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FIFTH
SECTION
CASE OF
VASIL SASHOV PETROV v. BULGARIA
(Application
no. 63106/00)
JUDGMENT
STRASBOURG
10
June 2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial revision.
In the case of Vasil Sashov Petrov
v. Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Karel
Jungwiert,
Rait Maruste,
Mark Villiger,
Isabelle
Berro-Lefèvre,
Mirjana Lazarova Trajkovska,
Zdravka
Kalaydjieva,
judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 11 May 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 63106/00) against the Republic
of Bulgaria lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Bulgarian national, Mr Vasil Sashov Petrov
(“the applicant”), on 25 September 2000.
- The
applicant was represented by Mr T. Borodzhiev and Mr I. Maznev,
lawyers practising in Sofia. The Bulgarian Government (“the
Government”) were represented by their Agent, Ms M. Karadzhova,
of the Ministry of Justice.
- The
applicant alleged that the use of firearms by the police to arrest
him was unwarranted, that the ensuing investigation was not
effective, that he did not have effective remedies in that respect,
and that those events were the result of discriminatory attitudes
towards persons of Roma origin.
- On
7 June 2005 the Court decided to give notice of the application to
the Government. It was also decided to examine the merits of the
application at the same time as its admissibility (Article 29 §
3 of the Convention).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1980 and lives in Velingrad. He describes
himself as being of Roma/Gypsy ethnic origin.
A. The incident of 14 January 1999
- According to his assertions, at about 2 a.m. on 14
January 1999, in foggy weather, the applicant went to a vacant yard
in Velingrad to intoxicate himself by inhaling liquid bronze, as he
did frequently at that time. When he left the yard some time later,
two police officers saw him and yelled at him to stop. He did not and
instead started running. Suddenly he saw a torch in front of him and
veered to the left to evade capture. Then he heard shots but kept on
running. After a few more steps, he felt a stinging pain in his
stomach and fell to the ground. The officers approached and saw that
he had a wound on his stomach. One of the officers recognised him.
- During the ensuing investigation (see paragraphs 9 20
below), the two officers, sergeants I.S. and D.N., stated that they
saw the applicant jump over a fence, enter the yard of a Mr A.V., and
head towards A.V.’s henhouse. After waiting for a few minutes
and making certain that the applicant was trying to steal hens, the
officers, both of whom were armed with pistols loaded with live
cartridges, intervened. They split up and approached the yard from
different directions. When the applicant noticed them, he jumped the
fence and started running through empty plots towards the nearby Roma
neighbourhood. Despite several warnings, he did not stop. Then one of
the officers drew his pistol and fired at him with the intention of
stopping him. At that moment the applicant was at about four metres
from the officer and turned sideways. After that he kept on running.
The other officer continued the chase, fired twice in the air, and
caught up with the applicant about sixty metres from the place where
he had been shot. The officer recognised the applicant, noticed that
he was intoxicated, and saw a small wound on his stomach, but
allegedly did not realise that it had been caused by a bullet.
- The officers immediately took the applicant to a
hospital, where he was bandaged and sent home. They did not mention
that they had used firearms against the applicant. The doctor who
treated him did not realise that his wound had been caused by a
firearm. Not long after that the applicant’s condition worsened
and several hours later he returned to the hospital, where he
underwent a five hour surgical operation. The doctors found that
the applicant’s kidney had been ruptured by a bullet which had
broken up into three pieces, that his liver was damaged and he had
been haemorrhaging into the abdominal cavity. The applicant’s
kidney and part of his liver had to be removed.
B. The investigation
- On 27 January 1999 Pazardzhik police informed the
Plovdiv Regional Military Prosecutor’s Office about the
incident. On 22 February 1999 that office opened an investigation
against the two officers.
- On 12 March 1999 the investigator in charge of the
case interviewed the officers, the applicant and his father. On 23
March 1999 he interviewed the doctor who had treated the applicant
immediately after the incident and the person in charge of the
hospital ward to which the applicant was later admitted. In their
statements, the two officers predominantly referred to the applicant
as a “person”. At one point sergeant I.S. said that when
they approached the applicant after he had fallen to the ground he
saw that he was “an eighteen or nineteen year old Gypsy”
and that he reckoned that “the Gypsy had pricked himself on
something while running”.
- The investigator also ordered a medical expert report
on the nature and origin of the applicant’s injury. The report
concluded that the applicant had been shot from the front and that as
a result of the shot he had lost one kidney, had suffered a
temporarily life threatening condition and a wound penetrating
the abdominal cavity.
- On 16 June 1999 the investigator proposed to the
prosecuting authorities that the investigation be discontinued,
stating that it was impossible to find the bullet which had wounded
the applicant, that both officers stated that they had fired into the
air and denied the accusation, and that the applicant had been unable
to give credible evidence owing to his state of intoxication at the
time of the events. In the investigator’s view, these factors
made it impossible to ascertain which officer had shot the applicant
and therefore to identify the perpetrator.
- On 16 July 1999 the Plovdiv Regional Military
Prosecutor’s Office decided to discontinue the investigation,
reasoning that “despite the thorough investigation” it
was impossible to ascertain who had fired the shot which had wounded
the applicant. The bullet had not been found and both officers had
stated that they had fired in the air.
- On an appeal by the applicant, on 27 August 1999 the
Appellate Military Prosecutor’s Office set the discontinuance
aside. It observed that certain mandatory investigatory steps, such
as ordering a ballistics expert report and inspecting the scene of
the shooting, had not been taken. Nor had the investigator ordered an
expert report on the applicant’s ability to give evidence, in
view of his state of intoxication at the time of the incident. The
conclusion that it was impossible to ascertain who had fired the shot
was ill founded. It was necessary to inspect the scene of the
shooting and carry out a reconstruction of the events, and then order
fresh medical and ballistic expert reports.
- The case was then assigned to another investigator. In
the morning of 6 October 1999 he carried out a reconstruction of the
events in the presence of the applicant, the two officers, ballistics
and medical experts and a photographer. In the afternoon he
interviewed the two officers, the head of their department, the
doctor who had examined the applicant immediately after the incident,
the head of the surgical ward of the hospital where the applicant had
been operated on, and Mr A.V., the owner of the yard adjacent to the
place where the applicant was shot. A.V. stated that the next morning
he had seen footprints inside his yard and a broken plank on the wall
of his henhouse, and that without the intervention of the police the
applicant would certainly have stolen some of his hens. He had stolen
five hens only a month after recovering from his injuries. In their
statements, both officers referred to the applicant as “the
civilian person Petrov” or “Petrov”.
- A ballistics report ordered by the investigator was
ready the next day, 7 October 1999. It concluded that the pistols of
both officers had been capable of producing the shot which had
wounded the applicant. A medical expert report drawn up on 9 November
1999 concluded that the shot which had wounded the applicant had been
fired by sergeant I.S., and that at the time of the shot the
applicant had been standing sideways, with his right shoulder turned
towards I.S., at a distance of about four metres. The bullet had
travelled from front to back and from right to left. A psychiatric
report ordered by the investigator concluded that the applicant had
been intoxicated, but not heavily, and had been able to control his
actions, and was fit to give evidence about the incident.
- Having finished his work on the case, on 24 January
2000 the investigator proposed discontinuing the investigation. He
found, on the basis of A.V.’s statement, that the applicant had
tried to steal hens from A.V.’s henhouse. In his view, sergeant
I.S. had acted in line with section 80(1)(4) of the 1997 Ministry of
Internal Affairs Act (see paragraph 22 below) and was not criminally
liable. The officer had made certain that the applicant was about to
commit theft – a publicly prosecutable offence –, had
warned him several times to stop, and, in view of the poor visibility
and the proximity of the Roma neighbourhood, had reckoned that the
applicant might flee.
- On 29 February 2000 the Plovdiv Military Prosecutor’s
Office decided to discontinue the investigation, repeating the
reasons given by the investigator almost verbatim.
- On 23 March 2000 the Appellate Military Prosecutor’s
Office confirmed the discontinuance. It briefly reasoned that the
officer had lawfully used his weapon, as a means of last resort.
Before firing it, he had made certain, as required under section
80(1)(4) of the 1997 Act (see paragraph 22 above) that the applicant
was attempting to commit theft. In view of that, of the fact that
there was no other way to arrest the applicant, and that the
necessary measures under Article 12a of the Criminal Code (see
paragraph 24 below) had not been exceeded, the harm inflicted on the
applicant was not unlawful.
- In a final decision of 4 April 2000 the Military Court
of Appeal also confirmed the discontinuance. It fully agreed with the
prosecuting authorities’ conclusion that the officers’
actions had been in line with section 80(1)(4) of the 1997 Act (see
paragraph 22 below). It did not mention Article 12a of the Criminal
Code (see paragraph 24 below).
C. The applicant’s claim for damages against the
police
- Later in 2000 the applicant brought a tort claim
against sergeant I.S. and the Pazardzhik police department. On 14
June 2000 the Pazardzhik Regional Court dismissed the claim. On 25
March 2002 the Plovdiv Court of Appeal upheld its judgment. The
applicant’s ensuing appeal on points of law was rejected by the
Supreme Court of Cassation on 15 October 2003 (реш.
№ 1752 от 15 октомври
2003 г. по гр. д. №
1527/2002 г., ВКС, ІV г.
о.). The court held that the shooting had been a result
of the applicant’s own actions and his failure to comply with
the lawful instructions and actions of the police to stop and arrest
him. Sergeant I.S. had acted in line with section 80(1)(4) of the
1997 Ministry of Internal Affairs Act and the applicant was therefore
not entitled to compensation for any resulting harm. The court did
not mention Article 12a of the Criminal Code (see paragraph 24
below).
II. RELEVANT DOMESTIC LAW
A. Use of firearms by the police
- Section 80 of the 1997 Ministry of Internal Affairs
Act, as in force at the material time, provided, in so far as
relevant:
“(1) The police may use firearms as a
means of last resort:
...
4. after giving a warning, to arrest a person
who has committed or is committing a publicly prosecutable offence;
...
(2) When using firearms the police are under
a duty to protect, as far as possible, the life of the person against
whom they use force...”
- In February 2003 section 80(1)(4) was amended to
specify that the person against whom firearms could be used must also
be resisting arrest or trying to escape. The wording of section
74(1)(3) of the 2006 Ministry of Internal Affairs Act, currently in
force, repeats verbatim that of section 80(1)(4) of the 1997
Act, as amended in 2003.
B. Relevant provisions of the Criminal Code
- Article 12a § 1 of the 1968 Criminal Code, added
in August 1997, provides that causing harm to a person while
arresting him or her for an offence is not punishable where no other
means of effecting the arrest exist and the force used is necessary
and lawful. According to Article 12a § 2, the force used is not
necessary where it is manifestly disproportionate to the nature of
the offence committed by the person to be arrested or the resulting
harm is in itself excessive and unnecessary.
C. Discontinuance of preliminary investigations
- Under
Article 237 of the 1974 Code of Criminal Procedure, as in force until
31 December 1999, the discontinuance of a preliminary investigation
could be challenged before a more senior prosecutor.
- On
1 January 2000 that Article was amended to provide for a system of
automatic control of the discontinuance: after the discontinuance the
prosecutor had to send the file and his decision to the immediately
superior prosecutor’s office, which could confirm, modify or
quash it. If it confirmed the decision, it had to forward the file to
the appropriate court, which had to review the matter in private. The
court’s decision was final. No provision was made for those
concerned to be notified of the discontinuance.
- Following
a further amendment of that Article in May 2001, the discontinuance
of preliminary investigations became subject to judicial review. The
2005 Code of Criminal Procedure maintained that position, in Article
243 §§ 3 7.
THE LAW
I. THE GOVERNMENT’S PRELIMINARY OBJECTION
- The
Government submitted that the application was out of time, because
the criminal proceedings against the police officers had come to an
end on 4 April 2000, whereas the application, which was not dated,
was received at the Court more than six months after that, on 5
October 2000. The civil proceedings brought by the applicant, which
were still pending at the latter date, could not be taken into
account as they were separate from the investigation and could not be
seen as its continuation.
- The
applicant replied that the final decision in his case was that of the
Supreme Court of Cassation of 15 October 2003, whereas his
application was lodged earlier – on 25 September 2000.
- Article
35 § 1 of the Convention provides:
“The Court may only deal with the matter after all
domestic remedies have been exhausted, according to the generally
recognised rules of international law, and within a period of six
months from the date on which the final decision was taken.”
- In
a similar case against Bulgaria, where the applicants had brought a
tort claim against the police concomitantly with the criminal
proceedings against the officers responsible for the death of their
relative, the Court found, after examining the matter in considerable
detail, that the starting point of the six month time limit
in those circumstances was the date of the final judgment in the
civil proceedings (see Nikolova and Velichkova v. Bulgaria
(dec.), no. 7888/03, 13 March 2007). It sees no reason to depart from
that position, and accordingly finds that the time limit in the
present case started to run on 15 October 2003, the date of the
Supreme Court of Cassation’s final judgment dismissing the
applicant’s tort claim (see paragraph 21 above). The
application was lodged long before that date.
- However,
even if the Court were to take as the final decision within the
meaning of the Article 35 § 1 the Military Court of Appeal’s
decision of 4 April 2000 (see paragraph 20 above), the application
would still be timely, as it was lodged, as evident from the postmark
affixed on the envelope in which it was posted, on 28 September 2000,
less than six months after that decision.
- The
Government’s objection must therefore be dismissed.
II. ALLEGED VIOLATIONS OF ARTICLE 2 OF THE CONVENTION
- The
applicant complained that life threatening force had been used
against him in circumstances where this was not absolutely necessary.
The applicant also complained that the authorities had failed to
conduct an effective investigation into that matter. He relied on
Article 2 of the Convention, which, in so far as relevant, 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:
...
(b) in order to effect a lawful arrest...”
A. The parties’ arguments
- The
Government submitted that the force used against the applicant was
not life threatening, as could be seen from the medical expert
reports drawn up during the investigation. His condition had probably
worsened as a result of the inadequate medical attention he had
received when first taken to the hospital. Despite the fact that he
was coordinated enough to orient himself in that situation –
which was confirmed by the psychological expert report drawn up in
the course of the investigation – the applicant did not heed
the officers’ warnings to stop. The situation thus fell within
the ambit of section 80(1)(4) of the 1997 Ministry of Internal
Affairs Act, which allowed the use of firearms. Moreover, the
officers took the applicant to a hospital immediately after the
incident.
- The
Government further submitted that the authorities did their best to
elucidate the facts. The investigation was opened promptly and the
authorities interviewed the two officers, the applicant, his father,
and the two medical doctors who had treated the applicant. Following
the remittal by the Appellate Military Prosecutor’s Office, the
authorities carried out even a more detailed but still speedy
investigation, interviewing many persons, ordering several expert
reports, and eventually managing to identify the officer who had
fired the shot that had wounded the applicant.
- The
applicant submitted that while he did not die of his injuries, the
force used against him was life threatening, because the officer
fired at him using live cartridges and from a distance of four
metres. The force was clearly excessive within the meaning of the
Court’s case law and the applicable international
standards, but considered normal at the domestic level, where the
position appeared to be that the police were entitled to use firearms
to arrest any individual suspected of criminal activities. As the
investigation assessed the facts by reference to that deficient
standard and thus arrived at flawed conclusions, it could not be seen
as effective.
B. The Court’s assessment
- The
Court considers that this part of the application is not manifestly
ill founded within the meaning of Article 35 § 3 of the
Convention or inadmissible on any other grounds. It must therefore be
declared admissible.
1. Whether Article 2 is applicable
- In
the present case, the force used against the applicant was not in the
event fatal. The Court must therefore determine whether the facts
should be examined under Article 2 or rather under Article 3 of the
Convention. In so doing, it must have regard to the degree and type
of force used, as well as the intention or aim behind the use of that
force. If the force was potentially deadly and the conduct of the
officers concerned was such as to put the applicant’s life at
risk, then Article 2 is applicable (see Makaratzis v. Greece [GC],
no. 50385/99, §§ 49 55, ECHR 2004 XI; Tzekov
v. Bulgaria, no. 45500/99, § 40, 23 February 2006; and
Goncharuk v. Russia, no. 58643/00, § 74, 4 October
2007).
- The
evidence adduced makes it clear that the officers who chased the
applicant fired their weapons in order to stop and arrest him (see
paragraphs 6 and 7 above), and the Court accepts that they did not
intend to kill him. However, the Court notes that at least one of the
officers fired directly at the applicant and not into the air
(contrast with Zelilof v. Greece, no. 17060/03, § 36,
24 May 2007). Also, it cannot overlook the facts that the applicant
suffered a serious and, albeit temporarily, life threatening
injury (see paragraphs 8 and 11 above and contrast with Tzekov,
cited above, §§ 17 and 42), that both officers’
pistols were loaded with live cartridges, that the injury was caused
by a bullet fired from about four metres away (see paragraphs 7 and
16 above and contrast with Tzekov, cited above, §§
13 and 42), and that the bullet could easily have inflicted more
serious damage. Nor can the Court fail to notice that when the
officers took the applicant to the hospital, they did not mention to
the doctor who took charge of him that they had used firearms against
him (see paragraph 8 above). It appears that that fact, which no
doubt contributed to the doctor’s failing to realise that the
applicant’s wound had been caused by a firearm, significantly
increased the risk to the applicant’s life.
- The
Court therefore concludes that the applicant was the victim of
conduct which, by its very nature, put his life at risk, even though,
in the event, he survived. Article 2 is therefore applicable.
2. Whether the force used against the applicant was
absolutely necessary
- In
the circumstances of the present case, the Court is prepared to
accept that the officer who shot the applicant used force in order to
effect a lawful arrest. It will therefore examine the case under
Article 2 § 2 (b), which authorises the use of force which is no
more than absolutely necessary for that purpose. The general
principles governing such situations have been summarised in
paragraphs 93 97 of the Court’s judgment in Nachova and
Others v. Bulgaria ([GC], nos. 43577/98 and 43579/98, ECHR
2005 VII).
(a) The relevant legal framework
- In a previous similar case, Tzekov, cited
above, the Court noted with concern that section 42(1)(4) of the 1993
National Police Act allowed that police to use firearms to effect an
arrest regardless of the seriousness of the offence which the person
concerned was suspected of having committed or the danger which he or
she represented. Under that section, police officers could
legitimately fire upon any person who did not stop after being
warned, and a simple warning was apparently sufficient for the
prosecuting authorities and the courts to find that the use of
firearms had been “a means of last resort” within the
section’s meaning. The Court further noted that until 2003 the
wording of section 80(1)(4) of the 1997 Ministry of Internal Affairs
Act – in issue in the present case (see paragraphs 17, 18, 19,
20 and 22 above) – was identical (see Tzekov, cited
above, §§ 28, 29 and 54).
- It is true that, unlike the situation obtaining in
Tzekov (ibid., § 55), at the time of the incident in the
present case the Criminal Code defined, in its new Article 12a, the
situations in which it was permissible to cause harm to effect an
arrest (see paragraph 24 above). However, the military court did not
even mention that provision and the military prosecuting authorities
construed it as allowing the police to use firearms to arrest a
person suspected of theft (see paragraphs 18, 20 and 21 above). The
Court does not consider that it must question the correctness of that
interpretation; it must base its examination on the provisions of the
domestic law as they were applied to the applicant (see, mutatis
mutandis, Minelli v. Switzerland, 25 March 1983, §
35, Series A no. 62, and Vasilescu v. Romania, 22 May 1998, §
39, Reports of Judgments and Decisions 1998 III).
- In view of the foregoing, the Court cannot but confirm
the conclusion that it reached in Tzekov: the legal provisions
governing the use of firearms by the police, as interpreted and
applied in the present case, were fundamentally insufficient to
protect those concerned against unjustified and arbitrary
encroachments on their right to life (see Tzekov, cited above,
§ 56, and Nachova and Others, cited above, §§
99 and 100, concerning the use of firearms by the military police).
Such a legal framework is fundamentally deficient and falls well
short of the level of protection “by law” of the right to
life that is required by the Convention in present day
democratic societies in Europe. As the Court explained in Nachova
and Others, the legitimate aim of effecting a lawful arrest can
only justify putting human life at risk in circumstances of absolute
necessity; there is no such necessity where it is known that the
person to be arrested poses no threat to life or limb and is not
suspected of having committed a violent offence, even if a failure to
use lethal force may result in the opportunity to arrest the fugitive
being lost. The principle of strict proportionality inherent in
Article 2 requires the national legal framework regulating arrest
operations to make recourse to firearms dependent on a careful
assessment of the surrounding circumstances, and, in particular, on
an evaluation of the nature of the offence committed by the fugitive
and of the threat he or she posed. Furthermore, the national law
regulating policing operations must secure a system of adequate and
effective safeguards against arbitrariness and abuse of force and
even against avoidable accident. In particular, law enforcement
agents must be trained to assess whether or not there is an absolute
necessity to use firearms, not only on the basis of the letter of the
relevant regulations, but also with due regard to the pre eminence
of respect for human life as a fundamental value (see Nachova and
Others, cited above, §§ 94 97, with further
references).
- The
Court notes with concern that identical provisions continue to be in
force until the present day (see paragraph 23 above).
- The Court additionally notes the apparent absence of
any rules or instructions on the steps to be taken by the police in
such situations (see, mutatis mutandis, Celniku v. Greece,
no. 21449/04, § 68, 5 July 2007).
(b) The actions of the arresting officers
- The applicant, when spotted by the police near a
courtyard in the middle of the night and under reduced visibility,
refused to heed their order to stop and instead started running (see
paragraphs 6 and 7 above). The officers could have therefore
reasonably suspected that he had committed an offence (compare with
Tzekov, cited above, §§ 9 12, 58 and 59).
However, it has never been alleged that they had reason to believe
that the applicant had committed a violent offence, that he was
dangerous, or that if not arrested he would represent a danger to
them or third parties (compare with Juozaitienė and Bikulčius
v. Lithuania, nos. 70659/01
and 74371/01, §§ 79 and 80, 24 April 2008). The Court does
not overlook the fact that the applicant was wounded during an
unplanned operation that gave rise to developments to which the
police had to react without prior preparation, and understands that
the authorities’ obligations under Article 2 must be
interpreted in a way which does not impose an impossible burden on
them (see Tzekov, cited above § 61, with further
references). Nevertheless, it cannot accept that in the circumstances
of the present case the police could reasonably have believed that
that the applicant was dangerous and that they needed to use firearms
to immobilise him. The Court considers that in those circumstances
any resort to potentially deadly force was prohibited by Article 2,
regardless of the risk that the applicant might escape. Recourse to
such force cannot be considered as “absolutely necessary”
where it is known that the person to be arrested poses no threat to
life or limb and is not suspected of having committed a violent
offence (see Nachova and Others, § 107, and Tzekov,
§§ 63 and 64, both cited above).
- Moreover, the available evidence – chiefly the
medical experts’ findings that the applicant was shot from the
front at a short distance and was intoxicated (see paragraphs 11 and
16 above) – suggests that the officers could have arrested him
without using their firearms.
(c) The Court’s conclusion
- In sum, the Court finds that the respondent State
failed to comply with its obligations under Article 2 of the
Convention in that the legal provisions governing the use of firearms
by the police were flawed, and in that the applicant was shot in
circumstances in which the use of firearms was incompatible with that
provision.
3. Whether the investigation was effective
- The relevant principles governing the obligation to
investigate the use of life threatening force by State agents
have been summarised in paragraphs 110 13 of the Court’s
judgment in Nachova and Others (cited above).
- In the present case, the authorities did not remain
passive. The military prosecuting authorities opened an investigation
shortly after the events (see paragraph 9 above). The investigating
authorities took a number of steps and, following the instructions
given by the Appellate Military Prosecutor’s Office, gathered
evidence which allowed them to establish the identity of the officer
who had wounded the applicant and the manner in which he had done it
(see paragraphs 10, 11, 14, 15 and 16 above). The investigation was
also reasonably prompt, lasting in total slightly more than a year
and one month. However, it limited itself to assessing the lawfulness
of the officers’ conduct in the light of section 80(1)(4) of
the 1997 Ministry of Internal Affairs Act, as construed by the
military investigating and prosecuting authorities and the military
court (see paragraphs 18, 19, 20 and 22 above). By basing themselves
on the strict letter of that provision and on their interpretation of
Article 12a of the Criminal Code (see paragraphs 19 and 24 above),
the military investigating and prosecuting authorities and the
military court disregarded material circumstances, such as the facts
that the officers had no reason to believe that applicant represented
a danger to anyone, and that it was questionable whether the officers
were at all entitled to use firearms to arrest him. Their approach
did not therefore comport with the requirements of Article 2 (see
Nachova and Others, § 114, and Tzekov, § 71,
both cited above, as well as, mutatis mutandis, Ivan
Vasilev v. Bulgaria, no. 48130/99, §§ 77 79,
12 April 2007).
- There has therefore been a violation of that provision
in that respect as well.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- The
applicant complained that he did not have an effective domestic
remedy in respect of the breaches of Article 2. He relied on Article
13 of the Convention, which provides as follows:
“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.”
- The
Government submitted that the tort claim brought by the applicant
against the officer and the police was an effective remedy. It failed
to produce results solely because the civil courts found, in line
with the conclusions of the criminal investigation, that the officer
who had shot the applicant had not acted unlawfully.
- The
applicant submitted that the dismissal of his claim deprived him of
an effective remedy. The courts based their findings entirely on
those of the prosecuting authorities and did not seek to establish
independently whether the use of life threatening force against
him had been absolutely necessary.
- The
Court considers that this complaint is not manifestly ill founded
within the meaning of Article 35 § 3 of the Convention or
inadmissible on any other grounds. It must therefore be declared
admissible.
- Article
13 guarantees the availability of a remedy at national level to
enforce the substance of the Convention rights and freedoms in
whatever form they may happen to be secured in the domestic legal
order. The scope of the State’s obligation under that provision
varies depending on the nature of the complaint. In the case of an
arguable allegation of a breach of Article 2 resulting from the
use of deadly force, Article 13 calls not only for a thorough and
effective investigation, but in addition requires that compensation
for the non pecuniary damage flowing from the breach be, in
principle, available as part of the range of redress (see Bubbins
v. the United Kingdom, no. 50196/99, §§ 170 and 171,
ECHR 2005 II (extracts), with further references). Like the
investigation required under Article 2 (see Nachova and Others,
cited above, § 113), any proceedings in which those concerned
seek such compensation must follow a standard comparable to the one
used by the Court in assessing substantive complaints under
Article 2. That means that the national courts, while bound by
the terms in which domestic law is couched, must review the acts
alleged to amount to a breach of Article 2 in the light of the
principles which lie at the heart of the Court’s analysis of
complaints under that provision (see, mutatis mutandis, Ivan
Vasilev, cited above, § 75).
- Having
regard to its findings under Article 2 (see paragraphs 50 and 53
above), the Court is satisfied that the applicant’s complaint
was arguable and that he was entitled to an effective remedy in
respect of it.
- The
Court notes that the dismissal of the applicant’s tort claim
was not due to the lack of sufficient proof that the officer had shot
him, but was rather a result of the manner in which the civil courts
construed the domestic law provisions regulating the use of
firearms by the police and their consequent finding that the
officer’s actions had not been unlawful, which was a necessary
precondition for the claim to succeed (see paragraph 21 above). While
it is not for this Court to determine whether that construction was
correct, it must nonetheless verify whether the courts’
approach led to a breach of the applicant’s right under Article
13. As already noted, that right implies that allegations of breaches
of Article 2 must be examined in line with the standards developed in
this Court’s case law, which demand a careful review of
whether life threatening force used during arrest operations is
more than “absolutely necessary”, that is, strictly
proportionate in the circumstances (see Nachova and Others,
§§ 93 97, and, mutatis mutandis, Tzekov,
§§ 52 and 53, both cited above). Indeed, Article 12a of the
Bulgarian Criminal Code, which calls for an assessment of the
necessity of the use of force in arrest operations (see paragraph 24
above), seems to reflect similar concerns.
- However,
in the present case the civil courts, much like the military
prosecuting authorities before them, found that the police had been
entitled to use firearms to arrest the applicant even though he was
not suspected of committing a violent offence or representing a
danger to anyone (see paragraph 21 above). That approach fell short
of the standards stemming from this Court’s case law (see,
mutatis mutandis, Ivan Vasilev, cited above, § 79)
and prevented the proceedings from providing the applicant effective
redress (contrast with McKerr v. the United Kingdom,
no. 28883/95, § 172 74, ECHR 2001 III).
- There
has therefore been a violation of Article 13 of the Convention.
IV. ALLEGED VIOLATIONS OF ARTICLE 14 OF THE CONVENTION
TAKEN IN CONJUNCTION WITH ARTICLE 2
- The
applicant complained under Article 14 of the Convention taken in
conjunction with Article 2 that the police had used excessive force
against him on account of his ethnic origin and that the authorities
had failed to investigate the matter properly.
- Article
14 provides as follows:
“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.”
A. The parties’ arguments
- The Government submitted that the allegations of
racial bias had no basis in the facts of the case. When they fired
their shots the two officers were not aware of the applicant’s
ethnicity; they recognised him only after that. They did not engage
in any discriminatory conduct, either at the time of the incident or
during the ensuing investigation. The only time the word “gypsy”
was mentioned during the investigation was when the officers referred
to the nearby Roma neighbourhood. That was no more discriminatory
than to speak of a Chinese neighbourhood, for example. The
investigating authorities never referred to the applicant as a
“gypsy”.
- The applicant argued that the police officers were
aware of his ethnic origin at the time when they fired their shots.
In his view, his ethnicity was a primary factor in their decision to
arrest him and use firearms. That was evident from a statement made
by sergeant I.S. during an interview with the investigator on 14
January 2000, in which he said that because of the proximity of the
Roma neighbourhood he and his colleague had reckoned that the
individual who they saw was a Roma who had come to A.V.’s yard
to steal. The applicant did not submit a copy of the record of that
interview.
B. The Court’s assessment
- The
Court considers that this complaint is not manifestly ill founded
within the meaning of Article 35 § 3 of the Convention or
inadmissible on any other grounds. It must therefore be declared
admissible.
1. Substantive aspect
- The relevant principles have been summarised in
paragraphs 145 47 of the Court’s judgment in Nachova
and Others (cited above).
- The available evidence in the present case suggests
that the officers were not aware of the applicant’s ethnic
origin when they fired at him. They gave chase during the night and
under reduced visibility, and recognised the applicant only after he
had fallen to the ground (see paragraphs 6 and 7 above). It is true
that later the authorities found that the proximity of the Roma
neighbourhood had been one of the reasons why the officers had
estimated that the applicant would be able to flee (see paragraph 17
above). However, even if in view of that it can be accepted that the
officers were conscious of the applicant’s ethnic origin, it is
not possible to speculate on whether or not that had any bearing on
their perception of the applicant and their decision to use firearms
(see Nachova and Others, cited above, §§ 150 52).
The use of firearms in the circumstances in issue was not prohibited
under the relevant domestic regulations, a flagrant deficiency which
the Court has already condemned (see paragraphs 43 47 above).
Therefore, the possibility that the two officers were simply adhering
to those regulations and would have acted as they did in any similar
context, regardless of the ethnicity of the person concerned, cannot
be excluded (ibid., and, mutatis mutandis, Bekos and
Koutropoulos v. Greece, no. 15250/02, § 66 in
limine, ECHR 2005 XIII (extracts)). While their conduct
calls for serious criticism, it is not of itself a sufficient basis
for concluding that the use of life threatening force against
the applicant was racially motivated (see, mutatis mutandis,
Zelilof, cited above, § 75). Moreover, there is no
indication, and it has not been alleged by the applicant, either
before the domestic authorities or before the Court, that the
officers uttered racial slurs at any point during the events in
question (compare with Celniku, cited above, § 80 in
fine, and contrast with Nachova and Others, cited above,
§§ 35 in fine and 153; with Osman v. Bulgaria,
no. 43233/98, §§ 85 and 86, 16 February 2006; with
Turan Cakir v. Belgium, no. 44256/06,
§ 80, 10 March 2009; and with Sashov and
Others v. Bulgaria, no. 14383/03,
§ 80, 7 January 2010).
- It has not therefore been established that racist
attitudes played a role in events leading up to the shooting of the
applicant. It follows that there has been no violation of Article 14
of the Convention taken in conjunction with Article 2.
2. Procedural aspect
- The
relevant principles have been set out in paragraphs 160 and 161 of
the Court’s judgment in Nachova and Others (cited
above).
- In
the instant case, unlike the situation obtaining in that case (cited
above, §§ 163 and 165), the authorities did not have before
them any concrete information capable of suggesting that the
applicant’s shooting had been the result of racial prejudice
(see paragraph 69 above). It is true that in the course of his
interview on 12 March 1999 sergeant I.S. twice referred to the
applicant as a “gypsy” (see paragraph 10 above). However,
the Court is not persuaded that, given the context in which those
remarks were made, they denoted racist bias and were sufficient to
warrant the authorities to inquire into whether racial prejudice had
motivated the officers’ conduct (compare with Beganović
v. Croatia, no. 46423/06,
§ 96, 25 June 2009, and contrast with Karagiannopoulos
v. Greece, no. 27850/03, §§ 20 and 73 in fine,
21 June 2007, and with Stoica v. Romania, no. 42722/02, §§
36 and 128 in fine, 4 March 2008). The Court further notes
that the authorities found that the proximity of the Roma
neighbourhood had been one of the reasons why the officers had
estimated that the applicant would be able to flee (see paragraph 17
above). However, given that those authorities’ assessment of
the officers’ consequent decision to use firearms was based on
a flawed legal framework which authorised the use of firearms to
arrest any person seeking to evade arrest (see paragraphs 43 47
and 52 above), the Court is not convinced that that element was
capable of alerting them to the need to investigate racist attitudes.
It appears that they regarded the proximity of that neighbourhood as
a factor in the officers’ appraisal of the applicant’s
ability to flee, and not as a thing which had in itself made them
more prone to use firearms. Moreover, there is no indication that the
applicant made allegations of racial bias at any point during the
investigation (compare with Karagiannopoulos, § 78; Turan
Cakir, § 80; Beganović,
§ 97; and Sashov and Others, § 84, all cited
above, and contrast with Bekos and Koutropoulos, cited above,
§ 72).
- For
these reasons, the Court does not consider that the authorities had
before them information that was sufficient to bring into play their
obligation to investigate possible racist motives on the part of the
officers. It follows that there has been no violation of Article 14
of the Convention taken in conjunction with Article 2 in that
respect.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 17,000 euros (EUR) in respect of the non pecuniary
damage flowing from the breaches of Articles 2 and 13, as well as EUR
2,000 in respect of the breach of Article 14. He submitted that as a
result of the use of potentially deadly force against him he suffered
serious injuries which put his life at risk. He underwent a surgical
intervention leading to the removal of one of his kidneys and part of
his liver. That also caused him prolonged physical pain and
suffering. He suffered additional frustration as on account of the
way in which the authorities had conducted their investigation into
the incident, of the approach of the courts to his tort claim, and of
the manner in which Bulgarian law regulated the use of firearms by
the police.
- The
Government submitted that the claims were excessive, as the applicant
had suffered only a temporarily life threatening injury, from
which he had recovered after medical treatment.
- The
Court observes that in the present case an award of just satisfaction
can be based only on the violations of Articles 2 and 13 of the
Convention. The Court considers that the applicant must have suffered
considerably as a result of the serious violations of his rights
under those provisions. Ruling in equity, as required under Article
41, it awards him EUR 15,000 under this head. To that amount is to be
added any tax that may be chargeable.
B. Costs and expenses
- The
applicant sought reimbursement of EUR 8,050 incurred in fees for one
hundred and sixty one hours of work by his lawyers on the
proceedings before the Court, at EUR 50 per hour. He requested that
any amount awarded be made payable directly to his legal
representatives.
- The
Government disputed the necessity of the number of hours spent by the
applicant’s lawyers in work on the case. In their view, any
award made under that head should not exceed the usual for such
cases.
- According
to the Court’s case law, costs and expenses can be awarded
under Article 41 only if it is established that they were actually
and necessarily incurred and are reasonable as to quantum.
Furthermore, legal costs are recoverable only in so far as they
relate to the violation found (see, as a recent authority, Šilih
v. Slovenia [GC], no. 71463/01, § 226, 9 April 2009). In the
present case, having regard to the information in its possession and
the above criteria, the Court considers it reasonable to award the
applicant EUR 3,000, plus any tax that may be chargeable to him. That
amount is to be paid into the bank account of the applicant’s
legal representatives, Mr T. Borodzhiev and Mr I. Maznev.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Dismisses the Government’s preliminary
objection;
- Declares the application admissible;
- Holds that there has been a violation of Article
2 of the Convention in respect of the life threatening force
used against the applicant;
- Holds 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 into the
circumstances of the incident which put the applicant’s life at
risk;
- Holds that there has been a violation of Article
13 of the Convention;
- Holds that there has been no violation of
Article 14 of the Convention taken in conjunction with Article 2 in
respect of the allegation that the life threatening force used
against the applicant constituted an act of racial violence;
- Holds that there has been no violation of
Article 14 of the Convention taken in conjunction with Article 2 in
that the authorities failed to investigate possible racist motives
behind the use of life threatening force against the applicant;
- Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts, to be
converted into Bulgarian levs at the rate applicable on the date of
settlement:
(i) EUR
15,000 (fifteen thousand euros), plus any tax that may be chargeable,
in respect of non-pecuniary damage;
(ii) EUR
3,000 (three thousand euros), plus any tax that may be chargeable to
the applicant, in respect of costs and expenses, to be paid into the
bank account of the applicant’s legal representatives, Mr T.
Borodzhiev and Mr I. Maznev;
(b) that
from the expiry of the above mentioned three months until
settlement simple interest shall be payable on the above amounts at a
rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 10 June 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
