CASE OF SARBYANOVA-PASHALIYSKA AND PASHALIYSKA V. BULGARIA
No violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);No violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Article 2-1 - Effective investigation)
André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Khanlar Hajiyev;Síofra O’Leary;Yonko Grozev
5. The applicants are the wife and daughter of Mr Ivan Mirchev Pashaliysky, who was killed on 2 June 2000 in an office situated in a hotel in Sofia. He died as a result of suffering severe trauma to his brain, chest, torso and limbs, which led to irreversible damage to several of his vital organs. The trauma was caused by a number of kicks and punches and blows inflicted with different objects. 6. On the day of the incident a private security guard was called to the office premises where Mr Pashaliysky was later found dead in order to investigate a brawl reportedly happening there. The security guard knocked on the office entrance door and an individual, S.V., opened it. The security guard caught a brief glimpse of Mr Pashaliysky lying helpless on the floor with blood on his face. S.V. was holding a long oval-shaped object. Having been told by S.V. that there was no problem, the security guard left. 7. It would appear that earlier that day, using the telephone of the office in question, S.V. had called Ch.M., a friend and business partner of Mr Pashaliysky, threatening to kill them both if Ch.M. failed to deliver an undisclosed sum of money to S.V. without delay. 8. The incident was reported to the police by an investigator, who had been tipped off earlier the same day. The police arrested S.V. that night. Traces of the crime having been discovered on S.V.’s hands and clothes, an investigator charged him on 3 June 2000 with murder. On 5 June 2000 a prosecutor indicted S.V. for the murder of Ivan Mirchev Pashaliysky, which had been committed three days earlier. 9. A prosecutor from the Sofia city public prosecutor’s office found on 20 April 2001 that there were reasons for amending the indictment by applying a law providing for a heavier penalty. She also found that not all available evidence had been collected. In particular, no expert DNA analysis had been carried out on the material found under the victim’s nails; several key witnesses had not been questioned about the reasons for their presence in the office in which the victim had been killed on the day in question and about the reason for the return to the office of one of them during the evening of the same day; no confrontation had been held between two of those witnesses, despite several discrepancies between their respective statements; and no information had been collected about the state in which the police officers had found the accused at the time of his arrest. On 20 April 2001 the prosecutor returned the case to the investigating authorities for further investigative measures, giving specific instructions aimed at the remedying of the deficiencies in the investigation. 10. The case was returned on three other occasions (on 17 July 2001, 18 July 2003 and on 2 October 2003) for further investigative steps, which the prosecutor listed specifically. 11. The case file was sent to the Sofia City Court on an unspecified date in November 2003. Both applicants were named as private prosecutors and the second applicant, at her request, also as a civil party seeking nonpecuniary damages. 12. At the start of the trial the defendant’s lawyer claimed that the indictment was defective because it did not contain a clear description of the offence with which the defendant had been charged; the lawyer sought, without success, the return of the case for further investigation. A number of hearings took place during the trial. The proceedings before the Sofia City Court ended on 11 June 2007, when the court sentenced S.V. to fifteen years’ imprisonment and ordered him to pay damages to the second applicant. 13. Both S.V. and the applicants lodged appeals with the Sofia Court of Appeal. S.V. submitted in particular that the sentence had been based entirely on guesswork as to who the perpetrator had been. Most importantly, S.V. claimed that the indictment had been entirely silent about the manner in which he was considered to have killed the victim, there being no description of the circumstances in which the victim was killed. Referring to interpretative decision no. 2 of 2002 of the Supreme Court of Cassation (see paragraph 21 below), he claimed that these procedural flaws were fundamental and that the court should have returned the case to the investigation stage. 14. On 18 July 2008 the Sofia Court of Appeal accepted that the indictment had not contained a description of how the accused had killed the victim and that this had been a fundamental procedural defect which had prevented the defendant from effectively exercising his rights. The court then quashed the first-instance court sentence and returned the case to the pre-trial stage so that the procedural flaw in question could be redressed. 15. On 16 August 2008 the prosecution indicted S.V. anew for the murder of Mr. Pashaliysky and the first-instance court, the Sofia City Court, opened fresh proceedings against him. The first two scheduled hearings were postponed because the defendant’s lawyer failed to appear. On 11 February 2009 the court recognised the second applicant as a civil party seeking non-pecuniary damages but refused to name both applicants as private prosecutors. After an appeal by the applicants that refusal was quashed on 13 March 2009 by the Sofia Court of Appeal. The witnesses were then heard again in the course of the trial so that the applicants could exercise their rights as private prosecutors. 16. Sixteen hearings took place thereafter, at which the applicants made numerous requests for evidence to be gathered and witnesses to be heard. Subsequently, the presiding judge was elected President of the Supreme Administrative Court as a result of which the trial stage was started anew. A new presiding judge was appointed, yet no further hearing was scheduled for about a year. The applicants complained about the delay to the Inspectorate of the Supreme Judicial Council, asking that disciplinary sanctions be imposed on the new presiding judge. The Inspectorate replied on 21 February 2012. It acknowledged that the criminal proceedings in the case had lasted eleven years and recognised that this was incompatible with the requirement of a reasonable length of proceedings. It nonetheless held that the judge in question could not be sanctioned, given that the duration of the other cases that she had heard had not exceeded an acceptable length. 17. On an unspecified later date the new presiding judge was sent back to the court from which she had been transferred and the case had to begin anew once again. 18. On 9 December 2013 the proceedings before the first-instance court ended. The Sofia City Court found S.V. guilty of murder and sentenced him to twelve years’ imprisonment. The first-instance court also ruled that S.V. had to pay some 50,000 euros (EUR) in damages to the second applicant as a civil party. After an appeal by S.V. the Sofia Court of Appeal carried out a thorough analysis of the witness statements given at first instance, of the record of the examination of the murder scene conducted on the day after the killing, of the search and seizure measures, and of the conclusions of the numerous expert reports, the autopsy, etc. Following this, on 22 December 2014 the appellate court upheld the guilty verdict and sentence, but lowered the amount in damages to be paid to the second applicant to around EUR 8,000. Following a cassation appeal by S.V. the Supreme Court of Cassation upheld the appellate court’s judgment in its entirety in a final judgment of 2 November 2015.