EUROPEAN COURT OF
HUMAN RIGHTS
(Application no. 38361/97)
JUDGMENT
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 Anguelova v.
The
European Court of Human Rights (First Section), sitting as a Chamber composed
of:
Mr C.L. Rozakis, President,
Mr G. Bonello,
Mr P. Lorenzen,
Mrs N. Vajic,
Mrs S. Botoucharova,
Mr V. Zagrebelsky,
Mrs E. Steiner, judges,
and Mr E. Fribergh, Section
Registrar,
Having
deliberated in private on
Delivers
the following judgment, which was adopted on the last-mentioned date:
PROCEDURE
1. The
case originated in an application (no. 38361/97) against the
2. The
applicant, who had been granted legal aid, was represented before the Court by Mr Y. Grozev, a lawyer practising in
3. The
applicant alleged that her son had been ill-treated by police officers and had
died as a result, that the police had failed to provide adequate medical
treatment for her son's injuries, that the authorities had failed to carry out
an effective investigation, that her son's detention had been unlawful, that
she did not have an effective remedy and that there had been discrimination on
the basis of her son's Rom (Gypsy) origin.
The
applicant relied on Articles 2, 3, 5, 13 and 14 of the Convention.
4. The
application was transmitted to the Court on
5. The
application was allocated to the Fourth Section of the Court (Rule 52 § 1
of the Rules of Court).
6. By
a decision of 6 June 2000, having regard to all the submissions of the parties
on the admissibility and merits of the case, the Chamber constituted within
that Section in accordance with Rule 26 § 1 declared the application
admissible.
7. On
8. The
Chamber constituted within that Section decided, after consulting the parties,
that no hearing on the merits was required (Rule 59 § 2 in fine). The
applicant, but not the Government, filed observations on the merits (Rule 59 §
1).
THE FACTS
I. THE
CIRCUMSTANCES OF THE CASE
9. The
applicant, Mrs Assya Anguelova, is a Bulgarian national who was born in 1959 and
lives in Razgrad.
10. On
The
applicant describes herself and her late son as belonging to the ethnic group
of Roma (Gypsies).
A. Evidence about the whereabouts of Mr Zabchekov on
11. According
to the statements of several witnesses, on
At
about
All
the witnesses (the owner of the bar, the person for whom Mr Zabchekov had worked that day, his sister and her
boyfriend, and Mr Zabchekov's
father, who was at home when his son dropped in on his way to the bar) were
unanimous that he had been in good health, that he had no visible injuries on
his body, that he had not been involved in any quarrel or fight, and that he
had consumed alcohol.
B. The chase in
12. At
about midnight on 29 January 1996 a Ms I.A., who lived in an apartment block at
Beli Lom Street in Razgrad, noticed from her balcony a man later identified as
Mr Zabchekov hanging around
by parked cars, bending over and “doing something”. Ms I.A. telephoned a neighbour, Ms I.M. The two women shouted at Mr Zabchekov from their balconies
to ask him what he was doing. At that moment Sergeant Mutafov
(“C.”), a police officer who was not on duty that day, and a young man (“D.”),
both of whom also lived in the same apartment block, were passing by in the
street and were alerted by their neighbours.
13. Mr Zabchekov attempted to run
away, and C. ran after him. The chase apparently continued for a minute or two.
Then D. and his two neighbours saw C. appearing from
around the corner, holding Mr Zabchekov and leading him back to the entrance of the
building. The witnesses stated that there had been snow on the ground.
14. C.
later stated that while trying to run away Mr Zabchekov had slipped and fallen down but had quickly stood
up again. This was confirmed by Ms I.A. and Ms I.M., who had been watching from
their balconies. They explained that Mr Zabchekov had fallen on a patch covered by grass. However,
D., who had remained on the street and had also observed the incident, stated
that he had not seen Mr Zabchekov
falling at any moment before his arrest. He repeated that statement at a
confrontation with the other witnesses.
15. C.
was the only witness of the events between the moment when Mr Zabchekov and he had turned around the corner and the
moment when they had reappeared in front of the building in
16. Sergeant
Dimitrov (“G.”), one of the police officers who
arrived later, stated as follows: “When we arrived on the spot [C.] told us
that while he had been trying to arrest Mr Zabchekov the latter had been running away and had fallen
two or three times and, had he not fallen, C. would not have been able to catch
up with him.”
C. Events between Mr
Zabchekov's arrest and the arrival of the police
17. The
witnesses were unanimous that while C. had been leading Mr Zabchekov back to the entrance of the apartment building,
the latter had slipped and fallen. There were discrepancies as to precisely how
that had happened. Ms I.M., who observed the incident from her balcony, stated
that when C. and Mr Zabchekov
had reappeared from behind the corner of the building, the latter had slipped,
fallen and rolled over. D. stated, however, that Mr Zabchekov had slipped on his leg and had fallen on his
buttocks. C. maintained that Mr Zabchekov
had in fact only slipped but had not fallen, because he had been holding him.
18. C.
stated that he had not hit Mr Zabchekov
and had not seen anyone hitting him. That was confirmed by Ms I.A. and Ms I.M.
The latter, who was also the owner of one of the cars in the car park,
clarified that she had indeed seen Mr Zabchekov rolling on the ground when C. was leading him
back after the chase, but stated that she had not seen anyone kicking him or
beating him. D. did not mention whether he had seen anyone hitting Mr Zabchekov.
19. C.
also stated that when he had been in close contact with Mr Zabchekov after arresting him he had not noticed any trace
of blood or any grazes on his face. He added that Mr Zabchekov's hair had covered part of his forehead and that
the colour of his face had been dark. D. stated that
he had not noticed any blood or grazing on Mr Zabchekov's face. He added that the latter had smelled of
alcohol.
20. Having
apprehended Mr Zabchekov,
C. asked Ms I.M. to call the police, which she did at about
21. C.,
D. and Mr Zabchekov waited
in the entrance of the apartment building, apparently for about ten or twenty
minutes. It appears that Ms I.A., who stayed on her balcony, did not have a
view of the entrance to the building where C., D. and Mr
Zabchekov were waiting.
22. The
witnesses' statements contain few details as to whether there had been any kind
of verbal exchange between Mr Zabchekov
and any of them before the arrival of the police. Some of the witnesses stated
that Mr Zabchekov had
been lisping something barely comprehensible. According to Ms I.M., who was
watching from her balcony, Mr Zabchekov
had repeated several times that he had been drunk. Ms I.A., Ms. I.M. and C.
stated that when Mr Zabchekov
had fallen on the ground after being arrested C. had told him: “Get up, I won't
drag you.” D. stated that he had not heard any such words being uttered. None
of the witnesses' statements indicates whether C. or D. spoke with Mr Zabchekov during the time when
they were alone with him at the entrance of the apartment building.
23. In
the statement he gave on
D. The arrival of
the police at Beli Lom
Street
24. When
the telephone call was received at the local police station a patrol car with
two police officers, Sergeants Penchev (“A.”) and Kolev (“B.”), was dispatched to the address. When they
arrived they saw C. and Mr Zabchekov
at the entrance of the apartment block. D. was also standing nearby.
25. A.
recognised Mr Zabchekov, whom he knew as a suspect in several pending
theft investigations, and addressed him by name. He handcuffed him. A. and some
of the other police officers later asserted that at that moment A. had warned
the others to be careful as Mr Zabchekov
had had “an illness related to his head”.
26. Another
police car, with three police officers, Sergeants Ignatov
(“E.”), Georgiev (“F.”) and Dimitrov
(“G.”), arrived shortly afterwards. The officers then proceeded to search the
area for evidence of attempts by Mr Zabchekov to break into cars. At some point A. led Mr Zabchekov to one of the cars
which appeared to have been broken into and asked him whether he had been
trying to steal anything. Mr Zabchekov
allegedly denied this. He was then handcuffed to a small tree, whereupon the
police officers continued to search the area. Having identified two cars which
had been broken into, the police officers rang the owners' doorbells. One of
them came out and went to see the damage done to his car. At that time Mr Zabchekov remained
handcuffed to the tree.
27. The
only witnesses who gave details about the events between the police's arrival
and their departure with Mr Zabchekov
were the police officers on duty. Ms. I.A., and D.
merely stated that the police officers had searched the area. C. stated that he
had gone to alert the owners of the cars. He had only seen that at a certain
point Mr Zabchekov had been
with the police officers at the car park, where his colleagues had been
comparing the soles of Mr Zabchekov's
shoes with traces visible in the snow. One of the car owners was questioned,
but only in respect of the damage caused to his car, by a police officer who
visited the site later, at about 11 a.m. on 29 January 1996.
28. According
to some of the police officers, at some point when they were searching the area
they had noticed Mr Zabchekov
lying or sitting on the ground. A. stated that at that point he had released Mr Zabchekov from the tree,
placed him on the back seat of the police car and handcuffed both his hands.
All the police officers who were present in
E. Events after Mr
Zabchekov's arrival at the police station
29. At
about
The
sergeant on duty, H., stated that he had seen A. and B. enter the police
station with Mr Zabchekov
walking between them. The latter's hands had been handcuffed behind his back.
A. and B. had been holding him by the arms and leading him in. Mr Zabchekov had been put in
office no. 1 at the police station. A. stated that at that point he had removed
the handcuffs from the boy.
30. No
written order for Mr Zabchekov's
detention was issued.
31. According
to the statements of A., B. and H., Mr Zabchekov stayed in office no. 1 with B. and H., while A.
went to report to the senior officer on duty, Colonel Iordanov
(“I.”). H. further stated that at that moment he had noticed a bruise on Mr Zabchekov's eyebrow. A. and B.
did not mention any injury. H. also stated that Mr Zabchekov's clothes had been wet. They all noticed that Mr Zabchekov had been drunk and
lisping.
32. H.
stated that Mr Zabchekov
had fallen asleep soon afterwards, on a chair in the hallway, and had been
snoring. At about
33. J.
stated that, in accordance with the duty schedule, he had slept on the premises
of the police station until
34. At
approximately the same time H. or J. had alerted
35. A.
and B. stated that at
36. Dr
Mihailov later stated that at about
37. Dr
Mihailov examined Mr Zabchekov at the police station and advised that he should
be taken to hospital as his pulse rate was low. Mr Zabchekov was driven to the hospital in the ambulance, with
A. and B. following in their police car. On their arrival A. and B. helped to
move Mr Zabchekov to
the hallway in front of the office of the physician on duty. According to the
statements of A. and B., when Mr Zabchekov
was examined several minutes later by Dr Ivanova, the
internist on duty, there had followed a heated discussion between her and Dr Mihailov. The police officers had then been informed that Mr Zabchekov had died.
38. B.
stated that Dr Ivanova had said to him and his
colleague: “You must have known Mr Zabchekov's condition”, and that she had insisted that she
had not seen him breathing.
39. Dr
Mihailov stated that in the police station he had
noticed bruises on Mr Zabchekov's
chest and that at that time the boy had still been alive but had been
unconscious with a weak pulse.
Dr
Mihailov had then asked the police officers how long
the boy had been in such a condition. The police officers had replied: “He was
brought to the police station in that condition”.
40. Dr
Ivanova stated that at about
F. The register kept at the Razgrad police station
41. According
to normal practice, all detentions are recorded in a register kept at the
police station. The register contains a series of entries organised
in columns: the number assigned to the detainee, the name of the officer
entering information into the register, the name of the detainee, the reasons
for detention, the action taken and the time of release. Information
corresponding to each detainee is entered in chronological order.
42. At
the Court's request the Government submitted a copy of the Razgrad
police station's register for
43. The
register does not contain a separate column recording the time of detention. In
respect of some of the detainees listed on the same page the time of detention
is mentioned together with the date. In respect of the “unidentified person”,
as with some of the other detainees listed on the same page, there is no
mention of the time of detention in the column indicating the date. However,
immediately after the words “unidentified person”, there appears, spread over
two columns and two lines, the entry “29 I 96, 01.°°”.
A visual examination of the copy of the register shows that the figure “1.°°” has been written over a figure which, as far as
legible, had originally read “3.°°” or “5.°°”.
44. It
can be also observed that the registration numbers on the same page have been
written over. From the copy provided by the Government it is difficult to see
the original numbers that were altered. Nevertheless, it can be clearly seen
that there are equal spaces between each of the entries except the numbers “72”
and “73”, between which there is a significantly smaller space.
45. The
entry under number 72 for the detention of an unidentified person states that
that person was brought to the police station by A. On the right-hand side of
the same line there appears a signature which, in so far as it is legible,
appears to be that of Colonel I.
46. In
the course of the investigation
G. Investigation by the general prosecution
and investigation authorities
47. Early
in the morning of
Towards
the end of his hand-written report C. stated, without any apparent link to the
surrounding text: “The person whom I apprehended was swarthy (Gypsy)”
[">78 :>3>B> 704J@60E 15H5 <C@302
(F830=8=)].
48. The
head of the local police opened file ZM-I no. 128 which contained a summary of
the events, the reports of seven police officers and the written statements by
D. and one of the owners of the cars which Mr Zabchekov had allegedly tried to break into.
Also
early in the morning of
49. According
to the applicant, at
50. On
51. On
52. On
“What
were the causes of Zabchekov's death? Were there any
traumatic injuries on Zabchekov's body? Did they have
any causal relation to the death? How were the injuries inflicted? How long was
the period between the infliction of the lethal injury and the death and was it
possible, as witnesses claimed, that Zabchekov was conscious until
53. The
autopsy was carried out on
54. In
their report, dated
55. The
external inspection of the body revealed, inter alia:
“At
the outer end of the left eyebrow, over the orbital rim, a superficial wound of
longish shape, measuring 1 cm by 0.4 cm, with slightly uneven and grazed edges,
and covered by a thin brownish scab. The soft tissue around the wound is
slightly swollen, the skin being of bluish-purple colour.
The eyeball of the left eye is slightly protruded (outwardly)...
A
slight surface scar 3.5 cm long, with mild bruising ... on ... the left
wrist...
Two
surface bruises measuring 7.5 cm by 0.5 cm and 3.5 cm by 0.6 cm, of brownish colour, covered by a reddish scab on the right wrist...”
56. In
the concluding part of the report the experts summarised
the injuries on Mr Zabchekov's
body as follows:
“[1.] Skull
and cerebral trauma: Superficial lacerated contusion (a deep bruise) located on
the outer side of the left eyebrow along its orbital rim; haematomas
in the skin and the soft tissue around this wound and on the left eyelid,
fracture of the back wall of the left 'eye bone' reaching its lower external
side, with a bow-like fissure under the external injury described above;
epidural haematoma on the left side (haemorrhage between the brain and the skull bones – 110 ml;
epidural oedema ... [identified as the cause of the
death].).
[2.] Haematoma in the skin,
spotted in a characteristic manner, and haematoma in
the soft tissue on the right side of the chest, along the anterior axillary line.
[3.] Surface skin grazes on the right side of the
forehead and on the upper surface of the left wrist with a limited haematoma in the soft tissue under the skin.
[4.] Haematoma of an oval
shape and diameter of 0.5 cm on the mucous membrane of the left lower lip.
[5.] Two strip-like surface bruises on the skin of
typical shape, and haematoma in the soft inner
tissue, in the area of the wrist joint of the right hand.”
57. The
experts further concluded:
“[The
death was caused by] accumulated epidural cerebral haematoma
on the left-hand side of the forehead, containing 110 millilitres
of blood, followed by a cerebral oedema, with wedging
of the cerebellar tonsils into the foramen magnum;
this oedema led to the suppression and detachment of
vital brain centres (those of breathing and heart
activity, which in turn caused a pulmonary oedema),
and was the direct cause of the death.”
58. Addressing
the question of the manner in which the injuries had been inflicted, the
experts stated:
“1. The injury in the area of the left orbital rim
and the left eyeball and the epidural haematoma were
caused by a blow by, or against, a blunt object, or an object with a blunt
edge, [which had] a delineated [limited] and uneven surface. The blow was
sudden and sufficiently strong. It caused the fracture of the back wall of the
left 'eye bone' reaching its lower external side (furthermore, the skull bones
are 0.2 cm thick);
2. [The
injury to the right side of the chest was caused by] a blow by, or against, a
hard blunt object, or an object with a blunt edge, having a larger impact
surface. The marks in this area are spotted in a manner characteristic of an imprint
of the victim's clothes.
3. [The
injuries to the right side of the forehead and to the wrists were the result
of] blows, or pressing, by or against hard edged objects. [The injury to the
left part of the lower lip was caused by] a blow by or against a hard blunt
object having a delineated [limited] surface.”
59. The
experts also stated that in cases of epidural haematoma
of the kind Mr Zabchekov
had suffered there was characteristically a lucid interval of 4 to 6 hours
during which no visible signs would be displayed, except that
“the victim gradually becomes feeble, apathetic and sleepy,
after which he falls into a coma and dies – as happened in the present case
(during the period between
The
report concluded that Mr Zabchekov's
death had been inevitable in the absence of urgent surgical intervention.
60. The
laboratory analysis found alcohol concentration of 1.42 parts per thousand in Mr Zabchekov's blood and 2.40
parts per thousand in his urine, corresponding to a medium level of alcohol
intoxication.
61. According
to the applicant, in the morning of
According
to the applicant, during this meeting Mr Neshev asserted that her son had been taken to hospital,
omitting the fact that he had been in police custody. When asked how Mr Zabchekov's skull could have been
fractured as a result of his fall, Mr Neshev had allegedly explained that the autopsy had found
an “abnormally thin skull”.
62. In
the afternoon of
63. On
31 January and
64. On
31 January 1996, by order of the regional prosecutor, Ms. Hadzhidimitrova, the investigation was transferred to the
Regional Military Prosecutor's Office (******* ****** ***********). That
decision was based on the finding that Mr Zabchekov had died after having been in police detention.
The regional prosecutor stated, inter alia:
“...
for several hours immediately preceding [his] death, the minor Zabchekov, apprehended at 1 a.m. on 29 January 1996 while
attempting to steal car parts, was taken by [police] officers ... and placed
within the premises of the unit on duty in order to restrict his freedom of
movement. Therefore, although he was not detained pursuant to section 35 (1) in
conjunction with section 33 (1) (1) of the National Police Act (***** **
************ *******), as a matter of fact Zabchekov
was forcibly held in the police station for about 3 hours and in the course of
his stay [there]... his health condition suddenly deteriorated, and he lost
consciousness”.
H. Investigation by the military
prosecution and investigation authorities
65. On
During
the following weeks the military investigator conducted new examinations of the
police officers involved, questioned five persons who had spent the afternoon
and evening of
66. Two
of the police officers, Sergeant Penchev (A.) and
Sergeant Georgiev (F.), mentioned Mr Zabchekov's ethnic origin in
their oral evidence to the military investigator.
A.
stated that when he had arrived at
In
his statement F. referred to the applicant's son as “the Gypsy” (three times),
“the arrested” (seven times) and “Zabchekov” (two
times).
67. On
On
68. On
69. On
70. On
17 or
“1. What were the injuries Zabchekov
suffered? What was the cause of the death?
2. In
what manner were the injuries sustained and by how many blows could they have
been caused? Could the injuries have been caused by consecutive falls (in
accordance with the witnesses' statements and the findings of the investigation
reconstruction as recorded on video), or were they the result of direct blows?
3. When
were these injuries inflicted?
4. What was Anguel Zabchekov's blood alcohol concentration at the time of his
arrest, at about
71. On
On
On
72. On
73. The
experts reaffirmed the conclusion that Mr Zabchekov's death had been caused by epidural oedema resulting from a skull fracture. They also
stated, inter alia, that the fatal injury
could have been inflicted by a kick, a punch or a blow by a blunt object, or
also by a fall and a collision against a “flat broad surface” (****** ******
**********). They noted that the autopsy had not recorded any morphological
data to allow the identification of the object which had caused the injuries.
The
second report indicated that the blow which had caused the skull fracture had
not been very strong. That conclusion was based on the “particular features of
the skull structure (as witnessed by the X-ray photographs enclosed and the
thickness as described [in the autopsy report])”.
74. Contrary
to the first medical report, which had stated that the interval between the
skull injury and Mr Zabchekov's
death had been approximately four to six hours, the report of the five experts
concluded:
“The
haematoma ... which caused the death of Zabchekov,
had been present for at least ten hours before the time of death. The basis for
this conclusion is the appearance of the haematoma
(blood clot of dark red colour), which is clearly
visible on the photographs attached to the file. Clots of that kind, without
the presence of liquid blood, are formed during a period of more than ten hours
from the moment when they were caused. During this period the patient's
condition is usually characterised by the so-called
'lucid interval' – the time during which they do not display visible warning
signs. Their health gradually deteriorates ... they develop a headache, speech
disturbances and problems of coordination of movement, [they] become unstable
and sleepy, they stagger, etc. until they fall into a coma.”
75. The
photographs relied upon by the experts were taken at the time of the autopsy,
which began at
76. The
experts also found that in view of the amount of alcohol found in Mr Zabchekov's blood, the
symptoms resulting from the head injury had been masked by the effects of
alcohol.
77. The
report of the five experts also dealt with the other injuries to Mr Zabchekov's body:
“The
haematoma on the right side of the chest is the
result of a blow by or against a flat object with a broad hitting surface,
which could have taken the form of a kick, a fall and a collision against a
larger object and other objects. The general appearance of the bruise
corresponds to the imprint of the clothes of the deceased, which indicates that
the blow was inflicted through the clothes... The bruises and injuries to the
right side of the forehead, the two wrist joints and the lower lip are the
result of the use of hard, blunt and/or edged objects with a limited hitting
surface. The characteristics of the injuries to the two wrist joints make it
possible to conclude that they were caused when the handcuffs were put on, in
accordance with the available information...”
78. On
79. On
80. On
81. On
“[A]part
from the physical force used during the arrest of Zabchekov
for attempting to steal from cars, there is no evidence that any violence was
used against him by police officers, whether ... inside or outside the ...
police station. Furthermore, the firm conclusion of the report of the five
experts, who are highly qualified in their field, is that the lethal injury was
caused more than ten hours prior to the death.”
82. It
was also decided to return the case to the Regional Prosecutor's Office in Razgrad, which was competent to deal with the question
whether a criminal act had been committed by a person other than a police
officer.
I. Additional investigation by the general
prosecution and investigation authorities
83. On
84. The
additional investigation entailed the examination of the applicant and six other
witnesses on
85. On
23 and
86. The
applicant complained to the Chief Public Prosecutor's Office (****** ********).
She stated, inter alia, that the prosecutors
had consistently failed to explain why the police had not taken proper care of Mr Zabchekov following his
arrest.
87. On
88. On
89. By
an order of
90. The
decision noted the findings of the military prosecutors,
in particular those concerning the skull fracture, and confirmed them. In
respect of the other bodily injuries, the prosecutor stated that they had not
placed Mr Zabchekov's life
in danger.
The
decision also mentioned that when he had been taken to the police station Mr Zabchekov had been in good
health.
91. On
J. Other evidence submitted by the parties
92. The
applicant has submitted four colour photographs of the
dead body of Mr Zabchekov
and a photograph of the jacket which he was wearing before his death. The
photographs were taken by journalists on
93. Two
of the photographs are of Mr Zabchekov's
face. The hair covers half of the forehead. Above and over the left eyebrow can
be seen a bruise of purple-bluish colour. The left
eyelid is of a bluish colour. A bruise can also be
seen on the lips, on the left side of the mouth.
94. On
two other photographs a bruise of purple colour can
be seen on Mr Zabchekov's
chest, on its right side, partly under the right armpit. Wounds are visible on Mr Zabchekov's right wrist.
95. On
an unspecified date the applicant, acting through the European Roma Rights
Centre, a non-governmental organisation based in
Budapest, solicited the opinion of Professor Jorgen Thomsen, State Pathologist,
Institute of Forensic Medicine, University of Southern Denmark, Odense, a member of the United Nations Standing Team of
Forensic Experts. Professor Thomsen gave a written opinion dated
Professor
Thomsen stated, inter alia:
“An
epidural haematoma is usually caused by a fall
against a hard surface or a strong blow with a blunt object. It is well known
that a fall against a hard surface will often leave so-called contre-coup lesions. It is regrettable that
the presence or absence of such lesions have not been
mentioned. It has been mentioned that the deceased had a thin skull. In my
opinion that is not an apologising factor in cases of
interpersonal violence, as it is usually not known if a skull is thick or thin
and it is inherent in the possible effects of violence that a person may have a
thin skull. Together with the epidural haematoma
there is usually a fracture (fissure) in the temporal bone and a rupture of the
middle meningeal artery. The haemorrhage
is thus arterial. It is in the beginning limited by the attachment of the dura to the inside of the bone. There is thus often a lucid
interval that may last several hours, but often the interval is not longer than
a couple of hours. If the traumatic lesion involves the brain with a concussion
or contusions there is usually not a lucid interval.
I
agree with the two forensic reports that the cause of death was the epidural haematoma and that it was caused by one of the types of
traumas mentioned. It may well have happened before the deceased was arrested,
but it can in no way be excluded that he sustained the fatal lesion during his
stay in the police centre. I do not agree with the statement that there was a
lapse of 10 hours from the trauma until death. It was based on the appearance
of the blood clot. It is known that the blood after death can take various
forms and even after death there is enzymatic biochemical activity that may
change the blood in an unpredictable way and in various ways in different
locations.
With
reference to the other lesions these are not likely to have been sustained from
the same trauma as the epidural haematoma. They are
the result of blunt violence such as beating, kicking and/or falls, and may
have been sustained during the stay in the police detention.
The
marks on the wrists are characteristically the results of handcuffing.
Handcuffs will usually not leave marks, but may if they are too tight, if the
person is struggling, or if he is dragged by the handcuffs.
In
summary it cannot be determined if the epidural haematoma
was caused by a fall or other types of blunt violence. It may well have been
sustained just before or during the stay in the police detention. An epidural haematoma is curable if an operation with evacuation of the
haematoma is performed soon enough. If admitted to
hospital sooner, Mr Zabchekov
might have been saved.”
96. The
Government submitted that Mr Zabchekov
had a record at the Juvenile Offenders Pedagogic Centre (****** *************
****) and at the police in Razgrad on account of
numerous alleged thefts.
97. A
note dated 3 July 1995, issued by the Juvenile Centre and addressed to the
police in Razgrad, stated that Mr
Zabchekov, who at that time was 16 years old, had a
speech defect and was mentally retarded. Another note, dated
The
Government explained that on
98. On
II. RELEVANT DOMESTIC LAW
A. National
Police Act (***** ** *********), as in force at the relevant time
99. Section
35 (1) provided as follows:
“The
police authorities shall issue a written order for an arrested person to be
taken to the [place of detention].”
B. Code of Criminal Procedure
(***********-*********** ******)
100. By
virtue of Article 388, the military courts hear criminal cases in which the
accused is, for example, a police officer. Where a case would fall within the
competence of the military courts, the preliminary investigation is handled by
military investigators and prosecutors.
101. Article
362 § 1(4) in conjunction with Article 359 provides that, in the event of a
judgment of the European Court of Human Rights finding a violation of the
Convention “of significant importance” to a criminal case that has ended by
virtue of a judicial decision, the prosecuting authorities shall request the
reopening of the case by the competent court.
THE LAW
1. ALLEGED
VIOLATIONS OF ARTICLE 2 OF THE CONVENTION
102. The
applicant alleged that her son had been ill-treated and had died as a result of
injuries inflicted by police officers, that he had not
been provided with timely medical treatment while in custody and that the State
authorities had failed to undertake a thorough and effective investigation.
Article
2 of the Convention provides as follows:
“1. Everyone's right to life shall be protected by
law. No one shall be deprived of his life intentionally save in the execution
of a sentence of a court following his conviction of a crime for which this
penalty is provided by law.
2. Deprivation
of life shall not be regarded as inflicted in contravention of this article
when it results from the use of force which is no more than absolutely
necessary:
(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.”
A. Whether Mr Zabchekov died as a result of ill-treatment while in police
custody
1. Arguments
of the parties
(a) The
applicant
103. The
applicant submitted that the Government's explanation, which was based on two
main arguments – that the fatal skull injury had been sustained long before Mr Zabchekov's arrest and that
the remaining injuries on his body had been received during the chase – was implausible as it did not accord with the evidence.
104. As
regards the skull injury, the applicant asserted that the conclusions of the
second forensic report had been highly suspect as they had deviated from the
findings of the first forensic report without any explanation. The authorities
had been quick to rely on the second report, ignoring the contradictions. The
second report's conclusion as to the timing of the fatal injury had been based
only on the shape of the blood clot as seen on photographic images taken almost
six hours after the time of death.
The
suggestion that the skull injury had been inflicted ten hours before Mr Zabchekov's death, at about
The
Government's explanation of the other injuries found on Mr Zabchekov's body – on his chest, face and right wrist – was
clearly implausible in the applicant's view. Such injuries could not be
inflicted by falling on the ground while running or by the normal use of
handcuffs. Indeed, the origin of those injuries had never been investigated and
the Government had developed their own arbitrary theory for the purposes of the
present case. In reality, it was obvious that the injuries were the result of
ill-treatment and that, in the absence of any evidence to the contrary, they must have been inflicted at the same time as
the fatal skull injury.
105. The
applicant also considered it particularly striking that no explanation had been
provided as to the suspect behaviour of the police
officers and their conspicuous attempt to forge the detention register.
(b) The
Government
106. The
Government, referring to the second forensic report, stated that the fatal
injury had been inflicted more than ten hours prior to Mr Zabchekov's death and, therefore, long before his arrest.
It
was undisputed that Mr Zabchekov
had consumed a great quantity of alcohol before his arrest. He had been drunk
and staggering. Furthermore, there was clear evidence that he had fallen
several times while running.
In
the Government's view the evidence about his behaviour
at the time of his arrest and detention – which corresponded to the typical
symptoms of a “lucid interval” after a skull fracture – confirmed the medical
experts' conclusions about the timing of the fatal injury.
107. It
was pointed out by the Government that the statements of the witnesses as to
the whereabouts of Mr Zabchekov
prior to his arrest contained contradictions.
Furthermore,
on several occasions in 1995 the applicant had stated that her son had been ill
and – when younger – had sometimes lost consciousness and suffocated. Mr Zabchekov himself had
confirmed in 1995 that he had suffered from headaches and fainting. On that
basis, the Government concluded that the experts' finding that Mr Zabchekov might have received
the fatal injury by falling on a large hard surface was plausible.
108. The
Government stressed that there was no evidence of any ill-treatment by the
police. In their view, the injuries to Mr Zabchekov's chest and face had to have been the result of
his falling on the ground, and those to his wrists had to have been caused by
the normal use of handcuffs.
2. The
Court's assessment
(a) General
principles
109. Article
2 of the Convention, which safeguards the right to life, ranks as one of the
most fundamental provisions in the Convention. Together with Article 3, it also
enshrines one of the basic values of the democratic societies making up the
Council of Europe. The object and purpose of the Convention as an instrument
for the protection of individual human beings also requires that Article 2 be
interpreted and applied so as to make its safeguards practical and effective
(see the McCann and Others v. the United Kingdom judgment of 27 September
1995, Series A no. 324, pp. 45-46, §§ 146-47, Salman
v. Turkey [GC], no. 21986/93, ECHR 2000-VII, § 97, and Velikova v. Bulgaria, no. 41488/98, ECHR
2000-VI).
110. In
the light of the importance of the protection afforded by Article 2, the
Court must subject complaints about deprivations of life to the most careful
scrutiny, taking into consideration all relevant circumstances.
Persons
in custody are in a vulnerable position and the authorities are under an
obligation to account for their treatment. Consequently, where an individual is
taken into police custody in good health but later dies, it is incumbent on the
State to provide a plausible explanation of the events leading to his death
(see, mutatis mutandis, Selmouni v.
France [GC], no. 25803/94, ECHR 1999-V, § 87, and the above-mentioned Salman and Velikova
judgments).
111. In
assessing evidence, the Court adopts the standard of proof “beyond reasonable
doubt” (see the
(b) Application
of those principles in the present case
112. The
Court observes that Mr Zabchekov
died after having been detained for several hours in the Razgrad
police where he had been brought after being pursued for a short time by an
off-duty police officer.
It
is incumbent on the Government, therefore, to provide a plausible explanation
for Mr Zabchekov's death.
113. The
Government's explanation was that Mr Zabchekov's death could not possibly have been the result
of police ill-treatment as the second forensic report had concluded that the
fatal injury, a skull fracture, had been inflicted at least ten hours prior to
the moment of death. It followed that the skull fracture had occurred before
114. The
Court observes that the conclusion of the second report as to the time at which
the injury occurred was based on a visual examination of photographs of the
blood clot taken six hours after Mr Zabchekov's death. The experts did not even mention why
they considered that no changes had occurred in the blood clot after the boy's
death. According to the medical opinion submitted by the applicant –
uncontested by the Government – such changes did occur and had to be taken into
account.
Furthermore,
the second forensic report, which relied solely on documentary material,
departed in significant respects from the conclusions of the first report
without stating why that report's findings as to the strength of the blow and
the time of the skull fracture had been incorrect. The first forensic report,
in contrast, had been based on a direct observation of the corpse (see
paragraphs 53-59, 70 and 72-77 above).
The
Court finds that all of the above significantly reduces the reliability of the
second report's conclusions.
115. It
is true that certain facts in the present case cannot be unequivocally
explained: Mr Zabchekov's
reported staggering and lisping at the time of his arrest may be seen as an
indication that he had already been injured at that time but it may well have
been the result of his apparently high level of alcohol intoxication (see
paragraphs 11, 22, 28, 59, 60, 74, 76 and 95 above).
116. However,
if Mr Zabchekov was indeed
injured before
117. The
Court notes that the first forensic report considered that the skull injury had
most likely been inflicted between four and six hours prior to Mr Zabchekov's death and,
therefore, possibly at a time when he was in police custody, either before or
after he was taken to the police station (see paragraph 59 above).
Furthermore,
there were a number of other injuries to Mr Zabchekov's body which could have been the result of the
same events that caused the skull fracture (see paragraphs 55, 56, 58, 77 and
92-94).
118. The
Government stated that Mr Zabchekov
might have received his injuries by falling on the ground – before he
encountered the police or during the chase – as he was drunk and had a history
of health problems. The traces on his wrists were allegedly caused by the
normal use of handcuffs.
119. That
supposition is not, however, supported by forensic evidence, as the presence or
absence of “contre-coup lesions”
characteristic of falls was not recorded by the autopsy (see paragraphs 73 and
95).
Furthermore,
the Court considers it significant that none of the witnesses who were in
contact with the applicant's son until he was taken to the police station
reported any complaint of an ailment on his part.
As
regards the use of handcuffs, according to the medical opinion submitted by the
applicant, handcuffs may leave marks if they are too tight or the person is
struggling or is dragged. The autopsy found a very slight mark on Mr Zabchekov's left hand and
severe bruising on his right hand (see paragraphs 55, 56, 58 and 95 above). It
was also reported that at some point he was handcuffed to a tree. It may appear
unlikely, therefore, that the injury to his right wrist was the result of
normal use of tight handcuffs. The other two possible explanations – that Mr Zabchekov was struggling or
was dragged – may suggest that he was ill-treated.
Finally,
the Court does not find the information about Mr Zabchekov's alleged illness reliable or particularly
pertinent. It was based on statements made by him and by his mother in the
context of questioning on criminal charges and, in any event, cannot lead to
any reasonable conclusion as regards the skull fracture or the other injuries
(see paragraphs 96-98 above).
The
Government's proposed conclusion that Mr Zabchekov might have injured himself by falling is thus
improbable when examined in the light of all the surrounding facts.
120. In
assessing the evidence in the present case, the Court, moreover, attaches significant
weight to the information that the police officers behaved in a suspect manner
and to the fact that the authorities accepted the credibility of their evidence
despite serious indications calling for caution.
Examples
of the police's suspect behaviour are: between 3 a.m.
and 5 a.m. on 29 January 1996 when they delayed contact between Mr Zabchekov and a doctor
and possibly attempted to choose which doctor saw him (see paragraphs 32-40
above); their apparently false statement, in an answer to Dr Mihailov's question, that Mr Zabchekov had been taken to the police station in the same
condition in which the doctor had seen him at about 5 a.m. (see paragraph 39
above); and the fact that the detention records were manipulated (see
paragraphs 41-46 above) and that Mr Zabchekov was registered post factum
as an “unidentified person” although he had been well known to the police
officers as a suspect on theft charges and had been recognised
by them at the very moment of their encounter (see paragraphs 25, 42 and 96-98
above).
These
facts were important indications that required thorough investigation; such an
investigation was not undertaken.
121. Having
regard to all the relevant circumstances, the Court
thus finds implausible the Government's explanation of Mr
Zabchekov's death, which was based on the conclusion
of the second forensic report as to the timing of the injury and a supposition
that the boy might have injured himself by falling on the ground. The
Government have not offered any other explanation.
122. Accordingly,
there has been a violation of Article 2 of the Convention.
B. The alleged failure to provide timely
medical care
1. Arguments
of the parties
123. The
applicant alleged that although the police officers had seen the boy shivering
and shaking, they had considerably delayed medical intervention through a
series of suspect acts between
124. The
Government maintained that the police could not be held responsible for not
having realised that Mr Zabchekov had been in need of urgent medical attention.
When the police officers had first seen him it had been dark. Furthermore, he
had been drunk, there had been dirt all over his body and his hair had covered
the bruise over his left eyebrow. Mr Zabchekov's condition had been interpreted as symptomatic
of the effects of alcohol. He had never complained of an ailment. The fact that
no signs of any major problems had been apparent during the lucid interval had
been confirmed by the medical experts.
2. The
Court's assessment
125. The
Court, referring to its findings as regards the suspect conduct of the police
(see paragraph 120 above), observes that they delayed the provision of medical
assistance to Mr Zabchekov
and that that contributed in a decisive manner to the fatal outcome.
126. The
Government's position was that the police officers, not being medical
professionals, could not be criticised for having
failed to detect that there was a medical emergency.
127. That
argument is, however, irrelevant, as it is not disputed that at a certain point
after
128. It
is particularly significant, furthermore, that the case file does not contain
any trace of criticism or disapproval of that manner of dealing with a
detainee's medical problem.
129. The
first medical report and the expert whose opinion was submitted by the
applicant found that the delay in providing medical assistance had been fatal
(see paragraphs 59 and 95 above).
130. The
Court thus finds that the behaviour of the police
officers between
131. There
has been therefore a violation of Article 2 § 1 of the Convention in that
respect.
C. The alleged ineffective investigation
1. Arguments
of the parties
132. The
applicant considered that the investigation into the death of her son had been
inadequate as the authorities had failed to investigate, inter alia: the post hoc doctoring of the detention
records, the non-fatal injuries, the police officers' strange behaviour between 3 a.m. and 5 a.m., the reason why the two
doctors had quarrelled at about 5 a.m. and the fact
that the first information the applicant's family had received about Mr Zabchekov's death had failed
to mention that the boy had been detained.
133. The
applicant further submitted that because of the traditional ties between
prosecutors, investigators and the police and the absence, at the material
time, of judicial review in respect of decisions not to prosecute, the
decision-making authorities responsible for investigating ill-treatment by the
police were not sufficiently independent and impartial.
Furthermore,
that allegedly reflected a broader pattern that had been noted by international
organisations. The applicant referred to the Report
of the Special Rapporteur on Torture to the United
Nations Commission on Human Rights (UN Document E/CN.4/1997/7/ of 10 January
1997), which stated at p. 9:
“The
Special Rapporteur is concerned by the frequency of
allegations of torture or ill-treatment, sometimes followed by death, of
persons in police custody [in
134. The
applicant lastly alleged that she had on several occasions been misinformed by
the authorities about the course of the investigation and its findings and had
not been given full access to the case file before February 1997, more
than a year after her son's death.
135. The
Government asserted that the investigation had been prompt and thorough,
referring to the numerous interrogations, expert reports and other
investigative measures. The applicant had been provided with an opportunity to
consult the case file and to submit appeals and requests for further
investigation. Her request for an exhumation had rightly been refused as it had
been clearly established that Mr Zabchekov's
ribs had been intact.
2. The
Court's assessment
(a) General
principles
136. The
Court reiterates that the obligation to protect the right to life under Article
2 of the Convention, read in conjunction with the State's general duty under
Article 1 of the Convention to “secure to everyone within [its] jurisdiction
the rights and freedoms defined in [the] Convention”, requires by implication
that there should be some form of effective official investigation when
individuals have been killed as a result of the use of force. The investigation
must be, inter alia, thorough, impartial and
careful (see the McCann and Others judgment cited above, §§ 161-163; the Kaya v.
137. The
essential purpose of such an investigation is to secure the effective
implementation of the domestic laws which protect the right to life and, in
those cases involving State agents or bodies, to ensure their accountability
for deaths occurring under their responsibility (see, for example, mutatis
mutandis, Ilhan v. Turkey
[GC], no. 22277/93, ECHR 2000-VII, § 63).
138. For
an investigation into alleged unlawful killing by State agents to be effective,
it may generally be regarded as necessary for the persons responsible for and
carrying out the investigation to be independent from those implicated in the
events (see, for example, the Güleç v. Turkey
judgment of 27 July 1998, Reports 1998-IV, §§ 81-82 and Ögur v. Turkey [GC], no. 21954/93, ECHR
1999-III, §§ 91-92). This means not only a lack of hierarchical or
institutional connection but also a practical independence (see, for example,
the Ergi v. Turkey judgment of 28 July 1998, Reports
1998-IV, §§ 83-84, where the public prosecutor investigating the death of a
girl during an alleged clash showed a lack of independence through his heavy
reliance on the information provided by the gendarmes implicated in the
incident).
139. The
investigation must also be effective in the sense that it is capable of leading
to the identification and punishment of those responsible. This is not an
obligation of result, but of means. The authorities must have taken the
reasonable steps available to them to secure the evidence concerning the
incident, including, inter alia, eyewitness 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 (see, for example, concerning autopsies, Salman, cited above, § 106; concerning witnesses, Tanrikulu v. Turkey [GC],
no. 23763/94, ECHR 1999-IV, § 109; concerning forensic evidence, Gül v. Turkey, no. 22676/93, § 89, 14
December 2000, unreported).
Any
deficiency in the investigation which undermines its ability to establish the
cause of death or the person responsible will risk falling foul of this
standard.
140. There
must be a sufficient element of public scrutiny of the investigation or its
results to secure accountability in practice as well as in theory, maintain
public confidence in the authorities' adherence to the rule of law and prevent
any appearance of collusion in or tolerance of unlawful acts. The degree of
public scrutiny required may well vary from case to case. In all cases,
however, the next of kin of the victim must be involved in the procedure to the
extent necessary to safeguard his or her legitimate interests (see the Güleç judgment cited above, p. 1733, § 82, where the father
of the victim was not informed of the decisions not to prosecute; Ögur, cited above, § 92, where the family of the
victim had no access to the investigation and court documents and Gül, cited above, § 93; for a full summary of the
relevant case-law see McKerr v. the United Kingdom,
no. 28883/95, §§ 111-115, ECHR 2001-III).
(b) Application
of those principles in the present case
141. The
Court agrees with the Government that numerous acts of investigation were
undertaken in the present case. The investigation commenced promptly and the
authorities worked actively on it. An autopsy was performed, most of the
witnesses were questioned repeatedly, two confrontations and a reconstruction
of the events were organised and other relevant
evidence was collected and analysed.
142. The
Court notes, however, that the failure of the autopsy to record morphological
data and the absence or presence of “contre-coup
lesions” made it impossible to establish what object might have caused the
skull fracture.
It
is highly significant, furthermore, that the police
officers were never asked to explain why the detention register had been
forged, why they had not called for an ambulance right away or why they had
given apparently false information to Dr Mihailov.
These were crucial questions which obviously had to be raised in examinations
and confrontations.
The
reconstruction of the events conducted on 20 March 1996 was, for reasons that
are unclear, exclusively concerned with the number of times and the places
where Mr Zabchekov had
fallen on the ground when he had been trying to escape and ignored the events
that took place at the police station, the moments between the boy's arrest and
his arrival at the police station and the time when he had been lying on the
ground handcuffed to a tree or was alone with Sergeant Mutafov
(C.) and his friend D. (see paragraphs 21, 26, 29-40 and 68 above).
Furthermore,
there is no record of any timely visit of the investigator to the scene of Mr Zabchekov's arrest in
Finally,
the investigation concentrated on the origin and timing of the skull injury and
paid scant attention to the other traces left on the boy's body.
The
Government have not explained these omissions.
143. The
Court also refers to its findings above that the testimony of the police
officers was considered fully credible despite their suspect behaviour and that, notwithstanding the obvious
contradiction between the two medical reports, the authorities accepted the
conclusions of the second report without seeking to clarify the discrepancies
(see paragraph 120 above). Indeed, the decisions of the prosecution authorities
to put an end to the investigation relied exclusively on the opinion in the
second medical report about the timing of the injury, an opinion that had been
based on a questionable analysis (see paragraphs 79, 81, 84 and 88-90 above).
144. The
Court finds, therefore, that the investigation lacked the requisite objectivity
and thoroughness, a fact which decisively undermined its ability to establish
the cause of Mr Zabchekov's
death and the persons responsible. Its effectiveness cannot, therefore, be
gauged on the basis of the number of reports made, witnesses questioned or
other investigative measures taken.
145. The
applicant alleged, in addition, that the failure of the investigation in her
case was the result of a general problem of lack of independence, impartiality
and public accountability on the part of the authorities handling
investigations of police ill-treatment.
In
these particular circumstances, having already found that the investigation
into the death of the applicant's son was not sufficiently objective and
thorough, the Court does not need to rule on these additional aspects of her
complaint.
146. The
Court finds that there has been a violation of the respondent State's
obligation under Article 2 § 1 of the Convention to conduct an effective
investigation into the death of Mr Zabchekov.
II. ALLEGED VIOLATION OF ARTICLE 3
OF THE CONVENTION
147. The
applicant complained that her son had been ill-treated before his death. She
relied on Article 3 of the Convention, which provides:
“No
one shall be subjected to torture or to inhuman or degrading treatment or
punishment.”
148. The
parties' submissions are summarised in paragraphs
103-108 above.
149. The
Court found above that the Government had not provided a plausible explanation
for the injuries to Mr Zabchekov's
body.
Those
injuries were indicative of inhuman treatment beyond the threshold of severity
under Article 3 of the Convention.
There
has been therefore a violation of that provision.
150. The
Court does not deem it necessary to make a separate finding under Article 3 in
respect of the deficiencies in the investigation (see Mahmut
Kaya v. Turkey, no. 22535/93, § 120, ECHR
2000-III), having already dealt with that question under Article 2 of the
Convention (see paragraphs 132-146 above).
III. ALLEGED VIOLATION OF ARTICLE 5
OF THE CONVENTION
151. Relying
on Article 5 of the Convention, the applicant alleged that the detention of her
son during the night of 28 to 29 January 1996 had been unlawful as there had
been no lawful detention order and it had not been properly recorded.
Article
5 of the Convention, insofar as relevant, provides as follows:
“1. 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 ...”
152. The
applicant stated that it was absurd to consider – as the Government did – that
the statutory 24-hour time-limit for police detention ran from the moment when
the arrested person's identity was established. No such rule existed under
Bulgarian law. Any detention without a written order was in violation of
section 35 of the National Police Act. Furthermore, in the present case the
police officers recognised Mr
Zabchekov right away and addressed him by name.
153. The
Government submitted that at the time he was taken to the police station Mr Zabchekov had not been a
“detained person” within the meaning of section 35 of the National Police Act
as his identity had not been known. It had been necessary to await
his sobering up to allow his identification in order to decide whether
detention was necessary. Therefore, a written order for his detention was not
required. Such an order could not be issued in respect of a person whose
identity was unknown.
The
Government further stated that the material legal conditions for a lawful
detention had existed in any event: Mr Zabchekov had been apprehended while trying to steal and
had been taken to the police station for identification.
154. The
Court reiterates that the expressions “lawful” and “in accordance with a
procedure prescribed by law” in Article 5 § 1 of the Convention essentially
refer back to national law and state the obligation to conform to the
substantive and procedural rules thereof. They require in addition that any
deprivation of liberty should be consistent with the purpose of Article 5,
namely to protect against arbitrariness. The Court must moreover ascertain
whether domestic law itself is in conformity with the Convention, including the
general principles expressed or implied therein (see, among other authorities, Grausulys v. Lithuania, no. 36743/97,
10 October 2000, unreported, § 39).
The
unacknowledged detention of an individual is a complete negation of the
fundamentally important guarantees contained in Article 5 of the Convention and
discloses a most grave violation of that provision. The absence of a record of
such matters as the date, time and location of detention, the name of the
detainee, the reasons for the detention and the name of the person effecting it
must be seen as incompatible with the requirement of lawfulness and with the
very purpose of Article 5 of the Convention (see the Kurt v. Turkey judgment of
25 May 1998, Reports 1998-III, § 125, and Çakici,
cited above, §§ 104 and 105).
155. In
the present case it is not disputed that Mr Zabchekov's detention was not based on a written order as
required by section 35 of the National Police Act. Contrary to the Government's
view that provision cannot be reasonably interpreted as permitting confinement
without a lawful order where there are doubts as to the identity of the
detainee: such an interpretation runs contrary to the elementary guarantees of
Article 5 of the Convention as it would mean a blanket authorisation
for unacknowledged detentions. Furthermore, in the present case the police
identified Mr Zabchekov
at the very moment of his arrest.
It
follows that the applicant's detention was unlawful.
156. The
applicant stated that in an effort to conceal the very fact that her son had
been detained, the first information to the family
about his death had omitted any reference to his confinement (see paragraphs 49
and 61 above).
The
Court observes that Mr Zabchekov's
deprivation of liberty was not recorded initially and that the register at the
police station was later forged. The suspect behaviour
of the police officers between
As
that attempt was in the event unsuccessful, the Court will not deal with the
question whether an issue of State responsibility for an unacknowledged
detention may arise.
157. The
lack of a written order and of a proper record of Mr Zabchekov's detention is sufficient for the Court to find
that his confinement for several hours on
There
has, therefore, been a violation of Article 5 § 1 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 13
OF THE CONVENTION
158. The
applicant complained under Article 13 of the Convention of the alleged lack of
an effective remedy in respect of the violations of Articles 2 and 3.
Article
13 of the Convention provides:
“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.”
159. The
applicant stated that the criminal investigation had not been effective,
referring to her complaints under Articles 2 and 3 of the Convention. She added
that at the relevant time there had been no judicial remedy against a
prosecutor's decision to discontinue criminal proceedings.
160. The
Government referred to their submissions under Articles 2 and 3 and stated that
the applicant could have applied to join the criminal investigation into her
son's death as a private prosecutor or a civil plaintiff.
161. Article
13 of the Convention guarantees the availability at national level of a remedy
to enforce the substance of the Convention rights and freedoms in whatever form
they might happen to be secured in the domestic legal order. The effect of
Article 13 is thus to require the provision of a domestic remedy to deal with
the substance of an “arguable complaint” under the Convention and to grant
appropriate relief, although Contracting States are afforded some discretion as
to the manner in which they conform to their Convention obligations under this
provision. The scope of the obligation under Article 13 varies depending on the
nature of the applicant's complaint under the Convention. Nevertheless, the
remedy required by Article 13 must be “effective” in practice as well as in
law.
Where
an arguable breach of one or more of the rights under the Convention is in
issue, there should be available to the victim a mechanism for establishing any
liability of State officials or bodies for that breach. Furthermore, in
appropriate cases, compensation for the pecuniary and non-pecuniary damage
flowing from the breach should in principle be available as part of the range
of redress (see, as a recent authority, T.P. and K.M. v. the United
Kingdom [GC], no. 28945/95, ECHR 2001-V, §107).
In
cases of suspicious deaths, given the fundamental importance of the right to
the protection of life, Article 13 requires, in addition to the payment of
compensation where appropriate, a thorough and effective investigation capable
of leading to the identification and punishment of those responsible for the
deprivation of life, including effective access for the complainant to the
investigation procedure (see the Kaya judgment cited
above, § 107, the Ergi judgment cited above,
§ 98; Salman, cited above, § 123; and
Velikova, cited above, § 89).
162. The
Court finds that the applicant had an arguable claim under Articles 2 and 3 of
the Convention in respect of her son's death and ill-treatment and that, for
the purposes of Article 13, she should accordingly have been able to avail
herself of effective and practical remedies capable of leading to the
identification and punishment of those responsible and to an award of
compensation.
However,
in circumstances where – as here and as in the case of Mrs Velikova, cited above, – the criminal investigation into
the suspicious death was ineffective as it lacked sufficient objectivity and
thoroughness (see paragraphs 141-146 above); and the effectiveness of any other
remedy that may have existed, including the remedy suggested by the Government
(the possibility of the applicant's joining the criminal proceedings as a civil
party) was consequently undermined, the Court finds that the State has failed
in its obligation under Article 13 of the Convention.
There
has been therefore a violation of Article 13 of the Convention.
V. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
163. The
applicant complained under Article 14 in conjunction with Articles 2, 3 and 13
of the Convention that the police officers' and the investigating authorities'
perception of her son as a Rom/Gypsy was a decisive factor in their attitude
and acts.
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.”
164. The
applicant considered it striking that some of the police officers had been
unable to refrain from referring to Mr Zabchekov as “the Gypsy” even in their official statements.
She considered that the reference to her son's origin and the acts of the
police and the investigation authorities had to be seen against the broader
context of systematic racism and hostility which law-enforcement bodies in
165. The
Government submitted that there was no evidence of any racially motivated act
on the part of the authorities. The fact that some statements referred to Mr Zabchekov as “the Gypsy” did
not constitute such evidence.
166. The
Court reiterates that proof “beyond reasonable doubt” may follow from the
coexistence of sufficiently strong, clear and concordant inferences or of
similar unrebutted presumptions of fact (see
paragraph 111 above and the case-law cited there).
The
Court must therefore assess all the relevant facts, including any inferences
that may be drawn from the general information adduced by the applicant about
the alleged existence of discriminatory attitudes.
167. It
recalls that in the Velikova case it examined
a very similar complaint in paragraph 94 of that judgment and held:
“The
Court observes that the applicant's complaint under Article 14 is grounded on a
number of serious arguments. It also notes that the respondent State failed to
provide a plausible explanation as to the circumstances of Mr
Tsonchev's death and as to the reasons why the
investigation omitted certain fundamental and indispensable steps which could
have shed light on the events ...
The
Court recalls, however, that the standard of proof required under the
Convention is 'proof beyond reasonable doubt'. The material before it does not
enable the Court to conclude beyond reasonable doubt that Mr
Tsonchev's killing and the lack of a meaningful
investigation into it were motivated by racial prejudice, as claimed by the
applicant. It follows that no violation of Article 14 has been established.”
168. The
Court finds that in the present case the applicant's complaints are likewise
based on serious arguments. It is unable, however, to
reach the conclusion that proof beyond reasonable doubt has been established.
There
has therefore been no violation of Article 14 of the Convention.
VI. APPLICATION OF ARTICLE 41 OF THE
CONVENTION
169. 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
170. The
applicant claimed 19,050 euros (“EUR”) for non-pecuniary damage, a sum
comprising EUR 15,250 in respect of the pain and suffering caused by the
violation of her son's rights under the Convention and EUR 3,800 in
respect of the distress she endured because of the ill-treatment and death of
her son and the inadequacy of the authorities' reaction.
171. The
Government objected that since Article 362 § 1(4) of the Bulgarian Code of
Criminal Procedure provided for the possibility of reopening criminal
proceedings in cases where the European Court of Human Rights had found a
violation of the Convention the applicant should, if the Court found a
violation in the present case, submit a civil claim for damages once the
criminal proceedings were reopened.
Alternatively,
the Government maintained that the claim was excessive, regard being had to the
economic situation in the country. The amount claimed was allegedly 371 times
the minimum monthly wage. In the Government's view, the comparison with Turkish
cases proposed by the applicant was incorrect as in
Finally,
the Government warned against the dangers of excessive awards being made by the
Court.
172. The
Court notes that the provision of the Bulgarian Code of Criminal Procedure
referred to by the Government concerns the reopening of criminal proceedings
which were ended by a judicial decision, whereas the investigation in the
applicant's case was terminated by a decision of the prosecuting authorities.
It is therefore unclear whether the Bulgarian Code of Criminal Procedure
requires the reopening of the investigation after the Court's findings in the
present case.
Furthermore,
Article 41 of the Convention does not require applicants to exhaust domestic
remedies a second time in order to obtain just satisfaction if they have
already done so in vain in respect of their substantive complaints. The wording
of that provision – where it refers to the possibility for reparation under
domestic law – establishes a rule going to the merits of the just satisfaction
issue (see the De Wilde, Ooms and Versyp
v. Belgium judgment (just satisfaction) of 10 March 1972, Series A no. 14, §
16).
In
this connection the Court considers that the hypothetical possibility that the
investigation may resume, many years after the death of the applicant's son in
police custody and after the first ineffective investigation, and that the
applicant may then have the opportunity to bring a civil claim, which would
only be successful if the fresh investigation produced results, cannot be
reasonably interpreted as restitutio in integrum under domestic law.
173. The
Court, having regard to its judgments in similar cases (Velikova,
cited above), and to the fact that the present case concerns the death of a
17-year-old boy in police custody, awards the claim for non-pecuniary damage in
full.
B. Costs and expenses
174. The
applicant claimed 3,800 US dollars (“USD”) for 95 hours of legal work at an
hourly rate of USD 40. She submitted a copy of a contract between her and her
lawyer and a time-sheet.
175. The
Government considered that the contingency-fee agreement between the applicant
and her lawyer was “absurd” and that the rate of USD 40 per hour was
excessive and even immoral as lawyers were under an obligation to help people
of limited financial resources.
176. The
Court reiterates that only legal costs and expenses which are found to have
been actually and necessarily incurred and which are reasonable as to quantum
are recoverable under Article 41 of the Convention (see, among other
authorities, Nikolova v. Bulgaria [GC],
no. 31195/96, ECHR 1999-II, § 79).
It
further notes that the Government have not disputed
the time-sheet presented by the applicant's lawyer. The Court does not find any
indication that the number of hours claimed exceeds the legal work which was
actually done and which was necessary to be done for the representation of the
applicant.
As
to the hourly rate of USD 40, it has not been claimed that this is a rate
higher than the rates charged, for example, by the leading law firms in
Converting
into euros the sum claimed and deducting the amount of EUR 762.25 (5,000
French francs) paid in legal aid by the Council of Europe, the Court awards the
applicant EUR 3,500 in respect of costs and expenses.
C. Default interest
177. According
to the information available to the Court, the statutory rate of interest in
FOR THESE REASONS, THE COURT
1. Holds unanimously that there has been a violation of
Article 2 of the Convention in respect of the death of the applicant's
son;
2. Holds unanimously that there has been a violation of
Article 2 of the Convention in respect of the authorities' failure to
provide timely medical care;
3. Holds
unanimously that there has been a violation of Article 2 of the Convention
in respect of the respondent State's obligation to conduct an effective
investigation;
4. Holds unanimously that there has been a violation of
Article 3 of the Convention;
5. Holds unanimously that there has been a violation of
Article 5 of the Convention;
6. Holds unanimously that there has been a violation of
Article 13 of the Convention;
7. Holds by six votes to one that there has been no
violation of Article 14 of the Convention;
8. Holds
unanimously
(a) that
the respondent State is to pay the applicant, within three months from the date
on which the judgment becomes final according to Article 44 § 2
of the Convention, the following amounts, together with any value-added tax
that may be chargeable:
(i) EUR 19,050 (nineteen thousand and fifty
euros) in respect of non-pecuniary damage and
(ii) EUR
3,500 (three thousand five hundred euros) in respect of costs and expenses,
and that both sums are to
be converted into the national currency of the respondent State at the rate
applicable at the date of settlement;
(b) that simple interest at an annual rate of 13.65% shall be
payable from the expiry of the above-mentioned three months until settlement;
9. Dismisses
unanimously the remainder of the applicant's claim for just satisfaction.
Done
in English, and notified in writing on
Erik
Fribergh Christos Rozakis
Registrar President
In
accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules
of Court, the partly dissenting opinion of Mr Bonello is annexed to this judgment.
PARTLY DISSENTING OPINION OF JUDGE BONELLO
1. I
concurred with my colleagues in all the votes but one. I could not subscribe to
the majority view that, in the present case, there has been no infringement of
the prohibition against discrimination (Article 14).
2. I
consider it particularly disturbing that the Court, in over fifty years of
pertinacious judicial scrutiny, has not, to date, found one single instance of
violation of the right to life (Article 2) or the right not to be subjected to
torture or other degrading or inhuman treatment or punishment (Article 3)
induced by the race, colour or place of origin of the
victim1. Leafing through the annals of the Court, an
uninformed observer would be justified to conclude that, for over fifty years
democratic Europe has been exempted from any suspicion of racism, intolerance
or xenophobia. The Europe projected by the Court's case-law is that of an
exemplary haven of ethnic fraternity, in which peoples of the most diverse
origin coalesce without distress, prejudice or recrimination. The present case energises that delusion.
3. Frequently
and regularly the Court acknowledges that members of vulnerable minorities are
deprived of life or subjected to appalling treatment in violation of Article 3;
but not once has the Court found that this happens to be linked to their
ethnicity. Kurds, coloureds, Islamics,
Roma and others are again and again killed, tortured or maimed, but the Court
is not persuaded that their race, colour, nationality
or place of origin has anything to do with it. Misfortunes punctually visit
disadvantaged minority groups, but only as the result of well-disposed
coincidence.
4. At the root of this injurious escape from reality lies the
evidentiary rule which the Court has inflicted on itself: “The Court recalls
that the standard of proof required under the Convention is 'proof beyond
reasonable doubt'”2. The majority found that in the present case it had
not been established “beyond reasonable doubt” that in the death of the
seventeen-years-old Rom, Angel Zabchekov that followed
the devoted attentions of police officers, his ethnicity was “a determining
factor” with those police officers who facilitated the young Rom's access to the fastest lane from Razgrad
to eternity.
5. This
inability to establish a link between physical abuse and ethnicity comes
notwithstanding that the red light about the special treatment of Roma by the
Bulgarian police in breach of Articles 2 and 3 has been flashing insistently
and alarmingly: this is the third case of death or brutality of Roma at the
hands of Bulgarian police officers decided by the Court (see the Assenov and others, and the Velikova
judgements). According to reports of
inter-governmental organisations and human rights
groups, the Bulgarian law enforcement services boast of an unenviable primacy
in racially prejudiced ill-treatment of Roma.
Amnesty
International, in a chillingly detailed account, focussed
on the predilection displayed by police officers for savaging Roma. “Many of
the victims of beatings and other ill-treatment by police officers are Roma ...
Amnesty International expressed concern to the Bulgarian authorities
about two other incidents of mass beatings during police raids on Roma neighbourhoods, five incidents of racial violence where
Roma were inadequately protected, five cases of deaths in suspicious
circumstances, and nine incidents of torture and ill-treatment involving 21
victims.”
“The
problem” adds the report, “is further compounded by a pattern of impunity of
law enforcement officers responsible for human rights violations”3. On immunity of police officers from prosecution, Amnesty
International added that it was “concerned that police impunity which
prevails as Bulgarian authorities consistently fail to investigate such
incidents properly and impartially, places at ever greater risk of racist
violence the most vulnerable ethnic community in Bulgaria”4.
Another
report emphasises “Roma throughout
6. It
has not only been human rights groups that have sounded the alarm. Inter-governmental
organisations such as the Council of Europe and the
United Nations have also noted the problem. The Special Rapporteur
on Extrajudicial, Summary or Arbitrary Executions to the United Nations
Commission on Human Rights, too, “expresses concern about reports indicating
that persons belonging to the Roma minority (in Bulgaria) are the main victims
of police violence, in particular of violations to the right to life”6. The report by Alvaro Gil-Robles, the Council of
Europe's Commissioner for Human Rights on his visit to Bulgaria in December
2001, also contributes to the overall perception of Roma as a disadvantaged and
targeted minority in that country.
7. The
publication “Profession: prisoner. Roma in detention in
8. Similar
negative assessments of systematic police brutality against Roma in
9. Nowhere
does the Convention mandate the 'proof-beyond-reasonable- doubt' standard today
required of the victim to convince the Court that death or ill-treatment were
induced by ethnic prejudice. Article 32, on the contrary, gives the Court the
widest possible discretion as to the interpretation and the application of the
Convention. What the Convention does mandate is quite the opposite: that
its provisions should be given thorough implementation. Any exercise in
interpreting the Convention must be geared to “securing the universal and
effective recognition and observation” of the guarantees enumerated, unless it
is to turn into a betrayal of the spirit and the letter of its momentous
preamble.
The
Convention has to be applied by the Court in such a way as to guarantee “not
rights that are theoretical or illusory, but rights that are practical and
effective”8. No more effective tool could be devised to ensure
that the protection against racial discrimination becomes illusory and
inoperative than requiring from the victim a standard of proof that, in other
civil-law disputes, is required of no one else.
10. The
Court has never explained, let alone justified, why the standard of proof
weighting the applicant in human rights disputes should be equivalent to that
required of the state to obtain a safe and dependable criminal conviction. I
have elsewhere disassociated myself from any adherence to a standard that I
find legally untenable and, in practice, unachievable; a standard that only
serves to ensure that human rights harm, however flaunted and forbidding,
remains unharmed9. This doctrine only rewards those the Convention
would fain not see rewarded.
11. It
is cheerless for me to discern that, in the cornerstone protection against
racial discrimination, the Court has been left lagging behind other leading
human rights tribunals. The Inter-American Court of Human Rights, for instance
has established standards altogether more reasonable. “The international
protection of human rights should not be confused with criminal justice. States
do not appear before the Court as defendants in a criminal action. The
objective of international human rights law is not to punish those individuals
who are guilty of violations, but rather to protect the victims and to provide
for the reparation of damages resulting from the acts of states responsible”10.
12. So
also the Supreme Court of the United States, in cases in which the standard and
the burden of proof to establish racial discrimination are at issue, works from
a more effective and efficient platform: it is for the applicant to make out a prima
facie issue of discrimination. Once the applicant has established what, in
Court language, could be called 'an arguable claim', the burden of proof then
shifts to the defendant to satisfy the court of the legitimacy and
justification of the action impugned11. This attainable and equitable level of proof
appears light years away from the 'proof beyond reasonable doubt' which is
stunting European human rights protection in areas where the highest level of
protection, rather than the highest level of proof, should be the priority.
13. So
long as the Court persists in requiring in human rights disputes a standard of
proof that fifty years experience has shown it to be as unreal as it is
unrealistic and unrealisable, it will, in effect,
only continue to pay lip service to the guarantees it then makes impossible to
uphold. The way forward, in my view, lies in a radical and creative rethinking
of the Court's approach, leading to the removal of the barriers which, in some
important human rights domains, make the Court an inept trustee of the
Convention. The Court has often risen to the challenge in spectacularly
visionary manners, and ought, in matters of ethnic discrimination, to succumb
with pride to its own tradition of trail blazing.
14. Various
well-tried ways come to mind to achieve a new and better balance between the
claims of the applicant and those of the state. One is the shift of the burden
of proof: a device the Court has already adopted successfully when the
alternative would have made the search for truth impossible. Thus, e.g., death
or injury during police custody raises a presumption (engineered by the court's
case-law) that shifts the burden of providing a satisfactory explanation, to
the state12.
15. Thus
also the Court, in a forward-looking decision, has held that the failure by the
Government to submit information to which only it could have access, may give
rise to inferences that the applicant's charges are well-founded13.
16. Reliance
on inferences, legal presumptions and a shift in the onus of evidence also
proved decisive in the recent Conka case, in
which the Court, rather than requiring from the applicants proof beyond
reasonable doubt that their expulsion was in pursuance of a collective
expulsion policy, found a violation by starting from the opposite end of the
syllogism: “The procedure followed (by the state authorities) did not enable it
(the Court) to eliminate all doubt that the expulsion might have been
collective”14.
17. The
Court has also, by an admirable process of judicial activism 'created' the
concept of a “procedural violation” of Article 215, and, more recently, of Article 316. The selfsame rationale that found in a
non-investigation, or an inadequate investigation of death or inhuman treatment
by the state, a “procedural violation” of those guarantees, should inspire and
would justify the finding of a violation of Article 14 in conjunction with
Articles 2 or 3, when no proper investigation of the alleged violation has been
carried out.
18. The
Court has thus at its disposal a notable arsenal of weapons with which to break
the stalemate that has not allowed it, throughout fifty years of activity, to
censure one single act of racial discrimination in areas of deprivation of life
or inhuman treatment. Ideally it should reconsider whether the standards of
proof should not be the more juridically justifiable
ones of preponderance of evidence or of a balance of probabilities.
Alternatively it should, in my view, hold that when a member of a disadvantaged
minority group suffers harm in an environment where racial tensions are high
and impunity of state offenders epidemic, the burden
to prove that the event was not ethnically induced, shifts to the government.
Subordinately,
in the sphere of Article 14, as the Court has done in the case of Articles 2
and 3, the Court ought to invest in its own doctrine of “procedural violation”
when the record shows that the injury suffered by a member of a disadvantaged
minority has not been adequately investigated.
19. This
would help bring the Court in line with its own case-law that “very weighty
reasons would have to be put forward (by the state) before the Court could
regard a difference in treatment based exclusively on the grounds of
nationality, as compatible with the Convention”17.
20. For
the reasons sketched briefly above, I found it inescapable to vote for a
violation of Article 14.
1. The
Commission had held, in 1973, that “differential treatment of a group of
persons on the basis of race might therefore be capable of constituting
degrading treatment when different treatment on some other ground would raise
no such question”. East African Asians v.
2. Velikova v.
3. “
4. AI
Index: EUR
5. “
6. Report
of
7. European
Roma Rights Centre, Country Reports series, No 6, December 1997
8. the Artico v.
9. Veznedaroglu v.
10. Case
of Velasquez Rodriguez, Inter-American Court of Human Rights,
11. Griggs
v. Duke Power Co. 401
12. e.g.
the Assenov and Others v.
13. Timurtas v.
14. Conka v.
15. the McCann and Others v. the
16. Assenov and Others v.
17. the Gaygusuz
v.