CASE OF MYUMYUN v. BULGARIA
Violation of Article 3 - Prohibition of torture (Article 3 - Torture;Positive obligations) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Pavlina Panova;Yonko Grozev
6. The applicant was born in 1979 and lives in the village of Gorno Sahrane. 7. In the morning of 20 February 2012 Mr N.K. and Mr I.K., officers of the Pavel Banya police force, went to the applicant’s house in connection with a complaint that a burglary had taken place several days earlier, on 16 February. They were making inquiries into the matter but a formal criminal investigation had not yet been opened. The applicant was not home but the officers obtained his mobile telephone number from his wife and called him, telling him to appear at the police station for inquiries. 8. The applicant went to the police station at about 1 p.m. According to the findings of the criminal courts which later examined the events (see paragraphs 20 and 21 below), he was taken to a room where there were Mr N.K., Mr I.K. and a third officer. Mr N.K. asked the applicant whether he had anything to tell them. After the third officer had gone out of the room, Mr I.K. took out a wooden bat and hit the applicant’s left shoulder. He hit him again and the applicant fell to the ground. After that Mr N.K. kicked him with his knee and repeatedly hit him with a rubber truncheon. Some time after that another officer, Mr T.A., came into the room carrying an electroshock prod. He administered an electric shock to the applicant’s left leg. The applicant curled up on the floor, while Mr N.K. and Mr I.K. kept beating him. The beating continued intermittently for some time, and the applicant was able to stand up on his feet. Another officer came into the room for a while. After he left, Mr N.K., Mr I.K. and Mr T.A. again administered electric shocks to the applicant and carried on hitting and kicking him. At one point, when the applicant’s head was low down, he was kicked on the nose and started bleeding, and the beating stopped. 9. The blows sustained by the applicant caused a haematoma on his nose and haematomas and bruises on the upper left back, the left side of the torso and the left shoulder. 10. At about 4 p.m. Mr N.K. drew up a written statement on behalf of the applicant that said that he knew nothing of the reported burglary, and presented it to the applicant for signature. The applicant was released at about 5 p.m. 11. The next day, 21 February 2012, the applicant was examined by a forensic doctor who noted the numerous haematomas and bruises on his face and upper body, which he believed to have been caused by “hard blunt objects and objects with cylindrical form”. 12. On 27 February 2012 the applicant complained about the incident to a member of Parliament, who forwarded his complaint to the prosecuting authorities. As a result, the Kazanlak District Prosecutor’s Office opened criminal proceedings against the three officers who had ill-treated the applicant, and on 1 February 2013 charged them with causing him minor bodily harm while carrying out their duties, an offence under Article 131 § 1 (2) read in conjunction with Article 130 § 2 of the Criminal Code 1968 (see paragraphs 28 and 29 below). 13. On 1 March 2013 the prosecutor in charge of the case informed the applicant that, since the penalty for this offence was up to one year’s imprisonment, the officers’ criminal liability would be waived and replaced with administrative penalties, as required under Article 78a of the Code (see paragraph 42 below). 14. On 28 March 2013 the applicant asked the Kazanlak District Prosecutor’s Office to consider bringing charges against the officers under Article 282 § 1 of the Code (see paragraph 31 below). He pointed out that under this Court’s case-law a mere fine, which was all that the charges under Article 131 § 1 (2) read in conjunction with Article 130 § 2 could lead to, was not an adequate penalty for the ill-treatment suffered by him. On 1 April 2013 that office replied that it had no competence to investigate and prosecute offences under that provision. 15. On 23 April 2013 the applicant asked the Kazanlak District Prosecutor’s Office to consider bringing charges against the officers under Article 287 of the Code (see paragraph 32 below), pointing out that that office was competent to investigate and prosecute such offences. It does not appear that he received a reply. 16. The prosecuting authorities maintained the original charges and on 29 April 2013 proposed to the Kazanlak District Court to waive the officers’ criminal liability and replace it with administrative penalties, as possible under Article 78a § 1 of the Code (see paragraph 42 below). 17. On 30 April 2013, when setting the case down for trial, the Kazanlak District Court noted that although the applicant had expressed the intention of bringing a civil claim when the case came for trial, under the applicable rules of criminal procedure that was not possible in proceedings under Article 78a of the Code (see paragraph 44 below); the applicant was to be notified accordingly. 18. On 21 May 2013 the applicant asked the court to refer the case back to the prosecuting authorities for them to consider whether the officers had committed an offence under Article 287 of the Code (see paragraph 32 below). The same day the judge rapporteur advised the applicant that his request could not be allowed because he was not party to the proceedings: under the relevant rules of criminal procedure the alleged victim of the offence could not take part as a civil claimant or private prosecutor in proceedings under Article 78a of the Code (see paragraph 44 below). It was moreover up to the prosecuting authorities to decide what charges to press. In any event, Article 287 of the Code did not apply to the facts as recited in the indictment. According to them, the applicant had been ill-treated before the institution of criminal proceedings in relation to the burglary in which he would have a capacity as a person charged with a criminal offence or a witness, which was a required element of the offence. Criminal law provisions could not be interpreted broadly. 19. The officers’ trial took place on 23 May, 5 August, 13 November and 12 December 2013. 20. On 12 December 2013 the Kazanlak District Court, based on the findings of fact made by it (see paragraphs 7-11 above), held that Mr N.K., Mr I.K. and Mr T.A., acting in concert, had wilfully caused the applicant light bodily harm, contrary to Article 131 § 1 (2) read in conjunction with Article 130 § 2 of the Criminal Code 1968 (see paragraphs 28 and 29 below). The court went on to hold that the case fell under Article 78a § 1 of the Code (see paragraph 42 below) and that the officers’ criminal liability was therefore to be waived and replaced by administrative fines ranging from 1,000 to 5,000 Bulgarian levs (BGN). In fixing the quantum of the fines, the court found that the officers’ good character and their having caused the applicant the least serious type of bodily harm under the Code were mitigating factors, whereas their having acted jointly and having infringed the applicant’s rights under the Convention were aggravating ones. It also took into account the officers’ family and financial situation, noting in particular that the monthly salary of the first was BGN 800 and those of the other two BGN 600 each. Based on all that, it held that the aims of the punishment could be attained by giving each of the officers a fine of BGN 2,000 (the equivalent of 1,023 euros (EUR)). There was no need additionally to disqualify them from working as police officers under Article 78 § 4 of the Code (see paragraph 42 in fine below). The fines were sufficient to make them rethink their conduct and refrain from resorting to violence in the future. 21. The officers appealed against that judgment, but on 25 April 2014 it was fully upheld by the Stara Zagora Regional Court, whose judgment was final. That court reviewed of its own motion the penalties imposed on the officers and fully agreed with the reasons given by the lower court on that point. 22. Following a complaint by the applicant, on 27 February 2012 the Kazanluk Regional Police Department opened an internal inquiry into the allegations that he had been ill-treated. On 6 March 2012 it informed the applicant that it had recommended the opening of disciplinary proceedings against the three officers. As a result of those proceedings, on 5 June and 18 October 2012, respectively, Mr N.K. and Mr I.K. were punished with non-admission to promotion competitions for a period of three years for having unlawfully detained the applicant, whereas Mr T.A. was not given a disciplinary penalty. The disciplinary commission found that none of the three officers had ill-treated the applicant. 23. In August 2014 the applicant brought a claim for damages under section 1 of the State and Municipalities Liability for Damage Act 1988 against the Stara Zagora Regional Police Directorate. The Stara Zagora Administrative Court heard the case on 17 December 2014, and in a judgment of 19 January 2015 found the Stara Zagora Regional Police Directorate liable for the ill-treatment suffered by the applicant at the hands of the three officers, and awarded him BGN 4,000 (the equivalent of EUR 2,045), plus interest, in non-pecuniary damages. The court noted, in particular, that the ill-treatment to which the applicant had been subjected had not been provoked by him in any way, and that it had caused him physical pain for about a month. It had also caused him to feel apprehensive and uneasy when going out of his home because of fear that he might be illtreated again. 24. It appears that that judgment has not yet become final.