In the case of Pashov and Others v. Bulgaria,
The European Court of Human Rights (Fourth Section), sitting as
a Chamber composed of:
Ineta Ziemele, President,
David Thór Björgvinsson,
George Nicolaou,
Ledi Bianku,
Zdravka Kalaydjieva,
Vincent A. De Gaetano,
Paul Mahoney, judges,
and Lawrence Early, Section Registrar,
Having deliberated in private on 15 January 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
20875/07) 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 three Bulgarian nationals, Mr Pavel Simeonov
Pashov, Ms Elena Pavlova Lazova and Mr Konstantin Vasilev Nikolov (“the
applicants”), on 7 May 2007.
The applicants were represented by Mr Y. Grozev,
a lawyer practising in Sofia. The Bulgarian Government (“the Government”) were
represented by their Agents, Ms M. Kotseva and Ms R. Nikolova, of the Ministry
of Justice.
The applicants alleged, in particular, that a set
of civil proceedings they were party to were excessively lengthy and that the
authorities failed for a long period of time to enforce the final judgment.
On 12 May 2010 the application was communicated to
the Government. It was also decided to rule on the admissibility and merits of
the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicants were born in 1944, 1970 and 1946
respectively, and live in Sofia.
A. Background to the case
On 10 January 1997 a political rally took place
in front of the Parliament building in Sofia, continuing until well after
midnight. At one point, the rally turned violent and some protesters broke into
the building. The police used force in order to disperse them.
B. The applicants’ encounter with the police
At about 3 a.m. on 11 January 1997 the
applicants, who were all in the first and second applicants’ flat, not far from
the Parliament building, went outside to see what was happening, as they had
heard on the radio that there had been some violence. They saw a group of
police officers on the street armed with guns, batons, shields and helmets, who
were running towards them.
The applicants hurried back into the first and
second applicants’ apartment building, locking the front door after them. The
police officers broke in and two of them chased the applicants to the top floor
where they started beating them with batons. After several minutes they left.
As the applicants were too scared to go outside
again, they waited until morning before going to see a doctor. The three of
them had wounds to their heads and bruises on their backs and arms. The first
and second applicants had their head wounds stitched and the third applicant,
who had a broken finger, had his hand fixed with a splint and bandaged.
On 22 January 1997 the applicants were examined
by forensic doctors. It was established that the first applicant had three head
wounds, one of which had been treated by a surgeon, and numerous bruises on the
back, left shoulder and left arm. The second applicant had a head wound and the
third applicant had a broken finger and bruises on the neck and the right arm. The
doctors found that the applicants’ injuries were the result of having been beaten
with hard objects, and could have been inflicted at the time and in the way the
applicants alleged.
On 22 and 23 January 1997 the first and second
applicants lodged a complaint about the incident with the National
Investigation Service, supported by copies of their medical records.
C. Investigation of the events of 10-11 January 1997
On 20 January 1997, upon a request by the mayor
of Sofia and instructions from the Chief Public Prosecutor’s Office, the Sofia Regional
Military Prosecutor’s Office opened a criminal investigation in respect of the actions
of the police during the rally.
During the course of the proceedings the
prosecutors interviewed all the police officers who had been on duty during the
rally and more than four-hundred participants. Several members of parliament and
other politicians who had been inside the Parliament building during the rally
were also interviewed. The prosecution collected documentary evidence, photos
and video recordings.
On 9 November 1999, a prosecutor from the Sofia Regional
Military Prosecutor’s Office decided that the criminal proceedings should be
discontinued. He observed that around 1 a.m. on 11 January 1997, when the
tensions in front of Parliament had escalated, the police had injured
participants in the rally using their batons. However, the individual
perpetrators could not be identified. In addition, it appeared that the police
had acted in self-defence and with the aim of defending the life, physical integrity
and possessions of others. No evidence had been collected to suggest that the
officers had the authority of their superiors to use force.
A list of eighty-five participants reported to
have sustained injuries during the rally was attached to the above decision; it
contained the names of the first and second applicants, but not that of the
third applicant.
The decision did not mention the specific
circumstances in which the applicants had sustained their injuries.
Upon an appeal by the first and second
applicants, on 11 July 2000 a prosecutor from the Military Appellate Prosecutor’s
Office upheld the decision to discontinue the proceedings.
It appears from the documents submitted by the
parties that that decision was not sent to the relevant court for judicial
control, as provided for in the legislation at the time. The applicants submitted
that they did not receive any information regarding the investigation after the
decision of 11 July 2000.
D. Tort proceedings against the State
In the meantime, on 13 November 1997 the three
applicants brought a tort action against the Ministry of the Interior under the
State and Municipalities Responsibility for Damage Act (see paragraph 33 below).
They sought non-pecuniary damages for the suffering and humiliation caused to
them during the incident of 11 January 1997.
Between 6 February 1998 and 14 March 2000 the
Sofia District Court held at least twelve hearings, four of which were
adjourned due to improper service of the summons.
Meanwhile, on 23 March 1999 the applicants
requested that three new defendants be joined to the proceedings, including the
Sofia Directorate of Internal Affairs.
In a judgment of 29 May 2000 the Sofia District
Court allowed the applicants’ claim against the Sofia Directorate of Internal
Affairs but rejected it in respect of the other defendants.
On appeal, on 4 October 2001 the Sofia City
Court held that the lower court had erred in applying the law and remitted the
case for fresh examination.
On 7 February 2002, sitting in camera, the
District Court of its own motion joined the State, represented by the Minister
of Finance, as a defendant.
In a judgment of 28 April 2003 the Sofia
District Court allowed the applicants’ claims against the State.
On appeal by the Minister of Finance, in a
judgment of 3 December 2003 the Sofia City Court held that the State was not
the correct defendant in the case. It noted that the State could only be held
responsible through the actions of its bodies, which were separate legal
entities. Thus, it once again remitted the case for fresh examination.
In a judgment of 22 July 2004 the Sofia District
Court held that evidence had been gathered proving that the police officers had
had no justification for using force against the applicants and that the latter
had done nothing to provoke such a violent attack. It further held that the correct
defendant in the case was the Sofia Directorate of Internal Affairs, and
ordered it to pay each of the applicants 1,000 Bulgarian levs (BGN), the
equivalent of approximately 510 euros (EUR) in non-pecuniary damages, plus interest
and costs.
The Sofia District Court established the factual
circumstances as described in paragraphs 7-10 above. It based its conclusions, inter
alia, on medical expert opinions about the nature and probable cause of the
applicants’ injuries, and on the statements of three witnesses: the third
applicant’s wife, who had been with the applicants at the time of the incident,
and two neighbours who had seen the police officers break the front door of the
apartment building and chase the applicants, had heard a noise that sounded like
beating and groaning, and had seen blood at the scene of the incident.
The above judgment was not appealed against and
became final on 15 October 2004.
E. Enforcement of the judgment of 22 July 2004
On 3 November 2004 the applicants obtained a
writ of execution to enforce the judgment of 22 July 2004. On 26 November 2004
they submitted it to the Sofia Directorate of Internal Affairs with a request
for payment. On 6 January, 4 April and 2 October 2006 they sent further
requests.
At the time of the applicants’ latest communication
to the Court of December 2010, the judgment of 22 July 2004 had not yet been
enforced.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Use of force and the duty to investigate
ill-treatment by the police
The relevant provisions, in force at the time,
concerning use of force and the duty to investigate ill-treatment by the police
have been summarised in paragraphs 42-44 of the Court’s judgment in the case of
Krastanov v. Bulgaria (no. 50222/99, 30 September 2004).
B. Civil remedies against ill-treatment by the police
The relevant provisions concerning actions under
the State Responsibility for Damage Act (the Act’s title having been amended
later to State and Municipalities Responsibility for Damage Act - “the SMRDA”)
have been summarised in paragraphs 45-46 of the Court’s judgment in the case of
Krastanov (cited above).
C. Enforcement against State bodies
Under the Code of Civil Procedure 1952, which
was in force until March 2008, no enforcement proceedings could be instituted in
cases where the debtor was a State body or a municipality. The relevant
provisions in that connection have been summarised in paragraphs 36-38 of the
Court’s judgment in the case of Mancheva v. Bulgaria (no. 39609/98, 30
September 2004).
The procedure for the execution of judgments
against State bodies remained unchanged under the new Code of Civil Procedure, which
entered into force on 1 March 2008.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
The applicants complained under Article 3 of the
Convention that the authorities had failed to investigate effectively their
claim that they had been beaten by the police.
Article 3 of Convention reads as follows:
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
The Government disputed the third applicant’s
claims that he had been beaten by police officers, on the grounds that he had
not made a complaint to the prosecution authorities and that his name had not
appeared on the list of injured people appended to the prosecutor’s decision of
9 November 1999 to discontinue the criminal investigation (see
paragraph 15 above) or on other lists containing the names of people
injured at the rally. Moreover, the Government argued that the ill-treatment
inflicted on the applicants had not reached the minimum level of severity
required under Article 3, nor had been intended to humiliate or debase them.
The Government argued that the applicants’ ill-treatment had in any event been
justified because the applicants may have provoked it. The Government also
submitted that the criminal investigation of the events of 10 and 11 January
1997 had been thorough and that valid conclusions had been reached.
The applicants contested these arguments and
reiterated their complaint.
As regards the Government’s objection concerning
the facts of the case, namely that it had not been established that the third
applicant had also been injured during the incident of 11 January 1997, the
Court refers to the reasoned findings of the domestic courts in the tort
proceedings brought by the applicants (see paragraphs 27-28 above) and sees no
cogent elements which would lead it to depart from them (see Jasar v. “the former Yugoslav Republic of Macedonia”, no. 69908/01, § 53, 15 February 2007; Enukidze and Girgvliani v. Georgia, no. 25091/07, § 286, 26 April 2011; and Radu
Pop v. Romania, no. 14337/04, § 109,
17 July 2012).
Admissibility
The Court is of the view that a question arises
as to whether the complaint under Article 3 of the Convention has been raised
within six months of the “final decision” on the case, as required by Article 35
§ 1 of the Convention.
The six-month rule provided for in Article 35 §
1 has a number of aims. Its primary purpose is to maintain legal certainty by
ensuring that cases raising issues under the Convention are examined within a
reasonable time, and to prevent the authorities and other persons concerned
from being kept in a state of uncertainty for a long period of time. That rule
marks out the temporal limit of the supervision exercised by the Court and
signals, both to individuals and State authorities, the period beyond which
such supervision is no longer possible (see, among many other authorities, Sabri Güneş v. Turkey [GC], no. 27396/06, §§ 39-40, 29 June 2012). The six-month rule serves the
interests not only of the respondent Government, but also of legal certainty as
a value in itself. That is why the Court has to examine compliance with the
rule even in the absence of an objection by the Government to that effect (see Walker
v. the United Kingdom (dec.), no. 34979/97, ECHR 2000-I; Blečić
v. Croatia [GC], no. 59532/00, § 68, ECHR 2006-III; and Manolov
and Racheva-Manolova v. Bulgaria, no. 54252/00, § 25, 11 December 2008).
The Court notes in that connection that the
present case concerns an incident dating back to January 1997 (see paragraphs
6-9 above). The criminal investigation opened by the authorities was closed in
2000 without, however, having involved the examination of the particular
circumstances in which the applicants’ injuries had been inflicted, since it centred
on the events in front of the Parliament, whereas the applicants had been
attacked in the building where the first and second applicants had been living
(see paragraphs 14-16 above).
The Court has already held in cases of alleged
ill-treatment that applicants were required to lodge their applications with
due expedition once they became, or should have become, aware of the lack of an
effective investigation capable of
leading to the identification and punishment of those responsible (see
Kırlangıç v. Turkey, no. 30689/05, §§ 26-33, 25 September
2012; Brunner v. Turkey (dec.), no. 10/10, 6 December 2011; Manukyan v. Georgia (dec.), no. 53073/07, 9 October 2012). The Court thus finds that the applicants in the present case
should have become aware, within a reasonable time following the
discontinuation of the criminal proceedings opened by the authorities, that no
further investigation into their beating would be carried out, and should have
lodged their application with due expedition after that.
Yet, the present application was only lodged on
7 May 2007 (see paragraph 1 above) and the applicants have not provided any
valid justification for their failure to complain to the Court at an earlier
date.
It is true that the applicants brought a tort
action against the State (see paragraphs 19-29 above), which continued well
after the discontinuation of the criminal proceedings. However, these
proceedings had no bearing on the State’s obligation to carry out an effective
investigation and the final judgment given in them could not be considered a
“final decision” within the meaning of Article 35 § 1 of the Convention in
respect of the applicants’ complaints under the procedural limb of Article 3.
In any event, these proceedings ended on 15
October 2004 when the Sofia District Court’s judgment of 22 July 2004 became
final (see paragraphs 27-29 above), which was still more than
six months before the lodging of the present application on 7 May 2007.
. It is true also that even after 15
October 2004 an issue remained pending, as the damages awarded to the
applicants in the tort proceedings had still not been paid (see paragraph 31
above). However, the Court points out that the complaint under examination concerns
the lack of effective investigation of the applicants’ ill-treatment by police
officers on 11 January 1997; it does not consider that the link between this complaint
and the issue remaining after 15 October 2004, namely the non-enforcement of
the judgment of 22 July 2004, was strong enough to justify the conclusion that
the matters complained of by the applicants had not been determined at the
domestic level.
It follows that the complaint under Article 3 about
the lack of effective investigation has not been introduced within six months
of the “final decision” in the case and must be rejected in accordance with Article 35
§§ 1 and 4 of the Convention.
II. ALLEGED VIOLATIONS OF ARTICLE 6 § 1 OF THE
CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1
The applicants complained in addition of the
length of the tort proceedings and the prolonged non-enforcement of the final
judgment of 22 July 2004. They relied on Article 13 of the Convention in
conjunction with Article 3, Article 6 § 1 and Article 1 of Protocol No. 1.
The Court is of the view that the issues raised would
be most appropriately examined under Article 6 § 1 of the Convention and
Article 1 of Protocol No. 1, which, in so far as relevant, read:
Article 6 § 1
“In the determination of his civil rights and obligations ...
everyone is entitled to a ... hearing within a reasonable time by [a] ...
tribunal ...”
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the peaceful
enjoyment of his possessions. No one shall be deprived of his possessions except
in the public interest and subject to the conditions provided for by law and by
the general principles of international law.
The preceding provisions shall not, however, in any way impair
the right of a State to enforce such laws as it deems necessary to control the
use of property in accordance with the general interest or to secure the
payment of taxes or other contributions or penalties.”
The Government did not comment on these
complaints.
The Court notes that the complaints are not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention, nor inadmissible on any other grounds. They must therefore be
declared admissible.
A. Article 6 § 1 of the Convention
The Court notes that in the present case the
period to be taken into consideration began on 13 November 1997, when the
applicants brought a tort action against the Ministry of the Interior (see
paragraph 19 above).
The judicial stage of the proceedings ended on
15 October 2004. The case was examined by two levels of jurisdiction and the
courts ordered the Sofia Directorate of Internal Affairs to pay damages to the
applicants (see paragraphs 20-29 above). However, by December 2010 the final
judgment given in the proceedings had still not been enforced (see paragraphs
30-31 above). The Court has already held that the enforcement stage is the
second stage of the proceedings and that the right asserted does not actually
become effective until enforcement (see Di Pede v. Italy, 26 September
1996, §§ 22, 24 and 26, Reports of Judgments and Decisions 1996-IV;
Scordino v. Italy (no. 1) [GC], no. 36813/97, § 197,
ECHR 2006-V; and Kambourov v. Bulgaria, no. 55350/00, § 53,
14 February 2008). Therefore, the Court will include the enforcement stage in
the period to be taken into consideration, which lasted until at least December
2010.
The overall length of the proceedings has thus
been more than thirteen years, seven of which were at the judicial stage.
The reasonableness of the duration of
proceedings must be assessed in the light of the particular circumstances of
each case and with reference to the following criteria: the complexity of the
case, the conduct of the applicant and the relevant authorities, and what was
at stake for the applicant in the litigation (see, among many other
authorities, Finger v. Bulgaria, no. 37346/05, § 94, 10 May 2011).
. The Court notes that the present
case does not appear to have been particularly complex and that there appear to
be no particular delays attributable to the applicants. At the judicial stage, the
proceedings were delayed because the case was on several occasions remitted for
fresh examination on account of errors by the courts in interpreting and
applying domestic law (see paragraphs 23 and 26 above). As already mentioned,
this resulted in the case continuing for seven years, at two levels of jurisdiction.
The Court considers that the delays which incurred at the judicial stage of the
proceedings were in themselves excessive in view of the requirements of Article
6 § 1 of the Convention.
. Moreover, following completion of the
judicial stage, the final judgment given by the courts has remained unenforced
for a particularly long time - from 2004 to at least 2010 (see paragraphs 29-31
above). The Government have not provided any justification for that delay (see
paragraph 51 above). The problem was exacerbated by the fact that Bulgarian law
does not provide for enforcement proceedings against State institutions (see
paragraphs 34-35 above), or for any clearly regulated complaints
procedure before an independent body with the power to issue binding orders in
cases of failure of State institutions to execute judgments against them (see Mancheva
v. Bulgaria, cited above, § 60, and, mutatis mutandis, Mutishev
and Others v. Bulgaria, no. 18967/03, §
144, 3 December 2009).
Accordingly, the Court concludes that in the present
case there has been a violation of Article 6 § 1 of the Convention.
B. Article 1 of Protocol No. 1
In accordance with the Court’s established
case-law (see Burdov v. Russia, no. 59498/00, § 40, ECHR 2002-III;
Mancheva, cited above, § 65; and Kotov
v. Russia [GC], no. 54522/00, § 90,
3 April 2012), the applicants’
enforceable claim under the final judgment of 22
July 2004 constituted a “possession” within the meaning of Article 1 of
Protocol No. 1 to the Convention.
The impossibility for the applicants to obtain
the execution of that judgment constituted an
interference with their rights to peaceful enjoyment of their possessions, as
set out in the first sentence of the first paragraph of Article 1 of Protocol
No. 1 (see Mancheva, cited above, § 66).
The Government have not advanced any
justification for this interference (see paragraph
51 above).
It follows that there has been a violation of
Article 1 of Protocol No. 1.
III. 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
For pecuniary damage, the applicants claimed the
amount of the judgment debt, plus the interest accrued, which they calculated
to be BGN 3,554.58, the equivalent of EUR 1,813, for each of them. In
respect of non-pecuniary damage resulting from the length of the proceedings
and the non-enforcement of the judgment of 22 July 2004, the applicants claimed
EUR 12,000 each.
The Government did not dispute the amounts
claimed by the applicants for pecuniary damage, but noted that these sums were
already due to them in the domestic proceedings. As regards the applicants’
claim for non-pecuniary damage, the Government argued that the amount claimed
was exaggerated.
In respect of pecuniary damage, the Court notes
that in accordance with domestic law, the applicants are entitled to the payment
of the judgment debt claimed by them, together with the relevant interest and
the costs and expenses incurred in the enforcement proceedings. The Court
observes that in December 2010 the applicants were still in possession of their
claim. Thus, it considers that no specific award in respect of pecuniary damage
should be made and that, if they have not already done so, the respondent Government should ensure enforcement of the
judgment of the Sofia District Court of 22 July 2004 in the applicants’
favour (see Čolić and Others v. Bosnia and Herzegovina, nos. 1218/07, 1240/07, 1242/07, 1335/07, 1368/07, 1369/07, 3424/07,
3428/07, 3430/07, 3935/07, 3940/07, 7194/07, 7204/07, 7206/07 and 7211/07, § 20, 10 November 2009; Solomatin
v. Ukraine, no. 8191/04, § 30, 15 October
2009; and Puleva and Radeva v. Bulgaria, no. 36265/05, § 52, 14 February
2012). The Court holds further that enforcement should be guaranteed within
three months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention.
As regards non-pecuniary damage, the Court considers
that the applicants must have suffered frustration as a result of the violation
of their rights in the case. Judging on an equitable basis, it awards EUR 2,000
to each of them.
B. Costs and expenses
The applicants also claimed EUR 3,700 in respect
of costs and expenses incurred before the Court. In support of this claim, they
submitted a contract for legal representation and a time sheet for their
representative’s work. They requested that any amount awarded under this head
be transferred directly into the bank account of their representative, Mr Y. Grozev.
The Government contested that claim as being exaggerated.
According to the Court’s case-law, an applicant
is entitled to the reimbursement of costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to the
documents in its possession, the above criteria and the fact that it found the
present application partially inadmissible, the Court considers it reasonable
to award the sum of EUR 800 for costs and expenses. As per the applicants’ request,
it is to be transferred directly into their representative’s bank account.
C. Default interest
The Court considers it appropriate that the
default interest rate 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
1. Declares unanimously the complaints
concerning the length of the civil proceedings and the prolonged
non-enforcement of a final judgment admissible;
2. Declares by a majority the complaint under
Article 3 of the Convention inadmissible;
3. Holds unanimously that there has been a
violation of Article 6 § 1 of the Convention;
4. Holds unanimously that there has been a
violation of Article 1 of Protocol No. 1;
5. Holds by six votes to one
(a) that within three months from the date on which
the judgment becomes final in accordance with Article 44 § 2 of the Convention
the respondent State is, if it has not already done so, to secure
enforcement of the Sofia District Court’s judgment of 22 July
2004;
(b) that, within the same time-limit, the
respondent State is to pay the applicants the following amounts, to be
converted into Bulgarian levs at the rate
applicable at the date of settlement:
(i) to each applicant - EUR 2,000 (two thousand euros),
plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) jointly to the three applicants - EUR 800 (eight
hundred euros), plus any tax that may be chargeable to the applicants, in
respect of costs and expenses, to be transferred directly into the bank account
of the applicants’ representative;
(c) 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;
6. Dismisses by six votes to one the
remainder of the applicants’ claims for just satisfaction.
Done in English, and notified in writing on 5 February 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Ineta
Ziemele
Registrar President
In accordance with Article 45 § 2 of the Convention and
Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Zdravka Kalaydjieva
is annexed to this judgment.
I.Z.
T.L.E.
PARTLY DISSENTING OPINION OF JUDGE KALAYDJIEVA
I fully agree that “the right asserted [by
the applicants did] not actually become effective until enforcement” (paragraph
54) of the domestic civil court’s decision of 2004 against the Ministry of
Interior, after proceedings in which a prosecutor was also a party. This
decision “established the factual circumstances as described in paragraphs
7-10” (paragraph 28) - namely that “a group of police officers ... armed with
guns, batons, shields and helmets... were running towards [the applicants] ...[broke
into a locked private building and] chased [them] to the top floor, where they
started beating them with batons... [causing] wounds to their heads and bruises
on their backs and arms”. The court concluded that “the police had had no
justification for using force against the applicants and ... the latter had
done nothing to provoke such a violent attack” (paragraph 27). These
conclusions led neither to payment of compensation nor to further investigation
into the applicants’ particular circumstances in the following years.
I agree with the Chamber that there were “no
cogent elements which would lead it to depart from” the civil courts’ findings
(paragraph 40), but not necessarily with the view that the tort action “had
no bearing on the State’s obligation to carry out an effective investigation” (paragraph
47). While it is true that after 2004 the applicants did not request any
further or more vigorous investigation into their particular circumstances, it
is difficult to conceive that the decision in question remained unknown to the
other parties to the civil case. Thus, while it may be correct that the
decision disregarding the applicants’ arguable claims of 2000 “could not be
considered”, at least in respect of the applicants’ complaints under the
procedural limb of Article 3, a “final decision”, I wonder if no new ex officio
obligation arose after 2004, when the alleged unlawful beating was “established
beyond reasonable doubt” in proceedings to which both the police and the prosecution
authorities were parties.
I also wonder what more could reasonably be
expected from the applicants in this regard after the “establishment of the
circumstances beyond reasonable doubt” following the discontinuance of the
investigation in respect of their initial “arguable claim”. The applicants’
steps to establish the facts of the unlawful use of force are not necessarily
comparable (see paragraph 44) to those in the cases of Kırlangıç v. Turkey (no. 30689/05, 25 September 2012), Brunner v. Turkey
((dec.), no. 10/10, 6 December 2011) and Manukyan
v. Georgia ((dec.), no. 53073/07, 9 October 2012), where both the
applicants and the relevant authorities remained completely inactive for long
periods.
These circumstances raise the issue whether
the positive obligation to conduct an effective investigation is an ex
officio one which requires the authorities to take measures as soon as they
are informed of circumstances falling under Articles 2 and 3, or one requiring
the affected individuals to push for such an investigation in an attempt to
“exhaust the available domestic remedies”, despite their evident
ineffectiveness.
This furthermore poses the question as to the
moment when it may be reasonably argued that the authorities may be considered
exempt from their further ex officio positive obligation to identify
those responsible, in the face of established acts which fall to be considered
under Article 3 of the Convention. In this regard the Court’s views have
developed to require not only an effective investigation, but also a reasonably
appropriate punishment to avoid the impression of impunity.
Moreover, while it is true that the
applicants did not insist on further investigation capable of identifying those
responsible, it is difficult to deny their consistent attempt to obtain at
least the compensation to which they were entitled. Was this attempt not a way
of asserting their entitlement to redress for their suffering as a result of
the alleged violation of their rights under Article 3?
In previous cases, the Court has examined
complaints initially raised about the length of
criminal proceedings in a rape case as falling to be examined under Article 3; it
has found that payment of compensation (see Öneryıldız
v. Turkey [GC], no. 48939/99, ECHR 2004-XII) and
legal aid (see Gäfgen v. Germany [GC], no. 22978/05, ECHR 2010, and Ilbeyi Kemaloğlu
and Meriye Kemaloğlu v. Turkey, no. 19986/06, 10 April 2012)
constitute elements of the positive obligations of the State authorities to provide
appropriate and sufficient redress in cases under Articles 2 and 3; it has also
found violations of the rights protected by these provisions in cases where the
applicants had obtained pecuniary compensation but the criminal investigation had
resulted in inappropriately lenient punishment of the perpetrators or in no punishment at all - regardless of the late registration of the
complaints under this head (see Nikolova and Velichkova v. Bulgaria, no. 7888/03, 20 December 2007, and Vasil Sashov
Petrov v. Bulgaria,
no. 63106/00, §§ 31-32, 10 June 2010). Whereas in the present case, by contrast, the Court dismissed the
applicants’ complaints that “the authorities had failed to investigate
effectively their claim that they had been beaten by the police” (paragraph 36) and limited the scope of
its examination to the complaints that the “set of civil proceedings they were
party to were excessively lengthy and that the authorities failed for a long
period of time to enforce the final judgment” (paragraph 3). It appears to me
that in doing so, the Chamber apparently failed to address the pertinent questions:
what were “the rights asserted by the applicants” and what was “at
stake” in these long and ineffective proceedings?
In this regard, the overall reasoning of the Court
appears, for the first time, to treat complaints of ineffective protection under
Article 3 as relating only to the right to a reasonable length of proceedings
and enforcement of decisions - in respect of any civil right, that is to say,
matters which are not necessarily protected by the Convention.
As a result, the measures to be taken for the
implementation of the present judgment will inevitably remain limited to the
payment of compensation in addition to that which already became due ten years
ago, this being a form of redress which the Court has considered insufficient
in the circumstances of deliberate use of force by State agents, even prior to
the development of the notion of positive obligations and protection of the
rights of individuals under Articles 2 and 3 of the Convention.
