ILIEV v. BULGARIA
Inadmissible
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
The applicant, Mr Anton Stefanov Iliev, is a Bulgarian national who was born in 1977 and lives in Ruse. He was represented before the Court by Mr A. Kazakov, a lawyer practising in Ruse. The Bulgarian Government (“the Government”) were represented by their Agent, Mrs M. Kotzeva, of the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. On 6 January 1997 the applicant was conscripted into the Bulgarian armed forces to complete his military service. He was physically fit at the time. The applicant served primarily with the Air Force and was stationed in several garrisons. On 1 April 1997 he was transferred to garrison no. 26600 in the town of Yambol to attend a radiotelegraph training course. A medical examination of 2 April 1997 pronounced the applicant physically fit. According to the applicant his platoon commander in Yambol, Lieutenant A., started to systematically ill-treat him because he failed to meet the performance standards required of him. The applicant visited the garrison’s infirmary on 8 and 10 May 1997. He was diagnosed with “neurosis” and prescribed antidepressants. One morning in May 1997 the applicant was ordered to the office of the platoon officers. Lieutenant A., Senior Sergeant H. and Sergeant P. were present. According to the applicant, they criticised him for his low performance in the training course and, as punishment, ordered him to do twenty pushups. When he got down and started the pushups, Lieutenant A. and Senior Sergeant H. started to kick him with their military boots. He was allegedly kicked numerous times in the head, neck and stomach. Sergeant P. allegedly witnessed the beating. The officers then warned the applicant not to tell anyone what had happened. According to the applicant, soon after that he started having problems with his vision and had pain in his neck. On an unspecified date the applicant visited the garrison’s infirmary. It is unclear whether any injuries were found on his person. The garrison doctor apparently diagnosed the applicant with cervical spondylosis and redirected him to the Sliven Military Hospital for an X-ray examination. On 27 May 1997 the applicant was examined in the Sliven Military Hospital where the diagnosis of cervical spondylosis was confirmed. The applicant visited the garrison’s infirmary on 28 and 30 May and again on 3 June 1997 when he was diagnosed with “neurosis”. He was redirected to the Sliven Military Hospital where he was hospitalised for an undetermined number of days. Upon his discharge from the hospital he was given home leave on medical grounds. Upon expiration of the home leave, on 10 July 1997 the applicant returned to his former garrison in the village of Bezmer. The applicant continued to seek medical treatment. He visited the garrison’s infirmary in Bezmer on 16 and 17 July and 11 and 13 August 1997. On each occasion he was diagnosed with “neurosis” and was prescribed antidepressants. After a medical examination on 3 November 1997 the applicant was pronounced physically fit. On 25 November 1997 the applicant suffered his first seizure involving convulsion of the limbs, frothing at the mouth and loss of consciousness. The applicant was taken to the Sliven Military Hospital where he was hospitalised from 25 November to 10 December 1997. He suffered a second seizure while in hospital and was diagnosed with “suspected epilepsy”. Upon being discharged from the hospital the applicant was given home leave on medical grounds. While on home leave he suffered a third seizure on 21 December 1997. After returning to his garrison, the applicant had a follow-up examination at the Sliven Military Hospital on 5 January 1998. He was apparently redirected to the Neurological Department of the Military Medical Academy in Sofia (“MMA”), where he was hospitalised from 7 to 9 January 1998. The applicant was diagnosed with: “Neurovegetative dystonia. Syncope. [Observed] pro-epilepsy”. On 10 January 1998 the applicant was discharged from the military as the term of his military service had expired. On an unspecified later date he was pronounced unfit for active military service on medical grounds and was removed from the military’s reserve list. Following the applicant’s discharge from the military his medical condition continued to deteriorate and the number and frequency of the seizures increased. Following a fourth seizure on 15 January 1998 the applicant was hospitalised at the MMA from 23 January to 18 February 1998. He was diagnosed with: “Epilepsy – acute seizures. Lymphadenitis generalised non-specific”. On 25 February 1998 a CAT scan was performed on the applicant’s head at the Pleven Medical University. It was discovered that he had a cerebral oedema. The applicant was again hospitalised at the Neurological Unit of the Ruse District Hospital from 2 to 25 March 1998 and then from 28 July to 2 August 1999. During his first stay he was diagnosed with: “Head contusion. Symptomatic [of epilepsy].” During his second stay the diagnosis was: “[Epilepsy] – acute seizures. Massive functional cumulation.” Between 25 June and 9 July 2001 the applicant was hospitalised at the MMA. On 3 July 2001 he underwent an operation during which a cavernous angioma (a benign vascular malformation which can be caused by a trauma to the spinal cord) was removed from his brain. On an unspecified date in early 1998 the applicant’s mother complained to the General Staff of the Bulgarian armed forces (the “General Staff”) of the deterioration in her son’s health while he was in the military. In response, by letter of 23 March 1998, the General Staff informed her that her son had received all the medical assistance required. In September 1999, at the applicant’s request, a doctor drew up an expert report on his state of health. On the basis of the relevant medical documents and the applicant’s explanations, he concluded that the applicant had developed epilepsy during the time of his military service but that it could not be established with certainty whether its cause had been related to the alleged beating of the applicant in May 1997. On 5 January 2000 the applicant himself complained to the General Staff. He apparently named the officers involved in the alleged beating in the Yambol garrison and Sergeant P., who had allegedly witnessed it. By order of 15 December 2000 the Chairman of the General Staff of the Air Force set up an internal commission to investigate the applicant’s accusations. In the course of its work, the commission questioned Lieutenant A., Senior Sergeant H. and the doctor at the Yambol garrison’s infirmary. Sergeant P. was not sought out for questioning because he had left the military in 1998. The officers questioned denied that the applicant had been ill-treated or that they had beaten him. The garrison’s doctor also denied that she had seen any injuries on the applicant during the medical examinations performed at the time. By letter of 16 January 2001 the General Staff informed the applicant that the investigation had concluded that his accusations were unfounded and that his complaints would not be followed up any further. On 15 November 2000 the applicant also filed a complaint with the Sliven military prosecutor’s office, which opened a preliminary investigation and questioned Senior Sergeant H. and the doctor at the Yambol garrison, who both said that they did not remember the applicant. Sergeant H. denied ever beating or hitting soldiers and the garrison doctor denied any knowledge of ill-treatment of the applicant. Sergeant P. was not questioned as he had not been found at his known address. On 19 January 2001 a prosecutor from the Sliven military prosecutor’s office refused to open criminal proceedings in relation to the alleged illtreatment of the applicant. On the basis of the testimonies obtained, the applicant’s medical records and the medical expert report drawn up in 1999, he concluded that it had not been established that the applicant had been beaten in the Yambol garrison or that his medical condition had resulted from a trauma allegedly sustained during that beating. On appeal by the applicant, on 11 September 2001 that decision was upheld by the military appellate prosecutor’s office in Sofia. It appears that the applicant did not appeal against that decision to the Chief Public Prosecutor’s Office. By decision of 5 March 2001, the Ruse Labour-Expert Medical Commission (“the LEMC”) assessed the applicant’s medical condition and recognised him to be disabled with 69.75% disability. Upon appeal, by decisions of 22 June and 22 October 2001, the Central Labour-Expert Medical Commission (“the CLEMC”) quashed the decision of the LEMC and assessed the applicant to be disabled with 90% disability. The starting date of the disability was determined to be 11 December 1997. In its decisions, the CLEMC referred to the applicant’s allegations that he had been beaten in May 1997 but did not conclude that this had caused his medical condition. In December 2001 the applicant started to receive an army pension. His disability was reassessed by the LEMC on 20 February 2003. The commission found that the number and frequency of his seizures had decreased and assessed the applicant to be disabled with 74.80% disability. Upon appeal, by decision of 13 November 2003, the CLEMC quashed the decision of the LEMC and further decreased the applicant’s percentage of disability to 50%. Once again the CLEMC referred to the applicant’s alleged beating in May 1997 but did not state that it considered this to be the cause of his medical condition. The applicant was entitled to appeal against the decision of the CLEMC but apparently failed to do so. Apparently, as a result of the reduction of his disability level, on 1 June 2004 the applicant’s army pension was decreased from an unspecified amount to 60.95 Bulgarian levs (the equivalent of 31 euros). On 2 August 2001 the applicant filed a complaint with the prosecutor’s office, challenging the grounds for his discharge from the military on 10 January 1998. By letter of 6 August 2001 the Sliven regional prosecutor’s office informed him that it was not competent to rule on the matter and that instead he should initiate an administrative action challenging the order for his discharge. It does not appear that the applicant initiated any such action. The applicant filed several more complaints to various authorities seeking compensation for the damage caused as a result of the illness he developed while in the military. In response, by letters of 4 and 8 February 2001 from the Ministry of Defence, letters of 9 February and 5 March 2001 from the General Staff and a letter of 17 October 2001 from the MMA, he was informed of the procedure and formalities required to claim the special compensation provided for in section 249 § 1 of the Armed Forces Act, in force at the time. In particular, the applicant was advised of the need to obtain an evaluation of his medical condition by the Military Medical Commission, which apparently he did not do. Neither did he bring an action before the civil courts to seek compensation, as he was expressly entitled to do under section 249 § 6 of the Armed Forces Act, in force at the time.