CASE OF IVAN VASILEV v. BULGARIA
Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 3;Violation of Art. 13;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings
Peer Lorenzen
6. On the evening of 14 May 1994 the applicant, at that time aged fourteen, went out with several friends in the centre of Vidin to play electronic games. On the way back he left the main group to see a classmate of his and her sister to their door. After he had walked the girls home at about 9.40 p.m., he ran back to rejoin his friends. The applicant was wearing shorts, a yellow teeshirt and a green sleeveless jacket. 7. On the same evening, some time after 9.00 p.m., the Vidin police received a report that an icecream booth in the centre of the town had been vandalised by two individuals. A police patrol was dispatched to the scene and arrested the first of them, but the second managed to get away. All patrols in the area were put on alert and ordered to track him down. The description given over the police radio was of a man wearing short pants and a lightcoloured teeshirt. 8. At that time Mr G.G. and Mr V.E., both trainee police officers, were in the area of the incident, patrolling in Mr V.E.'s private car. Although they were supposed to be accompanied by a supervising police officer, chief sergeant A., they were patrolling by themselves, as sergeant A. had been dispatched elsewhere. Their car was in a street which was not well lit. Seeing the applicant running past the car, they assumed that he was the offender at large. They got out of the car and gave chase. The applicant heard their steps, but, seeing that they had come out of an unmarked rather than a police car, kept on running. It was disputed whether or not Mr G.G. and Mr V.E. had shouted “Stop! Police!” after the applicant. They submitted that they had done so, whereas the applicant and several witnesses stated that they had not heard the officers shouting. The chase continued for about a minute. The applicant ran by a Mr I.P. Shortly afterwards, Mr G.G. caught up with the applicant in front of a beauty parlour and apparently tripped him over. The applicant fell on the ground, face down. Mr G.G. then started hitting the applicant's back and legs with a truncheon and kicking his torso. Soon after that Mr V.E. caught up with them and also started hitting the applicant's back and legs with a truncheon and kicking his torso. The applicant averred that Mr V.E. had sat on his back and had delivered several truncheon blows to his head. The applicant was crying and begging the officers to stop, insisting that he had done nothing wrong. Mr I.P. was an eyewitness to the incident, and so were a Mr P.S. and a Mr V.K. 9. Shortly afterwards, chief sergeants A.K. and I.G. arrived at the scene. By that time the physical assault on the applicant had stopped. The applicant was lying on the ground and Mr G.G. and Mr V.E. were standing beside him. The applicant's teeshirt was soaked with blood coming from the neck area. 10. Chief sergeants A.K. and I.G. helped the applicant get into their patrol car. On the way to the hospital they stopped at a fountain and told him to wash the blood off his neck. The applicant told the officers that he felt pain in his legs and in his right lumbar area. 11. The applicant was admitted to the emergency ward of the Vidin Regional Hospital at 10.01 p.m. Upon his admission he stated that he could not see. His blood pressure was measured to be 70/0. It was found that he had a traumaticlacerated injury on the back of his head. He was also complaining of severe pain in the area of the right kidney. He was taken to the surgical ward and the injury on his head was treated. 12. From the hospital the applicant was taken to the police station, where he was questioned at about 10.30 p.m. It was established that he had nothing to do with the breaking of the icecream booth. After the questioning an officer took the applicant home. When the applicant's mother saw the state the applicant was in, she asked a friend to drive the applicant and herself back to the emergency ward of the Vidin Regional Hospital. There she was informed that the applicant had already been treated and that there was nothing more the staff could do, as there were no doctors on the ward at that time, only paramedics. 13. The applicant and his mother then went to the police station to find out why he had been beaten and apprise the police of the names of the eyewitnesses to the incident. They were given the names of the officers who had assaulted the applicant and sometime around midnight left the station and went home. 14. When the severe pain in the applicant's right lumbar area continued through the night and blood showed up in his urine, a doctor was called in and examined the applicant at 2.10 a.m. on 15 May 1994. He found that the applicant had a reddening of the skin in the groins, parallel traces of blood suffusions and grazes on the calves, three on the left leg and two on the right leg, and a head injury. 15. At 9.15 a.m. on 15 May 1994 the applicant went once more to the emergency ward of the Vidin Regional Hospital. At 10 a.m. he was admitted to the surgical ward. He was diagnosed as suffering from contusion in the right lumbar area, commotion of the right kidney and haematuria (blood in the urine), and was treated with styptics and antibiotics. He remained in hospital until 28 May 1994. 16. Two days later, on 30 May 1994, the applicant was urgently admitted to the urology centre of the Medical Academy in Sofia because of macroscopic haematuria (high levels of blood in his urine) and sustained dull pain in his right lumbar area. His right kidney was found to be surrounded by a haematoma and retaining liquid. It was established that his blood pressure was 140/100 because of, among other reasons, the pressure from the haematoma on the kidney. The applicant was treated with spasmolytics, analgesics and antibiotics. The applicant had to be released on 13 June 1994 due to an inhospital infection outbreak. 17. Throughout the following years the applicant underwent numerous examinations of his right kidney. 18. On 15 July 1996 the applicant was admitted to the urology ward of the National Institute for Urgent Medical Care “Pirogov”, after complaining from dull pain in his right lumbar area. He was diagnosed as suffering from hydronephrosis of the right kidney (pathological chronic enlargement of the collecting channels of a kidney, leading to the compression and the eventual destruction of kidney tissue and the deterioration of the kidney function). On 22 July 1996 he underwent surgery and his right kidney was removed. On 9 August 1996 he was released from hospital. 19. On 14 May 1994 the applicant's mother complained about his beating to the Vidin Regional Prosecutor's Office. On 16 May 1994 the applicant's father also lodged a complaint with the Vidin District Prosecutor's Office. 20. On 21 June 1994 the Pleven Military Prosecutor's Office, which was competent to deal with offences allegedly committed by police officers, opened criminal proceedings against Mr G.G. and Mr V.E. 21. The investigator to whom the case was assigned conducted a series of interviews on 27, 28 and 29 June 1994. He questioned the applicant, Mr I.P., Mr V.K. and several other witnesses. On 16 and 17 August 1994 the investigator questioned chief sergeant A.K. and two other police officers. 22. On 17 August 1994 Mr G.G. and Mr V.E. were charged and questioned. During questioning Mr G.G. stated that he had tripped the applicant but had not subjected him to any other violence. Mr V.E. stated that he had only hit the applicant once with a truncheon on the legs, but had not subjected him to any other violence. 23. On an unspecified date the investigator ordered a medical expert report to determine the extent of the applicant's injuries. The report was drawn up by Dr A.I., head of the forensic medicine ward of the Vidin Regional Hospital. She found that the applicant had had a wound on his head, haematomas and grazing on his legs, contusion of the right lumbar area and haematuria. She concluded that the beating had caused the applicant a shortterm lifethreatening health disorder, due to a traumatic-haemorrhagic shock resulting from the contusion of the right kidney and a massive haematoma around the kidney. 24. On 6 July 1995 the applicant's mother, acting for the applicant, who was still underage, submitted a civil claim against Mr G.G. and Mr V.E. She sought 400,000 old Bulgarian levs (BGL) on the applicant's behalf. 25. Another series of interviews was conducted on 20 September 1995 by another investigator at the Pleven Regional Military Prosecutor's Office. Mr V.K. and Mr P.S. were questioned. 26. On 3 November 1995 the Pleven Military Prosecutor's Office submitted to the Pleven Military Court an indictment against Mr G.G. and Mr V.E., charging them with causing intermediate bodily harm to the applicant. On 6 November 1995 the case was set down for hearing. 27. The first hearing took place on 12 February 1996. Mr G.G. and Mr V.E. were represented by Mr L.I., a former military prosecutorgeneral. The applicant, who was also represented by counsel, amended his civil claim, seeking interest as from the date of the beating and naming the Vidin Regional Directorate of Internal Affairs as a third defendant. The court heard Mr G.G., Mr V.E., the applicant, the applicant's mother, chief sergeant A.K., several other police officers, Mr I.P., Mr V.K. and Mr P.S. Noting that the statements of the accused differed from those of the eyewitnesses, the court carried out a confrontation. Finally, the court heard Dr A.I., the medical expert who had given an opinion about the extent of the applicant's injuries. The accused disputed Dr A.I.'s conclusions and requested a new medical report to be drawn up by three experts, excluding Dr A.I. The court acceded to the request and ordered a new expert report, to be drawn up by three medical experts. 28. In their report the three medical experts (Dr P.L., head of the forensic medicine and ethics department of the High Institute of Medicine in Pleven, Dr V.G., head of department at the Urology Clinic of the Institute, and Dr K.P., senior assistant at the anaesthesiology and intensive care departments of the Institute) concluded that as a result of the 14 May 1994 incident the applicant had suffered a contusion of the right kidney, haematomas and grazing of the two legs, a wound on the head and a reddening in the right part of the groins. Unlike Dr A.I., they concluded that the traumaticneurogenic shock suffered by the applicant had not become truly lifethreatening. They also found that before the incident the applicant had been suffering from a congenital kidney anomaly, which had been the reason for the applicant's haematuria after the incident. In the experts' view, the applicant's kidney injury had not been lifethreatening and had had no longlasting effects on his health. The beating had caused the applicant only a temporary (two or threeweek) health problem. 29. The next hearing took place on 19 June 1996. The court heard the three medical experts, who stated that they adhered to the conclusions given in their report. The prosecutor noted that the first report, drawn up by Dr A.I., and the second report, drawn up by the three medical experts, substantially differed on the issue of the extent of the injuries suffered by the applicant. He therefore requested an additional expert report, to be drawn up by five experts, including Dr A.I. The court acceded to the request. 30. On 20 May 1997 the report of the five medical experts was ready. They concluded that the applicant had suffered a traumaticneurogenic shock, which, however, had not deteriorated and had not become lifethreatening. They also concluded that before the incident the applicant had been suffering from a congenital kidney anomaly, which had been the reason for his haematuria after the incident. In the experts' view, the applicant's kidney injury had not become lifethreatening. As regards the later surgical removal of the kidney and its potential causal link with the beating, the experts were of the opinion that, in view of the long time-span between the beating (14 May 1994) and the surgery (22 July 1996) and the nature of the injury, it could not be concluded that the removal of the kidney had been a direct and proximate consequence of the beating. Additionally, the applicant's congenital kidney anomaly had been prone to natural deterioration and could have led on its own to a decline in the kidney function, which was what had made the removal necessary. It could not be categorically established that the beating had not contributed to the need for the removal of the kidney, but the main factor had been the congenital anomaly. 31. After several adjournments due to difficulties with the attendance of all five medical experts, the Pleven Military Court listed a hearing for 26 January 1998. At that hearing the court heard all five medical experts. Four of them stated that they adhered to the conclusions made in their report. By contrast, Dr A.I. stated that she did not agree with the conclusions of the report and that she still maintained the opinion expressed in her initial report. The applicant presented Xrays of his kidneys and, after examining them, the four experts stated that they still adhered to the conclusions reached in their report. The applicant increased his civil claim to BGL 10,000,000. In his concluding argument the public prosecutor stated that, in view of the experts' opinion, he did not pursue the charge of intermediate bodily harm, and urged the court to characterise the officers' act as inflicting minor bodily harm. 32. In a judgment of 26 January 1998 the Pleven Military Court found Mr G.G. and Mr V.E. guilty of inflicting the applicant minor bodily harm and not guilty of inflicting him intermediate bodily harm. It sentenced them to five months' imprisonment, suspended for three years. The court also partially allowed the applicant's claim for damages, awarding him BGL 300,000, to be paid jointly and severally by the two officers and the vicariously liable Regional Directorate of Internal Affairs in Vidin. 33. The court found that Mr G.G. had tripped the applicant and that the applicant had fallen on the ground face down. After that Mr G.G. had delivered a number of blows on the applicant's back and legs with a truncheon and had kicked several times his torso. When Mr V.E. had arrived he had also hit the applicant's back and legs with a truncheon and had kicked his torso. During the beating the applicant had told the two accused that he had done nothing wrong. The court stated that it did not find the accused's averment that they had not beaten the applicant persuasive, because it was disproved by the testimony of two eyewitnesses – Mr I.P. and Mr V.K. – and of the applicant himself. The court considered that the eyewitnesses' and the applicant's testimony was consistent and reliable. 34. The court also examined the officers' assertion that they had acted lawfully, in a situation calling for the arrest of a suspect, and that they had inflicted bodily harm in their efforts to subdue the applicant. In that connection, it noted that the accused were substantially stronger physically than the applicant, that Mr I.P., Mr V.K. and chief sergeant A.K. had testified that the applicant had not tried to resist, and that at the time of the incident the applicant had been fourteen years old. The court accordingly rejected the assertion. 35. As regards the extent of the applicant's injuries, the court held that the opinion of the four medical experts, which appeared objective, impartial, consistent, wellreasoned and in conformity with the medical documents in the case file, should be given more credit than that of Dr A.I. In the court's view, the four experts' arguments confuted her opinion. The court therefore held that as a result of the beating the applicant had suffered a temporary (two or threeweek) nonlifethreatening health disorder, which amounted to minor bodily harm within the meaning of Articles 128 to 130 of the Criminal Code of 1968 (“the CC”). 36. Finally, the court rejected Mr G.G. and Mr V.E.'s defence under Article 12a of the CC that they had only used the force necessary to arrest a presumed offender, injuring the applicant in the process of subduing his resistance. The court acknowledged the great disparity in terms of physical strength between the two policemen and the applicant. Moreover, the other witnesses had clearly indicated that the applicant had not put up any resistance requiring the use of force. Finally, at the time of the incident the applicant had been only fourteen years old and his age was visible from his physical features. 37. Mr G.G. and Mr V.E. appealed, arguing that their actions had not constituted an offence, as they had acted within the bounds allowed by the National Police Act of 1993. In the alternative, they submitted that the sentences imposed on them were too harsh. The applicant also appealed, arguing that the amount of damages awarded to him was too low. 38. The Military Court of Appeals held a hearing on 8 June 1998. The officers were represented by their counsel, Mr L.I. The applicant was represented by two lawyers. 39. In a judgment of 8 June 1998 the Military Court of Appeals upheld the Pleven Military Court's judgment. It held that the manner in which the applicant's injuries had been caused had been correctly established by the lower court. There existed direct evidence that the applicant had been subjected to violence even after he had been brought to the ground and had not had the possibility to resist or run away. Even if the officers had misidentified the applicant, this had not legally justified the physical assault that they had inflicted on him. Moreover, the use of force had continued after the applicant had been subdued. There existed a direct causal link between the violence and the injuries sustained, as confirmed by all of the medical expert reports. The court went on to state that it did not agree with the lower court's conclusion as regards the extent of the applicant's injury. To exclude the causal link between the surgical removal of the applicant's right kidney and the incident of 14 May 1994, the Pleven Military Court had relied on the conclusion of four medical experts and had rejected as illogical the conclusion of Dr A.I. However, that court had disregarded that conclusion on purely formal grounds, without discussing its main points. It was unclear whether the opinion of the four experts was in fact based on the raw medical data, which in turn cast doubt on its correctness. The court concluded that if the lower court had taken into account these considerations, it could have made a different finding as to the reason for the surgical removal of the applicant's right kidney. However, since no appeal had been lodged by the prosecution, the court only noted this factual mistake and did not correct it in its judgment by holding that the applicant had suffered intermediate bodily harm, as that would worsen the accused's position. 40. Mr G.G. and Mr V.E. appealed on points of law to the Supreme Court of Cassation. The applicant also appealed, requesting an increase in the amount of damages awarded. 41. The Supreme Court of Cassation held a hearing on 17 September 1998. It heard the applicant's and the officers' oral argument and accepted their written pleadings for consideration. The prosecutor present at the hearing submitted that both appeals were groundless and should be dismissed. 42. In a final judgment of 11 November 1998 the Supreme Court of Cassation reversed Mr G.G.'s and Mr V.E.'s convictions and acquitted them. It also dismissed the applicant's civil claim. Its opinion read as follows: “...The courts below arrived at the erroneous conclusion that the two [officers]' act had been wrongful and contrary to Article 131 [§ 1] (2) of the CC... This is so for the following reasons: The [officers'] act does not amount to an offence, as they acted under the prerequisites of section 40(1), points 1 and 2 of the National Police Act [of 1993] and within the bounds set by this Act on the use of physical force, namely information about the perpetration of a publicly prosecutable offence in the centre of Vidin, which was broadcast over the [police] radio station and was received by [Mr G.G.] and [Mr V.E.]. Moreover, the description of the perpetrator who had fled from the crime scene coincided with the appearance of the [applicant], and for this reason the ... officers mistook him for the wanted offender. What is more, the [applicant] did not obey and through his actions refused to comply with the lawful order of the [officers], who tried to stop him by shouting 'Stop! Police!' Instead, he tried to escape, in order to avoid arrest by the [police], who, in line with their duties, gave chase with a view to arresting the suspect. As it were, not only did the [applicant] not obey, but he also resisted the [police officers]. Finally, the injuries he sustained upon his arrest are within what is permissible under sections 40 and 41 of the [National Police Act of 1993]. The overall situation, including the [applicant]'s inadequate behaviour, led the [officers] to conclude that he was the offender who was being sought after and who had to be caught, overawed and apprehended. This conclusion and the lawful actions of the officers, including the use of force with its consequences for the [applicant], rule out the criminality of their act. [To hold o]therwise [would mean to render] the abovementioned provisions of the [National Police Act of 1993] nugatory.” 43. Section 40(1) of the now repealed National Police Act of 1993 („Закон за националната полиция“) read, as relevant: “... police [officers] may use ... force ... when performing their duties only if they [have no alternative course of action] in cases of: 1. resistance or refusal [by a person] to obey a lawful order; 2. arrest of an offender who does not obey or resists the police [officers]; ...” 44. By section 41(2) of the Act, the use of force had to be commensurate to, inter alia, the specific circumstances and the personality of the offender. Section 41(3) of the Act directed police officers to “protect, if possible, the health ... of the persons against whom [force was being used].” Section 41(4) of the Act provided that the use of force had to be discontinued immediately after its aim had been attained. 45. Article 12a § 1 of the CC, adopted in 1997, provides that the injuring of alleged offenders during their arrest is not a criminal act, provided that there exists no other way for their apprehension and the measures used during the arrest do not exceed what is necessary and lawful. By paragraph 2 of this Article, there is such an excess where there exists an obvious disproportion between the character and the gravity of the offence allegedly perpetrated by the arrestee and the circumstances of the arrest, and also where the arrestee is unnecessarily and excessively harmed. The persons effecting the arrest are criminally liable only if they cause the harm wilfully. 46. Articles 128, 129 and 130 of the CC make it an offence to inflict grievous, intermediate or minor bodily harm on another person. The CC defines intermediate bodily harm as, inter alia, one which involves a temporary lifethreatening health disorder or a permanent nonlifethreatening health disorder (Article 129 § 2 of the CC). Minor bodily harm is one which does involve a health disorder, but is not specifically referred to in Articles 128 § 2 and 129 § 2 of the CC (Article 130 § 1 of the CC). 47. If the bodily harm is inflicted by a police officer in the course of or in connection with the performance of his duties, the offence is an aggravated one (Article 131 § 1 (2) of the CC). It is publicly prosecutable (Article 161 of the CC). 48. Criminal proceedings for publicly prosecutable offences could be instituted only by the decision of a prosecutor or an investigator (Article 192 of the CCP, as in force at the relevant time). The prosecutor or the investigator had to open an investigation whenever they received information, supported by sufficient evidence, that an offence had been committed (Articles 187 and 190 of the CCP, as in force at the relevant time). 49. Before 1993 the offences allegedly committed by police officers were tried by military courts (Article 388 § 1 (2) of the CCP, as in force at the relevant time). In December 1993 this text was amended to provide that the military courts no longer had jurisdiction in respect of such offences (Article 388 § 1 (2) of the CCP, as amended in December 1993). A new amendment in June 1995 reverted to the old regime (Article 388 § 1 (2) of the CCP, as amended in June 1995 and in force until 1 January 2000). If a case falls within the jurisdiction of the military courts, the preliminary investigation is handled by military investigators and prosecutors. 50. Section 45(1) of the Contracts and Obligations Act of 1951 („Закон за задълженията и договорите“) provides that everyone is obliged to make good the damage which they have, through their fault, caused to another person. Section 49 of the Act provides that a person who has entrusted another with performing 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.