CASE OF MIHAYLOVA AND MALINOVA v. BULGARIA
Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)
George Nicolaou;Guido Raimondi;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva
5. The applicants, daughter and mother, were born respectively in 2001 and 1980 and live in Samokov. Mr Boris Mihaylov, the victim of the police action in question, was a young Roma man: the first applicant’s father and the second applicant’s unmarried partner. The facts of the case, as submitted by the parties, can be summarised as follows. 6. Late in the evening of 3 August 2004, while driving in the centre of Samokov, KK noticed three individuals who were trying to open the doors of a parked lorry. Mr Mihaylov was one of these men. KK called the police. Shortly afterwards, two on-duty police officers from the Samokov District Police Unit, Chief Sergeants S and M, who at that time had been responding to another call, received information from the central office that three “gypsies” had been seen breaking into a lorry and the officers drove immediately to the scene. 7. When the police car, apparently with its siren on, approached the lorry, the three men started running. The officers followed by car. When the street became narrower, they got out of the car and separated, with Chief Sergeant S chasing Mr Mihaylov while Sergeant M followed the other two men, whom he was unable to catch. Chief Sergeant S caught up with Mr Mihaylov by the side of the street, close to a parked car. A short fight followed, and two shots were fired. One of the bullets, fired at very close range, entered the left back of Mr Mihaylov’s head and exited through the right side of his forehead. An ambulance was called and Mr Mihaylov was taken to a hospital where his death was registered at 00.10 a.m. on 4 August 2004. 8. On the same day a criminal investigation (VII-20/2004) was opened against Chief Sergeant S to establish whether he caused Mr Mihaylov’s death as a result of a disproportionate reaction to an attack (Article 119 of the Criminal Code: see paragraph 42 below). At this stage no charge was brought against him. 9. An autopsy was carried out on Mr Mihaylov’s body on 4 August 2004. In his report the forensic pathologist determined that death had resulted from a severe cerebral trauma and ensuing cardiovascular insufficiency. The trauma was caused by a transitory gunshot: the entry wound was located on the left side of the back of Mr Mihaylov’s head and the exit wound on the right side of the forehead towards the temporal bone. The shot was fired from a distance close to point-blank range. The expert noted that, as the head could move in different directions, on the basis of the route of the bullet it was difficult to establish the dynamic position of the victim’s body in relation to the gun at the moment of shooting. He also noted several bruises on the right side of Mr Mihaylov’s face, his right hand and both knees, which he concluded had in all probability resulted from the fall to the ground after the shooting. 10. The pathologist also examined Chief Sergeant S. He noted a reddishpink bruise on his right hand, measuring 0.5 centimetres long, and another bruise measuring 0.5 by 0.8 centimetres on his right side. The pathologist concluded that the injuries could have been inflicted in the manner described by the police officer, namely when he was trying to knock the knife from Mr Mihaylov’s hand and during the struggle for the gun. 11. An inspection of the scene was carried out at 2.20 a.m. on 4 August 2004 by a military investigator in the presence of two certifying witnesses. There was no subsequent day-light examination. The investigator examined the bonnet of the car next to which Mr Mihaylov’s body was found and noted a dent of 3.5 centimetres located at 0.98 metres from the front left corner and 1.03 metres from the front right corner as well as a bullet hole measuring 3 centimetres situated at 1.17 metres from the front left corner and 0.77 metres from the front right corner of the bonnet; blood stains on the bonnet and on the ground next to the car; and another dent with freshly peeling paint on the metal wall of the building to the left of the car. Photographs were taken of the dent and the bullet hole on the bonnet but these were not preserved as physical evidence, nor were impressions made of the dents and bullet holes. The vehicle was not taken away for examination and its owner, a security firm, repaired and sold it before the investigation was formally completed. 12. The investigator found a handgun on the ground under the bonnet of the parked car. The safety lever was lifted and there was one bullet in the barrel and two in the magazine. The investigator found and retrieved one spent cartridge case, on the other side of the street, two to three metres from the parked car where Mr Mihaylov was shot, but no bullets. During the subsequent stages of the investigation proceedings the initial number of cartridges in the officer’s gun was not clarified, nor was it determined how many shots were fired, including whether a warning shot was fired. The statements of the Chief Sergeant S were contradictory on this subject. In his testimony of 4 August 2004 he S stated that he had started with five cartridges in his handgun but on 10 September 2004 he changed his testimony, maintaining that he had had six cartridges. 13. A fingerprint report of 9 August 2004 did not record any traces of fingerprints on the handgun suitable for examination. The report on the acetone-drenched swabs of Chief Sergeant S’s hands of 11 August 2004 found no traces of gunpowder residue. The expert report on Chief Sergeant S’s handgun of 25 August 2004 concluded, inter alia, that it had been in good condition and would have discharged a shot only after the trigger was pulled. 14. During the inspection of the scene of the killing which took place in the early hours of 4 August 2004, the investigating officer found a folding knife, with an eight centimetre blade and a ten centimetre metal handle. The protocol of the search stated that it was found on the bonnet of a car parked across the street from the death scene but it did not state whether the blade was open when it was found. It seems that no steps were taken to check for fingerprints on the knife or to determine its ownership. A mobile telephone was found in a stone vase near the scene of the shooting, but the subsequent investigation did not determine who owned it. 15. The investigator questioned Chief Sergeant S, his colleague Chief Sergeant M and the three security guards who had been standing in the vicinity of the scene at the time of the events. 16. Questioned in the early hours of 4 August 2004, Chief Sergeant S stated that Mr Mihaylov had been running with his arms open wide while trying to escape. As the sergeant caught up to him, Mr Mihaylov had stopped and turned round. At this point Chief Sergeant S noticed that he held a knife, but it was dark and he could not see it well. Mr Mihaylov swung at the sergeant with his left hand, and the officer tried in vain to knock the knife away. Mr Mihaylov then grasped him tightly with both hands behind his back, while reaching for the handgun, which was in the officer’s unbuttoned holster at his waist. The two men had fought briefly for possession of the gun. Chief Sergeant S stated that he felt strongly afraid: it was dark, the other man had his hand on the officer’s loaded gun and was armed with a knife. The officer could not remember the exact position of their bodies in the fight that ensued for the gun and at the moment when the shots were fired, nor could he remember how many shots were involved. He had been expecting the man to shoot or stab him at any moment. 17. Questioned later, Chief Sergeant S stated that after the first shot was fired he panicked and could not remember what happened. In his subsequent statements he explained that he had been stabbed on earlier occasions while on duty, which had made him particularly fearful of knives. He was not even aware who actually pulled the trigger and at one moment he had feared that he had been shot, rather than Mr Mihaylov. 18. Throughout the subsequent proceedings the only testimony about the detail of the fight remained that of Chief Sergeant S. The other officer involved in the chase, Chief Sergeant M, and some other eye witnesses were also questioned in the early hours of 4 August 2004. Chief Sergeant M stated that he telephoned Chief Sergeant S when he lost sight of the other two suspects, to discuss how to proceed. Chief Sergeant S asked him to come to him immediately. When he arrived at the site there were a lot of people and he saw a man taken away by ambulance. Chief Sergeant S’s handgun was beneath a car and there was a blood stain on the ground next to the car. His colleague was extremely upset and told him that he had done the worst. There was a pocket knife on the bonnet of another car nearby. 19. At the time of the events, three employees of a private security company, GK, EK and GD, were chatting in front of their office, which was in a building adjacent to the street where Mr Mihaylov was shot. They were interviewed on five occasions and their statements were inconsistent, both in respect of each man’s previous statements and the statements given by the other men. Their statements varied as regards whether they heard a warning shot, how many shots were fired and whether they saw a knife in Mr Mihaylov’s hand. Some of them remembered the officer warning Mr Mihaylov from a distance to stop and lie down. All of them stated that the events unfolded within seconds and that they could not see what exactly happened when the police officer came into contact with Mr Mihaylov because it was dark. None of them had seen a knife or a gun in the hands of Mr Mihaylov or Chief Sergeant S in this short time, although they saw them afterwards. They agreed that when Chief Sergeant S, who had fallen to the ground with Mr Mihaylov, stood up, he was holding a knife, which he threw and which fell on the bonnet of a car parked on the other side of the street. The officer had been very upset, and appeared to be in a state of shock, waving his arms around, pacing up and down and repeatedly proclaiming: “What did I do?” 20. Later in the proceedings it transpired that there was a camera installed above the entrance door of the security company building, facing the street. The car next to which the shooting took place was parked on the opposite side of the street, at a short distance from where the men were standing. In his testimony of 18 October 2007, GK stated that on the night of the incident the security camera installed above the entrance to the building in which they worked had been broken. Another witness stated that the camera did not record footage, but only monitored the street outside, and was used by the night shift security guards to observe the firm’s vehicles. The guard on duty on the night of the shooting was GD. He was standing outside with the other two witnesses. There was also a dispatcher whose desk was below the monitor screen, but according to GK she could not see it. During his interview of the same day EK stated that he could not remember which dispatcher was on duty that night and that at that time the dispatchers employed by the firm were all new employees of the company. The camera was not inspected and none of the other employees of the firm were interviewed on this point during the investigation. 21. On 30 September 2004 the investigating officer completed his work on case-file VII-20/2004. In his findings on the facts he described the unfolding events in detail as follows: “On 3 August 2004 the operator on duty at the district police station of Samokov Chief Sergeant KB, a witness, took a call from a private person KK who reported that three men were preparing to commit theft from a lorry parked on Tzar Boris III Street. The lorry belonged to Markan Ltd – it was left parked in the street with its signal lights on by GS, who worked as a supplier for Markan Ltd. The operator dispatched patrol officers Chief Sergeant SM and Chief Sergeant VS to the location in question. When the patrol vehicle approached the lorry on Tzar Boris III Street the three men who were around and inside the lorry attempted to escape and started running in the direction of the town centre. The patrol vehicle followed them along Tzar Boris III Street when two of the men ran towards the town centre and one ran towards Otez Paisii Street. Chief Sergeant SM went in pursuit of the two men running towards the town centre and Chief Sergeant VS followed the man who had gone in the direction of Otez Paisii Street; VS fired a warning shot in the air – using a ‘stop’ bullet. On Otez Paisii Street in proximity to Treger Café, and in front of building No. 5 Chief Sergeant VS caught up to the running man who while running had a mobile telephone in one of his hands and a pocket knife in the other. At this moment VS had already put his Makarov KT 23389 pistol into the holster on his hip so that he could run faster, and at the time there was a live bullet in the barrel of the pistol after the firing of the warning shot. VS was wearing a uniform, he had got off a police vehicle bearing insignia, he had shouted to the running man ‘Stop! Police! Get down on the ground!’ but the man had not stopped running. In front of the building on Otez Paisii Street BM stopped running, turned to face the police officer and swung at him with his hand which held a pocket knife. VS saw the blade in the street light and blocked the hand of the man. Without letting go of the knife, BM threw himself on VS, grabbed him around his waist while holding his arms, and attempted to take the gun out of VS’s holster. VS took hold of BM’s hand which was holding the gun, and then BM pushed VS onto the bonnet of an Opel with number plates CO 5486 KA which was parked nearby. As he was falling, V.S. managed to extricate himself from under B.M., while B.M. kept holding on to his gun with one of his hands, and holding the knife in the other. At the same time VS had both his hands on BM’s hand with which he was trying to take the gun out of the holster. BM had managed to take out the gun while VS held his hand – as a shot was fired and the bullet hit the metal wall of the building of Treger Café. The direction of that shot was to the side and away from the place of the incident, which means that this shot was not fired as a warning shot. After the shooting, because of the fear for his life which he had experienced, VS was in a state of extreme stress and he was not able to recollect the events in detail. The struggle between the two was observed by three witnesses: GD, GK and EK who were standing in front of the building at Otez Paisii No. 5 and who did not interfere. Their testimonies confirm that BM had stopped running and had started to wrestle with VS. However, because of the stress, the dim light and the speed of the events the witnesses cannot recall details about the manner in which BM was shot and the position of the two men’s bodies in relation to one another at the time of the shooting. From the appearance and the location of the gun wound on BM’s head and the gunshot hole found in the bonnet of Opel CO 5486 KA, it is evident that after the first shot was fired, VS had managed to regain possession of the gun and shoot him in the head at close range. After the shooting VS was in a state of shock: he dropped the gun on the ground, he was moving erratically, he was bending down to BM who was lying on the ground, he took the knife from BM’s hand and threw it onto the bonnet of Opel C 3034 ПХ. At this moment Chief Sergeant SM was in the town centre and he placed a call to VS’s mobile; VS told him that trouble had occurred and SM called the operator to dispatch support. KB, the operator on duty, sent a patrol vehicle and an ambulance. BM was taken to the hospital in Samokov where in spite of the medical assistance he passed away from a traumatic head injury followed by shock and coma that led to irreversible heart and lung failure. In his 20 years of service with the Ministry of Interior Chief Sergeant VS has never been disciplined; he was awarded four times. The man who was killed, BM, had committed a large number of offences. He has been registered for 12 thefts and two robberies. He was convicted five times for the following crimes: ....” Based on these findings, the investigator proposed to the prosecutor to discontinue the investigation since he considered that Chief Sergeant S had acted in self-defence within the meaning of Article 12a of the Criminal Code (see paragraph 42 below), which in his view meant that the acts of the police were not liable to prosecution. He further indicated that “even if there was no danger to the officer’s life, Chief Sergeant S was authorised to use a firearm in such circumstances, although he did not do so until his life was threatened”. 22. On 6 October 2004 the applicants’ counsel requested access to the investigation file. On 29 October 2004 a prosecutor from the Sofia military prosecutor’s office dismissed the request, on the grounds that at this stage the applicants were not participating in the criminal proceedings. 23. In a decree of the same day the prosecutor discontinued the criminal proceedings against Chief Sergeant S, stating that the officer had shot Mr Mihaylov but that this had not constituted an offence. In reaching his conclusion, the prosecutor found it established that, when running, Mr Mihaylov had been holding a mobile telephone in one hand and a knife in the other. At some point he had stopped abruptly, had turned around and had swung at the officer with the knife. When the officer had tried to knock away the knife, Mr Mihaylov had wrestled with him, tried to reach the officer’s handgun, and pushed him onto the bonnet of the car. A short struggle for the gun had followed and one shot had been fired accidentally. Following that, according to the prosecutor, the officer had managed to get hold of the gun and shoot Mr Mihaylov. As the victim had still been holding the knife, the police officer took it from his hands and threw it away. In the prosecutor’s view Mr Mihaylov attacked the officer in order to avoid arrest and also to help his accomplices, who at that time were running away with a cassette player stolen from the lorry. 24. On the basis of this account of the facts, the prosecutor reached the following conclusions. First, he concluded that Mr Mihaylov had attacked Chief Sergeant S. Secondly, the reaction of the police officer, who had shot Mr Mihaylov, had not been disproportionate to the attack. Chief Sergeant S had acted in self-defence against a much younger man who had been holding a knife. Because of the weak light and the speed of the events, the circumstances of the shooting and the position of the bodies could not be established. Thirdly, once Chief Sergeant S identified himself as a police officer and fired a warning shot he was entitled under Article 12a of the Criminal Code (see paragraph 42 below) to use force to arrest Mr Mihaylov, even if it had not been necessary to act in self-defence. The prosecutor also noted that Chief Sergeant S had never been disciplined but had been commended a number of times and that Mr Mihaylov had been known to the police and had been convicted five times. The fact that Mr Mihaylov held the knife in his left hand and that he must have used the same hand to grasp the gun of the officer, who was facing him, was not given attention. 25. In response to the applicants’ counsel’s appeal, by a decision of 13 December 2004 the Sofia Military Court quashed the prosecutor’s decree, finding that the prosecutor’s account of the events was based on arbitrary and contradictory assumptions rather than on established facts; the interviews of the witnesses had been formalistic and their statements were vague and contradictory. In particular, the prosecutor had failed to establish the number of shots fired, the position of the two bodies at the time of the fatal shooting, the trajectory of the bullet and the position of the victim’s head in relation to the barrel of the gun. The court also noted that the prosecutor had failed to give reasons for his conclusions regarding the applicability of the rules on self-defence or Article 12a of the Criminal Code (see paragraph 42 below). In view of those shortcomings the court remitted the case and instructed the prosecutor to re-interview the eyewitnesses; if possible, to find and interview other witnesses; to have prepared a medicalballistics report in order to establish, in particular, the position of the bodies and the trajectory of the bullet; and to organise a reconstruction of the events in order to verify the witnesses’ statements. 26. In execution of the court’s instructions, on 19 January 2005 the investigator commissioned a medical-ballistics report. The authors of the report made no mention of the bullet hole in the car bonnet and concluded that they could not determine the exact position of the two bodies at the time of the shooting. They found that at the moment of the shooting the gun was almost touching the back left side of Mr Mihaylov’s head, and that it had been pointing upwards and slightly to the right. 27. The investigator questioned Chief Sergeant S on 17 January 2005. Relying on his status as a witness, the sergeant refused to take part in a reconstruction, claiming that he had received threats from the Roma community in Samokov. On 11 August 2005 the investigator was discharged from the case for his failure to comply with the court’s directions and a new investigator was appointed. The new investigator questioned the three security guard eyewitnesses on 13 September and 20 September 2005 and he questioned Chief Sergeant S on 12 September 2005 and on 13 January and 1 February 2006. Chief Sergeant S maintained that he had acted in self-defence and in accordance with the rules governing the use of force. He was in shock and unable to remember the exact positions of himself and Mr Mihaylov when the latter was shot. 28. In a decree of 16 March 2006 the prosecutor discontinued the criminal proceedings on the grounds that the police officer had not committed an offence. The applicants again sought judicial review. In a decision of 13 June 2006 the Sofia Military Court quashed the prosecutor’s decree and remitted the case for further investigation. The court stated that the investigative authorities had failed to comply with the court’s previous directions and had thus obstructed the investigation. It noted again that the interviews of the witnesses had been formalistic, that their statements were contradictory and that the investigative authorities had failed to organise a reconstruction or confrontations in order to clarify the facts. The court noted that the forensic evidence suggested that at the moment of the shooting Mr Mihaylov had been facing the bonnet of the car. Also, the investigative authorities had never established the exact number of cartridges fired and the statements of Chief Sergeant S were inconsistent on this point. The court further noted that the experts who had carried out the medical-ballistics report had failed to discuss the bullet hole in the car bonnet. Furthermore, the investigative authorities had failed to inspect the knife and to analyse the circumstances surrounding its use or to inspect the mobile telephone and its whereabouts at the time of the events. 29. Following the remittal, the investigator re-questioned the security guards. They stated that they had only vague memories of the incident and refused to participate in a reconstruction. Chief Sergeant S again refused to give a further statement or to participate in a reconstruction. The fingerprint expert report on the knife of 26 July 2006 found no fingerprints suitable for examination. 30. On 13 October 2006 the applicants’ counsel examined the investigation file and requested the collection of additional evidence, namely that steps be taken to seek out other witnesses; that the certifying witnesses who had participated in the inspection of the crime scene early in the morning following the incident be questioned; that the two police officers be re-interviewed with a view to clarifying whether they had followed a preliminary plan for the arrest of Mr Mihaylov and his companions; that an additional medical-ballistics report be prepared to clarify the position of the bodies, in particular whether Mr Mihaylov had been neutralised at the moment of the fatal shooting, and the number of cartridges in the handgun as it had not been clear how many shots had been fired in total. She also demanded the inspection of the security camera, installed above the entrance of the building opposite the site of the shooting; a reconstruction of the events; and an identification by Mr Mihaylov’s family of the knife found at the scene. On 7 November 2006 these requests were rejected by the prosecutor on the grounds that they were aimed at delaying the proceedings. The prosecutor noted, inter alia, that any video recordings made by the camera belonging to the security firm would not qualify as evidence under the Criminal Procedure Act. 31. In a decree of 10 November 2006 the prosecutor discontinued the criminal proceedings since he considered that Chief Sergeant S had not committed an offence. In relation to the court’s instructions regarding further inquiries, the prosecutor stated that, despite efforts made, no other eyewitnesses had been identified; the inspection of the knife had not revealed any new evidence; it had been impossible to establish the owner of the mobile telephone; and that a reconstruction of the events would have been futile as Chief Sergeant S refused to take part owing to a justified fear of violence from the relatives of the victim and members of the Roma community. The prosecutor stated that when the fight had started Chief Sergeant S and Mr Mihaylov had fallen on the bonnet of the car. The prosecutor did not come to any conclusion as to whether Mr Mihaylov had been holding the knife when the fatal shot was fired, but noted only that at that moment the officer had been very afraid. The prosecutor reproduced the legal conclusions on the rules of self-defence under Article 12a of the Criminal Code, contained in the decree of 29 October 2004 (see paragraphs 23-24 above). Relying on unspecified information about injuries inflicted on Chief Sergeant S during earlier police operations, the prosecutor concluded that the latter should not be punished because he had acted in a state of acute fear. 32. The applicants challenged the decree, claiming, inter alia, that the authorities, influenced by their prejudice towards Roma, had conducted only a formalistic investigation. In a decision of 22 November 2006 the Sofia Military Court quashed the decree and remitted the case to the prosecutor. It held that the investigative authorities had failed to comply with the instructions given by the court in previous decisions and that they had intentionally protracted the investigation and failed to employ any meaningful efforts to establish the truth. The court noted, inter alia, that the exact circumstances of the fight and the shooting had not been established; that no reconstruction had been organised and no valid reasons given for this omission; and that the authorities had also failed to conduct confrontations, inspections of the knife and the mobile telephone or to order an additional medical-ballistics report. 33. Following the remittal by the Sofia Military Court, on 16 March 2007 the investigator arranged for an inspection of the knife, but this failed to determine whether the blade had been open or closed at the time of the shooting. A further medical-ballistics report, dated 27 March 2007, made no reference to the bullet hole in the bonnet of the car and concluded that it was impossible to establish the exact position of the bodies at the time of the shooting. The investigator also requested Chief Sergeant S to take part in confrontations with GD and GK, and a reconstruction, but the Chief Sergeant refused to participate. 34. On 21 April 2007 the applicants’ counsel repeated her earlier requests for additional investigative measures. In a decree of 31 May 2007 the prosecutor again discontinued the criminal proceedings. He repeated verbatim the reasoning given in the decree of 10 November 2006, but added as an additional ground that Chief Sergeant S had been suffering from fear and confusion and that in these circumstances, as a matter of domestic law, there had been no excess of force. The applicants sought judicial review. In a decision of 27 June 2007 the Sofia Military Court quashed the prosecutor’s decree and remitted the case for further investigation. The court stated that despite the numerous remittals the prosecutor had repeatedly failed to comply with the court’s instructions and that the actions of the authorities and the measures employed had been a parody of an investigation, revealing unwillingness to collect the evidence and establish the truth. 35. Following the remittal the investigator questioned the three security guards, Chief Sergeant M and two additional witnesses, as requested by the applicants. During the interview of GD on 18 October 2007, the investigator in one question referred to Mr Mihaylov as “the gypsy”. On 5 December 2007 the investigator organised a reconstruction of the events. Chief Sergeant S did not take part, relying on his capacity as a witness. A further ballistics report dated 14 December 2007 found, in particular, that on the basis of photographs it had not been possible to establish the morphology, character and orientation of the bullet hole and thus the exact position of the bodies at the time of the shooting. Meanwhile, it appears that around this time the prosecutor in charge of the investigation stated that he disagreed with the court’s instructions and requested to be allowed to withdraw from the case. It appears that this request was not granted, as he continued working on the case. 36. In a decree of 9 January 2008 the prosecutor discontinued the criminal proceedings finding, as before, that the police officer had shot Mr Mihaylov to defend himself from the latter’s attack and that the use of force had, in any case, been justified under Article 12a of the Criminal Code (see paragraph 42 below) once the police officer had asked Mr Mihaylov to stop and had fired a warning shot. The prosecutor noted, in support of his finding of self-defence, that an offender with a criminal record had attempted to attack a police officer, who had never been disciplined and who had received awards. The applicants sought judicial review, contending, inter alia, that the authorities had not bothered to carry out an effective investigation because of Mr Mihaylov’s ethnicity and low social status. The Sofia Military Court upheld the prosecutor’s decree. Upon the appeal of the applicants, in a decision of 22 July 2008, the Military Court of Appeal set aside the lower court’s decision. The Court of Appeal raised serious doubts in respect of the prosecutor’s impartiality. It further noted the prosecutor’s failure to establish who had fired the fatal shot and in what circumstances. The court also held that on the basis of the evidence collected, namely the eyewitnesses’ testimony that the shooting had taken place on the car’s bonnet and the conclusions of the medical-ballistics report about the channel of the wound, it was clear that at the moment of the lethal shooting Mr Mihaylov had been facing the bonnet of the car and the police officer had fired from behind. Thus the court found that immediately before the shooting the police officer had had full control over the victim, the use of force had not been necessary and there was sufficient evidence that the police officer had intentionally killed Mr Mihaylov. The court remitted the case, instructing the prosecutor to bring charges against the sergeant for murder as well as to discharge anybody who had demonstrated partiality from working on the case. 37. On 1 December 2008 a newly-appointed prosecutor laid charges against Chief Sergeant S for causing death as a result of a disproportionate reaction to an attack. However, two weeks later, in a decree of 15 December 2008, the prosecutor discontinued the criminal proceedings against Chief Sergeant S, using almost identical reasoning to that in the decree of 9 January 2008, with some additional findings, some of which appeared contradictory. For example, at one point in the decree the prosecutor found that Mr Mihaylov had dropped the knife before he had reached for the sergeant’s handgun, but subsequently he found that Mr Mihaylov had dropped the knife at the moment the fatal shot was fired. The prosecutor also referred to the police officer’s fear of knives as justification for using force. Chief Sergeant S had claimed in his testimony of 12 September 2005 that he had developed a fear of knives after he was stabbed while making another arrest a year before the incident with Mr Mihaylov. No assessment of the police officer’s psychological condition or his fitness to perform his duties at the material time was mentioned in the decree. In the report, the prosecutor advanced three different justifications for the use of force, namely, the justified use of force to make an arrest; self-defence; and the excessive use of force due to fear. No attempt was made to reconcile these three theories. 38. The applicants sought judicial review. In a decision of 14 January 2009 the Sofia Military Court quashed the prosecutor’s decree and remitted the case for further investigation. The court considered ill-founded the prosecutor’s conclusions that Mr Mihaylov had been holding a knife when he had turned to the sergeant and that at the beginning of the fight Mr Mihaylov had pushed the sergeant onto the bonnet of the car. The court found that the officer had had full control over Mr Mihaylov and that the use of force had been excessive. The court also noted the failure of the investigative authorities to comply with previous judicial directions. 39. Following the remittal, the prosecutor interviewed two witnesses who stated that Chief Sergeant S had been injured before, in 1997 and 2003, during police operations. In a decree of 8 June 2009 the prosecutor again discontinued the criminal proceedings. This time the prosecutor maintained that Mr Mihaylov had dropped the knife before reaching for the handgun. He further held that the fight had taken place next to the car and not on its bonnet and that Mr Mihaylov had fallen on the bonnet after he had been shot. Following an appeal by the applicants, on 7 July 2009 the Sofia Military Court quashed the prosecutor’s decree and again remitted the case for further investigation. Chief Sergeant S appealed against the decision. In his appeal he did not claim to have acted in self-defence but instead claimed that it had been an accidental killing, falling under Article 15 of the Criminal Code. The prosecutor also challenged the decision. His appeal was rejected in a decision of the Military Court of Appeal on 22 July 2008. In a decree of 13 October 2009 the prosecutor discontinued the proceedings for the eighth time, stating that Mr Mihaylov had been holding a knife when he attacked the officer and that he had pushed the officer onto the bonnet of the car, dropping the knife and reaching for the handgun, and that after the shooting the officer had taken the knife and had thrown it away. The applicants sought judicial review. By a decision of 6 November 2009 the court granted the appeal and remitted the case, finding that the court’s earlier instructions had not been complied with, that no additional investigation had been conducted, and that the prosecutor had based his conclusions on contradictory facts. 40. Chief Sergeant S challenged the court’s decision before the Military Court of Appeal and reiterated his claim that the shooting had been an accident. By a final decision of 17 December 2009 the Military Court of Appeal quashed the lower court’s decision and upheld the prosecutor’s decree. The court endorsed the conclusions of the prosecutor on the facts. It found that the police officer had been faced with a real and imminent attack by the victim which was not interrupted until the two shots were fired. The police officer had acted in self-defence and had not, therefore, committed an offence.