EUROPEAN COURT OF
HUMAN RIGHTS
CASE OF ASSENOV AND OTHERS v.
(90/1997/874/1086)
JUDGMENT
In
the case of Assenov and Others v.
The
European Court of Human Rights, sitting, in accordance with Article 43 of
the Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) and the relevant provisions of Rules of Court A2, as a
Chamber composed of the following judges:
Mr R. Bernhardt, President,
Mr L.-E. Pettiti,
Mrs E. Palm,
Mr A.B. Baka,
Mr G. Mifsud Bonnici,
Mr J. Makarczyk,
Mr D. Gotchev,
Mr P. van Dijk,
Mr V. Toumanov,
and also of Mr H. Petzold, Registrar,
and Mr P.J. Mahoney, Deputy Registrar,
Having
deliberated in private on 29 June and
Delivers
the following judgment, which was adopted on the last-mentioned date:
PROCEDURE
1. The
case was referred to the Court by the European Commission of Human Rights (“the
Commission”) on 22 September 1997, within the three-month period laid down by
Article 32 § 1 and Article 47 of the Convention. It originated
in an application (no. 24760/94) against the
The
Commission’s request referred to Articles 44 and 48 and to the declaration
whereby
2. In response to the enquiry made in accordance with Rule 33
§ 3 (d) of Rules of Court A, the applicants stated that they wished
to take part in the proceedings and designated the lawyer who would represent
them (Rule 30).
3. The
Chamber to be constituted included ex officio Mr D.
Gotchev, the elected judge of Bulgarian nationality
(Article 43 of the Convention), and Mr R.
Bernhardt, who was then Vice-President of the Court (Rule 21
§ 4 (b)). On
4. As
President of the Chamber (Rule 21 § 6), Mr Bernhardt,
acting through the Registrar, consulted the Agent of the Bulgarian Government
(“the Government”), the applicants’ lawyer and the Delegate of the Commission
on the organisation of the proceedings (Rules 37
§ 1 and 38). Pursuant to the order made in consequence, the Registrar
received the applicants’ and Government’s memorials on
5. On
2 and 13 February 1998 respectively, Mr Bernhardt
granted leave to submit written comments to the European Roma Rights Center and
Amnesty International (Rule 37 § 2). These were received by the
Registrar on 29 and
6. In
accordance with the President’s decision, the hearing took place in public in
the
There
appeared before the Court:
(a) for the Government
Ms V. Djidjeva, Co-Agent, Ministry of Justice, Agent;
(b) for the Commission
Mr M.A. Nowicki, Delegate;
(c) for the applicants
Ms Z. Kalaydjieva, Counsel.
The
Court heard addresses by Mr Nowicki,
Ms Kalaydjieva and Ms Djidjeva.
AS TO THE FACTS
7. The
applicants are a family of Bulgarian nationals, of Roma origin, who live in
Mr Anton Assenov was born in
1978, and his parents, Mrs Fidanka
Ivanova and Mr Stefan Ivanov, were born in 1956 and 1952 respectively.
A. Events of and following
1. Arrest
and detention
8. On
19 September 1992, while gambling in the market square in Shoumen,
Mr Assenov (then aged
14) was arrested by an off-duty policeman and taken to the nearby bus station,
where the officer called for back-up.
9. Subsequently
Mr Assenov’s parents,
who were both working at the bus station, came and asked for their son’s
release. Mr Ivanov, as
a way of showing that he would administer any necessary punishment, took a
strip of plywood and hit his son. At some point two other policemen arrived.
The applicants allege that these officers hit the boy with truncheons. A
dispute ensued between the boy’s parents and the police, although it appears
that Mr Assenov
himself was unaggressive and compliant. He and his
father were handcuffed and forced into a police car. They were taken to the police
station, where they were detained for approximately two hours before being
released without charge. Mr Assenov
alleged to have been beaten with a toy pistol and with truncheons and pummelled in the stomach by officers at the police station.
2. Medical
evidence
10. On
11. The certificate concerning the first applicant stated that the
boy had a band-like haematoma about 5 cm long and 1
cm wide on the upper outer side of his right arm; three band-like haematomas, each about 6 cm long and 1 cm wide, on the
right side of his chest; another bruise about 4 cm long on the left scapula; a haematoma 2 cm in diameter on the back of the head; and five
grazes each about 5 cm long on the right chest.
The
certificate concerning Mrs Ivanova
stated that she had a bruise about 5 cm long on her left thigh.
The
doctor concluded that the bruises could have been inflicted as described by the
applicants.
3. Investigation
by the District Directorate of Internal Affairs
12. On
13. The
complaint was dealt with by Colonel P., an inspector with the personnel service
of the DDIA. On
14. Colonel
P. also ordered the three police officers present at the bus station and
the officer who had been on duty at the police station to submit written
explanations. This they did on 21, 22 and
According
to these statements, Sergeant B., who was off-duty and out of uniform, had been
passing the central bus station when he saw people gambling. He had arrested Mr Assenov and taken him to
the bus station from where he had called the police officer on duty. Thereupon Mr Ivanov had appeared,
shouted at the boy, and had hit him two or three times on the back with a
plywood strip. He and his wife, who had arrived shortly thereafter,
started protesting against their son’s arrest and pulling the boy. When
Sergeants S. and V.
arrived, the father had shouted, swore, and threatened the police officers, who
told him to be quiet and asked him to come voluntarily to the police station. A
crowd of about fifteen to twenty Roma had gathered; also present were
approximately twenty drivers from the bus station. Since Mr Ivanov had continued his violent behaviour,
the police officers had subdued him forcibly, handcuffed him and taken him and
his son to the police station.
There officer S. had filled out a form recording the seizure of 100 levs from Mr Assenov and then released the two applicants. It was not
true that they had been beaten at the police station.
15. On
16. Based
on this evidence, on
17. On
4. Investigation
by the regional military prosecution office
18. On
19. On
20. On
8 February 1993 investigator G. wrote to the Director of Police in Shoumen, instructing him to take evidence from the
applicants and the police officers and to report back. Since there had already
been an inquiry on the matter, on
21. It
is disputed whether investigator G. heard the applicants personally. The
Government allege that he did, but there is no record
of this on file.
22. On
23. On
5. Appeal to the general military prosecution office
24. On
25. The
appeal was submitted through the RMPO, which forwarded it to the GMPO on
26. On
“A
medical certificate is enclosed in the file, from which it appears that there
were haematomas on the juvenile’s body, indicating
superficial bodily harm, and corresponding, in terms of mechanism of
infliction, to blows with a band-like solid object.
The
deputy regional prosecutor correctly considered that even if blows were
administered on the body of the juvenile, they occurred as a result of
disobedience to police orders. The physical force and auxiliary means employed
were in accordance with section 24(1), points 1 and 2, of the Law on National
Police now in force [see paragraph 56 below].”
6. Further
investigation by the regional military prosecution office
27. Apparently
as a result of continued complaints from the applicants and pressure from the
Ministry of Justice to re-examine the matter, on 13 July 1993 the GMPO
wrote to the RMPO, stating that preliminary inquiries regarding alleged police
misconduct should include the examination of independent witnesses, and that
further investigations should therefore be carried out.
28. The
RMPO took statements from a bus driver and a bus station employee on 29 and
29. These additional investigations apparently did not conclude with
the delivery of a formal decision. Their results were not communicated to the
applicants.
7. Appeal
to the Chief General Prosecutor
30. On
31. This
appeal was apparently transferred to the GMPO, which wrote to the applicants’
lawyer on
B. Mr Assenov’s arrest on
1. Arrest,
detention and investigation
32. In
January 1995, Mr Assenov
was questioned by the Shoumen prosecuting authorities
in connection with an investigation into a series of thefts and robberies.
33. He
was arrested on 27 July 1995 and the following day, in the presence of his
lawyer and a prosecutor (“K.”), he was questioned by an investigator and
formally charged with ten or more burglaries, allegedly committed between 9
January and 2 May 1995, and six robberies committed between 10 September 1994
and 24 July 1995, all involving attacks on passers-by on the street. Mr Assenov admitted most of
the burglaries but denied having committed the robberies.
The
decision was taken to detain him on remand. This decision was approved the same
day by another prosecutor, “A.” (see paragraph 69
below).
34. On 27 July, 2 August, 7 August and
It
would appear that, in the course of the investigation, approximately sixty
witnesses and alleged victims were examined, but that no evidence was collected
after September 1995.
2. Pre-trial
detention, July 1995–July 1997
35. Between
There
is a dispute between the parties as regards the conditions of his detention
there. The applicant submits that he was held in a cell measuring 3 x 1.80
metres, which he shared at times with two to four
other detainees; that the cell was almost entirely below ground level, with
very limited light and fresh air; that he could not exercise or engage in any
activity in his cell; and that he was let out of his cell only twice a day, to
go to the toilet. The Government submit that the cell
measured 4.60 x 3.50 metres and that the applicant
shared it with only one other detainee.
36. The
applicant submitted numerous requests for release to the prosecuting
authorities, referring, inter alia, to the facts that no further evidence had to be collected
and that he was suffering from health problems exacerbated by the conditions of
his detention and had two young children. It appears that some of these
applications were assessed individually, and that others were grouped and
examined several months after their submission.
37. On
38. On
On
39. On
40. The
applicants appealed to the Chief Public Prosecutor’s Office stating, inter alia, that there had been a “campaign” against them
because of their application to the Commission.
In
its decision of 8 December 1995 the Chief Public Prosecutor’s Office dismissed
the applicants’ arguments and stated that, although the investigation had been
completed by September 1995, it was still necessary to detain Mr Assenov because there was
a clear danger that he would resume his criminal activities. However, the view was
expressed that prolonged detention in the premises of the Shoumen
police would be harmful to the applicant’s “physical and mental development”
and that he should therefore be moved to the Boychinovzi
juvenile penitentiary.
The
transfer took place three and a half months later, on
41. On
an unspecified date in 1996, Mr Assenov again challenged his detention on remand before the
Shoumen District Court.
On
42. On
43. On
44. In
the meantime, on
Mr Assenov. It appears
that on
45. Between
5 July and
46. Throughout
1996 the applicants continued to submit requests for Mr Assenov’s release to the prosecuting authorities. By
decisions of 21 February and
47. On
48. In
July 1997 Mr Assenov
was convicted of four street robberies and sentenced to thirty months’
imprisonment.
According
to the information available to the Court, he has not yet been indicted in
relation to the burglary charges pending against him.
C. Events following the application to the
Commission
49. The
applicants’ complaint was lodged with the Commission on
50. On
15 May, 23 May and
51. On
an unspecified date the prosecuting authorities or the police approached the
applicants and asked them to declare whether they had made an application to
the Commission. On
prepared by human rights associations. However, they had not been given copies
of the documents and did not know their contents. One of the documents had been
in a foreign language.
52. It
would appear that this declaration was then submitted to the prosecuting
authorities. On
53. The
transcript of Mr Assenov’s
questioning after his arrest on
“In
1992 ... I was beaten by policemen ... [at the bus station]. Thereafter I
obtained a medical certificate and my father complained to the police. They did
not look at it seriously and he submitted it to the military prosecution
office. They did not take it seriously either. Then my father heard that there
were some people from an international human rights organisation
[in town]. My father brought me there and showed them how I was beaten. In
fact, after my release from the police my father brought me first to these
people and then wrote to the police and to the prosecution authorities.”
Since
the minutes record only that said by Mr Assenov, it cannot be established whether or not his
statement was made in response to questioning.
ii. relevant domestic law and practice
A. Gambling
54. Gambling
is an administrative offence under Bulgarian law, for which individuals under
sixteen years of age are not liable (section 2(2) of the Law against
Speculation).
B. Police powers relevant to the 1992
arrests and detention
55. Section
20(1) of the Law on National Police (1976), which applied at the relevant time,
provided that a police officer could take to a police station or local
government office only those persons:
“1. whose identity may not be established;
2. who behave violently and do not obey after warning;
3. who refuse to come voluntarily to a police station without
serious reasons for refusal, after having been notified under section 16 of the
present Act;
4. who wilfully
create obstacles for the authorities of the Ministry of Internal Affairs in
carrying out their duties;
5. who carry or use without lawful permission firearms, other
weapons or other dangerous objects;
6. in other cases prescribed by law.”
According
to section 20(2) of this Law, in each of the above cases the police were
required to carry out an immediate investigation and release the person held
within three hours, unless it was necessary to take further lawful measures in
respect of him or her.
56. Section
24(1) contained provisions on the use of force by police officers. The use of
force “adequate to the character and seriousness of the offence and resistance”
(section 24(2)), was permitted:
“1. to bring an end to violent conduct or other
serious violation of the public order;
2. in
cases of obvious disobedience to police orders or prohibition;
3. during arrest or convoy where there is danger of
absconding or for the life of the person arrested or conveyed or for other
persons.”
C. Remedies against ill-treatment by police
1. Criminal
remedies
57. Article 190
of the Code of Criminal Procedure (1974) (“CCP”) states:
“There
shall be considered to exist sufficient evidence for
the institution of criminal proceedings where a reasonable supposition can be
made that a crime might have been committed.”
58. In
respect of most serious crimes, and all crimes allegedly committed by civil
servants in the exercise of their duties, criminal proceedings cannot be
brought by a private individual, but only by the decision of a public
prosecutor (CCP, Articles 192 and 282–85).
According
to Articles 192 and 194 § 3 of the CCP, when a prosecutor has refused to
institute criminal proceedings, such proceedings can be instituted by a higher
prosecutor upon the petition of the interested person or ex officio.
59. The
victim of an alleged crime can join criminal proceedings as a civil party in
order to seek compensation (CCP, Chapter II, Articles 60–64).
2. Civil remedies
60. The
Law on Obligations and Contracts provides in section 45 that a person who has
suffered damage can seek redress by bringing a civil action against the person
who has, through his fault, caused the damage. The Law on State Responsibility
for Damage provides that a person who has suffered damage due to the unlawful
act of a civil servant can bring an action against the State authority
concerned.
61. The
Code of Civil Procedure provides, in Articles 182(d) and 183, that a court
examining a civil action:
“182. … shall suspend the proceedings:
(d) whenever criminal elements, the determination of which is
decisive for the outcome of the civil dispute, are discovered in the course of
the civil proceedings.
183. Proceedings which have been suspended shall be
resumed ex officio or upon a party’s petition after the respective
obstacles have been removed...”
Article 222
of the Code of Civil Procedure provides:
“The
findings contained in a final judgment of a criminal court and concerning the
issue whether the act in question has been committed, its unlawfulness and the
perpetrator’s guilt, are binding on the civil court when it examines the civil
consequences of the criminal act.”
62. The
parties have submitted to the Court a number of decisions of the Bulgarian
Supreme Court as to the effect of the above provisions.
In
decision no. 3421 of
“In
principle the fact of a crime may only be established under the procedures of
the Code of Criminal Procedure. This is why, when an alleged civil right
derives from a fact which constitutes a crime under the Criminal Code, the
civil court, according to Article 182(d) of the Code of Civil Procedure,
is obliged to suspend the civil proceedings.
This
is necessary in order to respect the decision of the criminal court. It is
mandatory for the civil courts regardless of the crime in issue. The mandatory
binding force of the decisions of criminal courts is set out in
Article 222 of the Code of Civil Procedure.”
In
decision no. 12/1966, the Plenary Civil Division of the Supreme Court held
as follows:
“The
decision of the prosecution to terminate the criminal prosecution based on a
finding that the accused is not guilty of committing the criminal act does not
bind the civil court which examines the civil consequences of this act... [T]he
civil court, on the
basis of evidence [collected] in the course of the civil proceedings, can reach
different factual findings, for example that the tort was in fact caused by the
same person, the criminal prosecution against whom had been terminated.
If
in the course of the civil proceedings, after collection of evidence, fresh
criminal circumstances are discovered, the determination of which is decisive
for the outcome of the civil dispute, the court is obliged to suspend the
proceedings in accordance with Article 182(d) of the Code of Civil
Procedure.”
In
interpretative decision no. 11 of
“…
In principle a civil court may not establish whether any particular act
constitutes a crime. But when the criminal proceedings were closed under
Article 6 § 21 of the Code of Criminal Procedure [where the criminal
procedure was closed following the death of the alleged perpetrator, expiry of
the time-limit for prosecution or where an amnesty has been granted], the
criminal court does not make a decision whether the act constitues
a crime. In such cases, the law – Article 97 § 4 of the Code of Civil
Procedure – provides a possibility for the civil court to establish in a
separate procedure whether the act constitutes a crime and who was the
perpetrator.”
In
decision no. 817 of
“In
dismissing the claim, the first-instance court had found that the only one
responsible for the car accident was the claimant, who, at a distance of about
ten metres, suddenly jumped in front of the car in
order to cross the street and therefore, despite the measures taken by the
driver, the collision was not avoided.
This
conclusion was based on the fact that the criminal investigation against the
driver had been closed on the grounds of lack of evidence, ill-foundedness, lack of some of the elements comprising a
crime in the accusation and lack of guilt.
The
court was not required to rely on the prosecutor’s decision to terminate the
criminal investigation by Article 222 of the Code of Civil Procedure [see
paragraph 61 above], which states that only the final judgment of a
criminal court is binding on the court which deals with the civil consequences
of the act in question. The order of a prosecutor closing an investigation has
no evidential weight and his/her findings are not binding on the court dealing
with the civil consequences of the act. Where there is no verdict of a criminal
court finding the accused not guilty of causing the injuries of the claimant,
the civil court must establish whether the defendant was guilty or not guilty
on the basis of all admissible evidence under the Code of Civil Procedure.
Thus, in the present case, the order of the prosecutor closing the
investigation had no evidential weight that the defendant was not guilty for
the car accident.”
D. Crimes allegedly committed by Mr Assenov 1994–1995
63. In
connection with the alleged burglaries, Mr Assenov was charged with an offence the elements of which
are continuous criminal activity by a minor consisting of burglaries committed
with accomplices and involving breaking in to locked premises, where the amount
stolen is significant. The maximum punishment for this offence is three years’
imprisonment (Criminal Code 1968 (“CC”), Article 195 §§ 1(3), 1(5)
and 2 in conjunction with Articles 26 § 1 and 63 § 1(3)).
64. In
connection with the alleged robberies, he was charged with an offence of
continuous criminal activity by a minor, committed with accomplices, consisting
of robberies, defined as stealing with the use of force or threats. The
punishment is up to five years’ imprisonment (CC, Article 198
§ 1 in conjunction with Articles 26 § 1 and
63 § 1(2)).
65. Pursuant
to Articles 23–25 of the CC, the maximum sentence which Mr Assenov could have
received if convicted of all the charges against him was six and a half years’
imprisonment.
E. The prosecuting authorities
66. According
to the relevant provisions of the CCP and legal theory and practice, the
prosecutor performs a dual function in criminal proceedings.
During
the preliminary stage he supervises the investigation. He is competent, inter
alia, to give mandatory instructions to the
investigator; to participate in examinations, searches or any other acts of
investigation; to withdraw a case from one investigator and assign it to
another, or to carry out the entire investigation, or parts of it, himself. He
may also decide whether or not to terminate the proceedings, order additional
investigations, or prepare an indictment and submit the case to court.
At
the judicial stage he is entrusted with the task of prosecuting the accused.
67. The
investigator has a certain independence from the prosecutor in respect of his
working methods and particular acts of investigation, but performs his
functions under the latter’s instructions and supervision (CCP,
Articles 48 § 2 and 201). If an investigator objects to the prosecutor’s
instructions, he may apply to the higher prosecutor, whose decision is final
and binding.
68. Under Article 86 of the CCP, the prosecutor and the
investigator are under an obligation to collect both incriminating and
exonerating evidence. Throughout criminal proceedings, the prosecutor must “effect a supervisory control of lawfulness” (CCP,
Article 43).
F. Provisions on pre-trial detention
1. Power
of prosecuting authorities to detain on remand
69. An
accused, including a minor, can be detained on remand by decision of an investigator
or prosecutor, although minors may be detained on remand only in exceptional
circumstances. In cases where the decision to detain has been taken by an
investigator without the prior consent of a prosecutor, it must be approved by
a prosecutor within twenty-four hours. The prosecutor usually makes this
decision on the basis of the file, without hearing the accused (CCP,
Articles 152, 172, 201–03 and 377–78).
70. A
criminal investigation must be concluded within two months. A prolongation of
up to six months may be authorised by a regional
prosecutor and, in exceptional cases, the Chief Public Prosecutor may prolong
the investigations up to nine months. If the period is prolonged, the
prosecutor will decide whether to hold the accused in custody (CCP,
Article 222).
71. There
is no legal obstacle preventing the prosecutor who has taken the decision to
detain an accused on remand, or has approved an investigator’s decision, from
acting for the prosecution against the accused in any subsequent criminal
proceedings. In practice this frequently occurs.
2. Judicial
review of pre-trial detention
72. A
person detained on remand has the opportunity immediately to file an appeal
with the competent court against the imposition of detention. The court must
rule within three days of the filing of the appeal (CCP, Article 152
§ 5).
73. According
to the practice which was current at the time of Mr Assenov’s arrest, the court examines appeals against
detention on remand in camera, without the participation of the parties.
If the appeal is dismissed, the court does not notify the detained person of
the decision taken.
74. The
First Criminal Division of the Supreme Court has held that, in deciding on such
appeals, it is not open to the court to inquire whether there exists sufficient
evidence supporting the charges against the detainee, but only to examine the
lawfulness of the detention order. A detention order will
only be lawful, in cases of persons charged with crimes punishable by less than
ten years’ imprisonment, where there is a “real danger” of the accused
absconding or reoffending (decision no. 24 in
case no. 268/95).
75. In
a decision of
76. Periodic
judicial review of the lawfulness of detention on remand becomes possible only
when the criminal case is pending before a court, which can then decide whether
or not to release the accused.
PROCEEDINGS BEFORE THE COMMISSION
77. The
applicants applied to the Commission on
78. The
Commission declared the application (no. 24760/94) admissible on
In
connection with the events since 1995, it expressed the unanimous opinions that
there had been no violation of Article 5 § 1 and no violation of
Article 3, but that there had been violations of Article 5 §§ 3
and 4 and that
The
full text of the Commission’s opinion and of the partly dissenting opinion
contained in the report is reproduced as an annex to this judgment1.
FINAL SUBMISSIONS TO THE COURT
79. In
their memorial and at the oral hearing, the Government asked the Court to
reject the applicants’ claims.
Mr Assenov asked the Court
to find violations of Articles 3, 5, 6, 13 and, together with his parents,
25 of the Convention, and all three applicants asked to be awarded just
satisfaction under Article 50.
AS TO THE LAW
i. THE applicants
80. At
the hearing before the Court, the applicants’ representative explained that,
although for the purposes of the proceedings before the Commission Mr Assenov’s parents had
joined his various complaints, they had done so only because at that time he
had been a minor and thus lacking in capacity under Bulgarian law. The current
position was that Mr Assenov
was the sole applicant in respect of all the complaints except that under
Article 25 of the Convention, which he brought jointly with his parents.
81. The
Court will, therefore, in respect of all the complaints save that under
Article 25, only consider whether there have been violations of Mr Assenov’s rights. In
respect of the Article 25 complaint it will also examine the position of Mr Ivanov and Mrs Ivanova.
ii. events of and following
A. The
Government’s preliminary objections
1. Alleged
non-exhaustion of domestic remedies
82. The
Government contended that Mr Assenov’s
complaint under Article 3 concerning the events of
“The
Commission may only deal with the matter after all domestic remedies have been
exhausted, according to the generally recognised
rules of international law…”
In the Government’s submission, in addition to applying for a criminal
prosecution to be brought against the police officers, the applicant could have
brought civil proceedings under section 45 of the Law on Obligations and
Contracts or administrative proceedings under the Law on State Responsibility
for Damage.
83. At
the hearing before the Court, the applicant stated that it was difficult to
imagine what additional steps he could have been expected to take in order to
trigger the remedies formally available under Bulgarian law.
84. In
its decision on admissibility, the Commission recalled that civil compensation
could not be deemed fully to rectify a breach of Article 3. It found that,
in complaining to the District Directorate of Internal Affairs (“DDIA”) and all
levels of the prosecuting authorities, the applicants had done all they could
to seek the institution of criminal proceedings against the police officers,
thus putting their complaint in the hands of the authorities most competent to
pursue it.
85. The
Court recalls that the rule of exhaustion of domestic remedies referred to
in Article 26 of the Convention obliges those seeking to bring their case
against the State before an international judicial or arbitral organ to use first
the remedies provided by the national legal system, thus dispensing States from
answering before an international body for their acts before they have had an
opportunity to put matters right through their own legal systems. In order to
comply with the rule, normal recourse should be had by an applicant to remedies
which are available and sufficient to afford redress in respect of the breaches
alleged (see the Aksoy v. Turkey judgment of 18 December 1996, Reports
of Judgments and Decisions 1996-VI, pp. 2275–76, §§ 51–52).
86. The
Court recalls that under Bulgarian law it is not possible for a complainant to
initiate a criminal prosecution in respect of offences allegedly committed by
agents of the State in the performance of their duties (see paragraph 58 above).
It notes that the applicants made numerous appeals to the prosecuting
authorities at all levels, requesting that a full criminal investigation be
carried out into Mr Assenov’s
allegations of ill-treatment by the police and that the officers concerned be
prosecuted (see paragraphs 12–31 above).
It
considers that, having exhausted all the possibilities available to him within
the criminal justice system, the applicant was not required, in the absence of
a criminal prosecution in connection with his complaints, to embark on another
attempt to obtain redress by bringing a civil action for damages.
It
follows, therefore, that the Government’s preliminary objection must be
rejected.
2. Alleged
abuse of process
87. In
addition, the Government alleged that the applicant’s allegations had not been
substantiated and had been designed to mislead the Commission, thus
constituting an abuse of the right of petition. The application should,
therefore, have been rejected under Article 27 § 2 of the Convention,
which states:
“The
Commission shall consider inadmissible any petition … which it considers
incompatible with the provisions of the … Convention, manifestly ill-founded,
or an abuse of the right of petition.”
88. Having
examined the applicant’s complaints, the Commission expressed the view in its
decision on admissibility that they raised serious questions of fact and law
which required full examination on the merits.
89. The
Court finds no grounds that the present case was brought before the Commission
in abuse of the right of petition.
It
therefore rejects this preliminary objection of the Government.
B. Merits
1. Alleged
violation of Article 3 of the Convention
90. Mr Assenov alleged that the
events of
“No
one shall be subjected to torture or to inhuman or degrading treatment or
punishment.”
He
contended that this Article had been breached on two separate grounds.
First, he asked the Court itself to examine the medical evidence and witness
statements which, he alleged, demonstrated that he had been severely beaten by
police officers.
Secondly,
joined by the interveners (see paragraph 5 above), he asked the Court to
declare that wherever there were reasonable grounds to believe that an act of
torture or inhuman or degrading treatment or punishment had been committed, the
failure of the competent domestic authorities to carry out a prompt and
impartial investigation in itself constituted a violation of Article 3.
91. The
Government pointed out that the applicant’s medical certificate was unreliable
because it had been issued two days after the incident in question. In any
case, the injuries which it described, and the absence of any
certificate relating to Mr Ivanov,
were consistent with the witnesses’ accounts of the father having beaten his
son with a thin strip of wood.
92. In
assessing the evidence before it, the Commission had regard to the principle
that where an individual alleges to have been injured by ill-treatment in
custody, the Government are under an obligation to provide a complete and
sufficient explanation as to how the injuries were caused (see the Ribitsch v.
Austria judgment of 4 December 1995, Series A no. 336,
pp. 25–26, § 34, and the above-mentioned Aksoy
judgment, p. 2278, § 61). It accepted, inter alia,
that a quarrel had erupted at the bus station between the police officers and Mr Ivanov, that the latter had hit his son with a plywood strip in an
effort to show that he would punish the boy himself and that both applicants
were then detained at the police station for approximately two hours. However,
more than four and a half years after these events, and owing to the lack of a
sufficiently independent and timely investigation by the domestic authorities,
the Commission was not able to establish which version of events was the more
credible. It did not, therefore, find any violation of Article 3.
93. Article 3,
as the Court has observed on many occasions, enshrines one of the fundamental
values of democratic society. Even in the most difficult of circumstances, such
as the fight against terrorism or crime, the Convention prohibits in absolute
terms torture or inhuman or degrading treatment or punishment. Unlike most of
the substantive clauses of the Convention and of Protocols Nos. 1 and 4,
Article 3 makes no provision for exceptions and no derogation from it is
permissible under Article 15 even in the event of a public emergency
threatening the life of the nation (see the above-mentioned Aksoy
judgment, p. 2278, § 62).
94. The
Court recalls that ill-treatment must attain a minimum level of severity if it
is to fall within the scope of Article 3. The assessment of this minimum
is relative: it depends on all the circumstances of the case, such as the
duration of the treatment, its physical and/or mental effects and, in some
cases, the sex, age and state of health of the victim. In respect of a person
deprived of his liberty, recourse to physical force 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 the Tekin v.
Turkey judgment of 9 June 1998, Reports 1998-IV, pp. 1517–18,
§§ 52 and 53).
95. The
Court considers that the degree of bruising found by the doctor who examined Mr Assenov (see
paragraph 11 above) indicates that the latter’s injuries, whether caused
by his father or by the police, were sufficiently serious to amount to
ill-treatment within the scope of Article 3 (see, for example, the A. v. the United Kingdom
judgment of 23 September 1998, Reports 1998-VI, p. 2699,
§ 21, and the above-mentioned
Ribitsch judgment, pp. 9 and 26, §§ 13
and 39). It remains to be considered whether the State should be held responsible
under Article 3 in respect of these injuries.
(a) Alleged
ill-treatment by the police
96. The
Court recalls that the Commission was unable, on the basis of the evidence
before it, to establish how the applicant’s injuries were caused (see paragraph 92
above).
97. The
Court observes that the doctor who examined Mr Assenov two days after the latter was released from police
custody found that the bruises on his body indicated that he had been beaten
with a solid object (see paragraph 26 above). The applicant alleged that
these injuries had been caused by police officers who beat him with truncheons.
98. The
Court considers that, since it is not disputed that the applicant was the
victim of violence from some source on 19 September 1992, and since there is no
suggestion of anything untoward having occurred between that date and his
medical examination, it is fair to assume that he sustained the above bruising
on 19 September 1992 in connection with his arrest.
99. The
Court further notes that the arresting officer testified in his witness
statement that he had seen Mr Ivanov hit his son on the back two or three times with a
narrow wooden stick (see paragraph 14 above). It was not denied by the
applicants that Mr Ivanov
hit Mr Assenov in this
way, although it was denied that he did so with the force or frequency required
to cause the bruising described in the medical report. Following Mrs Ivanova’s complaint on
In
July 1993, unknown to the applicants, witness statements were taken from two
other bystanders at the bus station. One of these had only a vague recollection
of the events in question. The other, a bus driver, recalled seeing Mr Ivanov hit his son with a
lath, although he did not specify how prolonged or violent a beating this had
been (see paragraph 28 above).
None
of the witnesses, except the applicants, said that they had seen police
officers hitting Mr Assenov.
100. The Court, like the Commission (see paragraph 92 above),
finds it impossible to establish on the basis of the evidence before it whether
or not the applicant’s injuries were caused by the police as he alleged.
(b) Adequacy
of the investigation
101. The
Court does, however, consider that the medical evidence, Mr Assenov’s testimony, the fact that he was detained for two
hours at the police station, and the lack of any account from any witness of Mr Ivanov beating his son
with sufficient severity to cause the reported bruising, together raise a
reasonable suspicion that these injuries may have been caused by the police.
102. The
Court considers that, in these circumstances, where an individual raises an
arguable claim that he has been seriously ill-treated by the police or other
such agents of the State unlawfully and 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, as with that under Article 2, should be capable of leading
to the identification and punishment of those responsible (see, in relation to
Article 2 of the Convention, the McCann and Others v. the United Kingdom judgment of 27 September
1995, Series A no. 324, p. 49, § 161, the Kaya v.
Turkey judgment of 19 February 1998, Reports 1998-I, p. 324,
§ 86, and the Yasa v. Turkey judgment of 2 September 1998, Reports
1998-VI, p. 2438, § 98). If this were not the case, the general legal
prohibition of torture and inhuman and degrading treatment and punishment,
despite its fundamental importance (see paragraph 93 above), would be
ineffective in practice and it would be possible in some cases for agents of
the State to abuse the rights of those within their control with virtual
impunity.
103. The
Court notes that following Mrs Ivanova’s complaint, the State authorities did carry out
some investigation into the applicant’s allegations. It is not, however,
persuaded that this investigation was sufficiently thorough and effective to
meet the above requirements of Article 3. In this respect it finds it
particularly unsatisfactory that the DDIA investigator was prepared to conclude
that Mr Assenov’s
injuries had been caused by his father (see paragraph 16 above), despite
the lack of any evidence that the latter had beaten his son with the force
which would have been required to cause the bruising described in the medical
certificate. Although this incident had taken place in public view at the bus
station, and although, according to the statements of the police officers
concerned, it was seen by approximately fifteen to twenty Roma and twenty bus
drivers, no attempt appears to have been made to ascertain the truth through
contacting and questioning these witnesses in the immediate aftermath of the
incident,
when memories would have been fresh. Instead, at that time a statement was
taken from only one independent witness, who was unable to recall the events in
question (see paragraph 99 above).
104. The
initial investigation carried out by the regional military prosecution office
(RMPO) and that of the general military prosecution office (GMPO) were even
more cursory. The Court finds it particularly striking that the GMPO could
conclude, without any evidence that Mr Assenov had not been compliant, and without any explanation
as to the nature of the alleged disobedience, that “even if the blows were
administered on the body of the juvenile, they occurred as a result of
disobedience to police orders” (see paragraph 26 above). To make such an
assumption runs contrary to the principle under Article 3 that, in respect
of a person deprived of his liberty, recourse to physical force which has not
been made strictly necessary by his own conduct is in principle an infringement
of his rights (see paragraph 94 above).
105. The
Court notes that in July 1993 the GMPO decided that in cases of alleged police
misconduct it was necessary to take evidence from independent witnesses (see
paragraph 27 above). However, the examination of two further witnesses,
one of whom had only a vague recollection of the incidents in question, was not
sufficient to rectify the deficiencies in the investigation up to that point.
106. Against
this background, in view of the lack of a thorough and effective investigation
into the applicant’s arguable claim that he had been beaten by police officers,
the Court finds that there has been a violation of Article 3 of the
Convention.
2. Alleged
violation of Article 6 § 1 of the Convention
107. Mr Assenov claimed to have
been denied effective access to a court, in breach of Article 6 § 1
of the Convention, which provides, inter alia:
“In
the determination of his civil rights and obligations …, everyone is entitled
to a fair and public hearing within a reasonable time by an independent and
impartial tribunal established by law…”
108. The
applicant submitted that the decision of the prosecuting authorities not to
bring criminal proceedings against the police officers who allegedly
ill-treated him had, in effect, operated to deny him access to a court in
respect of his civil claim for damages arising out of the same incident. Thus,
since no criminal proceedings had been instigated, it had not been open to him
to join such proceedings as a civil party in order to claim compensation (see
paragraph 59 above). Moreover, although he accepted
that it would in theory have been possible for him to bring an action for
damages in the civil courts, he maintained that, since the damage in question
arose out of an alleged criminal act, a civil court would have been obliged,
under Article 182(d) of the Code of Civil Procedure (see
paragraphs 61–62 above), to stay any such action until the issue of
criminal liability had been decided. Given the likelihood of delay inherent in
Bulgarian criminal procedure, this suspension might, in practice, have been
indefinite.
109. The
Commission, joined by the Government (see also paragraph 82 above), noted
that the Law on Obligations and Contracts and the Law on State Responsibility
for Damage provided for an action for damages to the civil courts in relation
to alleged acts of police brutality. Had the applicant brought such an action,
a civil court could have examined it on the basis of the evidence before it,
without having first to establish criminal responsibility. According to
Bulgarian case-law, the civil court would only have had to suspend the
proceedings under Article 182(d) of the Code of Civil Procedure if it had
discovered new “criminal elements”, for example, facts of which the prosecuting
authorities had not previously been aware. The Commission did not consider that
this procedure would have operated to impair the very essence of the right of
access to a court in the applicants’ case.
110. The
Court notes that none of those appearing before it disputed that any claim for
damages brought by the applicant and based on alleged ill-treatment by the
police would have involved “the determination of his civil rights”. It agrees
that Article 6 § 1 is, for that reason, applicable.
111. The
Court further notes that the applicant did not deny that both the Law on
Obligations and Contracts and the Law on State Responsibility for Damage
provided him with causes of action which would have enabled him to commence
proceedings in the civil courts. He did, however, contend that any such action
would have been stayed, perhaps indefinitely, under Article 182(d) of the
Code of Civil Procedure.
112. Having
regard to the Bulgarian case-law which has been submitted to it by the parties
(see paragraph 62 above), the Court notes that the Supreme Court has held,
in a case involving a car accident, that a civil court is not bound by the
decision of the prosecuting authorities terminating a criminal investigation.
The applicant has argued that this rule would not have been applied in his
own case, based as it was on allegations of criminal acts much more serious
than careless driving. This is, however, a matter of pure speculation, since Mr Assenov did not attempt
to bring civil proceedings. In these circumstances, it cannot be said that he
was denied access to a court or deprived of a fair hearing in the determination
of his civil rights.
113. It follows that there has been no violation of Article 6
§ 1 of the Convention.
3. Alleged
violation of Article 13 of the Convention
114. The
applicant also claimed to have been denied an effective remedy in respect of
his Convention complaints, in breach of Article 13, which states:
“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.”
He
submitted that, in cases of alleged ill-treatment contrary to Article 3,
the State authorities were under an obligation under Article 13 to
investigate promptly and impartially.
115. The
Government contended that there had been effective remedies available to the
applicant in connection with his allegation of police ill-treatment. This was
demonstrated by the fact that, prior to his application to the Commission, he
had lodged complaints with the Regional Directorate in Shoumen,
the RMPO in
116. The
Commission found that the applicant had had an arguable claim to have been
ill-treated by the police. The official investigation had not been sufficiently
thorough and independent to satisfy Article 13.
117. The
Court recalls that Article 13 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 this Article is thus to require the provision of a
domestic remedy allowing the competent national authority both to deal with the
substance of the relevant Convention complaint and to grant appropriate relief,
although Contracting States are afforded some discretion as to the manner in
which they conform to their 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. Where an individual has an
arguable claim that he has been ill-treated in breach of Article 3, the
notion of an effective remedy entails, in addition to a thorough and effective
investigation of the kind also required by Article 3 (see
paragraph 102 above), effective access for the complainant to the
investigatory procedure and the payment of compensation where appropriate (see
the above-mentioned Aksoy judgment, pp. 2286 and
2287, §§ 95 and 98).
118. The Court refers to its above findings that Mr Assenov had an arguable claim that he had been ill-treated
by agents of the State and that the domestic investigation of this claim was
not sufficiently thorough and effective.
It
follows from these findings that there has also been a violation of
Article 13 of the Convention.
ii. Events of and following july
1995
A. The
Government’s preliminary objections
1. Alleged
non-exhaustion of domestic remedies
119. The
Government submitted to the Court that the complaints concerning the events of
and subsequent to July 1995 should have been declared inadmissible under
Article 26 of the Convention (see paragraph 82 above) since criminal
proceedings were still pending against the applicant. Moreover, the applicant
had not appealed to the Attorney-General against the order refusing his release
of
120. The
Commission, in its decision on admissibility, found that the applicant had utilised every remedy available in connection with his
complaints under Article 5.
121. The
Court notes that Mr Assenov’s
complaints under this heading concern various aspects of his detention from
July 1995 onwards. It is therefore immaterial that the criminal prosecution
against him was still pending at the time of his application to the Commission,
since these criminal proceedings would not have provided him with any remedy in
respect of the alleged unlawfulness of his preceding detention.
122. The
Court further notes that Mr Assenov
and his parents on his behalf made numerous requests for his release to the
prosecuting authorities and the Shoumen District
Court. In these circumstances, it considers that the applicant has satisfied
the requirements of Article 26 of the Convention (see paragraph 85
above).
It
follows that the Government’s preliminary objection must be rejected.
2. Alleged abuse of process
123. The
Government further contended that the allegations concerning the events of and
subsequent to July 1995 should have been declared inadmissible under
Article 27 § 2 of the Convention (see paragraph 87 above) since
they did not form part of the initial application to the Commission and were
not causally linked to the matters originally complained of.
124. At
the hearing before the Court, the Commission’s Delegate pointed out that the
Government had not raised at the admissibility stage
any objection concerning the alleged absence of connection between the
applicant’s various complaints and observed that they should, therefore, be estopped from raising this objection before the Court. The
Delegate stated that in any case applicants had the right to complain about any
violation of their Convention rights; it was merely a procedural matter whether
the complaints would be examined jointly or separately.
125. The
Court agrees that since the Government’s preliminary objection concerning an
alleged abuse of process was not raised before the Commission at the
admissibility stage of the proceedings, the Government is estopped
from raising it before the Court (see, amongst many other authorities, the Loizidou v.
Turkey judgment of 23 March 1995, (preliminary objections),
Series A no. 310, p. 19, § 44).
126. The
Government also contended that the allegations concerning the alleged failure
by the State to respect the right of individual petition under Article 25
of the Convention had not been substantiated and were, therefore, manifestly
ill-founded.
127. The
Court finds no evidence of abuse of process in connection with the complaints
in question.
It
therefore rejects the Government’s preliminary objection.
B. Merits
1. Alleged
violation of Article 3 of the Convention
128. In
the context of his complaint under Article 5 § 1 (see
paragraph 137 below) the applicant complained about the conditions of his
detention at Shoumen police station. He claimed to
have shared with two to four adult prisoners a cell, which measured 3 by 1.8 metres and was situated below ground level, with only one
bed and limited access to air and light. He stated that he was only permitted
to leave the cell for half an hour twice a day to go to the toilet.
129. The
Government alleged that the cell in which Mr Assenov was detained at Shoumen
measured 4.6 by 3.5 metres and was shared with only
one other detainee.
130. The
Commission considered that the applicant’s allegations concerning the
conditions of his detention, although initially raised under Article 5,
should be examined in relation to Article 3. Having assessed all the
facts, it did not find that the level of severity required for a breach of
Article 3 had been attained.
131. The
Court notes that the applicant has not expressly raised any complaint under
Article 3 of the Convention (see paragraph 90 above) in connection
with the conditions in which he was detained following his arrest in July 1995.
He has, however, made certain allegations about these conditions in the context
of his complaint about the legality of his detention under Article 5
§ 1.
132. The
Court recalls that it is master of the characterisation
to be given in law to the facts of the case as declared admissible by the
Commission (see the Guerra and Others v. Italy judgment of 19 February 1998, Reports 1998-I,
p. 242, § 44). It follows that it is open to it to consider the
applicant’s allegations concerning his conditions of detention in the light of
the guarantees against ill-treatment provided by Article 3.
133. The
Court observes that Mr Assenov,
then aged 17, was detained on remand for a total of almost eleven months at Shoumen police station. It notes that the precise
conditions of his detention there are disputed between the applicant and the
Government, particularly the dimensions of the cell in which he was held and
the number of prisoners with whom it was shared, and that the Commission made
no findings in respect of these detailed facts.
134. The
Court notes with concern that, while still a juvenile, the applicant was held
for almost eleven months in conditions which, in the view of the Chief Public
Prosecutor’s Office, would be harmful to his physical and mental development if
prolonged. It is noteworthy, moreover, that even after the decision was taken
to move him, a further three and a half months were
allowed to elapse before Mr Assenov
was transferred to the Boychinovzi juvenile
penitentiary (see paragraph 40 above).
135. It
is the Court’s task, however, to assess whether these conditions were
sufficiently severe to reach the level required for a finding of violation of
Article 3 (see paragraph 94 above). In doing so, it must have regard
to all the circumstances, such as the size of the cell and the degree of
overcrowding, sanitary conditions, opportunities for recreation and exercise,
medical treatment and supervision and the prisoner’s state of health.
136. Aside from the assertions of the parties, the Court has not
been presented with any objective evidence relating to the applicant’s
conditions of detention. It notes that the Commission made an overall
assessment and did not find that the applicant’s conditions of detention were
sufficiently severe as to violate Article 3. It further notes that the
only medical report in respect of the applicant during this period to which it
has been referred found, on 21 August 1995, after he had been detained for
approximately one month, that he was healthy and that, despite his parents’
fears in this respect, there was no reason based on heart-disease against his
continued imprisonment (see paragraph 37 above).
In
these circumstances, the Court does not find it established that the conditions
of Mr Assenov’s
detention were sufficiently severe as to give rise to a violation of
Article 3 of the Convention.
2. Alleged
violation of Article 5 § 1 of the Convention
137. Mr Assenov alleged that his
detention had been unlawful, contrary to Article 5 § 1 of the
Convention, which provides (as relevant):
“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;
…”
He
did not dispute that he had initially been detained for the purpose of bringing
him before a court in compliance with Article 5 § 1 (c). However, he
pointed out that the investigation into his alleged crimes had been completed
by September 1995 and he alleged that thereafter his pre-trial detention had
constituted a form of punishment, contrary to the presumption of innocence.
Moreover, he reminded the Court that under Bulgarian law a minor should only be
detained in exceptional circumstances (see paragraph 69 above).
138. The
Commission noted that the time-limits contained in Article 222 of the CCP
set restrictions on the length of any preliminary investigation but not of
detention on remand (see paragraph 70 above). Article 222 did require
that detention on remand following the prolongation of an investigation be
confirmed. However, the applicant’s continued detention
had complied with this requirement since it had been confirmed by the District
Court on
139. The
Court recalls that the expressions “lawful” and “in accordance with a procedure
prescribed by law” in Article 5 § 1 essentially refer back to national
law and state the obligation to conform to the substantive and procedural
rules thereof; but that they require in addition that any deprivation of
liberty should be in conformity with the purpose of Article 5, which is to
prevent persons from being deprived of their liberty in an arbitrary fashion
(see, for example, the Erkalo v. the Netherlands judgment of 2 September 1998, Reports
1998-VI, p. 2477, § 52).
140. In
the present case the Court, like the Commission, finds no evidence that the
applicant’s detention was unlawful under Bulgarian law. Moreover, it is clear
that Mr Assenov was
detained on reasonable suspicion of having committed an offence, as permitted
by Article 5 § 1 (c).
141. In
conclusion, therefore, the Court finds no violation of Article 5 § 1
of the Convention.
3. Alleged
violations of Article 5 § 3 of the Convention
142. Mr Assenov, who had been
detained on remand for approximately two years, complained of violations of his
rights under Article 5 § 3 of the Convention, which states:
“Everyone
arrested or detained in accordance with the provisions of paragraph 1 (c)
of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be
entitled to trial within a reasonable time or to release pending trial. Release
may be conditioned by guarantees to appear for trial.”
143. As
observed above, the applicant did not dispute that his detention, initially at
least, fell within the scope of Article 5 § 1 (c). It follows that
Article 5 § 3 is applicable.
The
Court will first consider whether it can be said that Mr Assenov was “brought promptly before a judge or other
officer authorised by law to exercise judicial
power”. Secondly, it will examine whether he was afforded a “trial within a
reasonable time”, including whether he should have been released pending trial.
(a) Right to be brought promptly before a judge or “other officer”
144. The
Government submitted that the various prosecutors who considered Mr Assenov’s applications
for release were “officer[s] authorised by law to
exercise judicial power” within the meaning of Article 5 § 3, since
under Bulgarian law a prosecutor was fully independent, under a duty to protect
the public interest and authorised to decide on a
number of questions arising in criminal proceedings, including whether or not
to detain an accused on remand.
145. The
Commission, with whom the applicant agreed, noted that although under Bulgarian
law investigators were institutionally independent, in practice they were
subject to the control of prosecutors with regard to every question concerning
the conduct of an investigation, including whether or not to detain a suspect
on remand. There was, therefore, a strong objective appearance that the investigator
who dealt with Mr Assenov
lacked independence from the prosecuting authorities, which were subsequently
to act as the opposing party in criminal proceedings.
146. The
Court reiterates that judicial control of interferences by the executive with
the individual’s right to liberty is an essential feature of the guarantee
embodied in Article 5 § 3 (see the above-mentioned Aksoy judgment, p. 2282, § 76). Before an
“officer” can be said to exercise “judicial power” within the meaning of this
provision, he or she must satisfy certain conditions providing a guarantee to
the person detained against any arbitrary or unjustified deprivation of liberty
(see the Schiesser v. Switzerland judgment of 4 December 1979,
Series A no. 34, p. 13, § 31).
Thus,
the “officer” must be independent of the executive and the parties (ibid.). In
this respect, objective appearances at the time of the decision on detention
are material: if it appears at that time that the “officer” may later intervene
in subsequent criminal proceedings on behalf of the prosecuting authority, his
independence and impartiality may be open to doubt (see the Huber v. Switzerland judgment of
23 October 1990, Series A no. 188, p. 18, § 43, and the Brincat v.
Italy judgment of 26 November 1992, Series A no. 249-A, p. 12,
§ 21). The “officer” must hear the individual brought before him in person
and review, by reference to legal criteria, whether or not the detention is
justified. If it is not so justified, the “officer” must have the power to make
a binding order for the detainee’s release (see the above-mentioned Schiesser judgment, pp. 13–14, § 31, and the
Ireland v. the United
Kingdom judgment of 18 January 1978, Series A no. 25, p. 76,
§ 199).
147. The Court notes at the outset that Mr Assenov’s application for release was not considered by a
judge until
148. The
Court recalls that on
149. Mr Assenov was not heard in
person by prosecutor A., who approved the investigator’s decision (see
paragraph 33 above), or by any of the other prosecutors who later decided
that he should continue to be detained. In any case, since any one of these
prosecutors could subsequently have acted against the applicant in criminal
proceedings (see paragraph 66 above), they were not sufficiently
independent or impartial for the purposes of Article 5 § 3.
150. The
Court considers, therefore, that there has been a violation of Article 5
§ 3 on the ground that the applicant was not brought before an “officer authorised by law to exercise judicial power”.
(b) Right
to trial within a reasonable time or release pending trial
151. The
Government submitted that the preliminary investigation had been complex and
time-consuming, involving the questioning of a number of alleged accomplices
and witnesses and the consideration of expert evidence. On
152. The Commission, attaching particular importance to the fact
that between September 1995 and September 1996 the preliminary investigation
had been practically dormant, found that Mr Assenov, who had then been detained on remand for over
twenty-three months, had been denied a trial within a reasonable time. The applicant
agreed with this conclusion.
153. The
Court observes that the period to be taken into consideration commenced on
154. The
Court reiterates that it falls in the first place to the national judicial
authorities to ensure that the pre-trial detention of an accused person does
not exceed a reasonable time. To this end, they must examine all the
circumstances arguing for and against the existence of a genuine requirement of
public interest justifying, with due regard to the principle of the presumption
of innocence, a departure from the rule of respect for individual liberty and
set these out in their decisions on the applications for release. It is
essentially on the basis of the reasons given in these decisions and of the
true facts mentioned by the detainee in his applications for release and his
appeals that the Court is called upon to decide whether or not there has been a
violation of Article 5 § 3.
The
persistence of reasonable suspicion that the person arrested has committed an
offence is a condition sine qua non for the validity of the continued
detention, but, after a certain lapse of time, it no longer suffices: the Court
must then establish whether the other grounds cited by the judicial authorities
continued to justify the deprivation of liberty. Where such grounds were
“relevant” and “sufficient”, the Court must also ascertain whether the
competent national authorities displayed “special diligence” in the conduct of
the proceedings (see the Toth v. Austria judgment of 12 December 1991,
Series A no. 224, p. 18, § 67).
155. The
Court recalls that on the two occasions when the legality of Mr Assenov’s detention was
reviewed by a court, his release was refused on the grounds that he was charged
with a number of serious crimes and that his criminal activity had been
persistent, giving rise to a danger that he would reoffend
if released (see paragraphs 38 and 47 above).
156. The Court notes that on 28 July 1995 Mr Assenov was charged with sixteen or more burglaries and
robberies, the latter involving some violence (see paragraph 33 above).
Although he had first been questioned in connection with the investigation into
this series of thefts in January 1995 (see paragraph 32 above), a
number of the offences with which he was charged were committed subsequently;
the last robbery having taken place on 24 July, three days before his arrest.
In
these circumstances, the Court considers that the national authorities were not
unreasonable in fearing that the applicant might reoffend
if released.
157. However,
the Court recalls that the applicant was a minor and thus, according to
Bulgarian law, should have been detained on remand only in exceptional
circumstances (see paragraph 69 above). It was, therefore, more than usually
important that the authorities displayed special diligence in ensuring that he
was brought to trial within a reasonable time.
The
Government have submitted that it took two years for the case to come to trial
because it was particularly complex, requiring a lengthy investigation.
However, it would appear from the information available to the Court that
during one of those years, September 1995 to September 1996, virtually no
action was taken in connection with the investigation: no new evidence was
collected and Mr Assenov
was questioned only once, on
158. Against
this background, the Court finds that Mr Assenov was denied a “trial within a reasonable time”, in
violation of Article 5 § 3.
4. Alleged
violation of Article 5 § 4 of the Convention
159. The
applicant further alleged that the respondent State had failed to comply with
Article 5 § 4 of the Convention, which provides:
“Everyone
who is deprived of his liberty by arrest or detention shall be entitled to take
proceedings by which the lawfulness of his detention shall be decided speedily
by a court and his release ordered if the detention is not lawful.”
160. The Government pointed out that Mr Assenov had taken the opportunity provided by the law as it
then stood to apply to a court for a review of the lawfulness of his detention.
Although the hearing had not been in public, the Shoumen
District Court had considered the written submissions of the parties as
contained in the case file.
They
also informed the Court that the law had been amended on
161. The
Commission, joined by the applicant, considered that the facts that the
applicant was then a minor and that the stated reason for his continued
detention was the risk of his reoffending suggested
that a hearing should have been held. Instead, the Shoumen
District Court, which moreover was not empowered to examine whether the
accusations against Mr Assenov
were supported by sufficient evidence (see paragraph 74 above), had
examined the question of his continued detention in camera, without the
participation of the parties (see paragraphs 38 and 73 above). Following
this application, it had not been possible for him to request a further
judicial review of his detention until the case had been sent for trial (see
paragraphs 41, 47 and 75 above). In consequence, and in breach of
Article 5 § 4, the first personal contact enjoyed by the applicant
with an impartial judicial authority competent to review the lawfulness of his
detention appeared to have taken place on 6 February 1997, approximately
nineteen months after his arrest.
162. The
Court recalls that by virtue of Article 5 § 4, an arrested or
detained person is entitled to bring proceedings for the review by a court of
the procedural and substantive conditions which are essential for the
“lawfulness”, in the sense of Article 5 § 1 (see paragraph 139
above), of his or her deprivation of liberty (see the above-mentioned Brogan
and Others judgment, p. 34, § 65).
Although
it is not always necessary that the procedure under Article 5 § 4 be
attended by the same guarantees as those required under Article 6 § 1
of the Convention for criminal or civil litigation (see the Megyeri
v. Germany judgment of
12 May 1992, Series A no. 237-A, p. 11, § 22), it must have
a judicial character and provide guarantees appropriate to the kind of
deprivation of liberty in question. In the case of a person whose detention
falls within the ambit of Article 5 § 1 (c), a hearing is required
(see the above-mentioned Schiesser judgment,
p. 13, §§ 30–31, the Sanchez-Reisse v. Switzerland judgment of
21 October 1986, Series A no. 107, p. 19, § 51, and the Kampanis v.
Greece judgment of 13 July 1995, Series A no. 318-B, p. 45,
§ 47).
Furthermore, Article 5 § 4 requires that a person detained on remand
must be able to take proceedings at reasonable intervals to challenge the
lawfulness of his detention (see the Bezicheri v.
163. The
Court recalls that the Shoumen District Court examined
Mr Assenov’s
application for release in camera, without hearing him in person (see
paragraphs 38 and 73 above). Whilst the Court notes that the relevant law
has subsequently been amended to provide for an oral hearing in such cases (see
paragraph 160 above), it is nonetheless required to restrict its
assessment to the facts of the applicant’s case (see the Findlay v. the United Kingdom judgment of 25 February
1997, Reports 1997-I, p. 279, § 67).
164. Moreover,
the Court notes that under Bulgarian law a person detained on remand is only
entitled to apply to have the lawfulness of this detention reviewed by a court
on one single occasion (see paragraph 75 above). Thus a second such
request on the part of the applicant was rejected on this ground by the Shoumen District Court on
165. In
conclusion, in view in particular of the impossibility for the applicant,
during his two years of pre-trial detention, to have the continuing lawfulness
of this detention determined by a court on more than one occasion, and the
failure of the court to hold an oral hearing on that occasion, the Court finds
that there has been a violation of Article 5 § 4 of the Convention.
5. Alleged
violation of Article 25 § 1 of the Convention
166. All
three applicants complained that the State had hindered the effective exercise
of their right to individual petition, contrary to Article 25 § 1 of
the Convention, which states:
“The
Commission may receive petitions addressed to the Secretary General of the
Council of Europe from any person, non-governmental organisation
or group of individuals claiming to be the victim of a violation by one of the
High Contracting Parties of the rights set forth in [the] Convention, provided
that the High Contracting Party against which the complaint has been lodged has
declared that it recognises the competence of the
Commission to receive such petitions. Those of the High Contracting Parties who
have made such a declaration undertake not to hinder in any way the effective
exercise of this right.”
167. In their pleadings to the Court, the Government denied that
there was any evidence to support the applicants’ claim that they had felt
themselves compelled by agents of the State to sign any statement before a
notary.
168. The
Commission found it impossible to establish whether or not, following his
arrest in July 1995, Mr Assenov
had been questioned about his application to
169. The
Court recalls that the obligation on States under Article 25 § 1 of
the Convention not to interfere with the right of the individual effectively to
present and pursue his or her complaint with the Commission confers upon an
applicant a right of a procedural nature which can be asserted in Convention
proceedings. It is of the utmost importance for the effective system of
individual petition that applicants or potential applicants are able to
communicate freely with the Convention organs without being subjected to any
form of pressure from the authorities to withdraw or modify their complaints
(see the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports
1996-IV, pp. 1218 and 1219, §§ 103 and 105, and the Kurt v.
Turkey judgment of 25 May 1998, Reports 1998-III, pp. 1205–06,
§ 159).
170. The
expression “any form of pressure” must be taken to cover not only direct
coercion and flagrant acts of intimidation of applicants, but also other
improper indirect acts or contacts designed to dissuade or discourage
individuals from pursuing a Convention remedy (see the above-mentioned Kurt
judgment, p. 1206, § 160).
The
question whether or not contacts between the authorities and applicants are
tantamount to unacceptable practices from the standpoint of Article 25
must be determined in the light of the particular circumstances in issue
(ibid.). In the present case, the Court notes that the applicants’ complaints
to the Commission concerned serious allegations of misconduct on the part of
the police and prosecuting authorities. At the relevant time, Mr Assenov was detained on
remand and, given the facts which have led the Court to find violations of
Article 5 § 3 and Article 5 § 4 of the Convention, his parents
may legitimately have considered him to be at risk of prejudicial action taken
by the prosecuting authorities. The authorities must also have been aware that
the applicants were members of a minority group and had been the subject of
comment in the press (see paragraph 50 above), further contributing to
their susceptibility to pressure brought to bear on them.
171. In all the circumstances, the Court considers that the
questioning of Mr Ivanov
and Mrs Ivanova by a
representative or representatives of these same authorities, which led the
applicants to deny in a sworn declaration that they had made any application to
the Commission (see paragraph 51 above), amounted to a form of improper
pressure in hindrance of the right of individual petition.
It
follows that there has been a breach of Article 25 § 1 of the
Convention.
iv. application of article 50 of the
convention
172. The
applicants asked for just satisfaction pursuant to Article 50 of the
Convention, which states:
“If
the Court finds that a decision or a measure taken by a legal authority or any
other authority of a High Contracting Party is completely or partially in
conflict with the obligations arising from the ... Convention, and if the
internal law of the said Party allows only partial reparation to be made for
the consequences of this decision or measure, the decision of the Court shall,
if necessary, afford just satisfaction to the injured party.”
A. Non-pecuniary damage
173. Mr Assenov claimed
compensation for the harm caused to him by the many violations of his
Convention rights. Mr Ivanov
and Mrs Ivanova
claimed non-pecuniary damages in respect of the pressure they were placed under
by the authorities in breach of Article 25 § 1.
174. The
Government submitted that no compensation should be awarded under
Article 50.
175. The
Court considers that, given the gravity and number of violations found in this
case, compensation for non-pecuniary damage should be awarded to Mr Assenov, although it
takes the view that the finding of a violation of Article 25 § 1 is
adequate just satisfaction in respect of any non-pecuniary damage suffered by Mr Ivanov and Mrs Ivanova.
Making
an assessment on an equitable basis, it awards to Mr Assenov 6,000,000 Bulgarian levs.
B. Costs and expenses
176. The
applicants claimed costs and expenses equivalent to approximately 14,860 pounds
sterling (GBP) in respect of their Bulgarian representative and GBP 7,600 in
respect of their
177. At the hearing, the Government Co-Agent submitted that these
claims were excessive.
178. The
Court, taking into account the number of issues arising in the present case and
their complexity, awards the sums claimed in full, less the amounts already
paid in legal aid by the Council of Europe. The sum awarded to Mr Assenov’s Bulgarian
representative should be converted into Bulgarian levs
at the rate applicable on the date of settlement.
C. Default interest
179. According
to the information available to the Court, the statutory rate of interest
applicable in
for these reasons the court
1. Dismisses unanimously the Government’s
preliminary objections;
2. Holds
by eight votes to one that there has been no violation of Article 3 based
on Mr Assenov’s allegations
of ill-treatment by the police;
3. Holds
unanimously that there has been a violation of Article 3 of the Convention
based on the failure to carry out an effective official investigation into Mr Assenov’s allegations of
ill-treatment by the police;
4. Holds
unanimously that there has been no violation of Article 6 § 1 of the
Convention;
5. Holds unanimously that there has been a violation of
Article 13 of the Convention;
6. Holds by eight votes to one that there has been no
violation of Article 3 of the Convention in respect of the conditions of Mr Assenov’s detention from
July 1995 onwards;
7. Holds
unanimously that there has been no violation of Article 5 § 1 of the
Convention;
8. Holds
unanimously that there has been a violation of Article 5 § 3 of the
Convention in that Mr Assenov
was not brought promptly before a judge or other officer authorised
by law to exercise judicial power;
9. Holds
unanimously that there has been a violation of Article 5 § 3 of the
Convention in that Mr Assenov
was not given a trial within a reasonable time or released pending trial;
10. Holds
unanimously that there has been a violation of Article 5 § 4 of the
Convention;
11. Holds
unanimously that there has been a violation of Article 25 § 1 of the
Convention in respect of all three applicants;
12. Holds
unanimously that the respondent State is to pay, within three months:
(a) to the first applicant, in respect of non-pecuniary damage,
6,000,000 (six million) Bulgarian levs;
(b) to
all three applicants, in respect of costs and expenses, 14,860 (fourteen
thousand eight hundred and sixty) pounds sterling to be converted into
Bulgarian levs at the rate applicable on the date of
settlement, together with 7,600 (seven thousand six hundred) pounds sterling,
less 38,087 (thirty-eight thousand and eighty-seven) French francs to be
converted into pounds sterling at the rate applicable on the date of
settlement, together with any value-added tax which may be payable; and
(c) that simple interest at an annual rate of 5.08% shall be
payable on the above sums awarded in Bulgarian levs,
and of 7.5% in respect of the above sums awarded in pounds sterling from the
expiry of the above-mentioned three months until settlement;
13. Dismisses
unanimously the remainder of the claim for just satisfaction.
Done
in English and in French, and delivered at a public hearing in the Human Rights
Building,
Signed:
Rudolf Bernhardt
President
Signed:
Herbert Petzold
Registrar
In
accordance with Article 51 § 2 of the Convention and Rule 53 § 2 of Rules of
Court A, the partly dissenting opinion of Mr Mifsud Bonnici is annexed to this
judgment.
Initialled: R. B.
Initialled: H. P.
partly
dissenting opinion
OF jUDGE mifsud bonnici
1.
I am in agreement with my brother judges on all counts except two which refer
to Article 3 of the Convention.
2.
Anton Assenov was 14 years old when, in September
1992, during an incident with the police, he suffered various bruises which the
Court considered to be “sufficiently serious to amount to ill-treatment within
the scope of Article 3” (paragraph 95 of the judgment). However, the Court
found it impossible to establish on the basis of the evidence whether or not
the applicant’s injuries were caused by the police, as he asserted
(paragraph 100).
For
my part, I am of the opinion that once the allegation was made that these
injuries were caused by the police with their truncheons in connection with Mr Assenov’s arrest, it was up to
the Government “to provide a complete and sufficient explanation as to how the
injuries were caused” as firmly established by the Court’s jurisprudence, noted
and quoted in paragraph 92 of the judgment.
The
Bulgarian authorities did not provide a complete and sufficient explanation
of how a boy of 14 years came to sustain those severe injuries. Of
course, his father did admit that he “took a piece of plywood and hit his son”
(paragraph 9) to show his disapproval of his son’s behaviour,
but plywood does not cause the serious injuries discovered by the doctor two
days after the incident in question. Police truncheons, however, can easily
inflict such injuries.
3.
Similarly, I consider that the way the applicant (now approximately
17 years old) was treated in prison between July 1995 and March 1996, as
described in paragraph 35 of the judgment, constitutes in itself inhuman
treatment, keeping in mind, especially, that we are dealing with a minor who,
in effect, was treated as a full-grown, mature criminal and lodged in a
restricted cell for all those months with another, or other, full-blown
criminal or criminals.
4.
These facts compel me to reach the conclusion that in respect of a young person
of between 14 and 17 years of age, the Bulgarian authorities have violated the
terms of Article 3 of the Convention.
1. This
summary by the registry does not bind the Court.
Notes
by the Registrar
1. The
case is numbered 90/1997/874/1086. The first number is the case’s position on
the list of cases referred to the Court in the relevant year (second number).
The last two numbers indicate the case’s position on the list of cases referred
to the Court since its creation and on the list of the corresponding
originating applications to the Commission.
2. Rules
of Court A apply to all cases referred to the Court before the entry into force
of Protocol No. 9 (
1. Note
by the Registrar. For practical reasons this annex will appear only with
the printed version of the judgment (in Reports of Judgments and Decisions
1998), but a copy of the Commission’s report is obtainable from the registry