes, which had been returned to the family together with the body. Family members believed that Mr Zabchekov’s ribs had been broken in places where chest bruises were visible.

Having observed these traces on her son’s body, the applicant went on the same day to the police station and to the local Prosecutor’s Office in search of an explanation. The applicant requested an examination of the body of her son, but her request was allegedly ignored. The applicant then went to the office of a local newspaper, spoke with two journalists and brought them to her home, where the journalists took pictures of Mr Zabchekov’s body and clothes. Late in the afternoon of 30 January 1996 the body was buried.

On 31 January and 1 February 1996 the investigator questioned Ms I.M. and Ms I.A.

On 31 January 1996, by order of the regional prosecutor Ms. Hadzhidimitrova, the investigation was transferred to the Regional Military Prosecutor’s Office (Окръжна военна прокуратура). The decision was based on the finding that Mr Zabchekov had died after having been in police detention. The regional prosecutor stated inter alia:

“...for several hours immediately preceding the occurrence of the death, the underage Zabchekov, apprehended at 1 a.m. on 29 January 1996 while attempting to steal, was taken by the officers of the Regional Department of Internal Affairs and placed in a  premise of the unit on duty in order to limit his right to free movement.  Therefore, although he was not detained pursuant to Art. 35(1) in conjunction with Art. 33(1), point 1 of the National Police Act (Закон за националната полиция), as a matter of fact Zabchekov was forcibly held in the police station for about 3 hours and in the course of his stay in the office of the Regional Department of Internal Affairs in Razgrad, his health condition suddenly deteriorated, and he lost consciousness.”

9. Investigation by the military prosecution and investigation authorities

On 31 January 1996, after having received the materials in the case, the Regional Military Prosecutor’s Office (Oкръжна военна прокуратура) instituted an investigation under a new file number (3-VIII/96, prosecutor’s file 254/96). The case was assigned to a military investigator (военен следовател).

During the following weeks military investigators conducted new interrogations of the police officers involved, questioned five persons who had spent with Mr Zabchekov the afternoon and evening of 28 January 1996, and also heard Dr Mihailov and Dr Ivanova.

On 12 March 1996 the investigator conducted cross-examinations of the witnesses Ms I.A., Ms I. M., C. and D. These only concerned the number of times when Mr Zabchekov was falling on the ground during the chase on Beli Lom Street and the places where this had happened.

 

 On 18 March 1996 the investigator appointed an expert to analyse the clothes which Mr Zabchekov had been wearing on 28/29 January 1996. In his report of 20 March 1996 the expert stated that upon a visual observation and after an examination under a microscope no traces of shoe soles could be found. He clarified that microscopic remains from particles from a shoe sole would not normally be left on a piece of soft fabric.

On 20 March 1996 the investigator conducted a reconstruction of the events during Mr Zabchekov’s arrest in order to clarify the witnesses’ testimony. There participated sergeant Mutafov (C.), the young man who had been with him on 28/29 January (D.), and the two persons who had observed the scene from their balconies, Ms I.A. and Ms I.M. The police officers who had arrived at Beli Lom Street after the apprehension of Mr Zabchekov by C. did not participate in the reconstruction, which concerned almost exclusively the events until the arrival of the police. With the exception of one question put to sergeant Mutafov, no attempt was made to reconstruct the scene after the arrival of the two police cars and, in particular, the moment when Mr Zabchekov was led to one of the damaged cars and asked whether he had been trying to steal from it, the handcuffing of Mr Zabchekov to a tree, the moment when he was later seen lying on the ground, or his bringing to the back seat of the police car. The reconstruction was video taped.

On 27 March 1996 the investigator reported in writing on the course of the investigation to the Office of the Military Prosecution (Прокуратура на въоръжените сили), the highest level of the military prosecution authorities, who are under the authority of the Chief Public Prosecutor.

On 11 April, 1996, the applicant submitted to the Varna Military Prosecutor’s Office a request for the exhumation of her son’s body and for the assignment of a new medical expert. The applicant requested the following questions to be put to the expert:

“1. What were the actual injuries on the skull of the deceased (location, size, depth) and how do they correspond to the injuries described by the forensic  finding;

2. Is it true that the skull of the deceased is indeed “soft” and “thin”;

3. Are there other fractures of the skeleton of the deceased and where;

4. Are there lesions of other internal organs and what are they?”

The applicant’s request explained that her son had been buried in haste, before the circumstances surrounding his death had been clearly established, and that an exhumation of the body was essential to ascertain definitively those circumstances. In addition, the applicant reiterated her suspicion that her son’s ribs may have been broken, and that an exhumation was necessary to determine this. The applicant also submitted to investigator Atanasov two X-ray photographs of her son’s head made several months before his death to be used for the purpose of establishing whether his skull had been “soft” or “thin”.

On 17 or 18 April 1996 five medical experts were appointed to re-examine the conclusions as regards the causes of Mr Zabchekov’s death. One of them, Dr Minchev, had participated in the initial group of experts. The other four were Professor Pavlov, PhD, head  
of forensic department at the Medical University in Varna, Dr Kuichukov, PhD, from the neurosurgery department of the University, and Dr Dokov and Dr Radoinova, senior assistants at the forensic department of the same University. The experts were asked the following questions:

“1. What are the injuries Zabchekov suffered? What is the cause of the death?

2. What is the mechanism of causing these injuries and by how many blows could they have been caused? Could the injuries have been caused by consecutive falls (in accordance with the witnesses’ testimonies and the result of the investigation reconstruction as video recorded), or are they the result of direct blows?

3.  When were these injuries inflicted?

4. What was the alcohol concentration in the blood of Anguel Zabchekov at the time of his apprehension - around 00:15?”

On 26 April 1996 the investigator confronted in cross examination all police officers involved. On 26 April 1999 three additional witnesses were questioned.  Another witness was questioned on 29 May 1996.

On 23 May 1996 the applicant repeated her request for an exhumation. On 29 May 1996 another witness was questioned.

On 11 June 1996 prosecutor Dimitrov from the Regional Military Prosecutor’s Office sent to the applicant a copy of his information note on the proceedings. The note stated inter alia that exhumation could be envisaged if this would be considered necessary by the five medical experts, who had not yet submitted their opinion.

On 28 June 1996 the five experts delivered their report, which was based on an examination of the materials in the investigation case-file. They had also seen the video tape of the reconstruction of Mr Zabchekov’s apprehension, which had been shot on 20 March 1996.

The experts reaffirmed the conclusion that Mr Zabchekov’s death had been caused by an epidural oedema resulting from a skull fracture. They also stated inter alia that the fatal injury could have been inflicted by a kick, a fist blow or a blow by any other unsharpened object or, also, by a fall and collision against a “flat broad surface” (широка удряща повърхност). They noted that the autopsy report had not recorded any morphological data to allow the identification of the object which had caused the injuries. The report also indicated that the blow which had caused the skull fracture had not been very strong. This conclusion was based on the “particularities of the skull structure (as witnessed by the X-ray photographs enclosed and the thickness as described [in the autopsy report])”.

At variance with the first medical report, which had stated that the injury had been inflicted approximately four to six hours before the death, the report of the five experts concluded:

 

“The haematoma ... which caused the death  of Zabchekov, has been in place for at least ten hours preceding the moment of death. The basis for this conclusion is the appearance of the haematoma (blood clot of dark red colour), which is clearly visible also from the photo-materials attached to the file.  Such clot without the presence of liquid blood is formed during a period of over ten hours from the moment they were caused.  During this period usually the condition of the patients is characterised by the so called ‘lucid interval’ - time during which they do not display visible alerting signs. Their health gradually deteriorates … there appears headache, speech disturbances and problems of coordination of movement, [the persons] become unstable, sleepy, they stagger, etc. until the fall into coma.”

The photographs relied upon by the experts were taken at the time of the autopsy, which began at 11.30 a.m. on 29 January 1996.

The experts also found that in view of the amount of alcohol found in Mr Zabchekov’s blood the gradually appearing symptoms resulting from the head injury had been masked by the symptoms characteristic of the effects of alcohol.

The report of the five experts also dealt with the other injuries on Mr Zabchekov’s body:

“The haematoma on the right side of the chest is the result of a blow with or against a flat object with a larger hitting surface, which could be a kick, fall and concussion against a larger object and other objects. The characteristic appearance of the bruise is like the negative image of the clothes of the deceased, which indicates that the blow has been inflicted through the clothes... The bruises and injuries over the right half of the forehead, the two wrist joints and the lower lip are the result of the treatment of hard, blunt and/or edgy objects with limited hitting surface. The characteristics of the injuries at the two wrist joints make it possible to conclude that they correspond to having been caused when the handcuffs were put on, in accordance with the available information...”

On 25 July 1996 the investigator drew up a report proposing the termination of the proceedings.

On 31 July 1996 the Regional Military Prosecutors’ Office terminated the investigation concluding that there was no connection between the acts of the police and the death of Mr Zabchekov. The decree grounded its conclusion on the finding of the second medical report that at least ten hours had passed between the injury and the death.

On 6 August 1996 the applicant lodged an appeal with the National Military Prosecutor’s Office (Прокуратура на въоръжените сили). She contended that the investigation had been incomplete and pointed to the repeated refusal of an exhumation, to the alleged discrepancies between the testimony of different witnesses, and to the lack of explanation for certain facts, including all the injuries on Mr Zabchekov’s body.

On 18 December 1996 the National Military Prosecutor’s Office confirmed the termination of the investigation and also rejected the applicant’s request for exhumation of the body and further investigation. The decision stated, inter alia:

“[A]part  from the physical force applied during the apprehension of Zabchekov for his attempt to steal cars, there is no evidence of any violence by police officers against him, whether during his contacts with the police inside or outside the building of the police station. Furthermore, the firm conclusion of the report of the five experts, who are highly qualified experts in their field, is that the lethal injury has been caused more than ten hours prior to the death.”

It was also decided to return the case to the Regional Prosecutor’s Office in Razgrad, which was competent to deal with the question whether a criminal act had been committed by a person other than a police officer.

10. Additional investigation by the general prosecution and investigation authorities

On 20 January 1997 regional prosecutor Hadzhidimitrova referred the case to the investigator. She noted that the investigation concerning the police had been terminated on the basis of the finding that the fatal injury had been inflicted more than 10 hours prior to the death of Mr Zabchekov. Therefore, further evidence needed to be collected in respect of the whereabouts and the condition of Mr Zabchekov before 7 p.m. on 28 January 1996.

The additional investigation consisted of questioning of the applicant and six other witnesses on 23 January 1997 by investigator Neshev.

In the course of her questioning on 23 January 1997, the applicant made a new oral request for exhumation of the body and assignment of new medical examination. On 24 January 1997 the applicant also filed a written request to the Razgrad Regional Prosecutor’s Office claiming inconsistencies in the evidence and requesting exhumation of the body. The request for exhumation was rejected by the Razgrad Regional Prosecutor’s Office in a decree of 31 January 1997 which found that exhumation was unnecessary because the medical experts had established the causes of Mr Zabchekov’s death and of all injuries on his body.

The applicant appealed to the Chief Public Prosecutor’s Office (Главен прокурор). She stated inter alia that the prosecutors consistently failed to explain why the police had not properly cared for Mr Zabchekov following his arrest. It is unclear whether there has been a formal decision on this appeal.

On 17 February 1997 investigator Neshev summoned the applicant (represented by counsel) to allow her to consult the investigation file. The applicant made requests and objections concerning lapses in the investigation. In particular, she stated that there were essential contradictions between the first and the second medical reports, and that it was clearly impossible for a person suffering from such a grave injury as that found by the medical experts to steal cars and resist arrest. The applicant again requested exhumation of the body and appointment of experts to answer the questions raised in her previous requests.

On 18 February 1996 investigator Neshev drew up a report stating that the additional investigation ordered on 20 January 1997 had not disclosed evidence that Mr Zabchekov might have been battered prior to his apprehension by the police. It was therefore proposed to suspend the investigation.

By decree of 4 March 1997 regional prosecutor Hadzhidimitrova, on the basis of Section 239(1)(2) of the Code of Criminal Procedure (Наказателно процесуален кодекс), decided to suspend the criminal proceedings as all possible evidence had been collected and because it was not possible to determine the precise circumstances under which the fatal head injury had been inflicted.

The decision noted the findings of the military prosecutors, namely that there was no link between the actions of the police and the death of Mr Zabchekov, and confirmed these findings. In respect of the other bodily injuries, apart from the fatal skull fracture, the prosecutor stated: “...all other injuries ... are not in causal link with the death and have resulted in temporary disturbances which were not dangerous for [Mr Zabchekov’s] life.”

The decision also mentioned that at the time of his bringing to the police station Mr Zbachekov had been in good health.

On 10 March 1997 the applicant appealed against the suspension of the proceedings to the Chief Public Prosecutor. On 20 March 1997 the Chief Public Prosecutor’s Office confirmed the suspension of the proceedings referring to the reasoning of the prior decisions in the case.

11. Other evidence submitted by the applicant

The applicant has submitted four colour photographs of the dead body of Mr Zabchekov and a photograph of the jacket which he was wearing before his death. The photographs were taken by journalists on 30 January 1996 at the applicant’s home, after the autopsy and the return of the body for burial.

Two of the photographs are of Mr Zabchekov’s face. The hair covers half of the forehead. Above and over the left eyebrow can be seen a bruise of purple-bluish colour. The left eye-lid has a bluish colour. A bruise can also be seen on the lips, in the left part of the mouth.

On two other photographs a bruise of purple colour can be seen on Mr Zabchekov’s chest, on its right side, partly under the right armpit. On one photograph are visible wounds on the wrist of Mr Zabchekov’s right hand. The visual examination of this photograph allows one to conclude that the injury on the wrist is more serious than a simple trace left by the presence of handcuffs.

On the picture of a jacket, which Mr Zabchekov was allegedly wearing immediately before his apprehension and death, are visible large spots of dirt on the left sleeve and on the back.

On an unspecified date the applicant, acting through the European Roma Rights Centre, a non-governmental organisation based in Budapest, solicited the opinion of Professor Jorgen Thomsen, State Pathologist, Institute of Forensic Medicine, University of Southern Denmark, Odense, a member of the United Nations Standing Team of Forensic Experts. Professor Thomsen gave a written opinion dated 4 February 1999. Professor Thomsen had at his disposal, inter alia, description of what had allegedly happened in the case and extracts from the autopsy report and the report of the five experts.

Professor Thomsen stated, inter alia:

“An epidural haematoma is usually caused by a fall against a hard surface or a strong blow with a blunt object. It is well known that a fall against a hard surface will often leave so-called contre-coup lesions. It is regrettable that the presence or absence of such lesions have not been mentioned. It has been mentioned that the deceased had a thin skull. In my opinion that is not an apologising factor in cases of interpersonal violence, as it is usually not known if a skull is thick or thin and it is inherent in the possible effects of violence that a person may have a thin skull. Together with the epidural haematoma there is usually a fracture (fissure) in the temporal bone and a rupture of the middle meningeal artery. The haemorrhage is thus arterial. It is in the beginning limited by the attachment of the dura to the inside of the bone. There is thus often a lucid interval that may last several hours, but often the interval is not longer than a couple of hours. If the traumatic lesion involves the brain with a concussion or contusions there is usually not a lucid interval.

I agree with the two forensic reports that the cause of death was the epidural haematoma and that it was caused by one of the types of traumas mentioned. It may well have happened before the deceased was arrested, but it can in no way be excluded that he sustained the fatal lesion during his stay in the police centre. I do not agree with the statement that there was a lapse of 10 hours from the trauma until death. It was based on the appearance of the blood clot. It is known that the blood after death can take various forms and even after death there is enzymatic biochemical activity that may change the blood in an unpredictable way and in various ways in different locations.

With reference to the other lesions these are not likely to have been sustained from the same trauma as the epidural haematoma. They are the result of blunt violence such as beating, kicking and/or falls, and may have been sustained during the stay in the police detention.

The marks on the wrists are characteristically the results of handcuffing. Handcuffs will usually not leave marks, but may if they are too tight, if the person is struggling, or if he is dragged by the handcuffs.

In summary it cannot be determined if the epidural haematoma was caused by a fall or other types of blunt violence. It may well have been sustained just before or during the stay in the police detention. An epidural haematoma is curable if an operation with evacuation of the haematoma is performed soon enough. If admitted to hospital sooner, Mr Zabchekov might have been saved.”

B. Relevant domestic law and practice

1. The Judiciary Act (Закон за съдебната власт) from 1994

Section 111, as in force until 15 November 1998, insofar as relevant, provided as follows:

“(1)The prosecution authorities in Bulgaria shall be the Chief Public Prosecutor’s Office, the Appellate Prosecution Offices, the Military Appellate Prosecution Offices, the Regional Prosecution Offices, the Regional Military Prosecution Offices, and the District Prosecution Offices.

(3)The Chief Public Prosecutor’s Office shall be chaired by the Chief Public Prosecutor, with the assistance of Deputy Chief Public Prosecutors. In the Chief Public Prosecutor’s Office there shall be departments and organisational units.”

It appears that the Appellate Prosecution Offices and the Military Appellate Prosecution Offices were established in practice only in 1998.

According to Section 116, as in force at the relevant time, every decision of a prosecutor shall be subject to appeal to the immediately higher level of the prosecution authorities. Also, every prosecutor of a higher level may act in matters falling within the competence of a lower level prosecutor.

2. Code of Criminal Procedure (Наказателно процесуален кодекс), as in force at the relevant time and until 1 January 2000

According to Sections 237 and 239 the prosecutor shall terminate the criminal proceedings where, inter alia, no criminally punishable act has been committed or the charges were not proved. He shall suspend the proceedings where, inter alia, the perpetrator was not discovered.

Section 238 provides that a decision of a prosecutor to terminate criminal proceedings may be repealed by any higher level prosecutor.

According to Section 388 the martial courts hear criminal cases when the accused is, inter alia, a police officer. Where a case would fall within the competence of the martial courts, the preliminary investigation is handled by the military investigators and prosecutors.

3. National Police Act (Закон за полицията), as in force at the relevant time

Section 35 § 1

<Translation>

“The police authorities shall issue a written order for the bringing of the detained persons to the [places of detention].”

COMPLAINTS

1. The applicant raises three complaints under Article 2 of the Convention. She states that her son died as a result of injuries intentionally inflicted by the police, that the police failed to provide adequate medical treatment for her son’s injuries which ultimately led to his death, that the State authorities failed to undertake a thorough and effective investigation.

 

2. The applicant raises two complaints under Article 3 of the Convention. She states that besides the head injury which caused her son’s death, he had received other injuries which were clearly the result of ill-treatment by the police, and that the authorities failed to carry out an effective and impartial investigation in this respect.

3. The applicant complains under Article 5 of the Convention that her son’s detention on 29 January 1996 was unlawful and contrary to Section 35 of the National Police Act as there was no written order for the arrest.

4. The applicant complains under Article 13 of the Convention of the lack of an effective remedy in respect of the alleged violations of Articles 2 and 3. She maintains that the investigations in the case were inadequate and refers to her arguments submitted under Articles 2 and 3. In addition she states that on several occasions she has been misinformed by the authorities about the course of the investigation and about the findings. Furthermore, she obtained full access to the file no earlier than February 1997.

5. The applicant complains under Article 14 in conjunction with Articles 2, 3 and 13 of the Convention. She states that her son’s Roma origin was clearly known to the police officers involved, and that their perception of the boy as a representative of this ethnic group was so strong that one of the officers referred to him as “the Gypsy” even in his official testimony. In the applicant’s submission the police officers’ attitude towards her son as a Roma was a decisive factor for his death and the inflicted injuries.

PROCEDURE

The application was introduced on 20 September 1997 before the European Commission of Human Rights and registered on 30 October 1997.

On 2 March 1998 the Commission decided to communicate the application to the respondent Government.

The Government’s written observations were submitted on 29 June 1998, after an extension of the time-limit fixed for that purpose. The applicant replied on 26 October 1998, also after an extension of the time-limit.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

On 29 April 1999 the Court granted the applicant legal aid.

THE LAW

1. The Government raise a number of preliminary objections. While accepting the applicant’s standing in respect of her complaints under Articles 2 and 13 of the Convention, the Government submit that she cannot claim to be a victim of the alleged violations of her son’s rights under Articles 3, 5 and 14. In their view these concern rights of a “strictly personal nature” and, therefore, the applicant cannot claim to have been personally affected.

The Government further consider that the application should be rejected for failure to exhaust all domestic remedies. They contend that the applicant could have appealed to the head of the National Military Prosecutor’s Office and then to the Chief Public Prosecutor against the decree of 18 December 1996 of the National Military Prosecutor’s Office confirming the termination of the investigation conducted by the military prosecution authorities. The effectiveness of this appeal is illustrated by the fact that 3 out of 36 such appeals were successful in 1996. Furthermore, the applicant should have appealed against the decree of 20 March 1997 of the Chief Public Prosecutor’s Office confirming the suspension of the investigation conducted by the general prosecution authorities. Such appeals could have been lodged with the head of the investigation department of the Chief Public Prosecutor’s Office and, in case of an unfavourable outcome, consecutively with the Deputy Chief Public Prosecutor and the Chief Public Prosecutor. The effectiveness of these appeals is illustrated by the fact that in 1996 some 57 appeals out of 565 were successful. The Government have not specified the type of cases in which the appeals have succeeded.

The Government also argue that the complaint under Article 14 of the Convention should be rejected on the basis of the fact that the applicant has not raised it in her complaints to the domestic authorities.

The Government further submit that, even if the decree of 20 March 1997 is considered as the starting point of the six months’ period under Article 35 § 1 of the Convention, the application must be rejected as it had been received by the Commission on 24 September 1997.

The applicant replies, referring in particular to the Kurt v. Turkey judgment of 25 May 1998 (Reports of Judgments and Decisions 1998-II), that a close surviving relative of a deceased person may bring an application in respect of Convention violations related to acts resulting in death. She submits that the present case has been brought on behalf of her son and in her own name. Acting as her son’s surviving relative she asserts claims which her son would have been entitled to raise had he not died as a result precisely of the events complained of. In the applicant’s view it would be perverse if such claims could be rejected solely because the victim has died. Furthermore, the applicant considers herself as the indirect victim of all alleged violations of the Convention. She argues that the ill-treatment of her son, his unlawful arrest, and the discrimination allegedly suffered, all caused her substantial emotional damage.

As regards the exhaustion of all domestic remedies the applicant explains that in Bulgaria at the relevant time there were perhaps nine or more levels in the seniority hierarchy of the prosecution system. In this ladder of seniority, there were ordinary prosecutors, deputy heads and heads of district offices, then prosecutors, deputy heads and heads of regional offices, and so on. Every prosecutor is competent to quash a decision of a lower level prosecutor. Furthermore, every prosecutor may reverse his own decision. However, all these decisions are discretionary and not a matter of right for the claimant. The applicant may file an unlimited number of appeals and requests, and repeat them an unlimited number of times, to which she may well receive answers, but this by no means would require, in the applicant’s view, that she would need to go through such an endless process in order to exhaust all domestic remedies within the meaning of Article 35 § 1 of the Convention. It is sufficient in her view, that an appeal is submitted to each of the three institutional levels of the prosecution system - the district, regional and national levels. She did submit such appeals. She appealed twice to the Chief Public Prosecutor’s Office – once against the decree of 6 August 1996 terminating the investigation by the military prosecution authorities, and, for a second time, against the decree of  4 March 1997 suspending the investigation by the general prosecution authorities. The Chief Public Prosecutor’s Office has thus dealt with the case.

The applicant finally submits that the figures concerning the number of successful appeals, cited by the Government, only demonstrate the infrequency with which the discretion to reverse a decision is exercised.

As regards the six months’ time-limit the applicant replies that the Government have not stated the date on which the decree of 20 March 1997 was served. She recalls that this happened in August 1997. In any event, even if the six months’ time-limit should be considered as running from 20 March 1997, the applicant sent her application both by fax and registered mail on 20 September 1997.

The Court reiterates that the object and purpose of the Convention, a treaty for the collective enforcement of human rights and fundamental freedoms, requires that its provisions be interpreted and applied in the light of its special character and so as to make its safeguards practical and effective (see the Yasa v. Turkey judgment of 2 September 1998, Reports 1998-VI, p.  , § 64).

The Court notes that the complaints under Articles 3, 5 and 14 of the Convention concern the events of 28/29 January 1996 when the applicant’s son was arrested and later found dead and are thus closely related to the applicant’s other complaints, which were raised under Articles 2 and 13 of the Convention. The Court finds on the basis of the Convention organs’ case-law that in such circumstances the parent of the deceased is undoubtedly entitled to lodge a complaint in respect of all issues under the Convention which may arise out of the tragic events complained of (see, among many other authorities, appl. no. 7467/76, Dec. 13.12.76, DR 8, p. 220; the Yasa judgment, cited above; Tanrikulu v. Turkey [GC], no. 23763/94, ECHR 1999-  ; Çakici v. Turkey [GC], no. 23657/94, ECHR 1999-  ).

As regards the exhaustion of domestic remedies the Court recalls that the rule referred to in Article 35 § 1 of the Convention obliges those seeking to bring their case against the State before an international judicial or arbitral body to use first the remedies provided by the national legal system, thus dispensing States from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal systems. In order to comply with the rule, normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged (see Buscarini and Others v. San Marino [GC], no. 24645/94, § 26, ECHR 1999-  ).

In the present case the Government submit that the applicant has not appealed to the head of the National Military Prosecutor’s Office, the head of the investigation department of the Chief Public Prosecutor’s Office, the Deputy Chief Public Prosecutors nor the Chief Public Prosecutor. However, it appears undisputed that at the relevant time under the Judiciary Act all the above mentioned prosecutors were part of the Chief Public Prosecutor’s Office, to which the applicant appealed. Furthermore, her appeal of 10 March 1997 was in fact addressed to the Chief Public Prosecutor.

The Government’s argument that the applicant should have formulated her allegations under Article 14 of the Convention at the early investigation stage of the criminal proceedings cannot be sustained either. The Court considers that the applicant has made normal use of the remedies available under Bulgarian law and has thus provided the authorities with an opportunity to deal with the complaints which are now submitted to the Court. She has therefore complied with the exhaustion rule under Article 35 § 1 of the Convention (see the Assenov and Others v. Bulgaria judgment of 28 October 1998, Reports 1998-VIII, p. 3175, § 86, and A.V. v. Bulgaria (dec.), no. 41488/98, ECHR 1999-  ).

The Court further recalls that the six-months’ period under Article 35 § 1 of the Convention runs from the date on which the final decision was served or, if the domestic law does not provide for service, from the date on which the applicant could find out its contents (see Papachelas v. Greece [GC], no. 31423/96, § 30, ECHR 1999 -  ). In the present case it is not necessary to determine whether the relevant starting date is 20 March 1997, as claimed by the Government, or an unspecified date in August 1997, as claimed by the applicant. It suffices to note that the applicant’s first communication was dated 20 September 1997 and was sent on 20 September 1997, as visible from its faxed copy and from the postmark on the envelope containing its hard copy. In this respect the Court recalls that the requirements of the six months’ rule are complied with if the first communication has been made within the time-limit, although it may have arrived several days after its expiry (see Erdogdu and Ince v. Turkey [GC], nos. 25067 and 25068/94, § 30, ECHR 1999 - ). The Court finds, therefore, that the application was introduced within the six months’ time-limit under Article 35 § 1 of the Convention.

It follows that the Government’s preliminary objections must be rejected.

2. The applicant complains under Article 2 of the Convention that her son died as a result of injuries intentionally inflicted by the police, that the police failed to provide adequate medical treatment for her son’s injuries which ultimately led to his death, and that the State authorities failed to undertake a thorough and effective investigation.

Article 2 provides as follows:

“Article 2 – Right to life

“1.  Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2.  Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a)  in defence of any person from unlawful violence;

(b)  in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c)  in action lawfully taken for the purpose of quelling a riot or insurrection.”

The Government submit that there is no evidence of any ill-treatment on the part of the police. The medical experts found that the fatal injury was inflicted more than 10 hours prior to Mr Zabchekov’s death. It is undisputed that Mr Zabchekov consumed a great quantity of alcohol before his arrest. He was apparently drunk, and was staggering. Furthermore, there is clear evidence that he fell on the ground several times. In the Government’s view the evidence about his behaviour at the time of his arrest and detention confirms the medical experts’ conclusions about the timing of the skull fracture and the symptoms during the lucid period between its infliction and the fatal outcome.

It is further pointed out by the Government that the testimony of the witnesses who gave evidence as to the whereabouts of Mr Zabchekov prior to his arrest contains contradictions. The Government also submit that on several occasions in 1995 the applicant stated that her son had an illness related to his head. Mr Zabchekov was reportedly losing consciousness and suffocating when he was younger and was fainting. Mr Zabchekov himself confirmed in 1995 that he was suffering from headaches and was fainting.

The Government conclude that in view of the contradictory information in respect of the whereabouts of Mr Zabchekov during the hours prior to his arrest, in view of his chronic neurological illness, and taking into account that he was under the influence of alcohol, the experts’ finding that he might have received the fatal injury by falling on a large hard surface must be considered plausible.

In respect of the alleged lack of adequate medical care the Government submit that the police officers cannot be held responsible for not having realised that Mr Zabchkov needed urgent medical intervention. When they first saw him it was dark. Furthermore, he was drunk, there was dirt all over his body and his hair covered the bruise over the left eyebrow. Mr Zabchekov’s condition was interpreted as being the result of alcohol. He never complained of an ailment. The fact that no major external signs are observed during the lucid period was confirmed by the medical experts.

The Government further affirm that the investigation was prompt and thorough, referring to the facts concerning the steps undertaken during the investigation.

The applicant replies that according to the established case-law of the Convention organs it is for the Government to provide a plausible explanation for the death of Mr Zabchekov, the rationale behind this rule being that a victim of police abuse faces often insurmountable difficulties in proving the cause of injuries. The applicant asserts that the Government’s explanation is contradictory and far from plausible.

The applicant notes that the Government’s version of the events is almost entirely based on the conclusion of the second forensic report that the fatal injury was sustained at least ten hours before Mr Zabchekov’s death. The applicant asserts that this conclusion is highly suspect. It is flawed by its reliance on photographic images taken at the time of the autopsy, almost six hours after the time of death. In the applicant’s view, by eliding over the fundamental distinction between the time of death and the time of the autopsy, the second forensic report overlooked the fact that the blood curdlings formed ten hours before the autopsy (i.e. at approximately 1.30 a.m.), at a time when Mr Zabchekov was in police custody. Furthermore, the authorities never explained the contradictions between the two forensic reports concerning the strength of the blow which produced the fatal injury, the surface against which the skull of the victim collided and the precise time of the skull fracture.

The applicant further rejects the Government’s assertion that Mr Zabchekov was in poor health at the time of his arrest. He was able to run quite rapidly when C. was chasing him. All witnesses who testified as to the whereabouts of Mr Zabchekov before 11.30 p.m. on 28 January 1996 were unanimous that he was in good health. The uncontradicted testimony of all witnesses was that Mr Zabchekov had been moving, bending, and peering into cars at the time he had been spotted, and that he had subsequently run quickly in order to avoid apprehension, hardly the sign of a man in physical distress. None of the police officers who were in contact with him at the time of the arrest reported any trace of injury. Furthermore, the decree of 4 March 1997 found unequivocally that at time of his bringing to the police station, Mr Zbachekov had been in good health.

As regards her complaint that Mr Zabchekov did not receive adequate medical care, the applicant submits that the record reveals abundance of indicia that would suggest to the reasonably prudent police officer that the detainee was in need of medical assistance. Nonetheless, the officers involved allegedly did not provide such care in an expeditious manner.

The applicant refers to the testimony of officer H. who noticed the bruise on Mr Zabchekov’s eyebrow as early as 1 a.m. He later saw him shivering and shaking. Other officers also noticed injuries on the detainee’s head. Nonetheless, it was only at 4.30 a.m. that they decided to act. And even then a radio transmission went not to a hospital or doctor, but to the very officers who had brought Mr Zabchekov to the police station. A. and B. then decided to return to the police station rather than to call a doctor. Having arrived and having seen Mr Zabchekov’s condition they still did not call for help but took the time to drive to the hospital and then return accompanied by an ambulance and a doctor. These delays were fatal, as confirmed by the medical experts who stated that “the death ... was inevitable unless there had been an immediate surgical intervention...”  The applicant submits that in Bulgaria there is no appropriate legislation guaranteeing access to a doctor for detainees and that this gap in itself may constitute a violation of Article 2 of the Convention.

In the applicant’s view it was also apparent that the investigation into the death of Mr Zabchekov was inadequate. The applicant points to a number of alleged major flaws. In particular, the prosecution authorities never addressed the prolonged and unlawful police detention, the failure to record it properly and the apparent attempt to cover up for that failure by post hoc doctoring of the records. Despite such unlawful and suspect behaviour of the police officers the prosecution gave full credit to their testimony denying any use of force against Mr Zabchekov. Furthermore, the police officers were never asked to explain the injuries on Mr Zabchekov’s wrists, which were far more serious than would normally result from the mere presence of handcuffs. Not even an attempt was made to explain the strange behaviour of the police officers between 4.30 and 5 a.m. and in particular, the question why they did not call for an ambulance directly. Neither was there any clarification as to why the two medical doctors quarrelled when they established that Mr Zabchekov was dead. Finally, the first information given to the applicant’s family about Mr Zabchekov’s death conspicuously omitted any mention that the boy had been detained.

The applicant also asserts that the investigation failed to reconcile the contradictions between the two medical reports or to explain why it credited the second one. The doctor who participated in the preparation of both reports was never asked to explain his apparent change of mind. The medical experts were never asked whether they considered necessary the  
exhumation requested repeatedly by the applicant. Furthermore, the experts were not asked whether anyone suffering from the injury Mr Zabchekov had received in his head would be able to move, let alone to run away from a police officer.

Having examined the applicant’s complaints under Article 2 of the Convention, the Court finds that they raise serious questions of fact and law which are of such complexity that their determination should depend on an examination of the merits. This part of the application cannot, therefore, be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and no other grounds for declaring it inadmissible have been established.

3. The applicant complains under Article 3 of the Convention that her son had injuries which were clearly the result of ill-treatment by the police and that the authorities failed to carry out an effective and impartial investigation in this respect.

Article 3 reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Government submit that there is no evidence of any ill-treatment. The injuries on Mr Zabchekov’s chest and face must have been the result of his falling on the ground and those on his wrists must have been caused by the handcuffs.

The applicant replies that a person falling on the ground while trying to run away would most likely sustain injuries on his hands and arms in an attempt to soften the collision between his body and the ground. However, no traces of such injuries were found in the present case. Instead, there were injuries on the chest and armpit. Furthermore, the injuries on the wrists were far too serious to be the result of the simple presence of handcuffs. The applicant also stresses that at no point during the investigation has there been any attempt to provide an explanation for the non-fatal injuries on Mr Zabchekov’s body. No opinion was ever offered as to their timing. The authorities allegedly disregarded their duty to investigate the causes of these injuries.

Having examined the applicant’s complaints under Article 3 of the Convention, the Court finds that they raise serious questions of fact and law which are of such complexity that their determination should depend on an examination of the merits. This part of the application cannot, therefore, be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and no other grounds for declaring it inadmissible have been established.

4. The applicant complains under Article 5 of the Convention that her son’s detention on 29 January 1996 was unlawful.

The Government submit that at the time of his bringing to the police station Mr Zabchekov was not a “detained person” within the meaning of Section 35 of the National Police Act as his identity was unknown. It was necessary to await his sobering up, to allow his identification, in order to decide whether detention was necessary. Therefore, a written order for his detention was not required. Such an order could not be issued in respect of a person whose identity was unknown.

The Government further state that the material legal conditions for a lawful detention existed in any event. Mr Zabchekov was apprehended while trying to steal and was brought to the police station for identification.

The applicant replies that it is absurd to consider that the statutory 24 hours’ time-limit for police detention runs from the moment when the arrested person’s identity is established. No such rule exists under Bulgarian law. Therefore, any detention without a written order is clearly in violation of Section 35 of the National Police Act. Furthermore, the evidence demonstrates that police officer A. recognised Mr Zabchekov and addressed him by his name when he first saw him.

Having examined the applicant’s complaint under Article 5 of the Convention, the Court finds that it raises serious questions of fact and law which are of such complexity that their determination should depend on an examination of the merits. This part of the application cannot, therefore, be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and no other grounds for declaring it inadmissible have been established.

5. The applicant complains under Article 13 of the Convention that she did not have an effective remedy in respect of the alleged violations of Articles 2 and 3.

The Government submit that the applicant could have applied to join the criminal investigation into her son’s death as a private prosecutor or a civil plaintiff. In any event, she was provided with an opportunity to consult the case file and to submit appeals and requests for further investigation. Her request for an exhumation was rightly refused as it had been clearly established that Mr Zabchekov’s ribs had been intact.

The applicant replies that the Government’s duty under Article 13 is independent of any action by the applicant and refers to her arguments as presented in her initial application.

She submits that the prosecution authorities’ failure to carry out a thorough and effective investigation reflects a broader pattern which has been noted by international organisations. She refers to the Report of the Special Rapporteur on Torture to the United Nations Commission on Human Rights (UN Document E/CN.4/1997/7/ of 10 January 1997), which states at p. 9: “The Special Rapporteur is concerned by the frequency of allegations of torture or ill-treatment, sometimes followed by death, of persons in police custody [in Bulgaria]. The rarity of any disciplinary measures and of investigations leading to criminal prosecutions, as well as the virtual absence of successful prosecutions of those responsible, can only lead to a climate of impunity. He believes the Government should establish measures to ensure the independent monitoring, on a sustained basis, of the arrest, detention, and interrogation practices of the relevant law enforcement agencies”.

The applicant further contends that in order to comply with the requirements of Article 13 of the Convention the decision-making authority capable of providing a remedy should be sufficiently independent of the authority alleged to be responsible for the violation. However, such independence does not exist in reality in Bulgaria because of the dual function of prosecutors and in view of the still existing attitudes and practices inherited from the time when police and investigators were one institution. Also, at the relevant time there was no judicial remedy against the decision of a prosecutor to discontinue criminal proceedings.

Having examined the applicant’s complaint under Article 13, the Court finds that it raises serious questions of fact and law which are of such complexity that their determination should depend on an examination of the merits. This part of the application cannot, therefore, be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and no other grounds for declaring it inadmissible have been established.

6.  The applicant complains that there has been discrimination contrary to Article 14 of the Convention.

The Government submit that there is no evidence of any racially motivated act on the part of the authorities. The fact that some testimonies mentioned Mr Zabchekov as “the Gypsy” does not constitute such evidence.

The applicant replies that the reference to Mr Zabchekov’s ethnic origin and the acts of the police and the investigation authorities must be seen against the broader context of systematic racism and hostility which law enforcement bodies in Bulgaria have repeatedly displayed. This attitude has largely been documented by inter-governmental and human rights organisation.

Having examined the applicant’s complaint under Article 14 of the Convention, the Court finds that it raises serious questions of fact and law which are of such complexity that their determination should depend on an examination of the merits. This part of the application cannot, therefore, be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and no other grounds for declaring it inadmissible have been established.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the merits of the case.

Vincent Berger Georg Ress 
 Registrar President

38361/97 - -


- - 38361/97