GEORGI GEORGIEV v. BULGARIA
Inadmissible
Angelika Nußberger;Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Zdravka Kalaydjieva
The applicant, Mr Georgi Todorov Georgiev, is a Bulgarian national who was born in 1929 and lives in the village of Trud, in the Plovdiv region. He was represented before the Court by Mr M. Ekimdzhiev and Ms K. Boncheva, lawyers practising in Plovdiv. The Bulgarian Government (“the Government”) were represented by their Agent, Ms M. Dimova, of the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. At about 6.30 p.m. on 22 April 1996 the applicant’s son, who had earlier consumed alcohol, entered a pub in the centre of Trud. There he met Mr I.M., whom he apparently knew, who had also consumed a considerable amount of alcohol. The applicant’s son sat down at Mr I.M.’s table and asked him to lend him some money. Mr I.M. refused, but offered to buy him a drink instead. The applicant’s son became angry and started swearing at Mr I.M. He went outside and returned several times, visibly enraged. At one point he said to his cousin, who was also in the pub: “Just watch me slap the halva-seller around in two minutes”. The quarrel escalated. The applicant’s son grabbed Mr I.M.’s clothes and pulled him up from his chair. After that the two stood opposite each other, shouting. A waitress asked them to take their quarrel outside. The applicant’s son pushed Mr I.M. through the door causing him to fall on his back. The applicant’s son then proceeded to kick him in the midriff and jump on top of him, pinning him to the ground with his knee. According to the findings of the prosecutors who later dealt with the case, he also grabbed Mr I.M. by the throat and started strangling him. The applicant strongly disputed that finding. The prosecutors also found that Mr I.M. had tried to free himself from the applicant’s son’s grip, but to no avail. According to the prosecutors’ findings, at that point Mr I.M., who was choking, drew a knife from a sheath attached to his belt and stabbed the applicant’s son in the chest. Seeing the knife, a bystander intervened and separated the two men. The applicant’s son got up and took a few steps towards a car parked nearby. Mr I.M. followed him with the bloodstained knife, but did not try to hit him again. He said “Now see who you have sworn at and what it is to hit someone”. According to the applicant, the stabbing took place after his son had already been separated from Mr I.M. After that two eyewitness, Mr Z.P. and Mr T.K., put the applicant’s son in a car to take him to hospital. They came across a police car and told the officers about the incident. The police called an ambulance, but the applicant’s son died before it arrived. A test revealed that at the time of the incident the alcohol content in the applicant’s son’s blood was 2.06 mg per ml. Mr I.M.’s bloodalcohol content, measured three hours after the incident, was 2.39 mg per ml. At about 7 p.m. the same day the police dispatched two officers to the scene of the incident. They impounded I.M.’s knife, arrested him, took him to a police station in Plovdiv and took a statement from him. Later that day the authorities opened an official investigation into the incident. Between 8.20 p.m. and 8.50 p.m. the investigator to whom the case was assigned and a forensic technician inspected the body of the applicant’s son. Between 8.55 p.m. and 9.15 p.m. they inspected the scene of the incident. At the investigator’s request, at about 9.30 p.m. a medical doctor examined Mr I.M. Between 9.45 p.m. and 10.50 p.m. two police officers, acting on the investigator’s instructions, interviewed five eyewitnesses (Mr H.G., Mr Z.P., Ms Y.K., Mr T.K. and Ms E.B.). The next day, 23 April 1996, a forensic pathologist performed an autopsy on the body of the applicant’s son. He found that he had died as a result of the stabbing, which had ruptured key blood vessels, causing massive loss of blood. He found that the angle of entry of the wound was upwards, from front to back and from right to left. The same day, 23 April 1996, the case was taken up by another investigator. He placed Mr I.M. in pretrial detention, charged him with murder under Article 115 of the Criminal Code (see Relevant domestic law below) and interviewed him, first alone and then in the presence of his counsel. Mr I.M. chose not to make a statement, saying that he did not feel very well. On 24 April 1996 the investigator ordered an expert report on the blood found on the knife impounded from Mr I.M. and on a blood sample taken from the scene of the incident. The results were ready on 8 May 1996. On 25 April 1996 the investigator asked a forensic expert to examine Mr I.M. for injuries and express his opinion on how they had been inflicted. In his report, filed the same day, the expert said, inter alia, that although Mr I.M. complained of pain in the neck, he bore no visible traces of strangulation. On 29 April 1996 the investigator interviewed Mr H.G. and Mr Y.K. Both of them said that their earlier statements had not been comprehensive and gave fuller accounts of their versions of the events. Mr H.G. mentioned that the hands of the applicant’s son had left red marks on Mr I.M.’s throat. On 30 April 1996 the investigator interviewed Mr I.M., who gave a full account of his version of the events. On 2 May 1996 the investigator interviewed Ms E.B., Mr T.K. and Mr Z.P. On 13 and 14 May 1996 he interviewed three other witnesses who had not directly seen the incident. On 14 May 1996 the investigator ordered a psychiatric expert report on Mr I.M.’s state of mind at the time of the incident. In their report, filed the same day, three experts said that at the time of the incident Mr I.M. had been in a state of fear which had influenced his conduct, additionally affected by his state of alcoholic intoxication. On 23 May 1996 the investigator amended the charges against Mr I.M. to murder committed through the use of excessive force in selfdefence, contrary to Article 119 of the Criminal Code (see Relevant domestic law below). On 27 May 1996 the investigator asked a forensic expert to express his opinion, based on the materials in the case file, on the relative positions of the applicant’s son and Mr I.M. at the time of the stabbing and on the strength of the blow. In his report, filed on 29 May 1996, the expert said that the wound could have been inflicted while the applicant’s son had been pinning Mr I.M. to the ground and strangling him, or if the two had been standing opposite each other, or if Mr I.M. had been standing behind the applicant’s son. However, the manner in which the incident had unfolded suggested that the most likely version was that the stabbing had taken place while the two men had been struggling on the ground. In February 1997 the case was assigned again to the investigator who had dealt with it initially. On 7 February and 2 April 1997 he interviewed Mr T.K., Mr H.G. and Mr Z.P., as well as another eyewitness, Ms S.P., in the presence of counsel for the applicant and his wife and of counsel for Mr I.M. While on 7 February 1997 Ms S.P. had maintained that Mr I.M. had stabbed the applicant’s son long after the two had been separated, on 2 April 1997 she said that she had not seen clearly how the stabbing had taken place. When asked to explain the divergence, she said that she had been frightened, had not seen the stabbing directly, and was too frail psychologically and burdened with other problems to be able to have a clear recollection of the events. Meanwhile, on 2 April 1997 the applicant and his wife applied to join the proceedings as civil parties. The investigator granted their application the same day. On 16 June 1997 the investigator interviewed the former wife and the child of the applicant’s son. On 25 June 1997 the investigator allowed the applicant and his wife, assisted by their counsel, to inspect the case file. On 26 June 1997 the investigator allowed Mr I.M. and his counsel to inspect the case file. They objected against the investigator’s decision to allow the applicant and his wife to join the proceedings as civil parties, pointing out that they had failed to specify the amount of their claim. The same day, 26 June 1997, the investigator sent the case file to the Plovdiv Regional Prosecutor’s Office, proposing that Mr I.M. be put on trial. He described in detail his findings of fact and concluded that by resorting to a knife Mr I.M. had used excessive force in selfdefence. However, on 11 July 1997 the Plovdiv Regional Prosecutor’s Office decided to discontinue the investigation. It reasoned that Mr I.M.’s act fell within the ambit of Article 12 § 3 of the Criminal Code (see Relevant domestic law below), because he had used excessive force out of fear. He had acted under the influence of fear induced by the applicant’s son’s attack, which had significantly reduced his ability to assess the situation correctly and adapt his conduct so as to remain within the limits of selfdefence. His act, which had consisted in a single blow with a knife, had essentially been defensive, in spite of his words after the fight. It was apparent from the statements of the eyewitnesses that the applicant’s son had pinned Mr I.M. to the ground and grabbed him by the throat, preventing him from breathing normally. He had at first unsuccessfully tried to free himself from that robust grip, which had caused him to fear for his life and safety. On 28 July 1997 the applicant and his wife appealed against the discontinuance to the Chief Prosecutor’s Office. They argued that the stabbing had taken place after their son had already been separated from Mr I.M. and that the latter had continued chasing him with a bloodstained knife. They argued that the witnesses had said so in their initial interviews, and had changed their statements only later. Moreover, the fight had been brief and Mr I.M. was physically the stronger. In those circumstances, there was no room for the application of Article 12 § 3 of the Criminal Code. On 20 August 1997 a prosecutor from the Chief Prosecutor’s Office allowed the appeal and ordered the Plovdiv Regional Prosecutor’s Office to resume its work on the case. He reasoned that the investigation had failed to elucidate the exact timing of the stabbing and the applicant’s son’s and Mr I.M.’s relative positions at that moment. The witnesses’ initial and subsequent statements on that point were contradictory. It was also unclear whether or not the applicant’s son had in fact been able to walk after the stabbing and at what point he had halted his assault on Mr I.M. Finally, it had not been clarified whether or not the fatal blow was delivered while the two men were still wrestling on the ground and whether or not it had been indeed feasible for Mr I.M. to draw the knife from its sheath and administer a forceful upward blow, as described in the medical expert report. On 5 September 1997 Mr I.M. appealed against that decision. On 1 October 1997 the Head of the Investigations Division of the Chief Prosecutor’s Office quashed it and upheld the discontinuance. He found that the lower prosecutor’s misgivings about unclarified aspects of the incident were unsupported by the evidence. While it was true that there were discrepancies between the witnesses’ initial statements as to the timing of the stabbing, on requestioning one of the witnesses had maintained that the stabbing had taken place while the attack by the applicant’s son was still continuing and the others said that they had not seen the actual stabbing. Moreover, the medical expert report had concluded that the blow had been delivered in a horizontal position. Therefore, all possibilities of clarifying the facts had been exhausted and the decision to discontinue the investigation had been warranted. The applicant and his wife appealed to the Chief Prosecutor. On 31 March 1998 the Deputy Chief Prosecutor, to whom the case had been referred, allowed the appeal and ordered the Plovdiv Regional Prosecutor’s Office to investigate further. He considered that it had not been made clear what had caused the eyewitnesses to change their statements. There were also serious discrepancies between the subsequent statements and the statements of other witnesses. These could have been cleared up by arranging a confrontation between the witnesses. Since the reports describing the crime scene were quite laconic, it would have been helpful to interview the persons present when they were drawn up. No efforts had been made to check the clothes and the shoes worn by the applicant’s son and Mr I.M. in order to determine whether the bloodstains on them corresponded to their relative positions and movements as described by the eyewitnesses. The persons who had taken the applicant’s son to hospital had not been asked whether he had said anything. No reconstruction had been staged to test the witnesses’ statements. The medical expert had not been asked clear and comprehensive questions. In view of the force of the blow, the expert should have been asked whether or not it was possible for an individual who was under the influence of drink, gripped by the throat to the point of strangling and had a damaged right elbow joint to draw a knife out of its sheath, swing it forcefully and administer a strong blow. The expert should also have been asked whether or not it would have been possible for the applicant’s son to walk after receiving such a blow. No consideration had been given to bringing in other experts whose specialist knowledge could have shed more light on the circumstances in which the applicant’s son had died. On 20 May 1998 Mr I.M. appealed to the Chief Prosecutor. On 14 July 1998 the Chief Prosecutor quashed his deputy’s decision and upheld the discontinuance. He noted that all eyewitnesses had been questioned several times and all the discrepancies between their initial statements had been cleared up. Fresh interviews would not add anything. The clothes and shoes worn by the applicant’s son and Mr I.M. would not alter the findings either, because the manner of stabbing had been established through a medical expert’s report and the statements of witnesses. It was also clear that the applicant’s son had not spoken to the witnesses before his death. Mr I.M.’s act amounted to selfdefence, because he had used the only means at his disposal to repel the attack. In February 1999 the Chief Prosecutor’s term of office came to an end and a new one was sworn in. The applicant and his wife challenged his predecessor’s decision. On 20 May 1999 the new Chief Prosecutor assigned the case to a prosecutor of the newly created Supreme Cassation Prosecutor’s Office. On 22 June 1999 that prosecutor upheld the challenge and ordered the Plovdiv Regional Prosecutor’s Office to resume the investigation and carry out various steps. Firstly, in view of the dubious validity of the medical expert report and its failure to take into account the eyewitnesses’ initial statements, it was necessary to order a further report to be drawn up by two forensic specialists and a surgeon. Secondly, in view of evidence by Mr H.G. that he had seen red marks on Mr I.M.’s throat, and of the fact that a medical expert who had examined Mr I.M. that same evening and two days later had not found any visible traces of injuries to his throat, it was necessary to clarify whether it was medically possible for them to have disappeared so fast. It was also not clear why the eyewitnesses had changed their statements and why the investigator who had initially taken up the case had been replaced. The applicant had alleged that the replacement was a friend of Mr I.M.’s son. It was therefore necessary to assign the case to another investigator with instructions to requestion the eyewitnesses and specifically ask them why they had changed their statements and whether they had been pressured into doing so. After that the case was assigned to another investigator. On 14 July 1999 she interviewed Mr H.G., Mr Z.P. and Mr T.K. On 15 July 1999 she interviewed Ms S.P. and Ms E.B. As Ms S.P.’s account differed from the one that she had given on 7 February 1997 but coincided with the one that she had given on 2 April 1997, the investigator asked her to explain the difference and to confirm which one was true. After a certain amount of hesitation, Ms S.P. said that her statement of 7 February 1997 was true and that her statement on 2 April 1997 had been made under pressure by counsel for Mr I.M., who had talked to her just before the interview. However, she then said that she had not clearly seen the stabbing. On 23 July 1999 the investigator interviewed Ms Y.K. On 3, 7, 8 and 16 September 1999 she interviewed the police officers who had seen the applicant’s son in the car on his way to hospital and the police officers who had arrested Mr I.M. On 25 August 1999 Mr I.M. appealed to the Chief Prosecutor against the investigation’s renewal. The appeal was rejected on 22 March 2001 and the case file was sent back to the investigator on 29 March 2001. On 1 June 2001 the investigator interviewed Mr I.M. On 5 June 2001 she interviewed the applicant and his wife and their other son, the deceased’s brother. At the request of Mr I.M., on 6 June 2001 the investigator revoked the earlier decision to accept the application by the applicant and his wife to join the proceedings as civil parties (see above). She found that the application had been defective, as it had only mentioned their names and their wish to join the proceedings as civil parties, whereas under Article 61 § 1 of the 1974 Code of Criminal Procedure (see Relevant domestic law below) it should have contained a number of other items. On 10 April 2002 the Plovdiv Regional Prosecutor’s Office endorsed that decision. The applicant appealed, but the decision was upheld by the Plovdiv Appellate Prosecutor’s Office on 25 April 2002. The applicant appealed further. On 6 June 2002 a prosecutor of the “Investigations” division of the Supreme Cassation Prosecutor’s Office also upheld the decision. In his view, there was no legal impediment preventing the investigator from revoking an earlier procedural decision. On 27 June 2001 the applicant and his wife lodged a fresh application to join the proceedings as civil parties. On 26 July 2001 the investigator allowed their application. In the meantime, on 7 June 2001 the investigator asked three forensic experts to express their opinion on the exact mechanism of the stabbing, based on the materials in the case file. She asked three other experts to explain whether it was possible for Mr I.M. to have been strangled and to have had no marks of that on his throat, and, if so, to determine how strong the strangling had been. In their report, filed on 19 June 2001, the first three experts said that the stabbing had occurred from a close distance. It was entirely possible that it had occurred while the applicant’s son was strangling Mr I.M. However, it could not be excluded that the blow had been delivered when the two were standing upright, or when Mr I.M. was chasing the applicant’s son. In their report, also filed on the same date, the second group of experts said that the red marks on Mr I.M.’s throat mentioned by Mr H.G. could have many explanations, and that no trace of them had been found during the later medical examinations. It was however possible that they had disappeared in the meantime. On 12 October 2001 the investigator amended the charges against Mr I.M., accusing him of an offence under Article 118 of the Criminal Code (see Relevant domestic law below), and interviewed him. On 27 November 2001 the investigator allowed the applicant and his wife, assisted by their counsel, to inspect the case file. The same day she allowed the wife of the deceased to inspect the file as well. On 29 November 2001 Mr I.M. was allowed to inspect the case file, in the presence of his counsel. He made a number of objections and requests. The investigator rejected them on 22 March 2002. On 5 April 2002 the investigator sent the case file to the Plovdiv Regional Prosecutor’s Office with a recommendation to bring Mr I.M. to trial. She analysed the statements of the witnesses in detail, noting that they were quite contradictory and, save for those of Mr S.P., unclear as to the exact timing and mechanism of the stabbing. She also analysed the expert reports and concluded that Mr I.M. could not have genuinely feared for his life and had stabbed the applicant’s son when the two had already been separated. Based on that, she found that by pulling out his knife and administering a blow with it Mr I.M. had used excessive force in selfdefence, contrary to Article 118 of the Criminal Code (see Relevant domestic law below). On 19 July 2002 the Plovdiv Regional Prosecutor’s Office, disagreeing with the investigator’s proposal, discontinued the proceedings. It noted that the medical expert report had concluded that the applicant’s son’s wound could have been inflicted either while he and Mr I.M. were wrestling on the ground, or later, when they had been already separated. Whereas the first scenario was consistent with the statements of three witnesses – Mr H.G., Ms Y.K. and Ms E.B. –, the second scenario was not supported by any evidence save for the account of one witness – Ms S.P. – whose statement had been changed several times and was therefore not credible. The experts had, moreover, found that the applicant’s son would not have lost all his strength immediately and would have been able to take a few steps before falling to the ground. It could therefore be concluded that in stabbing the applicant’s son Mr I.M. had used excessive force in his selfdefence on account of the fear caused by the applicant’s son’s attack. Mr I.M.’s inability to assess the facts correctly had been exacerbated by the influence of drink. His act had been intended to repel a direct attack posing a threat to his life, not to cause the death of the applicant’s son. This was borne out by the fact that before drawing the knife he had tried to free himself from the latter’s grip. On 26 July 2002 the applicant sought judicial review of that decision. He argued that it was almost identical to the previous decision to discontinue the investigation and failed to take into account the newly gathered evidence. No consideration had been given to the explanation which Ms S.P. had provided for changing her statement. It would, moreover, have been impossible to deliver such a strong blow while being strangled and pinned to the ground. In addition, Mr I.M. had been so heavily intoxicated that his actions had been driven entirely by drink and not by fear. It was necessary to order an additional expert report on that point. On 2 September 2002 the Plovdiv Regional Court decided to examine the case at a public hearing, which took place on 18 February 2003. The applicant appeared together with his counsel. Mr I.M. also appeared with his counsel. The court heard the public prosecutor, counsel for the applicant, counsel for Mr I.M. and Mr I.M. On 5 March 2003 the court upheld the prosecutor’s decision. It found that the investigation had not been characterised by significant omissions and that the authorities had taken the necessary steps to establish the facts. The higher prosecutor’s offices had ordered further investigatory measures – requestioning of witnesses and fresh expert reports – which had been carried out. The prosecutor’s findings, based on the evidence thus obtained, were correct, and the applicant’s arguments were not sufficient to cast serious doubt on them. The main issue in determining whether Mr I.M.’s act had been justified under Article 12 of the Criminal Code, was at which point the applicant’s son had stopped attacking him. The available evidence categorically showed that he had used the knife at a time when the attack was still going on. That was confirmed by the accounts of the eyewitnesses Mr H.G. and Ms S.P., who had clarified the discrepancies between their various statements. Moreover, their statements supporting the version that Mr I.M. stabbed the applicant’s son when he was still strangling him fully coincided with the statements of the other eyewitnesses (Mr Z.P., Mr T.K., Ms E.B. and Ms Y.K.), and the remaining witnesses. The second medical expert report came to the conclusion that the blow could have been administered when the applicant’s son had been on top of Mr I.M. and had been strangling him. That conclusion, as well as the report’s other conclusions, fully matched the statements of the witnesses. The court went on to say that there was no need for an additional psychiatric expert report. There was enough evidence to allow the conclusion that Mr I.M. had used excessive force out of fear. On 18 March 2003 the applicant appealed to the Plovdiv Court of Appeal, reiterating his arguments. However, an amendment to the 1974 Code of Criminal Procedure which came into force on 2 June 2003 (see Relevant domestic law below) removed the possibility of appealing against firstinstance court decisions reviewing discontinuances of preliminary investigations. Accordingly, on 3 June 2003 the Plovdiv Court of Appeal terminated the proceedings. According to information produced by the Government, the applicant has not tried to bring separate civil proceedings against Mr I.M. Article 12 of the 1968 Criminal Code provides for a defence of selfdefence. Under paragraph 1 of that provision, an act committed in selfdefence and not inflicting disproportionate damage on the attacker is not criminal. Excessive force is used if the defence is clearly out of proportion to the nature and dangerousness of the assault (paragraph 2). The use of excessive force is nevertheless not punishable if committed out of fear or bewilderment (at the relevant time paragraph 3, now paragraph 4). Article 115 of the Code makes it an offence to wilfully take the life of another. The penalty on conviction is ten to twenty years’ imprisonment. Article 118 of the Code provides that murder committed under provocation is punishable by one to eight years’ imprisonment. Aggravated cases carry a penalty of three to ten years’ imprisonment. Article 119 of the Code provides that homicide committed through the use of excessive force in selfdefence is punishable by up to five years’ imprisonment. Persons who have suffered damage from a publicly prosecutable criminal offence have a choice of either bringing an action against the alleged tortfeasor in the civil courts, with the result that the proceedings will be stayed in anticipation of the outcome of the pending or impending criminal investigation against the tortfeasor (Article 182 § 1 (d) of the 1952 Code of Civil Procedure, superseded by Article 229 § 1 (5) of the 2007 Code of Civil Procedure), or making a civilparty claim in the context of the criminal proceedings instituted by the prosecuting authorities (Article 60 § 1 of the 1974 Code of Criminal Procedure, superseded by Article 84 § 1 of the 2005 Code of Criminal Procedure). Until June 2003 a civilparty claim could be made even during a preliminary investigation, before the case had gone to trial (Article 60 § 1 of the 1974 Code, as in force until June 2003). At present it can be made only after the case has already been brought to trial (Article 60 § 1 of the 1974 Code, as in force after June 2003, and Article 84 § 1 of the 2005 Code). The claim can be made in writing or orally, and has to specify the claimants’ and the defendants’ names, the number of the criminal case, the offence which has caused the damage, and the nature and extent of the damage (Article 61 §§ 1 and 2 of the 1974 Code and Article 85 §§ 1 and 2 of the 2005 Code). In a judgment of 28 October 2002 the Supreme Court of Cassation accepted that it could be made even by simply taking an active part in the preliminary investigation (реш. № 541 от 28 октомври 2002 г. по н. д. № 420/2002 г., ВКС, I н. о.). Civilparty claimants are entitled to take part in the proceedings, inspect the case file and make copies, adduce evidence, make requests and objections, and challenge rulings which impinge on their rights and legitimate interests (Article 63 § 1 of the 1974 Code, superseded by Article 87 § 1 of the 2005 Code). Those rights can be exercised only in so far as necessary for establishing the wellfoundedness of the claim and the extent of the damage suffered (Article 63 § 2 of the 1974 Code, superseded by Article 87 § 2 of the 2005 Code). Under Article 64 § 2 of the 1974 Code (superseded by Article 88 § 2 of the 2005 Code) the examination of the civilparty claim cannot cause the criminal case to be adjourned. If the proceedings are discontinued, the claim is not determined, but can be lodged separately with the civil courts (Article 64 § 3 of the 1974 Code, superseded by Article 88 § 3 of the 2005 Code). The criminal court rules on the claim only when giving judgment on the merits of the criminal case, even if in that judgment it finds that the accused’s criminal liability has been extinguished (Article 305 of the 1974 Code, superseded by Article 307 of the 2005 Code; and реш. № 225 от 20 септември 2004 г. по н. д. № 849/2003, ВКС, II н. о.). Under Article 237 § 1 (1) of the Code, as in force until 31 December 1999, public prosecutors were to discontinue proceedings if they found that, inter alia, the acts alleged did not constitute an offence. Copies of the decision were to be served on the accused and the victim (paragraph 5 of the same Article), who were entitled to challenge it before a more senior prosecutor (paragraph 6 of the same Article). As worded after May 2001, Article 237 provided that the decision to discontinue the proceedings was reviewable by a firstinstance court, whose decision was in turn subject to appeal to a higher court (Article 344 § 1 of the Code, as in force between May 2001 and June 2003, and Article 345 § 1 of the Code) and, from there, on points of law (Article 349 § 5 of the Code, as in force between May 2001 and June 2003, and Article 353 of the Code). An amendment which came into force on 2 June 2003 removed the possibility of appealing against the firstinstance court’s decision. Section 46 of the 1951 Obligations and Contracts Act provides that no tort liability arises in cases of selfdefence. In a binding interpretative decision of 12 November 1973 (пост. № 12 от 29 ноември 1973 г. по н. д. № 11/ 73 г., Пленум на ВС) the former Supreme Court held that in cases where excessive force has been used in self-defence the individual defending himself is liable in tort, even if not subject to a criminal sanction under Article 12 § 4 (former § 3) of the 1968 Criminal Code (see above). The limitation period for bringing a tort claim is five years (section 110 of the 1951 Obligations and Contracts Act). By section 115(1)(h) of the Act, time ceases to run during the “pendency of the judicial proceedings relating to the [tort] claim”. In some cases the courts construed that phrase as meaning that time stops running not only during the pendency of a civil suit, but also during the pendency of criminal proceedings relating to the same facts, even at their preliminary investigation phase (реш. № 456 от 18 май 2000 г. по н. д. № 435/1999 г., ВКС, І н. о.). In other cases they held that even the bringing of a civil claim in the context of a preliminary investigation does not stop the running of time, because these proceedings are not “judicial” (реш. № 2110 от 28 март 2005 г. по гр. д. № 3159/ 2002 г., ВКС, ІІІ г. о.). The matter was settled by the General Assembly of the Civil and the Commercial Chambers of the Supreme Court of Cassation, which held, in a binding interpretative decision of 5 April 2006, that time stops running under section 115(1)(h) of the Act only when the victim brings a claim against the tortfeasor, whether in the context of the criminal proceedings or in separate civil proceedings (тълк. реш. № 5 от 5 април 2006 г. по тълк. д. № 5/2005 г., ОСГК и ОСТК на ВКС).