CASE OF ANZHELO GEORGIEV AND OTHERS v. BULGARIA
Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award
George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva
5. The facts of the case, as submitted by the parties, may be summarised as follows. 6. The applicants worked for a private company (“the company”). The company is one of the main Internet service providers in the city of Varna; it operated out of at least two offices in Varna, both of which were located on the same street. The first applicant was the company’s manager; the second, third and fourth applicants were employees of the company; the fifth applicant was a freelance expert providing services to the company at the time of the events. 7. On 16 June 2008 the Varna District Public Prosecutor initiated criminal proceedings (досъдебно производство) against a person unknown, suspected of disseminating materials in violation of intellectual property laws by using the company’s servers during the period January to May 2008 and thus committing a continuous offence as defined in Article 172a (1) of the Criminal Code. The proceedings were not directed at anyone specifically at the company. The prosecutor’s order for opening criminal proceedings comprised the following instructions: that the facts be established; that unlicensed software be identified and seized, and a forensic examination be carried out in respect of it; that the results be discussed with the prosecutor without delay; and that the investigation be carried out by officers of the Central Service for Combating Organised Crime (CSCOC). 8. The following facts are undisputed between the parties. 9. Following the prosecutor’s order of 16 June 2008, a special police operation was carried out on 18 June 2008 in two of the company’s offices located in the same street in Varna. The operation was aimed at the search and seizure of illegal software and was carried out pursuant to the instructions of the supervising prosecutor. Ya.K., a CSCOC officer and the head of the operation, had given the operational instructions to the officers involved shortly before the operation began. Those instructions were to enter the company’s premises as quickly as possible, to overpower all individuals found there in order to prevent them from interfering with any electronic evidence, and to seize the computer equipment found in the offices. A district court judge confirmed the validity of the searchandseizure operation within 24 hours of its having taken place. A number of computers and black boxes, the latter referred to in the searchand-seizure reports as “computer systems”, as well as one folder of paper documents, were seized in the presence of certifying witnesses during the operation. The manager of the company, Anzhelo Angelov Georgiev, was not present in the company’s offices when the operation took place. The second applicant was working in the first company office at the time of the operation and the third, fourth and fifth applicants were present in the second company office. 10. The parties disagree in particular in respect of whether the force used by some of the CSCOC officers during the above-mentioned operation had been provoked by the applicants and therefore whether it had been excessive or absolutely necessary in the circumstances. 11. The applicants, in their complaints to the prosecutor on 19 June 2008 about having been ill-treated during the operation the previous day, described the conduct of the operation as follows. 12. Anzhelo Angelov Georgiev, the first applicant, submitted that on 18 June 2008 CSCOC officers barged into two offices of the company, having broken the entrance doors to one of the offices. Then, he claimed, they had broken the cameras in the first office, ordered the employees found there, including the second applicant, to lie on the ground and hit them with electroshock batons, as well as kicked them in the chest and the head despite the absence of any resistance or provocation. The first applicant also claimed that a similar situation had arisen in the second company office. Copies of medical certificates, evidencing injuries allegedly sustained by several employees during those events, were enclosed with the complaint. 13. Kameliya Ivanova Dekova, the second applicant, submitted that at around 4.00 p.m. on 18 June 2008 masked armed men had cut the lock of the entrance door to the company’s first office where she was working, saying they were police. Then, she claimed, they had made her lie on the ground and had kicked her in the chest and head, as well as applied electroshock discharges from a baton-like device to her body before handcuffing her. She had not resisted in any way and had done nothing to provoke such treatment. One of the masked men had been shouting threats and insults at her and her colleagues present in the office, including threatening to shoot a firearm. 14. Georgi Mirchev Kosev, the third applicant, submitted in particular that he had heard loud bangs on the entrance door of the company’s second office at about 4.30 p.m. on 18 June 2008. After a colleague had opened the door, men had rushed in, pushed and shoved him and then handcuffed him to the window grill. While he was still attached to the grill, they had applied electroshock discharges from a baton to his abdominal area. 15. Nikolay Angelov Dragnev, the fourth applicant, submitted that at around 4.30 p.m. on 18 June 2008 several armed masked men had broken into the company’s second office, where he was at the time. Although he had not resisted in any way, they had hit him in the face and his lip had started bleeding. They had handcuffed his arms behind his back and then made him stay on his knees for an hour during which time they had continuously insulted him. 16. Pavel Yonkov Tsekov, the fifth applicant, submitted that at about 4.30 p.m. on 18 June 2008, while he had been working in the company’s second office together with seven other colleagues, he had heard strong bangs on the door and shouts “Open! Police!”. As soon as a colleague of his had opened the door, several men had thrown Mr Tsekov to the ground, then had handcuffed his arms behind his back and dragged him outside. Next they had made him remain crouching with his hands cuffed behind his back for around an hour. They had asked no questions of him or his colleagues nor asked them to produce their identity documents; instead, they had ordered the employees in the office to keep quiet. 17. Some of the twelve employees, including the second, third, fourth and fifth applicants, who were heard during the inquiry on 2 and 3 July 2008 following the applicants’ complaints (see paragraph 24 below), stated that police officers had cut open the entrance door to the first of the company’s offices in which they had been working on the afternoon of 18 June 2008. Following that the officers had hit them in the face, kicked them, stepped with a boot on their heads, applied electroshock discharges on them which had caused them very strong pain and a feeling of paralysis, insulted them and continuously shouted at them to keep silent. The officers had been wearing what some employees described as “helmets” and “hoods” on their heads. They had been dressed in black police uniforms and had been armed with machine guns. Once the masked officers had noticed that there were cameras on the premises, they had signaled this to each other and stopped hitting the employees. Shortly afterwards civilian police officers had entered the office premises; none of the civilian officers had illtreated any of the employees. 18. The Government submitted to the Court statements of thirteen police officers who had taken part in the operation. The statements were given to the prosecution on 7 July 2008, 27 August 2008, 2 September 2008 and 18 September 2008, as part of a preliminary inquiry carried out into the allegations of the company’s employees that they had been ill-treated by the police at the time of the operation. The Government also submitted to the Court the statements of twelve employees of the company given to the prosecution during the same inquiry (see paragraph 17 above). 19. Officers from the CSCOC who had participated in the operation were heard during the inquiry in August and September 2008 in Sofia following instructions of the Varna prosecutors. The CSCOC officers submitted that, prior to the operation they had received information from operative police sources and various media publications, that the company was connected to organised criminal groups. Given that the employees had refused to open the door to one of the offices which had been disguised as a family apartment, masked police officers had had to cut it open in order to prevent the destruction of evidence. The other office had been opened from inside by employees. CSCOC officers (it was not specified who or how many) had entered through the window into yet a third “hidden” office, thus “taking by surprise an employee found there who was attempting to destroy evidence”; they had handcuffed that employee, and then an unspecified person had opened the door to that office with a key. During the operation the company’s employees had refused to comply with the police orders and had actively disobeyed the officers, thus obstructing the operation. The officers had not used electroshock on any employee. They had used handcuffs on individual members of staff who had refused to open the entrance door or to move away from their computer stations and who had continued to erase data from the computers instead. The wife of the company’s manager had behaved arrogantly towards the officers, insulting and threatening them with revenge, and had ordered the employees to continue with their work. 20. Officers of the Varna Regional Police Directorate (“Областна Дирекция на Полицията Варна” or “VRPD”) who were heard during the inquiry in July 2008 in Varna submitted that they had been called in to assist their colleagues from the CSCOC in an operation to find company servers containing unlicensed software, films and music. None of the VRPD officers had been masked. They had not been involved in the opening of the entrance doors to the company’s offices as that had been done by masked officers from the CSCOC. They had entered the office premises after the doors had been opened. They had seen some masked officers on the company premises but had not seen what they had done. Some of them had heard calls of “Open! Police!” during a period of about 10 to 15 minutes and after that the sound of an electric grinder. They had not witnessed any physical force being used against any employee. Some of the VRPD officers had seen in the first office several women – none of whom bore any sign of injury – sitting on chairs guarded by two masked officers; in the entrance hall leading to the second office they had seen several company employees, some wearing handcuffs. While the VRPD officers had been waiting for the entrance doors to the offices to be opened, they had thought it likely that the company employees would delete most if not all of the information sought to be collected during the operation. All the employees had been calm and, at times, the officers had let them smoke outside the building before asking them to return inside to wait until the conclusion of the search-and-seizure operation. After officers had brought in another woman called A.G., acting as the manager of the company, ten computer systems were seized in her presence and in the presence of several certifying witnesses. The VRPD officers had left at around 8 p.m. 21. On 19 June 2008, the day after the police operation, at their request, a forensic expert examined Ms Dekova, Mr Kosev and Mr Tsekov, respectively the second, third and fifth applicants. 22. According to the medical reports, Ms Dekova had a swollen right upper eyelid and a swelling and a cut next to her right eyebrow, a bruise and an abrasion in her right armpit, four reddish-brown burns on and below her right shoulder blade and bruises on her right thigh and arm. The conclusion of the medical expert was that the burns on her back were of first to second degree and it was plausible that they had been sustained from not less than four strikes with an electroshock baton at the time and in the circumstances described by the applicant. Mr Kosev had a jaw injury, injuries to both arms, an injury and an open wound in the abdominal area and six reddish strips on his abdomen. Mr Tsekov had three long bruises around his left armpit which could have been the result of pressure applied with non-sharp, hard objects, possibly squeezing by hands. The medical expert concluded that the bruises and injuries could have been caused by blows with or against a blunt object, and that the injuries described above had caused the second, third and fifth applicant pain and suffering, and the second applicant also temporary non-life-threatening health disorder. 23. On 19 June 2008 the applicants, and five other individuals, complained to the prosecutor, in particular, that masked men had broken into two of the company’s offices the previous day and had used violence towards them, as well as shouting and insulting. Because the officers had been masked, they could not identify them. Civilian officers who had entered the office premises in order to search and seize computer equipment after the masked men had broken in had not mistreated the company employees. The prosecutor took the applicants’ statements which are summarised in paragraphs 12 to 16 above. They submitted the medical certificates drawn up on the same day (see paragraph 21 and 22 above). 24. A preliminary inquiry into the above complaints was opened the day after the operation took place. During the months of July, August and September 2008, investigators took statements from thirteen officers who had participated in the operation and twelve staff members of the company who had been present during the operation. The police statements are summarised in paragraphs 19 and 20 above and the employees’ statements are summarized in paragraph 17 above. The Government did not submit, and the documents in the file do not show, that any other investigative steps, apart from the questioning of several police officers and the company’s employees, were carried out. 25. The questions put to the officers during the inquiry were: 1) whether during the operation any employee had disobeyed or showed manifest lack of cooperation; 2) whether any of the masked officers had used electroshock batons against any employee and, if yes, why; 3) who among the officers (masked or not) had used physical force and auxiliary means for restraint (помощни средства), against whom of the employees, in which of the company’s offices and why; 4) officers from which police department (specialised in breaking into premises or in arresting individuals) had taken part in the operation; and 5) whether the entrance doors to the company’s offices had been opened voluntarily or whether they had to be forced open. 26. All the officers heard during the inquiry stated that they had learned about the police operation of 18 June 2008 and had been called to assist with it earlier on the same day; none of them had used force against the applicants, apart from handcuffing individuals who had disobeyed the officers’ orders; no electroshock discharges had been applied to anyone. Not all police officers answered all questions asked as part of the inquiry. 27. The inquiry ended with a decision of the Varna Regional Military Prosecutor of 7 October 2008 not to institute criminal proceedings, finding that the officers involved in the operation had not exceeded the prerogatives vested in them by law. Upon appeal by the applicants, on 24 November 2008 the Varna Appellate Military Prosecutor returned the case with instructions that further acts be carried out (see paragraph 38 below, third sentence). More specifically, he observed that the file did not contain any documents showing that criminal proceedings had been opened against the applicants. Likewise, there was no information in the file showing that a search-and-seizure operation had been carried out and that it had been authorised by a judge. No information on file showed either that evidence had actually been found on the premises searched, or that there had been reasonable suspicion that evidence could have been found there. The prosecutor held that the scant assertions of several police officers who had been heard during the preliminary inquiry were not sufficient to establish the circumstances as recorded in the refusal to open criminal proceedings of 7 October 2008. Consequently, additional investigative acts had to be carried out. The higher prosecutor asked, in particular, that copies be collected of the orders for opening criminal proceedings on suspicion of violating intellectual property laws and for bringing charges on those grounds, as well as records of the search-and-seizure operation and “other documents of importance for the inquiry”. It is unclear whether any investigative steps were taken thereafter. 28. On 13 March 2009 the Varna District Public Prosecutor, to whom the file was sent for competence reasons following a legislative amendment, refused to open criminal proceedings (see paragraph 37 below) against the police officers. She found that a special police operation aimed at gaining access to the offices of the company and seizing unlicensed software had been carried out on 18 June 2008. The initial information available had been that the company had connections with organised criminal groups and that its main activity was the collecting and disseminating of unlicensed software. Officers from CSCOC had been in charge of the operation; masked officers from CSCOC Sector “Operational Intervention” (сектор “Оперативна реализация”) and officers from different units of the Varna Regional Police Directorate, had taken part in the operation. Following a preparatory briefing session, at around 3.30 in the afternoon the officers had tried to enter the office premises of the company. Someone on the inside had locked the front door; following this, the company’s employees had gone to their computers and started deleting data sought by the police. The employees had not complied with several orders by the police officers to open the doors. Acting upon the instructions to enter the company’s premises rapidly and to establish full control over all individuals there without giving them the opportunity to erase data or to obstruct the seizure of computers, the CSCOC officers had cut the entrance door lock to the building, thus breaking into the premises. They had then ordered all the individuals found there to lie on the floor and refrain from touching the computer equipment. However, the company’s employees had disobeyed the orders and, using different pretexts, had remained instead in front of their work stations, acting so as to delete information from the company’s computers. The officers had used physical force, electroshock batons and handcuffs in respect of some of the employees to overcome their resistance and prevent them from touching the computers located on the premises. During the operation, some employees had been knocked over. Those findings had been corroborated by the statements of all persons, civilians and police officers, collected during the inquiry, as well as by documents submitted by the Varna Regional Police Directorate. The prosecutor further found, on the basis of medical reports, that some complainants (without naming them) had sustained injuries during the operation and that they could not identify the officers who had caused the injuries as the latter had been wearing masks. The prosecutor concluded that it had been established unequivocally during the inquiry that the injuries sustained by the civilians during the police operation of 18 June 2008 had been the result of the use of force and auxiliary means for restraint by police officers in order to overcome the complainants’ resistance and to prevent them from destroying crucial evidence for the ongoing criminal proceedings. The officers had not exceeded their statutory right under section 72 of the Ministry of Interior Act to use force, as they had been faced with refusals to obey their orders. The material collected during the inquiry had shown that the searchandseizure operation had been carried out in accordance with the instructions of the supervising prosecutor and had been approved by a judge. The prosecutor concluded that the police officers involved had not committed a criminal offence. 29. Following an appeal by the applicants and one of the other complainants, on 8 April 2009 the Varna Regional Public Prosecutor (“Окръжна Прокуратура Варна”) upheld the lower prosecutor’s decision. He held, in particular, that the officers had used force for the purposes of gathering physical evidence and in compliance with the applicable legislation.