BORIS KOSTADINOV v. BULGARIA - 61701/11 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section)) [2016] ECHR 103 (21 January 2016)

In the case of Boris Kostadinov v. Bulgaria,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

          Angelika Nußberger, President,
          Ganna Yudkivska,
          Khanlar Hajiyev,
          André Potocki,
          Faris Vehabović,
          Yonko Grozev,
          Carlo Ranzoni, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 15 December 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 61701/11) 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 Boris Yordanov Kostadinov (“the applicant”), on 15 September 2011.

2. The applicant was represented by Mr M. Ekimdzhiev and Ms K. Boncheva, lawyers practising in Plovdiv. The Bulgarian Government (“the Government”) were represented by their Agent, Ms A. Panova, of the Ministry of Justice.

3. The applicant alleged that the police had ill-treated him while arresting him and after that and had detained him in very poor conditions, and that the authorities had failed to investigate effectively these matters.

4. On 10 September 2014 the Government were given notice of the application.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1986 and lives in Sofia.

A. The events of 28 and 29 June 2008

6. On 28 June 2008 a Gay Pride parade took place, for the first time in Bulgaria. The parade started at about 4.15 p.m. in the centre of Sofia, not far from the National Palace of Culture, and drew about two hundred and fifty to three hundred participants. It was covered by about hundred and forty journalists. It was conducted under heavy police protection, engaging almost one hundred and fifty officers, twenty of which wearing anti-riot gear, who were put in place to protect the parade from several extreme right and nationalist groups which had threatened to disrupt it. The parade was nevertheless accompanied by several violent incidents, and the police made more than eighty arrests.

7. At about 4.30 p.m. that day, the applicant and six friends of his were crossing a public park behind the National Palace of Culture. They were carrying bottles of beer and were allegedly headed to meet friends of theirs. According to the applicant, they were not aggressive and had no intention of attacking participants in the parade or anyone else. According to operative police information submitted by the Government, the applicant was part of a group of about fifty to seventy persons bent on attacking participants in the parade.

8. The group was intercepted by two police vans. The police came out of the vehicles and shouted at the group to “put down their bottles”, “fall to the ground”, put their “hands behind their heads”, and “disperse”. According to the applicant, the police forced everyone to lie down on the ground and hit them with truncheons and kicked them. The applicant was likewise forced to lie down on the ground, handcuffed, and kicked and hit with truncheons and fists on the back, shoulders and legs. He alleges that one police officer pressed his head against the ground with his boot, suffocating him, only reducing the pressure in response to the applicant’s protests. According to a written statement by the police officer who arrested the applicant, drawn up on 14 November 2014 for the purposes of the proceedings before this Court and submitted by the Government (the officer had before that remained unidentified), the applicant was among a group of visibly inebriated persons who were trying aggressively to attack the parade. The officer did not recall using force or a truncheon against the applicant, solely handcuffs, in view of the applicant’s unruly conduct.

9. The applicant and the other members of the group remained pinned down to the ground for about half an hour, in front of many passers-by. A number of the journalists who were at the scene took pictures and videos. According to the applicant, on one photograph that he later found on the Internet one could see a police officer pressing his back against the ground with his boot. Pictures were apparently also taken by a service photographer of the Ministry of Internal Affairs.

10. The applicant, together with about twenty-five to thirty other persons, was then put in a police bus and taken to a nearby police station. According to a detention log submitted by the Government, the applicant was brought to the station at 7.30 p.m. According to a record submitted by the Government, he was searched, but the search did not reveal any weapons or dangerous objects on him. The applicant alleged that together with some of the other arrestees he was at first left in the corridor of the station and made to face a wall with his hands up and his legs apart. He remained in that position for about two hours. During that time, police officers who passed behind him in the corridor occasionally kicked him in the ankles so that he would keep his legs apart. When he protested, he was hit with a truncheon on the back of his legs, behind the knees, allegedly because the police knew that blows in that spot did not leave lasting marks. He was then put, together with thirty-two other persons, in a very hot and stuffy cell measuring about nine or ten square metres. He was not given any food or drink, or allowed to go to the toilet. He was later questioned for about twenty minutes, and was allegedly not allowed to get in touch with a lawyer, a medical doctor or his family, although he had expressed the wish to do so in an official form that he filled in at 7.30 p.m.

11. In the course of his stay in the police station, the applicant was served with a police order for his detention and a notice of an administrative offence, charging him with refusing to obey the police order to disperse. According to a note made on the police detention order, he was released at 3.25 a.m. on 29 June 2008.

12. In support of his allegations in relation to the circumstances of his arrest and detention, the applicant submitted an affidavit drawn up by him on 14 September 2011 and three affidavits drawn up on 13 September 2011 by persons arrested and detained with him.

B. The applicant’s medical examination on 29 June 2008

13. At 1.30 p.m. on the day of his release, 29 June 2008, the applicant was examined by a medical doctor at the forensic medicine department of Sofia Medical University, who noted, in a certificate, the following injuries on him: (a) a double stripe-shaped intensely blueish-purple bruise measuring five by one and a half centimetres on the upper right shoulder; (b) several spotted intensely blueish-purple bruises measuring five by seven centimetres on the sides of the stripe-shaped one; (c) a double horizontal stripe-shaped purple bruise measuring twenty by two and a half centimetres in the middle of the back; (d) a spotted blueish bruise measuring six by five and a half centimetres on the left shoulder; (e) spotted blueish-purple bruises measuring nine by eight centimetres on the inside of the right arm, below the armpit, with three lighter zones inside them, measuring one centimetre in diameter; (f) a similar purple bruise measuring five by four centimetres on the upper third of the inner right forearm; (g) four similar bruises measuring one and a half by two centimetres on the inner left arm; and (h) a blueish bruise measuring six by eight centimetres on the outer right shank. The doctor was of the view that the bruises on the applicant’s right shoulder and back had been caused by blows with a hard blunt elongated and narrow object, those on the arms and the right forearm by a strong finger-grip, and those on the left shoulder and the right shank by blows by or against hard blunt objects or blows with fists and kicks. He went on to say that all bruises could have been inflicted in the manner alleged by the applicant, and had caused him pain and suffering.

C. The administrative sanction imposed on the applicant

14. On 14 July 2008 the head of the police department gave the applicant an administrative fine for not obeying the police order to disperse. The applicant sought judicial review of this decision. On 30 September 2009 the Sofia District Court quashed the decision, finding that the facts set out in it were contradicted by the witness evidence given by the police officers and others in the course of the judicial review proceedings. It noted that this evidence showed that the police had ordered the members of the group intercepted by them to put down the objects that they were holding in their hands and lie down on the ground, which was incompatible with the order to disperse mentioned in the decision. It was not therefore established that the applicant had indeed refused to obey the police order to disperse.

D. The inquiries into the events of 28 June 2008

15. In the meantime, on 10 July 2008 the applicant complained to the Sofia Military Prosecutor’s Office of his alleged ill-treatment by the police at the time of his arrest. He asked it to inquire into the matter and open criminal proceedings against the officers concerned. He enclosed with his complaint the medical certificate that he had obtained on 29 June 2008 (see paragraph 13 above), photographs of his injuries, and photographs of the events that he had obtained from the Internet.

16. On 14 July 2008 the Sofia Military Prosecutor’s Office found that the information supplied by the applicant was not sufficient to warrant the immediate institution of criminal proceedings, but called for a preliminary inquiry (see paragraph 35 below). It instructed a military investigator to look into the applicant’s allegations by gathering all available materials and taking statements by those concerned.

17. The military investigator obtained written statements from some of the police officers who had taken part in the operation, the applicant, and witnesses suggested by the applicant. In his report to the prosecuting authorities, submitted on 22 August 2008, he said that, according to the officers’ statements, none of them had subjected civilians to “police violence”, and that neither the applicant nor his witnesses were able to identify the officers who had allegedly hit or kicked the applicant.

18. On 12 September 2008 the Sofia Military Prosecutor’s Office, finding that the inquiry had not elucidated all relevant facts, instructed the complaints division of the Sofia Directorate of the Ministry of Internal Affairs to take written statements from all police officers involved in the operation, the applicant, and a witness suggested by the applicant.

19. In its report on the additional inquiry, submitted to the Sofia Military Prosecutor’s Office on 17 October 2008, the Sofia Directorate of the Ministry of Internal Affairs said, based on written statements taken by a number of police officers, that none of these officers had used force against arrestees or seen colleagues of theirs do so. It added that the applicant and the witness had stated that they were not able to identify the officer who had allegedly ill-treated the applicant because all officers had been clad in identical uniforms and helmets.

20. In a decision of 1 November 2008, the Sofia Military Prosecutor’s Office refused to open criminal proceedings pursuant to the applicant’s complaint. It noted that on the day of the incident considerable police forces had been mobilised to ensure the safety of the participants in the Sofia Gay Pride parade, in view of the risk of attacks by extreme right-wing groups. Two police patrols had arrived at the site of the incident after receiving information that a group of fifty to seventy persons was moving behind the National Palace of Culture, armed with knuckledusters, empty bottles and torches, and bent on carrying out acts of aggression against those taking part in the parade. The police had intercepted this group and ordered its members to drop the objects that they were holding and lie down on the ground. This order had been complied with without any need for the police to resort to the use of force. None of the witnesses had been able to identify the police officer who had allegedly hit the applicant. Moreover, the applicant’s account of the facts was not duly corroborated by the material in the file and more specifically the medical certificate submitted by him. The applicant alleged that he had been handcuffed, whereas none of the photographs of the scene showed handcuffs, and his wrists bore no traces of handcuffing. His neck and head, where he alleged to have received blows, bore no traces of injury either.

21. The applicant’s appeal against this decision was dismissed by the Sofia Appellate Prosecutor’s Office on 29 January 2009 on the basis that the materials in the file did not equivocally suggest that the applicant had been subjected to “police violence”. However, following a further appeal by the applicant, on 6 April 2009 the Supreme Cassation Prosecutor’s Office quashed this decision on the basis that the Sofia Appellate Prosecutor’s Office was not competent to deal with the case, which had to be sent to the Military Appellate Prosecutor’s Office.

22. On 28 April 2009 the Military Appellate Prosecutor’s Office quashed the refusal to open criminal proceedings and referred the case to the Sofia District Prosecutor’s Office. It said that the refusal did not make it clear whether it was based on a finding that the police had not used any force against the applicant or on a finding that any force that had been used had been lawful. If no force had been used, an explanation needed to be given for the injuries noted on the applicant on 29 June 2008; the refusal did not say anything about that. If force had on the contrary been used, it was necessary to determine whether this had been rendered necessary by the applicant’s conduct. There was however almost no evidence on this point in the file. The available material only showed that the police had lawfully used force against a group of persons trying to disrupt the Sofia Gay Pride parade, but there was no evidence on whether the police had in error and unjustifiably also used force against the applicant and his friends.

23. On 28 May 2009 the Sofia District Prosecutor’s Office ordered additional inquiries with a view to elucidating the points noted by the Military Appellate Prosecutor’s Office. It instructed the Sofia Directorate of the Ministry of Internal Affairs to ascertain the identity of all police officers who had come into physical contact with the applicant and the origin of all of the injuries noted on him on 29 June 2008 (see paragraph 13 above).

24. In its report on the additional inquiry, submitted to the Sofia District Prosecutor’s Office on 22 July 2009, the Sofia Directorate of the Ministry of Internal Affairs said it had taken a further statement from the applicant, who had not been able to provide more information. It had also taken statements from two police officers who had taken part in the operation on 28 June 2008. In the course of the operation the police had used force and “auxiliary means” in line with the requirements of section 72(1) of the Ministry of Internal Affairs Act 2006 (see paragraphs 30 and 31 below). The applicant had been asked to invite the witnesses suggested by him to get in touch with the inquiry, but none of them had done so.

25. In a decision of 14 September 2009 the Sofia District Prosecutor’s Office also refused to open criminal proceedings pursuant to the applicant’s complaint. It repeated, verbatim, the reasons given by the Sofia Military Prosecutor’s Office in its decision of 1 November 2008 (see paragraph 20 above), only adding that all actions of the police in the course of the events of 28 June 2008 had been duly recorded in written statements by the officers concerned, police detention orders and reports.

26. The applicant appealed against this decision, arguing that the general risk of violence during the course of the parade could not justify the use of force in the absence of concrete evidence in relation to his and his friends’ conduct. He said that neither he nor his friends had had any weapons or dangerous objects on them. He also complained of the ineffectiveness of the investigation, pointing out, inter alia, that the investigators had not interviewed the police officers who had been at the scene about the conduct of those of their colleagues who had been involved in the incident and had not attempted to explain the origin of his injuries.

27. On 1 March 2010 the Sofia City Prosecutor’s Office dismissed the appeal. It said that the verbatim repetition by the Sofia District Prosecutor’s Office of the reasons given by the Sofia Military Prosecutor’s Office did not pose a problem. Since they had made identical findings of fact, they had given identical reasons. All arguments relating to the question whether force had been used and, if so, which officer had hit the applicant, were irrelevant. The lower prosecutor’s office had correctly found that the applicant had not been subjected to excessive police violence. It was true that he had suffered injuries, but the medical certificate submitted by him did not prove that these injuries had been caused by police officers. Even if officers had used force against the applicant, that force had not gone beyond what had been necessary to preserve public order and had not had a negative effect on the applicant’s health.

28. The applicant appealed further, reiterating his arguments. On 20 September 2010 the Sofia Appellate Prosecutor’s Office likewise upheld the refusal to open criminal proceedings, fully agreeing with the reasons given by the lower prosecutor’s offices.

29. The applicant then appealed to the Chief Prosecutor. In a final decision of 22 March 2011 the Supreme Cassation Prosecutor’s Office upheld the decision of the Sofia Appellate Prosecutor’s Office, saying that section 72(1)(5) of the 2006 Act (see paragraph 30 below) allowed the police to use force to prevent attacks against civilians, and that the lower prosecutor’s offices had fully elucidated the facts of the case.

II. RELEVANT DOMESTIC LAW

A. Use of force by the police

30. Section 72(1) of the Ministry of Internal Affairs Act 2006, as worded until the end of June 2012, provided, in so far as relevant:

“In carrying out their duties, the police may use force and auxiliary means only if these duties cannot be carried out in a different way, in cases of:

1. resistance or refusal to obey a lawful order;

2. arrest of an offender who does not obey or resists a police officer;

...

5. attacks against civilians or police officers;

...

7. mass disturbances of public order;

...”

31. Section 72(2) defined “auxiliary means” to comprise: handcuffs; straitjackets; rubber, plastic, assault and electroshock truncheons and prods; chemical substances, service animals such as dogs and horses; blank cartridges; rubber, plastic or shock bullets; devices for the forced stopping of motor vehicles; opening devices; light or sound devices with a distracting effect; water-spraying and air-pressure devices; armoured vehicles; and helicopters.

32. Section 73 of the Act, as worded until the end of June 2012, provided:

“(1) Force and auxiliary means are to be used only after warning having been given, except in cases of sudden attacks or of freeing hostages.

(2) The use of force or auxiliary means shall correspond to the specific circumstances, the character of the breach of public order and the personality of the offender.

(3) When using force or auxiliary means the police must if possible protect the health of the persons against whom those are deployed, and must take all measures to safeguard the life of these persons.

(4) The use of force or auxiliary means shall be discontinued immediately after they have achieved their aim.

(5) The use of force or auxiliary means against clearly identifiable minors or pregnant women is prohibited. The prohibition does not apply in cases of mass disorders, if all other means have been exhausted.”

33. These provisions were amended with effect from 1 July 2012. After that, section 72(1) provided that force and auxiliary means could only be used “if absolutely necessary”. A newly added subsection 3 of section 73 provided that “police officers [could] only use the force absolutely necessary”, and subsections 3 and 4 (renumbered 4 and 5) were amended to restrict the conditions in which the police could use force. A new section 74a provided that “[t]he planning and control of the use of force, auxiliary means and firearms by the police ... [had to] include [the taking of] measures to attain the lawful aim at minimal risk to the life and health of [those concerned]”. In the explanatory notes to the amendment bill the Government referred to the need to bring Bulgarian law fully into line with the applicable international standards and this Court’s case-law.

34. On 1 July 2014 these provisions were superseded by sections 85, 86 and 88 of the Ministry of Internal Affairs Act 2014, which are similarly worded.

B. Institution of criminal proceedings

35. By Articles 207 § 1 and 211 §§ 1 and 2 of the Code of Criminal Procedure 2005, criminal proceedings must be opened if the prosecuting authorities are informed that an offence has been committed and are satisfied that it could reasonably be supposed that this is the case. By Article 211 § 2, the information before the prosecuting authorities does not need to include material allowing the identification of the alleged offender or the precise legal characterisation of the alleged offence. If these authorities are not satisfied that such a reasonable supposition can be made, they may order a preliminary inquiry. The legal basis for this used to be Article 191 of the Code of Criminal Procedure 1974, as worded until 2003, and is now section 145(1) of the Judiciary Act 2007.

36. By Article 213 § 2 of the 2005 Code, if the competent prosecutor refuses to open criminal proceedings, a higher prosecutor may, on his or her own initiative or following a complaint by the alleged victim, order the institution of such proceedings. It is not possible to challenge the refusal of the prosecuting authorities to open criminal proceedings before a court.

THE LAW

I. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION

37. The applicant complained under Article 3 of the Convention that the police had used unjustified force in the course of his arrest, and had then detained him in very poor conditions, again using unjustified force against him. In his view, these acts, taken in isolation and together, had amounted to inhuman and degrading treatment.

38. The applicant also complained under Article 3 of the Convention that the authorities had failed effectively to investigate these events, and under Article 13 of the Convention that he had not had an effective domestic remedy in respect of the breaches of Article 3 in his case.

39. The Court, as master of the characterisation to be given in law to the facts of the case (see, among other authorities, Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998-I; Aksu v. Turkey [GC], nos. 4149/04 and 41029/04, § 43, ECHR 2012; and Söderman v. Sweden [GC], no. 5786/08, § 57, ECHR 2013), considers that, in the light of its case-law (see, for instance, Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 123, ECHR 2005-VII), it is appropriate to examine the applicant’s complaints solely under Article 3 of the Convention.

40. Article 3 of the Convention provides as follows:

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

A. Admissibility

1. The parties’ submissions

41. In their supplementary observations, made in reply to those of the applicant, the Government submitted that he had failed to exhaust domestic remedies in respect of his substantive complaint under Article 3 of the Convention because he had not brought a claim for damages under section 1 of the State and Municipalities Liability for Damage Act 1988. Such a claim was an effective remedy, as evidenced by two recent judgments and a decision of the Supreme Administrative Court, where it had held that when arresting and placing a person in police detention, the police were carrying out “administrative action” within the meaning of that provision, and could therefore incur liability in relation to that. Nor had the applicant attempted to seek judicial review of the police order for his detention.

42. The Government also submitted that the evidence did not show that the applicant had been ill-treated in the manner alleged by him. This meant that the application was manifestly ill-founded and that the applicant could not claim to be a victim of a violation.

43. In his observations in reply to the Government’s supplementary observations, which he was exceptionally invited to make in view of the Government’s belated submissions with respect to the exhaustion point, the applicant submitted that neither a claim for judicial review of the police order for his detention nor a claim for damages under section 1 of the State and Municipalities Liability for Damage Act 1988 would have been effective domestic remedies with respect to his complaints. The case-law of the Supreme Administrative Court to which the Government referred was inapposite, had only emerged after the lodging of the application, and was not well-settled.

2. The Court’s assessment

44. By Rule 55 of the Court’s Rules, “[a]ny plea of inadmissibility must, in so far as its character and the circumstances permit, be raised by the respondent Contracting Party in its written or oral observations on the admissibility of the application”. Here, the Government did not raise an objection of non-exhaustion of domestic remedies in their initial observations and adverted to that issue for the first time in the supplementary observations that they made in reply to those of the applicant. The Government did not give any explanation for that, and the Court does not see any exceptional reason for their failure to raise the objection in good time. It follows that in this case the Government are estopped from pleading non-exhaustion of domestic remedies (see Dhahbi v. Italy, no. 17120/09, §§ 24-25, 8 April 2014, and G.C. v. Italy, no. 73869/10, §§ 36-37, 22 April 2014).

45. Concerning the Government’s further objection of lack of victim status, the Court notes that all that Article 34 of the Convention requires is that an applicant should claim to have been affected by an act, omission or situation said to be in breach of the Convention. The questions whether the applicant has in fact been so affected and whether he or she is actually the victim of a breach go to the merits of the case (see Klass and Others v. Germany, 6 September 1978, §§ 33 and 38, Series A no. 28; Doğan and Others v. Turkey, nos. 8803-8811/02, 8813/02 and 8815-8819/02, § 93, ECHR 2004-VI (extracts); Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 106-07, ECHR 2011-IV; and Dimov and Others v. Bulgaria, no. 30086/05, § 61, 6 November 2012). This objection must therefore also be rejected.

46. Lastly, the Court finds that the complaints under Article 3 of the Convention are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

1. The parties’ submissions

47. The Government submitted that the police had dispatched officers to ensure the safety of the participants in the Sofia Gay Pride parade, in view in particular of the threats made against them. The group of fifty to seventy persons intercepted by the police behind the National Palace of Culture had been armed with knuckledusters, torches, empty bottles, rocks and wooden sticks. Their failure to heed the officers’ orders and their provocative conduct had prompted the police to arrest the most aggressive among them, including the applicant, and take them to a police station. The officer who had arrested the applicant had now been identified and had stated that neither he nor his colleagues had used force or gear other than handcuffs in the course of that operation. Based on that, the Government submitted that there was no evidence showing beyond a reasonable doubt that the police had used disproportionate force when arresting the applicant, or that he had been subjected to treatment contrary to Article 3 of the Convention.

48. The Government also submitted that the authorities had thoroughly investigated the incident and taken all steps required to elucidate the facts. The inquiries had sought to establish whether force had been used against the applicant, and if so, whether this force had been necessary, as required under section 72 of the 2006 Act. The materials yielded by the inquiries had led the prosecuting authorities to conclude that the applicant had not been subjected to unjustified police violence.

49. The applicant submitted that, while not disputing that he had been arrested and detained in the manner alleged by him, the Government did not explain in a plausible way the origin of the injuries noted on him the next day. It had to be borne in mind in this connection that his complaint comprised six relatively separate ways in which he had been ill-treated: the unjustified use of force to pin him to the ground for about half an hour upon his arrest; the wide publicity given to that, with no efforts to preserve his anonymity; the “stress position” in which he had been kept for about two hours in the corridor of the police station; his stay for several hours in an overcrowded and stuffy cell with no access to food, drink or medical care; the blows and kicks administered in the course of his arrest; and the blows and kicks administered in the corridor of the police station. Even though each of these acts, taken individually, fell afoul of Article 3 of the Convention, there was no use to examine them in isolation, as the Government did not seek to justify any of them by reference to his conduct. It was true that the police operation in the course of which he was arrested had been intended to protect participants in the Sofia Gay Pride parade, and that in such circumstances the police could be given some latitude to tackle aggressive groups without assessing the dangerousness of each of their individual members in advance. However, this did not mean that they were free to flout the absolute prohibition of inhuman and degrading treatment.

50. The applicant also submitted that the ensuing investigation had not been effective. The prosecutors’ decisions contained mutually contradictory statements, and none of them sought to explain, concretely, whether the force used against him had been made necessary by his own conduct. The additional inquiries ordered by the Military Appellate Prosecutor’s Office had not been properly carried out. The investigation had not clarified whether the applicant had been among those seeking violently to disrupt the Sofia Gay Pride parade, and whether any of the measures taken against him had thus been necessary.

2. The Court’s assessment

(a) The alleged ill-treatment of the applicant in the course of his arrest

51. The general principles with respect to the obligation of the High Contracting Parties under Article 3 of the Convention not to submit persons under their jurisdiction to inhuman or degrading treatment or torture in the course of encounters with the police were recently set out in detail in paragraphs 81-90 of the Court’s judgment in Bouyid v. Belgium ([GC], no. 23380/09, 28 September 2015). There is no need to repeat them here.

52. Having regard to the evidence supporting the applicant’s version of events - in particular, the affidavits submitted by him (see paragraph 12 above) -, the fact that the police ultimately conceded that they had used force in the course of the arrest operation (see paragraph 24 above), and to the domestic investigation’s and the Government’s failure to provide any explanation of the origin of the numerous bruises noted on the applicant’s body and limbs the following day (see paragraph 13 above), the Court finds that the police did use force against the applicant in the course of his arrest on 28 June 2008.

53. The use of force by the police, in particular in the course of arrest operations, does not always amount to treatment contrary to Article 3 of the Convention. However, it is settled case-law that such force will not be in breach of this Article only if it was indispensable and not excessive (see, in general, Ivan Vasilev v. Bulgaria, no. 48130/99, § 63, 12 April 2007, with further references, and, in relation specifically to the use of force to quell mass unrest, Muradova v. Azerbaijan, no. 22684/05, § 109, 2 April 2009). The burden to prove that this was the case rests on the Government (see, in general, Rehbock v. Slovenia, no. 29462/95, § 72 in fine, ECHR 2000-XII, and Petkov and Parnarov v. Bulgaria, no. 59273/10, § 47, 19 May 2015, and, specifically with respect to force used by the police in connection with mass demonstrations, Balçık and Others v. Turkey, no. 25/02, § 31, 29 November 2007; Samüt Karabulut v. Turkey, no. 16999/04, § 42, 27 January 2009; and Gazioğlu and Others v. Turkey, no. 29835/05, § 43, 17 May 2011). However, neither the prosecutors who decided not to open criminal proceedings pursuant to the applicant’s allegations nor the Government in their observations described with any particularity the conduct of the applicant which had impelled the police to use force against him. They were content to refer generally to the backdrop against which the police arrested the applicant, which was characterised by the risk of attacks by homophobic groups against participants in the Sofia Gay Pride parade. However, this does not suffice to show that the police were justified in indiscriminately using force against any person who happened to be in the vicinity, regardless of his or her own conduct (see, mutatis mutandis, Muradova, cited above, §§ 111 and 133). It is true that the police resorted to the use of force while trying to protect participants in the Sofia Gay Pride parade against possible attacks, and thus with a view to discharging Bulgaria’s positive obligations under Articles 3, 11 and 14 of the Convention (see Identoba and Others v. Georgia, no. 73235/12, §§ 66, 72 and 94-100, 12 May 2015). However, in view of the absolute nature of the protection afforded by Article 3 of the Convention (see, among other authorities, Ireland v. the United Kingdom, 18 January 1978, § 163, Series A no. 25; Chahal v. the United Kingdom, 15 November 1996, §§ 79-80, Reports 1996-V; and Saadi v. Italy [GC], no. 37201/06, §§ 137 and 140, ECHR 2008), the use of force by the police will not give rise to a breach of this Article only if it is shown that recourse to it was made indispensable by the applicant’s own conduct (see, mutatis mutandis, Najafli v. Azerbaijan, no. 2594/07, §§ 38-39, 2 October 2012). This is not the case: the Government have not referred to any evidence that the applicant put up resistance to the police, attempted to attack participants in the Sofia Gay Pride parade, or engaged in any other conduct that might have justified the use of force against him.

54. There has therefore been a breach of Article 3 of the Convention in this respect.

(b) The conditions of the applicant’s detention in the police station and his treatment there

55. The general principles with respect to the obligation of the High Contracting Parties under Article 3 of the Convention not to detain persons under their jurisdiction in inhuman or degrading conditions were recently set out in detail in paragraphs 225-44 of the Court’s pilot judgment in Neshkov and Others v. Bulgaria (nos. 36925/10, 21487/12, 72893/12, 73196/12, 77718/12 and 9717/13, 27 January 2015). There is no need to repeat them here.

56. The applicant alleged that while in the corridor of the police station, he had been forced to remain in a “stress position” for about two hours and had been repeatedly hit by officers in order to remain in this position, and then put for several hours in a severely overcrowded and poorly ventilated cell and deprived of food and drink throughout his stay in the police station.

57. It has not been disputed that these forms of treatment, taken in isolation and jointly, were serious enough to be regarded as inhuman and degrading (see, in relation to the “stress position”, Ireland v. the United Kingdom, cited above, §§ 96 (a) and 167, Series A no. 25; in relation to severe overcrowding, Neshkov and Others, cited above, § 231; and, in relation to deprivation of food and drink, even for a few hours, Fedotov v. Russia, no. 5140/02, §§ 66-68, 25 October 2005, and Navalnyy and Yashin v. Russia, no. 76204/11, §§ 110 and 112, 4 December 2014). The only question before the Court is whether the applicant’s allegations been sufficiently made out. It must be noted in this connection that they were corroborated by affidavits by persons arrested and detained at the same time as the applicant (see paragraph 12 above), and that the Government in their observations did not mention anything in relation to these points.

58. In these circumstances, the Court is satisfied that the allegations may be regarded as proved to the requisite standard. It follows that there has been a breach of Article 3 of the Convention in relation to them.

59. The general principles with respect to the procedural obligation of the High Contracting Parties under Article 3 of the Convention to investigate acts of ill-treatment by State agents were likewise set out in detail in paragraphs 115-23 of the Court’s recent judgment in Bouyid (cited above), and there is, as already noted, no need to repeat them here.

60. The applicant’s allegation, as set out in his complaint to the prosecuting authorities, that the police had subjected him to treatment contrary to Article 3 of the Convention in the course of his arrest was arguable. It was made shortly after the events and was supported by medical evidence, which showed extensive bruising on his body and limbs, as well as other material (see paragraph 15 above). The authorities were therefore required to carry out an effective investigation into the applicant’s alleged ill-treatment.

61. Indeed, following the applicant’s complaint, the prosecuting authorities ordered a preliminary inquiry. However, this inquiry was marred by a number of deficiencies. First, part of it was delegated to the Sofia Directorate of the Ministry of Internal Affairs, which could hardly be regarded as sufficiently independent vis-à-vis the officers whose conduct was being investigated. In effect, in deciding not to open a formal criminal investigation pursuant to the inquiry, the Sofia Military Prosecutor’s Office appears to have chiefly relied on reports produced by officers of that Ministry (see, mutatis mutandis, El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, §§ 187 and 189, ECHR 2012; Đurđević v. Croatia, no. 52442/09, §§ 87-90, 19 July 2011; and Najafli, cited above, § 52). Secondly, the inquiry appears to have been confined to taking written statements from the persons concerned, with no efforts being made to interview them or organise confrontations between them with a view to specifically addressing the applicant’s allegations of ill-treatment rather than the general backdrop against which his arrest had taken place. Thirdly, the inquiry did not make it clear whether the police had not used any force against the applicant or had, on the contrary, used such force, but only because it had been rendered necessary by the applicant’s conduct. Instead, the inquiry appears to have proceeded on the assumption that since the police were confronted with a tense situation, they were justified in using force against any person with whom they came into contact in the course of their operation. Fourthly, the inquiry did not attempt to determine the exact origin of all of the applicant’s numerous bruises (see paragraphs 17-20 above). These latter points were noted by the Military Appellate Prosecutor’s Office, which quashed the earlier decision not to open a formal criminal investigation and ordered an additional inquiry to elucidate them (see paragraph 22 above). However, this additional inquiry, which was again carried out by the Sofia Directorate of the Ministry of Internal Affairs, suffered from the same defects as the original one, and was even concluded by the Sofia District Prosecutor’s Office with the exact same reasoning, word for word, as that with which the Sofia Military Prosecutor’s Office had earlier concluded the original inquiry (see paragraphs 24 and 25 above).

62. Thus, neither the original inquiry carried out under orders of the military prosecuting authorities nor the follow-up inquiry carried out under orders of the civilian prosecuting authorities was sufficiently independent or gave a clear answer to the main questions arising in this case: whether police officers had used force against the applicant, how exactly they had done so, and whether this force had been rendered necessary by the applicant’s own conduct (see, mutatis mutandis, Anzhelo Georgiev and Others v. Bulgaria, no. 51284/09, § 72, 30 September 2014). These points were essential to determine whether the police had acted within the confines of section 72(1) of the Ministry of Internal Affairs Act 2006 (see paragraph 30 above), and, indeed, whether they had breached Article 3 of the Convention.

63. These inquiries could not therefore be regarded as having fulfilled Bulgaria’s obligation under Article 3 of the Convention to carry out an effective investigation into the applicant’s allegations of ill-treatment by the police. It follows that there has been a breach of this Article under its procedural head.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

64. 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

65. The applicant claimed 10,000 euros (EUR) in respect of the non-pecuniary damage that he had suffered as a result of the breaches of the substantive and procedural limbs of Article 3 of the Convention. He asked the Court to have regard to the intensity of his suffering and the various ways in which he had been ill-treated in the course of his arrest and detention.

66. The Government submitted that the claim was exorbitant.

67. The Court finds that the applicant must have endured physical and mental suffering as a result of the inhuman and degrading treatment to which he was subjected by the police in the course of his arrest and detention. To this should be added the mental suffering caused by the ensuing lack of an effective investigation. Ruling in equity, as required under Article 41 of the Convention, the Court allows the applicant’s claim in full and awards him EUR 10,000. To this amount is to be added any tax that may be chargeable.

B. Costs and expenses

1. The applicant’s claims and the Government’s comments on them

68. The applicant sought, under the head of pecuniary damage, reimbursement of 880 Bulgarian levs (BGN) (equivalent to EUR 449.94) that he had paid in counsel’s fees for the proceedings before the prosecuting authorities (see paragraphs 15-29 above), and BGN 600 (equivalent to EUR 306.78) that he had paid in counsel’s fees for the proceedings for judicial review of the administrative fine imposed on him (see paragraph 14 above). In support of these claims, he submitted fee agreements between him and his counsel, invoices and receipts.

69. The applicant also sought reimbursement of EUR 1,200 incurred in fees for his legal representation in the Strasbourg proceedings, as well as of EUR 86.86 that his legal representatives had spent on the translation of the observations and claims for just satisfaction made on his behalf into French, BGN 40 (equivalent to EUR 20.45) that they had spent on posting them, and EUR 25 that they had spent on office supplies. In support of this claim, the applicant submitted a fee agreement between him and his legal representatives, an invoice, a contact for translation services and postal receipts. The applicant said that he had already paid his legal representatives EUR 1,200, inclusive of value added tax, and that the remainder was still outstanding. He accordingly requested that the first EUR 1,200 of any award made by the Court under this head be made payable directly to him, and the remainder to the law firm in which his legal representatives were partners.

70. Lastly, the applicant sought reimbursement of EUR 550 incurred in legal fees for the preparation of the additional observations made in reply to the Government’s supplementary submissions (see paragraph 43 above), as well as EUR 8 incurred for posting these submissions and EUR 44.20 incurred in translating them into French. In support of this claim, the applicant submitted a fee agreement between him and his legal representatives, a time-sheet and a contact for translation services. He requested that any award made by the Court under this head be made payable to the law firm in which his legal representatives were partners.

71. The Government submitted that the claims in respect of lawyers’ fees were exorbitant and out of line with domestic standards and rules on counsel’s fees, and that none of the claims were supported by documents.

2. The Court’s assessment

72. Costs and expenses are recoverable under Article 41 (former Article 50) of the Convention if it is established that they were actually and necessarily incurred and are reasonable as to quantum (see, among many other authorities, Le Compte, Van Leuven and De Meyere v. Belgium (Article 50), 18 October 1982, § 17, Series A no. 54). In relation to this latter point, it is settled case-law that when considering a claim for just satisfaction, the Court is not bound by domestic scales or standards (see, among other authorities, Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 99 (a), Series A no. 94; Papamichalopoulos and Others v. Greece (Article 50), 31 October 1995, § 47, Series A no. 330-B; and Dimitrov and Others v. Bulgaria, no. 77938/11, § 190, 1 July 2014), even in relation to costs referable to domestic proceedings (see König v. Germany (Article 50), 10 March 1980, § 23, Series A no. 36; Eckle v. Germany (Article 50), 21 June 1983, § 35, Series A no. 65; and Papamichalopoulos and Others, cited above, § 47).

(a) Costs incurred in the domestic proceedings

73. In relation to this head of claim, the Court finds it appropriate firstly to distinguish between damage caused by a breach of the Convention and costs incurred by the applicant to prevent this breach or to obtain redress therefor (see Neumeister v. Austria (Article 50), 7 May 1974, § 43, Series A no. 17; The Sunday Times v. the United Kingdom (no. 1) (Article 50), 6 November 1980, § 16, Series A no. 38; Le Compte, Van Leuven and De Meyere, cited above, § 14; and Dimitrov and Others, cited above, § 180). The applicant’s claim clearly falls under the heading of costs, not pecuniary damage resulting from a breach of the Convention.

74. That said, an applicant is entitled to an award in respect of the costs and expenses incurred at domestic level to prevent the breach found by the Court or to obtain redress therefor (see, among other authorities, Le Compte, Van Leuven and De Meyere, cited above, § 17). In this case, the purpose of the proceedings before the Bulgarian prosecuting authorities was precisely to obtain redress for the substantive breach of Article 3 of the Convention and to ensure compliance with the procedural limb of this Article (see, mutatis mutandis, De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 50, Series A no. 12; Airey v. Ireland, 9 October 1979, § 18, Series A no. 32; and The Sunday Times, cited above, § 18). Accordingly, the costs incurred in their course are recoverable under Article 41 of the Convention. However, the same does not apply to the costs incurred by the applicant in relation to the proceedings for judicial review of the administrative fine imposed on him; these do not constitute expenses incurred in seeking redress for the breaches of the Convention found in this case (see, mutatis mutandis, Nikolova v. Bulgaria [GC], no. 31195/96, § 79, ECHR 1999-II; E.M.K. v. Bulgaria, no. 43231/98, § 153, 18 January 2005; and Kashavelov v. Bulgaria, no. 891/05, § 59, 20 January 2011).

75. The Court sees no reason to doubt that the applicant actually paid the fees charged by his counsel for their work on the proceedings before the prosecuting authorities; he submitted documents showing that he made these payments. The Court is furthermore satisfied that these fees were reasonable as to quantum. It therefore awards the applicant the full sum that he claimed in this respect, namely EUR 449.94. This sum is to be paid to the applicant.

(b) Costs incurred in the Strasbourg proceedings

76. Having regard to the awards that it has made in similar recent cases against Bulgaria (see, for instance, Petkov and Parnarov, cited above, § 62) and the materials in the case file, and bearing in mind that the applicant was invited to make supplementary submissions in response to the belated raising of an exhaustion point by the Government (see paragraphs 41 and 43 above), the Court finds it reasonable to award him EUR 1,900 under this head. EUR 1,200 of this sum is to be paid to the applicant, and the remainder - EUR 700, plus any tax that may be chargeable to the applicant - to the law firm in which his legal representatives are partners.

C. Default interest

77. 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, UNANIMOUSLY,

1. Declares the complaints under Article 3 of the Convention admissible;

2. Holds that there has been a violation of Article 3 of the Convention with respect to the force used in the course of the applicant’s arrest;

3. Holds that there has been a violation of Article 3 of the Convention with respect to the conditions of the applicant’s detention in the police station and his treatment there;

4. Holds that there has been a violation of Article 3 of the Convention with respect to the investigation of the applicant’s ill-treatment by the police;

5. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 449.94 (four hundred forty-nine euros and ninety-four cents), in respect of the costs and expenses for the domestic proceedings;

(iii) EUR 1,900 (one thousand nine hundred euros), in respect of the costs and expenses for the Strasbourg proceedings; EUR 1,200 (one thousand two hundred euros) of this sum is to be paid directly to the applicant and the remainder, EUR 700 (seven hundred euros), plus any tax that may be chargeable to the applicant, to the law firm in which his legal representatives, Mr M. Ekimdzhiev and Ms K. Boncheva, are partners;

(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;

6. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 21 January 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Claudia Westerdiek Angelika Nußberger
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> BORIS KOSTADINOV v. BULGARIA - 61701/11 (Judgment (Merits and Just Satisfaction) : Court (Fifth Section)) [2016] ECHR 103 (21 January 2016) URL: http://www.bailii.org/eu/cases/ECHR/2016/103.html Cite as: [2016] ECHR 103