CASE OF ANGUELOVA v. BULGARIA
(Application no. 38361/97)
13 June 2002
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention.
In the case of Anguelova v. Bulgaria,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Mr C.L. Rozakis, President,
Mr G. Bonello,
Mr P. Lorenzen,
Mrs N. Vajić,
Mrs S. Botoucharova,
Mr V. Zagrebelsky,
Mrs E. Steiner, judges,
and Mr E. Fribergh, Section Registrar,
Having deliberated in private on 23 May 2002,
Delivers the following judgment, which was adopted on that date:
1. The case originated in an application (no. 38361/97) against the Republic of Bulgaria lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Bulgarian national, Mrs Assya Anguelova (“the applicant”), on 20 September 1997.
2. The applicant, who had been granted legal aid, was represented before the Court by Mr Y. Grozev, a lawyer practising in Sofia. The Bulgarian Government (“the Government”) were represented by their Agents, Mrs V. Djidjeva and Mrs G. Samaras, of the Ministry of Justice.
3. The applicant alleged that her son had been ill-treated by police officers and had died as a result, that the police had failed to provide adequate medical treatment for her son's injuries, that the authorities had failed to carry out an effective investigation, that her son's detention had been unlawful, that she did not have an effective remedy and that there had been discrimination on the basis of her son's Roma/Gypsy origin.
The applicant relied on Articles 2, 3, 5, 13 and 14 of the Convention.
4. The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).
5. The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court).
6. By a decision of 6 June 2000, having regard to all the submissions of the parties on the admissibility and merits of the case, the Chamber constituted within that Section in accordance with Rule 26 § 1 declared the application admissible [Note by the Registry. The Court's decision is obtainable from the Registry].
7. On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1). This case was assigned to the newly composed First Section (Rule 52 § 1).
8. The Chamber constituted within that Section decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 2 in fine). The applicant, but not the Government, filed observations on the merits (Rule 59 § 1).
I. THE CIRCUMSTANCES OF THE CASE
9. The applicant, Mrs Assya Anguelova, is a Bulgarian national who was born in 1959 and lives in Razgrad.
10. On 29 January 1996 her son, Anguel Zabchekov, aged 17, who had been known to the police as a suspect on theft charges, 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 contested that conclusion.
The applicant describes herself and her late son as belonging to the Roma/Gypsy ethnic group).
11. According to the statements of several witnesses, on 28 January 1996 Mr Zabchekov spent part of the day doing some odd jobs for a neighbour. In the evening he went home for 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 afterwards. Mr M. stated that he had then left the bar with Mr Zabchekov and that they had parted at the door, Mr M. returning home.
All the witnesses (the owner of the bar, the person for whom Mr Zabchekov had 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.
12. At about midnight on 29 January 1996 a Ms I.A., who lived in a block of flats in Beli Lom Street in Razgrad, noticed from her balcony a man later identified as Mr Zabchekov hanging around by parked cars, bending over and “doing something”. Ms I.A. telephoned a neighbour, Ms I.M. The two women shouted at Mr Zabchekov from their balconies 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 whom also lived in the same block of flats, were passing by in the street and were alerted by their neighbours.
13. Mr Zabchekov attempted to run away, and C ran after him. 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 stated that there had been snow on the ground.
14. C later stated that while trying to run away Mr Zabchekov had slipped and fallen down but had quickly stood up again. This was confirmed by Ms I.A. and Ms I.M., who had been watching from their balconies. They explained that Mr Zabchekov had fallen on a patch of grass. However, D, who had remained in the street and had also observed the incident, stated that he had not seen Mr Zabchekov falling at any moment before his arrest. He repeated that statement at a confrontation with the other witnesses.
15. C was the only witness of the events between the moment when Mr Zabchekov and he had turned round the corner and the moment when they had reappeared in front of the building in Beli Lom Street. C stated that Mr Zabchekov had slipped and fallen down two more times. As a result, C had been able to catch up with him and, while Mr Zabchekov was back on his feet and running, C had tripped him up, Mr Zabchekov had fallen to the ground and C had pounced on him. C had then pulled Mr Zabchekov up by the arm and had led him back. Asked to specify the part of his body on which Mr Zabchekov had fallen, C replied that the boy had fallen on his face. C could not remember whether Mr Zabchekov had protected his face with his hands. C also stated that he had had difficulty in running and apprehending Mr Zabchekov because he had had a leg injury and his shoelaces had been untied.
16. Sergeant Dimitrov (“G”), one of the police officers who arrived later, stated as follows: “When we arrived on the spot [C] told us that while he was trying to arrest Mr Zabchekov the latter ran away and fell two or three times and that if he had not fallen C would not have been able to catch up with him.”
17. The witnesses were unanimous that, while C had been leading Mr Zabchekov back to the entrance of the block of flats, the latter had slipped and fallen. There were discrepancies as to precisely how that had happened. Ms I.M., who observed the incident from her balcony, stated that when C and Mr Zabchekov had reappeared from around the corner of the building, the latter had slipped, fallen and rolled over. D stated, however, that Mr Zabchekov's leg had slipped and he had fallen on his buttocks. C maintained that Mr Zabchekov had in fact only slipped but had not fallen, because he had been holding him.
18. C stated that he had not hit Mr Zabchekov and had not seen anyone hitting him. That was confirmed by Ms I.A. and Ms I.M. The latter, who was also the owner of one of the cars in the car park, clarified that she had indeed seen Mr Zabchekov rolling on the ground when C was leading him back after the chase, but stated that she had not seen anyone kicking him or beating him. D did not mention whether he had seen anyone hitting Mr Zabchekov.
19. C also stated that when he had been in close contact with Mr Zabchekov after arresting him he had not noticed any traces of blood or any grazes on his face. He added that Mr Zabchekov's hair covered part of his forehead and that the colour of his face was dark. D stated that he had not noticed any blood or grazing on Mr Zabchekov's face. He added that the latter smelled of alcohol.
20. Having apprehended Mr Zabchekov, C asked Ms I.M. to call the police, which she did at about 12.20 a.m. Afterwards, she remained inside her flat.
21. C, D and Mr Zabchekov waited at the entrance of the block of flats, apparently for about ten or twenty minutes. It appears that Ms I.A., who stayed on her balcony, did not have a view of the entrance.
22. The witnesses' statements contain few details as to whether there was any kind of verbal exchange between Mr Zabchekov and any of them before the arrival of the police. Some of the witnesses stated that Mr Zabchekov had been mumbling something barely comprehensible. According to Ms I.M., who was watching from her balcony, Mr Zabchekov had repeated several times that he was drunk. Ms I.A., Ms I.M. and C stated that, when Mr Zabchekov had fallen to the ground after being arrested, C had told him: “Get up, I'm not going to drag you.” D stated that he had not heard any such words being uttered. None of the witnesses' statements indicates whether C or D spoke with Mr Zabchekov during the time when they were alone with him at the entrance of the block of flats.
23. In the statement he gave on 29 January 1996, C said that, after the police had left with Mr Zabchekov, he had found a wrench on the spot where D, Mr Zabchekov and himself had been waiting for the police to arrive. C thought that it must have belonged to Mr Zabchekov as it was the right size for removing a car battery. C explained in his statement that he had kept the wrench and had handed it over to the investigator in the morning on 29 January 1996 when he had been summoned to the police station after the death of Mr Zabchekov. However, in a statement taken on 31 January 1996 Sergeant Atanassov (“H”), who had been on duty at the police station when Mr Zabchekov was brought there, said that he had noticed the wrench on a desk at the police station no later than 1.30 a.m., shortly after Mr Zabchekov had arrived there. At a confrontation with the other police officers on 26 April 1996, H recalled that he had in fact first seen the wrench at a later stage.
24. When the telephone call was received at the local police station a patrol car with two police officers, Sergeants Penchev (“A”) and Kolev (“B”), was dispatched to the address. When the police officers arrived they saw C and Mr Zabchekov at the entrance of the block of flats. D was also standing nearby.
25. A recognised Mr Zabchekov, whom he knew as a suspect in several pending theft investigations, and addressed him by name. He handcuffed him. A and some of the other police officers later asserted that at that moment A warned the others to be careful as Mr Zabchekov had a “brain disease”.
26. Another police car, with three police officers, Sergeants Ignatov (“E”), Georgiev (“F”) and Dimitrov (“G”), arrived shortly afterwards. The officers then proceeded to search the area for evidence of attempts by Mr Zabchekov to break into cars. At some point, A led Mr Zabchekov to one of the cars which appeared to have been broken into and asked him whether he had been trying to steal anything. Mr Zabchekov allegedly denied this. He was then handcuffed to a small tree and the police officers continued to search the area. Having identified two cars which had been broken into, the police officers rang the owners' doorbells. One of them came out and went to see the damage done to his car. During that time Mr Zabchekov remained handcuffed to the tree.
27. The only witnesses who gave details about the events between the police's arrival and their departure with Mr Zabchekov were the police officers on duty. Ms. I.A., and D merely 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 was with the police officers at the car park, where his colleagues were comparing the soles of Mr Zabchekov's shoes with traces visible in the snow. One of the car owners was questioned, but only in respect of the damage caused to his car, by a police officer who visited the site later, at about 11 a.m. on 29 January 1996.
28. According to some of the police officers, at some point when they were searching the area they had noticed Mr Zabchekov lying or sitting on the ground. A stated that at that point he had released Mr Zabchekov from the tree, placed him on the back seat of the police car and handcuffed both his hands. All the police officers who were present in 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 appeared to be drunk, and that he had been mumbling and had not been communicative.
29. At about 12.50 a.m. Mr Zabchekov was taken to the police station by A and B.
The sergeant on duty, H, stated that he had seen A and B enter the police station with Mr Zabchekov walking between them. The latter's hands had been handcuffed behind his back. A and B had been holding him by the arms and leading him in. Mr Zabchekov had been put in office no. 1. A stated that at that point he had removed the handcuffs from the boy.
30. No written order for Mr Zabchekov's detention was issued.
31. According to the statements of A, B and H, Mr Zabchekov stayed in office no. 1 with B and H, while A went to report to the senior officer on duty, Colonel Iordanov (“I”). H further stated 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 had been wet. They all noticed that Mr Zabchekov had been drunk and mumbling.
Colonel I stated that A had informed him that Mr Zabchekov had been brought to the police station; A had said that the arrested person had been identified, but was too drunk for questioning. Colonel I had not seen Mr Zabchekov until about 4.30 a.m. According to the sergeants' statements, Colonel I had ordered that Mr Zabchekov should be given a seat in the passage to sober up. A had then instructed H to call him over the radio as soon as Mr Zabchekov was able to communicate. At an unspecified time A and B had left the police station and returned to their patrol duties.
32. H stated that Mr Zabchekov had fallen asleep soon afterwards, on a chair in the passage, and had been snoring. At about 3 a.m. H had allegedly noticed that Mr Zabchekov had been lying asleep on the floor. H had woken him and put him back on the chair, thinking that “he might catch a cold”. H further stated 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 had decided to move him back to office no. 1, where it had been warmer. He had woken him and helped him enter the room. Shortly afterwards Mr Zabchekov had slipped from the chair. H had noticed that he had been breathing heavily. H stated that at that point he had contacted Sergeant Dontchev (“J”), and had told him “to call Sergeant Penchev [A] or an ambulance”.
33. J stated that, in accordance with the duty schedule, he had slept on the premises of the police station until 2 a.m. on 29 January 1996, when he had been woken for duty. He had not been informed that anyone was being detained. J's statement did not mention whether, between 2 a.m. and 3.50 a.m., he had gone down the passage where, at that time, according to H, Mr Zabchekov had been sleeping on a chair. J stated that he had only become aware of Mr Zabchekov's presence when at 3.50 a.m. H had reported that the boy's condition seemed to be deteriorating. J had then seen him, noticing injuries on his forehead, and had called A and B by radio.
34. At approximately the same time H or J had alerted Colonel I, the senior officer on duty. I stated that at that moment he had noticed injuries on Mr Zabchekov's face.
35. A and B stated that at 4.30 a.m. they had been contacted by radio and had been told that Mr Zabchekov's condition was rapidly deteriorating. Arriving at the police station, the sergeants had seen Mr Zabchekov lying on the ground, breathing heavily. B had then driven to the hospital and had returned, with Dr Mihailov, the paediatrician on duty, following in an ambulance.
36. Dr Mihailov later stated that at about 5 a.m. the hospital employee in charge of emergencies had asked him to go to the police station “for a 15-year-old boy”. Dr Mihailov explained that he had seen that employee talking to the police officers. He also pointed out that he had not been given any prior information about the boy's condition.
37. Dr Mihailov examined Mr Zabchekov at the police station and advised that he should be taken to hospital as his pulse rate was low. Mr Zabchekov was driven to the hospital in the ambulance, with A and B following in their police car. When they arrived at the hospital, A and B helped to bring Mr Zabchekov to the corridor in front of the office of the doctor on duty. According to the statements of A and B, when Mr Zabchekov was examined several minutes later by Dr Ivanova, the internist on duty, there had followed a heated discussion between her and Dr Mihailov. The police officers had then been informed that Mr Zabchekov had died.
38. B stated that Dr Ivanova had said to him and his colleague: “You must have known Mr Zabchekov's condition”, and that she had insisted that she had not seen him breathing.
39. Dr Mihailov stated that in the police station he had noticed bruises on Mr Zabchekov's chest and that at that time the boy had still been alive but had been unconscious with a weak pulse.
Dr Mihailov had then asked the police officers how long the boy had been in such a condition. The police officers had replied: “He was brought to the police station in that condition.
40. Dr Ivanova stated 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 had attempted cardiac massage, but to no avail. She further stated that, when she had asked why Dr Mihailov, and not herself, as the internist on duty, had been dispatched to the police station, the hospital employee in charge of emergencies had replied that the request for an ambulance had been said to concern a child, and so it had been decided to send the paediatrician on duty.
41. According to normal practice, all detentions are recorded in a register kept at the police station. The register contains a series of entries organised in 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 order.
42. At the Court's request the Government submitted a copy of the Razgrad police station's register for 29 January 1996. The register does not contain an entry for Mr Zabchekov. However, it contains an entry for an “unidentified person” who was assigned number 72.
43. The register does not contain a separate column recording the time of detention. In respect of some of the detainees listed on the same page the time of detention is mentioned together with the date. In respect of the “unidentified person”, as with some of the other detainees listed on the same page, there is no mention of the time of detention in the column indicating the date. However, immediately after the words “unidentified person”, there appears, spread over two columns and two lines, the entry “29 I 96, 01.oo”. A visual examination of the copy of the register shows that the figure “1.oo” has been written over a figure which, as far as legible, had originally read “3.oo” or “5.oo”.
44. It can be also observed that the registration numbers on the same page have been written over. From the copy provided by the Government it is difficult to see the original numbers that were altered. Nevertheless, it can clearly be seen that there are equal spaces between each of the entries except the numbers “72” and “73”, between which there is a significantly smaller space.
45. The entry under number 72 for the detention of an unidentified person states that that person was brought to the police station by A. On the right-hand side of the same line there appears a signature which, in so far as it is legible, appears to be that of Colonel I.
46. In the course of the investigation Colonel I, the senior officer on duty, and J, his assistant that night, were questioned in relation to the registration of Mr Zabchekov's presence at the police station. Colonel I stated that he had not instructed A to register the detainee since A was familiar with the procedure. J stated that shortly after 3.50 a.m., when he had been alerted by H about Mr Zabchekov's deteriorating condition, he had checked the register of detainees but had not seen any entry concerning him. Colonel I further denied having made an entry in the register and stated that the entry for an unknown person had not been there when he had left the police station after Mr Zabchekov's death.
47. Early in the morning of 29 January 1996 the police officers involved submitted a written account of the night's events to the head of the local police.
Towards the end of his handwritten report C stated, with no apparent connection with the surrounding text: “The person I apprehended was swarthy (Gypsy)” (“Този когото задържах беше мургав (циганин)”).
48. The head of the local police opened file ZM-I no. 128 which contained a summary of the events, the reports of seven police officers and the written statements by D and one of the owners of the cars which Mr Zabchekov had allegedly tried to break into.
Also early in the morning of 29 January 1996 Mr Neshev, an investigator from the Regional Investigation Service (Окръжна следствена служба) in Razgrad opened criminal proceedings under file no. 13/1996 to investigate the death of Mr Zabchekov.
49. According to the applicant, at 8 a.m. on the same day Mr Neshev, accompanied by two uniformed police officers, went to 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.
50. Also on 29 January 1996, Mr Neshev questioned the police officers involved and D, the young man who had been with Sergeant Mutafov (C) during the brief chase on Beli Lom Street. The investigator also visited the hospital and saw Mr Zabchekov's body. Pictures of the body were taken.
51. On the same day at about 11.45 a.m. an officer from the local police went to Beli Lom Street in connection with the reported car-theft attempt. He noted that two cars bore signs of attempted theft and questioned their owners. 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 patch in the snow. Laboratory analysis revealed that it was animal blood.
52. Also on 29 January 1996 Mr Neshev ordered an autopsy. He put the following questions to the medical experts:
“What are the causes of Zabchekov's death? Are there any traumatic injuries on Zabchekov's body? Do they have any causal relation to the death? How were the injuries inflicted? How long was the period between the infliction of the lethal injury and the death and is it possible, as witnesses claimed, that Zabchekov was conscious until 4.30 a.m.? Is the lethal injury related to injuries in places where the skin was broken? Are there any other visible injuries and did they require, in view of their visible characteristics, immediate medical treatment?”
53. The autopsy was carried out on 29 January 1996 (starting at 11.30 a.m.) by three doctors at the Regional Hospital in Razgrad. These were Dr Minchev, head of the forensic department, Dr Militerov, head of the pathology department, and Dr Marinov, a doctor in the forensic department.
54. In their report, dated 29 January 1996 (“the first report”), the experts described their findings in detail. Photographs were taken.
55. The external inspection of the body revealed, inter alia:
“At the outer end of the left eyebrow, over the orbital rim, a superficial wound of longish shape, measuring 1 cm by 0.4 cm, with slightly uneven and grazed edges, and covered by a thin brownish scab. The soft tissue around the wound is slightly swollen, the skin being of bluish-purple colour. The eyeball of the left eye is slightly protruded (outwardly) ...
A slight surface scar 3.5 cm long, with mild bruising ... on ... the left wrist ...
Two surface bruises measuring 7.5 cm by 0.5 cm and 3.5 cm by 0.6 cm, of brownish colour, covered by a reddish scab on the right wrist ...”
56. In the concluding part of the report the experts summarised the injuries on Mr Zabchekov's body as follows:
“[1.] Skull and cerebral trauma: Superficial lacerated contusion (a deep bruise) located on the outer side of the left eyebrow along its orbital rim; haematomas on the skin and in the soft tissue around this wound and on the left eyelid, 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 death]).
[2.] Haematoma on the skin, spotted in a characteristic manner, and haematoma in the soft tissue on the right side of the chest, along the anterior axillary 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 tissue 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 of typical shape, and haematoma in the soft inner tissue, in the area of the wrist joint of the right hand.”
57. The experts further concluded:
“[The death was caused by] accumulated epidural cerebral haematoma on the left-hand side of the forehead, containing 110 ml of blood, followed by a cerebral oedema, with wedging of the cerebellar tonsils into the foramen magnum; this oedema led to the suppression and detachment of vital brain centres (those of breathing and heart activity, which in turn caused a pulmonary oedema), and was the direct cause of death.”
58. Addressing the question of the manner in which the injuries had been inflicted, the experts stated:
“1. The injury in the area of the left orbital rim and the left eyeball and the epidural haematoma were 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 sudden and sufficiently strong. It caused the fracture of the back wall of the left 'eye bone' reaching its lower external side (furthermore, the skull bones are 0.2 cm thick);
2. [The injury to 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 marks in this area are spotted in a manner characteristic of an imprint of the victim's clothes.
3. [The injuries to the right side of the forehead and to the wrists were the result of] blows, or pressing, by or against sharp-edged objects. [The injury to the left part of the lower lip was caused by] a blow by or against a hard blunt object having a delineated [limited] surface.”
59. The experts also stated that in cases of epidural haematoma of the kind Mr Zabchekov had suffered there was characteristically a lucid interval of four to six hours during which no visible signs would be displayed, except that
“the victim gradually becomes feeble, apathetic and sleepy, after which he falls into a coma and dies – as happened in the present case (during the period between 1 a.m. and 5 a.m. on 29 January 1996).”
The report concluded that Mr Zabchekov's death had been inevitable in the absence of urgent surgical intervention.
60. The laboratory analysis found an alcohol level of 1.42‰ in Mr Zabchekov's blood and 2.40‰ in his urine, corresponding to a medium level of alcohol intoxication.
61. According to the applicant, in the morning of 30 January 1996 she went to the office of the Regional Investigation Service in Razgrad and requested information about the circumstances surrounding her son's death. 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.
According to the applicant, during this meeting Mr Neshev asserted that her son had been taken to hospital, omitting the fact that he had been in police custody. When asked how Mr Zabchekov's skull could have been fractured as a result of his fall, Mr Neshev had allegedly explained that the autopsy had found an “abnormally thin skull”.
62. 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 his body. The applicant went to the office of a local newspaper, spoke with two journalists and took them to her home, where they took pictures of Mr Zabchekov's body and clothes. Late in the afternoon of 30 January 1996 Mr Zabchekov was buried.
63. On 31 January and 1 February 1996 the investigator questioned Ms I.M. and Ms I.A.
64. 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). That 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 [his] death, the minor Zabchekov, apprehended at 1 a.m. on 29 January 1996 while attempting to steal car parts, was taken by [police] officers ... and placed within the premises of the unit on duty in order to restrict his freedom of movement. Therefore, although he was not detained pursuant to section 35(1) taken in conjunction with section 33(1)(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 three hours and in the course of his stay [there] ... his condition suddenly deteriorated, and he lost consciousness.”
65. On 31 January 1996, having received the file on the case, the Regional Military Prosecutor's Office opened 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 the military investigator conducted new examinations of the police officers involved, questioned five persons who had spent the afternoon and evening of 28 January 1996 with Mr Zabchekov, and also heard Dr Mihailov and Dr Ivanova.
66. Two of the police officers, Sergeant Penchev (A) and Sergeant Georgiev (F), mentioned Mr Zabchekov's ethnic origin in their oral evidence to the military investigator.
A stated that when he had arrived at Beli Lom Street he had seen two persons emerging from the entrance of the building, one of whom had been “a Gypsy with a criminal record – Anguel Zabchekov”.
In his statement F. referred to the applicant's son as “the Gypsy” (three times), “the arrested” (seven times) and “Zabchekov” (twice).
67. On 12 March 1996 the investigator conducted examinations of the witnesses Ms I.A., Ms I. M., C and D. His questions related solely to the number of times Mr Zabchekov had fallen to 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 and 29 January 1996. In his report of 20 March 1996 the expert stated that no traces of shoe soles could be found but explained that microscopic remains from particles from a shoe sole would not normally be left on soft fabric.
68. On 20 March 1996 the investigator conducted a reconstruction of the events during Mr Zabchekov's arrest in order to clarify the witnesses' evidence. Those taking part were Sergeant Mutafov (C), the young man who had been with him on 28 and 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 Mr Zabchekov was arrested by C did not participate in the reconstruction, which was almost exclusively concerned with the events before the arrival of the two police cars. The reconstruction was videotaped.
69. 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, stating that her son had been buried in haste and that exhumation of his body was essential. The applicant suspected that her son's ribs might have been broken. She also submitted to the investigator, Mr Atanasov, two X-ray photographs of her son's head taken several months before his death, to be used for the purpose of establishing whether his skull had been “soft” or “thin”.
70. 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, head of the forensic department at the Medical University in Varna, Dr Kiuchukov, from the university's neurosurgery department, and Dr Dokov and Dr Radoinova, senior assistants in the forensic department of the same university. The experts were asked the following questions:
“1. What injuries did Zabchekov sustain? What was the cause of death?
2. In what manner were the injuries sustained and by how many blows could they have been caused? Could the injuries have been caused by consecutive falls (in accordance with the witnesses' statements and the findings of the investigation reconstruction as recorded on video), or were they the result of direct blows?
3. When were these injuries inflicted?
4. What was Anguel Zabchekov's blood alcohol level at the time of his arrest, at about 12.15 a.m.?”
71. On 26 April 1996 the investigator held a confrontation between all the police officers involved. On the same day three additional witnesses were questioned.
On 23 May 1996 the applicant repeated her request for an exhumation. On 29 May 1996 another witness was questioned.
On 11 June 1996 Mr Dimitrov, a prosecutor from the Regional Military Prosecutor's Office, sent the applicant a copy of his information note on the proceedings. The note stated, inter alia, that exhumation could be envisaged if this was considered necessary by the five medical experts, who had not yet submitted their opinion.
72. On 28 June 1996 the five experts delivered their report (“the second report”), which was based on an examination of the material in the investigation file. They had also seen the videotape of the reconstruction of Mr Zabchekov's arrest, which had been recorded on 20 March 1996.
73. The experts confirmed 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 punch or a blow by a blunt object, or also by a fall and a collision against a “flat broad surface” (широка удряща повърхност). They noted that the autopsy had not recorded any morphological data to allow the identification of the object which had caused the injuries.
The second report indicated that the blow which had caused the skull fracture had not been very strong. That conclusion was based on the “particular features of the skull structure (as witnessed by the X-ray photographs enclosed and the thickness as described [in the autopsy report])”.
74. Contrary to the first medical report, which had stated that the interval between the skull injury and Mr Zabchekov's death had been approximately four to six hours, the report of the five experts concluded:
“The haematoma ... which caused the death of Zabchekov, had been present for at least ten hours before the time of death. The basis for this conclusion is the appearance of the haematoma (blood clot of dark red colour), which is clearly visible on the photographs attached to the file. Clots of that kind, without the presence of liquid blood, are formed during a period of more than ten hours from the moment when they were caused. During this period the patients' condition is usually characterised by the so-called 'lucid interval' – the time during which they do not display visible warning signs. Their condition gradually deteriorates ... they develop a headache, speech disturbances and problems of coordination of movement, [they] become unstable and sleepy, they stagger, etc., until they fall into a coma.”
75. The photographs relied on by the experts were taken at the time of the autopsy, which began at 11.30 a.m. on 29 January 1996.
76. The experts also found, in view of the amount of alcohol found in Mr Zabchekov's blood, that the symptoms resulting from the head injury had been masked by the effects of alcohol.
77. The report of the five experts also dealt with the other injuries to Mr Zabchekov's body:
“The haematoma on the right side of the chest is the result of a blow by or against a flat object with a broad hitting surface, which could have taken the form of a kick, a fall and a collision against a larger object and other objects. The general appearance of the bruise corresponds to the imprint of the clothes of the deceased, which indicates that the blow was inflicted through the clothes ... The bruises and injuries to the right side of the forehead, the two wrist joints and the lower lip are the result of the use of hard, blunt and/or sharp-edged objects with a limited hitting surface. The characteristics of the injuries to the two wrist joints make it possible to conclude that they were caused when the handcuffs were put on, in accordance with the available information ...”
78. On 25 July 1996 the investigator drew up a report proposing to terminate the proceedings.
79. On 31 July 1996 the Regional Military Prosecutor's Office closed the investigation as there was no connection between the acts of the police and the death of Mr Zabchekov. That conclusion was based on the finding of the second medical report that at least ten hours had passed between the injury and death.
80. 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 to carry out an exhumation, to the alleged discrepancies between the evidence of different witnesses and to the lack of explanation for certain facts, including all the injuries to Mr Zabchekov's body.
81. On 18 December 1996 the National Military Prosecutor's Office confirmed the closure of the investigation and refused the applicant's requests. Its decision stated, inter alia:
“[A]part from the physical force used during the arrest of Zabchekov for attempting to steal from cars, there is no evidence that any violence was used against him by police officers, whether ... inside or outside the ... police station. Furthermore, the firm conclusion of the report of the five experts, who are highly qualified in their field, is that the lethal injury was caused more than ten hours prior to death.”
82. It was also decided to refer the case back 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.
83. On 20 January 1997 the regional prosecutor, Ms Hadzhidimitrova, referred the case to the investigator, Mr Neshev. She noted that the investigation in respect of the police had been closed on the basis of the finding that the fatal injury had been inflicted more than ten hours prior to the death of Mr Zabchekov. Therefore, further evidence needed to be collected as regard the whereabouts and the condition of Mr Zabchekov before 7 p.m. on 28 January 1996.
84. The additional investigation entailed the examination of the applicant and six other witnesses on 23 January 1997 by Mr Neshev.
85. On 23 and 24 January 1997 the applicant made further requests for the exhumation of the body and for a fresh forensic examination, claiming that there were inconsistencies in the evidence. That was rejected by the Razgrad Regional Prosecutor's Office on 31 January 1997 as being unnecessary.
86. The applicant complained to the Chief Public Prosecutor's Office (Главен прокурор). She stated, inter alia, that the prosecutors had consistently failed to explain why the police had not taken proper care of Mr Zabchekov following his arrest.
87. On 17 February 1997 Mr Neshev summoned the applicant (represented by counsel) to allow her to consult the file on the investigation. The applicant made a number of requests and objections concerning shortcomings in the investigation. In particular, she stated that there had been fundamental 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 autopsy to steal car parts and resist arrest. The applicant again requested the exhumation of the body and the appointment of experts to answer the questions raised in her previous requests.
88. On 18 February 1997 Mr Neshev drew up a report stating that the additional investigation ordered on 20 January 1997 had not disclosed evidence that Mr Zabchekov had been beaten prior to his arrest. It was therefore proposed to suspend the investigation.
89. By an order of 4 March 1997 the regional prosecutor, Ms Hadzhidimitrova, suspended the criminal proceedings as all available evidence had been collected and it was not possible to determine the precise circumstances under which the fatal head injury had been inflicted.
90. The decision noted the findings of the military prosecutors, in particular those concerning the skull fracture, and confirmed them. In respect of the other bodily injuries, the prosecutor stated that they had not placed Mr Zabchekov's life in danger.
The decision also mentioned that when he had been taken to the police station Mr Zabchekov had been in good health.
91. On 10 March 1997 the applicant appealed to the Chief Public Prosecutor against the decision to suspend the proceedings. On 20 March 1997 the Chief Public Prosecutor's Office confirmed the suspension of the proceedings.
92. 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.
93. 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 bluish-purple bruise. The left eyelid is of a bluish colour. A bruise can also be seen on the lips, on the left side of the mouth.
94. On the other two photographs a purple bruise colour can be seen on Mr Zabchekov's chest, on its right side, partly under the right armpit. Wounds are visible on Mr Zabchekov's right wrist.
95. 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, the description of what had allegedly happened in the case and extracts from the autopsy report and the reports of the forensic 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 victim 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 ten 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 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 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.”
96. The Government submitted that Mr Zabchekov had a record at the Juvenile Offenders Pedagogic Centre (Детска педагогическа стая) and at the police in Razgrad on account of numerous alleged thefts.
97. 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. Another note, dated 18 November 1995, reiterated those findings.
The Government explained that on 7 November 1995 the applicant had been heard by an investigator in Razgrad in connection with a criminal investigation into thefts allegedly committed by her son, Mr Zabchekov. She had stated, inter alia, that her son had always had a stammer. He had been ill since the age of 3. In particular, he had had moments when he could not breathe and his skin became bluish. His eyes had often been swollen and he had fainted during moments of sudden fear. Mr Zabchekov had seen doctors who had stated that he had problems with his spine. The applicant had mentioned the name of a Dr Miceva who had all the documents concerning the medical examinations carried out in respect of her son.
98. On 14 December 1995 Mr Zabchekov had been questioned in connection with criminal proceedings concerning thefts. Asked about his health, he had stated that he had been prone to fainting and pain in his head and eyes. On 4 January 1996 an investigator from the District Investigation Service in Razgrad had opened criminal proceedings against Mr Zabchekov and other persons on charges of theft. On 15 January 1996 Mr Zabchekov had been questioned and had stated, inter alia, that he had been treated by Dr Miceva, a psychiatrist, and that he had been taking medication. Mr Zabchekov's lawyer had requested a psychiatric examination, which had been scheduled for 30 January 1996.
II. RELEVANT DOMESTIC LAW
99. Section 35(1) of the Act provided as follows:
“The police authorities shall issue a written order for an arrested person to be taken to the [place of detention].”
100. By virtue of Article 388 of the Code, the military courts hear criminal cases in which the accused is, for example, a police officer. Where a case would fall within the competence of the military courts, the preliminary investigation is handled by military investigators and prosecutors.
101. Article 362 § 1 (4) taken in conjunction with Article 359 provides that, in the event of a judgment of the European Court of Human Rights finding a violation of the Convention “of significant importance” to a criminal case that has ended by virtue of a judicial decision, the prosecuting authorities shall request the reopening of the case by the competent court.
I. ALLEGED VIOLATIONS OF ARTICLE 2 OF THE CONVENTION
102. The applicant alleged that her son had been ill-treated and had died as a result of injuries inflicted by police officers, that he had not been provided with timely medical treatment while in custody and that the State authorities had failed to undertake a thorough and effective investigation.
Article 2 of the Convention provides as follows:
“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.”
A. Whether Mr Zabchekov died as a result of ill-treatment while in police custody
103. The applicant submitted that the Government's explanation, which was based on two main arguments – that the fatal skull injury had been sustained long before Mr Zabchekov's arrest and that the remaining injuries on his body had been received during the chase – was implausible as it did not accord with the evidence.
104. As regards the skull injury, the applicant asserted that the conclusions of the second forensic report had been highly suspect as they had deviated from the findings of the first forensic report without any explanation. The authorities had been quick to rely on the second report, ignoring the contradictions. The second report's conclusion as to the timing of the fatal injury had been based only on the shape of the blood clot as seen on photographic images taken almost six hours after the time of death.
The suggestion that the skull injury had been inflicted ten hours before Mr Zabchekov's death, at about 6.45 p.m. on 28 January 1996, was, in the applicant's submission, incompatible with the evidence and highly unrealistic. The occurrence of an injury serious enough to eventually cause death could not have gone completely unnoticed by so many persons who had talked to Mr Zabchekov at length and observed him. Furthermore, the Government had not offered any serious evidence in support of their implied theory that Mr Zabchekov's alleged “permanent, chronic, neurotic condition” had increased the chances that the fatal injury had been caused by “falling on a ... broad, even surface”.
The Government's explanation of the other injuries found on Mr Zabchekov's body – on his chest, face and right wrist – was clearly implausible in the applicant's view. Such injuries could not be inflicted by falling to the ground while running or by the normal use of handcuffs. Indeed, the origin of those injuries had never been investigated and the Government had developed their own arbitrary theory for the purposes of the present case. In reality, it was obvious that the injuries were the result of ill-treatment and that, in the absence of any evidence to the contrary, they must have been inflicted at the same time as the fatal skull injury.
105. The applicant also considered it particularly striking that no explanation had been provided concerning the suspect behaviour of the police officers and their conspicuous attempt to forge the detention register.
106. The Government, referring to the second forensic report, stated that the fatal injury had been inflicted more than ten hours prior to Mr Zabchekov's death and, therefore, long before his arrest.
It was undisputed that Mr Zabchekov had consumed a large quantity of alcohol before his arrest. He had been drunk and staggering. Furthermore, there was clear evidence that he had fallen several times while running.
In the Government's view the evidence concerning his behaviour at the time of his arrest and detention – which corresponded to the typical symptoms of a “lucid interval” after a skull fracture – confirmed the medical experts' conclusions about the timing of the fatal injury.
107. The Government pointed out that the statements of the witnesses relating to the whereabouts of Mr Zabchekov prior to his arrest contained contradictions.
Furthermore, on several occasions in 1995 the applicant had stated that her son was ill and – when younger – had sometimes lost consciousness and suffocated. Mr Zabchekov himself had confirmed in 1995 that he had suffered from headaches and fainting. On that basis, the Government concluded that the experts' finding that Mr Zabchekov might have received the fatal injury by falling on a broad hard surface was plausible.
108. The Government stressed that there was no evidence of any ill-treatment by the police. In their view, the injuries to Mr Zabchekov's chest and face must have been the result of his falling on the ground, and those to his wrists must have been caused by the normal use of handcuffs.
109. Article 2 of the Convention, which safeguards the right to life, ranks as one of the most fundamental provisions in the Convention. Together with Article 3, it enshrines one of the basic values of the democratic societies making up the Council of Europe. The object and purpose of the Convention as an instrument for the protection of individual human beings also requires that Article 2 be interpreted and applied so as to make its safeguards practical and effective (see McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324, pp. 45-46, §§ 146-47; Salman v. Turkey [GC], no. 21986/93, § 97, ECHR 2000-VII; and Velikova v. Bulgaria, no. 41488/98, ECHR 2000-VI).
110. In the light of the importance of the protection afforded by Article 2, the Court must subject complaints about deprivations of life to the most careful scrutiny, taking into consideration all relevant circumstances.
Persons in custody are in a vulnerable position and the authorities are under an obligation to account for their treatment. Consequently, where an individual is taken into police custody in good health but later dies, it is incumbent on the State to provide a plausible explanation of the events leading to his death (see, mutatis mutandis, Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999-V, and Salman and Velikova, cited above).
111. In assessing evidence, the Court adopts the standard of proof “beyond reasonable doubt” (see Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, pp. 64-65, § 161). However, such proof may follow from the co-existence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman, cited above, § 100).
112. The Court observes that Mr Zabchekov died after being detained for several hours at the Razgrad police station, where he had been brought after being briefly chased by an off-duty police officer.
It is incumbent on the Government, therefore, to provide a plausible explanation for Mr Zabchekov's death.
113. The Government's explanation is that Mr Zabchekov's death could not possibly have been the result of police ill-treatment as the second forensic report had concluded that the fatal injury, a skull fracture, had been inflicted at least ten hours prior to the time of death. It followed that the skull fracture had occurred before 7 p.m. on 28 January 1996, whereas Mr Zabchekov's encounter with the police occurred about five hours later.
114. The Court observes that the conclusion of the second report as to the time at which the injury occurred was based on a visual examination of photographs of the blood clot taken six hours after Mr Zabchekov's death. The experts did not even mention why they considered that no changes had occurred in the blood clot after the boy's death. According to the medical opinion submitted by the applicant – uncontested by the Government – such changes did occur and had to be taken into account.
Furthermore, the second forensic report, which relied solely on documentary material, departed in significant respects from the conclusions of the first report without stating why that report's findings concerning the strength of the blow and the time of the skull fracture had been incorrect. The first forensic report, in contrast, had been based on a direct observation of the body (see paragraphs 53-59, 70 and 72-77 above).
The Court finds that all of the above significantly reduces the reliability of the second report's conclusions.
115. It is true that certain facts in the present case cannot be unequivocally explained: Mr Zabchekov's reported staggering and mumbling at the time of his arrest may be seen as an indication that he had already been injured at that time, but it may also have been the result of his apparently high level of alcohol intoxication (see paragraphs 11, 22, 28, 59, 60, 74, 76 and 95 above).
116. However, if Mr Zabchekov was indeed injured before 7 p.m. on 28 January 1996, as was suggested by the conclusions of the second medical report, that would mean that he went out with friends, visited a bar and then decided to steal car parts while suffering from a skull fracture. That may appear unlikely even if the so-called “lucid interval” between the injury and the death is taken into account. In particular, it is not disputed that Mr Zabchekov was able to run when C attempted to apprehend him and was walking normally when brought to the police station (see paragraphs 12-14, 16 and 29 above).
117. The Court notes that the first forensic report considered that the skull injury had most likely been inflicted between four and six hours prior to Mr Zabchekov's death and, therefore, possibly at a time when he was in police custody, either before or after he was taken to the police station (see paragraph 59 above).
Furthermore, there were a number of other injuries to Mr Zabchekov's body which could have been the result of the same events that caused the skull fracture (see paragraphs 55, 56, 58, 77 and 92-94 above).
118. The Government stated that Mr Zabchekov might have sustained his injuries by falling to the ground – before he encountered the police or during the chase – as he was drunk and had a history of health problems. The traces on his wrists were allegedly caused by the normal use of handcuffs.
119. That supposition is not, however, supported by forensic evidence, as the presence or absence of “contre-coup lesions” characteristic of falls was not recorded by the autopsy (see paragraphs 73 and 95 above).
Furthermore, the Court considers it significant that none of the witnesses who were in contact with the applicant's son until he was taken to the police station reported any complaint of an ailment on his part.
As regards the use of handcuffs, according to the medical opinion submitted by the applicant, handcuffs may leave marks if they are too tight or the person is struggling or is dragged. The autopsy found a very slight mark on Mr Zabchekov's left hand and severe bruising on his right hand (see paragraphs 55, 56, 58 and 95 above). It was also reported that at some point he was handcuffed to a tree. It seems unlikely, therefore, that the injury to his right wrist was the result of normal use of tight handcuffs. The other two possible explanations – that Mr Zabchekov was struggling or was dragged – may suggest that he was ill-treated.
Finally, the Court does not find the information about Mr Zabchekov's alleged illness reliable or particularly pertinent. It was based on statements made by him and by his mother in the context of questioning on criminal charges and, in any event, cannot lead to any reasonable conclusion as regards the skull fracture or the other injuries (see paragraphs 96-98 above).
The Government's proposed conclusion that Mr Zabchekov might have injured himself by falling is thus improbable when examined in the light of all the surrounding facts.
120. In assessing the evidence in the present case, the Court, moreover, attaches significant weight to the information that the police officers behaved in a suspect manner and to the fact that the authorities accepted the credibility of their evidence despite serious indications calling for caution.
Examples of the police's suspect behaviour are: between 3 a.m. and 5 a.m. on 29 January 1996, when they delayed contact between Mr Zabchekov and a doctor and possibly attempted to choose which doctor saw him (see paragraphs 32-40 above); their apparently false statement, in answer to a question by Dr Mihailov, that Mr Zabchekov had been taken to the police station in the same condition as that in which the doctor had seen him at about 5 a.m. (see paragraph 39 above); and that the detention records were tampered with (see paragraphs 41-46 above) and that Mr Zabchekov was registered post factum as an “unidentified person” although he had been well known to the police officers as a suspect on theft charges and had been recognised by them at the very moment of their encounter (see paragraphs 25, 42 and 96-98 above).
These facts were important indications that required thorough investigation; such an investigation was not undertaken.
121. Having regard to all the relevant circumstances, the Court thus finds implausible the Government's explanation of Mr Zabchekov's death, which was based on the conclusion of the second forensic report as to the timing of the injury and a supposition that the boy might have injured himself by falling to the ground. The Government have not offered any other explanation.
122. Accordingly, there has been a violation of Article 2 of the Convention.
123. The applicant alleged that, although the police officers had seen the boy shivering and shaking, they had considerably delayed medical intervention through a series of suspect acts between 3 a.m. and 5 a.m. In the applicant's view, the most likely explanation was that there had been an attempt to avoid contact between Mr Zabchekov and an independent doctor who might have revealed evidence of ill-treatment. Alternatively, there had been a reckless disregard for the well-being of a detainee. In either case the delay had been fatal.
124. The Government maintained that the police could not be held responsible for not having realised that Mr Zabchekov had been in need of urgent medical attention. When the police officers had first seen him it had been dark. Furthermore, he had been drunk, there had been dirt all over his body and his hair had covered the bruise over his left eyebrow. Mr Zabchekov's condition had been interpreted as symptomatic of the effects of alcohol. He had never complained of an ailment. The fact that no signs of any major problems had been apparent during the lucid interval had been confirmed by the medical experts.
125. The Court, referring to its findings as regards the suspect conduct of the police (see paragraph 120 above), observes that they delayed the provision of medical assistance to Mr Zabchekov and that that contributed in a decisive manner to the fatal outcome.
126. The Government's position is that the police officers, not being medical professionals, could not be criticised for having failed to detect that there was a medical emergency.
127. That argument is, however, irrelevant, as it is not disputed that at a certain point after 3 a.m. the police officers realised that Mr Zabchekov's condition was deteriorating. Even then, instead of calling for an ambulance, they contacted their colleagues who had arrested the boy. Those officers, who were on patrol duty, saw fit to abandon their patrolling tasks and drive back to the police station to verify the situation. Having seen Mr Zabchekov's condition, they took the time to drive to the hospital and then return, followed by an ambulance, instead of calling for one (see paragraphs 32-40 above).
128. It is particularly significant, furthermore, that the case file does not contain any trace of criticism or disapproval of that manner of dealing with a detainee's medical problem.
129. The first medical report and the expert whose opinion was submitted by the applicant found that the delay in providing medical assistance had been fatal (see paragraphs 59 and 95 above).
130. The Court thus finds that the behaviour of the police officers between 3 a.m. and 5 a.m. on 29 January 1996 and the lack of any reaction by the authorities constituted a violation of the State's obligation to protect the lives of persons in custody.
131. There has been therefore a violation of Article 2 § 1 of the Convention in that respect.
132. The applicant considered that the investigation into the death of her son had been inadequate as the authorities had failed to investigate, inter alia: the post hoc doctoring of the detention records; the non-fatal injuries; the police officers' strange behaviour between 3 a.m. and 5 a.m.; the reason why the two doctors had quarrelled at about 5 a.m.; and the fact that the first information the applicant's family had received about Mr Zabchekov's death had failed to mention that the boy had been detained.
133. The applicant further submitted that because of the traditional ties between prosecutors, investigators and the police and the absence, at the material time, of judicial review in respect of decisions not to prosecute, the decision-making authorities responsible for investigating ill-treatment by the police were not sufficiently independent and impartial.
Furthermore, this allegedly reflected a broader pattern that had been noted by international organisations. The applicant referred to the Report of the Special Rapporteur on Torture to the United Nations Commission on Human Rights (Document E/CN.4/1997/7 of 10 January 1997), which stated 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.”
134. The applicant lastly alleged that she had on several occasions been misinformed by the authorities about the course of the investigation and its findings and had not been given full access to the case file before February 1997, more than a year after her son's death.
135. The Government asserted that the investigation had been prompt and thorough, referring to the numerous interrogations, expert reports and other investigative measures. The applicant had been provided with an opportunity to consult the case file and to submit appeals and requests for further investigation. Her request for an exhumation had rightly been refused as it had been clearly established that Mr Zabchekov's ribs had been intact.
136. The Court reiterates that the obligation to protect the right to life under Article 2 of the Convention, read in conjunction with the State's general duty under Article 1 of the Convention to “secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention”, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force. The investigation must be, inter alia, thorough, impartial and careful (see McCann and Others, cited above, p. 49, §§ 161-63; Kaya v. Turkey, judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, p. 329, § 105; and Çakıcı v. Turkey [GC], no. 23657/94, § 86, ECHR 1999-IV).
137. The essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility (see, for example, mutatis mutandis, İlhan v. Turkey [GC], no. 22277/93, § 63, ECHR 2000-VII).
138. For an investigation into alleged unlawful killing by State agents to be effective, it may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events (see, for example, Güleç v. Turkey, judgment of 27 July 1998, Reports 1998-IV, p. 1733, §§ 81-82, and Oğur v. Turkey [GC], no. 21594/93, §§ 91-92, ECHR 1999-III). This means not only a lack of hierarchical or institutional connection but also a practical independence (see, for example, Ergi v. Turkey, judgment of 28 July 1998, Reports 1998-IV, pp. 1778-79, §§ 83-84, where the public prosecutor investigating the death of a girl during an alleged clash showed a lack of independence through his heavy reliance on the information provided by the gendarmes implicated in the incident).
139. The investigation must also be effective in the sense that it is capable of leading to the identification and punishment of those responsible. This is not an obligation of result, but of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death (see, for example, concerning autopsies, Salman, cited above, § 106; concerning witnesses, Tanrıkulu v. Turkey [GC], no. 23763/94, § 109, ECHR 1999-IV; concerning forensic evidence, Gül v. Turkey, no. 22676/93, § 89, 14 December 2000).
Any deficiency in the investigation which undermines its ability to establish the cause of death or the person responsible will risk falling foul of this standard.
140. There must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory, maintain public confidence in the authorities' adherence to the rule of law and prevent any appearance of collusion in or tolerance of unlawful acts. The degree of public scrutiny required may well vary from case to case. In all cases, however, the next of kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests (see Güleç, cited above, p. 1733, § 82, where the father of the victim was not informed of the decisions not to prosecute; Oğur, cited above, § 92, where the family of the victim had no access to the investigation and court documents; and Gül, cited above, § 93; for a full summary of the relevant case-law see McKerr v. the United Kingdom, no. 28883/95, §§ 111-15, ECHR 2001-III).
141. The Court agrees with the Government that numerous acts of investigation were undertaken in the present case. The investigation commenced promptly and the authorities worked actively on it. An autopsy was carried out, most of the witnesses were questioned repeatedly, two confrontations and a reconstruction of the events were organised and other relevant evidence was collected and analysed.
142. The Court notes, however, that the failure of the autopsy to record morphological data and the absence or presence of “contre-coup lesions” made it impossible to establish what object might have caused the skull fracture.
It is highly significant, furthermore, that the police officers were never asked to explain why the detention register had been forged, why they had not called for an ambulance right away or why they had given apparently false information to Dr Mihailov. These were crucial questions which obviously had to be raised in examinations and confrontations.
The reconstruction of the events conducted on 20 March 1996 was, for reasons that are unclear, exclusively concerned with the number of times and the places where Mr Zabchekov had fallen to the ground when he had been trying to escape and ignored the events that took place at the police station, the moments between the boy's arrest and his arrival at the police station and the times when he had been lying on the ground, handcuffed to a tree or was alone with Sergeant Mutafov (C) and his friend D (see paragraphs 21, 26, 29-40 and 68 above).
Furthermore, there is no record of any timely visit of the investigator to the scene of Mr Zabchekov's arrest in Beli Lom Street. The site was visited at about 11 a.m. on 29 January 1996 by a police officer from the same police station as the implicated officers.
Finally, the investigation concentrated on the origin and timing of the skull injury and paid scant attention to the other traces left on the boy's body.
The Government have not explained these omissions.
143. The Court also refers to its findings above that the testimony of the police officers was considered fully credible despite their suspect behaviour and that, notwithstanding the obvious contradiction between the two medical reports, the authorities accepted the conclusions of the second report without seeking to clarify the discrepancies (see paragraph 120 above). Indeed, the decisions of the prosecution authorities to put an end to the investigation relied exclusively on the opinion in the second medical report about the timing of the injury, an opinion that had been based on a questionable analysis (see paragraphs 79, 81, 84 and 88-90 above).
144. The Court finds, therefore, that the investigation lacked the requisite objectivity and thoroughness, a fact which decisively undermined its ability to establish the cause of Mr Zabchekov's death and the identity of the persons responsible. Its effectiveness cannot, therefore, be gauged on the basis of the number of reports made, witnesses questioned or other investigative measures taken.
145. The applicant alleged, in addition, that the failings of the investigation in her case were the result of a general problem of lack of independence, impartiality and public accountability on the part of the authorities handling investigations of police ill-treatment.
In these particular circumstances, having already found that the investigation into the death of the applicant's son was not sufficiently objective and thorough, the Court does not need to rule on these additional aspects of her complaint.
146. The Court finds that there has been a violation of the respondent State's obligation under Article 2 § 1 of the Convention to conduct an effective investigation into the death of Mr Zabchekov.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
147. The applicant complained that her son had been ill-treated before his death. She relied on Article 3 of the Convention, which provides:
148. The parties' submissions are summarised in paragraphs 103-08 above.
149. The Court found above that the Government had not provided a plausible explanation for the injuries to Mr Zabchekov's body.
Those injuries were indicative of inhuman treatment beyond the threshold of severity required by Article 3 of the Convention.
There has therefore been a violation of that provision.
150. The Court does not deem it necessary to make a separate finding under Article 3 in respect of the deficiencies in the investigation (see Mahmut Kaya v. Turkey, no. 22535/93, § 120, ECHR 2000-III), having already dealt with that question under Article 2 of the Convention (see paragraphs 132-46 above).
III. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
151. Relying on Article 5 of the Convention, the applicant alleged that the detention of her son during the night of 28 to 29 January 1996 had been unlawful as there had been no lawful detention order and it had not been properly recorded.
Article 5 of the Convention, in its relevant parts, provides as follows:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
152. The applicant stated that it was absurd to consider – as the Government did – that the statutory 24-hour time-limit for police detention ran from the moment when the arrested person's identity was established. No such rule existed under Bulgarian law. Any detention without a written order was in violation of section 35 of the National Police Act. Furthermore, in the present case the police officers recognised Mr Zabchekov right away and addressed him by name.
153. The Government submitted that at the time he was taken to the police station Mr Zabchekov had not been a “detained person” within the meaning of section 35 of the National Police Act as his identity had not been known. It had been necessary to await his sobering up to allow his identification and 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 stated that the material legal conditions for a lawful detention had existed in any event: Mr Zabchekov had been apprehended while trying to steal and had been taken to the police station for identification.
154. The Court reiterates that the expressions “lawful” and “in accordance with a procedure prescribed by law” in Article 5 § 1 of the Convention essentially refer back to national law and state the obligation to conform to the substantive and procedural rules thereof. They require in addition that any deprivation of liberty should be consistent with the purpose of Article 5, namely to protect the individual against arbitrariness. The Court must moreover ascertain whether domestic law itself is in conformity with the Convention, including the general principles expressed or implied therein (see, among other authorities, Grauslys v. Lithuania, no. 36743/97, § 39, 10 October 2000).
The unacknowledged detention of an individual is a complete negation of the fundamentally important guarantees contained in Article 5 of the Convention and discloses a most grave violation of that provision. The absence of a record of such matters as the date, time and location of detention, the name of the detainee, the reasons for the detention and the name of the person effecting it must be seen as incompatible with the requirement of lawfulness and with the very purpose of Article 5 of the Convention (see Kurt v. Turkey, judgment of 25 May 1998, Reports 1998-III, pp. 1185-86, § 125, and Çakıcı, cited above, §§ 104-05).
155. In the present case it is not disputed that Mr Zabchekov's detention was not based on a written order as required by section 35 of the National Police Act. Contrary to the Government's view, that provision cannot be reasonably interpreted as permitting confinement without a lawful order where there are doubts as to the identity of the detainee: such an interpretation runs contrary to the elementary guarantees of Article 5 of the Convention as it would mean a blanket authorisation for unacknowledged detentions. Furthermore, in the present case the police identified Mr Zabchekov at the very moment of his arrest.
It follows that the applicant's detention was unlawful.
156. The applicant stated that, in an effort to conceal the very fact that her son had been detained, the first information to the family about his death had omitted any reference to his confinement (see paragraphs 49 and 61 above).
The Court observes that Mr Zabchekov's deprivation of liberty was not recorded initially and that the register at the police station was later forged. The suspect behaviour of the police officers between 3 a.m. and 5 a.m. on 29 January 1996 is another element which may lead to a conclusion that there was an attempt to conceal the fact that the applicant's son had been detained (see paragraphs 30, 32-40 and 41-46 above).
As that attempt was in the event unsuccessful, the Court will not deal with the question whether an issue of State responsibility for an unacknowledged detention may arise.
157. The lack of a written order and of a proper record of Mr Zabchekov's detention is sufficient for the Court to find that his confinement for several hours on 29 January 1996 was in breach of domestic law and contrary to the requirements implicit in Article 5 of the Convention for the proper recording of deprivations of liberty.
There has, therefore, been a violation of Article 5 § 1 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
158. The applicant complained under Article 13 of the Convention of the alleged lack of an effective remedy in respect of the violations of Articles 2 and 3. Article 13 of the Convention provides:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
159. The applicant stated that the criminal investigation had not been effective, referring to her complaints under Articles 2 and 3 of the Convention. She added that at the relevant time there had been no judicial remedy against a prosecutor's decision to discontinue criminal proceedings.
160. The Government referred to their submissions under Articles 2 and 3 and stated that the applicant could have applied to join the criminal investigation into her son's death as a private prosecutor or a civil plaintiff.
161. Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision. The scope of the obligation under Article 13 varies depending on the nature of the applicant's complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law.
Where an arguable breach of one or more of the rights under the Convention is in issue, there should be available to the victim a mechanism for establishing any liability of State officials or bodies for that breach. Furthermore, in appropriate cases, compensation for the pecuniary and non-pecuniary damage flowing from the breach should in principle be available as part of the range of redress (see, as a recent authority, T.P. and K.M. v. the United Kingdom [GC], no. 28945/95, §107, ECHR 2001-V).
In cases of suspicious deaths, given the fundamental importance of the right to the protection of life, Article 13 requires, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible for the deprivation of life, including effective access for the complainant to the investigation procedure (see Kaya, cited above, p. 330, § 107; Ergi, cited above, p. 1782, § 98; Salman, cited above, § 123; and Velikova, cited above, § 89).
162. The Court finds that the applicant had an arguable claim under Articles 2 and 3 of the Convention in respect of her son's death and ill-treatment and that, for the purposes of Article 13, she should accordingly have been able to avail herself of effective and practical remedies capable of leading to the identification and punishment of those responsible and to an award of compensation.
However, in circumstances where – as here and as in Velikova, cited above – the criminal investigation into the suspicious death was ineffective as it lacked sufficient objectivity and thoroughness (see paragraphs 141-46 above), and the effectiveness of any other remedy that may have existed, including the remedy suggested by the Government (the possibility of the applicant's joining the criminal proceedings as a civil party) was consequently undermined, the Court finds that the State has failed in its obligation under Article 13 of the Convention.
There has therefore been a violation of that Article.
V. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
163. The applicant complained under Article 14 of the Convention taken in conjunction with Articles 2, 3 and 13 that the police officers' and the investigating authorities' perception of her son as a Rom/Gypsy was a decisive factor in their attitude and acts.
Article 14 of the Convention provides:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
164. The applicant considered it striking that some of the police officers had been unable to refrain from referring to Mr Zabchekov as “the Gypsy”, even in their official statements. She considered that the reference to her son's origin and the acts of the police and the investigation authorities had to be seen against the broader context of systematic racism and hostility which law-enforcement bodies in Bulgaria had repeatedly displayed. This attitude had been widely documented by intergovernmental and human rights organisations.
165. The Government submitted that there was no evidence of any racially motivated act on the part of the authorities. The fact that some statements referred to Mr Zabchekov as “the Gypsy” did not constitute such evidence.
166. The Court reiterates that proof “beyond reasonable doubt” may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see paragraph 111 above and the case-law cited there).
The Court must therefore assess all the relevant facts, including any inferences that may be drawn from the general information adduced by the applicant about the alleged existence of discriminatory attitudes.
167. It recalls that in Velikova it examined a very similar complaint in paragraph 94 of that judgment and held:
“The Court observes that the applicant's complaint under Article 14 is grounded on a number of serious arguments. It also notes that the respondent State failed to provide a plausible explanation as to the circumstances of Mr Tsonchev's death and as to the reasons why the investigation omitted certain fundamental and indispensable steps which could have shed light on the events ...
The Court recalls, however, that the standard of proof required under the Convention is 'proof beyond reasonable doubt'. The material before it does not enable the Court to conclude beyond reasonable doubt that Mr Tsonchev's killing and the lack of a meaningful investigation into it were motivated by racial prejudice, as claimed by the applicant.
It follows that no violation of Article 14 has been established.”
168. The Court finds that in the present case the applicant's complaints are likewise based on serious arguments. It is unable, however, to reach the conclusion that proof beyond reasonable doubt has been established.
There has therefore been no violation of Article 14 of the Convention.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
169. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
170. The applicant claimed 19,050 euros (EUR) for non-pecuniary damage, a sum comprising EUR 15,250 in respect of the pain and suffering caused by the violation of her son's rights under the Convention and EUR 3,800 in respect of the distress she endured because of the ill-treatment and death of her son and the inadequacy of the authorities' reaction.
171. The Government objected that since Article 362 § 1 (4) of the Bulgarian Code of Criminal Procedure provided for the possibility of reopening criminal proceedings in cases where the European Court of Human Rights had found a violation of the Convention the applicant should, if the Court found a violation in the present case, submit a civil claim for damages once the criminal proceedings were reopened.
Alternatively, the Government maintained that the claim was excessive, regard being had to the economic situation in the country. The amount claimed was allegedly 371 times the minimum monthly wage. In the Government's view, the comparison with Turkish cases proposed by the applicant was incorrect as in Turkey the minimum monthly wage was 50% higher than in Bulgaria.
Finally, the Government warned against the dangers of excessive awards being made by the Court.
172. The Court notes that the provision of the Code of Criminal Procedure referred to by the Government concerns the reopening of criminal proceedings which were ended by a judicial decision, whereas the investigation in the applicant's case was terminated by a decision of the prosecuting authorities. It is therefore unclear whether the Code of Criminal Procedure requires the reopening of the investigation after the Court's findings in the present case.
Furthermore, Article 41 of the Convention does not require applicants to exhaust domestic remedies a second time in order to obtain just satisfaction if they have already done so in vain in respect of their substantive complaints. The wording of that provision – where it refers to the possibility of reparation under domestic law – establishes a rule going to the merits of the just satisfaction issue (see De Wilde, Ooms and Versyp v. Belgium (Article 50), judgment of 10 March 1972, Series A no. 14, pp. 8-9, § 16).
In this connection, the Court considers that the hypothetical possibility that the investigation may resume, many years after the death of the applicant's son in police custody and after the first ineffective investigation, and that the applicant may then have the opportunity to bring a civil claim, which would only be successful if the fresh investigation produced results, cannot reasonably be interpreted as restitutio in integrum under domestic law.
173. The Court, having regard to its judgments in similar cases (see Velikova, cited above) and to the fact that the present case concerns the death of a 17-year-old boy in police custody, awards the claim for non-pecuniary damage in full.
174. The applicant claimed 3,800 United States dollars (“USD”) for 95 hours of legal work at an hourly rate of USD 40. She submitted a copy of a contract between her and her lawyer and a time-sheet.
175. The Government considered that the contingency-fee agreement between the applicant and her lawyer was “absurd” and that the rate of USD 40 per hour was excessive and even immoral, as lawyers were under an obligation to help people of limited financial resources.
176. The Court reiterates that only legal costs and expenses which are found to have been actually and necessarily incurred and which are reasonable as to quantum are recoverable under Article 41 of the Convention (see, among other authorities, Nikolova v. Bulgaria [GC], no. 31195/96, § 79, ECHR 1999-II).
It further notes that the Government have not disputed the time-sheet presented by the applicant's lawyer. The Court does not find any indication that the number of hours claimed exceeds the legal work which was actually done and which was necessary to be done for the representation of the applicant.
As to the hourly rate of USD 40, it has not been claimed that this is a rate higher than the rates charged, for example, by the leading law firms in Bulgaria.
Converting into euros the sum claimed and deducting the amount of EUR 762.25 (5,000 French francs) paid in legal aid by the Council of Europe, the Court awards the applicant EUR 3,500 in respect of costs and expenses.
177. According to the information available to the Court, the statutory rate of interest in Bulgaria applicable to claims expressed in foreign convertible currency at the date of adoption of the present judgment is 13.65% per annum.
FOR THESE REASONS, THE COURT
1. Holds unanimously that there has been a violation of Article 2 of the Convention in respect of the death of the applicant's son;
2. Holds unanimously that there has been a violation of Article 2 of the Convention in respect of the authorities' failure to provide timely medical care;
3. Holds unanimously that there has been a violation of Article 2 of the Convention in respect of the respondent State's obligation to conduct an effective investigation;
4. Holds unanimously that there has been a violation of Article 3 of the Convention;
5. Holds unanimously that there has been a violation of Article 5 of the Convention;
6. Holds unanimously that there has been a violation of Article 13 of the Convention;
7. Holds by six votes to one that there has been no violation of Article 14 of the Convention;
8. Holds unanimously
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final according to Article 44 § 2 of the Convention, the following amounts, together with any value-added tax that may be chargeable:
and that both sums are to be converted into the national currency of the respondent State at the rate applicable at the date of settlement;
(b) that simple interest at an annual rate of 13.65% shall be payable from the expiry of the above-mentioned three months until settlement;
9. Dismisses unanimously the remainder of the applicant's claim for just satisfaction.
Done in English, and notified in writing on 13 June 2002, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the partly dissenting opinion of Mr Bonello is annexed to this judgment.
PARTLY DISSENTING OPINION OF JUDGE BONELLO
1. I concurred with my colleagues in all the votes but one. I could not subscribe to the majority view that, in the present case, there has been no infringement of the prohibition against discrimination (Article 14).
2. I consider it particularly disturbing that the Court, in over fifty years of pertinacious judicial scrutiny, has not, to date, found one single instance of violation of the right to life (Article 2) or the right not to be subjected to torture or to other degrading or inhuman treatment or punishment (Article 3) induced by the race, colour or place of origin of the victim [The Commission held, in 1973, that “differential treatment of a group of persons on the basis of race might therefore be capable of constituting degrading treatment when different treatment on some other ground would raise no such question” (East African Asians v. the United Kingdom, Commission's report of 14 December 1973, Decisions and Reports 78-A)]. Leafing through the annals of the Court, an uninformed observer would be justified to conclude that, for over fifty years democratic Europe has been exempted from any suspicion of racism, intolerance or xenophobia. The Europe projected by the Court's case-law is that of an exemplary haven of ethnic fraternity, in which peoples of the most diverse origin coalesce without distress, prejudice or recrimination. The present case energises that delusion.
3. Frequently and regularly the Court acknowledges that members of vulnerable minorities are deprived of life or subjected to appalling treatment in violation of Article 3; but not once has the Court found that this happens to be linked to their ethnicity. Kurds, coloureds, Muslims, Roma and others are again and again killed, tortured or maimed, but the Court is not persuaded that their race, colour, nationality or place of origin has anything to do with it. Misfortunes punctually visit disadvantaged minority groups, but only as the result of well-disposed coincidence.
4. At the root of this injurious escape from reality lies the evidentiary rule which the Court has inflicted on itself: “The Court recalls ... that the standard of proof required under the Convention is 'proof beyond reasonable doubt'.” [Velikova v. Bulgaria, no. 41488/98, ECHR 2000-VI] The majority found that in the present case it had not been established “beyond reasonable doubt” that in the death of the 17-year-old Rom, Anguel Zabchekov that followed the devoted attentions of police officers, his ethnicity was “a determining factor” with those police officers who facilitated the young Rom's access to the fastest lane from Razgrad to eternity.
5. This inability to establish a link between physical abuse and ethnicity comes notwithstanding that the red light about the special treatment of Roma by the Bulgarian police in breach of Articles 2 and 3 has been flashing insistently and alarmingly: this is the third case of death or brutality of Roma at the hands of Bulgarian police officers decided by the Court (see Assenov and Others and Velikova). According to reports of inter-governmental organisations and human rights groups, the Bulgarian law-enforcement services boast of an unenviable primacy in racially prejudiced ill-treatment of Roma.
Amnesty International, in a chillingly detailed account, focused on the predilection displayed by police officers for savaging Roma. “Many of the victims of beatings and other ill-treatment by police officers are Roma ... Amnesty International expressed concern to the Bulgarian authorities about two other incidents of mass beatings during police raids on Roma neighbourhoods, five incidents of racial violence where Roma were inadequately protected, five cases of deaths in suspicious circumstances and nine incidents of torture and ill-treatment involving twenty-one victims.”
“The problem” adds the report, “is further compounded by a pattern of impunity of law-enforcement officers responsible for human rights violations” [“Bulgaria, Shooting, Death in Custody, Torture and Ill-treatment”. AI Index: EUR 15/07/96]. On immunity of police officers from prosecution, Amnesty International added that it was “concerned that police impunity which prevails as Bulgarian authorities consistently fail to investigate such incidents properly and impartially places at ever greater risk of racist violence the most vulnerable ethnic community in Bulgaria” [AI Index: EUR 01/06/97].
Another report emphasises that “Roma throughout Bulgaria have been subjected to beatings and other ill-treatment by law-enforcement officers. Amnesty International believes that in most instances such treatment is racially motivated and is concerned that the ill-treatment of Roma is one of the major human rights problems in Bulgaria” [“Bulgaria: Concerns about Ill-treatment of Roma by Bulgarian Police”. AI Index: EUR 15/05/95].
6. It has not only been human rights groups that have sounded the alarm. Intergovernmental organisations such as the Council of Europe and the United Nations have also noted the problem. The Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions to the United Nations Commission on Human Rights, too, “expresses concern about reports indicating that persons belonging to the Roma minority [in Bulgaria] are the main victims of police violence, in particular of violations to the right to life” [Report of 25 January 1996 (E/CN.4/1996/4)]. The report by Alvaro Gil-Robles, the Council of Europe's Commissioner for Human Rights, on his visit to Bulgaria in December 2001 also contributes to the overall perception of Roma as a disadvantaged and targeted minority in that country.
7. The publication “Profession: prisoner. Roma in detention in Bulgaria” also documents in detail the systems of conduct massively employed in Bulgaria by law-enforcement officers, fortified by almost automatic impunity [European Roma Rights Centre, Country Reports Series no. 6, December 1997].
8. Similar negative assessments of systematic police brutality against Roma in Bulgaria has been expressed and recorded by other human rights watchdogs, like the Human Rights Project, the Bulgaria Helsinki Committee and Human Rights Watch.
9. Nowhere does the Convention mandate the “proof beyond reasonable doubt” standard today required of the victim to convince the Court that death or ill-treatment were induced by ethnic prejudice. Article 32, on the contrary, gives the Court the widest possible discretion as to the interpretation and the application of the Convention. What the Convention does mandate is quite the opposite: that its provisions should be given thorough implementation. Any exercise in interpreting the Convention must be geared to “securing the universal and effective recognition and observation” of the guarantees enumerated, unless it is to turn into a betrayal of the spirit and the letter of its momentous preamble.
The Convention has to be applied by the Court in such a way as to guarantee “not rights that are theoretical or illusory, but rights that are practical and effective” [Artico v. Italy, judgment of 13 May 1980, Series A no. 37]. No more effective tool could be devised to ensure that the protection against racial discrimination becomes illusory and inoperative than requiring from the victim a standard of proof that, in other civil-law disputes, is required of no one else.
10. The Court has never explained, let alone justified, why the standard of proof weighting the applicant in human rights disputes should be equivalent to that required of the State to obtain a safe and dependable criminal conviction. I have elsewhere disassociated myself from any adherence to a standard that I find legally untenable and, in practice, unachievable; a standard that only serves to ensure that human rights harm, however flaunted and forbidding, remains unharmed [Veznedaroğlu v. Turkey, no. 32357/96, 11 April 2000]. This doctrine only rewards those the Convention would fain not see rewarded.
11. It is cheerless for me to discern that, in the cornerstone protection against racial discrimination, the Court has been left lagging behind other leading human rights tribunals. The Inter-American Court of Human Rights, for instance, has established standards altogether more reasonable: “The international protection of human rights should not be confused with criminal justice. States do not appear before the Court as defendants in a criminal action. The objective of international human rights law is not to punish those individuals who are guilty of violations, but rather to protect the victims and to provide for the reparation of damages resulting from the acts of States responsible” [Velásquez Rodríguez v. Honduras, Inter-American Court of Human Rights, 29 July 1988, § 134].
12. So also the Supreme Court of the United States, in cases in which the standard and the burden of proof to establish racial discrimination are at issue, works from a more effective and efficient platform: it is for the applicant to make out a prima facie issue of discrimination. Once the applicant has established what, in our Court's language, could be called “an arguable claim”, the burden of proof then shifts to the defendant to satisfy the court of the legitimacy and justification of the action impugned [Griggs v. Duke Power Co. 401 US 424, 427 (1971); McDonnell Douglas Corp. v. Green 411 US 792, 802 (1973)]. This attainable and equitable level of proof appears light-years away from the “proof beyond reasonable doubt” which is stunting European human rights protection in areas where the highest level of protection, rather than the highest level of proof, should be the priority.
13. So long as the Court persists in requiring in human rights disputes a standard of proof that fifty years experience has shown it to be as unreal as it is unrealistic and unrealisable, it will, in effect, only continue to pay lip-service to the guarantees it then makes impossible to uphold. The way forward, in my view, lies in a radical and creative rethinking of the Court's approach, leading to the removal of the barriers which, in some important human rights domains, make the Court an inept trustee of the Convention. The Court has often risen to the challenge in spectacularly visionary manners, and ought, in matters of ethnic discrimination, to succumb with pride to its own tradition of trail blazing.
14. Various well-tried ways come to mind to achieve a new and better balance between the claims of the applicant and those of the state. One is the shift of the burden of proof: a device the Court has already adopted successfully when the alternative would have made the search for truth impossible. Thus, for instance, death or injury during police custody raises a presumption (engineered by the Court's case-law) that shifts the burden of providing a satisfactory explanation to the State [See, for example, Assenov and Others v. Bulgaria, judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII, and some recent Turkish cases].
15. Thus also the Court, in a forward-looking decision, has held that the failure by the Government to submit information to which only it could have access, may give rise to inferences that the applicant's charges are well-founded [Timurtaş v. Turkey, no. 23531/94, ECHR 2000-VI, and Taş v. Turkey, no. 24396/94, 14 November 2000].
16. Reliance on inferences, legal presumptions and a shift in the onus of evidence also proved decisive in the recent Conka case, in which the Court, rather than requiring from the applicants proof beyond reasonable doubt that their expulsion was in pursuance of a collective expulsion policy, found a violation by starting from the opposite end of the syllogism: “The procedure followed [by the State authorities] did not enable it [the Court] to eliminate all doubt that the expulsion might have been collective” [Conka v. Belgium, no. 51564/99, ECHR 2002-I].
17. The Court has also, by an admirable process of judicial activism “created” the concept of a “procedural violation” of Article 2 [McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324], and, more recently, of Article 3 [Assenov and Others, cited above]. The selfsame rationale that found in a non-investigation, or an inadequate investigation of death or inhuman treatment by the State, a “procedural violation” of those guarantees, should inspire and would justify the finding of a violation of Article 14 taken in conjunction with Articles 2 or 3 where no proper investigation of the alleged violation has been carried out.
18. The Court has thus at its disposal a notable arsenal of weapons with which to break the stalemate that has not allowed it, throughout fifty years of activity, to censure one single act of racial discrimination in areas of deprivation of life or inhuman treatment. Ideally it should reconsider whether the standards of proof should not be the more juridically justifiable ones of preponderance of evidence or of a balance of probabilities. Alternatively it should, in my view, hold that when a member of a disadvantaged minority group suffers harm in an environment where racial tensions are high and impunity of State offenders epidemic, the burden to prove that the event was not ethnically induced shifts to the Government.
Subordinately, in the sphere of Article 14, as it has done in the case of Articles 2 and 3, the Court ought to invest in its own doctrine of “procedural violation” when the record shows that the injury suffered by a member of a disadvantaged minority has not been adequately investigated.
19. This would help bring the Court in line with its own case-law that “very weighty reasons would have to be put forward (by the Government) before the Court could regard a difference in treatment based exclusively on the ground of nationality as compatible with the Convention” [Gaygusuz v. Austria, judgment of 16 September 1996, Reports 1996-IV].
20. For the reasons sketched briefly above, I found it inescapable to vote for a violation of Article 14 of the Convention.