CASE OF KRASTANOV v. BULGARIA
Violation of Art. 3;Violation of Art. 6-1;Not necessary to examine P1-1;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
Christos Rozakis
7. The applicant was born in 1952 and lives in Sofia. 8. The applicant is a highschool teacher. At about 11.45 a.m. on 2 March 1995 he went to a café with two of his work colleagues. 9. At about 12 noon seven or eight police officers with masks on their heads rushed into the café. 10. Subsequently it was established that they were officers of the Ministry of Internal Affairs, the Special Anti-Terrorism Squad („Специализиран отряд за борба с тероризма“) and the Central Service for Combating Organised Crime („Централна служба за борба с организираната престъпност“) and that they were conducting an operation for the arrest of several persons suspected of criminal offences who were apparently known to go regularly to that café. 11. The officers shouted “Police!” and ordered everyone in the café to lie down, put their hands up and close their eyes. The applicant asked where exactly he should put his hands. One of the officers told him that he should put his hands behind his neck. The applicant did so and lay down on the bench on which he had been sitting. He remained in this position for about two or three minutes, during which he was hit two or three times on the head with a solid object. After that he was ordered to go out of the café. The applicant asked why he had been hit, since he had done nothing to provoke this. He also said that he had difficulties moving because he was feeling a strong pain in his head and was losing blood. The police officers threatened the applicant and swore at him, using abusive language. They dragged him outside the café, hit him several times and threw him down on the ground. The applicant was hit several times in the head with the butt of a gun and received several kicks in the ribs. After that the officers ordered the applicant to produce his identity papers. He handed his wallet to an officer who checked the papers. At that point the applicant’s colleagues managed to explain that there had apparently been some kind of confusion as to the applicant’s identity and the beating stopped. The officers told the applicant that they had mistaken him for another person and apologised. 12. The applicant crossed the street with the help of his two colleagues and then lost consciousness. An ambulance was called which brought him to the neurosurgical ward of the Medical Academy in Sofia. 13. The applicant was examined by the emergency ward team. It was found that he had a cerebral trauma with an epidural haematoma in his left temporal area, cerebral contusion, polyfragmentary fracture of the left temporal bone, fracture of the ninth rib on the right side of the thorax and a subcutaneous emphysema in the right thoracic half. Six hours after his admission to hospital it was decided that urgent head surgery was needed. The applicant underwent decompressive craniotomy in the left temporal area, evacuation of the epidural haematoma and coagulation of the damaged arteria meningica media at the left side of his head. 14. The applicant remained in hospital until 13 March 1995. 15. During the following five or six months he was experiencing pain and had to be treated with analgesics and vasodilatory drugs. He was on sick leave until 27 November 1995. 16. The applicant was directed for another operation, which he could not afford financially. 17. On 10 September 1998 the competent commission for assessing disability issued a decision stating that the applicant suffered from second degree disability. The diagnosis on which this decision was based was the following: traumatic subdural subarachnoid and extradural haemorrhage, posttraumatic and postoperative status in respect of an acute epidural haematoma in the left temporal area, defect after a depressive polyfragmentary fracture of the left temporal bone, posttraumatic encephalopathy, quadripyramidal syndrome, latent hemiparesis on the right side, central subcompensated otoneurological syndrome, neuritis of the left auditory nerve (light degree), postfractural status of the ninth rib at the right side, arterial hypertension. 18. On 26 May 1995 the applicant took proceedings under the State Responsibility for Damage Act against the Ministry of Internal Affairs, the Central Service for Combating Organised Crime, the Specialised AntiTerrorism Squad and the Sofia City Directorate of Internal Affairs. He alleged, in particular, that officers of those entities had illtreated him in violation of the relevant rules for the use of force by the police. He claimed 500,000 Bulgarian levs (BGL) as compensation for nonpecuniary damage and BGL 100,000 as compensation for pecuniary damage. 19. A prosecutor took part in the proceedings ex officio, as required by section 10(1) of the State Responsibility for Damage Act (see paragraph 46 below). 20. The first hearing was held on 2 October 1995. The applicant provided particulars of his claim for compensation for pecuniary damage. The defendants did not dispute most of the facts alleged by the applicant, but maintained, inter alia, that he had provoked the beating through his inadequate behaviour, that the use of force by the police had been lawful and that they were not liable for damage caused in the course of police operations. They also disputed the amount of compensation sought. The Sofia City Directorate of Internal Affairs submitted that it was not liable because it had not participated in the planning or the execution of the operation on 2 March 1995. The applicant requested the defendants to provide a copy of the order pursuant to which the operation had been carried out, in order to clarify whose officers had participated in it. He also presented written evidence and asked for leave to call witnesses. The court admitted the written evidence, gave leave to the applicant to call witnesses, ordered an accounting and a medical expert reports and directed the defendants to provide a copy of the order pursuant to which the operation had been carried out. 21. The next hearing was held on 19 February 1996. The court heard a witness called by the applicant, the applicant in person, and the medical and accounting experts. It admitted their reports in evidence. Counsel for the Specialised AntiTerrorism Squad stated that the order pursuant to which the 2 March 1995 operation had been carried out was classified and a copy could be produced only if the court made a special ruling to that effect. The court agreed and adjourned the case. 22. The third hearing took place on 20 May 1996. The order pursuant to which the operation of 2 March 1995 had been carried out was admitted in evidence. The court allowed the applicant to adduce further written evidence and adjourned the case. 23. The hearing listed for 10 June 1996 did not take place because the Sofia City Directorate of Internal Affairs had not been duly summoned. 24. The fourth and last hearing was held on 30 September 1996. The court heard the parties’ closing arguments. In his observations the prosecutor who participated in the proceedings ex officio concluded that the applicant’s averments of illtreatment were true and that his action was wellfounded. 25. The Sofia City Court gave judgment on 4 November 1996. It found that the police officers involved in the 2 March 1995 incident had used force uncalled for, in breach of the National Police Act which regulated the use of force by the police. It further found that the use of force had not been provoked in any way by the applicant and accordingly rejected the defendants’ argument of contributory negligence. The court found that the police officers had been employed by the first three defendants (the Ministry of Internal Affairs, the Central Service for Combating Organised Crime and the Specialised Anti-Terrorism Squad), but not by the fourth defendant (the Sofia City Directorate of Internal Affairs). Finally, it found that the applicant had sustained damage due to the unlawful behaviour of the officers. It awarded the applicant the whole amount of the compensation for nonpecuniary damage sought (BGL 500,000) and partially dismissed his claim for compensation for pecuniary damage, awarding him BGL 63,064.57 under that head. The court ordered that both amounts should bear interest at the statutory rate starting from 2 March 1995 until settlement. The first three defendants were ordered to pay jointly and severally. 26. On 26 November 1996 the Ministry of the Internal Affairs appealed against the judgment to the Supreme Court. The Central Service for Combating Organised Crime also appealed on 2 December 1996. The Ministry’s appeal concerned only the amount of the compensation for nonpecuniary damage awarded to the applicant, whereas the Central Service for Combating Organised Crime’s appeal concerned the awards of compensation for both pecuniary and nonpecuniary damage. 27. Copies of the appeals were served on the other parties to the case. As the Specialised AntiTerrorism Squad had changed its address, the initial service of process, having been made at its old address, had to be repeated at the new one. 28. On 28 October 1997 the case file was sent to the Supreme Court. 29. In December 1997 the Code of Civil Procedure (“the CCP”) was amended to provide for threeinstance proceedings. Accordingly, all appeals which had been filed with the Supreme Court prior to the amendment were to be forwarded to the newly created courts of appeals. The amendment entered into force on 1 April 1998. 30. On 1 April 1998 the Supreme Court of Cassation forwarded the appeals to the newly created Sofia Court of Appeals. 31. On 9 July 1998 the Sofia Court of Appeals, acting in pursuance of the new rules of civil procedure adopted with the 1997 amendment of the CCP, instructed the appellants – the Ministry of Internal Affairs and the Central Service for Combating Organised Crime – to indicate which parts of the judgment below they were appealing against and why they considered that that judgment was erroneous. 32. On 29 July 1998 the Central Service for Combating Organised Crime complied with the court’s instructions, submitting an amended appeal in which it specified that it was appealing only against the amount of nonpecuniary compensation awarded to the applicant, because it considered that the Sofia City Court had erroneously assessed the extent of the damage suffered by him. 33. On 30 July 1998 the Ministry of Internal Affairs withdrew its appeal and on 24 August 1998 the Sofia Court of Appeals discontinued the proceedings in respect of that appellant. 34. A hearing listed for 29 October 1998 did not take place, because the Sofia Appellate Prosecutor’s Office, which had to participate in the proceedings ex officio, had not been duly summoned. 35. A hearing fixed for 18 February 1999 was adjourned because counsel for the applicant was ill and could not attend. 36. A hearing was held on 15 April 1999. The parties did not submit additional evidence. The court heard their closing argument and accepted their written observations. The Central Service for Combating Organised Crime reiterated its position that the claim for compensation for nonpecuniary damage, allowed in full by the Sofia City Court, was excessive, in particular because the applicant had contributed to the inflicting of his injuries through his inadequate behaviour during the 2 March 1995 incident. 37. The Sofia Court of Appeals gave judgment on 5 May 1999. It held that the applicant had been illtreated by police officers, that he had not contributed in any way to that and that as a result of the illtreatment he had sustained serious injuries. Accordingly, the court upheld the Sofia City Court’s judgment. No appeal having been lodged within the statutory timelimit, the judgment entered into force on 27 May 1999. 38. On 24 June 1999 the applicant’s lawyer requested the Sofia City Court to issue a writ of execution pursuant to the judgment. On 29 June the court issued such a writ against the Ministry of Internal Affairs, the Central Service for Combating Organised Crime and the Specialised AntiTerrorism Squad. 39. On 5 July 1999 a monetary reform took place, whereby BGL 1,000 became 1 new Bulgarian lev (BGN). 40. On 12 July 1999 the applicant presented the writ of execution to the financial department of the Ministry of Internal Affairs and four days later, on 16 July, he received the compensation awarded to him by the courts together with the interest accrued. He was altogether paid BGN 2249.84, BGN 563.06 representing the principal amount of compensation awarded by the courts (BGN 500 for nonpecuniary damage and BGN 63.06 for pecuniary damage), BGN 1,570.80 representing interest, and the remainder costs and expenses for the proceedings. 41. The Government submitted that an internal inquiry had been carried out by the Ministry of Internal Affairs in relation to the events of 2 March 1995, but that they had not been able to find any documents relating to that inquiry in the archive of the Ministry. The applicant submitted that he knew of the existence of a preliminary inquiry carried out by the prosecution authorities, but that he had no information about it. 42. Section 40(1) of the National Police Act, as in force at the material time, read, as relevant: “... [P]olice [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 a police [officer]; ... 5. attack against citizens or police [officers]; ...” Section 41(2) provided that the use of force had to be commensurate to, in particular, the specific circumstances and the personality of the offender. Section 41(3) imposed upon police officers the duty to “protect, if possible, the health ... of persons against whom [force was being used]”. 43. Articles 128, 129 and 130 of the Criminal Code (“the CC”) make it an offence to cause a light, intermediate or severe bodily injury to another. Article 131 § 1 (2) provides that if the injury is caused by a police officer in the course of or in connection with the performance of his or her duties, the offence is an aggravated one. This offence is a publicly prosecutable one (Article 161 of the CC). 44. Under Bulgarian law criminal proceedings for publicly prosecutable offences can be opened only by the decision of a prosecutor or an investigator (Article 192 of the Code of Criminal Procedure (“the CCrP”)). The prosecutor or the investigator must open an investigation whenever he or she receives information, supported by sufficient evidence, that an offence might have been committed (Articles 187 and 190 of the CCrP). During the relevant period the CCrP provided that if the information to the prosecuting authorities was not supported by evidence, the prosecutor had to order a preliminary inquiry (verification) in order to determine whether the opening of a criminal investigation was warranted (Article 191 of the CCrP). 45. Section 1 of the State Responsibility for Damage Act of 1988 („Закон за отговорността на държавата за вреди, причинени на граждани“) provides that the State is liable for damage suffered by private persons as a result of the unlawful acts of civil servants, committed in the course of or in connection with the performance of their duties. The State’s liability is strict, i.e. no fault is required on the part of the civil servants in the commission of the unlawful acts (section 4 in fine). 46. Section 7 of the Act provides that the action in responsibility must be brought against the authority by whom the civil servant concerned is employed. A prosecutor participates in the proceedings ex officio (section 10(1)).