CASE OF DIMOV AND OTHERS v. BULGARIA
Remainder inadmissible;Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage)
David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Pavlina Panova;Zdravka Kalaydjieva
6. The applicants were born in 1981, 1979 and 1959 respectively and live in Harmanli. 7. The first two applicants are the sons, and the third applicant is the widow, of Mr Todor Dimov Todorov (alias Chakara), who died on 10 or 11 December 2003 in the course of a police operation for his arrest. 8. Between 1973 and 2001 Mr Todorov, born in 1955, was convicted six times of various offences. In 1973 he was convicted of inflicting bodily harm of medium severity. In 1974 he was convicted of forming a group intending to engage in sabotage, of trying to cross the border illegally, of stealing public and private property and a motor vehicle, and of unlawfully possessing firearms and ammunition. In 1983 he was convicted of inflicting minor bodily injury on an official in connection with the performance of the latter’s duties. In the same year he was convicted of stealing fiftythree lambs. In 1990 he was convicted of trying unlawfully to export valuables. In 1998 he was convicted of stealing two lambs and unlawfully possessing firearms. 9. On 5 July 2001 Mr Todorov was convicted of systematically letting out his house for lewd acts, and sentenced to six months’ imprisonment. The conviction and sentence became final on 21 October 2003. 10. On an unspecified date in November 2003 the Harmanli police were notified of that latest conviction and sentence, and dispatched two officers to arrest Mr Todorov with a view to sending him to prison to serve the sentence. The officers went to his house in Harmanli, informed him that he was due to be imprisoned, and asked him to come with them. Mr Todorov, visibly calm, asked the officers to wait for a few minutes, so that he could prepare his luggage. The officers waited for about ten minutes outside the house. When they went in to arrest Mr Todorov, they saw that he had fled. After that they went back to the police station and reported the incident to the head of the Harmanli police and to the Harmanli District Prosecutor’s Office. 11. The account of the circumstances surrounding Mr Todorov’s death is based on the findings of the investigation carried out by the military prosecuting and investigating authorities (see paragraphs 3043 below). 12. In early December 2003 the Supreme Cassation Prosecutor’s Office ordered the police to carry out a series of operations for the arrest of individuals with final convictions and sentences. As a result, in the morning of 10 December 2003 the head of the Harmanli Regional Police Department assembled three groups of officers to arrest Mr Todorov. The first group had to check his house in Harmanli, the second had to check the sheep pen of an associate of his, and the third had to check Mr Todorov’s country house, situated near Harmanli. All three groups were armed with their service pistols. They were told that Mr Todorov might try to escape or put up armed resistance, and instructed to use their weapons only as provided for by law. 13. At about 7.15 a.m. the three groups set out to carry out their respective tasks. The first and the second group were unable to find Mr Todorov. The third group, which consisted of three officers, two of whom were in uniform (one wearing a bulletproof vest) and one in plain clothes, arrived near Mr Todorov’s country house at about 7.25 a.m. The house was surrounded by service buildings. All of those were erected on uneven terrain sloping steeply from the north-west to the south-east. The officers stopped their car in front of the gate, close to which they saw a big pile of used car tyres. They noticed that the gate was closed and started to whistle and shout. Several dogs in the yard started barking and Mr Todorov’s mother came out of one of the service buildings. One of the officers presented himself and told her that they were looking for her son. Then she opened the gate and held the dogs back. The officers moved towards the house, the one with the bulletproof vest walking in front, and went through another gate between several service buildings. At that point they spotted Mr Todorov on the steps outside the house, carrying an unidentified weapon. He also saw them, waved to them to go away and fired a shot, apparently in their direction. Two of the officers hid behind the service buildings and one behind some building materials scattered around the yard. He then ran back to the car and radioed the headquarters in Harmanli about the incident. At about 7.30 or 7.45 the head of the three officers ordered them to remain where they were and not to take further action. 14. Shortly after that the head of Harmanli Regional Police Department directed all police teams in the town towards Mr Todorov’s country house and requested assistance from the police in two neighbouring towns, Haskovo and Svilengrad. The Haskovo police dispatched an emergency response team consisting of six officers, and the Svilengrad police sent eight officers divided into two teams. The head of the Svilengrad police also went to the scene of the incident. 15. At about 9 a.m. the Harmanli police, some of whom had armed themselves with long barrel weapons, surrounded the house and cut off all access points, waiting for the emergency response team from Haskovo to arrive. It seems that Mr Todorov fired several shots at them, with one of the bullets hitting the mudguard of a police car. The police did not fire back. 16. Shortly after that the Haskovo team arrived and positioned themselves around the house. The head of the team informed the Minister of Internal Affairs of the situation. The Minister decided to dispatch the special antiterrorism squad and psychologists of the Ministry of Internal Affairs’ Psychology Institute. The Svilengrad police also arrived a few minutes later. Most of them took up position around the house. A fire engine also came to the scene. 17. The head of the Haskovo team decided to try to establish contact with Mr Todorov through relatives of his. At about 9.30 a.m. Mr Todorov’s sister was called in and asked to help the police. At the same time Mr Todorov’s elder son (the first applicant) also arrived. He offered to take his father a mobile phone so that he could communicate more easily with the police. The head of the Haskovo police team refused, apparently for fear that the first applicant might be taken hostage by Mr Todorov. Some time after that the two officers hiding behind the service buildings managed to get out of the yard with the help of Mr Todorov’s mother. 18. At about 11 a.m. Mr Todorov’s sister approached the house and brought her mother out. She spotted Mr Todorov, who waved at her. She understood the gesture to mean that he wished to talk to somebody on the phone, and asked the police to allow her to take a mobile phone or a megaphone to Mr Todorov. Her request was turned down with the explanation that the police were waiting for psychologists, who would try to establish contact with Mr Todorov, to arrive. 19. Shortly after that two psychologists of the Ministry of Internal Affairs’ Psychology Institute arrived. They started gathering information about Mr Todorov’s personal history, character and relations with his family, in order to decide whether his relatives might be able to exert a positive influence on him. The first applicant again asked for permission to take his father a mobile phone, but his request was turned down due to security concerns. 20. Shortly after that the special antiterrorism squad arrived. They gathered information about the internal structure of the house from Mr Todorov’s relatives, with a view to determining safe ways of approaching the house. 21. Around 11.30 a.m. the psychologists tried to make contact with Mr Todorov from a height situated at about one hundred metres from the house, using a megaphone. As communication from such a distance was difficult, at the suggestion of the first applicant they advanced to twentyfive or thirty metres from the house. They tried to persuade Mr Todorov to surrender. He requested to speak with his mother and his sister, but his request was denied. He then apparently said that if anyone was to get hurt, it would be him. As the psychologists believed that the first applicant would be able to exert a positive influence on Mr Todorov, they tried to continue the negotiations with his participation until 2.30 p.m. As Mr Todorov did not reply for about forty minutes, they gave up. According to the first applicant, the reason for the discontinuation of the negotiations was the fact that the megaphone’s battery had run out. 22. Around 3.30 p.m. the police decided to attack the house, because they believed that Mr Todorov had prepared a secret escape route and might try to flee. The head of the anti-terrorism squad split his men into two groups. The first, consisting of six officers, was to attack from the northwest, from high ground, and the second from the service buildings. The first group was moving in a column, with the first officer carrying a protective shield. They fired about thirty smoke bombs at the house, with a view to forcing Mr Todorov out of it. However, as the windows and the doors were covered with linoleum, cardboard and blankets, most of the smoke bombs failed to penetrate. Mr Todorov started firing at the first group, and this forced them to take cover in a ditch. The head of the squad ordered the second group to fire at the house to divert Mr Todorov’s attention and Mr Todorov fired back at them. The skirmish lasted for about an hour, after which both groups of officers retreated. At about 5 p.m. the Haskovo police, who were hiding behind the pile of tyres, were also ordered to retreat to a safe distance. 23. After that the police tried to resume the negotiations. A group of officers and the first applicant advanced to about ten or fifteen metres from the house and invited Mr Todorov to continue negotiating. He did not reply and the police gave the megaphone to the first applicant, who called upon his father to surrender. Again, there was no reply. At that point the police saw that as a result of the earlier attack a room on the first floor of the house had caught fire. The psychologists and the first applicant then retreated. The first applicant shouted towards the house “Father, please come out unarmed and surrender, so that this whole episode can be over”, but his supplication went unanswered. 24. At about 6 p.m. the head of the antiterrorism squad ordered his men to blow up holes in the walls of the house. They used stunt grenades. According to his later statements, this led to explosions and a short skirmish. According to the first applicant, after 5 p.m. Mr Todorov did not talk or shoot back at the police, or react to their attacks in any other way. 25. After that the head of the antiterrorist squad informed the Minister of Internal Affairs about the latest developments. The Minister called a halt to all actions pending the arrival of the Secretary General of the Ministry, general B.B., on the spot. In the meantime, police vehicles were placed on a height facing the house, so as to shed light on the scene with their headlights. 26. The Secretary General arrived at about 8.30 or 9 p.m. and took command of the operation. He ordered the police to blow a hole in the walls of the house. The police carried out the order. According to a later statement by the Secretary General, after the first explosion there was a second one, coming from the upper levels. As a result, the roof caught fire and quickly burned down. Apparently several unsuccessful attempts were then made to enter the house, but it is unclear in what exactly they consisted. Meanwhile, an individual who had worked on the house and who had heard about the incident on the radio came to the police and told them that Mr Todorov had warned him that the house was booby-trapped. 27. Around 10 p.m., on the orders of the Secretary General, a border police unit was called in to monitor the house and its surroundings with nightvision devices. The monitoring continued until the next morning. 28. Later, following a discussion with other senior officers, the Secretary General ordered the police to use a rocket propelled grenade launcher, in order to diffuse any possible booby traps and speed up the search of the house. The launcher was brought at about 1.30 a.m. on 11 December 2003, and given to the antiterrorism squad. Between 2 and 2.30 a.m. an officer of the squad fired fifteen rocket propelled grenades at the lower parts of the house and a room on the first floor, which made a big breach in the wall. It was decided to await daylight to attack. 29. Around 6 or 7 a.m. the police formed a thick cordon around the house. They started entering the house and checking the ground and the first floor. When they reached the attic floor, using a fireladder, they saw the legs of Mr Todorov’s charred body. The operation was then terminated, the house was sealed off, and the incident was reported to the military prosecuting authorities. 30. The same day, 11 December 2003, the Plovdiv Regional Military Prosecutor’s Office opened an investigation into the above events. An investigator carried out an inspection of the scene of the incident and took photographs. 31. The next day, 12 December 2003, a doctor from the forensic ward of the Haskovo hospital performed an autopsy on Mr Todorov’s body. He noted the following: “The body is split in two and the vertebral column is severed at the fifth or the sixth vertebra. The body is as a whole charred. The configuration of the skull is intact. The hair is missing. There are remains of charred soft tissue on the calvaria and the face. The lower jaw is broken at the level of the right ramus mandibulae, with broken fragments and teeth. The skull bones are crumbly, charred. The configuration of the brain is intact, as if it has been parched. The brain tissue is not damaged and there are no haematomas in the cranial cavity. The skin at the neck is charred. Part of it, near the trachea and right part of the neck, is missing, which allows one to see the charred underlying neck muscles. The upper third of the thorax is preserved, but the soft tissue is fully charred. The lungs and the heart are still connected to their holders; they have shrunk, they are parched and dry with charred surfaces and hard to cut. The surrounding tissue of the section has no visible structure. The liver, shrunk and charred, reduced in size and parched, lies beneath. The vertebral column is segmented at the level of the fifth or the sixth vertebra, and what remains of it, including the lumbar part, has charred vertebrae covered with remains of charred tissue. The remaining two thirds of the abdominal wall are missing. The pelvis, including the wings of the iliums, the ischium and the pubic bone, is broken into pieces. The symphysis is separated. Parts of the intestines, charred, and remains of fatty tissue were found inside the pelvic cavity. Limbs: the right arm is strongly flexed at the elbow joint; the bones in the joint are apart. The wrist is flexed and the fist is clenched. A safetyloop from a hand grenade was found on the third finger, between the first and the second phalanges. The skin and the muscles of the hand are charred. The palm and two thirds of the forearm of the left hand are missing, and the remains have an uneven edge and are strongly flexed at the elbow joint. The soft tissue is charred. The skin and the muscles on the entire surface of the right thigh are charred. The skin on the front surface of the knee and on the front surface of the upper two thirds of the shank is preserved. The soft tissue on the back surface of the shank is charred to the bone, and the back surface of the heel is burned. The foot is encased in a [militarytype] shoe. One can see the remains of trousers and of woollen socks. The skin and the muscles of the left leg and of the thigh are charred. The left shank has been affected in the same way as the right one, with a [militarytype] shoe and a charred sock on. There are greyish metal pellets driven into the tissue and the bones of the pelvis area. Two such pellets were taken out of the left ilium and given to the investigator. We made Xrays of the body in the autopsy room... On the images one can see ovalshaped foreign bodies with similar diameters driven into the tissue, mostly in the pelvis and the thorax. One can see a metal safetyloop attached to the third finger of the right hand. ...” 32. In the following months the authorities interviewed all officers who had taken part in the operation: thirtynine officers from the Harmanli Regional Police Department, six officers from the Haskovo Regional Directorate of Internal Affairs, sixteen officers from the Svilengrad Regional Police Department, thirtyone officers from the special antiterrorism squad, nineteen border police officers, three psychologists from the Ministry of Internal Affairs’ Psychology Institute, and the Secretary General of the Ministry of Internal Affairs. They also interviewed the applicants and other eyewitnesses, and commissioned a number of expert reports. 33. On 3 August 2004 the investigator in charge of the case proposed that the prosecuting authorities discontinue the investigation. On 3 September 2004 the Plovdiv Regional Military Prosecutor’s Office agreed to the proposal. It said that the investigation had categorically established that Mr Todorov’s death had been due to the explosion of a hand grenade which he had himself detonated close to his body. No officers were responsible for that. The actions of the police had fully complied with the applicable rules and had been the only actions possible under the circumstances, in view of the resistance put up by Mr Todorov and the fact that he had fired at them. 34. On 17 September 2004 the applicants sought judicial review of the discontinuance. 35. On 28 September 2004 the Plovdiv Military Court, sitting in private, set the discontinuance aside and referred the case back for additional investigation. It noted that the investigation had failed to establish the exact time of Mr Todorov’s death, which had prevented the prosecuting authorities from assessing fully the lawfulness of the actions of the police, including the use of explosives, smoke bombs and a grenade launcher. It went on to say that the prosecuting authorities had failed to analyse the evidence properly and give reasons why they believed that all actions of the police had been lawful. In particular, they had failed to give any reasons why they considered that the actions of the police after 9 or 9.30 p.m. on 10 December 2003, including the firing of fifteen rocket propelled grenades, had been warranted, especially in view of the fact that the evidence showed that after that time Mr Todorov had not resisted or fired at the police. Lastly, it could not be categorically concluded that Mr Todorov’s death had been caused by a hand grenade which he had had activated himself; a number of other explosive devices had been used by the police. 36. Accordingly, on 5 October 2004 the Plovdiv Regional Military Prosecutor’s Office sent the case back to the investigator, instructing him to (a) ask ballistics experts to identify all explosive devices which had been used, explain their mode of operation, and express their opinion on whether the smoke bombs fired at the house had been capable of creating a concentration of gases sufficient to cause the death of Mr Todorov; (b) seek the opinion of forensic and ballistics experts on the exact time of Mr Todorov’s death, on the origin of the metal fragments found in his body, and on whether the death had resulted from a hand grenade; (c) interview again the participants in the operation and ask them why it had been deemed necessary to use a grenade launcher and other explosive devices at a time when Mr Todorov had no longer been showing any signs of resistance; (d) establish whether boobytraps had indeed been planted in or around the house; and (e) identify the officers who had caused damage to the house and ascertain whether their actions had amounted to a criminal offence. It went on to note that Mr Todorov’s heirs had not been given an opportunity to acquaint themselves with the materials in the case file, which had been a serious breach of the rules of procedure. 37. The investigator asked several experts to draw up the reports requested by the prosecuting authorities. 38. In a report drawn up on 11 November 2004 an expert said that no devices which could be described as boobytraps had been found in Mr Todorov’s house or yard. Two fully operational defensive hand grenades had been found inside the house. 39. In their report, drawn up on 23 November 2004, the ballistics experts described the characteristics of the weapons and ammunition used during the operation or found on the spot (Kalashnikov assault rifle and ammunition for it, antitank rocket propelled grenades, teargas grenades, small wallblasting explosives, a defensive hand grenade), and said that the wall of the house had been demolished by the antitank rocket propelled grenades fired during the operation. They also said that from the materials in the case file it appeared that no teargas grenades had fallen inside the house, and that the concentration of any such gas in the room where Mr Todorov had been standing had not been high enough to kill him. 40. The combined forensic and ballistics expert report, drawn up by a forensic doctor, an army weapons specialist and an expert in automatic weapons, became ready on 2 December 2004. It said that the complete charring of Mr Todorov’s body prevented a medical determination of the time of his death. The explosive device which had killed him had been very close to his body at the moment of detonation, with the result that the body had suffered the impact of all components of the explosion: the detonation, the gases, parts of the explosive, soot, parts of the device’s casing and fragments of it. Mr Todorov’s body had been destroyed and had sustained deep burns, to the point of charring, and multiple wounds from the device’s casing and filling. The metal fragments found inside the body showed that the device was a hand grenade, of the type used in the Bulgarian army, consisting of a metal casing and, underneath it, plastic shells containing 200 to 400 pellets. All of those had impacted on Mr Todorov’s body. The mechanism of the grenade and the force needed to pull its lever were such as to prevent accidental detonation, including detonation resulting from the closeby detonation of another device, which meant that Mr Todorov had been fully conscious of his actions when activating the grenade. He had thus blown himself up, as could be seen from the safetypin loop found on the third finger of his right hand. However, it was probable that the charring of his body was due to a secondary fire in the room, and had occurred after his death. 41. On 4 January 2005 the Plovdiv Regional Military Prosecutor’s Office again decided to discontinue the investigation. It set out its findings of fact and the conclusions of the expert reports, and reasoned as follows: “... The initial steps taken by officers of the Harmanli Regional Police Department with a view to [Mr] Todorov’s localisation and arrest were lawful. When he used firearms against them, they duly reported that to their superiors. They, in turn, lawfully decided to use firearms as a means of last resort, in accordance with section 80(1)(1) and (1)(4) of the Ministry of Internal Affairs Act [1997]. As [Mr] Todorov refused to obey their order to surrender and continued to fire at them, it was lawful to bring in the antiterrorism squad. This was in line with section 157(1)(2) of the [Act] and based on a decision of the Minister of Internal Affairs. The police were confronted with an individual who had committed numerous criminal acts and had numerous convictions and who, during an operation for his arrest to enforce a sentence ..., put up armed resistance. This was established on the basis of the statements made by the officers and by [Mr] Todorov’s relatives. The fact that he fired upon the police is also confirmed by the bullet-hole in the left mudguard of [a police car] and the asbestos cement sheets placed outside the house. The steps taken by the officers of the [antiterrorism] squad after their arrival were also lawful. They were faced with an urgent special operation which required fast appraisal of the situation and decisionmaking. Their decisions were taken on the basis of the situation described above. After [Mr] Todorov failed to heed the advice of his relatives and the psychologists to turn himself in, it was lawful and in line with section 159(1)(1) of the [Act] and regulations 8(3), (5) and (7) to resort to the use of pyrotechnical devices and explosives. One of the walls of the ground floor of the house was blown up with a view to storming it and making a passage to the inside. However, in view of the explanations of [the individual who had worked on the house] about booby traps in various unknown locations in and around the house and the darkness, the attack was postponed. It was only at that point that a decision was taken to use antitank grenades, in line with regulation 8(3). The purpose was to diffuse any explosive devices and clear a passage for the storming party, which was supposed to attack in the morning. As a result of the firing of those grenades, part of the ground floor of the building was destroyed. When the goal had been achieved, the firing stopped. The attack began in the early morning of 11 December 2003 in order to protect the health and the lives of the police officers. Then they found the body of [Mr] Todorov. In this case, there was overt resistance by [Mr] Todorov and refusal to obey police orders. Also, before using weapons the police officers and the members of the antiterrorism squad considered the specific situation, the nature of [Mr Todorov’s] act and [his] personality. They took all necessary safety measures and discontinued the use of weapons immediately after achieving their goal – opening a breach for the storming party. The actions of the officers would be criminal only if they were socially dangerous, committed with mens rea, and punishable... The lack of any of those characteristics makes their actions not criminal. By Article 12a of the Criminal Code, it is not criminal to cause damage to a person who has committed an offence in order to effect his arrest and prevent him from committing further offences, if there is no other way to carry out the arrest and if the necessary and lawful measures are not exceeded. This equally fully applies to the house used by [Mr] Todorov as a shelter. Since there was no other way of entering it, it became necessary to demolish part of it. The available evidence shows that the actions of the police were not socially dangerous, but socially necessary, and, indeed, the only ones possible under the relevant provisions of the Ministry of Internal Affairs Act [1997] and the regulations. Therefore, there has been no criminal offence. All exculpating circumstances under Article 12a are in place. ... Moreover, under section 159(3) of the Ministry of Internal Affairs Act [1997], the identities of the members of the special antiterrorism squad are to be kept secret, which means that they cannot be held criminally liable. The investigation categorically and unequivocally found that [Mr] Todorov’s death was due to his blowing himself up with an offensive hand grenade which he detonated close to his body. No officers are responsible for that. No other offences committed by the officers in connection with the performance of their duties were established. ...” 42. On 25 January 2005 the applicants sought judicial review of the discontinuance. They argued that not enough evidence had been gathered on the time and the causes of Mr Todorov’s death, and that only experts in pathology would be able to give an informed opinion on those points. It was also hard to believe that Mr Todorov had blown himself up with a hand grenade. He was a righthander and the grenade safetyloop was found on a finger of his right hand, whereas it was highly unusual for someone to draw the safetyloop of a hand grenade with his strong hand and hold the grenade itself with his weak hand. The investigation had not done enough to elucidate that paradox, which was central to its conclusions. It was also incomprehensible how the experts, none of whom was a psychologist, were able to give an opinion about Mr Todorov’s state of mind before his death. No explanation was provided about the type of explosives used at 9 p.m. on 10 December 2003 to blow up the hole in the wall of the house. This seriously weakened the prosecutor’s conclusion that the metal pellets found in Mr Todorov’s body were from a hand grenade. After 5 p.m. on 10 December 2003 the police were not acting in selfdefence because Mr Todorov had not fired any shots at them after that time. They clearly overstepped the limits set by Article 12a of the Criminal Code and did not try to contact him or arrest him without using force after that time. The conclusion that a grenade launcher was needed to diffuse possible booby traps could not withstand scrutiny. No such traps were found, and it was absurd to believe that trained police officers could suppose that such traps had been laid around a house whose yard was used by Mr Todorov, his family and domestic animals. The police apparently only resorted to using a grenade launcher to speed up the operation. It was also telling that the names of the officers who ordered the use of a launcher were not mentioned in the prosecutor’s decision. Lastly, the applicants pointed out that this Court’s caselaw under Article 2 of the Convention required that there should be an effective official investigation when individuals have been killed as a result of the use of force by the police. 43. On 8 February 2005 the Plovdiv Military Court, sitting in private, decided to uphold the discontinuance in the following terms: “... After fully checking the materials in the case file, the court comes to the only possible conclusion, namely, that the decision to discontinue the proceedings was correct, wellfounded and lawful. The investigation was objective, all-inclusive and comprehensive. The investigating and the prosecuting authorities have taken all necessary steps to establish the truth. All circumstances surrounding the main fact – the cause of [Mr] Todorov’s death – have been examined. The authorities have not committed serious breaches of the rules of procedure. The remitting of the case for additional investigation was a major factor in that respect. The prosecutor’s conclusions are correct, wellfounded, not internally inconsistent, accurate and fully correspond to the evidence and the facts. To come to them, the prosecutor, along with an assessment of the available materials, has taken into account the constant caselaw of the Supreme Court of Cassation and academic studies of criminal law. The prosecutor’s conclusion that the proceedings should be discontinued corresponds to the totality of the evidence, which has been precisely analysed and assessed. The court finds that the prosecutor was right to conclude that the police were acting in a situation falling under Article 12a [of the Criminal Code]. They were aiming to arrest an individual who had committed an offence, and who had been convicted and sentenced by means of a final decision. He refused to obey their orders and put up fierce armed resistance. His actions consisted in an attack against the police that seriously endangered their lives. This leads to the incontestable and unequivocal conclusion that the police officers were acting in pursuance of their duties and that their actions were correct, lawful and adequate in a situation which was extreme, critical and gravely dangerous for their health and lives. The court fully shares the remaining conclusions of the prosecutor ... which it considers correct and accurate. On that basis, the court finds that the arguments raised in the application [for judicial review] are groundless and illfounded. Firstly, the arguments ... that the ‘prosecutor’s findings about the time of death are unconvincing and solely based on the conclusions of the medical expert’s report’ ... are groundless. If the [applicants’ lawyers] had bothered to acquaint themselves with [the] evidence ..., they would not have reached those conclusions. The prosecutor’s findings about the causes and the time of [Mr] Todorov’s death were based not only on the conclusions of the medical expert’s report and the complex ballistics and medical experts’ report, but also on the statements of all eyewitnesses. The lawyers should be aware that a fact, namely the time and the causes of death, can be established through all types of evidence allowed under the rules of criminal procedure, not solely expert reports. Since the experts’ conclusion, whose accuracy the court does not doubt, is supported by an abundance of other evidence, including eyewitness statements, the court finds this fact to be unequivocally established ... For that reason, the court finds that the time and the cause of [Mr] Todorov’s death have been unequivocally established, and that this has been accurately described in the prosecutor’s decision. The court therefore finds the [applicants’] arguments in that connection unfounded and not corresponding to the evidence in the case. For the same reasons, the court finds no force in the [applicants’] arguments relating to the lack of clarity of the prosecutor’s decision about the type of expert report to be ordered by the investigator. The court reiterates that if the [applicants’ lawyers] had read the complex medical and ballistics report, they would have understood this alleged lack of clarity ... The [applicants’] assertion relating to the ‘strong’ and the ‘weak’ hand of [Mr Todorov] is also groundless and lacking legal logic. The safetyloop from the detonator of a grenade, the specific dismemberment of the body in the middle (near the stomach and the groins), and the remains of a defensive grenade (pellets and fragments) in the body lead to the only possible conclusion that [Mr Todorov] blew himself up in the way described in detail by the prosecutor ... This unequivocally proves that the grenade was not thrown, as asserted by the [applicants], because if that were the case there would be no pieces of a detonated grenade on the body of [Mr] Todorov. The court finds whether [Mr] Todorov was right or lefthanded irrelevant and for this reason shall not engage in further discussion on that point. The complex medical and ballistics experts’ report gave a conclusion about [Mr] Todorov’s psychological state at the time of his ‘self-detonation’, which the court finds accurate and corresponding to the evidence analysed by the experts. It is necessary to note that the ‘psychological’ state of [Mr] Todorov has been analysed and assessed by the experts in the context of the grenade’s specificity as a type of weapon, the particularities of its construction and the manner in which it needs to be handled and detonated. On that basis, the court finds no force in the [applicants’] argument concerning the mandatory participation of a psychologist in the elucidation of the above fact. The [applicants’] assertion that there is no explanation about types of explosives used again shows that [their lawyers] have not acquainted themselves with all the evidence. The court finds it illfounded and unsupported by any arguments. The experts have given an accurate, clear and comprehensive description of the type and character of all types of explosives and munitions used [in the operation]. The court does not share the [applicants’] arguments ... concerning the alleged incorrectness of the prosecutor’s decision. The above considerations lead it to the conclusion that the police were acting in a situation which falls within the ambit of Article 12a of the Criminal Code ... It must also be observed that the [applicants’] arguments are onesided and analyse solely the lawfulness of the actions of the police without commenting on the lawfulness of the actions of [Mr] Todorov. Basing itself on the rules of objectivity and impartiality, and analysing the direct and circumstantial evidence in isolation and jointly, the court finds the [applicants’] arguments incorrect and illfounded. The court fully shares the [applicants’] assertion that, in view of the requirements of the [Convention] and the criteria developed by the European Court of Human Rights in its caselaw, there must be a thorough and comprehensive investigation whenever there has been an interference with a person’s right to life during a police operation. However, the court does not share the [applicants’] view that there has been no such investigation in the present case. On the contrary, in view of what has been said above, the court finds that the investigation was objective, comprehensive and full, that the authorities have taken all necessary steps to uncover the truth, and have taken their decisions freely and after assessment of relevant facts. The prosecutor’s conclusions are correct, accurate and wellfounded, and the court fully shares them. In view of above, the court ... finds that the decision to discontinue the proceedings ... has to be upheld as lawful and wellfounded.” 44. The case file contains no information on whether at the time of his death Mr Todorov had a valid title to the house or the plot of land on which it had been erected. It does not appear that he had applied for or obtained a building permit for the house. During the investigation is was established that on 15 June 2004 the Harmanli lands commission, in proceedings brought by the first applicant (Mr Todorov’s son) under the lands restitution laws, decided to restore the plot to the heirs of an ancestor of Mr Todorov. 45. The applicants presented a notary deed showing that on 19 May 2006 the first applicant bought from third parties a plot of land in the area where the house is situated. From certificates issued by the cadastre authorities it appears that this plot is the same on which the Mr Todorov’s house had been built. 46. The applicants also presented a certificate of 20 January 2007 in which the building control department of the municipality of Harmanli said that the house was a tolerable building within the meaning of the building control legislation. Under that legislation, tolerable buildings are those that have not been erected pursuant to a building permit but which nonetheless comply with the applicable zoning plans and building regulations, and have either been built before a certain date or been declared to the authorities within certain timelimits. Tolerable buildings are not subject to demolition. 47. Section 80 of the Ministry of Internal Affairs Act 1997, as in force at the material time, provided, in so far as relevant: “(1) The police may use firearms as a means of last resort: 1. in cases of armed attack or threat to use firearms; ... 3. in selfdefence [or the defence of others]; 4. after giving a warning, to arrest a person who has committed or is committing a publicly prosecutable offence, if he or she resists or tries to escape; ... (2) When using firearms the police are under a duty to protect, as far as possible, the life of the person against whom they use force, and not put in danger the life and the health of others.” 48. The wording of section 74(1)(1), (1)(3) and (2) of the Ministry of Internal Affairs Act 2006, currently in force, repeats verbatim that of section 80(1)(1), (1)(4) and (2) of the 1997 Act. 49. On 30 May 2012 Parliament enacted a bill amending section 74 of the 2006 Act; the amendment came into force on 1 July 2012. The words “as a means of last resort” in section 74(1) were changed to “only where absolutely necessary”, and the words “to protect, as far as possible” in section 74(2) were replaced by “do everything possible to protect”. A new subsection 5 was added to section 74, providing that “[t]he police shall discontinue the use of firearms immediately after attaining its lawful aim”, as well as a new subsection 6, providing that “[i]t shall be prohibited to use firearms to arrest or prevent the escape of a person who is about to commit or has committed a nonviolent offence if that person does not pose a danger to the life or health of another”. A new section 74a was added, providing that “[t]he planning and control of the use of physical force, auxiliary means and firearms by the police ... shall include [the taking of] measures to attain the lawful aim at minimal risk to the life and health of the citizens”. In the explanatory notes to the bill the Government had referred to, inter alia, the need to bring domestic law fully into line with the applicable international standards and the Court’s caselaw. 50. The special antiterrorism squad was a unit of the Ministry of Internal Affairs whose task was to, among other things, combat terrorism and prevent and uncover serious offences (section 156 of the 1997 Act). It could arrest or neutralise persons who had committed especially dangerous offences and who were putting up or likely to put up armed resistance (section 157(1)(2)). The squad’s intervention had to be authorised in writing by the Minister of Internal Affairs in each case (section 157(2)). Its mode of operation was governed by regulations issued by the Minister (section 157(3)). 51. Those regulations, which were apparently not published, were issued by the Minister on 27 May 2003. Under regulation 7, when carrying out a special operation the squad had to set up an appropriate organisational structure. However, the overall control of a given operation was to be ensured by the head of the authority which had requested the use of the squad or a person designated by him or her (regulation 26(1)). The squad’s plan of action in a given operation had to be included in the plan of the requesting authority (regulation 25). In its operations the squad could use, inter alia, firearms and grenade launchers (regulation 8(3)), pyrotechnical devices and explosives (regulation 8(5)) and chemical substances (regulation 8(7)). 52. By section 159(3) of the Ministry of Internal Affairs Act 1997, “in the performance of the squad’s tasks, the identity of its members [was] to be kept secret”. This rule currently features in section 91(3) of the Ministry of Internal Affairs Act 2006 and extends to all police officers who take part in armed police operations for the arrest of dangerous offenders who put up armed resistance. Regulation 150s of the regulations for the application of the 2006 Act repeats it with reference specifically to the members of the special antiterrorism squad. 53. Article 12a § 1 of the Criminal Code 1968, added in August 1997, provides that causing harm to a person while arresting him or her for an offence is not criminal where no other means of effecting the arrest exist and the force used is necessary and lawful. According to Article 12a § 2, the force used is not necessary when it is manifestly disproportionate to the nature of the offence committed by the person to be arrested or the resulting harm is in itself excessive and unnecessary. 54. Under Article 237 § 1 (1) of the Code of Criminal Procedure 1974, public prosecutors were to discontinue a preliminary investigation if they found that, inter alia, the acts alleged did not constitute an offence. Article 237 §§ 3 and 4, as in force at the material time, provided that the decision to discontinue a preliminary investigation was reviewable by a firstinstance court whose decision was final. 55. Section 1 of the State Responsibility for Damage Caused to Citizens Act 1988 (Закон за отговорността на държавата за вреди, причинени на граждани), in July 2006 renamed the State and Municipalities Responsibility for Damage Act (Закон за отговорността на държавата и общините за вреди – “the 1988 Act”), provides that the State is liable for damage suffered by individuals (and since 1 January 2006 also legal persons) as a result of unlawful decisions, actions or omissions by civil servants, committed in the course of or in connection with the performance of their duties. 56. The general rules of the law of tort are set out in sections 45 to 54 of the Obligations and Contracts Act 1951 (Закон за задълженията и договорите – “the 1951 Act”). Section 45(1) provides that everyone is obliged to make good the damage which they have, through their fault, caused to another. Section 49 provides that a person who has entrusted another with carrying out a job is liable for the damage caused by that other person in the course of or in connection with the performance of the job. Legal persons cannot incur liability under section 45(1), as they cannot act with mens rea. They may, however, be vicariously liable under section 49 for the tortious conduct of individuals employed by them (пост. № 7 от 30 декември 1959 г., ВС, Пленум). One of the prerequisites of the liability under sections 45 to 50 of the 1951 Act is wrongfulness of the impugned conduct (реш. № 567 от 24 ноември 1997 г. по гр. д. № 775/1996 г., ВС, петчленен състав). The Bulgarian courts have on occasion examined claims against the authorities under section 49 (see the domestic cases cited in First Sofia Commodities EOOD and Paragh v. Bulgaria (dec.), no. 14397/04, § 17, 25 January 2011).