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FIFTH
SECTION
CASE OF
ANGELOVA AND ILIEV v. BULGARIA
(Application no. 55523/00)
JUDGMENT
STRASBOURG
26 July 2007
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 Angelova and Iliev v. Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Mr P. Lorenzen, President,
Mrs S.
Botoucharova,
Mr K. Jungwiert,
Mr R. Maruste,
Mr J.
Borrego Borrego,
Mrs R. Jaeger,
Mr M. Villiger, judges,
and
Mrs C. Westerdiek, Section Registrar,
Having
deliberated in private on 3 July 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 55523/00) 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 two Bulgarian nationals, Mrs Ginka Dimitrova
Angelova (“the first applicant”) and Mr Mitko Dimitrov
Iliev (“the second applicant”), who were born in 1933 and
1962 respectively and live in the village of Ivanski, on 7 February
2000.
- The
applicants were represented before the Court by Mr Y. Grozev, a
lawyer practising in Sofia.
- The
Bulgarian Government (“the Government”) were represented
by their Agent, Ms M. Karadjova, of the Ministry of Justice.
- The
applicants alleged that the authorities failed to carry out a prompt,
effective and impartial investigation capable of leading to the trial
and conviction of the individuals responsible for the ill-treatment
and death of their relative who was of Roma origin. They also alleged
that the domestic criminal legislation contained no specific
provisions incriminating the offences of murder or serious bodily
injury, or indeed any other felony, as separate criminal offences
where the latter were racially motivated, nor did it contain explicit
penalty-enhancing provisions relating to racially motivated offences.
The applicants further alleged that the authorities failed in their
duty to investigate and prosecute a racially motivated violent
offence. Lastly, the applicants alleged that the length of the
criminal proceedings against the assailants was excessive, which
denied them access to a court to claim damages.
- On 25 November 2004 the Court decided to give notice of
the application to the Government. Under the provisions of Article 29
§ 3 of the Convention, it decided to examine the merits of the
application at the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
first applicant was the mother and the second applicant was the
brother of Mr Angel Dimitrov Iliev (“the victim”), who
was of Roma origin and twenty-eight years old at the time of his
death.
A. The death of Mr Iliev
- On
the evening of 18 April 1996, in the town of Shumen, the victim was
attacked by seven teenagers (“the assailants”) and beaten
severely. He was also stabbed several times by one of the assailants.
- The
victim was taken to a hospital after the attack but died on the
following morning, 19 April 1996.
- As
later submitted by the assailants, the attack was motivated by the
victim's Roma ethnicity (see paragraphs 12-13 and 18-21 below).
B. The criminal proceedings into the death of Mr Iliev
- All
of the assailants were detained and questioned by the police on the
day of the attack, 18 April 1996. With one exception, all were
juveniles.
- The assailants were all released after questioning,
with the exception of G.M.G. (“the first assailant”), who
was seventeen years old at the time. A knife had been found on him
and two of the other assailants, N.R. and S.H., had implicated him as
the person who had wielded the weapon. The first assailant was
remanded in custody on suspicion of murder.
- On 19 April 1996 the assailants were again questioned
by the police. N.R. and S.H. confirmed their statements to the effect
that the first assailant had wielded the weapon. Thereupon, a
preliminary investigation was opened against him and he was charged
with murder stemming from an act of hooliganism (see paragraph 56
below). He was then questioned, but declined to give a statement
other than to confirm that the knife found on him was his own.
- D.K., who was fifteen years old at the time, gave a
statement on 19 April 1996, the relevant part of which reads:
“...[We have been meeting] with the boys regularly
for the past several months. We agree in advance where and when we
will meet the next time, because we do not go to the same school...
We hate junkies and [do not] take drugs... we [also] do not drink
alcohol, either when we see each other or when we are apart... We
talk about films, music and have [stated] on many occasions that we
hate Gypsies – we call them “soot” (сажди)
and “mangals” (мангали)...
Blacks, Gypsies, Turks, all foreigners I hate. As for the Turks and
the Gypsies[,] it is known that a high percentage of criminal
offences are [committed] by Gypsies and Turks. At home I have heard
my father talk about them that way...
Last night... we met... as we had previously agreed. [It
was a] simple gathering without any aim or idea of what we would
do... We went for a walk in the city [park]... We [then] headed
towards the train station... [Then] down towards the road... We
passed by the bridge... and were walking [close to] the tracks. We
were just passing and I [do not know] who noticed the Gypsy first...
[The Gypsy] was about ten metres away, we were on one side of the
road and he was on the other. We started walking after him... The
first to catch up with him was [the first assailant] and the Gypsy
asked him if he had [the time]. I do not think that anyone of us knew
the Gypsy. [The first assailant] told him “I have, I have”
and knocked his head against the wall. [He] held the Gypsy by the
jacket from behind [so] that when he hit him the first time he did
not [collapse] because [the first assailant] was holding him [up].
[The first assailant] turned him around immediately and knocked him
[once] again [against] the wall. I think he hit him on the head
again. [S.H.] went over... and kicked the Gypsy somewhere on the
body. I did not see where. I and [one of the others] went over to
[them] and [we all] brought the Gypsy to the ground. [He] was not
able to put up any resistance because everything happened very
quickly. He was shouting, because he was hurt. I was not thinking
about what the Gypsy was saying and I did not care. Personally, I
wanted to beat him up and nothing more. I think that the others also
just wanted to beat him up... The others... were [also] hitting the
Gypsy. I saw them when they hit him. The Gypsy was on the floor and
was not able to put up any resistance. I was doing what the others
were doing and did not watch what they were doing... At some point I
saw that there was bleeding from his head. The blood was somewhere on
[his] face. He was [still] moving... the same night I had seen that
[the first assailant] had a knife... The knife is mine, [but] I gave
it to [the first assailant]... a long time before this [night]... I
did not know that [that] night [the first assailant had] the knife
[with him]...
... While we were walking [behind] the Gypsy [and]
before we caught up with him[,] I saw that [N.B.]... said to the [the
first assailant] “Give me the knife” and I saw that [he]
took it out of his pants and gave it to him. I did not see where
[N.B.] put the knife and whether it remained in his hand. [But] when
we were hitting the Gypsy on the floor I saw how [N.B.] stabbed [him]
with the knife in [the buttocks] area... I saw that [N.B.] plunged
the knife several times into the body of the Gypsy[,] always in that
part of his body. The Gypsy was screaming. [N.B.] did not say
anything, he was not swearing. [N.B.] made three or four jabs...
[T]he Gypsy was still moving. Blood began to flow from the place
where [N.B.] had [stabbed him]... The rest of us were continuing to
hit... the Gypsy while [N.B.] was stabbing him...The Gypsy had not
provoked us in any way[,] neither with words nor with actions... We
beat him because he was a Gypsy... He had had enough. I saw that he
was not bleeding profusely... We did not want to kill him, just to
beat him up...I am not sure that only [N.B.] used the knife, but I
cannot indicate that any one of the others used it. I did not see
another [person using it]...
...
I still do not know what happened to this person,
whether he is [still] alive... We have beaten up Gypsies [before] and
we [always] hear what happens [to them]...”.
- An
autopsy of the victim was performed on 20 April 1996. It established
that he had been stabbed three times in the left outer thigh and
twice in the abdominal cavity which resulted in the severance of the
ischiadic nerve, the profunda femoris artery (deep artery of the
thigh), the main intestine and the urethra. He also had bruises and
contusions to his face and the back of his head. The autopsy
concluded that the cause of death was massive internal loss of blood,
resulting from the severance of the profunda femoris artery.
- On
the same day, 20 April 1996, the investigator commissioned a medical
expert's report to establish the victim's wounds, whether any of them
were in the stomach area, how they had been inflicted, what force had
been used and whether his death had been inevitable or whether it
could have been avoided by timely specialised medical assistance. It
is unclear what was established by the medical expert.
- On
15 and 16 May 1996 four of the assailants, D.K., S.H., N.R. and N.B.,
were charged with hooliganism of exceptional cynicism and impudence
(see paragraph 58 below). They were questioned in the presence of
their lawyers and then released into their parents' charge.
- D.K.
confirmed his previous statement but denied knowing anything about
the stabbing of the victim. He was unable to determine whether he was
guilty or not.
- S.H.,
who was sixteen years old at the time, pled guilty to the offence
with which he had been charged. He expressed his hatred for Gypsies
and stated that the group had purposefully looked for someone from
that minority group to attack. S.H. retracted his previous statement
of 19 April 1996 in respect of who had perpetrated the stabbings
(see paragraph 11 above) and implicated N.B. as having been
responsible. As to why he was changing his testimony, he claimed that
the members of the group had had an understanding always to implicate
the first assailant if they were ever caught, which the latter had
apparently suggested and condoned.
- N.R.,
who was seventeen years old at the time, also pled guilty to the
offence with which he had been charged. He also confirmed that they
had purposefully looked for a Gypsy to attack, retracted his
statement of 19 April 1996 (see paragraph 11 above) and
implicated N.B. as having stabbed the victim.
- N.B.
(“the second assailant”), who was fifteen years old at
the time, pled guilty to the offence with which he had been charged
but denied any knowledge of the stabbings or of having perpetrated
them.
- On 22 May 1996 G.R.G., who was eighteen years old at
the time, was charged with hooliganism of exceptional cynicism and
impudence (see paragraph 58 below) and questioned in the presence of
his lawyer. He was then released but a restriction was placed on him
not to leave his place of residence without authorisation from the
Prosecutor's Office. In his statement, he pled guilty to the offence
with which he had been charged and confirmed the attack was motivated
by the victim's Roma ethnicity but was unable to indicate who had
perpetrated the stabbings.
- The
seventh member of the group, S.K., was never charged as he did not
participate in the attack on the victim.
- Also
on 22 May 1996 two witnesses were questioned, one of whom was I.D., a
member of the group who had not been present during the attack on 18
April 1996. He gave a statement to the investigation that he had met
the first assailant later on the same evening and that the latter had
confided in him that the second assailant had stabbed a Gypsy whom
they had attacked but that he had taken the knife from him after the
attack. I.D. also stated that in a subsequent conversation with the
second assailant on 6 May 1996, the latter had inquired what kind of
sentence he might receive if he were to confess but that he was
scared to do so for fear of being sent to a juvenile correctional
facility. The other witness, N.D., gave a statement attesting to the
aforementioned conversation.
- On
23 May 1996 the first assailant was questioned again. He confirmed
that the group had purposefully looked for a Gypsy to assault on the
evening of 18 April 1996. The first assailant also stated that he had
given N.B. his knife before the attack and that the latter had
stabbed the victim, but that there had been no prior warning or
agreement about the incident. Lastly, the first assailant confirmed
that he had taken the knife back from N.B. after the attack and that
there had been a general understanding in the group that he would
take responsibility if they were ever to get caught, but that it had
not been agreed for this instance in particular.
- On
14 June 1996 the Shumen District Prosecutor's Office found that there
was a lack of evidence that the first assailant had stabbed the
victim, dismissed the charges against him and released him.
- The
charges against the first assailant were amended on 17 June 1996 and,
like the other members of the group, he was charged with hooliganism
of exceptional cynicism and impudence (see paragraph 58 below). A
restrictive measure was imposed on him whereby he was placed under
the supervision of an inspector from the Juvenile Delinquency Unit
(инспектор
към Детска
педагогическа
стая). He was also questioned in the
presence of his lawyer, pled not guilty to the offence with which he
had been charged and reiterated his statement of 23 May 1996.
- On
21 June 1996 N.R. and S.H. were charged with having made false
statements to the investigation authorities on 19 April 1999,
accusing the first assailant of the offence of murder, which resulted
in charges being brought against him (see paragraphs 11 and 13 above
and 59 below). They were questioned and then released into the charge
of their parents.
- On
26 June 1996 the second assailant was charged with negligent homicide
resulting from an inflicted median bodily injury (see paragraph 57
below). He pled not guilty to the offence and insisted that he had
not stabbed the victim.
- Due
to their conflicting testimonies, a confrontation was organised on 3
July 1996 between the second assailant, N.R. and S.H. They each
confirmed their previous statements.
- On
15 April 1997 the results of the preliminary investigation were
presented to the first and second assailants.
- On
18 April 1997 the investigator in charge concluded in a report
(обвинително
заключение)
that there was sufficient evidence against the assailants to obtain a
conviction and that the case should proceed to trial. It is unclear
when and whether the case file was transferred to the competent
Prosecutor's Office.
- A
little more than a year later on 26 June 1998, a confrontation was
organised between the second assailant and I.D. during which they
confirmed their previous statements to the investigation.
- On
several occasions during the course of the preliminary investigation
the applicants approached the investigator in charge with requests
for information on the progress of the case. They were either refused
information or were provided with scant details. Sometime in the
spring of 1999 the lawyer of the applicants was granted access to the
case file.
- A
confrontation was organised on 30 March 1999 between the second
assailant and N.D., during which they confirmed their previous
statements to the investigation.
- On
6 April 1999 the second assailant petitioned the investigator to
commission a medical report into his state of health, as he claimed
to be suffering from a serious incurable disease. Such a report was
ordered on 6 October 1999. The resulting medical report of 21
October 1999 established that the second assailant suffered from
chronic pyelonephritis and back pain, which were typical for
teenagers and would be naturally outgrown.
- On
18 October 1999 the applicants filed a request with the investigator
to be recognised as civil claimants in the criminal proceedings.
- On
3 November 1999 the investigator commissioned a psychiatric
evaluation of the second assailant. The resulting report, of an
unknown date, found that he did not suffer from any serious
psychiatric condition and that on the day of the attack his illnesses
did not affect his understanding of the nature and consequences of
his actions nor his ability to control them.
- On
18 December 1999 the applicants filed a complaint with the Shumen
Regional Prosecutor's Office, alleging that the investigation was
being protracted. No apparent action was taken in response to their
complaint.
- A
confrontation was organised on 12 January 2000 between the second
assailant and N.R., at which they gave conflicting testimony in
respect of a conversation they had had shortly after the attack on
the subject of whether to blame the first assailant for the stabbing.
- On
17 April 2000 the investigator recognised the first applicant as a
civil claimant in the criminal proceedings.
- Between
17 April and 1 June 2000 the results of the preliminary investigation
were presented to the second assailant, the other five accused and
the first applicant.
- On
2 June 2000 the investigator in charge concluded in a new report that
the case should proceed to trial, but proposed that the charges for
falsely incriminating the first assailant be dismissed. The case file
was transferred to the Shumen Regional Prosecutor's Office on an
unspecified date.
- On
3 July 2000 the Shumen Regional Prosecutor's Office remitted the case
with instructions that S.K. be questioned concerning the reasons why
the group had initially blamed the first assailant for the stabbing,
that the accused undergo psychiatric evaluations as to whether or not
on the day of the attack they understood the nature and consequences
of their actions and could control them, and that the charges against
the second assailant be amended.
- On
11 October 2000 a confrontation was organised between the first and
second assailants, at which they gave conflicting testimony in
respect of who had had the knife at the time of the attack.
- On
12 October 2000 S.K. was questioned and gave a statement that there
had not been a prior understanding in the group that the first
assailant would always take the blame, but that following the attack
the group had met and the first assailant had informed them that he
would take responsibility for what had happened.
- On
23 March 2001 D.K. was questioned but declined to answer any
questions.
- The
first assailant was questioned on 30 March 2001 and gave a statement
attesting to the physical state of the second assailant at the time
of the attack, the history of their relationship and his lack of
knowledge as to any collusion by the other members of the group to
help him by changing their respective testimonies.
- The
charges against the second assailant were amended on 2 April 2001 and
a restriction was placed on him not to leave his place of residence
without authorisation from the Prosecutor's Office. He was questioned
and reiterated his previous statement that he had not been in
possession of a knife during the attack and that he had not stabbed
the victim. The results of the preliminary investigation were also
presented to the second assailant on the same day.
- Between
3 April and 4 June 2001 the results of the preliminary investigation
were presented to the other five accused and the first applicant.
- On
12 June 2001 the investigator in charge concluded in a new report
that the case should proceed to trial. The case file was transferred
to the Shumen Regional Prosecutor's Office on an unspecified date.
- There
was no development in the criminal proceedings during the following
four years.
- On
18 March 2005 the Shumen Regional Prosecutor's Office dismissed the
charges of hooliganism of exceptional cynicism and impudence and of
falsely incriminating someone before the authorities against all of
the assailants who had been juveniles at the time of the attack –
namely the first and second assailants, N.R., S.H. and D.K. –
because the statute of limitation had expired in respect of them.
Relying on the evidence collected and the tests conducted in the
course of the preliminary investigation, the Shumen Regional
Prosecutor's Office argued that the first assailant had stabbed the
victim, given that he had had the knife and the victim's blood had
been found on his clothes. It therefore dismissed the charges against
the second assailant for negligent homicide resulting from an
inflicted median bodily injury and remitted the case for further
investigation, with instructions that the first assailant be again
charged with murder stemming from an act of hooliganism (see
paragraphs 12 above and 56 below). The only other remaining accused
was G.R.G., who had been eighteen years old at the time of the attack
and who continued to be charged with hooliganism of exceptional
cynicism and impudence as the statute of limitation had not expired
in respect of him (see paragraphs 21 above and 58 below).
- On
22 April 2005 the applicants and the victim's three sisters filed a
request with the authorities to be recognised as civil claimants in
the criminal proceedings and claimed 75,000 Bulgarian levs
(approximately 38,461 euros) in damages.
- On
16 May 2005 the applicants' lawyer met with a prosecutor from the
Shumen Regional Prosecutor's Office who informed him that the case
file had been requested and was being held by the Ministry of
Justice.
- The
Court has been informed of no further developments in the criminal
proceedings.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Criminal Code
1. Offences with which the assailants were charged
- For the offence of murder stemming from an act of
hooliganism the Criminal Code, as in force in 1996, envisaged a
sentence of fifteen to twenty years' imprisonment, life imprisonment
or death (Article 116 (10)). In 1998 the death penalty was replaced
with “life imprisonment without the possibility of
substitution”. For juveniles aged from sixteen to eighteen
years, the sentence was five to twelve years' imprisonment (Article
63 § 2 (1)) and for those from fourteen to sixteen years –
up to ten years' imprisonment (Article 63 § 1 (1) and (2)). The
statute of limitation was twenty-two-and-a-half years for juveniles
aged from sixteen to eighteen years (Article 80 § 1 (2) in
conjunction with § 2 and Article 81 § 3) and fifteen
years for those aged from fourteen to sixteen years (Article 80 §
1 (3) in conjunction with § 2 and Article 81 § 3).
- For negligent homicide resulting from an inflicted
median bodily injury, the Criminal Code envisaged a sentence of two
to eight years' imprisonment (Article 124 § 1), which for
juveniles aged fourteen to sixteen years was up to three years'
imprisonment (Article 63 § 1 (3) and (4)). The statute of
limitation for such juveniles was seven-and-a-half years (Article 80
§ 1 (4) in conjunction with § 2 and Article 81 § 3).
- For hooliganism of exceptional cynicism and impudence,
the Criminal Code envisaged a sentence of up to five years'
imprisonment (Article 325 § 2 (2)), which for juveniles
aged fourteen to sixteen years was up to two years' imprisonment
(Article 63 § 1 (4)). The statute of limitation for such
juveniles was seven-and-a-half years (Article 80 § 1 (4) in
conjunction with § 2 and Article 81 § 3).
- For making false statements to the authorities
incriminating someone in having committed an offence, as a result of
which charges were brought against that individual, the Criminal Code
envisaged a sentence of one to ten years' imprisonment (Article 286 §
3), which for juveniles aged fourteen to sixteen years was up to
three years' imprisonment (Article 63 § 1 (3) and (4)). The
statute of limitation for such juveniles was seven-and-a-half years
(Article 80 § 1 (4) in conjunction with § 2 and Article 81
§ 3).
2. Racially motivated offences
- Article 162 of the Criminal Code criminalises the
propagation and incitement of hostility and hatred, as well as
violence based, inter alia, on racial grounds. The relevant
part of the Article provides:
“1. [A person] who propagates or
incites towards racial... hostility or hatred, or towards racial
discrimination, shall be punished with imprisonment of up to three
years and a public reprimand.
2. [A person] who [resorts to] violence
against another or damages [his/her] property because of [his/her]...
race... shall be punished with imprisonment of up to three years and
a public reprimand.
3. [A person] who forms or leads an
organisation or group, the set goal of which is the perpetration of
an offence under the preceding paragraphs, shall be punished with
imprisonment of between one to six years and a public reprimand.
4. A member of such an organisation or group
shall be punished with imprisonment of up to three years and a public
reprimand.”
- Article 163 of the Criminal Code criminalises, inter
alia, racially motivated mob violence. The relevant part of the
Article provides:
“1. Persons who participate in a mob
rallied in order to attack groups of [people], individuals or their
property because of their... racial affiliation shall be punished [as
follows]:
(1) the instigators and leaders – with
imprisonment of up to five years;
(2) the remainder – with imprisonment
of up to one year or probation.
2. If the mob or some of its participants are
armed, the punishment shall be:
(1) for the instigators and leaders –
imprisonment of one to six years;
(2) for the remainder – imprisonment of
up to three years.
3. If an attack is carried out and, as a
result, a serious bodily injury or death occurs, the instigators and
leaders shall be punished with imprisonment of three to fifteen
years, while the remainder shall be punished with imprisonment of up
to five years, unless they are subject to a more severe punishment.”
- Articles 416 to 418 of the Criminal Code criminalise
racially motivated genocide and apartheid.
- Article 54 § 1 provides that domestic courts are
to take into account, inter alia, the motives of the
perpetrator when determining the sentence to be imposed.
B. Code of Criminal Procedure (1974)
- Article
192, as in force at the relevant time, provided that criminal
proceedings concerning publicly prosecutable offences could only be
initiated by a prosecutor or an investigator, acting on a complaint
or ex officio. The offences with which the assailants were
charged were publicly prosecutable offences.
- Under
Article 237 § 6, as worded until 1 January 2000, a victim had a
right of appeal to a higher ranking prosecutor against a decision not
to proceed with pending criminal proceedings. After 30 April 2001 the
victim had the right of appeal against such a decision by a
prosecutor to the domestic courts. The victim had no other means to
challenge a refusal to prosecute.
- Victims
of crime, or their successors, had the right to join the criminal
proceedings as civil claimants and, in that connection, to claim
damages, inspect the case file, make copies of relevant documents,
adduce evidence, raise objections and make applications (Articles 60
§ 1 and 63). They had the right to appeal against decisions of
the courts which impinged on their rights and interests, which right
they also had in respect of decisions of the investigating and
prosecuting authorities until 2 May 2003 (Article 63 § 1).
C. Code of Criminal Procedure (2006)
- The
new Code of Criminal Procedure introduced separate rights in the
criminal proceedings for victims or their heirs , such as the right
to participate in them, to be informed of their progress and to
appeal against decisions terminating or suspending them (Articles 74
and 75).
- Victims
of crime or their heirs have the right to join criminal proceedings
as civil claimants and, in that connection, to claim damages, inspect
the case file, make copies of relevant documents, adduce evidence,
raise objections and make applications (Articles 84 § 1 and 87).
They also have the right to appeal against decisions of the courts
which impinge on their rights and interests (Article 87 § 1).
D. Protection against Discrimination Act (2004)
- The
Protection against Discrimination Act was passed in September 2003
and entered into force on 1 January 2004. It is a comprehensive piece
of legislation designed to create machinery providing effective
protection against discrimination. It applies mainly in the spheres
of labour relations, State administration and the provision of
services. The Act created a Commission for Protection against
Discrimination with jurisdiction, inter alia, to hear
individual complaints (sections 40 and 50).
- Section
9 of the Act provides for the shifting of the burden of proof in
discrimination cases. Under that section, where a claimant is able to
prove facts from which an inference might be drawn that there had
been discriminatory treatment, it is incumbent on the defendant to
prove that there had not been a violation of the right to equal
treatment.
- Once
successful before the Commission, a plaintiff can initiate a tort
action for damages before the domestic courts (section 74 (1)). If
the damages were caused to a private person as a result of an
unlawful act, action or inaction by State bodies or officials, the
action for damages has to be filed under the State Responsibility for
Damage Act (section 74 (2)). No relevant case-law was presented by
the parties or was identified as having been reported, to indicate
whether or how frequently the aforementioned provision has been
utilised in obtaining redress for acts of discrimination from State
bodies and officials.
E. State and Municipalities Responsibility for Damage
Act (1988)
- The
State and Municipalities Responsibility for Damage Act of 1988 (“the
SMRDA”) provides that (a) the State and municipalities are
liable for damage caused to private and juridical persons by the
illegal orders, actions or omissions of government bodies and
officials acting within the scope of, or in connection with, their
administrative duties; and (b) that in certain cases the State is
liable for damage caused to private persons by the organs of the
investigation, the prosecution and the courts (sections 1-2).
- The
relevant domestic law and practice under section 1 of the SMRDA has
been summarised in the case of Iovchev v. Bulgaria
(no. 41211/98, §§ 76 80, 2 February 2006).
- Section
2 of the SMRDA provides, as relevant:
“The State shall be liable for damage caused to
[private persons] by the organs of... the investigation, the
prosecution, the courts... for unlawful:
1. detention..., if [the detention order] has
been set aside for lack of lawful grounds;
2. accusation of a crime, if the [accused]
has been acquitted or the criminal proceedings have been terminated
on the grounds that the actions were not perpetrated by the [accused]
or that the actions do not constitute an offence, or because the
criminal proceedings were opened after the statute of limitations
expired or the actions were amnestied;
3. conviction of a crime ..., if the person
concerned is subsequently acquitted...;
4. imposition by a court of compulsory
medical treatment..., if [the decision] has been set aside for lack
of lawful grounds;
5. imposition by a court of an administrative
measure..., if [the decision] has been set aside as unlawful;
6. execution of an imposed sentence in excess
of the set term or amount.”
- Persons
seeking redress for damage occasioned by decisions of the
investigating and prosecuting authorities or the courts in
circumstances falling within the scope of the SMRDA have no claim
under general tort law, as the Act is a lex specialis and
excludes the application of the general regime (section 8 (1) of the
Act; решение № 1370
от 16.XII.1992 г. по гр.д.
№ 1181/92 г., IV г.о. and Тълкувателно
решение № 3 от
22.04.2005 г. по т. гр. д.
№ 3/2004 г., ОСГК на
ВКС).
III. INTERNATIONAL INSTRUMENTS AND COMPARATIVE LAW ON
RACIST VIOLENCE
- The
relevant international instruments and comparative law on racist
violence has been summarised in paragraphs 76-82 of the Court's
judgment in the case of Nachova and Others v. Bulgaria [GC]
(nos. 43577/98 and 43579/98, 6 July 2005).
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 2, 3 and 13 OF THE
CONVENTION
- The
applicants complained under Articles 2, 3 and 13 of the Convention
that the authorities failed to carry out a prompt, effective and
impartial investigation capable of leading to the trial and
conviction of the individuals responsible for the ill-treatment and
death of their relative. They also complained that the domestic
criminal legislation contained no specific provisions incriminating
the offences of murder or serious bodily injury, or indeed any other
felony, as separate criminal offences where the latter were racially
motivated, nor did it contain explicit penalty-enhancing provisions
relating to racially motivated offences. Lastly, they complained that
the authorities had failed to apply the existing but similarly
inadequate provisions of the Criminal Code concerning racially
motivated offences.
Articles
2, 3 and 13 of the Convention provide:
Article 2
“1. Everyone's right to life shall be
protected by law. No one shall be deprived of his life intentionally
save in the execution of a sentence of a court following his
conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded
as inflicted in contravention of this article when it results from
the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful
violence;
(b) in order to effect a lawful arrest or to
prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose
of quelling a riot or insurrection.”
Article 3
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
Article 13
“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.”
A. The parties' submissions
1. The Government
- The
Government contested the applicants' assertions and argued that the
application should be declared inadmissible on account of a failure
to exhaust domestic remedies. In particular, they considered it to be
premature because the applicants had not waited for the completion of
the criminal proceedings against the assailants which, they argued,
could address and resolve some of the complaints raised before the
Court.
- Separately,
the Government claimed that the investigation into the victim's death
had been conducted by the authorities with the required diligence.
They considered that the investigation had been extremely delicate
and complex, given that most of the assailants had been juveniles at
the time of the attack and kept changing their statements. As a
result, the authorities needed to question the same witnesses on more
than one occasion, and conducted confrontations between such
witnesses and performed medical and other tests and analyses. In
spite of their efforts, the assailants' testimonies remained
contradictory, which resulted in the case being remitted on three
occasions. In the end, murder charges had been brought against one of
the assailants, which the Government argued was an indication that
the investigation had been completely impartial and not
discriminatory.
- Separately,
the Government noted that the first applicant had been recognised as
a civil claimant in the criminal proceedings and had been provided
with access to the investigation file. They claimed that her
legitimate interests had therefore been adequately guaranteed and
protected.
- In
view of the above, the Government argued that there had been no
violations of Articles 2, 3 and 13 of the Convention, on the basis
that the investigation had been conducted diligently in spite of the
objective and subjective obstructions it had encountered.
2. The applicants
- The
applicants disagreed with the Government's assertion that they had
failed to exhaust domestic remedies by not waiting for the completion
of the criminal proceedings. They noted that in respect of most of
the assailants, the criminal proceedings had been terminated on 18
March 2005 because the statute of limitations had expired. In respect
of these individuals the criminal proceedings were no longer pending
and they could no longer be charged with any other offence stemming
from their participation in the attack against the applicants'
relative. Thus, the applicants' complaints in respect of these
persons could not be claimed to be premature. In respect of the
murder charge, the applicants noted that criminal proceedings were
pending only against the first assailant. They stressed, however,
that there had been no further development in the criminal
proceedings following the decision of 18 March 2005 and that the
charges against the first assailant had not been amended. In any
event, the applicants argued that the State's positive duty to
investigate and prosecute the offenders included a time component.
Referring to the Court's judgment in the case of Selmouni
v. France [GC] (no. 25803/94, ECHR 1999 V) the
applicants argued that where such an investigation is unduly
prolonged, its excessive length alone would render it ineffective.
Lastly, they noted that the question of whether or not the
investigation had been effective was a question on the merits and
called for the Government's objection to be dismissed.
- Separately,
the applicants reiterated their complaints and argued that the
respondent State had violated its positive obligations under Articles
2 and 3 of the Convention to conduct an effective investigation
capable of leading to the punishment of the individuals responsible
for the ill-treatment and death of their relative.
- Referring
to the Court's case-law, the applicants argued that in the present
case the investigation conducted by the authorities had clearly been
ineffective as it had, for a considerable length of time, failed to
result in prosecution and punishment of the assailants.
- Lastly,
the applicants claimed that the decision of 18 March 2005 of the
Shumen Regional Prosecutor's Office had made it even more unlikely
that any of the assailants would be punished for the death of their
relative, because they considered that the evidence against the first
assailant was not conclusive enough for a successful prosecution.
They argued that the statements and evidence pointing to the second
assailant as the stabber had been much more substantial and credible
but noted that, due to the expiration of the statute of limitation,
they had all become irrelevant. They submitted that, as a result of
the investigation having taken such a long time and having been
ineffectively conducted, any possibility of a successful prosecution
of any of the assailants was precluded.
- The
applicants made similar submissions in respect of the investigation
into their relative's ill-treatment by the assailants, which they
likewise considered to have been excessively delayed and ineffective.
They noted that none of the assailants had been charged with causing
bodily injury to their relative but had only been charged with
“hooliganism”, which allegedly carried a lighter
sentence. However, even these charges were dismissed on 18 March 2005
against all but one of the assailants because the statute of
limitations had expired.
B. Admissibility
- The Court notes that the Government argued that the
applicants failed to exhaust domestic remedies by not waiting for the
criminal proceedings against the assailants to be completed. The
applicants meanwhile claimed that the question of exhaustion of
domestic remedies was inextricably linked to the merits of the
complaint and, in addition, that in respect of part of the assailants
the criminal proceedings had in any event been terminated on 18 March
2005.
- The Court observes that that the criminal proceedings
were opened against the assailants on 19 April 1996 and were still
pending at the investigation stage when the applicants filed their
complaints with the Court on 7 February 2000 arguing, inter alia,
that the said proceedings were of excessive length and therefore
ineffective. Subsequently, on 18 March 2005 the criminal proceedings
against all but two of the assailants were terminated. Presumably,
however, they are still ongoing against the two individuals in
question.
- The Court finds that the question of exhaustion of
domestic remedies and the length of the criminal proceedings against
the assailants inevitably relate to the merits of the applicants'
complaint that the length of the investigation in itself rendered it
ineffective. Therefore, to avoid prejudging the latter, these
questions should be examined together. Accordingly, the Court holds
that the question of exhaustion of domestic remedies should be joined
to the merits.
- In conclusion, the Court finds that the applicants'
complaints under Articles 2, 3 and 13 of the Convention are not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention, or inadmissible on any other grounds. They must
therefore be declared admissible.
C. Merits
1. General principles
- Article
2 of the Convention, which safeguards the right to life, ranks as one
of the most fundamental provisions in the Convention and enshrines
one of the basic values of the democratic societies making up the
Council of Europe. The Court must subject allegations of breach of
this provision to the most careful scrutiny (see Nachova and
Others, cited above, § 93).
- The
Court observes at the outset that the applicants did not contend that
the authorities of the respondent State were responsible for the
death of their relative; nor did they imply that the authorities knew
or ought to have known that he was at risk of physical violence at
the hands of third parties and failed to take appropriate measures to
safeguard him against such a risk. The present case should therefore
be distinguished from cases involving the alleged use of lethal force
either by agents of the State or by private parties with their
collusion (see McCann and Others v. the United Kingdom,
judgment of 27 September 1995, Series A no. 324; Shanaghan
v. the United Kingdom, no. 37715/97, § 90, 4
May 2001; Anguelova v. Bulgaria, no. 38361/97, ECHR
2002 IV; Nachova and Others, cited above; and Ognyanova
and Choban v. Bulgaria, no. 46317/99, 23 February 2006), or in
which the factual circumstances imposed an obligation on the
authorities to protect an individual's life, for example where they
had assumed responsibility for his welfare (see Paul and Audrey
Edwards v. the United Kingdom, no. 46477/99, ECHR
2002 II) or where they knew or ought to have known that his life
was at risk (see Osman v. the United Kingdom,
judgment of 28 October 1998, Reports of Judgments and Decisions
1998 VIII).
- However,
the absence of any direct State responsibility for the death of the
applicants' relative does not exclude the applicability of Article 2
of the Convention. The Court reiterates that by requiring a State to
take appropriate steps to safeguard the lives of those within its
jurisdiction (see L.C.B. v. the United Kingdom, judgment of 9
June 1998, Reports 1998 III, p. 1403, § 36), Article
2 § 1 of the Convention imposes a duty on that State to secure
the right to life by putting in place effective criminal law
provisions to deter the commission of offences against the person,
backed up by law-enforcement machinery for the prevention,
suppression and punishment of breaches of such provisions (see Osman,
cited above, § 115).
- The
Court reiterates that in the circumstances of the present case this
obligation requires that there should be some form of effective
official investigation when there is reason to believe that an
individual has sustained life-threatening injuries in suspicious
circumstances. The investigation must be capable of establishing the
cause of the injuries and the identification of those responsible
with a view to their punishment. Where death results, as in the
present case, the investigation assumes even greater importance,
having regard to the fact that the essential purpose of such an
investigation is to secure the effective implementation of the
domestic laws which protect the right to life (see Anguelova,
cited above, § 137; Nachova and Others, cited above, §
110; and Ognyanova and Choban, cited above, § 103).
- The
Court reiterates that in cases involving allegations that State
agents were responsible for the death of an individual, it has
qualified the scope of the above-mentioned obligation as one of
means, not of result. Thus, the authorities must have taken the
reasonable steps available to them to secure the evidence concerning
the incident, including, inter alia, eye witness testimony,
forensic evidence and, where appropriate, an autopsy which provides a
complete and accurate record of injury and an objective analysis of
clinical findings, including the cause of death. Any deficiency in
the investigation which undermines its ability to establish the cause
of death, or the person or persons responsible will risk falling foul
of this standard (see Anguelova, cited above, § 139;
Nachova and Others, cited above, § 113; and Ognyanova
and Choban, cited above, § 105).
- What
form of investigation will achieve those purposes may vary in
different circumstances. However, whatever mode is employed, the
authorities must act of their own motion once the matter has come to
their attention. They cannot leave it to the initiative of the
next-of-kin either to lodge a formal complaint or to request
particular lines of inquiry or investigative procedures (see İlhan
v. Turkey [GC], no. 22277/93, § 63, ECHR 2000 VII, and
Nachova and Others, cited above, § 111).
- A
requirement of promptness and reasonable expedition is implicit in
this context. It must be accepted that there may be obstacles or
difficulties which prevent progress in an investigation in a
particular situation. However, a prompt response by the authorities
in investigating a use of lethal force may generally be regarded as
essential in maintaining public confidence in their adherence to the
rule of law and in preventing any appearance of collusion in or
tolerance of unlawful acts (see McKerr v. the United
Kingdom, no. 28883/95, § 114, ECHR 2001 III; and
Ognyanova and Choban, cited above, § 106).
- Although
there was no State involvement in the death of the applicants'
relative, the Court considers that the above-mentioned basic
procedural requirements apply with equal force to the conduct of an
investigation into a life-threatening attack on an individual,
regardless of whether or not death results (see, mutatis mutandis,
M.C. v. Bulgaria, no. 39272/98, § 151, ECHR
2003 XII). Moreover it would add that, where that attack is
racially motivated, it is particularly important that the
investigation is pursued with vigour and impartiality, having regard
to the need to reassert continuously society's condemnation of racism
and to maintain the confidence of minorities in the ability of the
authorities to protect them from the threat of racist violence (see
Menson and Others v. the United Kingdom (dec.), no.
47916/99, ECHR 2003-V).
2. Application of these principles in the present case
- The
Court observes that the preliminary investigation into the death of
the applicants' relative was opened almost immediately after the
attack on 18 April 1996 (see paragraphs 10 and 11 above). Within less
than a day the investigation had identified the persons who had
perpetrated the attack, had detained or questioned all of them and
had charged the first assailant with murder stemming from an act of
hooliganism (see paragraph 12 above). At the same time, the
investigation was informed by one of the assailants, D.K., that the
attack had been racially motivated because the victim was of Roma
origin (see paragraph 13 above). Within another month the
investigation had commissioned medical and other reports and had
charged the remaining five assailants with hooliganism of exceptional
cynicism and impudence (see paragraphs 14-22 above).
- The
Court further observes that the changes in the testimonies of those
assailants who had at first blamed the first assailant for stabbing
the victim were initially dealt with expeditiously by the
authorities. Namely, the charges against the first assailant were
amended to hooliganism of exceptional cynicism and impudence (see
paragraph 26 above), N.R. and S.H. were charged with having made
false statements to the investigation authorities incriminating the
first assailant, (see paragraph 27 above) and the second assailant
was charged with negligent homicide resulting from an inflicted
median bodily injury (see paragraph 28 above).
- Over
the next three years, however, the preliminary investigation became
protracted for undisclosed reasons, with investigative procedures
being performed approximately once a year (see paragraphs 30-34
above). From 1999 to 2001 there was more activity on the part of the
authorities, but in spite of the numerous confrontations between
witnesses, the medical and other evaluations and examinations
performed and the investigator's proposals to bring the assailants to
trial, nothing further of substance transpired (see paragraphs 34-50
above). Then, for a period of four years between 2001 and 2005, there
were absolutely no further developments and the criminal proceedings
remained at the investigation stage until the present case was
communicated to the respondent Government (see paragraphs 5 and 50-52
above). As a result of the accumulated delays, the statute of
limitations expired in respect of the majority of the assailants and
the authorities terminated the criminal proceedings against them on
18 March 2005. Thus, in spite of the authorities having
identified the assailants almost immediately after the attack and
having determined with some degree of certainty the identity of the
stabber, no one was brought to trial for the attack on the
applicants' relative over a period of more than eleven years.
- The
Court observes in this respect that the Government failed to provide
convincing explanations for the protraction of the criminal
proceedings. It finds that the arguments put forward by them do not
provide justification for the authorities' failure over several years
to conclude the criminal proceedings and bring the assailants to
trial.
- The
Court recognises that the preliminary investigation is still pending
against two of the assailants, but, considering the length of the
proceedings so far, it finds it questionable whether either of them
will ever be brought to trial or be successfully convicted. In any
event, the Court does not consider it necessary to make an assessment
of this point in the context of the present proceedings, in view of
the accumulated length of the proceedings so far and the fact that
they were terminated in respect of the majority of the assailants due
to the expiration of the statute of limitation as a result of the
authorities' inactivity. In this respect, it also does not consider
that the applicants should have waited for the completion of the
criminal proceedings before filing their complaints with the Court,
as the conclusion of those proceedings would not remedy their overall
delay in any way.
- As
to whether the respondent State's legal system provided adequate
protection against racially motivated offences, the Court observes
that it did not separately criminalise racially motivated murder or
serious bodily injury (Articles 115-135 of the Criminal Code), nor
did it contain explicit penalty-enhancing provisions relating to such
offences if they were motivated by racism (Articles 116 and 131 of
the Criminal Code). However, the Court considers that other means may
also be employed to attain the desired result of punishing
perpetrators who have racist motives. It observes in this respect
that the possibility existed in domestic legislation to impose a more
severe sentence depending on, inter alia, the motive of the
offender (see paragraph 63 above). The Court further observes that
the authorities charged the assailants with aggravated offences,
which though failing to make a direct reference of the racist motives
of the perpetrators provided for more severe sentences than those
envisaged in domestic legislation for racial hatred offences (see
paragraphs 56-61 above). Thus, it does not consider that domestic
legislation and the lack of penalty-enhancing provisions for racist
murder or serious bodily injury were responsible in the present case
for hampering or constraining the authorities from conducting an
effective investigation into the death of the applicants' relative
and applying effectively the existing domestic legislation.
- In conclusion, the Court finds that in the particular
circumstances of the present case the authorities failed in their
obligation under Article 2 of the Convention to effectively
investigate the death of the applicants' relative promptly,
expeditiously and with the required vigour, considering the racial
motives of the attack and the need to maintain the confidence of
minorities in the ability of the authorities to protect them from the
threat of racist violence.
Thus,
there has been a violation of Article 2 § 1 of the Convention.
It follows that the Government's preliminary objection (see
paragraphs 89 and 103 above) must be dismissed.
- Having regard to the above conclusion, the Court does
not deem it necessary in the present case to make a separate finding
under Articles 3 and 13 of the Convention (see, mutatis mutandis,
Anguelova, cited above, § 150; Ognyanova and
Choban, cited above, § 124; and Nachova and Others,
cited above, § 123).
II. ALLEGED VIOLATION OF ARTICLE 14 IN CONJUNCTION WITH
ARTICLES 2 AND 3 OF THE CONVENTION
- The
applicants alleged a violation of Article 14 in conjunction with
Articles 2 and 3 of the Convention in that the authorities failed in
their duty to investigate and prosecute a racially motivated violent
offence. They referred, inter alia, to their Roma origin, the
alleged widespread prejudices against their ethnic group and the
authorities' consistent failure to address systematic patterns of
violence and discrimination against their community.
Article
14 of the Convention provides.
“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a
national minority, property, birth or other status.”
A. The parties' submissions
1. The Government
- The
Government contested the applicants' assertion and argued that the
complaint should be declared inadmissible on account of a failure to
exhaust the domestic remedies. They claimed that the applicants could
have initiated an action against the authorities under the Protection
against Discrimination Act, in force as from 1 January 2004, if they
believed that there had been discriminatory motives for the
investigation having taken too long or for any alleged inactivity on
the part of the authorities.
- In
any event, the Government considered that there had not been any
discriminatory motive in the way the authorities had conducted the
investigation and argued that this had been demonstrated by the
diligence with which it had been conducted, its preciseness and the
severity of the charges finally brought against the first assailant.
2. The applicants
- The
applicants challenged the Government's claim that the complaint
should be declared inadmissible on account of a failure to exhaust
the domestic remedies. They argued that an action under the
Protection against Discrimination Act was not a remedy that they were
required to exhaust because it was neither effective nor available.
The applicants noted that the Court had repeatedly held that there is
no requirement that remedies that are neither adequate nor effective
should be used (see, mutatis mutandis, Sakık and
Others v. Turkey, judgment of 26 November 1997, Reports
1997 VII, p. 2625, § 53) and that an individual must
have clear, practical opportunity to challenge an act which is an
interference with his or her rights (see De Geouffre de la
Pradelle v. France, judgment of 16 December 1992, Series A
no. 253 B, p. 43, § 34 and Bellet v. France,
judgment of 4 December 1995, Series A no. 333 B, p. 42, §
36). In respect of the lack of availability of the remedy claimed by
the Government, the applicants noted that the Protection against
Discrimination Act entered into force close to four years after they
had lodged their complaints with the Court. With regard to its
effectiveness, they argued that an action for damages, be it based on
anti-discrimination legislation or general tort law, could not remedy
the substance of their complaint before the Court, which was that the
authorities had failed to conduct an effective investigation into the
death of their relative and to prosecute the perpetrators. Moreover,
an action under the Act would be directed against the investigation
authorities and would require the applicants to prove discriminatory
treatment by them on the basis of race, of which there was no direct
evidence. Thus, the applicants claimed that there was no clear link
between the complaints they raised before the Court and the remedy
suggested by the Government.
- On
the merits of their complaint, the applicants referred to the Court's
judgment of 26 February 2004 in the case of Nachova and Others
(cited above) and noted that States which are parties to the
Convention had a positive duty to investigate possible discriminatory
motives in cases where there was evidence of racially motivated
violence. In line with the Court's ruling in that judgment, the
applicants argued that Article 14 of the Convention, taken together
with Article 2 and 3 of the Convention, contained a separate
procedural obligation to carry out such an investigation. Such an
obligation, they further argued, was fully in line with the Court's
existing case-law under Articles 2 and 3 of the Convention (see
Menson and Others (dec.), cited above) and the existing
standards under international law (see the jurisprudence of the
United Nations Committee on the Elimination of All Forms of Racial
Discrimination – Case No. 4/1991, L.K. v. the
Netherlands, Views adopted on 16 March 1993, para. 6.6.). The
applicants thus claimed that in the present case Article 14, in
conjunction with Articles 2 and 3 of the Convention, had been
violated with respect to its procedural aspect – the duty to
investigate where there is evidence reasonably suggesting that there
was racially motivated violence and killing.
- The
applicants argued that the investigation had collected testimony and
forensic evidence that clearly established that the victim was
attacked, severely beaten and killed because of his race. In
particular, the assailants testified that the victim was picked,
beaten and killed because, and only because, he was a Roma.
Sufficient evidence was also collected that this was by no means an
isolated event for the assailants and that they had periodically
practiced racist violence of a similar nature. Thus, in spite of the
abundant evidence of the attack, the beating to which the victim was
subjected and his resulting death, the assailants and the person who
stabbed him were never prosecuted. This failure by the Bulgarian
authorities was, the applicants argued, an unambiguous violation of
Article 14 taken in conjunction with the procedural aspect of
Articles 2 and 3 of the Convention.
- Referring
to the general situation of Roma in Bulgaria, the numerous incidents
of racist attacks and the high rate of violence against them, as well
as the specific facts in the present case, the applicants further
claimed that the Bulgarian authorities should have investigated and
prosecuted the racial discrimination aspect of the attack and should
have brought charges reflecting the particular gravity of the racist
violence. They argued that the authorities completely failed to do
this and that nothing in the investigation addressed the racist
motivation of the violence against their relative. The conduct of the
prosecuting authorities therefore thwarted the course of justice and
deprived them of an effective remedy against the discrimination
suffered by the victim.
B. Admissibility
- The
Court notes that this complaint is linked to the ones examined above
(see paragraphs 77-106 above) and must therefore, likewise, be
declared admissible. The Court does not find that the Government
sufficiently substantiated their argument that the applicants should
have exhausted the procedure under the Protection against
Discrimination Act, as it does not consider it to have been proven
that this procedure, introduced eight years after the attack and four
years after the introduction of the application, would have been an
effective remedy for their complaint under Article 14 of the
Convention alleging that the authorities failed in their duty to
investigate and prosecute a racially motivated violent offence.
C. Merits
- The
Court reiterates that States have a general obligation under Article
2 of the Convention to conduct an effective investigation in cases of
deprivation of life, which must be discharged without discrimination,
as required by Article 14 of the Convention. Moreover, when
investigating violent incidents State authorities have the additional
duty to take all reasonable steps to unmask any racist motive and to
establish whether or not ethnic hatred or prejudice may have played a
role in the events. Failing to do so and treating racially induced
violence and brutality on an equal footing with cases that have no
racist overtones would be to turn a blind eye to the specific nature
of acts that are particularly destructive of fundamental rights. A
failure to make a distinction in the way in which situations that are
essentially different are handled may constitute unjustified
treatment irreconcilable with Article 14 of the Convention.
Admittedly, proving racial motivation will often be extremely
difficult in practice. The respondent State's obligation to
investigate possible racist overtones to a violent act is an
obligation to use best endeavours and not absolute; the authorities
must do what is reasonable in the circumstances of the case (see
Nachova and Others, cited above, § 160).
- In
the present case, the racist motives of the assailants in
perpetrating the attack against the applicants' relative became known
to the authorities at a very early stage of the investigation, when
D.K. gave a statement to that affect on 19 April 1996 (see paragraph
13 above). The Court considers it completely unacceptable that, while
aware that the attack was incited by racial hatred, the authorities
did not expeditiously complete the preliminary investigation against
the assailants and bring them to trial. On the contrary, they allowed
the criminal proceedings to procrastinate and to remain at the
investigation stage for more than eleven years. As a result, the
statute of limitations expired in respect of the majority of the
assailants. In addition, the Court observes that the authorities
failed to also charge the assailants with any racially motivated
offences. It notes in this respect the widespread prejudices and
violence against Roma during the relevant period and the need to
reassert continuously society's condemnation of racism and to
maintain the confidence of minorities in the authorities' ability to
protect them from the threat of racist violence (see Menson and
Others (dec.), cited above).
- Thus, the Court finds that in the present case the
authorities failed to make the required distinction from other,
non-racially motivated offences, which constitutes unjustified
treatment irreconcilable with Article 14 of the Convention.
Consequently,
it finds that there has been a violation of Article 14 taken in
conjunction with the procedural aspect of Article 2 of the
Convention.
- Having
regard to the above conclusion, the Court does not deem it necessary
in the present case to make a separate finding under Article 14 taken
in conjunction with the procedural aspect of Article 3 of the
Convention (see paragraph 106 above).
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicants complained under Article 6 of the Convention in respect of
the excessive length of the criminal proceedings against the
assailants and alleged that this denied them access to a court to
claim damages from the perpetrators, in that a civil action for
damages was dependent on the outcome and findings of the criminal
proceedings.
The
relevant part of Article 6 § 1 of the Convention provides:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair and public hearing
within a reasonable time by an independent and impartial tribunal
established by law...”
- The
Court notes that similar complaints were dismissed in the cases of
Assenov and Others v. Bulgaria (judgment of 28 October 1998,
Reports 1998 VIII, p. 3292, §§ 110 13) and
Toteva v. Bulgaria (dec.) (no. 42027/98, 3 April 2003). The
present case does not disclose any material difference. In
particular, had the applicants initiated a civil action against the
assailants, the competent civil court would have accepted it for
examination. It is true that the court would have, in all likelihood,
stayed the proceedings if it found that the relevant facts involved
criminal acts. However, the civil courts are not bound by a refusal
or delay of the prosecuting authorities to investigate. In
circumstances where – as here – the applicants did not
bring a civil action, it is a pure speculation to consider that the
civil proceedings would have remained stayed for such a period, so as
to give rise to a de facto denial of justice, as claimed by
the applicants.
- It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
IV. 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
applicants claimed 40,000 euros (EUR) on behalf of the victim, on
their own behalf and also on behalf of the first applicant's three
daughters, sisters of the victim. The amount claimed was to
compensate the violation of the victim's rights and the pain and
suffering caused to all his close relatives, mother, sisters and
brother, as a result of the ineffective, prolonged and eventually
aborted investigation and prosecution of those responsible for his
beating and death, the loss of the moral and financial support he
would have provided to his family as well as the thwarted opportunity
for his relatives to file a claim for damages under national law for
more than nine years.
The
applicants claimed that under Article 41 of the Convention
non-pecuniary damages should be awarded in full to anyone who
suffered a violation of the rights under the Convention and that the
Court had awarded the highest amounts in compensation for violations
of the right to life. They further noted that the Court in its
case-law had outlined a number of circumstances that should be taken
into consideration in such cases, such as whether the behaviour of
the authorities was particularly blameworthy or the consequent
investigation particularly flawed, the age of the victim (see
Anguelova, cited above, § 173) and also whether it had
been demonstrated that the responding State had tolerated a wider
practice of abuse of Convention rights (see Nachova and Others,
cited above, §§ 171-72).
The
applicants argued that in the present case there were several such
factors that necessitated an increased award of damages, namely that
their relative was the victim of a racist attack, beating and
killing; that he was an innocent victim, randomly chosen because of
the colour of his skin; that, in spite of the abundant evidence
concerning the offence and the perpetrators, the authorities had
chosen not to investigate and prosecute a blatantly racist crime;
that such tacit approval of racism by the authorities was
particularly blameworthy; and that the specific circumstances of the
victim's death and the behaviour of the investigation and prosecution
authorities should not be tolerated under any circumstances.
Finally,
the applicants claimed that the possibility for them to receive
compensation from the assailants in the domestic courts was
practically non-existent given the latest developments in the
criminal proceedings, the expiration of the statute of limitation in
respect of most of the perpetrators and the evidentiary difficulties
of initiating a successful civil action for damages after so many
years.
- The
Government stated that the applicants' claims were excessive,
unsubstantiated and that they did not correspond to the size of
awards made by the Court in previous similar cases. They referred to
the judgment in the case of Nachova and Others (cited above)
where the Court had awarded the relatives of the first victim EUR
25,000 jointly for pecuniary and non-pecuniary damage and the parents
of the second victim EUR 22,000 jointly for pecuniary and
non-pecuniary damage. The Government also referred to the case of
Anguelova (cited above) where the Court had awarded the
applicant EUR 19,050 for non-pecuniary damage. They also noted that
any compensation for damages should be made on an equitable basis and
considered the applicants' claim to be arbitrarily determined.
The
Government challenged the possibility for the applicants to claim
damages on behalf of the victim's sisters, as the latter had not been
party to the proceedings before the Court, and considered that they
should not be awarded any sums in compensation. They argued that his
sisters could have joined the proceedings in their own right and, had
they done so, then they could have filed a claim for damages, such as
had been done by the relatives of the victims in the above cited
cases.
The
Government disagreed with the applicants' argument that they had no
opportunity to seek damages from the assailants at domestic level,
and referred to the civil claim filed by the applicants and the
sisters of the victim in April 2005 within the framework of the
pending criminal proceedings.
- In
respect of pecuniary damage, the Court reiterates that there must be
a causal link between the damage claimed by an applicant and the
violation of the Convention and that this may, in the appropriate
case, include compensation in respect of loss of earnings (see,
amongst others, the Barberà, Messegué and Jabardo v.
Spain (Article 50), judgment of 13 June 1994, Series A no. 285 C,
pp. 57-58, §§ 16-20, and Çakıcı v.
Turkey [GC], no. 23657/94, § 127, ECHR 1999 IV). The
Court notes that in the present case private persons were responsible
for the ill-treatment and death of the victim. Thus, although there
is a direct link between his death and the claimed loss of financial
support, the Government was not responsible for the assailants'
actions and cannot therefore be held liable to compensate the
applicants for the pecuniary damage suffered as a result.
Accordingly, the Court rejects the applicants' claim for pecuniary
damage.
- In
the context of assessing the claim for non-pecuniary damage, the
Court notes that, in respect of just satisfaction claims, Rule 60 of
the Rules of Court requires the respective party to be an applicant
and to have filed a claim to that effect. Rule 60 provides:
“1. An applicant who wishes to obtain
an award of just satisfaction under Article 41 of the Convention...
must make a specific claim to that effect.
2. The applicant must submit itemised
particulars of all claims...
3. If the applicant fails to comply with the
requirements set out in the preceding paragraphs the Chamber may
reject the claims in whole or in part.”
- Thus,
the principle is that awards can only be made to persons who are
applicants in the proceedings before the Court.
- The
Court notes, however, that awards have also previously been made to
surviving spouses and children and, where appropriate, to applicants
who were surviving parents or siblings. It has also previously
awarded sums as regards the deceased where it has found that there
had been arbitrary detention or torture before his disappearance or
death, such sums to be held for the person's heirs (see, among
others, Çakıcı [GC], cited above, § 130,
and Akdeniz and Others v. Turkey, no. 23954/94, § 133,
31 May 2001). The Court recognizes that in those cases the
balance of the awards represented compensation for the victim's own
pain and suffering at the hands of the police or security forces as a
result of substantive violations of Articles 2 and/or 3 of the
Convention. The present case relates to the ill-treatment and death
of the applicants' relative as a result of actions by private
individuals. Accordingly, only the pain and suffering of the
applicants as a result of events subsequent to their relative's death
– for which the respondent State was responsible – are
relevant when assessing the award to be made.
- Separately,
the Court notes that the victim's heirs were established soon after
his death in 1996, and included his mother, brother and three
sisters. The proceedings before the Court were initiated and
maintained by his mother and brother, but that did not restrict, bar
or hinder his three sisters from requesting to join the proceedings
and claiming to be victims of the alleged violations in their own
right. In so far as they failed to exercise their right to join the
proceedings, the Court finds that they do not satisfy the
requirements of Article 41 of the Convention and Rule 60 of the Rules
of Court, namely to be applicants who claim to be an injured party
and who have filed a valid claim for damages.
- Accordingly,
the Court, deciding on an equitable basis and having regard to awards
in comparable cases (see Anguelova, cited above, § 173
and Nachova and Others, cited above, §§ 171-72),
finds it appropriate in the circumstances of the present case to
award EUR 15,000 jointly to the two applicants, plus any tax that may
be chargeable on that amount.
B. Costs and expenses
- The
applicants claimed EUR 6,000 for 65 hours of legal work by their
lawyer before the Court, at the hourly rate of EUR 80, and for 23
hours of travelling time, at the hourly rate of EUR 40, on matters
relating to the case. They submitted an agreement on legal fees
concluded with their lawyer and a timesheet. The applicants requested
that the costs and expenses incurred should be paid directly to their
lawyer, Mr Y. Grozev.
- The
Government challenged the timesheet presented by the applicants and
the number of hours claimed to have been worked by the applicants'
lawyer in the proceedings before the Court, which they considered
excessive for the work performed. Concerning the travel expenses,
they argued that it had not been proven that any such trips had even
taken place because no tickets or receipts had been presented to the
Court. In any event, they considered the rate of EUR 40 per hour for
travelling time for the lawyer to be excessive.
- The
Court reiterates that, according to its case-law, an applicant is
entitled to reimbursement of his or her costs and expenses only in so
far as it has been shown that these have been actually and
necessarily incurred and were reasonable as to quantum. Noting the
complexity of the case, the submissions of the applicants' lawyer and
the other relevant factors, the Court considers it reasonable to
award the sum of EUR 3,500 in respect of costs and expenses, plus any
tax that may be chargeable on that amount.
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
- Decides to join to the merits the question of
the exhaustion of domestic remedies in respect of Article 2 of the
Convention;
- Declares admissible the complaints concerning
(a) the failure of the authorities to carry out a prompt, effective
and impartial investigation capable of leading to the trial and
conviction of the individuals responsible for the ill-treatment and
death of the applicants' relative, and (b) the authorities' failure
in their duty to investigate and prosecute a racially motivated
violent offence;
- Declares the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
2 of the Convention and accordingly dismisses the Government's
preliminary objection based on non-exhaustion of domestic remedies;
- Holds that no separate issue arises under
Articles 3 and 13 of the Convention;
- Holds that there has been a violation of Article
14 in conjunction with Article 2 of the Convention;
- Holds that no separate issue arises under
Article 14 in conjunction with Article 3 of the Convention;
- Holds
(a) that
the respondent State is to pay to the applicants, within three months
from the date on which the judgment becomes final according to
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) in respect of non-pecuniary damage,
payable jointly to the applicants;
(ii) EUR
3,500 (three thousand five hundred euros) in respect of costs and
expenses, payable into the bank account of the applicants' lawyer;
(iii) any
tax that may be chargeable on the above amounts;
(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 applicants' claim
for just satisfaction.
Done in English, and notified in writing on 26 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia
Westerdiek Peer Lorenzen
Registrar President
