CASE OF VLADIMIR GEORGIEV v. BULGARIA
Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 3 - Prohibition of torture (Procedural aspect)
Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva
5. The applicant was born in 1976 and lives in Sofia. 6. On 19 November 1998 a criminal investigation was opened against the applicant on allegations of wilfully inflicting intermediate bodily harm on a former colleague of his at a construction site. On 15 February 1999 he was charged and ordered to pay bail. On 18 February 1999 he appealed to the Sofia District Prosecutor’s Office, asking for a reduction of the bail. On an unspecified date that office granted the request, but its decision was not notified to the applicant. As he was unaware of it, he did not pay the bail. Accordingly, on 21 April 1999 an order was made for him to be placed in pretrial detention. He was not notified of that order either. 7. At about 2.40 p.m. on 28 May 1999, following a visit by a police officer to his home earlier that day, the applicant appeared at the first district police department in Sofia. At about 5.30 p.m. he was formally taken into custody. Several days later the applicant’s lawyer lodged a request for his release with the Sofia District Court. On 8 June 1999 that court made an order to that effect and the applicant was set free on 10 June 1999. 8. According to the applicant’s allegations, some time after being taken into custody the applicant was taken to a room on the fourth floor of the police department, where he saw a uniformed and a plain clothes police officer. Shortly after that the investigator in charge of his case, Ms T., came in and asked him to sign certain papers relating to his pretrial detention and the criminal charges against him. The applicant refused, whereupon she started shouting at him. The applicant still refused to sign, as in the papers it was stated that he did not wish to give evidence, which was not the case. He said that the offence alleged against him was not an arrestable one. After a verbal exchange the uniformed police officer started kicking the applicant on the left tibia and beneath the right knee. The plain clothes officer punched him in the face and the chest and slapped him on the face. In the same time Ms T. insisted that the applicant sign the papers presented to him, which he eventually did. 9. After that another uniformed police officer entered the room and, together with the one already present, took the applicant out. They cuffed both of his hands to a pipe running at head level along the corridor. He spent about two hours in this position. 10. At about 7.30 p.m. the applicant was taken to the cell block, situated on the top floor of the police department. He was put in a cell with three other detainees, Mr G.M., Mr T.T. and Mr E. 11. On the morning of the following day, 29 May 1999, the applicant requested to contact his mother or a lawyer, or to be interviewed by the investigator. However, nothing ensued. As the applicant was persisting in his requests, on 30 May 1999 the guards apparently became annoyed with him. 12. According to the applicant’s allegations, on the evening of 30 May 1999 he was let out of his cell together with Mr G.M. to go to the toilet. On the way back, in the corridor, he waited for Mr G.M. to move away from him and closer to the cell, and broke the glass of one of the corridor’s windows. Hearing the noise, Mr G.M. turned to see what was happening. The applicant made him a sign to move away, and Mr G.M. went back to the cell. Then the applicant took a piece of broken glass and cut himself on the forearms, allegedly in protest against the way in which he was being treated in custody. Thereupon one of the guards, sergeant R.V., came out of the guards’ room, holding two truncheons. He hit the applicant on the forearms to make him drop the piece of glass. Then he kicked him into the toilet and started hitting his waist with the truncheons. After that he threw him to the ground and started kicking him. The applicant lost consciousness. Sergeant R.V. poured water over him to restore him to consciousness, pulled him upright and made him strip naked. Then he poured more water on the applicant to clean him. He put him back in the cell naked and handcuffed him lying on the floor, with his hands secured behind his back. The applicant spent two to three hours like this. At about 7 p.m. chief sergeant S.S. arrived and ordered that the handcuffs be secured in front of the applicant’s body, and that he be dressed and covered with a blanket. 13. On the morning of 31 May 1999, some time before 9 a.m., the applicant banged his head against the cell wall several times, allegedly to protest against his treatment. Thereupon sergeant R.V. dragged him out of the cell and hit his thighs with a truncheon. As a result of his being dragged along the floor the applicant’s back was grazed. 14. Later that day the investigator in charge of the applicant’s case, Ms T., was informed of the incident and ordered that the applicant’s handcuffs be removed and that he be examined by the inhouse doctor. As the applicant was unable to move alone, one of his cellmates, Mr T.T., helped him go there. The doctor, first lieutenant N.T., found that the applicant was uncommunicative and somnolent. Later the applicant was taken to a hospital operated by the Ministry of Internal Affairs, where he was examined by doctor K. After that he was taken back to the detention facility, where he remained until 10 June 1999. 15. On 11 June 1999, the day following his release, the applicant made colour photographs of his body. They showed a number of bruises. 16. On 12 June 1999 the applicant was examined by a doctor at the Chair of Forensic Medicine and Professional Ethics of the Sofia Medical Academy. The doctor noted the following marks on his body: (i) a grazing scar measuring 4 to 2.5 cm on the right upper part of the forehead, near the hair, accompanied by a very slightly pronounced yellowishviolet haematoma; (ii) a palerose scar of a healing wound, about 1 cm long, in the middle of the lower part of the chin; (iii) three oval yellowishviolet haematomas with diameters from 3 to 5 cm on the chest; (iv) an area measuring 28 to 20 cm covering the lower left third of the thorax, the flank and the buttocks, where one could observe a number of obliquely positioned stripshaped haematomas, almost parallel to one another, higher in the back and lower in the front; this area was almost diffusely swollen and filled with blood, but there existed distinct haematomas consisting of two dark strips around one light strip, each being about 0.5 to 1 cm wide and 8 to 15 cm long; (v) a number of yellowishviolet haematomas with various shapes and sizes (some stripshaped, others oval) on the right shoulder and the lateralback surface of both forearms; (vi) a multitude of palerose stripshaped scars on the internal side of the right forearm, along its length, and four such scars on the left forearm; some of those on the right one were crossed by transversal scars; the longitudinal ones, which were several millimetres wide, ran from the elbow to the wrist joint; (vii) spotted yellowishviolet haematomas on the highest third of the right forearm; (vii) a haematoma measuring 20 to 13 cm on the lateral surface of the upper part of the left thigh; (ix) a similar haematoma, measuring 19 to 16 cm, on the front surface of the right thigh; (x) a haematoma measuring 10 to 8 cm on the back surface of the right thigh; (xi) a number of yellowishviolet haematomas on both knees and on the front surface of both legs beneath the knee, almost diffusely from the knees to the ankles. The doctor was of the opinion that the injuries to the applicant’s body were consistent with the blows described by him. In his view, these injuries amounted to intermediate bodily harm within the meaning of the 1968 Criminal Code (see paragraph 25 below) and were the result of a number of blows made with considerable strength and causing pain for prolonged periods of time. 17. On an unspecified date the applicant complained to the Sofia Regional Military Prosecutor’s Office and requested the opening of criminal proceedings against the officers who had allegedly illtreated him. After conducting a preliminary inquiry, during which it gathered certain documents but carried out no interviews, in a decision of 19 October 1999 a prosecutor of that office rejected the applicant’s request. He stated that at the time of his arrest the applicant had not had any “healthrelated complaints”. The prosecutor further found that when the guards had tried to take away the piece of glass which the applicant had used to cut his veins, he had waved it towards them and his cellmates, which had compelled the use of force and handcuffs. He also briefly described the banging of the applicant’s head against the cell wall, but did not refer to any of the allegations of beating with truncheons and kicking, and did not mention the applicant’s injuries. He stated that the guards’ actions had been in line with the applicable legal provisions and therefore did not amount to a criminal offence. 18. The applicant appealed to the Military Appellate Prosecutor’s Office. In a decision of 29 December 1999 the deputy head of that office dismissed the appeal. He stated that the inquiry conducted pursuant to the applicant’s allegations had been “especially thorough and comprehensive”. The applicant had broken a window and had tried to cut his veins. When the guards had intervened, he had put up strong resistance, including reaching out with a piece of glass, which had driven the guards to forcibly handcuff him. Later on he had banged his head against the cell wall. All of this led to the conclusion that no criminal offence had been committed by the guards. 19. The applicant appealed to the Supreme Cassation Prosecutor’s Office. In a decision of 26 January 2000 a prosecutor of that office dismissed the appeal. He described the 30 May 1999 incident in some detail and noted that the guards had denied beating the applicant or using force against him beyond what had been necessary to restrain him and take the piece of glass away from him. As regards the 31 May 1999 incident, he did not make any mention of beating following the applicant’s banging his head against the cell wall. He also described the applicant’s injuries, as noted in the 12 June 1999 medical certificate, but said that they could have been the result of guards’ subduing his resistance and placing him on the ground. The injuries could have also been caused by the applicant’s cellmates. There was furthermore no indication that he had been medically examined on being taken into custody, whereas the medical certificate presented by him did not specify the time when the injuries had been sustained. The decision was sent to the applicant on 1 February 2000. 20. The applicant later lodged a criminal complaint with the Sofia District Court. In a decision of 22 May 2000 the court dismissed the complaint, holding that the facts alleged by the applicant amounted to a publicly prosecutable offence, which made it impossible to institute private criminal proceedings pursuant to them. 21. On an unspecified date the applicant complained to the Ministry of Justice. In a letter of 22 June 1999 the director of the pre-trial detention facilities directorate of the Ministry advised him that an internal inquiry had been carried out. It had found that in using force against the applicant the custodial staff had acted adequately and had not exceeded their powers. If the applicant disagreed with this conclusion, it remained open to him to issue proceedings under the 1988 State Responsibility for Damage Act (see paragraph 28 below). A second complaint by the applicant resulted in a letter dated 4 August 1999 by the same director, in which he stated that a second check had confirmed that the guards had not used excessive force. It invited the applicant to name the guards who had allegedly illtreated him. 22. Meanwhile, on 3 August 1999, the Ministry of Internal Affairs wrote to the applicant, apparently in reply to a complaint. It stated that there was no indication that the applicant had ever been taken to the First District Police Department in Sofia. 23. On 25 October 1999 the applicant wrote again to the Ministry of Justice, requesting an investigation of the incident. On 3 November 1999 the Deputy Minister of Justice replied that sergeant R.V. had denied hitting the applicant and had stated that he had used force only to the extent necessary to restrain him. There was no indication that the applicant had been subjected to degrading treatment. This was also confirmed by the decision of the Sofia Regional Military Prosecutor’s Office. If the applicant disagreed with this conclusion, it remained open to him to bring an action under the 1988 State Responsibility for Damage Act (see paragraph 28 below). 24. In reply to further complaints by the applicant, the Deputy Minister of Justice advised him in a letter of 16 March 2000 that the matter fell within the competence of the military prosecution authorities. 25. Articles 128, 129 and 130 of the 1968 Criminal Code make it an offence to cause minor, intermediate or grievous bodily harm to another. Article 131 § 1 (2) of that Code provides that if the harm is caused by police officers in the course of or in connection with the performance of their duties the offence is aggravated. The offence is publicly prosecutable (Article 161 of the Code). 26. Article 192 §§ 1 and 2 of the 1974 Code of Criminal Procedure, as in force at the relevant time, provided that proceedings concerning publicly prosecutable offences could be opened only by a prosecutor or an investigator. They had to open an investigation whenever they received information, supported by sufficient evidence, that an offence might have been committed (Articles 187 and 190 of the Code). If the information given to the prosecuting authorities was not supported by evidence, they had to order a preliminary inquiry to determine whether the opening of a criminal investigation was warranted (Article 191 of the Code, as in force at the material time). 27. The offences allegedly committed by police officers were tried by military courts (Article 388 § 1 (2) of the Code, as in force at the relevant time). Where a case would fall within the jurisdiction of the military courts, the preliminary investigation was handled by military investigators and prosecutors. 28. Section 1 of the Act originally called the 1988 State Responsibility for Damage Caused to Citizens Act (Закон за отговорността на държавата за вреди, причинени на граждани – “the SRDA”), renamed on 12 July 2006 the 1988 State and Municipalities Responsibility for Damage Act (Закон за отговорността на държавата и общините за вреди), as in force at the material time, provided that the State was liable for damage suffered by individuals as a result of the unlawful acts of civil servants committed in the course of or in connection with the performance of their duties. The State’s liability is strict, that is, no fault is required to be established on the part of the civil servants in the commission of these acts (section 4 in fine of the Act).