FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 41488/98

by A.V.

against Bulgaria

The European Court of Human Rights (Fourth Section) sitting on 18 May 1999 as a Chamber composed of

Mr M. Pellonpää, President,

Mr G. Ress,

Mr I. Cabral Barreto,

Mr V. Butkevych,

Mrs N. Vajić,

Mr J. Hedigan,

Mrs S. Botoucharova, Judges,

with Mr V. Berger, Section Registrar;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 12 February 1998 by A.V. against Bulgaria and registered on 9 June 1998 under file no. 41488/98;

Having regard to the reports provided for in Rule 49 of the Rules of Court;

Having regard to the observations submitted by the respondent Government on 14 December 1998 and the observations in reply submitted by the applicant on 8 February 1999.

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Bulgarian national, born in 1942 and living in Pleven. It appears that at the relevant time she lived in B., a village in the district of Pleven. The applicant is represented before the Court by Mr Yonko Grozev, a lawyer practising in Sofia.

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

A. Particular circumstances of the case

On 25 September 1994 the man with whom the applicant had lived for about twelve years, Mr T., 49 years old, belonging to the ethnic group of the Romanies (Gypsies), died after he had spent about twelve hours in police custody following his arrest and detention on charges of theft of cattle.

On 24 September 1994 at 11.00 a.m. the Pleven police received a telephone call from the village of B. informing them of the theft of nine cows. Police sergeant I. and his colleague P. were immediately dispatched to the village, where they met Mr N., the person who was tending the cattle. Mr N. was brought to the police station in Pleven, where he initially stated that the cows had been stolen by unknown persons who had sprayed him with nerve gas. Later Mr N. explained that at about 10.00 a.m. Mr T. accompanied by a ten-year old boy had taken away from him nine cows by the use of threats and had warned him that if asked about the incident he should maintain that someone had sprayed him with nerve gas.

The same police patrol team drove back to the village B., where they were joined by two of the owners of the cattle and all four started searching the village for Mr T. They found him at about 14.00 p.m. in the house of his aunt and uncle. According to the testimony of sergeant I. Mr T. was “drinking alcohol in the company of other Gypsies”.

It transpires from all testimonies that police officers I. and P. knew Mr T., who was on record for having committed crimes, and that Mr T.’s relatives knew the police officers and their nick names.

According to the testimony of Mr T.’s cousin and Mrs K., an old woman who was a neighbour of Mr T.’s relatives, he had spent the late morning and early afternoon of 24 September 1994 digging a ditch at the house of Mrs K. During this time Mr T. drank four beers. He had apparently drunk alcohol also before that. According to the same testimony and the testimony of Mr T.’s uncle and aunt, he came to their house in the early afternoon, about fifteen minutes before the arrival of the police. All four included statements to the effect that Mr T. did not complain of any medical problem and appeared to be healthy.

The police officers invited Mr T. to come with them. He answered that he wished to finish his beer, to which the police officers agreed. Mr T. was then placed in the back seat of the police car, between the two cattle owners. The car first drove for several minutes to the home of the cattle owners. According to the statement of one of the police officers, during this short drive the persons in the back of the car "had a dispute with the Gypsy but ... did not beat him. They only talked". The car arrived at the home of the cattle owners, where a crowd of about 20 to 30 persons had gathered. According to police officer I. they wanted to beat up  
Mr T., but he and his colleague did not allow this to happen. The police car then drove to the Pleven police station where not later than 14.30 p.m. Mr T. was handed over to sergeant K., the officer on duty.

Sergeant K. claimed in his testimony to investigator Enchev that he had locked Mr T. in the arrest cell, as he had been too drunk to be questioned. Mr N., the person who had reported the cattle theft and who had been waiting at the police station to give evidence, claimed that Mr T. was seated on a couch in the hallway.

Both sergeant K. and Mr N. testified that Mr T. had been very drunk. According to Mr N. at some point, while seated, he had defecated into his trousers.

At 17.00 p.m. sergeant K. contacted over the telephone police officer L. who arrived at the police station and started questioning the witness Mr N. According to officer L., Mr T. was too drunk to be questioned. At 19.00 p.m. one of the owners of the stolen cattle came to the police station to inform the police that the cows had been found earlier in the afternoon.

At 19.00 p.m. police officer L. issued an order for the detention of Mr T. after having consulted the prosecutor on duty, Ms Popova. Shortly after that Mr N., the person who tended the cattle, left the police station.

Also at about 19.00 p.m. a police officer contacted the emergency unit of the local hospital. A physician and a para-medical, whose identities are unknown to the applicant and cannot be established on the basis of the material submitted by the Government, arrived at the police station and examined Mr T. briefly. According to the testimony of officers K. and L. the physician had pressed and touched the body of Mr T., but had said that the latter was too drunk to be examined and that he would examine him later when Mr T. sobered up.

At about 23.00 p.m. a Mr I.P., who had been arrested for violent behaviour, was brought to the police station and detained there.

According to the testimony of sergeant K., the officer on duty, at a certain point Mr T. started vomiting in the cell where he had been placed. He was allowed to go to the toilet and was not locked up afterwards, but sat on a couch in the hallway. After midnight Mr T. went to the toilet again. On his way back to the couch he fell on the floor. Police officer K. instructed the detained Mr I.P. to help to get Mr T. seated on the couch. Officer K. noticed that Mr T. was sick and he called the hospital emergency unit again. At that point Mr I.P. was released and left the police station.

The same physician and para-medic arrived at around 2.00 a.m. in the morning and found Mr T. dead. The police immediately informed the regional investigator on duty, Mr Enchev, who arrived at 2.30 a.m and inspected the scene.

According to the written record of the inspection, the dead body of Mr T. was found in the hallway of the first floor, southern section, of the Pleven police department. It was seated on a couch, with two hands hanging on both sides of the couch, and the head hanging back. The victim was dressed in a white shirt, wide open at the chest, with unbuttoned trousers and no underwear. The report further states that "[o]n the right side of the face there was a bruise. Because of the dark colour of the skin there were no other visible injuries on the body". Photos 
were also taken and the investigator finished the inspection at 3.00 a.m. The inspection record states that a forensic expert, Dr D., and three other persons were present during the inspection. None of them signed the record, which was only signed by the investigator.

Dr D. issued a death note no. 217 of 25 September 1994 indicating "acute anaemia and adipose embolism" as the cause of the death. This condition, according to the note, was the result of "[b]lood oedema in the torso and the limbs". The physician also marked the option "accident" in the column requesting information about the possible circumstances that had caused the death.

On 25 September 1994 regional investigator Enchev issued a decree for the opening of a criminal investigation into the death of Mr T.

On the same day early in the morning, after 4.25 a.m., investigator Enchev questioned three of the police officers involved, sergeants I., K. and L. Police officer P., who had been together with sergeant I. when they arrested Mr T. was not questioned. The investigator also ordered a medical report and a biochemical report. The medical report was assigned to the forensic expert, Dr D., who had been present at the inspection of the corpse.

The forensic expert carried out an autopsy between 8.30 a.m. and 11.30 a.m. on 25 September 1994. He found a haematoma of purple blue colour under the right lower eyelid; oval bruises of a red-brown colour, measuring 2 by 0.5 - 1 centimetres, beneath the lower eyelid and on the opposite side of the face under the cheek bones; one bruise of the same colour on the left side of the lower jaw measuring 0.5 by 0.5 centimetres; one bruise of a red-brown colour, stripe-shaped, measuring 2 by 0.5 centimetres on the centre of the chin; symmetrical haematoma of a strong purple-blue colour measuring 40 by 18 centimetres on the front side of both armpits and the upper part of the arms; and three bruises of bluish purple colour on the left buttocks and on the back upper side of the left thigh, perpendicular to the thighbone, measuring 8 to 10 centimetres long and 1.5 to 2 centimetres wide.

The laboratory analysis of the blood and the urine of Mr T. revealed an alcohol content of 0.4 parts per thousand.

The report described as a "direct cause" of the death the "acute anaemia" that had resulted from the haemorrhages in the armpits, the arms and the left buttock. The haemorrhage on the left buttock had been caused by a long hard object, approximately two centimetres wide. The haemorrhages in the armpits and the arms had been the result of the impact of a hard object, it not being possible to specify its shape. The report placed the time of the death at about ten to twelve hours prior to the autopsy. The report expressed no opinion as to the timing of the injuries which had caused the death. No such question had been put by the investigator.

In the morning of 25 September 1994 the applicant, who went to the police station to wait for the release of Mr T., was informed that he was dead. When later that day his body was transported to the applicant's house in the village B., the applicant allegedly observed numerous bruises and injuries. Upon her request neighbours called journalists from local newspapers. Still on 25 September an activist of a local non-governmental organisation shot a videotape of the naked body of Mr T. In the evening the body of Mr T. was buried.

On 28 September 1994 the investigator questioned Mr T.’s uncle, aunt and cousin, their neighbour Mrs K., and Mr N., the person from whom the cows had been stolen.

In the months following the death of Mr T. the applicant visited regularly the office of investigator Enchev to ask for information about the progress of the investigation. In 1995 counsel for the applicant visited the office of Mr Enchev on several occasions and spoke to him on the telephone several times. Mr Enchev allegedly refused to release any specific information. Also, those of the documents in the investigation file to which counsel was permitted access contained no information concerning any investigation proceedings which may have been conducted after 21 December 1994.

On 5 December 1995 counsel for the applicant requested the Pleven Regional Prosecutor’s Office (Окръжна прокуратура) to expedite the investigation. As no response was received, on 28 February 1996 counsel filed a request with the Chief Public Prosecutor’s Office (Главна прокуратура).

On 19 March 1996 regional prosecutor Popova issued a decree suspending the criminal proceedings in the death of Mr T. The decree stated, inter alia:

"T.'s death [was] caused by a number of internal haemorrhages and acute loss of blood, as a result of deliberate beating. The deceased T. was detained for [a maximum period of] 24 hours by the police under a police order pursuant to the Police Act (Закон за националната полиция), for the theft on 24 September 1994 of nine cows in the vicinity of the village of B., Pleven District....

In the course of the investigation it proved impossible to determine where T. was beaten up, in the Pleven Police Department or outside it. Nor was there any evidence demonstrating who did the beating, the cattle owners or police officers."

In her ensuing appeal of 20 May 1996 to the Chief Public Prosecutor´s Office, the applicant argued that the investigation had not been thorough and that there had been significant omissions. She suggested that all evidence indicated that the injuries resulting in the death had been inflicted after the victim had been taken to the police department. She also objected to the significant delays in the investigation.

By decree of 8 July 1996 prosecutor Slavova of the Chief Public Prosecutor´s Office granted the applicant's request for re-opening of the investigation. The decree stated, inter alia:

"[A] careful reading of the file demonstrates that the investigation [was] not thorough and complete. Not all possible investigations were carried out, for which reason the decision to suspend the investigation is unfounded...

... it is necessary to establish the particular health problems of T. during his stay in the police department and the findings of the emergency medical team about the state of his health. The physician and the para-medical of the emergency unit which examined [Mr T.] should be found and questioned, and the relevant documents registering the examinations be requested. The reasons why no medical care was offered to the victim should be established (there is no evidence in that respect, at least up to this moment) and, depending on the findings, a conclusion should be drawn as to whether a crime under Section 123 of the Criminal Code (Наказателен кодекс) was committed. The health condition of T. prior to his arrest should be ascertained. An additional medical report should be ordered, to be carried out by three forensic experts, which should establish in particular the cause of the death, the manner in which the injuries were inflicted and the timing of the injuries. [This] should be used to identify the person who inflicted the injuries on that same day or on the previous day. The death certificate of T. should be requested and attached to the file and [the applicant's] allegation of incorrect documents should be investigated. After all these issues as well as other issues that may come up during the investigation are clarified a decision on the merits should be taken."

During the months following the decree of the Chief Public Prosecutor's Office, counsel for the applicant spoke by telephone on at least two occasions with investigator Enchev. In both conversations investigator Enchev allegedly declined to provide any information concerning the investigation. On 6 January 1997 counsel filed a complaint with the Pleven Regional Prosecutor’s Office, asserting that no investigation was taking place in defiance of the decree of the Chief Public Prosecutor’s Office, and requested the removal of investigator Enchev from the case.

Counsel for the applicant received no reply to his written complaint for more than four months. On 22 May 1997 counsel Dimitrov spoke to investigator Enchev over the telephone. Investigator Enchev informed counsel that he was still the investigator responsible for the case. During the conversation it allegedly became apparent that no investigation had been undertaken since the decree of the Chief Public Prosecutor’s Office of 8 July 1996. Following this conversation, counsel for the applicant filed a complaint with the Chief Public Prosecutor’s Office renewing his request for removal of investigator Enchev and expediting the proceedings.

On 17 August 1997 counsel received a copy of a letter signed by the Regional Prosecutor Popova and dated 3 June 1997, addressed to the Chief Public Prosecutor’s Office. In apparent response to counsel’s complaint of May 1997, the letter stated that no further investigation was possible, and that in prosecutor Popova’s opinion the investigation should be suspended. According to the prosecutor, "there are no clues as to the identity of the offender and this precludes any further investigation". She also refused to remove the investigator Enchev and expressed her frustration with the numerous complaints raised by counsel Dimitrov.

The investigation has apparently not been suspended as there is no formal decree to that effect. In December 1997, in a telephone conversation with counsel Dimitrov, investigator Enchev confirmed that he was still working on the case.

B. Relevant domestic law and practice

Criminal proceedings can be brought only by the decision of a prosecutor or an investigator. A decision to terminate them is subject to appeal by the victim to the higher prosecutor (section 237 § 6 of the Code of Criminal Procedure (Наказателно процесуален кодекс)). Criminal proceedings which have been suspended or terminated may be reopened ex officio by decision of a prosecutor (sections 238 and 239 of the Code). Where criminal proceedings have been suspended because the perpetrators could not be identified the case-file must be transmitted to the investigator, who shall continue working on it (section 239 § 4 of the Code).

 

 The Supreme Court, in its Interpretative Decree (ППВС) no. 5 of 24 November 1969, accepted that an unmarried partner may claim damages in tort arising out of wrongful killing of the other partner. The Supreme Court stated, inter alia, that such a partner sustains non-pecuniary damages and that awarding compensation to him or her is just.

COMPLAINTS

1. The applicant raises three complaints under Article 2 of the Convention, claiming that each of them constitutes a separate violation of that provision:

a) The applicant claims that Mr T. died as a result of intentional ill-treatment by the police. In her view all available evidence indicates that he had been in good health at the time he first encountered the police in the early afternoon of 24 September 1994. Moreover, the prosecutors found that "the death of T. was caused by many internal haemorrhages provoked by intentional beating". The only explanation is that he died as a result of brutal ill-treatment by police officers.

The applicant states that the Bulgarian investigation authorities did not fulfil their obligation to provide a "plausible explanation" of Mr T.'s death and of the role of the police. The decree of 19 March 1996 of the Pleven Regional Prosecutor's Office flatly declared, in complete disregard of the medical and other evidence, that it was impossible to determine the place where he had been beaten up or to identify the perpetrators.

In the applicant's submission, the suggestion by the Pleven Regional Prosecutor that Mr T. might have been beaten by the cattle owners is not supported by any evidence. The only known meeting between Mr T. and the cattle owners took place in the police car and lasted for a few minutes only, during the time of the short drive to the home of the cattle owners. Also, the patrol officer testified that during this short trip there had been no violent acts between the cattle owners and Mr T. The applicant submits that even if he had sustained some injuries while in the police car, the police were responsible as it was their duty to ensure that he suffered no ill-treatment while in their hands.

 The applicant also refers to paragraph 20 of the Report to the Bulgarian Government on the visit to Bulgaria carried out by the European Committee on the Prevention of Torture in 1995, which describes two cases where individuals who had been detained in the same police station in Pleven bore signs of beating.

b) The applicant further complains that there has been a violation of Article 2 on account of the fact that the authorities failed adequately to protect Mr T.’s right to life by undertaking a prompt, thorough and effective investigation into the circumstances surrounding his death. In her view, the investigation has been excessively long, which is fully attributable to the inactivity of the investigation and prosecution authorities. She refers to the practice of the United Nations Committee Against Torture, which has elucidated the requirement of promptness in the context of investigating allegations of ill-treatment and torture by State agents. In its view of 18 November 1993 on Communication No. 8/1991, Qani Halimi-Nedzibi v. Austria, that Committee found that a delay of 15 months before an investigation on allegations of torture is initiated is unreasonably long and in violation of Article 12 of the Convention Against Torture. The applicant submits that the test applied by the Committee with respect to alleged ill-treatment or torture should apply to alleged violations of the right to life, protected by Article 2 of the Convention. In the case of Mr T., although the investigation started promptly, the applicant has no knowledge whether any investigation proceedings have been undertaken since December 1994, despite her repeated requests.

The applicant further contends that the investigation was characterised by a number of omissions and inconsistencies which resulted in most of the questions surrounding the death of Mr T. being left unanswered. Thus, the report on the inspection of the scene where the body of Mr T. was found was drawn up by investigator Enchev but was never signed by the certifying witnesses, as required by statute. This omission deprives the report of evidential value, as any evidence gathered in violation of the requirements of the Code of Criminal Procedure is inadmissible. Particularly bewildering is the statement in the inspection report, that "because of the dark skin of the body, no injuries are visible". This observation allegedly suggests clear bias of the investigating officer on the basis of the colour of Mr T.'s skin.

Moreover, the police officers were never asked to explain whether they had noticed any injuries on Mr T.'s body; the investigation authorities did not question the physician or the para-medic of the hospital emergency unit who had examined Mr T. (this omission is particularly striking in view of the fact that the victim had been in obvious need of medical treatment and that the emergency team never provided him with such treatment); another witness, the detainee Mr I.P., who was present at the police station and could observe Mr T., was never questioned by the investigation authorities; the forensic expert was not asked certain key questions, such as how visible were the victim's injuries, to what extent the injuries might have inhibited the victim's mobility, or when the injuries were inflicted.

 The applicant also alleges that the supervising prosecutor Popova and the investigator Enchev displayed bias as they failed to undertake indispensable investigative steps and delayed the proceedings beyond any reasonable limits. In her letter dated 3 June 1997 prosecutor Popova simply declared that in her view nothing could be done. Prosecutor Popova did not follow the instructions of the Chief Public Prosecutor's Office and did not carry out the investigation ordered. Instead she declared that the investigation should be suspended, thus pre-determining its outcome. In the face of such blatant bias and refusal to investigate, the Chief Prosecutor’s Office should have removed both prosecutor Popova and investigator Enchev.

c) The applicant claims that Article 2 was violated also in that Mr T.’s death was partly caused by the fact that he was not properly cared for following his arrest. He did not receive medical treatment for several hours, during which time he was in police custody suffering from life-threatening injuries.

The applicant submits that the State's obligation to take appropriate steps to protect and secure the right to life includes the administration of proper care in respect of persons who are in the hands of law enforcement organs, and are thus prevented from taking care of themselves.

Mr T. apparently bore visible signs of ill-treatment, vomited while in the cell and could not walk properly. In spite of the obvious need for medical care, the uncontradicted testimony is that he did not receive any medical treatment. An emergency medical team was 
requested and arrived, but for reasons that were never explained and never investigated, Mr T. was not properly examined and received no medical help. Timely and competent medical intervention would in all likelihood have increased his chances of survival.

Finally, the applicant asserts that the Bulgarian legislation contains no provisions guaranteeing access to a doctor for persons deprived of their liberty, which in her view is in itself a violation of Article 2 of the Convention. In this respect the applicant refers to paragraphs 88 and 89 of the "Report to the Bulgarian Government on the visit to Bulgaria carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment" of 6 March 1997 (noting the absence of appropriate legislation and recommending "that persons deprived of their liberty by the police be expressly guaranteed the right to have access to a doctor").

2. The applicant alleges that, due to the excessive length of the criminal proceedings over the killing of Mr T., there has also been a violation of her right under Article 6 § 1 of the Convention to a determination "within a reasonable time" of her civil right to compensation arising out of the killing.

Referring to the Court's case-law, the applicant asserts that situations in which a victim of a crime has joined a pending criminal investigation as a civil party fall within the ambit of Article 6 of the Convention. The applicant acknowledges that she has not yet filed a claim for compensation in the framework of the criminal proceedings but maintains that for the purposes of Article 6 of the Convention she has the status of a civil party. In her view, under the Code of Criminal Procedure the acquisition of the status of a "civil plaintiff" is not conditioned upon the actual submission of a compensation claim in the framework of the criminal proceedings.

The Code allows the victim of a crime to submit a claim for damages at any stage of the criminal proceedings prior to the commencement of the trial. The applicant is currently unable to file a compensation claim as she has to indicate the name of the perpetrator who has not yet been identified by the investigation. Therefore, the applicant maintains that for purposes of Article 6 of the Convention her status as a civil party should not depend on whether she has filed a compensation claim, a legal possibility which is still available to her but which she cannot exercise currently. The relevant fact should be that she has made use of her rights by submitting requests and complaints.

The applicant submits that the "reasonable time" within the meaning of Article 6 § 1 of the Convention has already been exceeded and that there has been inexcusable inactivity on the part of the authorities.

3. The applicant submits that there have been two separate violations of Article 13 of the Convention: in that the authorities failed to carry out a thorough and effective investigation into Mr T.'s death; and in that Bulgarian law provides no effective remedy against the inactivity of the prosecution authorities.

The applicant refers to her submission in respect of the alleged violation of Article 2 of the Convention. She also states that she was refused effective access to information about the investigation.

The applicant submits that failure to carry out a thorough and effective investigation in this case reflects a broader pattern in Bulgaria which has been noted by inter-governmental 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 inter alia that "[t]he Special Rapporteur is concerned by the frequency of allegations of torture or ill-treatment, sometimes followed by death, of persons in police custody. 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. [The Special Rapporteur] 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 submits, referring to the case of Silver and Others v. the United Kingdom (Series A no. 61), that in order to comply with the requirements of Article 13 the decision-making authority capable of providing a remedy should be "sufficiently independent", in law and in practice, of the authority alleged to be responsible for the violation of the Convention. However, in Bulgaria there exists no opportunity for a victim of a crime to launch a private prosecution if the State authorities do not meet their responsibility to carry out a prompt, thorough and effective investigation. Similarly, the victim of an act contrary to Article 2 has no possibility to obtain judicial review of an arbitrary decision of the prosecution authorities or to seek review of their failure to conduct an investigation. Nor is the prosecution's activity subjected to public scrutiny in any meaningful sense.

Furthermore, Bulgarian prosecutors exercise dual and contradictory functions as parties to, and supervisors over, the criminal proceedings. As parties they participate in criminal proceedings as representatives of the State: they investigate, bring charges, and represent the prosecution at trial and on appeal. As supervisors, prosecutors act as the final decision-making body in an investigation, administer the criminal proceedings in their pre-trial phase and wield the ultimate power of terminating investigations without bringing charges. The applicant submits that in this respect Bulgarian legislation and practice fall short of the prevailing European standards.

4. The applicant alleges a violation of Article 14 taken together with Articles 2 and 13 of the Convention.

She submits that popular prejudice against Romanies in Bulgaria is widespread and has frequently manifested itself in acts of racially motivated violence against Romanies, to which the authorities react by inadequate investigation leading to practical impunity. The applicant states that this phenomenon has been documented by human rights monitoring organisations and has been acknowledged by the Bulgarian Government. She refers to the Fourteenth Periodic Report of States parties due in 1996 (Addendum - Republic of Bulgaria), of 26 June 1996, issued by the United Nations Committee on the Elimination of Racial Discrimination; to the Reports of 25 January and 24 December 1996 (E/CN.4/1996/4 and E/CN.4/1997/60) by Mr Bacre Waly Ndiaye, Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions Commissioned by the United Nations Commission on Human Rights; to the Report of the European Committee for the Prevention of Torture of 6 March 1997; and to reports of non-governmental organisations.

 

 She submits that Mr T.'s ethnic origin was known to the police officers who apprehended him and held him in custody and that the officers' perception thereof was so strong that at least one of them, sergeant I., in testimony during the investigation, made explicit references to his ethnic origin. In the applicant's view, based on her experience over many years with law enforcement and investigation authorities in Bulgaria, the police officers' perception of Mr T.'s ethnicity was a decisive factor in contributing to his ill-treatment and murder.

PROCEDURE

The application was introduced on 12 February 1998 before the European Commission of Human Rights and registered on 9 June 1998.

On 7 September 1998, the Commission decided to communicate the application to the respondent Government.

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.

The Government’s written observations were submitted on 14 December 1998, after an extension of the time-limit fixed for that purpose. The applicant replied on 8 February 1999.

THE LAW

1. The applicant’s locus standi

The Government contend that the applicant has no standing to bring an application as she was never married to Mr T. The only legal heirs of Mr T., who had been twice married and divorced, were his seven children. The Government emphasise that under Bulgarian law civil marriage alone has the effect of creating a legal link between cohabiting partners and contend that under the Court’s case-law only the legal heirs of a deceased person may claim to be indirect victims of alleged violations of the Convention in respect of that person. Finally, the Government submit that since the applicant was not entitled to bring an application, she could not validly empower her representative to do so.

The applicant replies that at the time of Mr T.’s death she had lived with him for more than 12 years and that they had three children, born in 1981, 1983 and 1984. She further contends that on the basis of the principles underlying the Convention and the Court’s case-law, she may claim to be a victim of the violations alleged in her application. It is only natural that she, who lived on an everyday basis with Mr T., would seek justice on his behalf. It was her who suffered a personal injury by his death. The applicant further refers to the case-law of the Bulgarian Supreme Court and to the fact that the prosecution authorities accepted and ruled on her appeals against the suspension of the investigation into the death of Mr T.

The applicant also argues that in several decisions the Convention organs have accepted the locus standi of siblings and that the Inter-American Court of Human Rights has accepted the right to damages of a common-law wife in a case concerning death in custody (Aloeboetoe case (Reparations), 15 Inter-Am Ct HR (ser C), § 97 (1993)).

The Court first notes that the Bulgarian Supreme Court has recognised the right of an unmarried partner to damages in tort in respect of the wrongful killing of the other partner on the basis of the understanding, notably, that such a partner “sustains moral damages” and that awarding compensation is “just” (see above, Relevant domestic law and practice). Moreover, none of the domestic authorities which were seized of the applicant’s complaints in respect of Mr T.’s death questioned her locus standi. The prosecution authorities examined and ruled on her appeal against the suspension of the criminal proceedings.

The Court recalls that the word “victim” in the context of Article 34 of the Convention denotes the person directly affected by the act or omission in issue (see the Lüdi v. Switzerland judgment of 15 June 1992, Series A no. 238, p. 18, § 34). Consequently, the conditions governing individual applications under the Convention are not necessarily the same as the national criteria relating to locus standi in legal proceedings. National rules in this respect may serve purposes different from those contemplated by Article 34 and, whilst those purposes may sometimes be analogous, they need not always be (see the Norris v. Ireland judgment of 26 October 1988, Series A no. 142, p. 15, § 31). Indeed, the underlying object of the Convention mechanism is to provide an effective and practical safeguard to those personally affected by violations of fundamental human rights.

The Convention organs have always and unconditionally considered in their case-law that a parent, sibling or nephew of a person whose death is alleged to engage the responsibility of the respondent Government could claim to be the victim of an alleged violation of Article 2 of the Convention even where closer relatives, such as the deceased person’s children, have not submitted applications. In all these cases the question whether the applicant was the legal heir of the deceased person was without relevance (see, inter alia, the Yaşa v. Turkey judgment of 2 September 1998, to be published in Reports of Judgments and Decisions (Reports), 1998-VI, pp. 2429-30, § 66; no. 25052/94, Dec. 5.7.1995, DR 82, p. 102; no. 11257/84, Dec. 6.10.1986, DR 49 p. 213; no. 9833/82, Dec. 7.3.1985, DR 42 p. 53; no. 9348/81, Dec. 28.2.1983, DR 32 p. 190; no. 9360/81, Dec. 28.2.1983, DR 32 p. 211).

The Court recalls that a couple who have lived together for many years constitute a “family” for the purposes of Article 8 of the Convention and are entitled to its protection notwithstanding the fact that their relationship exists outside marriage (see the Johnston and Others v. Ireland judgment of 18 December 1986, Series A no. 112, p. 25, § 56). In the present case the applicant raises complaints in respect of the death of Mr T., with whom she had lived for more than 12 years. They had three children together. In these circumstances, the Court has no doubt that the applicant may claim to be personally affected by, and therefore a victim of, the alleged violations of the Convention in respect of the death of Mr T. and the subsequent investigation into this event. There is no valid reason for the purposes of locus standi to distinguish the applicant’s situation from that of a spouse.

The Court finds, therefore, that the applicant has standing to bring an application under Article 34 of the Convention in respect of the death of Mr T. and the ensuing investigation.

2. The applicant’s complaints under Article 2 of the Convention

The applicant raises three complaints, claiming that each of them discloses a separate violation of that provision. She submits that Article 2 was violated on account of the fact that Mr T.’s death was caused by ill-treatment by police officers, on account of the alleged lack of effective investigation and also because Mr T. did not receive adequate medical aid while in custody. Article 2 of the Convention, insofar as relevant, 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 …”

a) The Government contend that these complaints are inadmissible under Article 35 § 1 of the Convention. In their view the domestic remedies have not been exhausted as none of the legal successors of Mr T. has applied to the competent Bulgarian authorities and also because the applicant has not appealed against the decision of the Regional Prosecutor’s Office of 3 June 1997 and has not brought a civil action for damages.

In respect of the civil claim for damages the Government submit that this is an effective remedy as the civil courts are not bound by the findings of the prosecutors. The applicant and Mr T.’s legal heirs were free to apply to the civil courts on the basis of sections 45-49 of the Law on Obligations and Contracts (Закон за задълженията и договорите) or pursuant to the Law on State Responsibility for Damage to Individuals (Закон за отговорността на държавата за вреди причинени на граждани). The Government further suggest that the applicant may have chosen not to employ this remedy because she knew that she would not be able to prove her allegations in a civil court.

Finally, the Government submit that if the decision of 3 June 1997 of the Regional Prosecutor’s Office was to be considered a final decision, the application has been introduced after the expiry of the six months’ time-limit.

The applicant replies that on 3 June 1997 regional prosecutor Popova sent a letter to the Chief Public Prosecutor’s Office expressing her opinion that the investigation should be suspended. In the applicant’s view, this was not a formal decision and could not be appealed against. The investigation is formally still pending but has been dormant since 1994. The applicant has no effective remedies at her disposal to expedite the investigation. Also, as the inactivity of the authorities continues, the six months’ period has not begun to run.

The applicant further replies that civil remedies are inadequate where the domestic prosecution authorities have not fulfilled their duty under the Convention to investigate effectively an allegation concerning death in the hands of the police. The applicant considers that even if she brings a civil action for damages its examination will be suspended under section 182(d) of the Code of Civil Procedure if fresh evidence relevant to the penal proceedings comes to light. Finally, in the applicant’s submission, certain aspects of the question of exhaustion of domestic remedies coincide with the issue of whether or not the Convention has been violated.

The Court recalls that the rule of exhaustion of domestic remedies 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 the Buscarini and Others v. San Marino judgment of 18 February 1999, § 26, to be published in the Court’s official reports).

An alleged violation of Article 2 of the Convention cannot be remedied exclusively through an award of damages to the relatives of the victim (see the Kaya v. Turkey judgment of 19 February 1998, Reports 1998-I, p. 329, § 105). In such case an applicant who has exhausted all the possibilities available to him within the criminal justice system is not required, in the absence of a criminal prosecution in connection with his complaints, to embark on another attempt to obtain redress by bringing a civil action for damages (see, mutatis mutandis, the Assenov and Others v. Bulgaria judgment of 28 October 1998, Reports 1998-VIII, p. 3175, § 86).

In the present case the Court notes that the investigation into the death of Mr T., which commenced on 25 September 1994, has not yet resulted in the bringing of any charges or in any other finding. The applicant submitted complaints to the prosecution authorities and appealed to the Chief Public Prosecutor’s Office against the suspension of the criminal investigation. Considering that the investigation was practically dormant, she requested, on several occasions, that it should be expedited, but received no information about any new developments. She introduced her application less than six months following her last attempt to obtain information about the course of the proceedings.

The Court concludes, therefore, that the applicant has made normal use of the domestic remedies available to her and that her complaints under Articles 2 and 14 of the Convention cannot be rejected under Article 35 § 1 of the Convention.

b) The Government contend that the complaints under Article 2 of the Convention are in any event manifestly ill-founded. In their view, the applicant’s allegation that Mr T. died as a result of ill-treatment by police officers is not supported by the evidence in the case. The investigation has established that prior to his arrest he had consumed a large quantity of alcohol and that he had been staggering and falling when apprehended and later at the police station. At the same time little and highly contradictory evidence is available regarding the manner in which he had spent the hours prior to his arrest. Also, the forensic medical experts considered that the injuries found on Mr T.’s body could have been the result of falling. These considerations and the fact that no evidence of police brutality was established during the investigation must lead to the conclusion that the applicant’s allegations are unfounded.

The Government further affirm that all necessary investigation steps were undertaken promptly. An investigator visited the site immediately after Mr T.’s death and then proceeded with questioning witnesses. An autopsy was ordered and promptly performed. Therefore, the allegation that the investigation was not effective is also unfounded.

 

 In respect of the alleged lack of adequate medical care, the Government recall that when arrested Mr T. was under the influence of alcohol and was not communicative. He did not complain of any pain or medical problem. It was normal in these circumstances that the police officers decided to leave him to sober up. When later in he evening Mr T. displayed signs of ill health, the police officers immediately called for an ambulance. The medical doctor who arrived examined Mr T. and considered that there was no urgent medical problem. When shortly before 2 a.m. Mr T.’s health sharply deteriorated, the officer on duty again requested an ambulance. In the Government’s view, therefore, the police cannot be held responsible for not having provided adequate medical treatment.

The applicant replies that, since Mr T. died in police custody, according to the Court’s established case-law, it is for the Government to provide a plausible explanation of the events leading to his death. In her view the version of the facts suggested by the Government, who imply that Mr T. must have died because of his falling on the ground, is far from being plausible and is not supported by any evidence. At the same time, it is not disputed that Mr T. had no injuries at the time of his arrest. In fact there is evidence that he performed hard physical labour before his arrest. In the applicant’s submission, the injuries found on Mr T.’s body, as described in the post mortem report, were so severe that they could have only been inflicted by deliberate beating.

The applicant further reiterates her arguments that the investigation was ineffective: it has been excessively long and has been dormant since December 1994; the report of the investigator about his inspection of the site and of Mr T.’s body was not signed by the witnesses who attended and will be therefore considered inadmissible in any future criminal proceedings; the police officers were never asked to explain whether they had noticed injuries; the medical doctor and his assistant were never questioned despite the obvious importance of their testimony; the forensic expert was never asked to describe how visible were Mr T.’s injuries or to assess their probable timing; investigator Enchev and prosecutor Popova displayed obvious bias in the conduct of the proceedings.

Finally, the applicant refers to her arguments as presented in the application form in respect of the allegedly inadequate medical aid provided to Mr T. while in custody (see above “Complaints”).

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’s complaints under Articles 6 and 13 of the Convention

The applicant complains under Article 13 of the Convention that the authorities failed to carry out a thorough and effective investigation into Mr T.'s death and that Bulgarian law provides no effective remedy against the inactivity of the prosecution authorities. The applicant also alleges that the excessive length of the investigation concerning the killing of Mr T. violated her right under Article 6 § 1 of the Convention to a determination "within a reasonable time" of her civil right to compensation arising out of the killing.

Article 6 § 1 of the Convention provides as follows:

“Article 6 – Right to a fair trial

1.  In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”

Article 13 of the Convention, insofar as relevant, provides as follows:

“Article 13 – Right to an effective remedy

Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Government submit that if the applicant were a legal successor of Mr T., she could have applied to be admitted as a party to the criminal proceedings (as a private prosecutor or as a plaintiff in a claim for damages). As a party to the criminal proceedings, she would have been entitled to request the collection of evidence and would have had access to the case-file. In the event of a refusal of a prosecutor to admit the applicant or Mr T.’s heirs as parties to the proceedings, appeals could have been lodged with the higher prosecutor. The Government conclude that Bulgarian law provides for effective legal remedies, which have not been employed by the applicant or Mr T.’s heirs. Finally, the Government submit that the progress of the criminal investigation has not been impeded as the authorities are under a legal obligation to reopen the investigation if new evidence comes to light.

The applicant refers to her initial submissions (see above “Complaints”).

Having examined the applicant’s complaints under Articles 6 and 13 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’s complaints under Article 14 of the Convention in conjunction with Articles 2 and 13

The applicant claims that there has been discrimination contrary to Article 14 of the Convention on the basis of Mr T.’s Gypsy ethnic origin.

 

“Article 14 – Prohibition of discrimination

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as … race, colour,… association with a national minority,… or other status.”

The Government argue that this complaint has never been raised, even in substance, before the domestic authorities and that therefore the domestic remedies have not been exhausted. The Government further submit that there is nothing to indicate that the police acted on the basis of Mr T.’s ethnic origin. He was arrested on the suspicion of having committed a serious crime. He was not described as a “Gypsy” but even if he was, this was not an offence because his ethnic origin was indeed that of a “Gypsy”.

The applicant refers to her initial submissions (see above “Complaints”).

The Court notes that the investigation into Mr T.’s death has not moved beyond the level of a preliminary investigation and that no charges have been brought against a suspected perpetrator. At this stage it would have served no useful purpose for the applicant to raise her suspicions that the perpetrators have been motivated by racial prejudice. Indeed, the lack of progress in this respect is the gist of the applicant’s complaints under Articles 2 and 13 of the Convention. Therefore, the Government’s objection cannot be sustained.

Having examined the applicant’s complaints under Article 14 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.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the merits.

Vincent Berger Matti Pellonpää 
 Registrar President

41488/98 - -


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