CASE
OF NACHOVA AND OTHERS v.
(Applications
nos. 43577/98 and 43579/98)
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 Nachova and Others
v.
The European Court of Human Rights (First Section), sitting as a
Chamber composed of
Mr C.L. Rozakis, President,
Mr P. Lorenzen,
Mr G. Bonello,
Mrs F. Tulkens,
Mrs N. Vajic,
Mrs S. Botoucharova,
Mr V. Zagrebelsky,
judges,
and Mr S. Nielsen, Section Registrar,
Having deliberated in private on 4 September and
Delivers the following judgment, which was adopted on the
last-mentioned date:
PROCEDURE
1. The case originated in two applications (nos.
43577/98 and 43579/98) against the Republic of Bulgaria lodged with the
European Commission of Human Rights (“the Commission”) under former Article 25
of the Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by four Bulgarian nationals, Ms Anelia
Kunchova Nachova, Ms Aksiniya Hristova, Ms Todorka Petrova Rangelova and Mr Rangel Petkov Rangelov (“the
applicants”), on 15 May 1998.
2. The applicants were represented by Ms N. Vidorova and Mr Y. Grozev, lawyers practising in
3. The applicants alleged that their respective close
relatives, Mr Kuncho Angelov and Mr Kiril Petkov, who were shot by
military police trying to arrest them, were deprived of their lives in
violation of Article 2 of the Convention, that the investigation into the
events was ineffective and thus in breach of that provision and of Article 13
of the Convention and that the respondent State had failed in its obligation to
protect life by law. They also alleged that the events complained of were the
result of discriminatory attitudes towards persons of Roma origin and entailed
a violation of Article 14 of the Convention.
4. The applications were transmitted to the Court on
5. The applications were declared partly admissible
on
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
6. The case concerns the killing on
7. All the applicants are Bulgarian nationals who describe
themselves as being of Roma origin.
8. Ms Anelia Kunchova Nachova, who was born in
1995, is Mr Angelov's
daughter. Ms Aksiniya Hristova,
who was born in 1978, is Ms Nachova's mother. Both
live in Dobrolevo (
A. Circumstances surrounding the deaths of Mr Angelov and Mr Petkov
9. In 1996 Mr Angelov and Mr Petkov, who were both twenty-one years old, were conscripts
in the Construction Force (Stroitelni voiski), a division of the army dealing with the
construction of apartment blocks and other civilian projects.
10. Early in 1996 Mr Angelov and Mr Petkov were arrested for repeated absences without leave.
On
11. On
12. Their absence was reported the following day and
their names put on the military police's wanted list. A warrant for their
arrest was received on
13. At around twelve
14. The commanding officer, Colonel D., decided to
dispatch four military police officers, under the command of Major G., to
locate and arrest the two men. At least two of the officers knew one or both of
them. Major G. apparently knew Lesura since,
according to a secretary who worked at the municipality and was heard later as
a witness, his mother was from the village.
15. Colonel D. told the officers that “in accordance
with the rules” they should carry their handguns and automatic rifles and wear
bullet-proof vests. He informed them that Mr Angelov and Mr Petkov were “criminally active” (kriminalno
proiaveni) – a euphemism used to denote persons with
previous convictions or persons suspected of offence – and that they had
escaped from detention. The officers were instructed that all means and methods
dictated by the circumstances were to be used to arrest them.
16. The officers immediately left for Lesura in a jeep. Two officers wore uniforms while the
others were in civilian clothes. Only Major G. wore a bullet-proof vest. He was
armed with a personal handgun and a 7.62 mm. calibre
Kalashnikov automatic rifle. The other men carried handguns. Three Kalashnikov
automatic rifles remained in the boot of the vehicle throughout the operation.
17. The officers were briefed orally by Major G. on
their way to Lesura. Sergeant N. was to cover the
east side of the house, Major G. the west side and Sergeant K. was to go into
the house. Sergeant S., the driver, was to remain with the vehicle and keep
watch over the north side.
18. At around
19. Sergeant N. recognised
the house since he had previously arrested Mr Angelov there for being absent without leave.
20. As soon as the jeep drew up in front of the house
at between
21. Sergeant N. later testified that, having noticed Mr Angelov and Mr Petkov escaping through
the window and running towards a neighbour's yard, he
had shouted: “Stop, military police!”. He had pulled
out his gun, but not fired any shots. The two men had carried on running.
Sergeant N. had run out on to the street in an effort to intercept them by
circumventing several houses. While running, he had heard Major G. shout:
“Freeze, military police, freeze [or] I'll shoot!”. It
was then that the shooting had started.
22. Major G. stated in his testimony:
“...I heard Sergeant N. shouting:
'Freeze, police'...I saw the privates; they were running and then stopped in
front of the fence between Ms Tonkova's and the neighbour's yards... I saw that they were trying to jump
over the [chain-link] fence, so I shouted: 'Freeze, or
I'll shoot'. I released the safety-catch and loaded the automatic gun. Then I
fired a shot in the air, holding the automatic rifle upwards with my right
hand, almost perpendicular to the ground... The privates climbed over the [chain-link]
fence and continued to run, I followed them, then I
fired one, two or three more times in the air and shouted: 'Freeze!', but they
continued running. I again fired shots in the air with the automatic and
shouted: 'Freeze, or I will shoot with live cartridges”,
I warned them again, but they continued running without turning back. I fired
to the right [of the two men] with the automatic after the warning, aiming at
the ground, hoping that this would make them stop running. I again shouted
“Freeze!” when they were at the corner of the other house and then I aimed and
fired at them as they were scaling the fence. I aimed at their feet. The ground
where I stood was at a lower level... [B]y jumping over the second fence they
would have escaped and I did not have any other means of stopping them. The
gradient there was a bit steep, [I] was standing on lower ground ... the second
fence was on the highest ground, that is why when I fired the first time I
aimed to the side [of the two men], as I considered that nobody from the neighbouring houses would be hurt, and the second time I
aimed at the privates, but fired at their feet. Under Regulation 45 we can
use firearms to arrest members of the military forces who have committed a
publicly prosecuted offence and do not surrender after a warning, but in
accordance with paragraph 3 of [that regulation] we have to protect the lives
of the persons against whom [we use firearms] – for that reason I fired at [the
victims'] feet – with the intention of avoiding fatal injury. The last time
that I shot at the privates' feet, I was 20 metres
away from them and they were exactly at the south-east corner of the neighbouring yard. After the shooting they both fell
down...They were both lying on their stomachs, and both gave signs of life, ...
moaning ... then Sergeant S. appeared, I called him ... and handed him my
automatic rifle...”
23. According to the statements of the three
subordinate officers, Mr Angelov
and Mr Petkov were lying on
the ground in front of the fence, with their legs pointing to the direction of
the house from which they had come. One of them was lying on his back and the
other on his stomach.
24. A neighbour, Mr Z., who lived opposite Mr Angelov's grandmother, also gave evidence. At about 1.00 or
“The other men in uniform then started
remonstrating with [the man who had shot Mr Angelov and Mr Petkov] telling him that he should not have fired, that he
should not have come with them. Of those who came in the jeep, only the senior
officer fired ... I know him by sight, he has relatives in Lesura”.
25. Sergeant S. stated that upon arriving at the
house he had remained with the vehicle and had heard Sergeant N. shouting from
the east side of the house: “Freeze, police!”. He had
also heard Major G. shout several times: “Freeze, police!”,
from the west side of the house. Then Major G. had started shooting with his
automatic weapon, while continuing to shout. Sergeant S. had then entered the
yard. He had seen Major G. leap over the chain-link fence and heard him
shouting. He had gone up to him, had taken his automatic rifle and seen Mr Angelov and Mr Petkov lying on the ground
next to the fence. They were still alive. At that moment Sergeant K. had come
out of the house. Major G. had gone to get the jeep and had reported the event
over the vehicle radio. When they returned, Sergeant N. had appeared from the neighbouring street and helped them put the wounded men in
the vehicle.
26. The head of the Vratsa
Military-Police Unit and other officers were informed about the incident at
around
27. Sergeant K. testified that he had entered the
house and had been speaking to Mr Angelov's
grandmother and another woman when he heard Major G. shouting at Mr Angelov and Mr Petkov to halt. In the house,
he had noticed that a window-pane in the room overlooking the yard had been
broken. He had been on the verge of leaving the house when he heard shooting
coming from behind the house. On his way to the yard he had met Major G., who
had told him that the fugitives had been wounded. Sergeant K. had then
climbed over the chain-link fence and approached the wounded men, who were
still alive and moaning. He had found himself holding the automatic rifle, but
could not remember how it had come into his possession. He had opened the
magazine and seen no cartridges in it. There was only one cartridge left in the
barrel.
28. Immediately after the shooting, a number of
people from the vicinity gathered. Sergeant K. and Sergeant S. took the wounded
men to the
29. Mr Angelov
and Mr Petkov died on the
way to
30. Mr Angelov's
grandmother, Ms Tonkova, gave the following version
of the events: Her grandson and Mr Petkov had been in her house when they had noticed a jeep
approaching. She had gone outside and seen four men in uniform. They had all
entered the yard, one of them had gone round the house
and started shooting with an automatic rifle for a very long time. The other
three men were also armed but had not fired any shots. She had been in the
yard, pleading with the man who had been shooting to stop. However, he had
walked towards the back of the house. Then she had heard shooting in the
backyard. She had followed and then seen her grandson and Mr
Petkov lying in the neighbours'
yard with bullet wounds.
31. According to another neighbour,
Mr M.M., all three policemen were shooting. Two of
them had fired shots in the air and the third officer – who had been on the
west side of the house (Major G.) – had been aiming at someone. Mr M.M. had heard some fifteen to twenty shots, perhaps
more. Then he had seen the military policemen go to the neighbouring
yard, where Mr Angelov and Mr Petkov had fallen. That yard
belonged to Mr M.M. and his daughter. On seeing his
grandson – a young boy – standing there, Mr M.M.
had asked Major G. for permission to approach and collect him. Major G. had
pointed his gun at him in a brutal manner and had insulted him, saying: “You
damn Gypsies!”.
B. The investigation into the deaths
32. On
33. A criminal investigation into the deaths was
opened the same day and between
34. A sketch map was appended to the report. It
showed the yard of Ms Tonkova's house and the neighbouring yard where Mr Angelov and Mr Petkov had fallen. The places where spent cartridges had
been found were indicated. The sketch-map and the report gave only some of the
measurements of the yards. The gradient and other characteristics of the
terrain and the surrounding area were not described.
35. Nine spent cartridge were retrieved. One
cartridge was found in the street, in front of Ms Tonkova's
house (apparently not far from where the jeep had stopped). Four cartridges
were discovered in Ms Tonkova's yard, behind the
house, close to the first chain-link fence separating her yard from the neighbour's yard. Three cartridges were found in the neighbour's (Mr M.M.'s) yard, close to the place where the bloodstains were
found. Although the exact distance between those cartridges and the bloodstains
was not given, it appears from the other measurements on the sketch map to be
between 5 and 10 metres. A ninth cartridge was found
subsequently and handed in to the military police by Mr
Angelov's uncle. There is no record of where it was
found.
36. The bloodstains were a metre
apart. They were marked on the sketch map as being slightly more than nine metres from the first chain-link fence. The distance
between the bloodstains and the second fence that Mr Angelov and Mr Petkov were apparently trying to scale when they were shot
was not indicated. Samples of the bloodstains were taken by the investigator.
37. On
According to the autopsy report no. 139/96, the cause of Mr Petkov's death was “a wound to
the chest”, the direction of the shot having been “from front to back”. The
wound was described as follows:
“There is an oval-shaped wound of 2.5
cm by 1 cm in the chest, at a distance of 144 cm from the feet, with missing
tissues, and jagged and compressed edges in the area of the left shoulder.
There is an oval-shaped wound of 3 cm in the back, to the left of the infrascapular line at a distance of 123 cm from the feet
with missing tissues, jagged and torn edges turned outwards.”
38. As regards Mr Angelov, the report found that the cause of death had been
“a gunshot wound, which [had] damaged a major blood vessel” and that the
direction of the shot had been “from back to front”. It was further stated:
“There is a round wound on the left of
the buttocks at a distance of 90 cm from the feet... with missing tissue,
jagged walls and edges, and a diameter of about 0.8 cm ... There is an oval
wound of 2.1 cm with jagged torn edges and walls turned outwards and missing
tissues on the border between the lower and middle third [of the abdomen], at a
distance of 95 cm from the feet, slightly to the left of the navel.”
39. The report concluded that the injuries had been
caused by an automatic rifle fired from a distance.
40. On 22, 23 and
41. On
42. A report by a forensic expert dated 29 August
1996 found an alcohol content of 0.55 per thousand in Mr
Petkov's blood and 0.75 per thousand in Mr Angelov's blood (under
Bulgarian law driving with alcohol content of more than 0.5 per thousand is an
administrative offence).
43. On
44. On 20 January and on
45. On
46. On
47. On
48. When describing the victims' personal
circumstances, including such matters as their family, education and previous
convictions, in the decree, the prosecutor mentioned that they both originated
from “minority families”, a euphemism mostly used to designate people from the
Roma minority.
49. By an order of
50. On
II. REPORTS OF INTERNATIONAL
ORGANISATIONS ON ALLEGED DISCRIMINATION AGAINST ROMA
51. The Report on the Situation of Fundamental Rights
in the European Union and Its Member States in 2002, prepared by the EU network
of independent experts in fundamental rights at the request of the European
Commission, stated, inter alia, that police
abuse against Roma and similar groups, including physical abuse and excessive
use of force, has been reported in a number of EU member States, such as
Austria, France, Greece, Ireland, Italy and Portugal.
52. The European Commission against Racism and
Intolerance at the Council of Europe, in its country reports in the last four
years, has expressed concern about racially motivated police violence,
particularly against Roma, in a number of European countries including
Bulgaria, the Czech Republic, France, Greece, Hungary, Poland, Romania and
Slovakia.
53. In its report of 2000 on
“Of particular concern is the incidence
of police discrimination and mistreatment of members of the Roma/Gypsy
community. The Council of Europe's Committee for the Prevention of Torture
(CPT) noted in March 1997 that 'criminal suspects deprived of their liberty by
the police in Bulgaria run a significant risk of being ill-treated at the time
of their apprehension and/or while in police custody, and ... on occasion
resort may be had to severe ill-treatment/torture'... [T]he Human Rights
Project documents in its Annual Report for 1998 numerous other cases of police
misconduct towards members of the Roma/Gypsy community. It cites as the most
common violations: use of excessive physical force during detention for the
purposes of extorting evidence; unjustified use of firearms; home searches
conducted without search warrants; destruction of private property; and threats
to the personal security of individuals who had complained against the police
to the competent authorities...
The European Roma Rights Centre reports
that [criminal proceedings against perpetrators of violent acts] have been used
in recent years to protect Roma rights, but that convictions are isolated
compared to the scale of the problem. The Human Rights Project notes in its
Annual Report for 1998 that the majority of complaints filed by this
non-governmental organisation on behalf of Roma
victims of police violence have not been followed up by the authorities.
In the present situation, victims seem
unwilling to come forward with complaints, particularly when they are awaiting
court sentences: there may be a perception that bringing complaints may
actually worsen the situation of the victim before the courts. A lack of
confidence on the part of victims in the possibility of redress may be
compounded by some unwillingness on the part of the authorities to admit that
problems of police misconduct do exist. A first step would therefore seem to be
the need to acknowledge on a public level that problems exist in this area, and
for police and political leaders to express their strong commitment to ensuring
that any allegations of misbehaviour or criminal acts
on the part of the police are promptly and stringently investigated and dealt
with.
ECRI in its first report recommends
that an independent body be set up – acting at central and local level – to
investigate police, investigative and penitentiary practices for overt and
covert racial discrimination and to ensure that any discrimination perpetrated
be severely punished. ECRI would wish to reiterate this proposal. A specialised body to combat racism and discrimination, as
advocated above, could also play an important role in this respect...
It is reported that Roma/Gypsies in
Bulgarian prisons are also subject to physical abuse by prison guards and other
officials: to date; no prosecution of abuses by prison officials has been
initiated...
ECRI is concerned at the persistence of
widespread discrimination against members of the Roma/Gypsy community in
ECRI welcomes signs that the Bulgarian
government is willing to address such issues of discrimination. This attitude
has been demonstrated by the adoption in April 1999 of the 'Framework Programme for Equal Integration of Roma in Bulgarian
Society'. This programme was prepared on the
initiative of Roma/Gypsy organisations and in
discussion with representatives of all the Roma associations in
54. The applicants in their submissions referred also
to the findings of specialised bodies of the United
Nations (see paragraph 153 below).
55. Non-governmental organisations,
such as Human Rights Project and Amnesty International have reported in the
last several years numerous incidents of alleged racial violence against Roma
in
III. RELEVANT DOMESTIC LAW AND
PRACTICE
1. Unpublished Regulations on the Military Police, issued
by the Ministry of Defence on
56. Section 45 of the Regulations (Regulation 45), as
in force at the relevant time, provided as follows:
“(1) Military
police officers may use firearms ... under the following circumstances:...
2. to
arrest a person serving in the army who has committed or is about to commit a
publicly prosecuted offence and who does not surrender after being warned ...
(2) The use of force shall be
preceded by an oral warning and a shot fired in the air ...
(3) When using firearms military
police officers shall be under a duty, as far as possible, to protect the life
of the person against whom they use force and to assist the wounded...
(5) Whenever
firearms have been used, a report shall be prepared describing the
circumstances which provoked their use; [the report] shall be transmitted to
the superiors of the officer concerned.”
57. In December 2000 Regulation 45 was superseded by
Decree No. 7 of
2. Other relevant law and practice on the use of force during
arrest
58. Article 12 of the Criminal Code regulates the
degree of force that may be used in self-defence. It
requires essentially that any action in self-defence
or defence of another be proportionate to the nature
and intensity of the attack and reasonable in the circumstances. The provision
does not regulate, however, cases where force has been used by a police officer
or another person in order to effect an arrest,
without there being an attack on the arresting officer or any third party.
Until 1997 no other provision regulated that matter. It appears, nevertheless,
that on some occasions the courts applied Article 12 by analogy.
59. To fill that lacuna, in its interpretative
direction no. 12 issued in 1973, the Supreme Court proclaimed, without further
clarification, that causing harm in order to effect an arrest should not lead
to prosecution if no more force was used than was necessary (12-1973-PPVS).
60. In its decision no. 15 of
“... [Causing harm to an offender in
order to effect an arrest] is an act of last resort. If the offender does not attempt to escape or ... does attempt to
escape, but to a known hiding-place, causing harm will not be justified...
The harm caused must be proportionate
to the seriousness ... of the offence. If the offender has committed an offence
representing insignificant danger to the public, his life and health cannot be
put at risk. Putting his life or health at risk could be justified, however,
where a person is in hiding after committing a serious offence (such as murder,
rape or robbery).
The means used to effect the arrest
(and the harm caused) must be reasonable in the circumstances. This is the most
important condition for lawfulness...
Where the harm caused exceeds what was
necessary ..., that is to say, where it does not correspond to the seriousness
of the offence and the circumstances obtaining during the arrest,
... the person inflicting it will be liable to prosecution...”
61. In 1997 Parliament decided to fill the
legislative lacuna by adding a new Article 12a to the Criminal Code. It
provides that causing harm to a person while arresting him or her for an
offence shall not be punishable where no other means of effecting the arrest
existed and the force used was necessary and lawful. The force used will not be
considered “necessary” where it is manifestly disproportionate to the nature of
the offence committed by the person to be arrested or is in itself excessive
and unnecessary. Few judgments interpreting Article 12a have been reported.
3. Code of Criminal Procedure
62. Article 192 provides that proceedings concerning
publicly prosecuted crimes may only be initiated by a prosecutor or an
investigator, acting on a complaint or ex officio. Under Article 237 §
6, as worded until
63. When military courts have jurisdiction to hear a
case, as for example when it concerns military-police officers, the
responsibility for conducting the investigation and prosecuting lies with the
military investigators and prosecutors, whose decisions are amenable to appeal
before the Chief Public Prosecutor.
64. Article 63 entitles victims of crime to join the
criminal proceedings, and in that connection to claim damages, to inspect the
case file and take copies of relevant documents, to adduce evidence, to raise
objections, to make applications and to appeal against the decisions of the
investigating and prosecuting authorities.
4. The new Protection against Discrimination Act
65. The Protection against Discrimination Act was
passed in September 2003 and entered into force on
66. Section 9 provides for a shifting burden of proof
in discrimination cases. Under that section, where the claimant has proved
facts from which an inference that there has been a discriminatory treatment
might be drawn, it is incumbent on the defendant to prove that there has been
no violation of the right to equal treatment. The Act also provides for the
creation of a Commission for Protection against Discrimination with
jurisdiction, inter alia, to hear individual
complaints.
IV. RELEVANT INTERNATIONAL AND
COMPARATIVE LAW
A. United Nations principles
67. The United Nations Basic Principles on the Use of
Force and Firearms by Law Enforcement Officials (“UN Force and Firearms
Principles”) were adopted on
68. Paragraph 9 provides:
“Law enforcement officials shall not
use firearms against persons except in self-defence
or defence of others against the imminent threat of
death or serious injury, to prevent the perpetration of a particularly serious
crime involving grave threat to life, to arrest a person presenting such a
danger and resisting their authority, or to prevent his or her escape, and only
when less extreme means are insufficient to achieve these objectives. In any event,
intentional lethal use of firearms may only be made when strictly unavoidable
in order to protect life.”
69. According to other provisions of the Principles,
law enforcement officials shall “act in proportion to the seriousness of the
offence and the legitimate objective to be achieved” (paragraph 5). Also, “Governments shall ensure that arbitrary or abusive use of
force and firearms by law enforcement officials is punished as a criminal
offence under their law” (paragraph 7). National rules and regulations
on the use of firearms should “ensure that firearms are used only in
appropriate circumstances and in a manner likely to decrease the risk of
unnecessary harm”.
70. Paragraph 23 of the Principles states that
victims or their family should have access to an independent process,
“including a judicial process.” Further, paragraph 24 provides:
“Governments and law enforcement
agencies shall ensure that superior officers are held responsible if they know,
or should have known, that law enforcement officials under their command are
resorting, or have resorted, to the unlawful use of force and firearms, and
they did not take all measures in their power to prevent, suppress or report
such use.”
71. The United Nations Principles on the Effective
Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions,
adopted on 24 May 1989 by the Economic and Social Council Resolution 1989/65,
provide, inter alia, that there shall be a
thorough, prompt and impartial investigation of all suspected cases of
extra-legal, arbitrary and summary executions and that the investigation should
aim at, inter alia, determining “any pattern
or practice which may have brought about” the death. Paragraph 11 states:
“In cases in which the established
investigative procedures are inadequate because of a lack of expertise or
impartiality, because of the importance of the matter or because of the
apparent existence of a pattern of abuse, and in cases where there are
complaints from the family of the victim about these inadequacies or other
substantial reasons, Governments shall pursue investigations through an
independent commission of inquiry or similar procedure. Members of such a
commission shall be chosen for their recognised
impartiality, competence and independence as individuals. In particular, they
shall be independent of any institution, agency or person that may be the
subject of the inquiry. The commission shall have the authority to obtain all
information necessary to the inquiry and shall conduct the inquiry as provided
in these Principles.”
Paragraph 17 states:
“A written report shall be made within
a reasonable time on the methods and findings of such investigations. The
report shall be made public immediately and shall include the scope of the
inquiry, procedures, methods used to evaluate evidence as well as conclusions
and recommendations based on findings of fact and on applicable law...”
B. Jurisprudence of the UN Committee against Torture (CAT)
72. In its decision of
73. In assessing the evidence, the CAT noted that it
had not received a written explanation from the State party concerned and
decided to rely on “the detailed submissions made by the complainants”.
C. European Union Directives on discrimination
74. Council Directive 2000/43/CE of
“1. Member
States shall take such measures as are necessary, in accordance with their
national judicial systems, to ensure that, when persons who consider themselves
wronged because the principle of equal treatment has not been applied to them
establish, before a court or other competent authority, facts from which it may
be presumed that there has been direct or indirect discrimination, it shall be
for the respondent to prove that there has been no breach of the principle of
equal treatment.
2. Paragraph 1 shall not
prevent Member States from introducing rules of evidence which are more favourable to plaintiffs.
3. Paragraph 1 shall not
apply to criminal procedures.
...
5. Member
States need not apply paragraph 1 to proceedings in which it is for the court
or competent body to investigate the facts of the case.”
75. The preambles to the directives state, inter alia, that national rules for the appreciation of the
facts may provide for indirect discrimination to be established by any means
including on the basis of statistical evidence.
D. Article 132-76 of the French Penal Code
76. This provision, which was introduced in February
2003, provides:
“The penalties incurred for a crime or
major offence shall be increased where the offence is committed on account of
the victim's actual or supposed membership or non-membership of a particular
ethnic group, nation, race or religion.
The aggravating circumstance defined in
the first paragraph is constituted where the offence is preceded, accompanied
or followed by written or spoken comments, images, objects or acts of any kind
which damage the honour or consideration of the
victim or of a group of persons to which the victim belongs on account of their
actual or supposed membership or non-membership of a particular ethnic group,
nation, race or religion.”
THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTION
77. The Government submitted that the application
should be declared inadmissible as the applicants had not exhausted all
domestic remedies, since they had not made a request for further evidence to be
obtained at the conclusion of the investigation and had not brought a civil
action in damages.
78. The Court notes that this objection was not
raised at the admissibility stage of the proceedings (see the admissibility
decision in the present case). The Government are,
therefore, estopped from raising it now.
II. ALLEGED VIOLATIONS OF ARTICLE 2
OF THE CONVENTION
79. The applicants complained that Mr Angelov and Mr Petkov were deprived of their
life in violation of Article 2 § 2 of the Convention. They had died – so it was
alleged – as a result of deficient law and practice which permitted the use of
lethal force without absolute necessity and thus violated Article 2 § 1 per
se. The applicants also complained that the authorities had failed to
conduct an effective investigation into the deaths.
80. Article 2 of the Convention, in so far as it is
relevant, provides:
“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. The parties' submissions
1. The applicants
81. The applicants alleged that the law as in force
at the relevant time – which consisted of regulations issued by the Ministry of
Defence – did not explicitly require any kind of
necessity for the use of lethal force by military police, let alone “absolute
necessity” or any similar standard. Firearms could be used to arrest even a
petty offender who had never committed a violent crime and was not armed or
otherwise dangerous. All that the regulations required was the fulfilment of formal, “procedural” conditions for the use
of firearms, such as giving a warning. The applicants submitted that the
relevant law therefore fell short of the requirements of Article 2 of the
Convention and constituted in itself a violation of the State's positive
obligation to protect life. In their view, that violation was a continuing one
as the new provisions enacted in 2000 also fell short of the required standard.
The applicants referred to a number of incidents between 1992 and 2002 in which
firearms had allegedly been resorted to unnecessarily.
82. In respect of the concrete events in the present
case, the applicants maintained that the use of lethal force against Mr Angelov and Mr Petkov had not been strictly
necessary. The operation had not been planned and prepared with due regard to
the victims' right to life. In particular, the plan had been far from thorough
or complete and allowed the officers to use any means or methods the
circumstances dictated, there being no instructions on what to do if the two
men attempted to escape or in what circumstances firearms should be used.
Further, the force used by Major G. had been excessive: it was obviously
unnecessary to fire an automatic rifle at two unarmed, non-violent men. There
had been other means available to effect the arrest.
Moreover, there was evidence that Major G. had fired his rifle with the
intention of hitting the two men, one of whom was wounded in the chest. The
fact that the two men had allowed Major G. to approach them demonstrated that
they had been hesitating about whether or not to surrender. Also, both men had
been shot, although injuring one would have sufficed to dissuade the other from
escaping.
83. As to the effectiveness of the investigation, the
applicants submitted that the question whether or not lethal force had been
“absolutely necessary” had never been examined, since the relevant regulations
did not lay down any such requirement. Furthermore, no investigation had been
carried out into the planning of the operation or the alternative means that
could have been used to arrest Mr Angelov
and Mr Petkov.
84. In the applicants' view, the investigation had
been ineffective even judged by the allegedly low standards of Regulation 45.
In particular, the charges against Major G. had been dropped even though he had
clearly violated military-police regulations, there being evidence – such as
the fact that Mr Petkov had
been wounded in the chest – to suggest that the men might have been trying to
surrender when they were shot, and evidence that Major G. had used an automatic
rifle, thus substantially reducing his ability to take precise aim, in breach
of his duty to “protect, as far as possible, the life of any person” against
whom he used a firearm. As a whole, the prosecutors and the investigators had
relied heavily on the submissions of Major G. and other officers, despite obvious
inconsistencies. In particular, no attention had been paid to the contradiction
between Major G.'s statement that he had shot the
victims while they were running away and the fact that Mr
Petkov had been wounded in the chest.
85. The applicants also stated that the investigation
report did not contain a description of the area or of the gradient of the
slope on which Ms Tonkova's yard was situated
(which might have permitted an assessment of whether alternatives to lethal
force had been available). The investigator had also failed to perform
gunpowder tests on the victims' clothes, notwithstanding the lack of reliable
evidence regarding the range from which the shots had been fired and the
presence of three spent cartridges in the yard of the neighbour
where had been shot. In the applicants' view, the reported location of those
three cartridges was irreconcilable with Major G.'s
assertion that he had fired from a position in Ms Tonkova's
yard. In particular, an automatic gun of the type used by Major G. would
normally eject spent cartridges at a distance of three or four metres. Therefore, the fact that spent cartridges had been
found in Mr M.M.'s yard
allegedly demonstrated that they had been fired from there. The applicants also
stated that evidence from the scene of the incident had not been properly
preserved and that Major G.'s blood-alcohol level had
not been tested, despite that being standard investigation procedure.
2. The Government
86. The Government stated that the law applicable at
the time of the deaths of Mr Angelov
and Mr Petkov was in
conformity with Article 2 of the Convention. Although Regulation 45 did not
expressly mention that force must be “absolutely necessary”, that requirement
was inherent in its paragraph 3 which stated that “[w]hen using firearms
military police officers shall be under a duty, as far as possible, to protect
the life of the person against whom they use force and to assist the
wounded...”: The Government also submitted that the new regulations adopted in
December 2000 fully complied with all relevant requirements.
87. As regards the actual events in the present case,
the Government maintained that the urgency of the police operation had made it
impossible to plan it in greater detail. In particular, there had been no time
to study from a distance the area around the house, as it was probable that
someone might inform the fugitives of the police's arrival. The operation
itself had taken less than a minute and the police officers had acted in
accordance with the circumstances. Mr Angelov and Mr Petkov had persisted in their effort to escape despite
several warnings. Major G. had fired at them only because they had been in the
process of climbing over a second fence: had they succeeded, Major G. would
have lost them from sight as the terrain dipped at that point. When firing,
Major G. had aimed at the victims' legs but owing to the gradient and their
movements the bullets had hit vital organs. In the Government's submission, the
fact that Mr Petkov had
been shot in the chest did not necessarily mean that he had turned to
surrender: another possible explanation was that he had been in the process of
jumping over the fence. Furthermore, it was noteworthy that each of the victims
was injured by one bullet only despite the fact that an automatic rifle was
used. That allegedly demonstrated that Major G. had exercised care.
88. The Government stated that there would have been
no fatal outcome but for the reckless behaviour of Mr Angelov and Mr Petkov. In particular, the
evidence showed that they were under the influence of alcohol.
89. Turning to the complaints concerning the
effectiveness of the investigation, the Government stated that all necessary
investigative steps had been taken rapidly. All the witnesses had been heard,
expert reports had been ordered and the work completed within a few months. The
conclusions of the investigator and prosecutors were duly reasoned: they found
that Major G.'s use of his firearm had been in
compliance with the law, as Mr Angelov and Mr Petkov had committed a publicly prosecuted offence,
received numerous warnings – including shots fired in the air – to stop and
surrender and Major G. had tried to aim at their legs when the two men were
about to escape from his sight.
90. The Government admitted that Major G. had not
been tested for alcohol but stated that there was no legal requirement for him
to be tested and there had been no particular reason to suspect that he had
consumed alcohol. Also, analysing the victims'
clothes for powder traces had been unnecessary as there had been sufficient
evidence to demonstrate that Major G. had fired from a distance.
91. Finally, the Government stressed that the
applicants had had a full opportunity to take part in the investigation and their
requests for the examination of witnesses had been granted.
B. The Court's assessment
1. Whether Mr Angelov
and Mr Petkov were deprived
of their lives in violation of Article 2 of the Convention
(a) General principles
92. Article 2, which safeguards the right to life and
sets out the circumstances when deprivation of life may be justified, ranks as
one of the most fundamental provisions in the Convention, to which in peacetime
no derogation is permitted under Article 15. Together with Article 3, it also
enshrines one of the basic values of the democratic societies making up the
Council of Europe. The circumstances in which deprivation of life may be
justified must therefore be strictly construed. 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.
93. Article 2 covers not only intentional killing but
also the situations where it is permitted to “use force” which may result, as
an unintended outcome, in the deprivation of life. The deliberate or intended
use of lethal force is only one factor however to be taken into account in
assessing its necessity. Any use of force must be no more than “absolutely
necessary” for the achievement of one or more of the purposes set out in
sub-paragraphs (a) to (c). This term indicates that a stricter and more
compelling test of necessity must be employed than that normally applicable
when determining whether State action is “necessary in a democratic society”
under paragraphs 2 of Articles 8 to 11 of the Convention. Consequently, the
force used must be strictly proportionate to the achievement of the permitted
aims.
94. In the light of the importance of the protection
afforded by Article 2, the Court must subject deprivations of life to the most
careful scrutiny taking into consideration not only the actions of State agents
but also all the surrounding circumstances.
95. In particular, it is necessary to examine whether
the operation was planned and controlled by the authorities so as to minimise, to the greatest extent possible, recourse to
lethal force. The authorities must take appropriate care to ensure that any
risk to life is minimised. The Court must also
examine whether the authorities were not negligent in their choice of action
(see McCann and Others v. the United Kingdom, judgment of
27 September 1995, Series A no. 324, pp. 45-46, §§ 146-50 and p. 57,
§ 194, Andronicou and Constantinou v. Cyprus, judgment of 9 October 1997, Reports
of Judgments and Decisions 1997-VI, pp. 2097-98, § 171, p. 2102, §
181, p. 2104, § 186, p. 2107, § 192 and p. 2108, § 193 and Hugh Jordan v.
the United Kingdom, no. 24746/95, ECHR 2001-III).
(b) Application of those
principles to the facts of the present case
96. It is undisputed that Mr
Angelov and Mr Petkov had committed offences and were shot and fatally
wounded in an operation to effect their lawful arrest.
97. It follows that the complaints must be examined
under Article 2 § 2 (b) of the Convention.
(i) Surrounding
circumstances
98. Mr Angelov
and Mr Petkov, who were
serving sentences for being absent without leave from compulsory military
service, had escaped from detention. Both had served in the Construction Force,
a special army institution in which conscripts discharged their duties as
construction workers on non-military sites.
99. Furthermore, Mr Angelov and Mr Petkov were serving short sentences for non-violent
offences. They had escaped without using violence, simply by leaving their
place of work, which was outside the detention facility. Neither man was armed
or represented a danger to the arresting officers or third parties. While they
had previous convictions for theft and had repeatedly been absent without
leave, they had no record of violence (see paragraphs 9-11 above).
100. It follows that their escape did not entail any
particular risk of irreversible harm.
101. Further, the behaviour
of Mr Angelov and Mr Petkov must have appeared to
the authorities as predictable, since, following a previous escape Mr Angelov had been found at the
same address in Lesura (see paragraphs 13 and 19
above).
(ii) The actions of the
arresting officers
102. The evidence shows that the arresting officers
were fully aware that Mr Angelov
and Mr Petkov were not
armed or dangerous. Firstly, the officers knew that they were detainees and
conscripts in the Construction Force who had escaped from their place of work.
Furthermore, at least two of the officers knew one or both of the men from a
previous arrest. Nothing in the information available to the officers could
reasonably make them fear violence on the part of Mr Angelov and Mr Petkov. In any event, on encountering the men in the
103. The Court considers that, balanced against the
imperative need to preserve life as a fundamental value, the legitimate aim of
effecting a lawful arrest cannot justify putting human life at risk where the
fugitive has committed a non-violent offence and does not pose a threat to
anyone. Any other approach would be incompatible with the basic principles of
democratic societies, as universally accepted today (see the relevant
provisions of the United Nations Basic Principles on the Use of Force and
Firearms by Law Enforcement Officials in paragraphs 67-70 above and, mutatis
mutandis, the Court's reasoning in Öcalan
v. Turkey, no. 46221/99, § 196, 12 March 2003).
104. It is only in subparagraphs (a) and (c) of Article
2 § 2 that violence (in the form of unlawful violence, a riot or an
insurrection) is expressly made a condition that will justify the use of
potentially lethal force. However, the principle of strict proportionality as
enshrined in Article 2 of the Convention cannot be read in dissociation from
the purpose of that provision: the protection of the right to life. This
implies that a similar condition applies to cases under subparagraph (b).
105. The use of potentially lethal firearms
inevitably exposes human life to danger even when there are rules designed to minimise the risks. Accordingly, the Court considers that
it can in no circumstances be “absolutely necessary” within the meaning of
Article 2 § 2 of the Convention to use such firearms to arrest a person
suspected of a non-violent offence who is known not to pose a threat to life or
limb, even where a failure to do so may result in the opportunity to arrest the
fugitive being lost (see the following cases in which the use of firearms was
found to have been justified – all of them concerned situations where the State
agents involved acted in the belief that there was a threat of violence or in
order to apprehend fugitives suspected of violent offences: W. v. Germany,
no. 11257/84, Commission decision of 6 October 1986, Decisions and Reports
(DR) 49, p. 213; Kelly v. the United Kingdom, no. 17579/90, Commission
decision of 13 January 1993, DR 74, p. 139; M.D. v. Turkey, no.
28518/95, Commission decision of 30 June 1997, unreported, Laginha
de Matos v. Portugal, no. 28955/95, Commission decision of 7 April 1997, DR
89, p. 98; Andronicou and Constantinou, cited above and Caraher
v. the United Kingdom (dec.), no. 24520/94, ECHR
2000-I; see also the Court's approach in McCann and Others, cited above,
pp. 45-46, §§ 146-50 and pp. 56-62, §§ 192-214; see also the Court's
condemnation of the use of firearms against unarmed and non-violent persons
trying to leave the former German Democratic Republic in Streletz,
Kessler and Krenz v. Germany [GC],
nos. 34044/96, 35532/97 and 44801/98, §§ 87, 96 and 97, ECHR 2001-II).
106. It follows that in the circumstances that
obtained in the present case (see paragraphs 98-100 above) the use of firearms
could not possibly have been “absolutely necessary” and was prohibited by
Article 2 of the Convention.
107. Furthermore, the Court finds that unnecessarily
excessive force was used in the present case. In particular:
(i) Major G. decided to
open fire at a moment when another officer was trying to head the fugitives off
and other options for effecting the arrest were open: some of the officers knew
the village of Lesura, Mr Angelov had already been arrested there on a previous
occasion, he was known to some of the officers, the officers had a jeep and the
operation took place in a small village in the middle of the day;
(ii) Major G. was also carrying a handgun but chose
to use his automatic rifle and switched it to automatic mode. His assertion
that he took care to aim at the victims' feet is incompatible with the manner
in which he fired: he could not possibly have aimed with any reasonable degree
of precision using automatic fire (see paragraphs 13, 14, 16 and 18-24 above);
(iii) Since spent cartridges were found in Mr M.M.'s yard, only a few metres from the spot where Mr Angelov and Mr Petkov fell, it is unlikely that Major G. fired from a
distance of about 20 metres, as he claimed (see
paragraphs 22 and 35 above);
(iv) Mr Petkov
was wounded in the chest, which may suggest that he had turned to surrender at
the last minute (see paragraph 37 above). The Government's explanation was that
Mr Petkov must have been in
the process of jumping over the fence and had therefore turned to face Major G.
for a moment (see paragraph 86 above). That suggestion, which was not
investigated but was formulated for the first time in the proceedings before
the Court, appears implausible given that after the shooting both victims fell
in front of the fence they had allegedly been trying to scale and not on the
other side. The Government's allegation that Mr Angelov and Mr Petkov had acted recklessly as they were probably drunk is
groundless, since the alcohol content found in their blood was very low (see
paragraphs 23, 42 and 46-50 above).
108. On the basis of the above, the applicants
alleged that there had been an intention to kill on the part of Major G. They
also claimed that prejudice against Roma had been a decisive factor in the
deaths of Mr Angelov and Mr Petkov and made detailed
submissions in that respect, relying on Article 14 of the Convention (see
paragraphs 153-155 below).
109. It is not the Court's task to determine whether
Major G. had an intention to kill, as it does not fulfil
the functions of a criminal court as regards the allocation of degree of
individual fault (see Gül v. Turkey,
no. 22676/93, § 80, 14 December 2000). The allegation that the use of
excessive force revealed a racial motive on the part of Major G. is to be
assessed in the light of the applicant's complaint under Article 14 of the
Convention.
(iii) Planning and control
of the operation
110. The Court considers that, in keeping with the
State's obligation to protect life, a crucial element in the planning of an
arrest operation that may potentially result in the use of firearms must be the
analysis of all the available information about the surrounding circumstances,
including, as an absolute minimum, the nature of the offence committed by the
person to be arrested and the degree of danger – if any – posed by that person.
The question whether and in what circumstances, recourse to firearms should be
envisaged if the person to be arrested tries to escape must be decided on the
basis of clear legal rules, adequate training and in the light of that
information (see McCann and Others, cited above, pp. 59-62, §§ 202-14, analysing in detail whether or not all circumstances
relevant to the use of force were taken into account in the planning of the
operation).
111. In the present case the Government essentially
maintained that the rules governing the use of force were laid down by law and,
hence, known to the arresting officers.
112. The Court observes that the relevant regulations
on the use of firearms by military police were not published, did not make use
of firearms dependent on an assessment of the surrounding circumstances, and,
most importantly, did not require an evaluation of the nature of the offence
committed by the fugitive and of the threat he or she posed. The regulations
permitted use of firearms for the arrest of every petty offender (see paragraph
56 above). Although the Supreme Court has stated that a proportionality
requirement existed under criminal law as interpreted by legal commentators,
the matter was not clearly regulated (see paragraphs 58-61 above) and the
Supreme Court's interpretation was apparently not applied in practice, as
evidenced by the conclusions of the investigator and the prosecutors in the
present case (see paragraphs 46-50 above). The Government did not submit any
information on the military-police officers' training.
113. Further, although they took the time necessary
to discuss a plan, the officers never touched upon the question whether Mr Angelov and Mr Petkov posed a threat.
Colonel D. found it sufficient to inform the arresting officers that the fugitives
were “criminally active” – a euphemism which conveyed no information on the
nature of the offences they had committed – and at the same time gave
instructions that the arresting officers should carry automatic rifles and
handguns, “in accordance with the rules”, and that all means should be used to
effect the arrest. The scene was thus set for an unjustified use of firearms.
The summary plan outlined by Major G. on the way to Lesura
did no more than assign the positions the officers were to take up in order to
encircle the house. The risk of two men trying to escape, the strategies for
pursuing them and the central question whether use of firearms would be
justified were never discussed (see paragraphs 14-17 above).
114. The Court finds that as regards the planning and
control of the arrest operation the authorities failed to comply with their
obligation to minimise the risk of loss of life, as
the nature of the offence committed by Mr Angelov and Mr Petkov and the fact that they did not pose a danger were
not taken into account and the circumstances in which recourse to firearms
should be envisaged - if at all - were not discussed apparently owing to
deficient rules and lack of adequate training.
(iv) The Court's conclusion as regards the deaths of Mr Angelov and Mr Petkov
115. The Court thus finds that respondent State is
responsible for deprivation of life in violation of Article 2 of the
Convention, as firearms were used to arrest persons who were suspected of
non-violent offences, were not armed and did not pose any threat to the
arresting officers or others. The violation of Article 2 is further aggravated
by the fact that excessive firepower was used. The respondent State is also
responsible for the failure to plan and control the operation for the arrest of
Mr Angelov and Mr Petkov in a manner compatible
with Article 2 of the Convention.
2. The effectiveness of the investigation
(a) General principles
116. 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 McCann and Others, cited above, p.
49, §§ 161-63; Kaya v. Turkey, judgment
of
117. 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, mutatis mutandis, Ilhan v.
Turkey [GC], no. 22277/93, § 63, ECHR 2000-VII). The investigation must be capable
of leading to the identification and punishment of those responsible. This is
not an obligation of result, but of means. Any deficiency in the investigation
which undermines its ability to establish the cause of death or the person
responsible will risk falling foul of the required effectiveness standard (see Anguelova v. Bulgaria, no. 38361/97, §
139, ECHR 2002-IV).
118. Also, 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 Güleç
v. Turkey, judgment of 27 July 1998, Reports 1998-IV, p. 1733,
§§ 81-82 and Ögur v. Turkey [GC], no.
21954/93, §§ 91-92, ECHR 1999-III). This means not only a lack of hierarchical
or institutional connection but also a practical independence (see Ergi v. Turkey, judgment of
119. 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 (see McKerr v. the
United Kingdom, no. 28883/95, §§ 111-15, ECHR 2001-III).
(b) Application of those
principles to the present case
120. The applicants relied on two groups of
arguments. They stated that there had been omissions in the collection of
evidence and inconsistencies in its assessment and that the investigation's
approach had been flawed as the “absolutely necessary” standard for the use of
lethal force had not been applied.
(i) Alleged
defective approach in that the “absolutely necessary” standard was not applied
121. The Court reiterates that while it is for the
Contracting Parties to choose the means necessary to give full effect to the
rights protected by the Convention, the required result is the effective
enjoyment thereof. With respect to the right to life, the authorities' duty to
secure its effective protection will not be discharged unless the investigation
in cases of death implicating agents of the State applies standards comparable
to those required by Article 2 of the Convention.
122. In the present case, the authorities did not
bring charges as they considered that the relevant regulations on the use of
force had been complied with. That conclusion was based essentially on the
findings that: (i) Mr Angelov and Mr Petkov were fugitives who had to be arrested;
(ii) Major G. had given all required warnings but the two men had
continued to make their escape; (iii) Major G. would probably have lost sight
of them had he not fired; and (iv) Major G. had aimed at their feet, thus
trying to avoid fatal injury (see paragraphs 46-50 above).
123. The Court has already found above that some of
these findings are questionable (see paragraph 107 above).
124. Even if they are accepted, however, they cannot
be seen as grounds for concluding that the force used against Mr Angelov and Mr Petkov was “no more than
absolutely necessary”.
125. In order to assess whether or not the force used
was “absolutely necessary”, it was indispensable to have regard to the fact
that Mr Angelov and Mr Petkov did not pose any threat
to the arresting officers or third parties and had committed non-violent
offences. On that basis alone, the authorities should have concluded that the
use of firearms was not justified.
126. Furthermore, it was necessary to investigate the
planning of the operation and its control, including the question whether the
commanders had acted adequately so as to minimise the
risk of loss of life.
127. In the present case, none of the above was seen
by the authorities as being relevant to the question whether or not the
requirements of domestic law on the use of force had been complied with (see
paragraphs 46-50 above).
128. The Court thus considers that the investigation
into the deaths of Mr Angelov
and Mr Petkov was flawed in
that it did not apply a standard comparable to the “no more than absolutely
necessary” standard required by Article 2 § 2 of the Convention.
(ii) The collection and
assessment of evidence
129. The Court notes that all the witnesses were
heard, including those called by the applicants. Autopsies were performed and a
number of expert reports were commissioned (see paragraphs 37-45 above).
130. On that basis, and noting that the applicants
had not requested the collection of other evidence despite having been given
every opportunity to do so, the Government considered that all possible
investigative steps had been undertaken.
131. The Court considers that the State's obligation
under Article 2 § 1 of the Convention to carry out an effective investigation
arises independently of the position taken by the victim's relatives. The fact
that there has been no request for particular lines of inquiry to be pursued or
items of evidence obtained cannot relieve the authorities of their duty to take
all possible steps to establish the truth and ensure accountability for deaths
caused by agents of the State. Furthermore, an investigation will not be
effective unless all the evidence is properly analysed
and the conclusions are consistent and reasoned.
132. The Court notes that important initial steps,
such as preserving evidence at the scene and taking all relevant measurements,
were neglected (see paragraphs 32-36 above).
133. Further, the sketch map relied upon by the
authorities was insufficiently detailed, as it did not indicate the
characteristics of the terrain and only covered a limited area. Not all
relevant measurements were noted and no reconstruction of the events was
staged.
134. However, the information that could have been
obtained through a reconstruction of the events and detailed descriptions was
crucial, in particular, in order to establish whether Major G. had committed a
criminal offence. It would have enabled the investigators to check the
arresting officers' accounts and to form an opinion on, inter alia, the exact position from which Major G. had fired
and the possible explanations for the fact that Mr Petkov was shot in the chest. The authorities at no stage
sought to collect evidence on these issues (see paragraphs 32-50 above).
135. It is further highly significant that the
investigator and the prosecutors failed to comment on a number of facts which
appeared to contradict Major G.'s statements. In
particular, there was no attempt to draw conclusions from the location of the
spent cartridges or the fact that Mr Petkov was hit in the chest. Without any proper
explanation, the authorities merely accepted Major G.'s
statements (see paragraphs 46-50 above).
136. The Court thus finds that the investigation was characterised by a number of serious and unexplained
omissions. It ended with decisions which contained inconsistencies and
conclusions unsupported by a careful analysis of the facts.
137. The Court has held that it regards as
particularly serious cases where indispensable and obvious investigative steps
that could have elucidated acts of deprivation of life by State agents were not
taken and the respondent Government failed to provide a plausible explanation
about the reasons why that was not done (Velikova
v. Bulgaria, no. 41488/98, § 82, ECHR 2000-VI).
138. In the present case, the investigator and
prosecutors at all levels ignored certain facts, failed to collect all the
evidence that could have clarified the sequence of events and omitted reference
in their decisions to troubling facts. As a result, the killing of Mr Angelov and Mr Petkov was labelled
lawful on dubious grounds and the police officers involved and their superiors
were cleared of potential charges and spared criticism despite there being
obvious grounds for prosecuting at least one of them.
139. The Court considers that such conduct on the
part of the authorities – which has already been remarked on by the Court
in previous cases against
(iii) The Court's conclusion
on the effectiveness of the investigation
140. The Court finds that the investigation in the
present case and the conclusions of the prosecutors were characterised
by serious unexplained omissions and inconsistencies, and that the approach was
flawed.
141. There has been, therefore, a violation of the
respondent State's obligation under Article 2 § 1 of the Convention to
investigate deprivations of life effectively.
3. Alleged violation of the obligation to protect life by law
142. In the applicants' view, the domestic law on the
use of potentially lethal force by military police was deficient, even after
the entry into force of the new regulations in 2000. On that basis they claimed
that there had been a failure by the respondent State to abide by its general
obligation to protect life by law. The Government disputed that allegation.
143. In the present case, the Court has already
found, in the context of the applicants' complaints concerning the deaths of Mr Angelov and Mr Petkov and the
investigation that followed, that the relevant regulations and practice
revealed flaws in that the “absolutely necessary” standard under Article 2 of
the Convention was not applied. The Court's ruling above provides sufficient
clarification about the meaning of that standard in general and, more
particularly, about the ensuing requirements that States must enshrine in
legislation and implement in practice (see paragraphs 98-115 above). In
these circumstances, the Court finds that it is not necessary to examine
separately the complaint that there has been a violation of the State's general
obligation to protect life by law.
III. ALLEGED VIOLATION OF ARTICLE 13
OF THE CONVENTION
144. 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.”
145. The parties referred to their submissions on the
effectiveness of the investigation from the standpoint of Article 2 of the
Convention (see paragraphs 83-85 and 89-91 above). The Government added that
since April 2001 prosecutors' decisions to terminate criminal proceedings are
amenable to judicial review.
146. In view of its findings above (see paragraphs
115 and 141), the Court considers that no separate issue arises under Article
13 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 14
OF THE CONVENTION
147. Article 14 of the Convention provides:
“The enjoyment of the rights and
freedoms set forth in [the] Convention shall be secured without discrimination
on any ground such as sex, race, colour, language,
religion, political or other opinion, national or social origin, association
with a national minority, property, birth or other status.”
A. The parties' submissions
1. The applicants
148. The applicants alleged that prejudice and
hostile attitudes towards persons of Roma origin had played a decisive role in
the events leading up to the deaths of Mr Angelov and Mr Petkov and the fact that no meaningful investigation was
carried out.
149. They submitted that popular prejudice against
Roma in
150. Analysing the events
in the present case, the applicants referred to the fact that the victims'
ethnic origin was known to the officers who tried to apprehend them. In their
view, Major G. would not have fired an automatic rifle in a populated area had
he not been in the Roma part of the village. His attitude towards the Roma
community was confirmed by the offensive words he had used when addressing one
of the neighbours, Mr M.M.
In the applicants' view based on their personal experience with law-enforcement
and investigation authorities in
2. The Government
151. The Government stated that proof beyond a
reasonable doubt was required and that the allegation of discrimination was
unsubstantiated and ill-founded.
3. Submissions of the European Roma Rights Centre
152. The European Roma Rights Centre, which was given
leave to intervene pursuant to Rule 61 § 3 of the Rules of Court, submitted
that there was a pressing need for the Court to re-evaluate its approach to
interpreting Article 14 of the Convention in cases of alleged discrimination on
the basis of race or ethnicity and, in particular, to revise its stand on the
applicable standard and burden of proof in such cases.
153. The intervener relied on the following
arguments:
(i) Nothing in the
Convention or Rules of Court mandates a particular standard of proof –
international courts set the most appropriate standards based on their
experience;
(ii) The currently employed beyond-a-reasonable-doubt
standard of proof, characterised by some as a 95% or
more probability of fact, is more appropriate in criminal proceedings;
(iii) Applied in the context of discrimination
complaints in cases of deprivation of life, torture, inhuman or degrading treatment,
this standard of proof was impossible to meet for the applicant: short of
documented instructions or specific admissions from a state official that
someone's ethnicity was a factor in treatment violating Articles 2 or 3, it was
difficult to imagine what kind of evidence would meet the
beyond-a-reasonable-doubt standard;
(iv) Differential treatment
on the basis of race and ethnicity was a singular evil and the protection
against it was of special importance;
(v) There was a close relationship between the
effective protection of substantive rights and the required allocation and
standard of proof, hence, the pressing need for a change of practice;
(vi) International and comparative legislation and
case-law with respect to discrimination claims, notably in the European Union
and its member states, as well as in the United States, reflected a clear and
growing trend of shifting the burden of proof to the perpetrator; although most
of that legislation and case-law related to discrimination in the employment
context, its rationale – stemming from the fact that the employer was in a
stronger position than the employee – should be applied a fortiori in
the more serious context of a discrimination claim on the part of an individual
against the State;
(vii) The
154. On the basis of the above, the intervener
considered that where a claim was made that a person's race or ethnicity was a
factor with respect to a violation of the Convention and it was supported by
“convincing evidence”, a standard seen by some as requiring 75% probability of
fact, then the Court should impose an obligation on the respondent State to
conduct an investigation capable of proving or disproving the discrimination
complaint. The State's failure to do so would support an
inference that Article 14 had been violated.
B. The Court's assessment
155. The right to life under Article 2 of the
Convention and the prohibition of discrimination in general, and of racial and
ethnic discrimination in particular, under Article 14 reflect basic values of
the democratic societies that make up the Council of Europe. Acts motivated by
ethnic hatred that lead to deprivation of life undermine the foundations of
those societies and require particular vigilance and an effective response by
the authorities.
156. As stated above (see paragraphs 116-19 above),
States have a general obligation under Article 2 of the Convention to conduct
an effective investigation in cases of deprivation of life.
157. That obligation must be discharged without
discrimination, as required by Article 14 of the Convention. The Court
reiterates that where there is suspicion that racial attitudes induced a
violent act it is particularly important that the official investigation is
pursued with vigour and impartiality, having regard
to the need to reassert continuously society's condemnation of racism and
ethnic hatred and to maintain the confidence of minorities in the ability of
the authorities to protect them from the threat of racist violence. Compliance
with the State's positive obligations under Article 2 of the Convention
requires that the domestic legal system must demonstrate its capacity to
enforce criminal law against those who unlawfully took the life of another,
irrespective of the victim's racial or ethnic origin (see Menson
and Others v. the United Kingdom (dec.),
no. 47916/99, ECHR 2003-V).
158. The Court considers that when investigating
violent incidents and, in particular, deaths at the hands of State agents,
State authorities have the additional duty to take all reasonable steps to
unmask any racist motive and to establish whether or not ethnic hatred or
prejudice may have played a role in the events. Failing to do so and treating
racially induced violence and brutality on an equal footing with cases that
have no racist overtones would be to turn a blind eye to the specific nature of
acts that are particularly destructive of fundamental rights. A failure to make
a distinction in the way in which situations that are essentially different are
handled may constitute unjustified treatment irreconcilable with Article 14 of
the Convention (see, mutatis mutandis, Thlimmenos
v. Greece [GC], no. 34369/97, § 44, ECHR 2000-IV). In order to maintain
public confidence in their law enforcement machinery, contracting States must
ensure that in the investigation of incidents involving the use of force a
distinction is made both in their legal systems and in practice between cases
of excessive use of force and of racist killing.
159. Admittedly, proving racial motivation will often
be extremely difficult in practice. The respondent State's obligation to
investigate possible racist overtones to a violent act is an obligation to use
best endeavours and not absolute (see, mutatis
mutandis, Shanaghan v. the United
Kingdom, no. 37715/97, § 90, ECHR 2001-III, setting out the same standard
with regard to the general obligation to investigate). The authorities must do
what is reasonable in the circumstances to collect and secure the evidence,
explore all practical means of discovering the truth and deliver fully
reasoned, impartial and objective decisions, without omitting suspicious facts
that may be indicative of a racially induced violence.
160. In the present case, certain facts which should
have alerted the authorities and led them to be especially vigilant and
investigate possible racist motives were not examined. No attention was paid by
the investigation to the fact that Major G. had fired an automatic burst in a
populated area – the Roma neighbourhood of Lesura – against two unarmed, non-violent fugitives and one
of the victims had wounds to the chest, not the back (suggesting that he may
have turned to surrender). The force used was in any event disproportionate and
unnecessary. Indeed, as stated by one witness, immediately after the incident
the other military police officers had started remonstrating with Major G.
telling him that he should not have fired (see paragraphs 13, 14, 16, 18-24,
37, 42 and 46-50 above).
161. Furthermore, despite information that Major G.
knew some of the villagers and the village where the shooting took place, no
effort was made to investigate whether or not personal hostility might have
played a role in the events (see paragraphs 14 and 24 above). Evidence by one of
the witnesses, Mr M.M., a neighbour
of the victims, that Major G. had shouted: “You damn Gypsies” while pointing a
gun at him moments after the shooting, was disregarded, although it had not
been contradicted (see paragraphs 31 and 46-50).
162. The Court considers that any evidence of racist
verbal abuse by law enforcement agents during an operation involving the use of
force against persons from an ethnic or other minority is highly relevant to
the question whether or not unlawful, hatred-induced violence has taken place.
Where such evidence comes to light in the investigation, it must be verified
and – if confirmed – trigger a thorough examination of all the facts in order
to uncover any possible racist motives. This was not done in the present case.
163. On the basis of the above the Court finds that
the authorities failed in their duty under Article 14 of the Convention, taken
together with Article 2, to take all possible steps to establish whether
or not discriminatory attitudes may have played a role in events.
164. The Court considers, furthermore, that the
domestic authorities' failure to discharge that duty should have an incidence
on its approach in the present case in the examination of the allegation of a
“substantive” violation of Article 14.
165. In cases where it is alleged that a violent act
was motivated by prejudice and hatred on the basis of ethnic origin – as here –
an assessment is required of such subjective inner factors as intent and state
of mind. However, the Court is particularly ill-equipped to play the role of a
primary tribunal of fact for establishing intent or state of mind, which is
better dealt with in the context of a criminal investigation. For these
reasons, the duty of
166. The Court has held on many occasions that the
standard of proof it applies is that of “proof beyond reasonable doubt”, but it
has made it clear that that standard should not be interpreted as requiring
such a high degree of probability as in criminal trials. It has ruled that
proof may follow from the co-existence of sufficiently strong, clear and
concordant inferences or of similar unrebutted
presumptions of fact. It has been the Court's practice to allow flexibility,
taking into consideration the nature of the substantive right at stake and any
evidentiary difficulties involved. It has resisted suggestions to establish
rigid evidentiary rules and has adhered to the principle of free assessment of
all evidence. The Court has also acknowledged that its task is to rule on State
responsibility under international law and not on guilt under criminal law. In
its approach to questions of evidence and proof, it will have regard to its
task under Article 19 of the Convention to “ensure the observance of the
engagements undertaken by the High Contracting Parties”, but without losing
sight of the fact that it is a serious matter for a Contracting State to be
found to be in breach of a fundamental right (see, among others, the following
judgments: Ireland v. the United Kingdom, judgment of 18 January 1978,
Series A no. 25, p. 64-65, § 161; Ribitsch
v. Austria, judgment of 4 December 1995, Series A no. 336, p. 24, §
32; Tanli v. Turkey, no. 26129/95, §§
109-11, ECHR 2001-III; Aktas v. Turkey,
no. 24351/94, § 272, ECHR 2003-V (extracts)).
167. The Court has already recognised
that specific approaches to the issue of proof may be needed in cases of
alleged discriminatory acts of violence. In one such case, it held that it is
not excluded that a measure may be considered as discriminatory on the basis of
evidence of its impact (disproportionately prejudicial effects on a particular
group), notwithstanding that the measure is not specifically aimed or directed
at that group (see Hugh Jordan, cited above, § 154).
168. In addition, it has become an established view
in Europe that effective implementation of the prohibition of discrimination
requires the use of specific measures that take into account the difficulties
involved in proving discrimination (see paragraphs 74-76 above concerning
anti-discrimination legislation, including evidentiary rules tailored to deal
with the specific difficulties inherent in proving discrimination). The Court
has also emphasised the need for a broad
interpretation of the protection provided by Article 14 of the Convention (see Thlimmenos, cited above, § 44). Member States
have expressed their resolve to secure better protection against discrimination
by opening for ratification Protocol No. 12 to the Convention.
169. In the light of the above, the Court considers
that in cases where the authorities have not pursued lines of inquiry that were
clearly warranted in their investigation into acts of violence by State agents
and have disregarded evidence of possible discrimination, it may, when
examining complaints under Article 14 of the Convention, draw negative
inferences or shift the burden of proof to the respondent Government, as it has
previously done in situations involving evidential difficulties (see Salman v. Turkey [GC], no. 21986/93, §
97, ECHR 2000-VII, Selmouni v. France [GC],
no. 25803/94, § 87, ECHR 1999-V and Conka
v. Belgium, no. 51564/99, § 61, ECHR 2002-I).
170. In the present case, as the Court found above,
the investigator and prosecutors at all levels ignored certain facts, failed to
collect all the evidence that could have clarified the sequence of events and
omitted reference in their decisions to troubling facts. As a result, the
killing of Mr Angelov
and Mr Petkov was labelled lawful on dubious grounds and the State agents
involved were cleared of potential charges and spared criticism despite there
being obvious grounds for prosecuting at least one of them. That conduct on the
part of the authorities was seen by the Court as a matter of particular concern
(see paragraphs 138 and 139 above). The authorities made no attempt to
investigate whether discriminatory attitudes had played a role, despite having
evidence before them that should have prompted them to carry out such an
investigation (see paragraphs 160-164 above).
171. In these circumstances, the Court considers that
the burden of proof shifts to the respondent Government, which must satisfy the
Court, on the basis of additional evidence or a convincing explanation of the
facts, that the events complained of were not shaped by any prohibited
discriminatory attitude on the part of State agents.
172. The Government have not, however, offered any
convincing explanation for the facts that may be seen as pointing to the
shooting having been induced by discriminatory attitudes.
173. The Court considers it highly relevant that this
is not the first case against
174. Many other incidents of alleged police brutality
against Roma in
175. In sum, having regard to the inferences of
possible discrimination by Major G., the failure of the authorities to pursue
lines of inquiry – in particular into possible racist motives – that were
clearly warranted in their investigation, the general context and the fact that
this is not the first case against Bulgaria in which Roma have been alleged to
be the victims of racial violence at the hands of State agents, and noting that
no satisfactory explanation for the events has been provided by the respondent
Government, the Court finds that there has been a violation of Article 14,
taken together with Article 2, of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
176. 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
177. Ms Nachova, Mr Angelov's daughter, and Ms Hristova, his partner and the mother of Ms Nachova, claimed jointly 25,000 euros (“EUR”) in respect of
the death of Mr Angelov and
the ensuing violations of the Convention. That amount included EUR 20,000 in
non-pecuniary damage and EUR 5,000 for pecuniary loss.
178. Ms Rangelova and Mr Rangelov claimed jointly the
same amounts in respect of the death of their son, Mr
Kiril Petkov, and all
violations of the Convention in the case.
179. In respect of non-pecuniary damage, the Court
awards the amounts claimed in full.
180. In respect of pecuniary damage, the applicants
claimed lost income resulting from the deaths. The applicants were unable to
provide documentary proof but stated that each of the victims had supported his
family financially and would have continued to do so had he been alive. They
invited the Court to award EUR 5,000 in respect of each private.
181. The Government stated that the claims were
excessive in view of the standard of living in
182. The Court observes that the Government have not disputed the applicants' statement that they had
suffered pecuniary loss in that Mr Angelov and Mr Petkov would have supported them financially if they were
still alive. The Court sees no reason to reach a different conclusion.
183. As to the amount, in some cases, such as the
present one, a precise calculation of the sums necessary to make complete
reparation (restitutio in integrum)
in respect of the pecuniary losses suffered by applicants may be prevented by
the inherently uncertain character of the damage flowing from the violation. An
award may still be made notwithstanding the large number of imponderables
involved in the assessment of future losses. The question to be decided in such
cases is the level of just satisfaction, which is a matter to be determined by
the Court at its discretion, having regard to what is equitable (see Z and
Others v. the United Kingdom [GC], no. 29392/95, § 120, ECHR 2001-V).
184. In the present case, having regard to the
submissions of the parties and all relevant factors, including the age of the
victims and the applicants and how closely they were related to each other, the
Court finds it appropriate to award EUR 5,000 jointly to Mrs
Nachova and Ms Hristova in
respect of lost income resulting from the death of Mr
Angelov, and EUR 2,000 jointly to Ms Rangelova and Mr Rangelov for lost income as a result of the death of Mr Petkov.
B. Costs and expenses
185. The applicants also made a joint claim for EUR
3,740 for costs and expenses. These included lawyers' fees for 81 hours of work
on the
186. The Government stated that the amounts were
exorbitant if compared with the minimum wage in
187. The Court considers that the claim is not
excessive and awards it in full.
C. Default interest
188. The Court considers it appropriate that the
default interest should be based on the marginal lending rate of the European
Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Dismisses the Government's
preliminary objection;
2. Holds
that there has been a violation of Article 2 of the Convention in respect of
the deaths of Mr Angelov
and Mr Petkov;
3. Holds 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 that it is not
necessary to examine separately the complaint that there has been a violation
of the State's general obligation under Article 2 of the Convention to
protect the right to life by law;
5. Holds that no separate
issue arises under Article 13 of the Convention;
6. Holds
that there have been violations of the procedural and substantive aspects of
Article 14, taken together with Article 2, of the Convention;
7. Holds:
(a) that the respondent State is to pay, within three months from
the date on which the judgment becomes final according to Article 44 § 2 of the
Convention, the following amounts, to be converted into the currency of the
respondent State at the rate applicable at the date of settlement:
(i) jointly to
Ms Nachova and Ms Hristova,
EUR 25,000 (twenty-five thousand euros) in respect of pecuniary and
non-pecuniary damage,
(ii) jointly to Ms Rangelova
and Mr Rangelov, EUR 22,000
(twenty-two thousand euros) in respect of pecuniary and non-pecuniary damage,
(iii) jointly to all the applicants, EUR
3,740 (three thousand seven hundred and forty euros) in respect of costs and
expenses, and
(iv) any tax that may be chargeable on
the above amounts;
(b) that from the expiry of the
above-mentioned three months until settlement simple interest shall be payable
on the above amounts at a rate equal to the marginal lending rate of the
European Central Bank during the default period plus three percentage points;
8. Dismisses the remainder of the applicants' claim for
just satisfaction.
Done in English, and notified in writing on
Søren
Nielsen Christos Rozakis
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the concurring opinion of Mr
Bonello is annexed to this judgment.
C.L.R.
S.N.
CONCURRING
OPINION OF JUDGE BONELLO
1. I welcome the fact that, in this case, the Court
has, for the first time in its history, found a violation of the guarantee
against racist discrimination contained in Article 14, together with Article 2,
which protects the right to life. This judgement goes
a long way to meet the concerns raised in my partly dissenting opinions in Anguelova v. Bulgaria (no. 38361/97, ECHR
2002-IV) and Sevtap Veznedaroglu
v. Turkey (no. 32357/96, 11 April 2000). I greet it as a giant step
forward that does the Court proud.
2. It is manifest from the wording of the judgement that the Court, in finding a violation of Article
14 taken together with Article 2, recognised a
violation of both the procedural guarantee (failure to conduct a proper
investigation into the death of the two Romas,
because they were Romas) and of the substantive
guarantee (failure by the Government to establish to the satisfaction of the
Court, non-racist motives in the killings).
3. I voted with the Court without reservation on that
finding; but I believe that the logic and cogency of the judgment would have
benefited had the procedural and the substantive aspects been segregated and
determined separately, with distinct findings of violation (or otherwise).
4. That is precisely what
the Court does when dealing with Article 2 and 3 issues, and I believe the
same template should equally be used when the analysis goes to Article 14 taken
together with Articles 2 or 3. In those cases the Court investigates the
state's responsibility in the death or inhuman treatment etc, and, separately,
whether the state has discharged its responsibility in investigating properly a
death or an allegation of conduct contrary to Article 3 (vide, e.g., Aktas v. Turkey, no. 24351/94, ECHR 2003-V
(extracts), §§ 294, 295, 307, 308, 319, 320, 322 and 323).
5. Like the Court, I find that in this case the
state's responsibility is engaged both by the fact that no proper
investigations were carried out following the two deaths, as also by the
failure of the state to satisfy the Court of the absence of racist concomitants
in the killings. The Court ought, in my view, to have expressed this double judgment
in separate findings of two violations: procedural and substantive.