CASE OF S.Z. v. BULGARIA
Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction);Respondent State to take measures of a general character (Article 46 - Systemic problem;General measures)
George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva
5. The applicant was born in 1977 and lives in Sofia. 6. On 19 September 1999 the applicant, then a 22-year-old student, left Sofia for Blagoevgrad in a vehicle with two young men, B.Z. and S.P., and another young woman whom she frequented at the time and whose acquaintance she had made through one of her close friends, H.I. During the journey the two men told her that they intended to “sell” her as a prostitute to people with whom they were in contact in Blagoevgrad, and then to “take her back” after receiving the money. The applicant refused, but was threatened by B.Z. On their arrival at Blagoevgrad the group met a number of people in various cafés in the town; those people were apparently involved in prostitution rings abroad and discussed with B.Z. and S.P. sending the applicant to Greece, Italy or Macedonia to work as a prostitute and her alleged experience in the trade. The applicant was told that three of the men they had met were police officers. The applicant was then taken to a flat where she was held against her will and repeatedly beaten and raped by several men for about 48 hours, following which she managed to escape and found refuge in a neighbouring apartment block where occupants called the police. 7. During her first police interview the applicant attempted to throw herself out of the window and was then admitted to a psychiatric hospital. She subsequently received psychological counselling. 8. A criminal investigation was instituted by the Blagoevgrad District Public Prosecutor’s Office for abduction and false imprisonment; abduction for the purposes of coercing into prostitution; and rape. The applicant identified some of her assailants and two police officers whom the group had met prior to holding her against her will. She stated that the men were part of a criminal gang involved in human trafficking who wanted to force her into prostitution in western Europe. 9. In an order of 19 October 1999 the Blagoevgrad military prosecutor considered that there was insufficient evidence to prosecute the two police officers, Z.B. and Y.G., who had been charged with abduction, and discontinued the proceedings against them. The prosecutor observed, in particular, that after initially identifying the police officers, the applicant had not subsequently claimed that they had taken part in her abduction and false imprisonment. The prosecutor’s order was amenable to appeal, but the applicant does not appear to have lodged one. 10. During 1999 and 2000 several people involved were questioned, and an expert medical report was drawn up. The investigation was closed and the case sent to the prosecutor for a decision regarding committal for trial. However, on 12 April 2001 the prosecutor decided to send the case back for further investigation on the grounds that irregularities had been committed and further evidence was required regarding the involvement of H.I. and another individual, G.M. Subsequently the case was returned three more times for further investigation. In an order of 2 November 2001, the prosecutor found that the investigator had failed to carry out any investigative measures since the case had been sent back. He also noted a number of irregularities in the charges against the various defendants, such as wrong dates, inaccurate legal classifications or inconsistencies between the facts set out and the legal classification retained. The prosecutor also noted that the investigation had been carried out in the absence of one of the defendants without a duty lawyer being appointed and that some of the charges had to be amended, to take account, inter alia, of the fact that the applicant had attempted to commit suicide, which was an aggravating circumstance. In an order of 16 October 2002, the prosecutor noted that no measures had been carried out in accordance with his previous decision. In a further order of 12 March 2004, he observed that the instructions given had not been followed in their entirety, and in particular that the charges had not been amended. 11. The investigation was closed again and sent to the prosecutor on l3 November 2005. On 23 December 2005 the prosecutor decided to discontinue the proceedings against H.I. and G.M., who had been prosecuted for abduction for the purposes of coercing into prostitution and incitement to prostitution respectively, on the grounds that the offences had not been made out. On appeal by the applicant, that decision was set aside by the court on 29 March 2006. 12. The investigation was closed in May 2007 and the applicant was served with the investigation file. She then requested that one of the men she had identified from a photo, Y.Y.G., also be charged with rape. Her request was rejected on 7 June 2007 by the district prosecutor, who considered that there was insufficient evidence against him, the applicant’s statement being the only basis for implicating him in the attack. On 26 June 2007 part of the investigation, which concerned the offences of which the applicant accused Y.Y.G. and K.M., was severed from the main proceedings and fresh proceedings brought against persons unknown. On 12 September 2007 the Blagoevgrad appellate prosecutor’s office upheld the decision not to charge Y.Y.G., noting that if new evidence were to emerge, the investigators could bring further charges in the proceedings against persons unknown. On 15 February 2008 those proceedings were stayed, on the ground that the perpetrators had not been identified. 13. On an unspecified date in 2007 seven defendants were committed for trial in the Blagoevgrad District Court on charges of false imprisonment, rape, incitement to prostitution or abduction for the purposes of coercing into prostitution. 14. On 5 December 2007 the applicant sought leave to join the proceedings as a private prosecutor and civil party seeking damages. The court granted the application at a hearing held on 9 May 2008. 15. The Blagoevgrad District Court held 22 hearings. About ten of these were adjourned, mainly because the defendants or witnesses had not been properly summoned. The trial took place in the absence of one of the defendants, S.P., whom the authorities had been unable to find. 16. In a judgment of 27 March 2012, the court convicted L.D. and M.K. of gang rape, aggravated by the fact that the victim had attempted to commit suicide, and false imprisonment with aggravated circumstances. They were sentenced to six years’ imprisonment. B.Z. and S.P. were convicted of abducting the applicant for the purposes of coercing her into prostitution and sentenced to six and four years’ imprisonment respectively. S.D. was convicted of false imprisonment and sentenced to a fine of 3,000 levs (BGN). The court found that the offence of incitement to prostitution for which G.M. was being prosecuted was time-barred in accordance with the absolute limitation period and discontinued the proceedings against him. Lastly, it found H.I. not guilty of abduction for the purposes of coercing into prostitution on the grounds that the offence had not been made out as H.I. had not been present at the material time. The five defendants who had been convicted were ordered to pay the applicant damages, and the claim against the other two defendants was rejected. 17. The five defendants who had been convicted appealed. The applicant appealed only against the part of the judgment concerning S.D., requesting the imposition of a heavier sentence and an increase in the amount awarded in damages. 18. Seven hearings before the Blagoevgrad Regional Court were adjourned on account of the absence of one of the accused or their lawyers. The first hearing on the merits took place on 8 November 2013. As two of the defendants, S.P. and G.M. had not appeared, the court decided to examine the case in their absence. 19. In a final judgment of 11 February 2014, the court set aside S.D.’s conviction and terminated the proceedings against him on the grounds that they had become irrevocably time-barred. It amended the judgment concerning the other defendants: the classification of the offence of which L.D. and M.K. had been convicted was slightly amended and their sentence reduced to five years’ imprisonment. The sentence imposed on B.Z. was reduced to three years’ imprisonment and S.P.’s four-year prison sentence was upheld. 20. The court also reduced the amounts awarded to the applicant in non-pecuniary damages. It awarded the applicant a total amount of BGN 39,000, which was the equivalent of approximately 20,000 euros (EUR), ordering L.D. and M.K. to pay the applicant BGN 15,000 each, and B.Z, S.P. and S.D. to pay her BGN 4,000, BGN 3,000 and BGN 2,000 respectively. 21. During the judicial proceedings the applicant, who was living in Sofia, had to travel to Blagoevgrad on numerous occasions to attend hearings. She was called to the witness stand seven times. According to a medical opinion produced by the applicant, each summons to appear before the court had adversely affected her psychological condition. ...