CASE OF P.M. v. BULGARIA
Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award
David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
5. The applicant was born in 1977 and lives in Stara Zagora. 6. According to the judgment of 30 November 2005 of the Stara Zagora District Court, in the afternoon of 29 March 1991 the applicant, then aged thirteen, was invited to a party at the home of Mr T.Z. There were several young people in the apartment. After some time Mr D.I., then aged seventeen, took the applicant to a separate room and threatened her, after which he raped her. Then he went out and Mr T.Z., who was twenty-one years old, entered the room. He beat the applicant and attempted to rape her but was interrupted by his mother ringing the doorbell. Mr T.Z. asked the applicant and the other guests to leave. 7. The applicant told her parents that she had been raped, and they took her to the doctor and informed the police. 8. In a medical expert report of the same date two experts of the Stara Zagora Military Medical Institute established that there was an injury to the applicant’s hymen and that she had several bruises on her head. 9. On 4 April 1991 the applicant’s mother lodged a written complaint with the police authorities against Mr T.Z. and Mr D.I. 10. The police carried out an inquiry, in the course of which it took statements from the applicant, Mr T.Z. and Mr D.I. The two suspects gave their addresses. 11. On 27 January 1992 the Stara Zagora district prosecutor opened criminal proceedings against Mr T.Z. and Mr D.I. 12. On 9 April 1992 Mr T.Z. was charged with attempted aggravated rape and was ordered not to leave the town pending the criminal proceedings against him. On the same day the investigator questioned him, the applicant and a witness. 13. In a letter of 10 April 1992 the investigator requested the police to establish the full names and addresses of four witnesses. 14. On 28 April 1992 the investigator established that Mr D.I. had not appeared before him, although he had been duly summoned, and that the whereabouts of certain witnesses were unknown. He proposed that the criminal proceedings be stayed. By a decree of 24 November 1992 the district prosecutor stayed the criminal proceedings against Mr T.Z. and Mr D.I., on the ground that the latter’s whereabouts were unknown. 15. There is no information as to whether the authorities took any steps to find the persons concerned. 16. In a report of 8 September 2000 a police officer stated that Mr D.I. had been found. The address specified in the report was the same as the one Mr D.I. had given in his written statement of 1991. In a statement of 8 September 2000 Mr D.I. said that he had not changed his place of residence and that he had never been summoned by the investigator. 17. On 19 December 2000 the district prosecutor resumed the criminal proceedings against Mr T.Z. and Mr D.I. 18. In a letter of 26 February 2001 the investigator asked the district prosecutor to extend the period of investigation by six months, stating that the work on the case had not been completed on time because of his involvement in other cases. On 19 March 2001 the district prosecutor granted a two-month extension. 19. In a letter of 28 June 2001 the district prosecutor instructed the investigator to take urgent measures to complete the investigation, informing him that the case would be subject to special monitoring. 20. On 5 November 2002 Mr D.I. was charged with aggravated rape and was ordered not to leave the town pending the criminal proceedings against him. On 14 November 2002 he was questioned before a judge. 21. In the period between 7 November and 5 December 2002 the investigator questioned twelve witnesses, and appointed two experts to make a psychiatric and psychological assessment of Mr T.Z., Mr D.I. and the applicant, as well as a medical expert, who, on the basis of the documents in the file, confirmed the conclusions of the medical report of 29 March 1991. 22. The results of the preliminary investigation were communicated to Mr T.Z. and Mr D.I. on 4 March 2003. 23. On 6 March 2003 the investigator concluded the investigation and referred the file to the district prosecutor with the recommendation that the two accused should be put on trial. 24. In a decree of 30 September 2003 the district prosecutor terminated the criminal proceedings in respect of Mr D.I. as time-barred. He found that a shorter prescription period was applicable to him because he had been under age at the time of the offence. 25. In a decree of 29 March 2004 the district prosecutor terminated the criminal proceedings in respect of Mr T.Z., finding that the charges against him had not been proved and that it would be practically impossible to gather any new evidence in view of the period of time which had elapsed since the events. 26. Following an appeal by the applicant, on 20 April 2004 the Stara Zagora District Court quashed the decree of 29 March 2004 and resumed the proceedings in respect of Mr T.Z. It found that the district prosecutor should have ordered witness confrontations. 27. On 30 April 2004 the district prosecutor referred the case back to the investigator for further examination. 28. In the period from 7 to 11 June 2004 the investigator carried out four witness confrontations. 29. A second psychiatric and psychological report was submitted in respect of the applicant on 22 June 2004. It confirmed that she had been able to understand the events of 29 March 1991 and that she had not been able to effectively resist the mental and physical violence against her. It was unlikely that the applicant had testified under the influence of her parents. 30. On 9 June 2004 the investigator ordered an expert examination of the clothes allegedly worn by the applicant on the day of the incident, as well as of other items. Several expert reports were prepared in the period from 16 to 22 June 2004. 31. On 25 June 2004 the results of the preliminary investigation were presented to Mr T.Z. On the same date the investigator concluded the investigation and referred the file to the district prosecutor with the recommendation that Mr T.Z. should be tried for attempted rape. 32. On 19 July 2004 the district prosecutor once again terminated the criminal proceedings against Mr T.Z. for lack of direct evidence. 33. Following an appeal by the applicant, on 25 August 2004 the Stara Zagora regional public prosecutor’s office upheld the decree of 19 July 2004. The applicant appealed further. 34. In a decree of 21 September 2004 the Plovdiv appeals public prosecutor’s office quashed the decrees of 25 August 2004, 19 July 2004 and 30 September 2003 (see paragraph 24 above) and referred the case back to the district prosecutor for further investigation. The district prosecutor was ordered to monitor the case and see to the lawful and timely completion of the investigation within two months. The decision further stated that the applicant’s account of the events had been corroborated by numerous pieces of circumstantial evidence and that the prescription period for prosecuting Mr D.I. had not expired because there was evidence of complicity between the two accused which affected the legal characterisation of the charges. 35. On 5 October 2004 the district prosecutor referred the case back to the investigator with instructions to gather additional evidence within thirty days. On 8 November 2004 this deadline was extended by thirty days. 36. In a letter of 3 January 2005 the district prosecutor instructed the investigator to send him the file as soon as possible. In a note of 12 January 2005 the district prosecutor stated that he had reached an agreement with the investigator that the file would be sent by 31 January 2005. 37. A confrontation between the applicant and Mr T.Z. was carried out on 17 January 2005. 38. On 18 January 2005 the applicant was questioned before a judge. 39. On 21 January 2005 Mr D.I. and Mr T.Z. were charged with aggravated rape and attempted aggravated rape respectively, committed in complicity, and were ordered not to leave the town pending the criminal proceedings. They were questioned on the same day. 40. A confrontation between the applicant and Mr D.I. was carried out and two witnesses were questioned before a judge between 24 and 26 January 2005. 41. An expert report concerning a tear in the jeans allegedly worn by the applicant on the date of the incident was submitted on 31 January 2005. 42. The results of the preliminary investigation were communicated to Mr D.I. and Mr T.Z. on 2 and 3 February 2005 respectively. 43. On 9 February 2005 the investigator concluded the investigation and referred the file to the district prosecutor with the recommendation that Mr D.I. and Mr T.Z. should be tried on the charges. 44. An indictment against the two accused was filed with the Stara Zagora District Court on 22 February 2005. 45. Two hearings scheduled for 14 April and 22 June 2005 were postponed because one of the accused and the lawyer of the other accused had fallen ill. 46. A hearing was held on 11 July 2005. The applicant joined the proceedings as a private prosecutor. She did not bring a civil action. 47. On 12 October and 30 November 2005 the District Court held hearings. The defendants did not plead the statute of limitations but asked the court to pronounce a judgment. 48. In a judgment of 30 November 2005 the District Court convicted Mr D.I. of aggravated rape but relieved him from liability and punishment. It reasoned that although Mr D.I. had not pleaded the statute of limitations, the latter was nevertheless an absolute obstacle to his punishment. It further convicted Mr T.Z. of attempted aggravated rape and sentenced him to three years’ imprisonment. It found that the long lapse of time since the rape represented a mitigating factor which must be taken into account in determining his punishment. The court acquitted the two accused of the complicity charges. 49. Upon appeals by the applicant, the district prosecutor and Mr T.Z., on 20 October 2006 the Stara Zagora Regional Court upheld the judgment of 30 November 2005 in respect of Mr D.I. This part of the judgment was not subject to appeal and became final. 50. The Regional Court further terminated the criminal proceedings against Mr T.Z. as time-barred, finding that the prescription period for his prosecution had expired meanwhile. 51. On 18 May 2007 the applicant’s lawyer was informed of the judgment and of the applicant’s right to appeal against the termination of the criminal proceedings against Mr T.Z. The applicant did not appeal. 52. Pursuant to the 1974 Criminal Procedure Code, in force at the relevant time and until 2006, as well as the constant case-law of the Supreme Court of Cassation, the courts had to terminate criminal proceedings upon expiry of the statutory period of limitation. Nevertheless, the accused could request their continuation (Article 21). In such a case, the court could find him guilty but could not punish him (Article 303).