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FIFTH
SECTION
CASE OF
VLADIMIR GEORGIEV v. BULGARIA
(Application
no. 61275/00)
JUDGMENT
STRASBOURG
16
October 2008
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 Vladimir Georgiev v. Bulgaria,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Peer
Lorenzen,
President,
Rait
Maruste,
Karel
Jungwiert,
Volodymyr
Butkevych,
Mark
Villiger,
Mirjana
Lazarova Trajkovska,
Zdravka
Kalaydjieva,
judges,
and Claudia
Westerdiek, Section
Registrar,
Having
deliberated in private on 25 September 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 61275/00) against the Republic
of Bulgaria lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Bulgarian national, Mr Vladimir Angelov
Georgiev (“the applicant”), on 16 June 2000.
- The
applicant was represented by Mr Y. Grozev, a lawyer practising in
Sofia. The Bulgarian Government (“the Government”) were
represented by their Agent, Ms M. Kotseva, of the Ministry of
Justice.
- The
applicant alleged, in particular, that he had been ill treated
in detention and that the authorities had failed to effectively
investigate his allegations in this respect.
- On
17 October 2006 the President of the Fifth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3 of the Convention).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1976 and lives in Sofia.
A. The criminal proceedings against the applicant and
his pre trial detention
- On
19 November 1998 a criminal investigation was opened against the
applicant on allegations of wilfully inflicting intermediate bodily
harm on a former colleague of his at a construction site. On 15
February 1999 he was charged and ordered to pay bail. On 18 February
1999 he appealed to the Sofia District Prosecutor’s Office,
asking for a reduction of the bail. On an unspecified date that
office granted the request, but its decision was not notified to the
applicant. As he was unaware of it, he did not pay the bail.
Accordingly, on 21 April 1999 an order was made for him to be placed
in pre trial detention. He was not notified of that order
either.
- At about 2.40 p.m. on 28 May 1999, following a visit by
a police officer to his home earlier that day, the applicant appeared
at the first district police department in Sofia. At about 5.30 p.m.
he was formally taken into custody. Several days later the
applicant’s lawyer lodged a request for his release with the
Sofia District Court. On 8 June 1999 that court made an order to that
effect and the applicant was set free on 10 June 1999.
B. The applicant’s alleged ill treatment
between 28 and 31 May 1999
- According to the applicant’s allegations, some
time after being taken into custody the applicant was taken to a room
on the fourth floor of the police department, where he saw a
uniformed and a plain clothes police officer. Shortly after that the
investigator in charge of his case, Ms T., came in and asked him to
sign certain papers relating to his pre trial detention and the
criminal charges against him. The applicant refused, whereupon she
started shouting at him. The applicant still refused to sign, as in
the papers it was stated that he did not wish to give evidence, which
was not the case. He said that the offence alleged against him was
not an arrestable one. After a verbal exchange the uniformed police
officer started kicking the applicant on the left tibia and beneath
the right knee. The plain clothes officer punched him in the face and
the chest and slapped him on the face. In the same time Ms T.
insisted that the applicant sign the papers presented to him, which
he eventually did.
- After
that another uniformed police officer entered the room and, together
with the one already present, took the applicant out. They cuffed
both of his hands to a pipe running at head level along the corridor.
He spent about two hours in this position.
- At
about 7.30 p.m. the applicant was taken to the cell block, situated
on the top floor of the police department. He was put in a cell with
three other detainees, Mr G.M., Mr T.T. and Mr E.
- On
the morning of the following day, 29 May 1999, the applicant
requested to contact his mother or a lawyer, or to be interviewed by
the investigator. However, nothing ensued. As the applicant was
persisting in his requests, on 30 May 1999 the guards apparently
became annoyed with him.
- According
to the applicant’s allegations, on the evening of 30 May 1999
he was let out of his cell together with Mr G.M. to go to the toilet.
On the way back, in the corridor, he waited for Mr G.M. to move away
from him and closer to the cell, and broke the glass of one of the
corridor’s windows. Hearing the noise, Mr G.M. turned to
see what was happening. The applicant made him a sign to move away,
and Mr G.M. went back to the cell. Then the applicant took a piece of
broken glass and cut himself on the forearms, allegedly in protest
against the way in which he was being treated in custody. Thereupon
one of the guards, sergeant R.V., came out of the guards’ room,
holding two truncheons. He hit the applicant on the forearms to make
him drop the piece of glass. Then he kicked him into the toilet and
started hitting his waist with the truncheons. After that he threw
him to the ground and started kicking him. The applicant lost
consciousness. Sergeant R.V. poured water over him to restore him to
consciousness, pulled him upright and made him strip naked. Then he
poured more water on the applicant to clean him. He put him back in
the cell naked and handcuffed him lying on the floor, with his hands
secured behind his back. The applicant spent two to three hours like
this. At about 7 p.m. chief sergeant S.S. arrived and ordered that
the handcuffs be secured in front of the applicant’s body, and
that he be dressed and covered with a blanket.
- On
the morning of 31 May 1999, some time before 9 a.m., the applicant
banged his head against the cell wall several times, allegedly to
protest against his treatment. Thereupon sergeant R.V. dragged him
out of the cell and hit his thighs with a truncheon. As a result of
his being dragged along the floor the applicant’s back was
grazed.
- Later that day the investigator in charge of the
applicant’s case, Ms T., was informed of the incident and
ordered that the applicant’s handcuffs be removed and that he
be examined by the in house doctor. As the applicant was unable
to move alone, one of his cellmates, Mr T.T., helped him go there.
The doctor, first lieutenant N.T., found that the applicant was
uncommunicative and somnolent. Later the applicant was taken to a
hospital operated by the Ministry of Internal Affairs, where he was
examined by doctor K. After that he was taken back to the detention
facility, where he remained until 10 June 1999.
- On 11 June 1999, the day following his release, the
applicant made colour photographs of his body. They showed a number
of bruises.
- On 12 June 1999 the applicant was examined by a doctor
at the Chair of Forensic Medicine and Professional Ethics of the
Sofia Medical Academy. The doctor noted the following marks on his
body: (i) a grazing scar measuring 4 to 2.5 cm on the right upper
part of the forehead, near the hair, accompanied by a very slightly
pronounced yellowish violet haematoma; (ii) a pale rose
scar of a healing wound, about 1 cm long, in the middle of the lower
part of the chin; (iii) three oval yellowish violet haematomas
with diameters from 3 to 5 cm on the chest; (iv) an area measuring 28
to 20 cm covering the lower left third of the thorax, the flank and
the buttocks, where one could observe a number of obliquely
positioned strip shaped haematomas, almost parallel to one
another, higher in the back and lower in the front; this area was
almost diffusely swollen and filled with blood, but there existed
distinct haematomas consisting of two dark strips around one light
strip, each being about 0.5 to 1 cm wide and 8 to 15 cm long; (v) a
number of yellowish violet haematomas with various shapes and
sizes (some strip shaped, others oval) on the right shoulder and
the lateral back surface of both forearms; (vi) a multitude of
pale rose strip shaped scars on the internal side of the
right forearm, along its length, and four such scars on the left
forearm; some of those on the right one were crossed by transversal
scars; the longitudinal ones, which were several millimetres wide,
ran from the elbow to the wrist joint; (vii) spotted yellowish violet
haematomas on the highest third of the right forearm; (vii) a
haematoma measuring 20 to 13 cm on the lateral surface of the upper
part of the left thigh; (ix) a similar haematoma, measuring 19 to 16
cm, on the front surface of the right thigh; (x) a haematoma
measuring 10 to 8 cm on the back surface of the right thigh; (xi) a
number of yellowish violet haematomas on both knees and on the
front surface of both legs beneath the knee, almost diffusely from
the knees to the ankles. The doctor was of the opinion that the
injuries to the applicant’s body were consistent with the blows
described by him. In his view, these injuries amounted to
intermediate bodily harm within the meaning of the 1968 Criminal Code
(see paragraph 25 below) and were the result of a number of blows
made with considerable strength and causing pain for prolonged
periods of time.
C. The applicant’s attempts to trigger the
opening of criminal proceedings against the officers who allegedly
ill treated him
- On an unspecified date the applicant complained to the
Sofia Regional Military Prosecutor’s Office and requested the
opening of criminal proceedings against the officers who had
allegedly ill treated him. After conducting a preliminary
inquiry, during which it gathered certain documents but carried out
no interviews, in a decision of 19 October 1999 a prosecutor of that
office rejected the applicant’s request. He stated that at the
time of his arrest the applicant had not had any “health related
complaints”. The prosecutor further found that when the guards
had tried to take away the piece of glass which the applicant had
used to cut his veins, he had waved it towards them and his
cellmates, which had compelled the use of force and handcuffs. He
also briefly described the banging of the applicant’s head
against the cell wall, but did not refer to any of the allegations of
beating with truncheons and kicking, and did not mention the
applicant’s injuries. He stated that the guards’ actions
had been in line with the applicable legal provisions and therefore
did not amount to a criminal offence.
- The applicant appealed to the Military Appellate
Prosecutor’s Office. In a decision of 29 December 1999 the
deputy head of that office dismissed the appeal. He stated that the
inquiry conducted pursuant to the applicant’s allegations had
been “especially thorough and comprehensive”. The
applicant had broken a window and had tried to cut his veins. When
the guards had intervened, he had put up strong resistance, including
reaching out with a piece of glass, which had driven the guards to
forcibly handcuff him. Later on he had banged his head against the
cell wall. All of this led to the conclusion that no criminal offence
had been committed by the guards.
- The applicant appealed to the Supreme Cassation
Prosecutor’s Office. In a decision of 26 January 2000 a
prosecutor of that office dismissed the appeal. He described the 30
May 1999 incident in some detail and noted that the guards had denied
beating the applicant or using force against him beyond what had been
necessary to restrain him and take the piece of glass away from him.
As regards the 31 May 1999 incident, he did not make any mention of
beating following the applicant’s banging his head against the
cell wall. He also described the applicant’s injuries, as noted
in the 12 June 1999 medical certificate, but said that they could
have been the result of guards’ subduing his resistance and
placing him on the ground. The injuries could have also been caused
by the applicant’s cellmates. There was furthermore no
indication that he had been medically examined on being taken into
custody, whereas the medical certificate presented by him did not
specify the time when the injuries had been sustained. The decision
was sent to the applicant on 1 February 2000.
- The applicant later lodged a criminal complaint with
the Sofia District Court. In a decision of 22 May 2000 the court
dismissed the complaint, holding that the facts alleged by the
applicant amounted to a publicly prosecutable offence, which made it
impossible to institute private criminal proceedings pursuant to
them.
D. The applicant’s complaints to the Ministry of
Justice and the Ministry of Internal Affairs
- On an unspecified date the applicant complained to the
Ministry of Justice. In a letter of 22 June 1999 the director of the
pre-trial detention facilities directorate of the Ministry advised
him that an internal inquiry had been carried out. It had found that
in using force against the applicant the custodial staff had acted
adequately and had not exceeded their powers. If the applicant
disagreed with this conclusion, it remained open to him to issue
proceedings under the 1988 State Responsibility for Damage Act (see
paragraph 28 below). A second complaint by the applicant resulted in
a letter dated 4 August 1999 by the same director, in which he stated
that a second check had confirmed that the guards had not used
excessive force. It invited the applicant to name the guards who had
allegedly ill treated him.
- Meanwhile, on 3 August 1999, the Ministry of Internal
Affairs wrote to the applicant, apparently in reply to a complaint.
It stated that there was no indication that the applicant had ever
been taken to the First District Police Department in Sofia.
- On 25 October 1999 the applicant wrote again to the
Ministry of Justice, requesting an investigation of the incident. On
3 November 1999 the Deputy Minister of Justice replied that sergeant
R.V. had denied hitting the applicant and had stated that he had used
force only to the extent necessary to restrain him. There was no
indication that the applicant had been subjected to degrading
treatment. This was also confirmed by the decision of the Sofia
Regional Military Prosecutor’s Office. If the applicant
disagreed with this conclusion, it remained open to him to bring an
action under the 1988 State Responsibility for Damage Act (see
paragraph 28 below).
- In reply to further complaints by the applicant, the
Deputy Minister of Justice advised him in a letter of 16 March 2000
that the matter fell within the competence of the military
prosecution authorities.
II. RELEVANT DOMESTIC LAW
A. Criminal remedies against ill treatment by
State agents
- Articles 128, 129 and 130 of the 1968 Criminal Code
make it an offence to cause minor, intermediate or grievous bodily
harm to another. Article 131 § 1 (2) of that Code provides that
if the harm is caused by police officers in the course of or in
connection with the performance of their duties the offence is
aggravated. The offence is publicly prosecutable (Article 161 of the
Code).
- Article 192 §§ 1 and 2 of the 1974 Code of
Criminal Procedure, as in force at the relevant time, provided that
proceedings concerning publicly prosecutable offences could be opened
only by a prosecutor or an investigator. They had to open an
investigation whenever they received information, supported by
sufficient evidence, that an offence might have been committed
(Articles 187 and 190 of the Code). If the information given to the
prosecuting authorities was not supported by evidence, they had to
order a preliminary inquiry to determine whether the opening of a
criminal investigation was warranted (Article 191 of the Code, as in
force at the material time).
- The offences allegedly committed by police officers
were tried by military courts (Article 388 § 1 (2) of the Code,
as in force at the relevant time). Where a case would fall within the
jurisdiction of the military courts, the preliminary investigation
was handled by military investigators and prosecutors.
B. Civil remedies against ill treatment by State
agents
- Section 1 of the Act originally called the 1988 State
Responsibility for Damage Caused to Citizens Act (Закон
за отговорността
на държавата
за вреди, причинени
на граждани
– “the SRDA”), renamed on 12 July 2006 the 1988
State and Municipalities Responsibility for Damage Act (Закон
за отговорността
на държавата
и общините за
вреди), as in force at the
material time, provided that the State was liable for damage suffered
by individuals as a result of the unlawful acts of civil servants
committed in the course of or in connection with the performance of
their duties. The State’s liability is strict, that is, no
fault is required to be established on the part of the civil servants
in the commission of these acts (section 4 in fine of the
Act).
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLES 3 AND 13 OF THE
CONVENTION
- The
applicant complained under Article 3 of the Convention that he had
been ill treated by the staff of the detention facility where he
had been kept between 28 May and 10 June 1999.
- The
applicant also complained under Article 3 of the Convention that the
authorities had not properly investigated his allegations of
ill treatment. He additionally complained that he had not had
effective remedies in this respect, in breach of Article 13 of the
Convention.
- Articles
3 and 13 provide as follows:
Article 3 (prohibition of torture)
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
Article 13 (right to an effective remedy)
“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. Admissibility
- The Court considers that this part of the application
is not manifestly ill founded within the meaning of Article 35 §
3 of the Convention, nor inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The alleged ill-treatment
- The
applicant submitted that the medical report drawn up after his
release and the prosecutors’ decisions not to open criminal
proceedings made it clear that he had been ill treated while in
custody. While one of the bruises on his back could have been caused
by efforts to restrain him, the rest were visibly the result of
brutal and unnecessary force applied against him by the guards, long
after they had overcome his initial resistance.
- The
Government did not submit observations.
- The
Court first observes that the applicant’s very numerous and
widespread injuries (see paragraph 16 above) were clearly indicative
of treatment running counter to the prohibition set out in Article 3
of the Convention.
- There
is no indication in the file that the applicant was injured when he
was taken into custody. While he was apparently not medically
examined at that point in time, the authorities noted that he had no
“health related complaints” (see paragraphs 17
above). The injuries were noted by a medical doctor two days after
his release, and were apparently visible on photographs taken one day
after his release (see paragraphs 15 and 16 above). Where a person,
when taken in custody, is in good health, but is found to be injured
at the time of release – as in the case at hand –, it is
incumbent on the State to provide a plausible explanation how these
injuries were caused (see, among many other authorities, Tomasi v.
France, judgment of 27 August 1992, Series A no. 241 A, pp.
40 41, §§ 108 11; Selmouni v. France [GC],
no. 25803/94, § 87, ECHR 1999 V; and Toteva v. Bulgaria,
no. 42027/98, § 50, 19 May 2004). Neither the domestic
authorities nor the Government in the proceedings before the Court
tried to provide such an explanation, or to
produce appropriate evidence that could cast doubt on the account
given by the applicant. On the contrary, the decisions of the
prosecution authorities make it clear that the guards had used force
to restrain the applicant. The Court therefore comes to the
conclusion that the injuries suffered by the applicant were the
result of treatment for which the respondent State bears
responsibility.
- It
remains to be determined whether or not some or all of these injuries
were the result of force strictly necessary to restrain the applicant
while he was enraged on 30 May 1999 (see, mutatis mutandis,
Rehbock v. Slovenia, no. 29462/95, § 76, ECHR
2000 XII). On this point, the Court observes that they were
numerous and widespread. While some of them – for instance,
those to his back and forearms – may have been the inevitable
result of the guards’ effort to make him drop the piece of
glass and immobilise him, a number of others – for instance,
those to his thorax, flanks, buttocks, thighs and legs – appear
to be the result of random blows, probably with truncheons, made with
considerable force (see paragraph 16 above). According to the
applicant’s uncontroverted account, most of these blows were
administered while he was lying defenceless on the ground after being
subdued. The Court therefore finds that the force used against him
was clearly excessive, both in intensity and duration. According to
its settled case law, any recourse to physical force in respect
of a person deprived of his liberty which has not been made strictly
necessary by his own conduct diminishes human dignity and is in
principle an infringement of the right set forth in Article 3 (see
Ribitsch v. Austria, judgment of 4 December 1995, Series
A no. 336, p. 26, § 38; and Toteva, cited above, § 55).
- There
has therefore been a violation of Article 3 of the Convention.
2. The effectiveness of the investigation
- The
applicant submitted that the inquiry which had served as a basis for
the prosecution authorities’ decision not to open criminal
proceedings against the guards had been deficient in several
respects. It had been based solely on documents issued by the police.
Neither the guards nor the applicant’s cellmates had been
interviewed. Finally, the prosecutors had made contradictory findings
of fact and had not explained the origin of all the applicant’s
injuries.
- The
Government did not submit observations.
- The
Court considers that the medical evidence and the applicant’s
complaints together raised a reasonable suspicion that his injuries
could have been caused by the custodial staff of the place where he
was kept.
- Where
an individual raises an arguable claim that she has been seriously
ill-treated by the police in breach of Article 3, that provision,
read in conjunction with the State’s general duty under Article
1 of the Convention to “secure to everyone within their
jurisdiction the rights and freedoms defined in ... [the]
Convention”, requires by implication that there should be an
effective official investigation. This investigation should be
capable of leading to the identification and punishment of those
responsible (see Toteva, cited above, § 62, with further
references).
- In
this connection, the Court observes that the prosecution authorities
did carry out an inquiry following the applicant’s allegations.
However, it appears flawed in several respects. Firstly, it does not
seem that any of the participants in, or the eyewitnesses to, the
incidents of 28, 30 and 31 May 1999 – the officers and the
applicant’s cellmates – were interviewed. Secondly, no
medical documents were gathered and no medical doctors – for
instance, first lieutenant N.T. and doctor K., who examined the
applicant while he was in custody (see paragraph 14 above) –
were interviewed either. Thirdly, the investigation did not
comprehensively account for all of the applicant’s numerous and
widespread injuries. They were not even mentioned by the prosecutors
of the Sofia Regional Military Prosecutor’s Office and the
Military Appellate Prosecutor’s Office. The prosecutor at the
Supreme Cassation Prosecutor’s Office described them, but
surmised, without giving any reasons, that all of them could have
been the result of the applicant’s being restrained or to a
beating by his cellmates. Finally, the prosecution authorities’
decisions did not even mention the alleged beating on 28 May 1999
(see paragraphs 17 19 above).
- The
same goes for the internal inquiries by the Ministry of Justice,
which appear even more cursory and which partly relied on the
prosecution authorities’ findings (see paragraphs 21 24
above).
- An
action under the 1988 State Responsibility for Damage Act, suggested
twice to the applicant as an avenue of redress by the Ministry of
Justice, would have been premised on the State’s strict
liability and was capable of resulting only in an award of
compensation (see paragraph 28 above), but not in the punishment of
those responsible for the ill treatment. It cannot therefore be
considered as satisfying the procedural requirements of Article 3
(see Assenov and Others v. Bulgaria, judgment of 28 October
1998, Reports of Judgments and Decisions 1998 VIII, p.
3286, § 86 in fine; and Krastanov v. Bulgaria, no.
50222/99, § 60, 30 September 2004).
- In
view of the foregoing, Court finds that there has been a violation of
Article 3 of the Convention in this respect as well.
- Having
regard to this conclusion, the Court sees no need to make a separate
finding under Article 13 (see, mutatis mutandis, Angelova
and Iliev v. Bulgaria, no. 55523/00, § 106, ECHR 2007 ...,
citing further authorities).
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
- The
applicant complained under Article 5 § 1 (c) of the Convention
that his deprivation of liberty between 28 May and 10 June 1999 had
been unlawful and arbitrary.
- Article
5 § 1 (c) provides:
“Everyone has the right to liberty and security of
person. No one shall be deprived of his liberty save in the following
cases and in accordance with a procedure prescribed by law:
...
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so[.]”
- The
Court observes that the applicant was taken into custody on 28 May
1999 and released on 10 June 1999 (see paragraph 7 above). His
application to the Court was lodged on 16 June 2000, more than six
months after that. His efforts to trigger the opening of criminal or
disciplinary proceedings against the officers who had allegedly
ill treated him, being only able to lead to these officers’
criminal conviction or disciplinary punishment, did not amount to a
remedy for his grievance under Article 5 § 1 (c). The
decisions given by the authorities in response to his requests that
the officers be criminally or otherwise prosecuted have therefore no
bearing on the running of the six month time limit in
respect of this complaint (see Ivan Vasilev v. Bulgaria, no.
48130/99, § 83, 12 April 2007).
- It
follows that this complaint has been introduced out of time and must
be rejected in accordance with Article 35 §§ 1 and 4 of the
Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 767 euros (EUR) in respect of pecuniary damage. He
submitted that as a result of his detention he was unable to go to
work and was dismissed disciplinarily by his employer. As a result of
this dismissal he was deprived of one month’s salary and
prevented from applying for unemployment benefits. Following his
dismissal, he remained unemployed for six months. His monthly salary
before his dismissal was 213.86 Bulgarian levs (BGN) (equivalent to
EUR 109.67). He therefore claimed BGN 1497.02 (or EUR 767.70), which
amounted to seven monthly salaries.
- The
applicant further claimed EUR 8,000 in respect of non pecuniary
damage. EUR 6,000 of that amount was for the pain and suffering
endured by him on account of his ill-treatment and EUR 2,000 for the
mental suffering brought about by his unlawful detention.
- The
Government did not comment on the applicant’s claims.
- The
Court first notes that an award of just satisfaction can only be
based on breaches of Articles 3 of the Convention arising from the
applicant’s ill-treatment and the lack of an effective
investigation.
- With
regard to the claim in respect of pecuniary damage, the Court
observes that the damage suffered bears no causal relation with the
breaches of Article 3 of the Convention, but solely with the alleged
breach of Article 5 § 1. However, the Court made no
findings on the merits of this claim, as it declared it inadmissible.
Consequently, it makes no award under this head.
- For
the same reason, the Court makes no award in respect of the
non-pecuniary damage flowing from the alleged breach of Article 5 §
1.
- On
the other hand, the Court accepts that the applicant has suffered
considerable pain and suffering on account of his ill-treatment in
custody. In addition, the lack of an effective investigation in this
regard must have caused him anguish and frustration. Having regard to
the awards made in previous similar cases and to the circumstances of
this case, the Court decides to award the entire amount claimed by
the applicant under this head (EUR 6,000), plus any tax that may be
chargeable.
B. Costs and expenses
- The
applicant sought the reimbursement of EUR 2,800 incurred in lawyers’
fees for forty hours of work on the proceedings before the Court. He
submitted a fees agreement between him and his lawyer and a
time sheet. He requested that any amount awarded by the Court
under this head be made directly payable to his lawyer, Mr Y. Grozev.
- The
Government did not comment on the applicant’s claim.
- According
to the Court’s settled case law, applicants are entitled
to the reimbursement of their costs and expenses only in so far as it
has been shown that these have been actually and necessarily incurred
and are reasonable as to quantum. In the present case, having regard
to the information in its possession and the above criteria, and
noting that part of the application was declared inadmissible, the
Court considers it reasonable to award the sum of EUR 2,400, plus any
tax that may be chargeable to the applicant. This amount is to be
paid directly into the bank account of the applicant’s
representative, Mr Y. Grozev.
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
- Declares the complaints concerning (i) the
applicant’s alleged ill treatment and (ii) the
effectiveness of the investigation in this respect admissible and the
remainder of the application inadmissible;
- Holds that there has been a violation of Article
3 of the Convention on account of the applicant’s
ill treatment;
- Holds that there has been a violation of Article
3 of the Convention on account of the lack of an effective
investigation;
- Holds that it is not necessary to examine the
complaint under Article 13 of the Convention;
- 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 Bulgarian levs at the rate applicable at the date of
settlement:
(i) EUR
6,000 (six thousand euros), plus any tax that may be chargeable, in
respect of non pecuniary damage;
(ii) EUR
2,400 (two thousand four hundred euros), plus any tax that may be
chargeable to the applicant, in respect of costs and expenses, to be
paid directly into the bank account of the applicant’s
representative, Mr Y. Grozev;
(b) that
from the expiry of the above mentioned three months until
settlement simple interest shall be payable on the above amounts at a
rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 16 October 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Peer Lorenzen
Registrar President
